EXHIBIT 10.14
ACUITY BRANDS, INC.
SUPPLEMENTAL DEFERRED SAVINGS PLAN
(Effective as of November 30, 2001)
ACUITY BRANDS, INC.
SUPPLEMENTAL DEFERRED SAVINGS PLAN
TABLE OF CONTENTS
ARTICLE I INTRODUCTION AND ESTABLISHMENT...................................................................... 1
ARTICLE II DEFINITIONS........................................................................................ 2
2.1 "Account".................................................................................... 2
2.2 "Annual Valuation Date"...................................................................... 2
2.3 "Beneficiary"................................................................................ 2
2.4 "Business Unit".............................................................................. 2
2.5 "Change in Capitalization"................................................................... 2
2.6 "Change in Control".......................................................................... 2
2.7 "Class Year Subaccount"...................................................................... 3
2.8 "Code"....................................................................................... 3
2.9 "Company".................................................................................... 3
2.10 "Compensation"............................................................................... 3
2.11 "Deferral Subaccount"........................................................................ 4
2.12 "Effective Date"............................................................................. 4
2.13 "Election Form".............................................................................. 4
2.14 "Employer"................................................................................... 4
2.15 "ERISA"...................................................................................... 4
2.16 "Executive".................................................................................. 4
2.17 "Fair Market Value".......................................................................... 4
2.18 "Fiscal Year"................................................................................ 4
2.19 "Matching Subaccount"........................................................................ 4
2.20 "Participant"................................................................................ 5
2.21 "Plan"....................................................................................... 5
2.22 "Plan Administrator"......................................................................... 5
2.23 "Plan Year".................................................................................. 5
2.24 "Prime Rate"................................................................................. 5
2.25 "Prior Plan"................................................................................. 5
2.26 "Retirement"................................................................................. 5
2.27 "Shares"..................................................................................... 5
2.28 "Subsidiary"................................................................................. 5
2.29 "Supplemental Subaccount".................................................................... 5
2.30 "Termination for Cause"...................................................................... 6
2.31 "Termination of Service"..................................................................... 6
2.32 "Total and Permanent Disability"............................................................. 6
2.33 "Valuation Date"............................................................................. 6
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2.34 "Year of Service"............................................................................ 6
ARTICLE III PARTICIPATION; DEFERRAL ELECTION.................................................................. 7
3.1 Eligibility to Participate................................................................... 7
3.2 Deferral Election............................................................................ 7
ARTICLE IV PARTICIPANTS' ACCOUNTS; EMPLOYER CONTRIBUTION CREDITS.............................................. 9
4.1 Accounting for Participants' Interests....................................................... 9
4.2 Vesting of a Participant's Account........................................................... 11
4.3 Distribution of a Participant's Account...................................................... 11
4.4 Hardship..................................................................................... 13
ARTICLE V PLAN ADMINISTRATOR.................................................................................. 14
5.1 Committee.................................................................................... 14
5.2 Right and Duties............................................................................. 14
5.3 Compensation, Indemnity and Liability........................................................ 14
5.4 Taxes........................................................................................ 15
ARTICLE VI CLAIMS PROCEDURE................................................................................... 16
6.1 Claims for Benefits.......................................................................... 16
6.2 Appeals...................................................................................... 16
ARTICLE VII AMENDMENT AND TERMINATION; CHANGE IN CONTROL...................................................... 17
7.1 Amendments................................................................................... 17
7.2 Termination of Plan.......................................................................... 17
7.3 Change In Control Provisions................................................................. 17
ARTICLE VIII MISCELLANEOUS.................................................................................... 19
8.1 Limitation on Participant's Rights........................................................... 19
8.2 Benefits Unfunded............................................................................ 19
8.3 Other Plans.................................................................................. 19
8.4 Receipt or Release........................................................................... 19
8.5 Governing Law................................................................................ 19
8.6 Gender, Tense, and Headings.................................................................. 20
8.7 Successors and Assigns; Nonalienation of Benefits............................................ 20
8.8 Combination With Other Plan.................................................................. 20
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ARTICLE I
INTRODUCTION AND ESTABLISHMENT
Acuity Brands, Inc. ("Company") hereby establishes the Acuity Brands,
Inc. Supplemental Deferred Savings Plan ("Plan") for the benefit of eligible
management and highly compensated employees of the Company and its Subsidiaries
and Business Units. The Plan is designed to assist and encourage eligible
employees to accumulate capital and to supplement their retirement income and to
align their interests more closely with those of stockholders. The Plan provides
for elective deferrals of an employee's compensation, Company matching
contributions and supplemental Company contributions.
