Exhibit 10.11
MIDAS, INC.
AMENDED AND RESTATED
DIRECTORS’ DEFERRED COMPENSATION PLAN
(amended and restated as of
November 11, 2008)
Midas, Inc. (the
“Company”) desires to establish a Directors’
Deferred Compensation Plan (the “Plan”) to assist it in
attracting and retaining persons of competence and stature to serve
as Directors of the Company by giving them the option of using
their Board and Board Committee annual retainer and meeting
attendance fees from the Company (the “Fees”) to
purchase shares of the Company’s Common Stock (the
“Common Stock”) or of deferring receipt of such Fees in
the form of cash units and units representing shares of Common
Stock. The terms of the Plan are set forth below.
1. Effective Date
. The Plan is effective
upon its approval by the Company’s shareholders.
2. Participation
. Each non-officer
Director (“Eligible Director”) may elect to have all or
a portion of his or her Fees paid in the form of shares of Common
Stock or to defer receipt of such Fees. Each Eligible Director who
makes such an election shall be a Plan Participant. Any election to
defer receipt of Fees under this plan shall be made in the form and
manner as required by the Administrator, as defined
below.
3. Administration
. The Company’s
Board of Directors (the “Board”) shall designate from
time to time a non-director officer of the Company to act as the
administrator of the Plan (the “Administrator”). The
Administrator shall administer, construe and interpret the Plan.
The Administrator shall not be liable for any act done or
determination made in good faith. The expense of administering the
Plan shall be borne by the Company and shall not be charged against
benefits payable hereunder.
4. Common Stock Subject to the
Plan . The aggregate
number of shares of Common Stock that may be issued under the Plan
shall not exceed one hundred thousand (100,000), which shall be
adjusted appropriately by the Administrator for any stock dividend,
split, combination or other change in the Common Stock (including,
without limitation, pursuant to any merger, acquisition or other
transaction).
5. Conversion of Fees into
Shares . Prior to
first day of each calendar year, an Eligible Director may elect to
have all or a portion of his or her Fees paid in the form of shares
of Common Stock by executing the Fee Conversion Form attached as
Exhibit A. The number of
shares to be issued to an electing Eligible
Director shall be determined by dividing the dollar amount of the
Fees subject to the election by the Market Value (as defined in
Paragraph 6(b)) of the Common Stock on the date that the Fees would
have otherwise been paid. The shares of Common Stock shall be
issued to the Eligible Director as soon as practicable following
the date on which the Fees subject to the election would have
otherwise been paid.
6. Deferral of Fees
.
(a) Deferral Election
. Prior to first day of
each calendar year, an Eligible Director may elect to defer all or
a portion of the Fees otherwise payable to that Eligible Director
for such calendar year (the “Plan Year”) by executing
the Deferral Election Form attached as Exhibit B. In addition to
deferring Fees, the Deferral Election Form for each Plan Year will
require the Eligible Director to elect to have the deferred Fees
credited on the Company’s books in the form of share units,
with each share unit representing a share of Common Stock, or cash
units, with each cash unit representing the right to receive the
fixed amount of cash the cash unit represents, plus any interest
determined pursuant to Section 6(c).
(b) Crediting to Plan Year
Accounts . An account
(the “Plan Year Account”) shall be established on the
Company’s books to record a Participant’s deferrals
resulting from each annual Deferral Election, which shall be
credited in the form of cash units and share units. Each Plan Year
Account shall be credited with an amount equivalent to the Fees
that would have otherwise been paid to the Participant, such credit
to be made on the date on which the Fees would have been paid
absent a Deferral Election. The number of share units to be
credited to a Plan Year Account shall be determined by dividing the
dollar amount of the deferred Fees by the Market Value of the
Common Stock on the date the Fees would have otherwise been paid.
The “Market Value” of the Common Stock as of a given
date means the closing price of the Common Stock on the New York
Stock Exchange (as reported in the Midwest Edition of The Wall
Street Journal) on such given date or, if shares were not traded on
such date, on the next preceding date on which shares were traded;
provided that, if the Common Stock is traded on an exchange or
market in which prices are reported on a bid and asked price,
Market Value shall mean the average of the mean between the bid and
the asked price for the Common Stock at the close of trading for
the ten consecutive trading days immediately preceding such given
date; and provided further that, if the Common Stock is not listed
on a national securities exchange nor traded on the
over-the-counter market, the Market Value shall be determined by
the Administrator in good faith.
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(c) Dividend and Interest
Credits . Each Plan
Year Account that holds share units shall be adjusted appropriately
by the Administrator for dividends on the Common Stock as of the
dividend payment date, which adjustment shall be in the form of
additional share units determined by multiplying the number of
units then credited to the Plan Year Account by the ratio of the
dollar amount of the dividend per share over the current Market
Value of the Common Stock. The Administrator shall also adjust
appropriately the number of share units in each Plan Year Account
for any stock dividend, split, combination or other change in the
Common Stock (including, without limitation, pursuant to any
merger, acquisition or other transaction). Cash units credited to a
Plan Year Account shall accrue interest compounded monthly based on
the prime commercial lending rate as quoted in the Midwest Edition
of The Wall Street Journal as of the first business day of each
month. Each Participant shall receive semi-annual statements of the
balances in that Participant’s Plan Year Accounts.
