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Exhibit 10(iii)A(s)
NATIONAL SERVICE INDUSTRIES, INC.
EXECUTIVE SAVINGS PLAN
(Effective As of September 1, 1994)
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Exhibit 10(iii)A(s)
NATIONAL SERVICE INDUSTRIES, INC.
EXECUTIVE SAVINGS PLAN
TABLE OF CONTENTS
ARTICLE I INTRODUCTION AND ESTABLISHMENT. . . . . . . . . 1
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . 1
2.1 Account. . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Beneficiary. . . . . . . . . . . . . . . . . . . . . 1
2.3 Bonus. . . . . . . . . . . . . . . . . . . . . . . . 1
2.4 Change in Control. . . . . . . . . . . . . . . . . . 1
2.5 Class Year . . . . . . . . . . . . . . . . . . . . . 2
2.6 Class Year Account . . . . . . . . . . . . . . . . . 2
2.7 Code . . . . . . . . . . . . . . . . . . . . . . . . 2
2.8 Company. . . . . . . . . . . . . . . . . . . . . . . 3
2.9 Election Form. . . . . . . . . . . . . . . . . . . . 3
2.10 Employer . . . . . . . . . . . . . . . . . . . . . . 3
2.11 ERISA. . . . . . . . . . . . . . . . . . . . . . . . 3
2.12 Executive. . . . . . . . . . . . . . . . . . . . . . 3
2.13 Fiscal Year. . . . . . . . . . . . . . . . . . . . . 3
2.14 Interest Earnings Rate . . . . . . . . . . . . . . . 3
2.15 Participant. . . . . . . . . . . . . . . . . . . . . 3
2.16 Plan . . . . . . . . . . . . . . . . . . . . . . . . 3
2.17 Plan Administrator . . . . . . . . . . . . . . . . . 3
2.18 Plan Year. . . . . . . . . . . . . . . . . . . . . . 4
2.19 Prime Rate . . . . . . . . . . . . . . . . . . . . . 4
2.20 Termination for Cause. . . . . . . . . . . . . . . . 4
2.21 Termination of Service . . . . . . . . . . . . . . . 4
2.22 Total and Permanent Disability . . . . . . . . . . . 4
2.23 Valuation Dates. . . . . . . . . . . . . . . . . . . 4
ARTICLE III PARTICIPATION . . . . . . . . . . . . . . . . . 1
3.1 Eligibility to Participate . . . . . . . . . . . . . 1
3.2 Deferral Election. . . . . . . . . . . . . . . . . . 1
ARTICLE IV INTEREST OF PARTICIPANTS. . . . . . . . . . . . 1
4.1 Accounting for Participants' Interests . . . . . . . 1
4.2 Vesting of a Participant's Account . . . . . . . . . 1
4.3 Distribution of a Participant's Account. . . . . . . 1
4.4 Hardship . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE V PLAN ADMINISTRATOR. . . . . . . . . . . . . . . 1
5.1 Committee. . . . . . . . . . . . . . . . . . . . . . 1
5.2 Action . . . . . . . . . . . . . . . . . . . . . . . 1
5.3 Right and Duties . . . . . . . . . . . . . . . . . . 1
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Exhibit 10(iii)A(s)
5.4 Compensation, Indemnity and Liability. . . . . . . . 2
5.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE VI CLAIMS PROCEDURE. . . . . . . . . . . . . . . . 1
6.1 Claims for Benefits. . . . . . . . . . . . . . . . . 1
6.2 Appeals. . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE VII AMENDMENT AND TERMINATION; CHANGE IN CONTROL. . 1
7.1 Amendments . . . . . . . . . . . . . . . . . . . . . 1
7.2 Termination of Plan. . . . . . . . . . . . . . . . . 1
7.3 Change In Control Provisions . . . . . . . . . . . . 1
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . 1
8.1 Limitation on Participant's Rights . . . . . . . . . 1
8.2 Benefits Unfunded. . . . . . . . . . . . . . . . . . 1
8.3 Other Plans. . . . . . . . . . . . . . . . . . . . . 1
8.4 Receipt or Release . . . . . . . . . . . . . . . . . 1
8.5 Governing Law. . . . . . . . . . . . . . . . . . . . 2
8.6 Gender, Tense, and Headings. . . . . . . . . . . . . 2
8.7 Successors and Assigns; Nonalienation of Benefits. . 2
APPENDIX A Election To Participate And Beneficiary
Designation . . . . . . . . . . . . . . . . . .A-1
APPENDIX B Election To Defer Distribution. . . . . . . . .B-1
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Exhibit 10(iii)A(s)
ARTICLE I
INTRODUCTION AND ESTABLISHMENT
National Service Industries, Inc. ("Company") hereby establishes
the National Service Industries, Inc. Executive Savings Plan ("Plan")
for the benefit of eligible management and highly compensated
employees of the Company and its affiliated or related employers. The
Plan is designed to assist eligible employees in accumulating capital
and supplementing their retirement income.