The effective date of the Plan is November 30, 2001 ("Effective Date").
The Plan was originally established in connection with the spin-off of the
Company from National Service Industries, Inc. ("NSI"), which became effective
November 30, 2001. Pursuant to an Employee Benefits Agreement dated as of
November 30, 2001, between the Company and NSI, the amounts credited to the
Account (including all subaccounts) of certain employees and former employees of
NSI and its subsidiaries who were participants in the National Service
Industries, Inc. Supplemental Deferred Savings Plan ("Prior Plan") as of the
Effective Date, and who became or remained employees of the Company or its
Subsidiaries as of the Effective Date or who were formerly employed by the
businesses transferred to the Company by NSI (including former employees of the
corporate office of NSI) shall be transferred to the Plan. As provided for
herein, the elections made under the Prior Plan prior to the Effective Date,
including elections regarding deferral amounts, timing and manner of payment of
benefits, and designation of Beneficiaries, shall be carried over and apply for
purposes of the Plan after the Effective Date (subject to any change of election
rights under the Plan).
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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 (or Employer's) records,
or as a separate account under a trust, or as a combination of both. Each
Participant's Account shall consist of at least three subaccounts: a Deferral
Subaccount to reflect his deferrals of Compensation; a Matching Subaccount for
Employer's matching contribution credits; a Supplemental Subaccount for any
supplemental Employer contribution credits. The Plan Administrator may establish
such additional subaccounts as it deems necessary for the proper administration
of the Plan.
2.2 "Annual Valuation Date" means December 31 of each year while
the Plan is in effect.
2.3 "Beneficiary" means the person or persons last designated in
writing by the Participant to receive the vested 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 or his personal representative.
2.4 "Business Unit" means any of the operating units or divisions
of the Company, or its Subsidiaries, designated as a Business Unit by the Plan
Administrator.
2.5 "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a change in
value) or exchange of Shares for a different number or kind of shares or other
securities of the Company, by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, spin-off, split-up, issuance of warrants
or rights or debentures, stock dividend, stock split or reverse stock split,
cash dividend, property dividend, combination or exchange of shares, repurchase
of shares, public offering, private placement, change in corporate structure or
otherwise, which in the judgment of the Plan Administrator is material or
significant.
2.6 "Change in Control" means any of the following events:
(a) 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
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(b) The individuals who, as of December 1, 2001, 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 of the Incumbent Board, such new director shall,
for purposes of this Plan, be considered as a member of the Incumbent Board; or
(c) 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
(d) 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 (a) 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.
2.7 "Class Year Subaccount" means the subaccount set up under the
Deferral Subaccount to reflect the Participant's deferrals for each Plan Year,
including amounts previously credited to a Participant's Class Year Subaccount
in the Prior Plan and transferred to this Plan as of the Effective Date, and any
earnings thereon.
2.8 "Code" means the Internal Revenue Code of 1986, as amended.
2.9 "Company" means Acuity Brands, Inc., a Delaware corporation,
or its successor or successors.
2.10 "Compensation" means the annual cash compensation (salary plus
annual bonus) paid by the Employer to the Participant for the Plan Year,
provided that a bonus actually paid during a subsequent Plan year based upon
performance during the preceding Plan Year shall be treated as Compensation for
such preceding Plan Year. The Participant's Compensation shall include amounts
deferred by the Participant to this Plan and any other deferred compensation
plan of the Employer (whether or not qualified), and any salary reduction
amounts contributed to a welfare plan. The term "Compensation" shall not include
long-term incentive payments, income from stock options or other stock awards,
car allowances and non-cash remuneration, such as health benefits, life
insurance, and other fringe benefits.
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2.11 "Deferral Subaccount" means the subaccount maintained to
reflect the Participant's deferral of Compensation, including amounts previously
credited to a Participant's Deferral Subaccount in the Prior Plan and
transferred to this Plan as of the Effective Date, and any earnings thereon.