7. Payment of Plan Year
Accounts . A
Participant must execute the Payment Election Form attached as
Exhibit C at the time each Deferral Election is made under
Paragraph 6(a), indicating the date on which payment of the amounts
credited to the Participant’s Plan Year Account to which that
Deferral Election relates will commence and the payment method. The
payment commencement date for a particular Plan Year Account can be
no earlier than two (2) calendar years from the last day of
the Plan Year for which deferrals are made to that Account. Payment
may be made in a single lump-sum or a maximum of ten
(10) substantially equal annual installments, as elected on
the Deferral Election. The commencement date and method of payment
may vary with each separate Deferral Election and Plan Year
Account. Share units shall be paid only in the shares of Common
Stock, with any fractional share paid in cash, and cash units shall
be paid only in an equivalent amount of cash. Notwithstanding any
payment election made by a Participant, the aggregate balance of
the Participant’s Plan Year Accounts shall be paid in a
single lump-sum to the Participant as soon as practicable following
termination of the Participant’s directorship which also
constitutes a “separation from service” for purposes of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”) and any regulations promulgated
thereunder. The right to any series of installment payments
hereunder shall be treated as the right to a series of separate
payments for purposes of Code § 409A and Treasury
Regulation § 1.409A-2(b)(2)(iii). Notwithstanding any
other payment schedule
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provided herein to the contrary, if the Eligible
Director is deemed on the date of termination to be a
“specified employee” within the meaning of that term
under Code § 409A(a)(2)(B), then with regard to any
payment that is considered deferred compensation under Code
Section 409A payable on account of a “separation from
service,” such payment shall be made on the date which is the
earlier of (A) the expiration of the six (6)-month period
measured from the date of such “separation from
service” of the Executive, and (B) the date of the
Executive’s death (the “ Delay Period ”)
to the extent required under Code Section 409A. Upon the
expiration of the Delay Period, all payments delayed pursuant to
the previous sentence (whether they would have otherwise been
payable in a single sum or in installments in the absence of such
delay) shall be paid to the Eligible Director in a lump sum, and
all remaining payments due under this Plan shall be paid or
provided in accordance with the normal payment dates specified for
them herein.
8. Early Payment
. A Participant may file
a written request with the Administrator for payment from his or
her Plan Year Accounts due to an unforeseeable emergency that is
caused by an event beyond the control of the Participant and that
would result in severe financial hardship to the Participant if
payment were not permitted, such as may result from a sudden and
unexpected illness or accident not covered by insurance, loss of
property due to casualty, or similar circumstance; provided that
such payment event qualifies as an “unforeseeable
emergency” under Code § 409A and any regulations
promulgated thereunder and is made solely to the extent allowed
under Code § 409A and any regulations promulgated
thereunder.
9. Payment in the Event of
Death . In the event
that a Participant’s service is terminated by reason of
death, the Company shall, within sixty (60) days thereafter,
pay the aggregate balance of the Participant’s Plan Year
Accounts to the Participant’s beneficiary or beneficiaries in
the form of a single lump-sum. Each Participant may designate one
or more death beneficiaries by executing the Beneficiary
Designation Form attached as Exhibit D. The designated beneficiary
or beneficiaries may be changed by a Participant at any time prior
to the Participant’s death by the delivery to the
Administrator of a new Beneficiary Designation Form. If no
beneficiary has been designated, or if no designated beneficiary
survives the Participant, payments pursuant to this Paragraph 9
shall be made to the Participant’s estate.
10. Assignment and Alienation
of Benefits . Except
to the extent provided in Paragraph 9 or pursuant to a domestic
relations order issued by a court of proper authority (which order
specifies the amount and timing of any payment to a
Participant’s former spouse), no Participant or beneficiary
may sell, assign, transfer, encumber, or otherwise dispose of the
right to receive payments hereunder.
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11. Unsecured Obligation
. The obligation of the
Company to make payments of amounts credited to the
Participant’s Plan Year Accounts shall be a general unsecured
obligation of the Company, and such payment shall be made from
general assets and property of the Company. The Participant’s
relationship to the Company under the Plan shall be only that of a
general unsecured creditor and neither this Plan, nor any agreement
entered into hereunder, or action taken pursuant hereto, shall
create or be construed to create a trust for purposes of holding
and investing the Plan Year Account balances. The Company reserves
the right to establish such a trust, but such establishment shall
not create any rights in or against any amounts held
thereunder.
12. Amendment or
Termination . The
Board may amend or terminate this Plan at any time and from time to
time, provided that the aggregate number of shares that may be
issued pursuant to the Plan may not be increased without
shareholder approval. Any amendment or termination of this Plan
shall not affect the rights of a Participant accrued prior thereto
without the Participant’s written consent.
13. Taxes .
The Company is not responsible for
any of the income taxes resulting from an Eligible Director’s
participation in the Plan. The Company shall comply with all
applicable tax reporting requirements relating to payments under
the Plan.
14. No Right to Continued
Directorship . Nothing in this Plan confers upon any Director
the right to continue as a member of the Board or interferes with
the rights of the Company and its shareholders to remove any
Director in accordance with the Company’s bylaws.
15. Applicable Law
. This Plan is governed
under the laws of the State of Illinois.
* * * * *
The Company has caused this Plan to
be executed this 11th day of November 2008.
MIDAS, INC.
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Alvin K. Marr,
Senior Vice President and Secretary
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EXHIBIT A
MIDAS, INC. DIRECTORS’
DEFERRED COMPENSATION PLAN
FEE CONVERSION ELECTION FORM
FOR EACH PLAN YEAR
I hereby elect that
% (FILL IN) of my Board and Board Committee
annual retainer and meeting attendance fees to be earned during the
next calendar year be distributed to me in shares of the
Company’s Common Stock. The shares should be delivered to me
as follows (COMPLETE ONE OF THE FOLLOWING):
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METHOD 1:
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Stock certificates in the name of
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