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Exhibit 10.14
APCOA, INC.
RETIREMENT PLAN FOR KEY EXECUTIVE OFFICERS
Effective Date: April 14, 1989
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TABLE OF CONTENTS
ARTICLE NO.
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PURPOSE I
DEFINITIONS II
ADMINISTRATION III
ELIGIBILITY IV
MONTHLY ACCRUED BENEFITS V
ELIGIBILITY FOR RETIREMENT BENEFITS VI
FORMS OF RETIREMENT BENEFITS VII
AMOUNT OF RETIREMENT BENEFITS VIII
DEATH BENEFITS IX
AMENDMENT AND TERMINATION X
MISCELLANEOUS XI
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ARTICLE I
PURPOSE
1.1 The Apcoa, Inc. Retirement Plan For Key Executive Officers is adopted as of
April 14, 1989, to provide retirement income and other related benefits to
certain executive officers of Apcoa, Inc. (the "Company").
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ARTICLE II
DEFINITIONS
Unless the context otherwise indicates, the following terms shall
have the meanings set forth below whenever used in this Plan:
2.1 The words "Actual Equivalent" shall mean the benefit having the same value
as the benefit which the actuarial equivalent replaces. Except as otherwise
provided in this Plan, the actuarial equivalents shall be determined under
(a) mortality rates based upon the 1951 Group Annuity Table
projected with Scale C to 1975 for Participants, and upon the
1951 Group Annuity Table projected with Scale C to 1975 set
back five years for spouses; and
(b) an interest rate of 7% provided, however, that in computing
the lump sum actuarial equivalent of a Participant's Monthly
Accrued Benefit for purposes of Section 7.4 hereof, the
interest rate used shall not be less than the rate used by the
Pension Benefit Guaranty Corporation to value immediate
annuities for plans terminating as of the proposed Benefit
Commencement Date.
2.2 The word "Affiliate" shall mean any other corporation which is,
within the meaning of 26 U.S.C. ss. 1563(a), a member of a controlled group of
corporations which includes the Company provided that, in making such
determination, "50 percent" shall be substituted for "80 percent" wherever "80
percent" appears in 26 U.S.C. ss. 1563(a).
2.3 The word "Age" shall mean a person's actual attained age.
2.4 The words "Average Monthly Compensation" shall mean the total of
a Participant's Compensation determined for the five (5) consecutive Plan Years
(or the number of Plan Years during which the Participant received compensation,
if that number is less
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than five (5)) which ended prior to the earlier of his Termination of Employment
or his Normal Retirement Date, during which said total was highest, divided by a
number equal to the number of months the Participant was employed by the Company
during such consecutive Plan Years.
2.5 The word "Beneficiary" shall mean any person who receives or is
designated to receive payment of any benefit under the terms of the Plan on the
death of a Participant.
2.6 The words "Benefit Commencement Date" shall mean the date upon
which the retirement benefits of a Participant shall commence under the terms of
the Plan.
2.7 The word "Board" shall mean the Company's duly elected Board of
Directors as constituted at any time.
2.8 The word "Company" shall mean Apcoa, Inc., a Delaware
corporation, or any corporation which assumes the obligations of Apcoa, Inc.
under the Plan.
2.9 The word "Compensation" shall mean the total remuneration paid
by the Company to a Participant for services rendered to the Company including
salaries, commissions, overtime and bonuses, whether discretionary or not, and
amounts received by the Participant from the Short-Term Incentive Compensation
Pool, but shall not include any extra benefits such as payment by the Company of
hospitalization, group insurance, expense reimbursement, or other special
benefits or any amounts realized upon exercise or cancellation of any Stock
Options or any other compensation income resulting from a grant of, or
transaction in, stock of the Company or its Affiliates or the making of an
election under Sec-
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tion 83(b) of the Internal Revenue Code of 1986, as amended, with respect to
stock of the Company or its Affiliates. A Participant's Compensation for any
Plan Year shall consist of the compensation actually paid to the Participant
during the Plan Year.