2.12 "Effective Date" means the effective date of this Plan,
November 30, 2001.
2.13 "Election Form" means the form prescribed by the Plan
Administrator on which a Participant may specify the amount of his Compensation
that is to be deferred pursuant to the provisions of Article III, and the manner
of payment of his benefits.
2.14 "Employer" means the Company and any Subsidiary or related
employer designated by the Company to participate in the Plan.
2.15 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
2.16 "Executive" means an officer of the Company, a Subsidiary or
one of the Company's Business Units, and other key employees designated as
eligible pursuant to Section 3.1. Any dispute regarding any individual's
classification shall be determined by the Plan Administrator in its sole
discretion.
2.17 "Fair Market Value" means the fair market value of the Shares
as determined in good faith by the Plan Administrator; provided, however, that
(A) if the Shares are admitted to trading on a national securities exchange,
Fair Market Value on any date shall be the closing price reported for the Shares
on such exchange on such date or, if no sale was reported on such date, on the
last date preceding such date on which a sale was reported, (B) if the Shares
are admitted to quotation on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or other comparable quotation system and
have been designated as a National Market System ("NMS") security, Fair Market
Value on any date shall be the last sale price reported for the Shares on such
system on such date or on the last day preceding such date on which a sale was
reported, or (C) if the Shares are admitted to Quotation on NASDAQ and have not
been designated a NMS Security, Fair Market Value on any date shall be the
average of the highest bid and lowest asked prices of the Shares on such system
on such date.
2.18 "Fiscal Year" means the year commencing on September 1 and
ending on August 31 of the following calendar year, or such other 12-month
period used by the Company for financial reporting purposes.
2.19 "Matching Subaccount" means the subaccount maintained to
reflect the Employer's matching contribution credits, including amounts
previously credited to a Participant's Matching Subaccount in the Prior Plan and
transferred to this Plan as of the Effective Date, and any earnings thereon.
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2.20 "Participant" means an Eligible Executive as defined in
Section 3.1 (or an individual who was an Eligible Executive, including
individuals who were participating in the Prior Plan as of the Effective Date),
a portion of whose Compensation for any Plan Year has been deferred pursuant to
the Plan or who has received Employer Supplemental Subaccount credits, and whose
interest in the Plan has not been wholly distributed.
2.21 "Plan" means the Acuity Brands, Inc. Supplemental Deferred
Savings Plan, as set forth herein and as it may be amended from time to time.
2.22 "Plan Administrator" means the Company or, if applicable, a
committee appointed pursuant to Article V to administer the Plan.
2.23 "Plan Year" means January 1 through the next following
December 31. Despite a mid-year Effective Date of the Plan, for all purposes
under the Plan, the initial Plan Year shall be deemed a continuation of the Plan
Year in progress under the Prior Plan such that the initial Plan Year shall be
January 1, 2001 through December 31, 2001.
2.24 "Prime Rate" means the rate of interest publicly announced by
Wachovia Bank, N.A. (or its successor) as its prime rate on a particular date
(or the next business day if such date is not a business day), as determined by
the Plan Administrator, or the prime rate interest of such other bank as may be
selected by the Company.
2.25 "Prior Plan" means the National Service Industries, Inc.
Supplemental Deferred Savings Plan, as amended through the Effective Date.
2.26 "Retirement" means termination of the Participant's employment
with all Employers on or after attaining age 60, other than a Termination for
Cause.
2.27 "Shares" means the common stock, par value $.01 per share, of
the Company (including any new, additional or different stock or securities
resulting from a Change in Capitalization).
2.28 "Subsidiary" means any corporation in an unbroken chain of
corporations, beginning with the Company, if each of the corporations other than
the last corporation in the unbroken chain owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain. The term "Subsidiary" shall also include a
partnership or limited liability company in which the Company or a Subsidiary
owns 50% or more of the profits interest or capital interest.
2.29 "Supplemental Subaccount" means the subaccount established to
reflect the Employer's supplemental contribution credits, including amounts
previously credited to a Participant's Supplemental Subaccount in the Prior Plan
and transferred to this Plan as of the Effective Date, and any earnings thereon.
