EXHIBIT 10
ACUITY BRANDS LIGHTING,
INC.
SEVERANCE
AGREEMENT
THIS AGREEMENT (the
“Agreement”), made and entered into as of this day of
, 2008, by and between ACUITY BRANDS LIGHTING, INC., a Delaware
corporation (the “Company”), and
(“Executive”).
WITNESSETH:
WHEREAS, Executive is a key employee
of the Company and an integral part of the Company’s
management; and
WHEREAS, the Company desires to
provide the Executive with certain benefits if the
Executive’s employment is terminated under certain
circumstances; and
WHEREAS, the Company and the
Executive have determined it is in their mutual best interests to
enter into this Agreement;
NOW, THEREFORE, the parties hereby
agree as follows:
Unless earlier terminated as
hereinafter provided, this Agreement shall commence on the date
hereof and shall be for a rolling, two-year term (the
“Term”) and shall be deemed to extend automatically,
without further action by either the Company or Executive, each day
for an additional day, such that the remaining term of the
Agreement shall continue to be two years; provided, however, that
either party may, by written notice to the other, cause this
Agreement to cease to extend automatically and, upon such notice,
the “Term” of this Agreement shall be the two-year
period following the date of such notice and this Agreement shall
terminate upon the expiration of such Term. This Agreement shall
not be considered an employment agreement and in no way guarantees
Executive the right to continue in the employment of the Company or
its affiliates. Executive’s employment is considered
employment at will, subject to Executive’s right to receive
payments and benefits upon certain terminations of employment as
provided below.
As of the date hereof, to the extent
that the Executive and the Company have previously entered into
a severance agreement related to the terms and conditions
addressed in this Agreement, such agreement is superseded and
replaced in its entirety by this Agreement. Unless it is
specifically provided otherwise, this Agreement does not supersede
any Change in Control agreement between the parties that relates
specifically to termination and severance benefits in connection
with a Change in Control of the Company.
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2.
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DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings specified below:
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2.1 “ Board ” or
“ Board of Directors. ” The Board of Directors
of Acuity Brands, Inc., or its successor.
2.2 “ Cause ”.
The involuntary termination of Executive by the Company for the
following reasons shall constitute a termination for
Cause:
a. If termination shall have been
the result of an act or acts by the Executive which have been found
in an applicable court of law to constitute a felony (other than
traffic-related offenses);
b. If termination shall have been
the result of an act or acts by the Executive which are in the good
faith judgment of the Company to be in violation of law or of
written policies of the Company and which result in material injury
to the Company;
c. If termination shall have been
the result of an act or acts of dishonesty by the Executive
resulting or intended to result directly or indirectly in gain or
personal enrichment to the Executive at the expense of the Company;
or
d. Upon the continued failure by the
Executive substantially to perform the duties reasonably assigned
to Executive given Executive’s training and experience (other
than any such failure resulting from incapacity due to mental or
physical illness not constituting a Disability, as defined herein),
after a demand in writing for substantial performance of such
duties is delivered by the Company, which demand specifically
identifies the manner in which the Company believes that the
Executive has not substantially performed his/her duties and such
failure results in material injury to the Company.
If Executive’s employment is
terminated for any reason, the supervising executive to whom
Executive directly reports (the “Supervising
Executive”) shall make a determination whether or not the
termination was for Cause. If the Supervising Executive determines
that the termination was for Cause, then, within thirty
(30) days of such termination, the Company shall provide
written notice to the Executive indicating that the termination was
for Cause and noting that benefits will not be made available to
the Executive pursuant to this Agreement.
2.3 “ Company ”.
Acuity Brands Lighting, Inc., a Delaware corporation, or any
successor to its business and/or assets.
2.4 “ Date of
Termination ”. The date specified in the Notice of
Termination (which may be immediate) as the date upon which the
Executive’s employment with the Company is to
cease.
2.5 “ Disability
”. Disability shall have the meaning ascribed to such term in
the Company’s long-term disability plan covering the
Executive, or in the absence of such plan, a meaning consistent
with Section 22(e)(3) of the Code. The determination of
Disability shall be made by the Company in a manner consistent with
the requirements of Section 409A.
2.6 “ Notice of
Termination ”. A written notice from the Company to the
Executive specifying the Date of Termination.
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2.7 “ Parent Company
”. Acuity Brands, Inc., a Delaware corporation, or any
successor to its business and/or assets.
2.8 “ Section 409A
”. Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations and rulings thereunder.
2.9 “ Severance Period
”. A period equal to the lesser of (i)
months from the Executive’s Date of Termination or
(ii) the number of months (rounded to the nearest month) from
the Executive’s Date of Termination until the date he attains
age 65; provided, however, that the Severance Period shall in no
event be less than six (6) months.