The terms of this Plan are applicable only to eligible employees
who are actively employed on or after September 1, 1994. Any employee
who terminates his employment relationship prior to that date shall
not be covered by this Plan.
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Exhibit 10(iii)A(s)
ARTICLE II
DEFINITIONS
When used in this Plan, the following terms shall have the
meanings set forth below unless a different meaning is plainly
required by the context:
2.1 "Account" means the records maintained by the Plan
Administrator to determine each Participant's interest under this
Plan. Such Account may be reflected as an entry in the Company's
records, or as a separate account under a trust, or as a combination
of both. Each Participant's Account shall consist of subaccounts for
each Class Year to reflect his deferral of Bonus (if any) for such
Class Year and earnings thereon. The Plan Administrator may establish
such additional subaccounts as it deems necessary for the proper
administration of the Plan.
2.2 "Beneficiary" means the person or persons last
designated in writing by the Participant to receive the amount in his
Account in the event of such Participant's death; or if no designation
shall be in effect at the time of a Participant's death or if all
designated Beneficiaries shall have predeceased the Participant, then
the Beneficiary shall be the Participant's estate.
2.3 "Bonus" means any performance or discretionary bonus
awarded by the Company to a Participant for a Fiscal Year.
2.4 "Change in Control" means any of the following events:
(i) The acquisition (other than from the Company) by
any "Person" (as the term person is used for purposes of
Sections 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act")) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 1934
Act) of twenty percent (20%) or more of the combined voting
power of the Company's then outstanding voting securities;
or
(ii) The individuals who, as of September 1, 1994, are
members of the Board (the "Incumbent Board"), cease for any
reason to constitute at least two-thirds of the Board;
Provided, however, that if the election, or nomination for
election by the Company's stockholders, of any new director
was approved by a vote of at least two-thirds
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Exhibit 10(iii)A(s)
of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; or
(iii) Approval by stockholders of the Company of (1) a
merger or consolidation involving the Company if the
stockholders of the Company, immediately before such merger
or consolidation do not, as a result of such merger or
consolidation, own, directly or indirectly, more than
seventy percent (70%) of the combined voting power of the
then outstanding voting securities of the corporation
resulting from such merger or consolidation in substantially
the same proportion as their ownership of the combined
voting power of the voting securities of the Company
outstanding immediately before such merger or consolidation
or (2) a complete liquidation or dissolution of the Company
or an agreement for the sale or other disposition of all or
substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur pursuant to subsection (i) above, solely
because twenty percent (20%) or more of the combined voting
power of the Company's then outstanding securities is
acquired by (i) a trustee or other fiduciary holding
securities under one or more employee benefit plans
maintained by the Company or any of its subsidiaries, or
(ii) any corporation which, immediately prior to such
acquisition, is owned directly or indirectly by the
stockholders of the Company in the same proportion as their
ownership of stock in the Company immediately prior to such
acquisition.
2.5 "Class Year" means the Fiscal Year for which a deferral
of Bonus is elected.
2.6 "Class Year Account" means the subaccount set up to
reflect the Participant's deferral of Bonus for each Class Year and
any earnings thereon.
2.7 "Code" means the Internal Revenue Code of 1986, as
amended.
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Exhibit 10(iii)A(s)
2.8 "Company" means National Service Industries, Inc., a
Delaware Corporation, or its successor or successors.
2.9 "Election Form" means the form prescribed by the Plan
Administrator on which a Participant may specify the amount of his
Bonus that is to be deferred pursuant to the provisions of Article
III.
