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Exhibit
10(iii)A(71)
AMENDMENT NO.
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TO ACUITY BRANDS, INC.
AMENDED AND RESTATED
SEVERANCE
AGREEMENT
THIS AMENDMENT made as of
this 23rd day of July, 2007, by and between Acuity Brands, Inc.
(the “Company”) and John K. Morgan
(“Executive”);
WHEREAS, the Company and
Executive entered into an Amended And Restated Severance Agreement,
dated as of August 1, 2005, which agreement was previously
amended on April 21, 2006 (“Severance Agreement”);
and
WHEREAS, Executive has
entered into an amended and restated employment letter agreement
with the Company, dated as of July 23, 2007 (“Employment
Agreement”), providing for certain changes in
Executive’s employment arrangements with the Company;
and
WHEREAS, the Employment
Agreement provides that the Severance Agreement shall be amended to
reflect Executive’s new title and responsibilities and in
certain other respects;
NOW, THEREFORE, the Severance
Agreement is hereby amended, as follows:
1.
The first paragraph of
Section 1 is hereby amended by deleting the proviso at the end
of the first sentence of the present section and substituting the
following in lieu thereof:
“; provided, further,
that in the event of a Change in Control of the Company (as defined
in Section 2.11 below), the Term of this Agreement shall not
expire prior to the expiration of three (3) years after the
occurrence of such Change in Control.”
2.
Section 2.6 is hereby
amended by deleting the present Section in its entirety and
substituting the following in lieu thereof:
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“2.6 |
“ Good Reason ”. A “Good Reason”
for termination by Executive of Executive’s employment with
the Company shall mean the occurrence during the Term (without
Executive’s express consent) of any of the acts by the
Company set forth below, or failures by the Company to act, and
such act or failure to act has not been corrected within thirty
(30) days after written notice of such act, or failure to act,
is given by Executive to the Company. |
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(a) |
a change in Executive’s title of President and Chief
Executive Officer of Acuity Specialty Products Group, Inc. or
Executive Vice President of the Company or a material adverse
change in Executive’s duties and responsibilities, provided
that the termination of Executive as an Executive Vice President of
the Company at the effective time of the Spinoff shall not
constitute a Good Reason for termination by Executive; |
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(b) |
the relocation of the principal office where Executive is
required to work to a location more than fifty (50) miles from
the City of Atlanta, Georgia (i) for more than six
(6) months, or (ii) if for less than six (6) months,
without providing for Executive to travel to and from Atlanta,
Georgia on a periodic basis at the Company’s
expense; |
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(c) |
a reduction in base salary and target bonus opportunity (not
the bonus actually earned) below the level in effect on the date of
this Agreement, unless such reduction is consistent with reductions
being made at the same time for other executive officers of the
Company; |
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(d) |
a material reduction in the aggregate benefits provided to
Executive by the Company under its “employee benefits
plans”, as defined in Section 3(3) of ERISA
(“Company Employee Benefit Plans”), on the date of this
Agreement, except in connection with a reduction in such benefits
which is consistent with reductions being made at the same time for
other executive officers of the Company; |
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(e) |
an insolvency or bankruptcy filing by the Company;
or |
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(f) |
a material breach by the Company of this Agreement. |
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3.
Section 2.9 is hereby
amended by deleting the present section in its entirety and
substituting the following in lieu thereof:
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“2.9 |
Change in Control Agreement - An agreement between
Executive and the Company providing for the payment of compensation
and benefits to Executive in the event of Executive’s
termination of employment under certain circumstances following a
Change in Control of the Company (as defined in Section 2.11
below).” |
4.
Section 2 is hereby
amended by adding the following definitions to the end of the
present section:
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“2.11 |
Change in Control - A change in control of the Company
as defined in the Executive’s Change in Control Agreement, as
it may be amended from time to time.” |
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“2.12 |
Spinoff - The proposed distribution by the Company of
the stock of Acuity Specialty Products Group, Inc. to the
stockholders of the Company.” |
5.
Section 3 is hereby
amended by deleting the first paragraph of the present Section in
its entirety and substituting the following in lieu
thereof:
This Agreement provides for
the payment of compensation and benefits to Executive in the event
his employment (i) is involuntarily terminated by the Company
without Cause, provided, that, the termination of Executive as an
Executive Vice President of the Company at the effective time of
the Spinoff shall not constitute an involuntary termination without
Cause, or (ii) is terminated by Executive for Good Reason. If
Executive is terminated by the Company for Cause, dies, incurs a
Disability or voluntarily terminates employment (other than for
Good Reason), 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 shall be subject to the restrictive covenants set forth
in the amended and restated employment letter agreement, dated
July 23, 2007, between the
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Company and Executive and not
the Restrictive Covenants set forth in Section 5 below;
provided, further, that in such events, Executive will be entitled
to whatever benefits are payable pursuant to the terms of any
health, life insurance, disability, welfare (except for a severance
plan or program), retirement, deferred compensation, or other plan
or program maintained by the Company.
6.
The first paragraph of
Section 4 is hereby amended by adding the following after the
word “Cause” in the first line of the present
Section:
“provided that the
termination of Executive as an Executive Vice President of the
Company at the effective time of the Spinoff shall not constitute
an involuntary termination without Cause”
7.
Section 5.1 is hereby
amended by deleting the present Section in its entirety and
substituting the following in lieu thereof:
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5. |
CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION
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5.1 In consideration of the
compensation and benefits paid or provided to Executive pursuant to
this Agreement, Executive agrees that for a period equal to the
Restricted Period (as defined in Section 1(E) of Exhibit B)
following his involuntary termination by the Company without Cause
or Executive’s termination of his employment for Good Reason,
Executive shall comply with the noncompetition, non-solicitation,
non-recruitment and non-disclosure restrictions attached hereto as
Exhibits B, C, and D respectively (the “Restrictive
Covenants”). The Company and Executive recognize that
Executive may experience periodic material changes in his job title
and/or to the duties, responsibilities or services that he is
called upon to perform on behalf of the Company. If Executive
experiences such a material change, the parties shall, as soon as
is practicable, enter into a signed, written addendum to Exhibit B
hereto reflecting such material change. Moreover, in the event of
any material change in corporate organization (including, without
limitation, spin-offs, split-offs, or public offerings of
subsidiaries’ stock) on the part of the Direct Competitors
set forth in Exhibit B hereto, the parties agree to amend
Exhibit B, as necessary, at the Company’s request, in
order to reflect such change. Upon execution, any such written
modification to Exhibit B 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 B hereto, as applicable.
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8.
The current Exhibits B, C,
and D are hereby deleted in their entirety and the Exhibits B, C,
and D attached to this Amendment are hereby substituted in lieu
thereof.
9.
This Amendment to the
Severance Agreement shall be effective as of the date of this
Amendment. Except as hereby modified, the Severance Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the
parties have executed this Amendment as of the day and year first
above written.
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ACUITY
BRANDS, INC. |
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By:
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/s/ Vernon J.
Nagel
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/s/ John K. Morgan
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JOHN K.
MORGAN |
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EXHIBIT B
TO AMENDED AND RESTATED
SEVERANCE AGREEMENT
NON-COMPETITION AND
NON-SOLICITATION COVENANT
Capitalized terms contained
herein shall have the same meaning as those defined terms set forth
in the Agreement. For purposes of
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