2.10 The words "Continuous Employment" shall mean any period
(including periods prior to April 14, 1989, the effective date of the Plan)
during which a Participant is an employee of the Company and/or any Affiliate
and shall include any authorized leave of absence.
2.11 The word "Control" shall mean ownership of shares of a
corporation's stock which, directly or indirectly, gives the owner a greater
than fifty percent (50%) voting interest.
2.12 The word "Disability" shall mean any physical or mental
impairment or disability which prevents a Participant from performing the duties
of his occupation for a period of at least one hundred twenty (120) days and
which is expected to be of permanent duration. A determination of whether a
Participant is disabled shall be made by two licensed physicians, one appointed
by the Board and one appointed by the Participant. In the event the two
physicians are unable to agree with respect to whether the Participant is
disabled, the determination of whether the Participant is disabled shall be made
by a third duly licensed physician chosen by the two physicians previously
appointed. Notwithstanding the preceding provisions of this Section 2.12, a
determination with respect to a Participant's Disability under any employment
agreement between the Participant and the Company shall be dispositive with
respect to determining his Disability for purposes of the Plan.
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2.13 The words "Monthly Accrued Benefit" shall mean an amount
determined with respect to a Participant in accordance with the provisions of
Article V hereof.
2.14 The words "Normal Retirement Date" shall mean for each
Participant the first day of the month coinciding with or next following the day
he attains Age sixty-five (65).
2.15 The word "Participant" shall mean any individual designated by
the Board to participate in the Plan pursuant to Article IV of the Plan.
2.16 The word "Plan" shall mean this instrument as originally
executed and as it may be later amended.
2.17 The words "Plan Year" shall mean the calendar year.
2.18 The words "Termination of Employment" shall mean the severance
of a Participant's employment relationship with the Company and all Affiliates.
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 The Board shall administer and interpret the Plan. All decisions of the
Board shall be final, conclusive and binding upon all affected persons, and any
person participating in the Plan thereby agrees to accept as final, conclusive
and binding the decisions of the Board. No member of the Board shall be liable
for any action or determination made with respect to the Plan and the Company
and/or any Affiliate shall indemnify the members of the Board, individually and
collectively, against any and all losses, costs of expenses which may be
incurred by them, individually or collectively, in connection with their
administering the Plan.
3.2 The Board may by appropriate resolution delegate to one of its
members or a committee the authority to exercise any of its powers in
administering and interpreting the Plan.
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ARTICLE IV
ELIGIBILITY
4.1 The persons eligible to participate in the Plan shall be only those persons
who are or who become key executive officers of the Company. While all such key
executive officers are eligible to be considered for participation, the Board
shall have the sole and exclusive right to determine those key executive
officers who will be selected from time to time to participate under the Plan.
The Board shall inform any key executive officer who is chosen to participate in
the Plan.
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ARTICLE V
MONTHLY ACCRUED BENEFIT
5.1 The Monthly Accrued Benefit of a Participant whose Termination of Employment
is on or after his Normal Retirement Date shall be an amount equal to fifty
percent (50%) of the Participant's Average Monthly Compensation.
5.2 The Monthly Accrued Benefit of a Participant whose Termination
of Employment is prior to his Normal Retirement Date and after he has completed
at least five (5) years of Continuous Employment shall be an amount equal to (a)
multiplied by (b) below where:
(a) equals fifty percent (50%) of his Average Monthly
Compensation; and
(b) equals a fraction, the numerator of which shall be the number
of years (to the nearest one-twelfth (1/12) year) of the
Participant's Continuous Employment at the date of his
Termination of Employment, and the denominator of which shall
be the number of years (to the nearest one-twelfth (1/12)
year) of the Participant's Continuous Employment he would have
had if he had continued to be employed by the Company until
his Normal Retirement Date.
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ARTICLE VI
ELIGIBILITY FOR RETIREMENT BENEFITS
6.1 A Participant whose Termination of Employment is for some reason other than
death and on or after his Normal Retirement Date shall be eligible to receive a
retirement benefit commencing on the first day of the month coinciding with or
next following his Termination of Employment, in such form as is provided in
Article VII hereof, and in the amount provided in Article VIII.