2.10 "Employer" means the Company and any affiliated or
related employer designated by the Company to participate in the Plan.
2.11 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
2.12 "Executive" means an officer of the Company or one of
the Company's Operating Divisions, and other designated employees.
Any dispute regarding any individual's classification shall be
determined by the Plan Administrator in its sole discretion.
2.13 "Fiscal Year" means the year commencing on September 1
and ending on August 31 of the following calendar year.
2.14 "Interest Earnings Rate" means an interest rate (i)
for the period October 1 to March 31 equal to one percent (1%) above
the average of the Prime Rates on October 1 and on January 1, and (ii)
for the period April 1 to September 30 equal to one percent (1%) above
the average of the Prime Rates on April 1 and July 1, provided that
for a Participant who on a valuation date is an executive officer of
the Company for whom disclosure of compensation information is
required by the Proxy Rules adopted by the Securities and Exchange
Commission, the Interest Earnings Rate credited on such Valuation Date
shall not exceed 120% of the Federal mid-term rate (as determined
under Section 1274(d) of the Code).
2.15 "Participant" means an Eligible Executive as defined
in Section 3.1 (or an individual who was an Eligible Executive), a
portion of whose Bonus for any Fiscal Year has been deferred pursuant
to the Plan and whose interest in the Plan has not been wholly
distributed.
2.16 "Plan" means the National Service Industries, Inc.
Executive Savings Plan as set forth herein and as it may be amended
from time to time.
2.17 "Plan Administrator" means the Committee appointed
pursuant to Article V to administer the Plan. In the absence of such
appointment, the Company shall be the Plan Administrator.
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Exhibit 10(iii)A(s)
2.18 "Plan Year" means the Fiscal Year.
2.19 "Prime Rate" means the prime rate of interest on a
particular date, as established by the Wachovia Bank of Georgia, N.A.
(or its successor).
2.20 "Termination for Cause" means the Executive has
terminated employment and has been 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 Company, would constitute a breach of fiduciary duty.
2.21 "Termination of Service" or similar expression means
the termination of the Participant's employment as an Executive. 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 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, the Plan Administrator in its sole
discretion, shall determine whether a Termination of Service has
occurred.
2.22 "Total and Permanent Disability" means the permanent
and lasting inability of a Participant due to illness, accident, or
other physical or mental incapacity, to perform his usual duties and
services for the Employer. The determination as to whether Total and
Permanent Disability exists shall be made by the Plan Administrator
based upon the information provided to it.
2.23 "Valuation Dates" mean March 31 and September 30 of
each year.
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Exhibit 10(iii)A(s)
ARTICLE III
PARTICIPATION
3.1 Eligibility to Participate. Prior to the commencement
of each Fiscal Year, the Company (or its designee) shall specify the
Executives who are eligible to make deferral elections under the Plan
for the following Fiscal Year (an "Eligible Executive"). Such
eligibility designation may be made by establishing a minimum
compensation level for participation or by the use of such other
criteria as the Company (or its designee) deems appropriate from time
to time. An Eligible Executive shall become a Participant upon making
the deferral election described in Section 3.2 below.
3.2 Deferral Election. Each Eligible Executive may elect
on an Election Form to have a portion of the Bonus, if any, to be
received by him for the Fiscal Year commencing September 1, 1994, and
for any Fiscal Year thereafter in which he is eligible to participate,
irrevocably deferred in accordance with the terms and conditions of
the Plan. The amount that may be deferred for any Fiscal Year shall
not be less than $1,000, nor more than 100% of the Bonus for such
Fiscal Year.
An Executive desiring to exercise such election shall, prior
to the beginning of each such Fiscal Year (or prior to or coincident
with the beginning of the Eligible Executive's initial employment if
such employment is to commence other than at the beginning of a Fiscal
Year), complete an Election Form indicating the percentage or dollar
amount of his Bonus for such Fiscal Year that he elects to have
deferred. If the Eligible Executive's election would result in a
deferral greater than the maximum provided herein, any deferred amount
shall be reduced to the maximum limit provided herein.