5
2.30 "Termination for Cause" means the Executive has terminated
employment and has been found by the Plan Administrator 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. The final determination of whether a Participant has
incurred a Termination for Cause shall be made by the Plan Administrator.
2.31 "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.
2.32 "Total and Permanent Disability" means a physical or mental
incapacity which impairs the Participant's ability to substantially perform his
usual duties and services for the Employer for a period of one hundred eighty
(180) consecutive days. The determination as to whether Total and Permanent
Disability exists shall be made by the Plan Administrator based upon the
information provided to it.
2.33 "Valuation Date" means the Annual Valuation Date, and any
other date(s) selected by the Plan Administrator as of which the Accounts of
Participants are valued.
2.34 "Year of Service" means, subject to such Break in Service
rules as the Plan Administrator may establish, each Plan Year in which the
Eligible Employee is credited with 1,000 or more Hours of Service with the
Employer, including all Years of Service credited to the Eligible Employee under
the Prior Plan, provided that, for the period January 1, 2001 to December 31,
2001, the Eligible Employee shall be credited with one, and only one, Year of
Service if such Eligible Employee is credited with 1,000 or more Hours of
Service with the Employer under the Plan and the Prior Plan for such period.
Hours of Service shall be determined hereunder in accordance with the Company's
general rules for determining such hours under its tax-qualified plans.
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ARTICLE III
PARTICIPATION; DEFERRAL ELECTION
3.1 Eligibility to Participate. Prior to, or at the beginning of,
each Plan Year, the Company (or its designee) shall specify the Executives who
are eligible to make deferral elections under the Plan for the following Plan
Year and to receive Matching Subaccount and Supplemental Subaccount credits (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.
3.2 Deferral Election. For any Plan Year in which an Eligible
Executive is eligible to participate, such Eligible Executive may elect on an
Election Form to have a portion of the Compensation to be received by the
Executive for such Plan Year deferred in accordance with the terms and
conditions of the Plan. The Plan Administrator may provide for a separate
election with respect to salary and annual bonus. The amount that may be
deferred for any Plan Year shall not be less than $1,000, nor an aggregate of
more than fifty percent (50%) of his Compensation for such Plan Year.
An Executive desiring to exercise such election shall, prior to the
beginning of each Plan Year (or within 30 days after the beginning of the
Eligible Executive's initial employment or eligibility, if such employment or
eligibility commences other than at the beginning of a Plan Year), complete an
Election Form indicating the percentage of his Compensation for such Plan Year
that he elects to have deferred. Any such Election Form properly delivered under
the Prior Plan with respect to the calendar year ending December 31, 2001 and
not previously terminated, shall continue in effect under this Plan for the Plan
Year ending December 31, 2001. 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.
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 Compensation under this Plan for the Plan 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 change (increase or decrease) the percentage of Compensation he
has elected to defer for a Plan Year.
A Participant may at any time during the Plan Year terminate an
election to defer salary (but not the bonus) and discontinue future salary
deferrals of Compensation under this Plan by providing written notice to the
Plan Administrator prior to the start of the next payroll period for which
Compensation will be payable. In such event, Compensation earned for services
subsequent to such termination notice will be paid directly to the Participant
and will not be subject to his prior deferral election. A Participant who elects
to discontinue participation in the
7
Plan for a Plan Year may not recommence participation in the Plan until the next
following Plan Year (or such later Plan Year in which he is again eligible to
participate), provided the Participant completes and executes the required
Election Form. Increases or decreases in the amount a Participant elects to
defer (other than a suspension of deferrals) shall not be permitted during the
Plan Year.
The Eligible Executive may designate on the Election Form (or on a
separate form provided by the Plan Administrator) a Beneficiary (or
Beneficiaries) to receive payment of amounts in his Account in the event of his
death. Any proper designation of a Beneficiary under the Prior Plan which has
not been changed or revoked shall continue under this Plan.