6.2 A Participant whose Termination of Employment is for some reason
other than death and on or after his completion of ten (10) years of Continuous
Employment and his attainment of Age fifty-five (55) but prior to his Normal
Retirement Date shall be eligible to retire and receive a retirement benefit
commencing on the first day of any month after his date of early retirement but
not later than his Normal Retirement Date, as he shall select, in such form as
is provided in Article VII hereof, and in the amount provided in Article VIII.
6.3 A Participant whose Termination of Employment is for some reason
other than death or Disability and after he has completed at least five (5)
years of Continuous Employment and before he is eligible for an early retirement
benefit shall be eligible for a vested deferred retirement benefit commencing on
his Normal Retirement Date or, if he has completed ten (10) years of Continuous
Employment, commencing on the first day of any month after his attainment of Age
fifty-five (55) but not later than his Normal Retirement Date as he shall
select. Such Participant's retirement benefit shall be paid in such form as is
provided in Article VII hereof, and in the amount provided in Article VIII.
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6.4 A Participant whose Termination of Employment is by reason of
his Disability before his Normal Retirement Date shall be eligible for a
disability retirement benefit commencing on the first day of the month
coinciding with or next following the later of his date of disability retirement
or the date the Board determines that he is Disabled, in such form as is
provided in Article VII, and in the amount provided in Article VIII.
6.5 A Participant whose Termination of Employment is for some reason
other than death or under circumstances described in Section 6.1, 6.2, 6.3 or
6.4 shall not be entitled to any retirement benefit.
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ARTICLE VII
FORMS OF RETIREMENT BENEFITS
7.1 The normal form of retirement benefits payable to a Participant who is
eligible therefor pursuant to Article V hereof shall be the Life Annuity Form
(Form 1 described in Section 7.4 hereof).
7.2 A Participant shall, prior to his Benefit Commencement Date,
submit to the Board satisfactory evidence of his Age and, if he is married,
satisfactory evidence of his marriage and the Age of his spouse.
7.3 In lieu of receiving his retirement benefits in accordance with
the normal form set forth in Section 7.1 above, a participant who is eligible to
receive retirement benefits pursuant to Article VI hereof may elect to receive
his retirement benefits on the basis of any other form of retirement benefits
described in Section 7.4 hereof. Any election of another form of retirement
benefits provided for in the Plan may be made by a Participant at any time prior
to his Benefit Commencement Date. Such election shall be on a form prescribed
for the purpose by the Board, shall be signed by the Participant, and shall name
the Beneficiary of such Participant if he shall have selected Form 3. Such
election shall be deemed to be made when it is received by the Board.
7.4 The form of retirement benefits under the Plan are as follows:
Form 1. Life Annuity Form. A Participant who receives payment of his
retirement benefits under the Life Annuity Form shall receive retirement benefit
payments during his life. No retirement benefits shall be payable after the
death of the Participant.
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Form 2. Spouse's Annuity Form. A Participant who receives payment of
his retirement benefits under the Spouse's Annuity Form shall receive reduced
retirement benefit payments during his life with the provision that after his
death 50% of his monthly retirement benefit shall continue during the life of
(and shall be paid to) the person who was his spouse on the date of his election
of a form of retirement benefits.
Form 3. Life-Ten Year Certain Form. A Participant who receives
payment of his retirement benefits under the Life-Ten Year Certain Form shall
receive reduced retirement benefit payments during his life, with the provision
that, in the event the Participant shall die before he shall have received
retirement benefit payments for a period of one hundred twenty (120) months,
after his death his monthly retirement benefit shall continue to be paid for the
remainder of said one hundred twenty (120) month period to such Beneficiary as
he shall have selected.
Form 4. Lump Sum Form. A Participant who receives payment of his
retirement benefits under the Lump Sum Form shall receive a single lump sum
payment upon the date his retirement benefits would otherwise have commenced
under the Plan.
7.5 The forms of retirement benefits described in Section 7.4 hereof
shall be subject to the following conditions:
(i) Retirement benefits shall be paid monthly on the first day of
the month unless the Participant receives his retirement
benefits under Form 4.