An election to defer Compensation must be filed with the
Plan Administrator within the time period prescribed by the Plan
Administrator. If a Participant fails to file a properly completed
and duly executed Election Form with the Plan Administrator by the
prescribed time, he will be deemed to have elected not to defer any
Bonus under this Plan for the Fiscal Year, except to the extent the
Plan Administrator in its sole discretion permits an extension of the
election period. An Eligible Executive may not, after the applicable
election date discontinue his election to participate or change the
percentage of Bonus he has elected to defer for a Fiscal Year.
The Eligible Executive shall designate on the Election Form
(or on a separate form provided by the Plan Administrator) a
Beneficiary to receive payment of amounts in his Account in the event
of his death.
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Exhibit 10(iii)A(s)
ARTICLE IV
INTEREST OF PARTICIPANTS
4.1 Accounting for Participants' Interests.
(a) Class Year Accounts. A Participant's Class Year
Account shall be credited as of the October 1 next following the end
of the Class Year for which the deferral election was made with the
dollar amount of Bonus deferred by the Participant for such Class Year
pursuant to Section 3.2.
(b) Account Earnings. Each Class Year Account of the
Participant shall be credited with earnings for the period from the
prior Valuation Date to the current Valuation Date (or the payment
date, where applicable) at the Interest Earnings Rate. The Interest
Earnings Rate on the current Valuation Date shall be applied to the
balance in each Class Year Account of the Participant as of such
Valuation Date.
4.2 Vesting of a Participant's Account.
(a) In General. Except as provided in (b) below, a
Participant's interest in the amount credited to each Class Year
Account shall at all times be 100% vested and nonforfeitable.
(b) Termination For Cause. Notwithstanding subsection (a),
if a Participant incurs a Termination for Cause, he shall forfeit all
earnings credited on all amounts deferred to Class Year Accounts that
have not yet been fully distributed to him under Section 4.3. The
final determination of whether a
Participant has incurred a Termination for Cause, as defined herein,
shall be made by the Plan Administrator.
4.3 Distribution of a Participant's Account. Subject to
Article VII, a Participant's Account shall be distributed as follows:
(a) Class Year Accounts. Except as provided in (b) and (c)
below, 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 the 1995 Class Year Account (the Participant's
deferral of Bonus credited to him on October 1, 1995) shall be made on
October 1, 2000 and for the 1996 Class Year Account on October 1,
2001, and so on.
(b) Election to Defer Distribution. A Participant who will
become eligible to receive distribution of a Class Year Account under
(a) above may elect to defer to the October 1 of a later year (subject
to the limitations provided below) the distribution of such Class Year
Account. The election to defer distribution of a Class Year Account
must be filed prior to the end of the Fourth Fiscal Year immediately
following the Class Year for such Class Year Account. For example,
for the 1995
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Exhibit 10(iii)A(s)
Class Year Account, the election must be filed prior to
September 1, 1999. The Participant's deferral election for a Class
Year Account must indicate (i) the October 1 when he desires his
benefit to be paid or to commence, which date must be at least two (2)
years after the date he could initially have received a distribution,
and (ii) whether the distribution should be made in a lump sum or in
annual installments over a period of up to ten (10) years; provided
that the lump sum or the last installment payment shall be due not
later than 10 years after the Participant's retirement. A
Participant's Class Year Account for which a deferral election is made
under this subsection (b)
shall continue to be credited with earnings under Section 4.1(b) until
the amount is fully distributed.
(c) Death, Disability, Termination of Service.
(i) Notwithstanding the existence of a deferral election under Section
4.3(b), in the event prior to age 55 a Participant dies, becomes
Totally and Permanently Disabled, or has a Termination of Service for
any other reason, distribution of the balance credited to a
Participant's Account shall be made to the Participant (or his
Beneficiary in the event of death) as soon as practical. In the event
of Termination of Service or death, payment of the Participant's
Account shall be made in a lump sum; in the event a Participant
becomes Totally and Permanently Disabled, he shall receive a lump sum
payment, except for any Class Year Accounts he has previously elected
to receive in installments which shall be paid in installments
commencing upon his termination. In the event payments are made
pursuant to this subsection (c)(i), earnings shall be credited under
Section 4.1(b) to the day prior to the date of payment (except as
limited in the case of Termination for Cause).
