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MIDAS EXECUTIVE RETIREMENT PLAN ACCOUNT BALANCE COMPONENT

Employee Benefits Plan Agreement

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MIDAS INC

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Title: MIDAS EXECUTIVE RETIREMENT PLAN ACCOUNT BALANCE COMPONENT
Governing Law: Delaware     Date: 3/23/2009
Industry: Business Services     Sector: Services

MIDAS EXECUTIVE RETIREMENT PLAN ACCOUNT BALANCE COMPONENT, Parties: midas inc
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Exhibit 10.13

MIDAS EXECUTIVE RETIREMENT PLAN

ACCOUNT BALANCE COMPONENT

(As Amended and Restated

Effective November 11, 2008)


MIDAS EXECUTIVE RETIREMENT PLAN

ACCOUNT BALANCE COMPONENT

TABLE OF CONTENTS

 

   

 

   

  

 

  

PAGE

ARTICLE I INTRODUCTION

  

1

 

Section 1.1

  

Name

  

1

 

Section 1.2

  

Purpose and Intent

  

1

 

Section 1.3

  

Administration of the Plan

  

1

ARTICLE II DEFINITIONS

  

1

 

Section 2.1

  

“409A Change of Control”

  

1

 

Section 2.2

  

“Account” or “Accounts”

  

2

 

Section 2.3

  

“Account Balance”

  

2

 

Section 2.4

  

“Beneficiary”

  

2

 

Section 2.5

  

“Board of Directors”

  

2

 

Section 2.6

  

“Change of Control”

  

2

 

Section 2.7

  

“Code”

  

3

 

Section 2.8

  

“Committee”

  

3

 

Section 2.9

  

“Company”

  

3

 

Section 2.10

  

“Compensation”

  

3

 

Section 2.11

  

“Effective Date”

  

3

 

Section 2.12

  

“Employer”

  

3

 

Section 2.13

  

“ERISA”

  

4

 

Section 2.14

  

“Incentive Payment”

  

4

 

Section 2.15

  

“Participant”

  

4

 

Section 2.16

  

“Performance Based Compensation”

  

4

 

Section 2.17

  

“Plan”

  

4

 

Section 2.18

  

“Plan Year”

  

4

 

Section 2.19

  

“RSP”

  

4

 

Section 2.20

  

“Specified Employee”

  

4

 

Section 2.21

  

“Termination of Employment”

  

4

 

Section 2.22

  

“Unforeseeable Emergency”

  

4

ARTICLE III PLAN PARTICIPATION

  

4

 

Section 3.1

  

Eligibility

  

4

 

Section 3.2

  

Participation

  

4

ARTICLE IV ELECTION TO DEFER

  

5

 

Section 4.1

  

Compensation Deferral Election

  

5

 

Section 4.2

  

Incentive Payment Deferral Election

  

5

 

Section 4.3

  

Employer Matching Credits

  

6

 

Section 4.4

  

Cancellation of Deferrals

  

7

 

Section 4.5

  

Accounts

  

7


 

Section 4.6

  

Vesting

  

7

ARTICLE V EARNINGS ON ACCOUNT BALANCES

  

7

 

Section 5.1

  

Individual Participant Accounting

  

7

 

Section 5.2

  

Investment Returns on Accounts

  

8

ARTICLE VI DISTRIBUTION OF ACCOUNT BALANCES

  

8

 

Section 6.1

  

Termination of Employment

  

8

 

Section 6.2

  

Form of Distribution of Accounts

  

8

 

Section 6.3

  

Time of Distribution of Accounts

  

8

 

Section 6.4

  

Payment in the Event of Death

  

9

 

Section 6.5

  

Special Payment Rules

  

9

 

Section 6.6

  

Unforeseeable Emergency Payments

  

9

 

Section 6.7

  

Payment of Accounts After 409A Change of Control

  

10

ARTICLE VII AMENDMENT OR TERMINATION

  

10

 

Section 7.1

  

Amendment

  

10

 

Section 7.2

  

Plan Termination

  

10

ARTICLE VIII MISCELLANEOUS PROVISIONS

  

10

 

Section 8.1

  

Expenses

  

10

 

Section 8.2

  

Indemnification and Exculpation

  

10

 

Section 8.3

  

Funding

  

11

 

Section 8.4

  

Corporate Action

  

11

 

Section 8.5

  

Interests not Transferable

  

11

 

Section 8.6

  

Effect on Other Benefit Plans

  

11

 

Section 8.7

  

Legal Fees and Expenses

  

11

 

Section 8.8

  