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ARTICLE IV
PARTICIPANTS' ACCOUNTS; EMPLOYER CONTRIBUTION CREDITS
4.1 Accounting for Participants' Interests.
(a) Deferral Subaccount. The Company shall establish a Deferral
Subaccount for each Participant under the Plan. The initial amount credited to
the Participant's Deferral Subaccount under the Plan shall be the amount
credited to the Participant's Deferral Subaccount in the Prior Plan that is
transferred to this Plan as described in subsection (d) below. Each
Participant's Deferral Subaccount shall thereafter be credited with the amounts
of Compensation deferred by the Participant under this Plan. The timing and
manner in which amounts are credited to a Participant's Deferral Subaccount
under this Plan shall be determined by the Plan Administrator in its discretion,
but the deferral election shall be applied to each pay period in which the
Participant has Compensation during his period of participation in the Plan. The
Participant's Deferral Subaccount shall be credited with interest at the Prime
Rate on each Annual Valuation Date based upon the amount credited to such
Subaccount as of the preceding Annual Valuation Date, and at such other times,
if any, as may be determined by the Plan Administrator. If permitted by the
Company in accordance with such rules as the Company may establish, a
Participant (other than an Executive Officer of the Company) may direct that all
or a portion of the Deferral Subaccount shall be deemed to be invested in
Shares.
(b) Matching Subaccount. The Company shall establish a Matching
Subaccount for each Participant under the Plan. The initial amount credited to
the Participant's Matching Subaccount under the Plan shall be the amount
credited to the Participant's Matching Subaccount in the Prior Plan that is
transferred to this Plan as described in subsection (e) below. Thereafter,
unless the Board otherwise determines, as of the end of each Plan Year (or as of
such other date as the Board may determine), there shall be credited to the
Matching Subaccount of each Participant who is employed on the last day of the
Plan Year an amount equal to 25% of the amount of the Participant's deferrals
for such Plan Year, provided that the maximum amount credited to a Participant's
Matching Subaccount for a Plan Year shall not exceed five percent (5%) of the
Participant's Compensation for such Plan Year. Unless the Company otherwise
determines for a designated Eligible Executive (other than an Executive Officer
of the Company), an Eligible Executive who is covered by a defined benefit
supplemental executive retirement plan maintained by the Employer shall not be
eligible to receive Employer matching contribution credits under the Plan.
Unless the Company otherwise determines, the amount credited to a
Participant's Matching Subaccount shall be deemed to be invested in the form of
cash, Shares, or a combination of cash and Shares, as elected by the Participant
on the Election Form. The Company may provide the Participant with the right to
change the deemed investment election from time to time and to designate
different deemed investment elections for amounts credited to the Matching
Subaccount in different Plan Years. To the extent the amount is deemed to be
9
credited in cash, the Matching Subaccount will be credited with interest at the
Prime Rate on each Annual Valuation Date (and at such other dates, if any, as
may be determined by the Plan Administrator); if Shares are deemed to be
credited, the Matching Subaccount will be adjusted on each Annual Valuation Date
(and at such other dates, if any, as may be determined by the Plan
Administrator) as if it were invested in Shares to reflect any dividends
(including reinvestment of such dividends in Shares), distributions, stock
dividends, stock splits or similar actions with respect to the Shares since the
preceding Annual Valuation Date (or such other date).
(c) Supplemental Subaccount. The Company shall establish a
Supplemental Subaccount for each Participant under the Plan. The initial amount
credited to the Participant's Supplemental Subaccount under the Plan shall be
the amount credited to the Participant's Supplemental Subaccount in the Prior
Plan that is transferred to this Plan as described in subsection (e) below.
Thereafter, unless the Board otherwise determines, as of the end of each Plan
Year (or as of such other date as the Board may determine), there shall be
credited to the Supplemental Subaccount of each Eligible Employee who is
employed on the last day of the Plan Year and who has a Year of Service for such
Plan Year an amount equal to three percent (3%) of the Eligible Employee's
Compensation for such Plan Year. Unless the Company determines otherwise for a
designated Eligible Executive, an Eligible Executive who is covered by a defined
benefit supplemental executive retirement plan maintained by the Employer shall
not be eligible to receive Employer supplemental contribution credits under the
Plan.
Unless the Company otherwise determines, the amount credited to an
Eligible Employee's Supplemental Subaccount shall be deemed to be in the form of
Shares. If Shares are deemed to be credited, the Supplemental Subaccount will be
adjusted on each Annual Valuation Date (and at such other dates, if any, as may
be determined by the Plan Administrator) as if it were invested in Shares to
reflect any dividends (including reinvestment of such dividends in Shares),
distributions, stock dividends, stock splits or similar action with respect to
the Shares since the preceding Annual Valuation Date (or such other date).