(ii) In the event of a Participant's Termination of Service
on or after 55 (except for death or Total and Permanent Disability),
the balance credited to a Participant's Account shall be distributed
to him in a lump sum as soon as practical; provided, that any Class
Year Accounts as to which he has properly elected under subsection (b)
above a delayed distribution and/or payment in annual installments,
shall be distributed in accordance with such elections. A Participant
retiring on or after age 55 may elect at least one (1) year prior to
the date of his retirement to make the deferral election in Section
4.3(b) with respect to all Class Year Accounts which have not yet
become distributable.
(iii) In the event of death or Total and Permanent
Disability on or after age 55 (whether or not the Participant is then
employed by an Employer), all amounts credited to a Participant's
Account, whether such amounts are currently being paid in installments
or are subject to a deferral election under Section 4.3(b), shall be
paid in a lump sum to the Participant (or his Beneficiary in the event
of death); provided, that a participant who becomes Totally and
Permanently Disabled shall receive (or continue to receive), any
amount he elected to receive in installments in accordance with such
installment
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Exhibit 10(iii)A(s)
election commencing on the later of his termination date or the date
he became Totally and Permanently Disabled.
4.4 Hardship. A Participant who is suffering an unforeseen
and severe financial hardship as a result of (i) an illness or
accident of the Participant or his immediately family, (ii) loss of
Participant's property due to casualty, or (iii) for such other
reasons as the Plan Administrator may establish, may file a written
request with the Plan Administrator for distribution of all or a
portion of the amount credited to his Account. The Plan Administrator
shall have the sole discretion to determine whether to grant a
Participant's hardship request and the amount to distribute to the
Participant. The Plan Administrator shall have authority in
connection with such hardship request to accelerate the payment of any
Class Year Accounts which have been deferred pursuant to Section
4.3(b).
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Exhibit 10(iii)A(s)
ARTICLE V
PLAN ADMINISTRATOR
5.1 Committee. The Plan Administrator shall be the
Executive Resource and Nominating Committee of the Board of Directors
of the Company or such other committee as may be designated by the
Company to administer and manage the Plan, provided that, if no
committee is designated, the Company shall be the Plan Administrator
and shall have the duties of the Plan Administrator provided for
herein. Members of the committee shall not be required to be
employees of the Company or Participants.
5.2 Action. Action of the Plan Administrator may be taken
with or without a meeting of committee members. If a member of the
committee is a Participant in the Plan, he shall not participate in
any decision which solely affects his own Account.
5.3 Right and Duties. The Plan Administrator shall
administer and manage the Plan and shall have all powers necessary to
accomplish that purpose, including (but not limited to) the following:
(a) To construe, interpret, and administer this Plan;
(b) To make allocations and determinations required by this
Plan, and to maintain records regarding Participants' Accounts;
(c) To compute and certify to the Company the amount and
kinds of benefits payable to Participants or their beneficiaries, and
to determine the time and manner in which such benefits are to be
paid;
(d) To authorize all disbursements by the Company pursuant
to this Plan;
(e) To maintain (or cause to be maintained) all the
necessary records of the administration of this Plan;
(f) To make and publish such rules for the regulation of
this Plan as are not inconsistent with the terms hereof;
(g) To delegate to other individuals or entities from time
to time the performance of any of its duties or responsibilities
hereunder; and
(h) To hire agents, accountants, actuaries, consultants and
legal counsel to assist in operating and administering the Plan.
The Plan Administrator shall have the exclusive
discretionary authority to construe and to interpret the Plan, to
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Exhibit 10(iii)A(s)
decide all questions of eligibility for benefits and to determine the
amount and manner of payment of such benefits, and its decisions on
such matters shall be final and conclusive on all parties.
5.4 Compensation, Indemnity and Liability. The Plan
Administrator shall serve as such without bond and without
compensation for services hereunder. All expenses of the Plan and the
Plan Administrator shall be paid by the Company. If the Plan
Administrator is a committee, no member of the committee shall be
liable for any act or omission of any other member of
the committee, nor for any act or omission on his own part, excepting
his own willful misconduct. The Company shall indemnify and hold
harmless the Plan Administrator and each member of the committee
against any and all expenses and liabilities, including reasonable
legal fees and expenses, arising out of his membership on the
committee, excepting only expenses and liabilities arising out of his
own willful misconduct.
