Exhibit 10.14
MIDAS EXECUTIVE RETIREMENT
PLAN
DEFINED BENEFIT RETIREMENT
COMPONENT
(As Amended and
Restated
Effective November 11,
2008)
MIDAS EXECUTIVE RETIREMENT
PLAN
DEFINED BENEFIT RETIREMENT
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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“Actuarial Equivalent”
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2
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Section 2.3
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“Beneficiary”
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2
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Section 2.4
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“Board of
Directors”
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2
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Section 2.5
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“Change
of Control”
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2
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Section 2.6
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“Code”
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3
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Section 2.7
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“Committee”
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3
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Section 2.8
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“Company”
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3
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Section 2.9
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“Compensation”
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3
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Section 2.10
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“Death
Benefit”
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3
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Section 2.11
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“Effective Date”
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4
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Section 2.12
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“Employer”
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4
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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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“Maximum
Annual Benefit Limitation”
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4
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Section 2.16
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“Participant”
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4
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Section 2.17
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“Pension
Plan”
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4
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Section 2.18
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“Plan”
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4
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Section 2.19
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“Plan
Year”
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4
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Section 2.20
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“Retirement Benefit”
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4
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Section 2.21
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“Specified Employee”
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4
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Section 2.22
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“Termination of
Employment”
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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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5
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ARTICLE IV AMOUNT OF RETIREMENT AND DEATH
BENEFITS
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5
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Section 4.1
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Amount of
Retirement Benefit
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5
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Section 4.2
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Amount of Death
Benefit
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5
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Section 4.3
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Pre-1998
Benefits
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6
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Section 4.4
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Vesting
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6
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ARTICLE V DISTRIBUTION OF
BENEFITS
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6
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Section 5.1
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Termination of
Employment
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6
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Section
5.2
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Form of
Distribution of Retirement Benefit
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6
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Section
5.3
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Time of
Distribution of Retirement Benefit
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7
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Section
5.4
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Payment in the
Event of Death
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7
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Section
5.5
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Special Payment
Rules
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7
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Section
5.6
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Payment of
Retirement Benefit After 409A Change of Control
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7
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ARTICLE VI AMENDMENT OR
TERMINATION
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8
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Section
6.1
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Amendment
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8
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Section
6.2
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Plan
Termination
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8
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ARTICLE VII MISCELLANEOUS
PROVISIONS
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8
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Section
7.1
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Expenses
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8
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Section
7.2
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Indemnification
and Exculpation
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8
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Section
7.3
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Funding
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9
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Section
7.4
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Corporate
Action
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9
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Section
7.5
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Interests not
Transferable
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9
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Section
7.6
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Effect on Other
Benefit Plans
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9
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Section
7.7
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Legal Fees and
Expenses
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9
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Section
7.8
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Deduction of
Taxes from Amounts Payable
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9
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Section
7.9
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Facility of
Payment
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10
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Section 7.10
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Merger
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10
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Section
7.11
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Gender and
Number
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10
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Section
7.12
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Invalidity of
Certain Provisions
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10
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Section
7.13
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Headings
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10
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Section
7.14
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Claims
Procedures
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10
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Section
7.15
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Governing
Law
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11
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ii
MIDAS EXECUTIVE RETIREMENT
PLAN
DEFINED BENEFIT RETIREMENT
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 defined benefit retirement component
of the Plan, effective November 11, 2008, amended and restated
as set forth herein. The Company also continues the account balance
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 “
Actuarial Equivalent ” means an amount equal in value
to the benefit replaced as determined (i) in accordance with
the terms of the Pension Plan with respect to the determination of
any form of benefit other than a single sum, or (ii) with
respect to a single sum distribution, by: (A) using an assumed
annual discount rate equal to the weekly average, as of the last
full week of the fourth calendar month prior to the month
containing the date the single sum will be paid, of the Bond
Buyer’s Average of 20 Municipal Bonds, rounded to the
nearest 1 / 4 %, as published weekly by the
Federal Reserve Bank of St. Louis and (B) assuming the payee
lives for the duration of his life expectancy where such life
expectancy is calculated according to the UP84 Mortality
Table.
Section 2.3 “
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 continued payment, if any, under an annuity elected by
the Participant pursuant to Section 5.2 and the Death Benefit
payable hereunder. 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 2.4 “ Board of
Directors ” means the board of directors of the
Company.
Section 2.5 “ 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
2
(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) 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 2.6 “ Code
” means the Internal Revenue Code of 1986, as
amended.
Section 2.7 “ 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 2.8 “ Company
” means Midas, Inc. or any successor entity that by operation
of law or any successor entity which affirmatively adopts the Plan
and obligations of either with respect to the Plan.
Section 2.9 “
Compensation ” means, f