(d) Crediting of Shares. The number of Shares to credit to a
Participant's Deferral Subaccount, Matching Subaccount or Supplemental
Subaccount as of an Annual Valuation Date (or other date, as provided above)
shall be determined by converting the cash credit otherwise required to Shares
using the Fair Market Value of a Share on such date.
(e) Transfer of Accounts from the Prior Plan. Effective as of the
Effective Date, the Company shall accept a transfer from the Prior Plan and
credit to the Account (and each subaccount) of each Participant who was a
participant in the Prior Plan and who became or remained an employee of the
Company or its Subsidiaries as of the Effective Date or who was formerly
employed by the businesses transferred to the Company by NSI (including former
employees of the corporate office of NSI), the amount credited to the
Participant's Account (and each subaccount) in the Prior Plan immediately prior
to the Effective Date. To the extent any transferred amounts from the Prior Plan
were deemed to be invested in shares of common stock of NSI, such amounts will
be converted and will be deemed to be invested in a number of Shares
10
of the Company equal to (i) the product of (x) the number of shares of NSI stock
credited to the Participant's Account under the Prior Plan as of the date of the
distribution of the shares of the Company's common stock to the stockholders of
NSI (the "Distribution Date"), and (y) the closing per share price of NSI common
stock (trading with a due bill) on the Distribution Date, divided by (ii) the
closing per share price of the Company's common stock (on a when-issued basis)
on the Distribution Date (or such other price as determined by the Plan
Administrator to be appropriate and equitable).
4.2 Vesting of a Participant's Account.
(a) Deferral Subaccount. Except as provided in the next sentence,
a Participant's interest in the amount credited to his Deferral Subaccount shall
at all times be 100% vested and nonforfeitable. If a Participant incurs a
Termination for Cause, he shall forfeit all earnings credited on all amounts
deferred to his Deferral Subaccount that have not yet been fully distributed to
him under Section 4.3.
(b) Matching and Supplemental Subaccounts. Except in the event of
a Termination For Cause, a Participant's interest in the amount credited to his
Matching Subaccount and Supplemental Subaccount shall become (i) 100% vested and
nonforfeitable upon his death, Total and Permanent Disability, Retirement or
completion of 10 or more Years of Service and attainment of age 55 while
actively employed, and (ii) 50% vested upon completion of 5 Years of Service and
attainment of age 55 while actively employed, with such vesting increasing 10%
per year for each additional Year of Service up to 10 years. Subject to Article
VII, if the Participant incurs a Termination for Cause (regardless of whether he
is otherwise vested) or if the Participant's employment is terminated prior to
the time specified for vesting in the preceding sentence, his entire Matching
and Supplemental Subaccounts shall be forfeited.
4.3 Distribution of a Participant's Account. Subject to Article
VII, a Participant's Account shall be distributed as follows:
(a) Deferral Subaccount.
(i) Except as provided in (ii) and (iii) below,
distribution of each Class Year Subaccount of a Participant shall be
made in a single lump sum payment as soon as practicable after the
January 1 next following five (5) full Plan Years after the Class Year.
For example, the distribution of the 2001 Class Year Subaccount (the
Participant's deferrals credited to him for the year ended December 31,
2001) shall be made on or about January 1, 2007, and for the 2002 Class
Year Subaccount on or about January 1, 2008, and so on.
(ii) Election to Defer Distribution. A Participant who
will become eligible to receive a distribution of a Class Year
Subaccount under (i) above may elect to defer to the January 1 of a
later year (subject to the limitations provided below) the distribution
of such Class Year Subaccount. The election to defer distribution of a
Class Year Subaccount must be filed prior to the end of the fourth Plan
Year immediately following
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the Class Year for such Class Year Subaccount. For example, for
the 2001 Class Year Subaccount, the election must be filed prior to
January 1, 2006. The Participant's deferral election for a Class Year
Subaccount must indicate (A) the January 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 (B)
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 payment shall be made not later than the year in which he
attains age 70 and the last installment payment shall be made not later
than the year in which the Participant attains age 75. A Participant's
Class Year Subaccount for which a deferral election is made under this
subsection (b) shall continue to be credited with earnings under
Section 4.1(a) until the amount is fully distributed (except as limited
in the case of a Termination for Cause).