5.5 Taxes. If the whole or any part of any Participant's
Account shall become liable for the payment of any estate,
inheritance, income, or other tax which the Company shall be required
to pay or withhold, the Company shall have the full power and
authority to withhold and pay such tax out of any monies or other
property in its hand for the account of the Participant whose
interests hereunder are so liable. The Company shall provide notice
of any such withholding. Prior to making any payment, the Company may
require such releases or other documents from any lawful taxing
authority as it shall deem necessary.
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Exhibit 10(iii)A(s)
ARTICLE VI
CLAIMS PROCEDURE
6.1 Claims for Benefits. If a Participant or beneficiary
(hereafter, "Claimant") does not receive timely payment of any
benefits which he believes are due and payable under the Plan, he may
make a claim for benefits to the Plan Administrator. The claim for
benefits must be in writing and addressed to the Plan Administrator or
to the Company. If the claim for benefits is denied, the Plan
Administrator shall notify the Claimant in writing within 90 days
after the Plan Administrator initially received the benefit claim.
However, if special circumstances require an extension of time for
processing the claim, the Plan Administrator shall furnish notice of
the extension to the Claimant prior to the termination of the initial
90-day period and such extension shall not exceed one additional,
consecutive 90-day period. Any notice of a denial of benefits shall
advise the Claimant of the basis for the denial, any additional
material or information necessary for the Claimant to perfect his
claim, and the steps which the Claimant must take to have his claim
for benefits reviewed.
6.2 Appeals. Each Claimant whose claim for benefits has
been denied may file a written request for a review of his claim by
the Plan Administrator. The request for review must be filed by the
Claimant within 60 days after he received the written notice denying
his claim. The decision of the Plan Administrator will be made within
60 days after receipt of a request for review and shall be
communicated in writing to the Claimant. Such written notice shall
set forth the basis for the Plan Administrator's decision. If there
are special circumstances which require an extension of time for
completing the review, the Plan Administrator's decision shall be
rendered not later than 120 days after receipt of a request for
review.
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Exhibit 10(iii)A(s)
ARTICLE VII
AMENDMENT AND TERMINATION; CHANGE IN CONTROL
7.1 Amendments. Subject to Section 7.3, the Company (or
its designee) shall have the right in its sole discretion to amend
this Plan in any manner at any time; provided, however, that no such
amendment shall reduce the Participant's vested interest in his
Account under Section 4.2 at that time. Any amendment shall be in
writing and executed by a duly authorized officer of the Company. All
Participants shall be bound by such amendment.
7.2 Termination of Plan. The Company expects to continue
this Plan, but does not obligate itself to do so. Subject to Section
7.3, the Company reserves the right to discontinue and terminate the
Plan at any time, in whole or in part, for any reason (including a
change, or an impending change, in the tax laws of the United States
or any State). If the Plan is terminated, the Plan Administrator
shall be notified of such action in a writing executed by a duly
authorized officer of the Company, and the Plan shall be terminated at
the time therein set forth. Termination of the Plan shall be binding
on all Participants, but in no event may such termination reduce the
amounts credited at that time to any Participant's Account. If this
Plan is terminated, amounts theretofore credited to Participants'
Accounts, including interest from the last Valuation Date to the
termination date, shall either be paid in a lump sum immediately, or
distributed in some other manner consistent with this Plan, as
determined by the Plan Administrator in its sole discretion.
7.3 Change In Control Provisions.
(a) Amendment or Termination. Notwithstanding anything
contained in this Plan to the contrary, for a period of two (2) years
following a Change in Control this Plan shall not be terminated or
amended to reduce, suspend or eliminate any Eligible Executive's or
Participant's benefits or participation (or right to participate)
provided under this Plan, including,
without limitation, the benefits provided in Articles III and IV. Any
amendment or termination of this Plan which a Participant reasonably
demonstrates (i) was at the request of a third party who has indicated
an intention or taken steps reasonably calculated to effect a Change
in Control or (ii) otherwise arose in connection with or in
anticipation of a Change in Control, and which was not consented to in
writing by the Participant shall be null and void, and shall have no
effect whatsoever with respect to the Participant.
