EXHIBIT 10.17
ACUITY BRANDS, INC.
NONEMPLOYEE DIRECTOR DEFERRED STOCK UNIT PLAN
1. Purpose.
The Acuity Brands, Inc. Nonemployee Director Deferred Stock Unit Plan
("Plan") is intended to increase the alignment of the interests of eligible
members of the Board with the interests of stockholders of Acuity Brands, Inc.
(the "Corporation") by increasing their incentive to contribute to the success
of the Corporation's business through the grant of Deferred Stock Units, as
hereinafter defined, on the terms and conditions set forth herein. The Plan is
effective as of December 1, 2001, and is established in connection with the
spin-off of the Corporation by National Service Industries, Inc., as a successor
plan to the National Service Industries, Inc. Nonemployee Director Deferred
Stock Unit Plan.
2. Definitions. When used in this Plan, unless the context otherwise
requires:
2.1 "Annual Fee" shall mean the annual fee payable, in cash or
under this Plan, to an Eligible Director for service on the Board.
2.2 "Board" shall mean the Board of Directors of the Corporation.
2.3 "Chairman Fee" shall mean the fee, if any, payable in cash or
under this Plan to an Eligible Director for service as the Chairman of a
committee of the Board.
2.4 "Change of Control" shall mean:
(a) The acquisition (other than from the Corporation) by
any "Person" (as the term person is used for purposes of Sections 13(d)
or 14(d) of the Exchange Act) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the combined voting power of the Corporation's
then outstanding voting securities; or
(b) The individuals who, as of the Effective Date, 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 Corporation'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 Corporation
if the stockholders of the Corporation, 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 Corporation outstanding immediately before
such merger or consolidation; or
(d) A complete liquidation or dissolution of the
Corporation or an agreement for the sale or other disposition of all or
substantially all of the assets of the Corporation.
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur pursuant to paragraph (i) solely because twenty
percent (20%) or more of the combined voting power of the Corporation'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 Corporation 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 Corporation in the
same proportion as their ownership of stock in the Corporation
immediately prior to such acquisition.
2.5 "Committee" shall mean the Compensation Committee of the Board
or such other committee as may be designated by the Board. In the absence of the
appointment of a Committee, the Board shall serve as the Committee.
2.6 "Corporation" shall mean Acuity Brands, Inc., a Delaware
corporation.
2.7 "Date of Grant" shall mean the date on which Deferred Stock
Units are granted pursuant to Article V.
2.8 "Deferred Stock Units" shall mean the units issued pursuant to
Article V hereof.
2.9 "Effective Date" shall mean December 1, 2001, the date when
this Plan shall go into effect.
2.10 "Eligible Director" shall mean each member of the Board who is
not at the time of reference an employee of the Corporation or any Subsidiary.
2.11 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
2.12 "Fair Market Value" shall mean the average of the high and low
sales prices of a share of Stock as reported on the New York Stock Exchange
Composite Tape on the five (5) trading dates immediately preceding the date for
which such value is being determined.
2.13 "NSI" shall mean National Service Industries, Inc., a Delaware
corporation.
2.14 "Optional Amount" shall mean the amount elected by an Eligible
Director for any year during the term hereof pursuant to Section 5.2 hereof.
2.15 "Plan" shall mean the Acuity Brands, Inc. Nonemployee Director
Deferred Stock Unit Plan, as such Plan may be amended from time to time.
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2.16 "Prior Plan" shall mean the National Service Industries, Inc.
Nonemployee Director Deferred Stock Unit Plan.
2.17 "Required Amount" shall mean one-half of the Annual Fee.
2.18 "Stock" shall mean the Common Stock of the Corporation.
2.19 "Subsidiary" shall mean any corporation more than 50% of whose
stock having general voting power is owned by the Corporation or by a Subsidiary
of the Corporation.
3. Administration.
3.1 The Plan shall be administered by the Committee.
3.2 The Committee may make such rules and establish such
procedures for the administration of the Plan as it deems appropriate to carry
out the purpose of the Plan, provided that the Committee shall have no
discretion with respect to the grantee, amount, price or timing of any Deferred
Stock Unit. The interpretation and application of the Plan or of any rule or
procedure, and any other matter relating to or necessary to the administration
of the Plan, shall be determined by the Committee, and any such determination
shall be final and binding on all persons. Deferred Stock Units shall be
evidenced by agreements in such form as shall be determined from time to time by
the Committee, provided that the terms and conditions of each such agreement are
not inconsistent with this Plan.
4. Capital Adjustments.
In the event of a reorganization, recapitalization, stock split,
reverse stock split, stock dividend, spin-off, split-up, combination of shares,
merger, consolidation or a similar corporate transaction, the number or class of
shares of Stock represented by Deferred Stock Units granted hereunder shall be
proportionately adjusted to reflect any such transaction.
5. Deferred Stock Units.
5.1 Quarterly Grant. The Corporation shall establish a bookkeeping
account for each Eligible Director. On December 10, 2001 and on the first of
each March, June, September, and December thereafter and prior to the
termination of this Plan (subject to Section 6.1 below), the bookkeeping account
of each Eligible Director shall automatically be credited with the number of
Deferred Stock Units (rounded to the nearest hundredth) equal to the sum of (a)
one-fourth of the Required Amount plus (b) one-fourth of the Optional Amount, if
any, divided by (c) the Fair Market Value.
