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Exhibit
10(iii)A(68)
ACUITY BRANDS,
INC.
LONG-TERM INCENTIVE
PLAN
RESTRICTED STOCK AWARD
AGREEMENT
THIS AGREEMENT, made and
entered into as of the 23rd day of July, 2007 by and between Acuity
Brands, Inc., a Delaware Corporation, (the “Company”)
and John K. Morgan (“Grantee”).
W • I • T
• N • E • S • S • E • T •
H T • H • A •
T:
WHEREAS, the Company
maintains the Acuity Brands, Inc. Long-Term Incentive Plan (the
“Plan”), and Grantee has been selected by the Committee
to receive a Restricted Stock Award under the Plan; and
WHEREAS, the Company and
Grantee have determined that Grantee shall enter into certain
non-competition, non-solicitation, non-recruitment and
non-disclosure covenants, attached hereto as Exhibits A, B and C
respectively, in consideration for receipt of the Restricted Stock
award pursuant hereto, receipt of any such awards that Grantee may
receive in the future, continued employment, and other good and
valuable consideration;
NOW, THEREFORE, IT IS AGREED,
by and between the Company and Grantee, as follows:
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1. |
Award of Restricted Stock |
1.1 The Company hereby grants
to Grantee an award of 15,810 Shares of restricted stock
(“Restricted Stock”), subject to, and in accordance
with, the restrictions, terms, and conditions set forth in this
Agreement. The grant date of this award of Restricted Stock is
July 23, 2007 (the “Grant Date”).
1.2 This Agreement (including
any appendices or exhibits) shall be construed in accordance with,
and subject to, the provisions of the Plan (the provisions of which
are incorporated herein by reference) and, except as otherwise
expressly set forth herein, the capitalized terms used in this
Agreement shall have the same definitions as set forth in the
Plan.
2.1 Subject to Sections 2.3,
2.5, and 2.6 below, if the Grantee remains employed by the Company,
the Restricted Stock shall vest in equal annual installments over
three (3) years, as follows (each such date on which the
Restricted Stock vests is hereinafter referred to as a
“Vesting Date”):
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Number of
Shares
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Vesting
Date
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5,270
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July 23, 2008 |
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5,270
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July 23, 2009 |
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5,270
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July 23, 2010 |
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For purposes of this Agreement,
employment with a Subsidiary of the Company or service as a member
of the Board of Directors of the Company shall be considered
employment with the Company.
2.2 Except as otherwise
provided below, on each Vesting Date, Grantee shall own the Vested
Shares of Restricted Stock free and clear of all restrictions
imposed by this Agreement (except those imposed by Section 3.4
below). The Company shall transfer the Vested Shares of Restricted
Stock to an unrestricted account in the name of the Grantee as soon
as practical after each Vesting Date.
2.3 In the event, prior to
the Vesting Date, (i) Grantee dies while actively employed by
the Company, or (ii) Grantee has his employment terminated by
reason of Disability, any Restricted Stock shall become fully
vested and nonforfeitable as of the date of Grantee’s death
or Disability. The Company shall transfer the Shares of Restricted
Stock, free and clear of any restrictions imposed by this Agreement
(except for Section 3.4) to Grantee (or, in the event of
death, to his surviving spouse or, if none, to his estate) as soon
as practical after his date of death or termination for
Disability.
2.4 In exchange for receipt
of consideration in the form of the Restricted Stock award pursuant
to this Agreement, the prospect of receiving such awards in the
future, continued employment, and other good and valuable
consideration, Grantee agrees that, in the event his employment
with the Company is terminated, for the period set forth in the
Exhibits attached hereto (the “Restricted Period”),
Grantee shall comply with the non-competition, non-solicitation,
non-recruitment, and non-disclosure restrictions attached hereto as
Exhibits “A,” “B,” and “C
,” respectively (the “Restrictive Covenants”).
The parties hereto recognize that Grantee may experience periodic
material changes in his job title and/or to the principal duties,
responsibilities or services that he is called upon to perform on
the behalf of the Company. If Grantee experiences such a material
job change, the parties shall, as soon as is practicable, enter
into a signed, written addendum to Exhibit “A”
hereto reflecting such material change. Moreover, in the event of
any material change in corporate organization on the part of the
Direct Competitors set forth in Exhibit A hereto, the parties agree
to amend Exhibit “A” , as necessary, at the
Company’s request, in order to reflect such change. Upon
execution, any such written modification to Exhibit
“A” shall represent an enforceable amendment to
this Agreement and shall augment and supplant the definitions of
the terms Executive Services or Direct Competitor set forth in
Exhibit “A” hereto, as applicable.