(b) Termination of Employment. Notwithstanding anything
contained in this Plan to the contrary, if a Participant's employment
is terminated by the Company (other than for "Cause" as defined in (c)
below) or by the Participant for any reason within two (2) years
following a Change in Control,
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Exhibit 10(iii)A(s)
the Company shall, within five (5) days, pay to the Participant a
lump sum cash payment of the amount credited to his Account (including
any Class Year Accounts subject to a deferral election under Section
4.3(b)) with earnings determined under Section 4.1(b) credited thereto
to the date of payment. If a Participant's employment is terminated
(i) for Cause (as defined in (c) below) within two (2) years following
a Change in Control or (ii) for any reason more than two (2) years
after a Change in Control, the provisions of Article IV shall apply to
the distribution of the Participant's Account.
(c) Cause. For purposes of Section 7.3(b), a termination
for "Cause" is a termination of the Executive evidenced by a
resolution adopted in good faith by two-thirds of the Board of
Directors of the Company that the Participant (i) intentionally and
continually failed to substantially perform his duties with the
Company (other than a failure resulting from the Participant's
incapacity due to physical or mental illness) which failure continued
for a period of at least thirty (30) days after a written notice of
demand for substantial performance has been delivered to the
Participant specifying the manner in which the Participant has failed
to substantially perform, or (ii) intentionally engaged in conduct
which is demonstrably and materially injurious to the Company,
monetarily or otherwise; provided, however, that no termination of the
Participant's employment shall be for Cause as set forth in clause
(ii) above until (x) there shall have been delivered to the
Participant a copy of a written notice setting forth that the
Participant was guilty of the conduct set forth in clause (ii) and
specifying the particulars thereof in detail, and (y) the Participant
shall have been provided an opportunity to be heard by the Board (with
the assistance of the Participant's counsel if the Participant so
desires). No act, nor failure to act, on the Participant's part,
shall be considered "intentional" unless he has acted or failed to
act, with an absence of good faith and without a reasonable belief
that his action or failure to act was in the best interest of the
Company. Notwithstanding anything contained in this Agreement to the
contrary, in the case of any Participant who is a party to a Severance
Protection Agreement, no failure to perform by the Participant after a
Notice of Termination (as defined in the Participant's Severance
Protection Agreement) is given by the Participant shall constitute
Cause for purposes of this Plan.
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Exhibit 10(iii)A(s)
ARTICLE VIII
MISCELLANEOUS
8.1 Limitation on Participant's Rights. Participation in
this Plan shall not give any Participant the right to be retained in
the Company's employ or the employ of any Employer, or any right or
interest in this Plan or any assets of the Company other than as
herein provided. The Company reserves the right to terminate the
employment of any Participant without any liability for any claim
against the Company under this Plan, except to the extent provided
herein.
8.2 Benefits Unfunded. The benefits provided by this Plan
shall be unfunded. All amounts payable under this Plan to
Participants shall be paid from the general assets of the Company, and
nothing contained in this Plan shall require the Company to set aside
or hold in trust any amounts or assets for the purpose of paying
benefits to Participants. This Plan shall create only a contractual
obligation on the part of the Company, and Participants shall have the
status of general unsecured creditors of the Company under the Plan
with respect to amounts of Compensation they defer hereunder or any
other obligation of the Company to pay benefits pursuant hereto. Any
funds of the Company available to pay benefits pursuant to the Plan
shall be subject to the claims of general creditors of the Company,
and may be used for any purpose by the Company.
Notwithstanding the preceding paragraph, the Company may at
any time transfer assets to a trust for purposes of paying all or any
part of its obligations under this Plan. However, to the extent
provided in the trust only, such transferred amounts shall remain
subject to the claims of general creditors of the Company. To the
extent that assets are held in a trust when a Participant's benefits
under the Plan become payable, the Plan Administrator shall direct the
trustee to pay such benefits to the Participant from the assets of the
trust.
8.3 Other Plans. This Plan shall not affect the right of
any Executive or Participant to participate in and receive benefits
under and in accordance with the provisions of any other employee
benefit plans which are now or hereafter maintained by the Company,
unless the terms of such other employee benefit plan or plans
specifically provide otherwise.
8.4 Receipt or Release. Any payment to a Participant in
accordance with the provisions of this Plan shall, to the extent
thereof, be in full satisfaction of all claims against the Plan
Administrator, the Company and any Employer, and the Plan
Administrator may require such Participant, as a condition precedent
to such payment, to execute a receipt and release to such effect.