(ii) Retirement benefits which are payable during the life of any
person shall commence on the date specified in the Plan, if
such person is then living, and shall end with the payment
made as of the first day of the month during which such person
shall die.
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(iii) Regardless of the form of retirement benefits under which a
Participant was going to receive payment, if a Participant
shall die prior to his Benefit Commencement Date, no
retirement benefits shall be payable to the spouse or
Beneficiary of the Participant under this Article VI.
(iv) If any Participant shall die after he shall be receiving
retirement benefits pursuant to some Form other than Form 1 or
Form 4, his Beneficiary shall receive such payment or series
of payments, if any, provided for under such Form commencing
on the first day of the month next following the month during
which the participant shall have died (or as soon thereafter
as is practicable). No death benefits shall be payable on
behalf of a Participant who has received payment of his
benefits under Form 1 or Form 4.
(v) If any Participant was to have received retirement benefits
under Form 2 and his spouse shall die prior to his Benefit
Commencement Date, then the Participant shall receive his
retirement benefits under Form 1 unless, prior to his Benefit
Commencement Date, he remarries.
(vi) If any Participant shall be receiving retirement benefits
under Form 2 and his spouse shall die after his Benefit
Commencement Date, but prior to the death of the Participant,
such Participant shall continue to receive the monthly
retirement benefits payable under Form 2 and no payments of
retirement benefits shall be made after the subsequent death
of the Participant.
(vii) If a Participant shall be receiving or entitled to receive
retirement benefits under Form 3 and his Beneficiary shall
die, the Participant may designate a successor Beneficiary to
receive the benefits, if any, which may be payable after the
death of the Participant.
(viii) If any amounts shall be payable pursuant to Form 3 after the
death of both the Participant and his Beneficiary, such
payments shall be made to the executor or administrator of the
estate of the second to die of the Participant and his
Beneficiary at the time otherwise specified in this Article VI
for payment thereof.
7.6 Subject to Section 7.3 above, any Participant may at any time
prior to his Benefit Commencement Date,
(i) revoke an election previously made under Section 7.3 by notice
which complies with the procedures described in Section 7.3
duly filed with
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the Board, in which event the Participant shall be treated the
same as though his optional election had not been filed; or
(ii) change his election from one to another of the forms described
in Section 7.4 and/or change the Beneficiary previously
designated under Form 3 by notice and designation which
complies with the procedure described in Section 7.3 and is
duly filed with the Board.
7.7 Anything contained in this Article VI to the contrary
notwithstanding, if after the retirement of a Participant, the amount of
retirement benefit which would have been payable to him under the Plan is
subject to any deduction, change, offset or correction under the Plan, then the
amount payable to such Participant and/or his Beneficiary shall be adjusted to
reflect any such deduction, change, offset or correction.
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ARTICLE VIII
AMOUNT OF RETIREMENT BENEFITS
8.1 The monthly retirement benefit payable to a Participant who is eligible
therefor pursuant to Article VI hereof, whose retirement benefit commences on or
after his Normal Retirement Date, and is payable under Form 1 in accordance with
Article VII hereof shall be equal to his Monthly Accrued Benefit.
8.2 The monthly retirement benefit payable to a Participant who is
eligible therefor pursuant to Article VI hereof and whose retirement benefit is
payable under a form of retirement benefit described in Article VII other than
Form 1 shall be such amount so that his retirement benefits are the Actuarial
Equivalent of the retirement benefits which he would have received if his
retirement benefit had been payable under Form 1.
8.3 The monthly retirement benefit payable to a Participant who is
eligible therefor pursuant to Article VI hereof and whose retirement benefit
commences prior to his Normal Retirement Date shall be equal to the amount he
would have received at his Normal Retirement Date reduced by five-ninths of one
percent (5.9%) for each full month by which the commencement of payment of the
Participant's retirement benefits precedes his Normal Retirement Date.
8.4 The retirement benefit payable to a Participant who is eligible
therefor pursuant to Article VI hereof and whose retirement benefit is payable
under Form 4 described in Section 7.4 shall be an amount that is the Actuarial
Equivalent of the monthly retirement
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benefit which he would have received under Section 8.1 hereof if his retirement
benefit had commenced on his Normal Retirement Date and been payable under Form
1.