Deduction of Taxes from Amounts Payable

  

11

 

Section 8.9

  

Facility of Payment

  

12

 

Section 8.10

  

Merger

  

12

 

Section 8.11

  

Gender and Number

  

12

 

Section 8.12

  

Invalidity of Certain Provisions

  

12

 

Section 8.13

  

Headings

  

12

 

Section 8.14

  

Claims Procedures

  

12

 

Section 8.15

  

Governing Law

  

13

 

ii


MIDAS EXECUTIVE RETIREMENT PLAN

ACCOUNT BALANCE COMPONENT

ARTICLE I

Introduction

Section 1.1 Name . Effective December 31, 1997, Midas International Corporation adopted the Midas Executive Retirement Plan (the “ Plan ”), which was most recently amended and restated effective as of February 2, 1999. Midas, Inc. (the “ Company ”) hereby continues the Account balance component of the Plan, effective November 11, 2008, amended and restated as set forth herein. The Company also continues the defined benefit retirement component of the Plan, effective November 11, 2008, amended and restated as set forth in a separate document.

Section 1.2 Purpose and Intent . The portion of the Plan maintained for the purpose of providing benefits to Participants in excess of the limitations on contributions and benefits imposed by Section 415 of the Internal Revenue Code of 1986, as amended (the “ Code ”) is intended to be an “excess benefit plan” as defined in section 3(36) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”). The remainder of the Plan is intended to be an unfunded, deferred compensation plan for a select group of management or highly compensated employees, as described in sections 201(2), 301(a)(3), and 401(a)(1) of ERISA.

Section 1.3 Administration of the Plan . The Committee shall administer the Plan. The Committee’s duties and authority under the Plan shall include (i) the interpretation, in its sole and absolute discretion, of the provisions of the Plan, (ii) the adoption of any rules and regulations which may become necessary or advisable in the operation of the Plan, (iii) the making of such determinations as may be permitted or required pursuant to the Plan, and (iv) the taking of such other action as may be required for the proper administration of the Plan in accordance with its terms. Any decision of the Committee with respect to any matter within the authority of the Committee shall be final, binding and conclusive upon the Company and each other Employer and each Participant, former Participant, Beneficiary, and each person claiming under or through any Participant or Beneficiary, and no additional authorization or ratification by the Board of Directors shall be required. Any action by the Committee with respect to any one or more Participants shall not be binding on the Committee as to any action to be taken with respect to any other Participant. Committee members may be Participants, but no member of the Committee may participate in any decision directly affecting the computation of his or her benefits or rights under the Plan. Each determination required or permitted under the Plan shall be made by the Committee in the sole and absolute discretion of the Committee.

ARTICLE II

Definitions

Section 2.1 “ 409A Change of Control ” means a Change of Control transaction that also constitutes a “change in ownership or effective control of the corporation, or the ownership of a substantial portion of the assets of the corporation” for purposes of Section 409A(a)(2)(A)(v) of the Code and the regulations promulgated thereunder.


Section 2.2 “ Account ” or “ Accounts ” means one or the aggregate of the bookkeeping accounts maintained by the Employer for a Participant under the Plan, as more fully described in Section 4.5 of the Plan.

Section 2.3 “ Account Balance ” means the value, as of a specified date, of the Participant’s Account(s) in the Plan.

Section 2.4 “ Beneficiary ” means each person designated, on such form and in accordance with such procedures as the Committee may designate from time to time, by the Participant as beneficiary with respect to the Participant’s Account as of the date of the Participant’s death. If a Participant fails to properly designate any Beneficiary or if all such designated persons predecease the Participant, then Beneficiary means the Participant’s estate.

Section 2.5 “ Board of Directors ” means the board of directors of the Company.

Section 2.6 “ Change of Control ” means

(a) the acquisition by any individual, entity or group (a “ Person ”), including any “person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), of beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act, of 25% or more of either (A) the then outstanding shares of common stock of the Company (the “ Outstanding Common Stock ”) or (B) the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors (the “ Outstanding Voting Securities ”); excluding, however, the following: (1) any acquisition directly from the Company (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege unless the security being so exercised, converted or exchanged was acquired directly from the Company), (2) any acquisition by the Company, (3) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company or (4) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of clause (c) in this definition of Change of Control;

(b) the individuals who, as of the Effective Date, constitute the Board of Directors (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board of Directors; provided that any individual who becomes a director of the Company subsequent to the Effective Date whose election, or nomination for election by the Company’s shareholders, was approved by the vote of at least a majority of the directors then comprising the Incumbent Board shall be deemed a member of the Incumbent Board; and provided further, that any individual who was initially elected as a director of the Company as a result of an actual or threatened election contest, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act, or any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board of Directors shall not be deemed a member of the Incumbent Board; or