This Agreement provides for the
payment of compensation and benefits to Executive in the event
his/her employment is involuntarily terminated by the Company
without Cause. If Executive is terminated by the Company for Cause,
dies, incurs a Disability or voluntarily terminates employment,
this Agreement shall terminate, and Executive shall be entitled to
no payments of compensation or benefits pursuant to the terms of
this Agreement; provided that in such events, Executive will be
entitled to whatever benefits are payable pursuant to the terms of
any health, life insurance, disability, welfare, retirement,
deferred compensation, or other plan or program maintained by the
Company.
If, as a result of Executive’s
termination of employment, Executive becomes entitled to
compensation and benefits under this Agreement and under a Change
in Control Agreement, Executive shall be entitled to receive
benefits under whichever agreement provides Executive the greater
aggregate compensation and benefits (and not under the other
agreement) and there shall be no duplication of
benefits.
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4.
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BENEFITS
UPON INVOLUNTARY TERMINATION WITHOUT CAUSE BY THE
COMPANY
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If Executive’s employment is
involuntarily terminated by the Company during the term of this
Agreement without Cause (and such termination does not arise as a
result of Executive’s death or Disability), the Executive
shall be entitled to the compensation and benefits described below,
provided that Executive, as described in Section 4.7, executes
a valid release of claims in such form as may be required by the
Company. In the event Executive is terminated without Cause, the
Company may, in its discretion and to provide equitable treatment,
grant benefits to Executive in addition to those provided below in
circumstances where Executive suffers a diminution of projected
benefits as a result of Executive’s termination prior to
attainment of age 65, including without limitation, additional
retirement benefits, provided that any such grant of additional
benefits shall be consistent with the requirements of
Section 409A and no such grant shall be made which would
violate Section 409A and the regulations and rulings
thereunder.
If, as a result of Executive’s
termination of employment, Executive becomes entitled to
compensation and benefits under this Agreement and under a Change
in Control Agreement, Executive shall be entitled to receive
benefits under whichever agreement provides Executive the greater
aggregate compensation and benefits (and not under the other
agreement) and there shall be no duplication of
benefits.
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4.1 Base Salary . Executive
shall continue to receive his/her Base Salary (subject to
withholding of all applicable taxes) for the entire Severance
Period (as defined in Section 2.9 above), payable in the same
manner as it was being paid on his/her Date of
Termination.
4.2 Annual Bonus; Accrued
Vacation . Executive shall be paid a bonus in an amount equal
to the greater of (i) the annual incentive bonus that would be
paid or payable to Executive for the fiscal year of the Company
during which Executive’s Date of Termination occurs under the
Company’s annual incentive plan (“Incentive
Plan”), assuming the 100% target level(s) of performance had
been met for such fiscal year, multiplied by a fraction (the
“Pro Rata Fraction”), the numerator of which is the
number of days that have elapsed in the then current fiscal year
through Executive’s Date of Termination and the denominator
of which is 365, or (ii) the annual incentive bonus that would
be paid or payable to Executive for the fiscal year of the Company
during which Executive’s Date of Termination occurs under the
Incentive Plan based upon the Company’s actual performance
for such fiscal year, multiplied by the Pro Rata Fraction. The
bonus amount determined pursuant to Section 4.2(i) shall be
paid to Executive within thirty (30) days after the
Executive’s Date of Termination and any additional amount
payable pursuant to Section 4.2(ii) shall be payable at the
same time as bonuses are payable to other executives under the
Incentive Plan. The bonus amount determined pursuant to this
section shall be subject to withholding of all applicable taxes. In
the event Executive becomes entitled to a bonus under this
Section 4.2 and under the Incentive Plan in connection with a
change in control (as defined in the Incentive Plan), Executive
shall be entitled to receive whichever bonus amount is greater and
Executive shall not receive a duplicate bonus for the same fiscal
year (or portion of a fiscal year).
Executive shall be paid an amount
equal to Executive’s accrued but unused vacation (determined
in accordance with Company policy) as of his/her Date of
Termination. The amount shall be paid within thirty (30) days
after the Executive’s Date of Termination (subject to
withholding of all applicable taxes).
4.3 Stock Options, Restricted
Stock And Restricted Stock Units . As of Executive’s Date
of Termination, the vesting and exerciseability of all outstanding
Stock Options, Restricted Stock, Restricted Stock Units and any
other equity awards held by Executive shall be determined in
accordance with the agreements governing such awards.
4.4 Health Care and Life
Insurance Benefits . The health care (including dental and
vision coverage, if applicable) and term life insurance coverage
provided to Executive at his/her Date of Termination shall be
continued at the same level as for active executives and in the
same manner as if his/her employment had not terminated, beginning
on the Date of Termination and ending on the last day of the
Severance Period. Any additional coverage Executive had at
termination, including dependent coverage, will also be continued
for such period on the same terms, to the extent permitted by the
applicable policies or contracts. Any costs Executive was paying
for such coverage at the time of termination shall be paid by
Executive by separate check payable to the Company each month in
advance or, at Executive’s election, may be deducted from
his/her Base Salary payments under Section 4.1. If the terms
of the life insurance plan referred to in this Section 4.4 or
the laws applicable to such plan do not permit continued
participation by
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Executive as required by this
section, then the Company will arrange for other coverage
satisfactory to Executive at the Company’s expense providing
substantially identical benefits or, at the Company’s
election, the Company will pay Executive an amount each month
during the Severance Period equal to the costs to Executive for the
coverage.
