EXHIBIT 10(iii)A(61)
ACUITY BRANDS,
INC.
EXECUTIVES’ DEFERRED
COMPENSATION PLAN
(EFFECTIVE AS OF NOVEMBER 30,
2001)
(As Amended on of
December 30, 2002 and as Amended and Restated January 1,
2005,
except where otherwise
noted)
PURPOSE
Acuity Brands, Inc. (the
“Company”) has established the Acuity Brands, Inc.
Executives’ Deferred Compensation Plan (the
“Plan”) to assist certain key employees in accumulating
capital or supplementing any retirement income they may otherwise
receive by permitting them to defer a portion of their
compensation. To encourage these individuals to participate in the
Plan and to continue their employment with the Company, the Company
will match a portion of these deferred amounts.
The Plan is designed to be a
nonqualified, deferred compensation plan maintained primarily for a
select group of management and highly compensated employees of the
Company and its subsidiaries. The benefits under the Plan are
unfunded and all amounts payable under the Plan shall be paid from
the general assets of the Adopting Employer which employs the
Participant.
The Plan was initially effective as
of November 30, 2001, and was established in connection with
the spin-off of the Company by National Service Industries, Inc.
(“NSI”), as a successor plan to the National Service
Industries, Inc. Executives’ Deferred Compensation Plan
(“Prior Plan”) for certain employees and former
employees of NSI and its subsidiaries who were participants in the
Prior Plan immediately prior to November 30, 2001, and who became
or remained employees of the Company or its Subsidiaries as of
November 30, 2001 or who were formerly employed by the businesses
transferred to the Company by NSI (including former employees of
the corporate office of NSI). The effective date of the amended and
restated plan as set forth herein is January 1, 2005, except where
otherwise noted
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ARTICLE I
Definitions
1.1 “Average Prime Rate”
means the average of the rates of interest publicly announced by
Wachovia Bank, N.A. (or any successor thereto) as its prime rate on
the first business day of each of the calendar quarters commencing
between Valuation Dates.
1.2 “Class Year” means
the Fiscal Year for which a deferral is elected.
1.3 “Class Year Account”
means the sub-accounts set up for the Primary Account and Company
Contribution Account for each Class Year.
1.4 “Code” means the
Internal Revenue Code of 1986, as amended from time to
time.
1.5 “Company” means
Acuity Brands, Inc., a Delaware corporation (or its successor or
successors). Affiliated or related employers are permitted to adopt
the Plan and shall be known as “Adopting Employers.” To
the extent required by certain provisions (e.g., Compensation and
Continuous Service), references to the Company shall include the
Adopting Employer of the Participant. Adopting Employers are listed
on Appendix A.
1.6 “Committee” means
the Committee appointed to administer the Plan as and to the extent
provided in Article VIII.
1.7 “Company Contribution
Account” means the sum of all amounts credited to a
Participant pursuant to Section 3.1, including amounts
previously credited to a Participant’s Company Contribution
Account in the Prior Plan and transferred to this Plan as provided
in Article X, together with interest allowances thereon
credited pursuant to Section 4.1 herein.
1.8 “Compensation” means
the aggregate salary from the Company (and/or, with respect to
periods prior to the Effective Date, from NSI or one of NSI’s
affiliates) received by a Participant during a Fiscal Year together
with any performance or discretionary bonus awarded by the Company
(and/or, with respect to periods prior to the Effective Date, by
NSI or one of NSI’s affiliates) for that same Fiscal Year.
Compensation does not include expense reimbursement, car allowance,
imputed value of group life insurance, aspiration award payments,
income from stock options, restricted stock, and other stock
awards, Company contributions to any benefit plan, or any gift or
awards not treated as pay by the Company.
1.9 “Continuous Service”
means the period of uninterrupted employment of an Eligible
Executive with the Company since the individual’s most recent
date of employment or appointment to the class of Eligible
Executives, whichever is applicable. For individuals who are
Eligible Executives on the Effective Date and who were
participating in the Prior Plan immediately prior to the Effective
Date, Continuous Service shall include the Eligible
Executive’s period of Continuous Service under the Prior
Plan.
1.10 “Deferral Election”
means a written election, in a form prescribed by the Committee, to
defer receipt of bonus amounts otherwise payable to the
Executive.
