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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
1
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:
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(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.
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 Termination of Service
for any other reason, interest allowance shall be computed to the
last Valuation Date falling on or before the date of such
Termination of Service. Notwithstanding the other provisions of
this Article VI, in the event a Participant who is a "key employee"
(as determined by the Committee in accordance with rules
established by the Committee under Section 409A) becomes
entitled to payment of his Section 409A Account, payments
shall not commence until 6 months after his separation from service
(unless otherwise permitted by Section 409A) and on such date
the payments that would have been made during such six-month period
shall be made in a lump sum.
6.2 Except as provided in Section 6.1 above and Article IX,
distribution of each Class Year Account of a Participant shall be
made in a single lump sum payment on the October 1 next
following five (5) full Fiscal Years after the Class Year. For
example, the distribution of Class Year 2001 Account shall be made
on October 1, 2006 and for Class Year 2002 Account on
October 1, 2007, etc. Such Participant, may, however, make a
timely election to further defer receipt of this sum as provided in
Section 6.3.
6.3 Any Participant may file a subsequent election to further
irrevocably defer any amount becoming distributable under this Plan
provided that such election is filed before the end of the fourth
Fiscal Year immediately following the Class Year. For
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