2.5 Except for death or
Disability as provided in Section 2.3 or as provided in
Section 2.6, or except as otherwise provided in a severance
agreement or change in control agreement with Grantee, if Grantee
terminates his employment or if the Company terminates Grantee
prior to the Vesting Date, the Restricted Stock shall cease to vest
further, the unvested Shares of Restricted Stock shall be
immediately forfeited, and Grantee shall only be entitled to the
Restricted Stock that has vested as of his date of
termination.
2.6 Notwithstanding the other
provisions of this Agreement, (a) in the event of a Change in
Control of the Company (for purposes of this Agreement, a Change in
Control shall not include a “Noncovered Transaction”,
as defined in Grantee’s Amended and Restated
Change
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in Control Agreement with the Company,
dated as of April 21, 2006, and as amended on July 23,
2007, “CIC Agreement”) prior to the Vesting Date, all
Shares of Restricted Stock shall become fully vested and
nonforfeitable as of the date of the Change in Control, and
(b) in the event of the Spinoff (as defined in the CIC
Agreement), 25% of the shares of Restricted Stock that would become
vested on July 23, 2008, will become immediately vested at the
effective time of the Spinoff. For the shares of Restricted Stock
that become vested pursuant to this Section 2.6, the Company
shall transfer the Vested Shares of Restricted Stock to an
unrestricted account in the name of Grantee as soon as
practical.
2.7 The Restricted Stock may
not be sold, assigned, transferred, pledged, or otherwise
encumbered prior to the date Grantee becomes vested in the
Restricted Stock.
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3. |
Stock; Dividends; Voting |
3.1 The Restricted Stock
shall be registered in the name of Grantee as of the respective
Grant Date for such Shares of Restricted Stock. The Company may
issue stock certificates or evidence Grantee’s interest by
using a restricted book entry account with the Company’s
transfer agent. Physical possession or custody of any stock
certificates that are issued shall be retained by the Company until
such time as the Shares are vested in accordance with
Section 2. The Company reserves the right to place a legend on
such stock certificate(s) restricting the transferability of such
certificates and referring to the terms and conditions (including
forfeiture) of this Agreement and the Plan.
3.2 During the period the
Restricted Stock is not vested, the Grantee shall be entitled to
receive dividends or similar distributions declared on such
Restricted Stock and Grantee shall be entitled to vote such
Restricted Stock.
3.3 In the event of a Change
in Capitalization, the number and class of Shares or other
securities that Grantee shall be entitled to, and shall hold,
pursuant to this Agreement shall be appropriately adjusted or
changed to reflect the Change in Capitalization, provided that any
such additional Shares or additional or different shares or
securities shall remain subject to the restrictions in this
Agreement.
3.4 Grantee represents and
warrants that he is acquiring the Restricted Stock for investment
purposes only, and not with a view to distribution thereof. Grantee
is aware that the Restricted Stock may not be registered under the
federal or any state securities laws and that in that event, in
addition to the other restrictions on the Shares, they will not be
able to be transferred unless an exemption from registration is
available or the Shares are registered. By making this award of
Restricted Stock, the Company is not undertaking any obligation to
register the Restricted Stock under any federal or state securities
laws.
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4. |
No Right to Continued Employment or Additional
Grants |
Nothing in this Agreement or
the Plan shall be interpreted or construed to confer upon Grantee
any right with respect to continuance of employment by the Company
or a subsidiary, nor shall this Agreement or the Plan interfere in
any way with the right of the Company or a Subsidiary to terminate
Grantee’s employment at any time. The Plan may be terminated
at any time, and even if the Plan is not terminated, Grantee shall
not be entitled to any additional awards under the Plan.
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Grantee shall be responsible
for all federal, state, and local income taxes payable with respect
to this award of Restricted Stock and dividends paid on unvested
Restricted Stock. Grantee shall have the right to make such
elections under the Internal Revenue Code of 1986, as amended, as
are available in connection with this award of Restricted Stock.
The Company and Grantee agree to report the value of the Restricted
Stock in a consistent manner for federal income tax purposes. The
Company shall have the right to retain and withhold from any
payment of Restricted Stock or cash the amount of taxes required by
any government to be withheld or otherwise deducted and paid with
respect to such payment. At its discretion, the Company may require
Grantee to reimburse the Company for any such taxes required to be
withheld and may withhold any distribution in whole or in part
until the Company is so reimbursed. In lieu thereof, the Company
shall have the right to withhold from any other cash amounts due to
Grantee an amount equal to such taxes required to be withheld or
withhold and cancel (in whole or in part) a number of shares of
Restricted Stock having a market value not less than the amount of
such taxes.
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6. |
Grantee Bound by the Plan |
Grantee hereby acknowledges
receipt of a copy of the Plan and the prospectus for the Plan, and
agr
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