(iii) Death, Disability or Termination of Service Prior to
Vesting.
(A) Notwithstanding the existence of a deferral
election under Section 4.3(a)(ii), in the event of a
Participant's death, Total and Permanent Disability, or a
Termination of Service prior to the Participant's completion
of 5 Years of Service and attainment of age 55, distribution
of the vested balance credited to a Participant's Deferral
Subaccount shall be made to the Participant (or his
Beneficiary in the event of death) as soon as practical.
Payment of the Participant's Deferral Subaccount shall be made
in a lump sum. In the event payments are made pursuant to this
subsection (a)(iii), earnings shall be credited under Section
4.1(a) until all amounts have been distributed (except as
limited in the case of Termination for Cause).
(B) In the event a Participant terminates after
completing 5 Years of Service and attaining age 55 (except for
death and Total and Permanent Disability which are covered by
(A) above), the vested balance credited to a Participant's
Deferral Subaccount shall be distributed as follows: (x) any
Class Year Subaccounts as to which he has properly elected
under subsection (ii) above a delayed distribution and/or
payment in installments shall be distributed in accordance
with such elections; and (y) with respect to any Class Year
Subaccounts as to which the five-year period has not yet
passed and that would otherwise be payable more than one (1)
year in the future, the Participant may elect prior to
termination to make the deferral election in (ii) above. Any
Class Year Subaccounts as to which the 5-year period has not
passed that are payable within one (1) year and any Class Year
Subaccounts as to which the election in (y) is not made shall
be payable as soon as practical after termination.
(b) Matching and Supplemental Subaccounts. The vested amounts
(determined in accordance with Section 4.2(b)) credited to a Participant's
Matching Subaccount and Supplemental Subaccount shall be payable in a lump sum
as soon as practical after the Participant's death, Total and Permanent
Disability or Termination of Service, unless, in the case
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of a termination other than for death or Total and Permanent Disability, the
Participant has elected a delayed payment date and/or payment in installments on
the Election Form; provided that the lump sum payment shall be made not later
than the year in which he attains age 70 and the last installment payment shall
be made not later than the year in which the Participant attains age 75. The
Plan Administrator may establish rules to permit Participants to change the form
and timing of their payment election, provided that no such change shall be
effective unless it is made at least two (2) years prior to the Participant's
Termination of Service. In the event of death after Termination of Service,
distribution of the remaining amount credited to the Participant's Matching
Subaccount and Supplemental Subaccount shall be made to a Beneficiary in a lump
sum as soon as practical after the Participant's death. All amounts, including
amounts deemed to be invested in Shares, shall be paid in cash.
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 Deferral
Subaccount. 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
Subaccounts which have been deferred pursuant to Section 4.3(a).
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ARTICLE V
PLAN ADMINISTRATOR
5.1 Committee. The Plan Administrator shall be the Company or such
committee as may be designated by the Company to administer and manage the Plan.
Members of any committee shall not be required to be employees of the Company or
Participants. 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.
5.2 Right and Duties. The Plan Administrator shall have the
discretionary authority to 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 relating to 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 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.
5.3 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
14
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.
5.4 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.
15
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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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 Participant's Deferral Subaccount, Matching Subaccount and
Supplemental Subaccount, including interest and earnings 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, the
Participant's Account shall become fully vested and the Company shall, within
five (5) days, pay to the Participant a lump sum cash payment of the full amount
credited to his Account (including any Class Year Subaccounts subject to a
deferral election under Section 4.3(b), Matching Subaccount and Supplemental
Subaccount) with earnings determined under Section 4.1 credited thereto to the
date of payment. If a Participant's employment is
17
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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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, including Shares, 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.
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.
19
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 5.4) 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.
8.8 Combination With Other Plan. The Plan may be combined or
merged with other deferred compensation plans of the Company and the Plan
Administrator shall establish the terms and conditions relating to any such
merger.
[Execution page follows]
20
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized officers as of the 28th day of November 2001, to be
effective on the Effective Date.
ACUITY BRANDS, INC.
By: /s/ James S. Balloun
-------------------------------------
James S. Balloun
Chairman, President & Chief Executive Officer
21