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Exhibit 10(iii)A(s)
8.5 Governing Law. This Plan shall be construed,
administered, and governed in all respects in accordance with
applicable federal law and, to the extent not preempted by
federal law, in accordance with the laws of the State of Georgia. If
any provisions of this instrument shall be held by a court of
competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
8.6 Gender, Tense, and Headings. In this Plan, whenever
the context so indicates, the singular or plural number and the
masculine, feminine, or neuter gender shall be deemed to include the
other. Headings and subheadings in this Plan are inserted for
convenience of reference only and are not considered
in the construction of the provisions hereof.
8.7 Successors and Assigns; Nonalienation of Benefits. This
Plan shall inure to the benefit of and be binding upon the parties
hereto and their successors and assigns; provided, however, that the
amounts credited to the Account of a Participant shall not (except as
provided in Section 5.5) be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution or levy of any kind, either voluntary or
involuntary, and any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber, charge or otherwise dispose of any right to
any benefits payable hereunder, including, without limitation, any
assignment or alienation in connection with a separation, divorce,
child support or similar arrangement, shall be null and void and not
binding on the Plan or the Company. In addition to any obligations
imposed by law upon any successor to the Company, the Company will
require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to substantially all of the
business or assets of the Company to expressly agree to assume and
perform this Agreement in the same manner that the Company would be
required to perform it.
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed by its duly authorized officers to be effective September 1,
1994.
NATIONAL SERVICE INDUSTRIES, INC.
By: \s\ D. Raymond Riddle
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Exhibit 10(iii)A(s)
APPENDIX A
NATIONAL SERVICE INDUSTRIES, INC.
EXECUTIVE SAVINGS PLAN
ELECTION TO PARTICIPATE AND
DESIGNATION OF BENEFICIARY
To the Plan Administrator:
I hereby elect to participate in the NATIONAL SERVICE INDUSTRIES,
INC. EXECUTIVE SAVINGS PLAN (the "Plan") pursuant to the terms and
conditions of such Plan contained in the Plan document adopted by
NATIONAL SERVICE INDUSTRIES, INC. ("Company"), all of which terms and
conditions are incorporated herein by reference.
I. BONUS DEFERRAL ELECTION
a. Bonus Deferral: I hereby elect to defer the amount of
my Bonus indicated below for the Company's Fiscal Year
commencing September 1, ____: (indicate Fiscal Year for
which this election is effective).
_____% of my Bonus
$_____ of my Bonus (if my Bonus is less than this
amount, 100% of my Bonus will
be deferred).
_____% of my Bonus in excess of $
Other
b. Deferral Limitation: Notwithstanding my election in this
Section I, I understand that my annual deferral cannot be
less than $1,000 nor exceed 100% of my Bonus for the Fiscal
Year and, that in the event my election does not satisfy
these limitations, the Plan Administrator will adjust my
election in an appropriate manner.
II. Election Not To Participate
I hereby elect not to defer any portion of my Bonus for the Company's
Fiscal Year commencing September 1, ____: (indicate Fiscal Year).
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Exhibit 10(iii)A(s)
III. BENEFICIARY DESIGNATION
I designate the following person(s) as Primary and
Contingent Beneficiaries under the Plan:
Primary Beneficiary:
______________________ __________________ __________________
Name % Benefit Relationship
______________________ __________________ __________________
Name % Benefit Relationship
______________________ __________________ __________________
Name % Benefit Relationship
Contingent Beneficiary(s): (will only receive benefits if none of the
Primary Beneficiary(ies) survives the Participant)
______________________ __________________ __________________
Name % Benefit Relationship
______________________ __________________ __________________
Name % Benefit Relationship
______________________ __________________ __________________
Name % Benefit Relationship
III. SIGNATURE
I retain the right, at any time, to change the Beneficiary
designation in Section III above by giving written notice of such
change to the Plan Administrator and to make such other changes to
this Election Form as may be permitted by the Plan. I hereby agree to
be bound by all of the terms and conditions of the Plan, as it may be
amended from time to time.
Dated: ____________________ ___________________________
S.S.N. __________________
Received By Company: _______________________
__________________ Signature
Date