If the terms of the health care plan
referred to in this Section 4.4 do not permit continued
participation by Executive as required by this subsection or if the
healthcare benefits to be provided to Executive and his/her
dependents pursuant to this Section 4.4 cannot be provided in
a manner such that the benefit payments will be tax-free to
Executive and his/her dependents, then the Company shall
(A) pay to Executive each month during the Severance Period
after Executive’s Termination Date an amount equal to the
monthly rate for COBRA coverage under the healthcare plan that is
then being paid by former active employees for the level of
coverage that applies to Executive and his/her dependents, minus
the amount active employees are then paying for such coverage, and
(B) permit Executive and his/her dependents to elect to
participate in the healthcare plan for the Severance Period upon
payment of the applicable rate for COBRA coverage during the
Severance Period. A benefit provided under this Section 4.4
shall cease if Executive obtains other employment and, as a result
of such employment, health care or life insurance benefits are
available to Executive. At the end of the Severance Period,
Executive shall be entitled to elect to continue health care
coverage pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (“COBRA”), for the period
required by COBRA.
4.5 Outplacement Services .
Executive will be provided for the Severance Period with
outplacement services in accordance with the Company’s
severance policy through an outplacement firm selected by the
Company (unless Executive wishes to choose a different outplacement
firm), provided that the Company’s total cost for such
services shall not exceed an amount equal to ten percent
(10%) of Executive’s Base Salary.
4.6 Other Benefits . Except
as expressly provided herein, all other fringe benefits provided to
Executive as an active employee of the Company (e.g., 401(k) plan,
AD&D, car allowance, club dues, etc.), shall cease on his/her
Date of Termination, provided that any conversion or extension
rights applicable to such benefits shall be made available to
Executive at his/her Date of Termination or when such coverages
otherwise cease at the end of the Severance Period. Except as
expressly provided herein, for all other plans sponsored by the
Company, the Executive’s employment shall be treated as
terminated on his/her Date of Termination and Executive’s
right to benefits shall be determined under the terms of such
plans; provided, however, in no event will Executive be entitled to
severance payments or benefits under any other severance plan,
policy, program or agreement of the Company, except to the extent
Executive is covered by a change in control agreement.
4.7 Release of Claims . To be
entitled to any of the compensation and benefits described above in
this Section 4, Executive shall sign a release of claims
substantially in the form attached hereto as Exhibit A. No payments
shall be made under this Section 4 until such release has been
properly executed and delivered to the Company and until the
expiration of the revocation period, if any, provided under the
release. If the release is not properly executed by the Executive
and delivered to the Company within the reasonable time periods
specified in the release, the Company’s obligations under
this Section 4 will terminate.
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4.8 Section 409A . The
Company shall have the authority to delay the commencement of
payments under this Section 4 to “key employees”
of the Company (as determined by the Company in accordance with
procedures established by the Company that are consistent with
Section 409A) to a date which is six months after the date of
Executive’s Termination of Employment (and on such date the
payments that would otherwise have been made during such six-month
period shall be made) to the extent such delay is required under
the provision of Section 409A, provided that the Company and
Executive may agree to take into account any transitional rule
available under Section 409A.
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5.
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CONFIDENTIALITY, NON-SOLICITATION AND
NON-COMPETITION
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5.1 Purpose and Reasonableness of
Provisions . Executive acknowledges that, prior to and during
the Term of this Agreement, the Company and the Parent Company
(collectively referred to hereinafter, where applicable, as the
“Protected Parties”) have furnished and will furnish to
Executive Trade Secrets and Confidential Information, which, if
used by Executive on behalf of a competitor of the Protected
Parties or other person, could cause substantial detriment to the
Protected Parties. Moreover, the parties recognize that Executive,
during the course of his/her employment with the Company, has and
will develop important relationships with customers and others
having valuable business relationships with the Company. In view of
the foregoing, Executive acknowledges and agrees that the
restrictive covenants contained in this Section 5 are
reasonably necessary to protect the Protected Parties’
legitimate business interests, Confidential Information, and good
will.
The Company and Executive recognize
that Executive may experience periodic material changes in his/her
job title and/or the duties, responsibilities or services that
he/she is called upon to perform on behalf of the Company. If
Executive experiences such a material change, the parties shall, as
soon as is practical, enter into a signed, written amendment to the
relevant provisions of Exhibit B of this Severance Agreement
reflecting such material change. Moreover, in the event of any
material change in corporate organization or business on the part
of the Direct Competitors or in the Company’s Business as
defined in Exhibit B, the parties agree to amend those provisions,
as necessary, at the Company’s request,