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
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PAGE
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ARTICLE I
INTRODUCTION
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1
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Section 1.1
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Name
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1
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Section 1.2
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Purpose and
Intent
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1
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Section 1.3
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Administration
of the Plan
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1
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ARTICLE II
DEFINITIONS
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1
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Section 2.1
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“409A
Change of Control”
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1
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Section 2.2
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“Account” or
“Accounts”
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2
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Section 2.3
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“Account
Balance”
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2
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Section 2.4
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“Beneficiary”
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2
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Section 2.5
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“Board of
Directors”
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2
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Section 2.6
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“Change
of Control”
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2
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Section 2.7
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“Code”
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3
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Section 2.8
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“Committee”
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3
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Section 2.9
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“Company”
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3
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Section 2.10
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“Compensation”
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3
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Section 2.11
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“Effective Date”
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3
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Section 2.12
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“Employer”
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3
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Section 2.13
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“ERISA”
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4
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Section 2.14
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“Incentive Payment”
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4
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Section 2.15
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“Participant”
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4
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Section 2.16
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“Performance Based
Compensation”
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4
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Section 2.17
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“Plan”
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4
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Section 2.18
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“Plan
Year”
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4
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Section 2.19
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“RSP”
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4
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Section 2.20
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“Specified Employee”
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4
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Section 2.21
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“Termination of
Employment”
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4
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Section 2.22
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“Unforeseeable Emergency”
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4
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ARTICLE III
PLAN PARTICIPATION
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4
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Section 3.1
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Eligibility
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4
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Section 3.2
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Participation
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4
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ARTICLE IV
ELECTION TO DEFER
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5
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Section 4.1
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Compensation
Deferral Election
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5
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Section 4.2
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Incentive
Payment Deferral Election
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5
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Section 4.3
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Employer
Matching Credits
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6
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Section 4.4
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Cancellation of
Deferrals
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7
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Section 4.5
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Accounts
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7
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Section 4.6
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Vesting
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7
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ARTICLE V
EARNINGS ON ACCOUNT BALANCES
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7
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Section 5.1
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Individual
Participant Accounting
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7
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Section 5.2
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Investment
Returns on Accounts
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8
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ARTICLE VI
DISTRIBUTION OF ACCOUNT BALANCES
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8
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Section 6.1
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Termination of
Employment
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8
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Section 6.2
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Form of
Distribution of Accounts
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8
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Section 6.3
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Time of
Distribution of Accounts
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8
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Section 6.4
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Payment in the
Event of Death
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9
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Section 6.5
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Special Payment
Rules
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9
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Section 6.6
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Unforeseeable
Emergency Payments
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9
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Section 6.7
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Payment of
Accounts After 409A Change of Control
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10
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ARTICLE VII
AMENDMENT OR TERMINATION
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10
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Section 7.1
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Amendment
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10
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Section 7.2
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Plan
Termination
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10
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
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10
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Section 8.1
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Expenses
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10
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Section 8.2
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Indemnification
and Exculpation
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10
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Section 8.3
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Funding
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11
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Section 8.4
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Corporate
Action
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11
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Section 8.5
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Interests not
Transferable
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11
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Section 8.6
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Effect on Other
Benefit Plans
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11
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Section 8.7
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Legal Fees and
Expenses
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11
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Section 8.8
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Deduction of
Taxes from Amounts Payable
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11
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Section 8.9
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Facility of
Payment
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12
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Section 8.10
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Merger
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12
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Section 8.11
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Gender and
Number
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12
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Section 8.12
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Invalidity of
Certain Provisions
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12
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Section 8.13
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Headings
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12
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Section 8.14
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Claims
Procedures
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12
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Section 8.15
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Governing
Law
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13
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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