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1.11 “Deferred
Compensation” means the portion of a Participant’s
compensation for any Fiscal Year, or part thereof, that has been
deferred pursuant to the Plan.
1.12 “Effective Date”
means the effective date of the amended and restated plan, January
1, 2005, except where otherwise noted. The Plan was initially
effective, November 30, 2001.
1.13 “Executive or Eligible
Executive” means a Senior Officer, a Key Manager, or a
President, each as defined herein. Any dispute regarding any
individual’s eligibility for the Plan shall be resolved by
the Committee in its sole discretion.
1.14 “Fiscal Year” means
the fiscal year of the Company commencing on September 1 and
ending on August 31 of the following calendar year, or such
other fiscal year as may be established in the future.
1.15 “Key Manager” means
an assistant vice president or other key management employee (as
determined by the Committee or its designee) of the Company or an
Adopting Employer.
1.16 “NSI” means
National Service Industries, Inc., a Delaware
corporation.
1.17 “Participant” means
a person a portion of whose compensation for any Fiscal Year has
been deferred pursuant to the Plan and whose interests in the Plan
have not been wholly forfeited or distributed.
1.18 “Plan or
Executives’ Plan” means the Acuity Brands, Inc.
Executives’ Deferred Compensation Plan as described in this
instrument, and as it may be amended from time to time.
1.19 “President” means
the president of a business unit of the Company or an Adopting
Employer.
1.20 “Primary Account”
means the sum of all amounts deferred by a Participant pursuant to
Section 2.1 including any amounts previously deferred to the
Participant’s Primary Account under the Prior Plan and
transferred to this Plan, plus interest allowances thereon credited
pursuant to Section 4.1 herein.
1.21 “Prior Plan” means
the National Service Industries, Inc. Executives’ Deferred
Compensation Plan.
1.22 “Senior Officer”
means the president or an executive vice president, senior vice
president, or vice president of the Company or an Adopting
Employer.
1.23 “Termination of
Service” or similar expression means the termination of the
Participant’s employment as an Eligible Executive of the
Company. A Participant who is granted a temporary leave of absence,
whether with or without pay, shall not be deemed to have terminated
his service. In the event of a transfer of an Eligible Executive to
a position in which he would no longer be eligible to continue in
this Plan, or in the event of the disability of a Participant (as
determined by the Committee), the Committee, in its sole
discretion, shall determine whether a Termination of Service has
occurred.
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1.24 “Total and Permanent
Disability” means a physical or mental incapacity which
impairs the Participant’s ability to substantially perform
his duties for a period of one hundred eighty
(180) consecutive days, as determined by the Committee, and,
with respect to a Participant’s Section 409A Account,
consistent with the requirements of Section 409A.
1.25 “Valuation Dates”
mean March 31 and September 30 of each year.
1.26 “Section 409A”
means Section 409A of the Code and the regulations and rulings
thereunder.
1.27 “Section 409A
Account” means that portion of a Participants Class Year
Account that was not vested as of December 31, 2004 and which
is subject to certain special provisions of the Plan.
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ARTICLE II
Amounts
Deferred
2.1 Each Eligible Executive may
elect to have a portion of the annual performance or discretionary
bonus (“bonus”), if any, to be received by him for the
Fiscal Year commencing September 1, 2001, and for any Fiscal
Year thereafter, irrevocably deferred in accordance with the terms
and conditions of the Plan. The amount of such bonus that may be so
deferred shall not exceed the lower of:
(a) the Executive’s
Compensation for the Class Year which is in excess of the average
Compensation paid or credited to the Executive (including any
amounts deferred under this Plan, but excluding Company
Contributions under this Plan) for services rendered as an Eligible
Executive over the three (3) full Fiscal Years immediately
preceding the Class Year. If the Executive has completed two
(2) but less than three (3) full Fiscal Years of
Continuous Service in an eligible position the average shall be
computed based upon the average Compensation paid or credited to
the Executive for the two (2) full Fiscal Years immediately
preceding the Class Year. Any Executive who has not completed two
(2) full Fiscal Years in an eligible position shall be
entitled to defer for the Class Year not more than
(1) twenty-five hundred dollars ($2,500) for a Senior Officer
and (2) twelve hundred fifty dollars ($1,250) for a Key
Manager; and
(b) the Executive’s bonus for
the Class Year.