5.2 Election of Optional Amount. Each Eligible Director shall be
entitled to elect, with respect to each year during the term of this Plan
(subject to Section 6.1 below), such portion of the Annual Fee in excess of the
Required Amount and such portion of the Chairman Fee, if applicable, which the
Eligible Director desires to be credited in Deferred Stock Units under Section
5.1 above rather than paid in cash. Such election shall be made and submitted
prior to each such year on such form as shall be determined from time to time by
the Committee;
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Notwithstanding the above, for Eligible Directors who were directors of National
Service Industries, Inc. and were participating in the Prior Plan immediately
prior to the Effective Date, any election by such Director under the Prior Plan
shall continue in effect under this Plan.
5.3 Annual Grant. On the Effective Date and on the date of the
Corporation's annual meeting each year beginning on or after the Effective Date
and prior to the termination of this Plan (subject to Section 6.1 below), the
bookkeeping account of each Eligible Director shall automatically be credited
with 350 Deferred Stock Units.
5.4 One-Time Grant. The bookkeeping account of each Eligible
Director who was not a director of NSI participating in the Prior Plan
immediately prior to the Effective Date and who is first elected to the Board
(whether by action of the Board of Directors or the shareholders of the
Corporation) on or after the Effective Date, and prior to the termination of
this Plan (subject to Section 6.1 hereof) shall automatically be credited with
1,000 Deferred Stock Units as of the effective date of such election.
5.5 Transfer of Deferred Stock Units from the Prior Plan.
Effective as of the Effective Date, or as soon thereafter as is practical, the
Corporation shall transfer from the Prior Plan and credit to the bookkeeping
account of each Eligible Director who was a participant in the Prior Plan (and
each other participant in the Prior Plan who is not a nonemployee director of
NSI immediately following the Corporation's spin-off from NSI) a number of
Deferred Stock Units equal to (a) the product of (i) the number of Deferred
Stock Units in the Eligible Director's (or other participants') bookkeeping
account under the Prior Plan as of the date of the distribution of the shares of
the Corporation's common stock to the stockholders of NSI (the "Distribution
Date"), and (ii) the closing per share price of NSI common stock (trading with a
due bill) on the Distribution Date, divided by (b) the closing per share price
of the Corporation's common stock (on a when-issued basis) on the Distribution
Date (or such other price as determined by the Committee to be appropriate and
equitable.
5.6 Terms and Conditions of Deferred Stock Units.
(a) The Deferred Stock Units shall become nonforfeitable
on the earliest to occur of (i) the first anniversary of the Date of Grant, (ii)
the Eligible Director's death, disability or termination of service as a
director upon completion of the last term of office to which such director was
elected or (iii) the occurrence of a Change of Control. If an Eligible Director
otherwise terminates service as a director of the Corporation, any Deferred
Stock Units that are forfeitable shall be forfeited as of the date of such
termination of service. Notwithstanding the above, for Eligible Directors who
were participants in the Prior Plan, the termination of service as a director of
NSI shall not be considered a termination of service resulting in forfeiture or
vesting of Deferred Stock Units.
(b) As of each dividend payment date declared with
respect to the Stock, the Corporation shall credit to each bookkeeping account a
number of additional Deferred Stock Units equal to (i) the product of (x) the
dividend per share of Stock payable on such dividend payment date and (y) the
number of Deferred Stock Units credited to such account as of the applicable
dividend record date divided by (ii) the Fair Market Value of a share of Stock
on such dividend payment date.
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(c) Upon the termination of service of an Eligible
Director the Eligible Director shall receive a lump sum cash payment equal to
the product of (i) the Fair Market Value of a share of Stock on the date of such
termination of service and (ii) the number of nonforfeitable Deferred Stock
Units then credited to such Eligible Director's account. Notwithstanding the
foregoing, an Eligible Director may elect to receive the distribution with
respect to his or her account in five annual installments commencing as soon as
practicable following the Eligible Director's termination of service, in which
event the amount of each installment shall be determined based upon the Fair
Market Value of a share of Stock as of the date preceding the date such
installment payment is made. Any such election may be made or changed at any
time without limitation, provided, however, that any election (and any
modification or revocation of any election) shall not be given effect unless
made at least two years prior to the Eligible Director's termination of service.
Any such election made by an Eligible Director (or other participant) under the
Prior Plan shall continue in effect under this Plan until properly modified or
revoked.
(d) The holder of Deferred Stock Units shall have none of
the rights of a stockholder of the Corporation. The Corporation's obligation
hereunder with respect to Deferred Stock Units shall be an unsecured promise to
pay the amount described in paragraph (c) above at the times described therein.
6. Term of Plan.
The Plan shall remain in effect until all Deferred Stock Units have
been paid under the terms of the Plan, provided that no Deferred Stock Units may
be granted on or after the tenth anniversary of the Effective Date.
7. Amendment; Termination.
The Board may at any time and from time to time alter, amend, suspend,
or terminate the Plan in whole or in part. The termination or any modification
or amendment of the Plan shall not, without the consent of a director, affect
his or her rights under a grant of Deferred Stock Units.
8. Miscellaneous.
8.1 Deferred Stock Units granted hereunder shall not be assignable
or transferable by the director except by will or by the laws of descent and
distribution.
8.2 Nothing in the Plan shall be construed as conferring any right
upon any director to continue as a member of the Board.
8.3 The Plan and all rights hereunder shall be construed in
accordance with and governed by the laws of the State of Delaware.
8.4 The Corporation shall have the right to require, prior to any
payment hereunder, payment by the recipient of any federal, state, local or
other taxes which may be required to be withheld or paid in connection with such
payment hereunder.
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IN WITNESS WHEREOF, the Plan has been executed by the Company on this
28th day of November, 2001, to be effective on the Effective Date.
ACUITY BRANDS, INC.
By: /s/ James S. Balloun
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James S. Balloun
Chairman, President and
Chief Executive Officer
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