(c) the consummation of a reorganization, merger or consolidation of the Company or sale or other disposition of all or substantially all of the assets of the Company (a “ Corporate Transaction ”); excluding, however, a Corporate Transaction pursuant to which (A)

 

2


all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Common Stock and the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 66-  2 / 3 % of, respectively, the outstanding shares of common stock, and the combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or indirectly) in substantially the same proportions relative to each other as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Common Stock and the Outstanding Voting Securities, as the case may be, (B) no Person (other than: the Company; any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company; the corporation resulting from such Corporate Transaction; and any Person which beneficially owned, immediately prior to such Corporate Transaction, directly or indirectly, 25% or more of the Outstanding Common Stock or the Outstanding Voting Securities, as the case may be) will beneficially own, directly or indirectly, 25% or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors and (C) individuals who were members of the Incumbent Board will constitute at least a majority of the members of the board of directors of the corporation resulting from such Corporate Transaction; or the consummation of a plan of complete liquidation or dissolution of the Company.

Section 2.7 “ Code ” means the Internal Revenue Code of 1986, as amended.

Section 2.8 “Committee” means the persons who have been designated, from time to time, by the Chief Financial Officer of the Company as members of the Committee to administer the Plan in accordance with Section 1.3 and other provisions of the Plan.

Section 2.9 “ Company ” means Midas, Inc. or any successor entity by operation of law or any successor entity which affirmatively adopts the Plan and the obligations of either with respect to the Plan.

Section 2.10 “ Compensation ” means, for a Plan Year, the Participant’s “compensation” as defined in the RSP for the Plan Year, disregarding (i) any limit on compensation under the RSP for the Plan Year due to the application of Section 401(a)(17) of the Code, (ii) any provision under the RSP having the effect of excluding employee deferrals made pursuant to Section 4.1(a) from compensation under that plan, and (iii) to the extent included as “compensation” under the RSP for the Plan Year, any Incentive Payment.

Section 2.11 “ Effective Date ” means November 11, 2008.

Section 2.12 “ Employer ” means the Company, Midas International Corporation, Speedee Worldwide Corporation and any other subsidiary of the Company that, with the consent of the Company, participates in the Plan.

 

3


Section 2.13 “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

Section 2.14 “ Incentive Payment ” means the amount of award payable to a Participant under the Midas International Corporation Executive Incentive Compensation Plan or any successor plan thereto.

Section 2.15 “ Participant ” means any eligible employee of an Employer who is participating under the Plan pursuant to Article III.

Section 2.16 “ Performance Based Compensation ” means “performance based compensation” as such term is defined for purposes of Section 409A(a)(4)(B)(iii) of the Code in the regulations promulgated thereunder.

Section 2.17 “ Plan ” means this Midas Executive Retirement Plan, as may be amended from time to time.

Section 2.18 “ Plan Year ” means the calendar year.

Section 2.19 “ RSP ” means the Midas Retirement Savings Plan for Salaried Employees, as amended from time to time or any successor plan thereto.

Section 2.20 “ Specified Employee ” means, with respect to the Plan, a “specified employee” as such term is defined in Section 409A(a)(2)(B)(i) of the Code and the regulations promulgated thereunder.

Section 2.21 “ Termination of Employment ” means when a person experiences a “separation from service” from the Employer and each other person treated as a single employer with the Employer under Section 414(b) or 414(c) of the Code as defined under Section 409A(a)(2)(A)(i) of the Code and the regulations promulgated thereunder.

Section 2.22 “ Unforeseeable Emergency ” means, in the Committee’s sole and absolute discretion, an “unforeseeable emergency” with respect to a Participant as such term is defined for purposes of Section 409A(a)(2)(A)(vi) of the Code, which definition is set forth in Section 409A(a)(2)(B)(ii) of the Code and the regulations promulgated thereunder.

ARTICLE III

Plan Participation

Section 3.1 Eligibility . Each employee of the Employer is eligible to make a deferral election under the Plan with respect to a Plan Year if the employee is a Vice President, Senior Vice President, Executive Vice President or President of the Employer, or one of such other employees of the Employer who, in the sole determination of the Chief Executive Officer of the Company, is eligible to participate in the Plan.

Section 3.2 Participation . Each Participant in the Plan on the day before the Effective Date sh


 
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