An Executive desiring to exercise
such election shall deliver a Deferral Election to the Company or
the Executive’s Adopting Employer, as applicable, prior to
the beginning of each such Fiscal Year, or if an individual first
becomes an Eligible Executive during a Fiscal Year, within 30 days
after the date the individual first becomes an Eligible Executive
(or within such other period as may be established by the
Committee). Any such Deferral Election delivered under the Prior
Plan with respect to the Fiscal Year ending August 31, 2002
shall continue in effect under this Plan for such Fiscal Year. If
the Executive’s Deferral Election would result in a deferral
greater than the maximum provided herein, any deferred amount shall
be reduced to the maximum limit provided herein.
2.2 The Executive’s Primary
Account shall be credited, as of October 1 next following the
end of each Class Year for which the election was made, with the
dollar amount of the Compensation deferred for such Class Year
pursuant to Section 2.1.
2.3 A Participant’s accounts
shall be distributable in the manner and subject to the conditions
set forth in Article V, Article VI and Article IX.
2.4 Effective for Fiscal Years
commencing on or after September 1, 2002, Eligible Executives
shall not be permitted to defer any portion of their bonus for such
Fiscal Year to the Plan.
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ARTICLE III
Company
Contribution
As of each October 1, the
Company shall contribute to a Company Contribution Account on
behalf of each Eligible Executive an amount equal to the
Executive’s Deferred Compensation for the immediately
preceding Class Year, up to a maximum of five thousand dollars
($5,000) for a Senior Officer or President and twenty-five hundred
dollars ($2,500) for a Key Manager.
The inability of a Participant to
fully utilize the maximum Company Contribution for any Class Year,
whether due to lack of qualified earnings, eligible service,
failure to elect or any other reason, shall not result in a
carry-over of unused credits to any subsequent year.
After October 1, 2002, the
Company shall cease to make contributions to the Company
Contribution Account for Eligible Executives.
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ARTICLE IV
Interest
Allowance
Each Primary Account and Company
Contribution Account of each Participant shall be credited as of
each September 30 with an interest allowance which shall be
computed and compounded on semi-annual Valuation Dates based upon
the Average Prime Rate as follows:
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When the Average Prime Rate
is:
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The Interest Credit Shall
Be:
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• more
than 12.00%
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• Average
Prime Rate less 3%
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• more
than 8.00% but not more than 12.00%
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• Average
Prime Rate less 2%
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• 8.00%
or less
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• Average
Prime Rate less 1%
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This interest allowance shall be
applied to the balances standing, as of said date, in each
Participant’s accounts for all Class Years.
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ARTICLE V
Vesting
5.1 A Participant shall at all times
have a non-forfeitable (vested) right to the amounts in his Primary
Account subject to the distribution provisions of Article
VI.
5.2 (a) Subject to Article IX,
the Company Contribution Account of a Participant for each Class
Year shall become vested in him upon the completion of five full
Fiscal Years of Continuous Service as an Eligible Employee after
the end of such Class Year.
(b) Subject to Article IX, the
Company Contribution Account of a Participant for all Class Years
shall become vested in him upon the occurrence of any of the
following events:
(i) Total and Permanent Disability
of the Participant (as determined by the Committee); or
(ii) Retirement after the
Participant has attained age 55; or
(iii) Death of the Participant;
or
(iv) Termination of this
Plan.
5.3 Notwithstanding anything to the
contrary herein, prior to a Change in Control should the
Participant be found by the Committee to be guilty of theft,
embezzlement, fraud or misappropriation of the Company’s
property or of any action which, if the individual were an Officer
of the Corporation, would constitute a breach of fiduciary duty,
the Company Contribution Account for all Class Years which had not
yet vested in the Participant shall be immediately
forfeited.
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ARTICLE VI
Distribution
6.1 Subject to Article IX,
distribution of the vested portion of a Participant’s Account
shall be made in a lump sum as soon as practicable following the
Participant’s Total and Permanent Disability, death or
Termination of Service for any other reason prior to attainment of
age 55. If a Participant terminates employment on or after age 55,
the provisions of any benefit elections made by the Participant
pursuant to Section 6.3 shall be recognized. In the event of
the termination of the Plan or the Total and Permanent Disability
or death of a Participant, interest allowance pursuant to Article
IV shall be computed to the date of payment hereunder. In the event
of Term