8.5 Notwithstanding any other provision of the Plan, the amount
payable to a Participant under this Plan shall be reduced by the Actuarial
Equivalent of the employer-funded benefit payable to the Participant under any
tax-qualified retirement plan maintained by the Company. For purposes of the
preceding sentence, any benefit payable to the Participant which is attributable
to the Participant's salary reduction contributions under a qualified cash or
deferred arrangement described in Internal Revenue Code Section 401(k) shall not
be considered an employer-funded benefit.
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ARTICLE IX
DEATH BENEFITS
9.1 In the event of the death of a Participant on or after his Benefit
Commencement Date, there shall be paid to his Beneficiary the death benefit, if
any, provided under the form of benefit under which such Participant was
receiving retirement benefits, as set forth in Article VII hereof.
9.2 If a Participant dies either
(a) before his Termination of Employment, and on or after his
Normal Retirement Date; or
(b) before his Termination of Employment, if he had completed at
least five (5) years of Continuous Employment; or
(c) after his Termination of Employment but prior to his Benefit
Commencement Date, if he had completed at least five (5) years
of Continuous Employment;
there shall be paid to the deceased Participant's surviving spouse an amount
equal to the Actuarial Equivalent of the amount such surviving spouse would have
been entitled to receive if the deceased Participant had commenced to receive
retirement benefits under the Plan on the date of his death under Form 2
described in Section 7.4 hereof.
9.3 Death benefits payable pursuant to Section 9.2 above shall be
paid to the surviving spouse in the form of a single lump sum payment. Payment
of death benefits under Section 9.2 above shall be made as soon as reasonably
possible after the death of the Participant.
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ARTICLE X
AMENDMENT AND TERMINATION
10.1 Subject to any contractual restrictions that may otherwise exist, the Board
may, in its discretion, amend or terminate the Plan, and the Board shall direct
that all documents necessary to put such amendment into full force and effect be
prepared and executed.
10.2 Notwithstanding any other provision of the Plan, with respect
to the amount of a Participant's Monthly Accrued Benefit as of the date of any
amendment to the Plan, the provisions of the Plan shall not be subject to
amendment.
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ARTICLE XI
MISCELLANEOUS
11.1 A Participant's claim to benefits under this Plan and the right to receive
amounts under this Plan are nontransferable as security for a loan or otherwise
by any means, either voluntarily or by operation of law.
11.2 In the event that any provision of the Plan is determined by
any judicial, quasijudicial or administrative body to be void or unenforceable
for any reason, all other provisions of the Plan shall remain in full force and
effect as if such void or unenforceable provision had never been a part of the
Plan.
11.3 The singular herein shall include the plural, or vice versa,
wherever the context so requires.
11.4 A pronoun in the masculine, feminine, or neuter gender shall be
deemed, where appropriate, to include also the masculine, feminine or neuter
gender.
11.5 If the Board shall find that any person to whom any amount is
payable under the Plan is unable to care for his affairs because of illness or
accident, or is a minor, any payment due (unless a prior claim therefor shall
have been made by a duly appointed guardian, committee or other legal
representative) may be made to such person's spouse, child, parent, or brother
or sister, or to any person deemed by the Board to have incurred expenses for
such person otherwise entitled to payment, in such manner and proportions as the
Board may determine.
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11.6 The Plan shall be construed in accordance with, and governed
by, the laws of the State of Delaware.
11.7 Any person's right to receive any amounts under this Plan shall
be an unsecured and unfunded obligation of the Company.
IN WITNESS WHEREOF, APCOA, INC., by its officer duly authorized, has
executed this instrument this __________ day of ________________, 1989,
effective for all purposes as of April 14, 1989.
APCOA, INC.
By: /s/
----------------------------------
Its: /s/
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EXHIBIT E
DESIGNATION OF BENEFICIARY
On April 14, 1989, I, the undersigned, entered into an Executive
Employment Agreement with APCOA, Inc. Pursuant to the terms of said Agreement, I
have the right to designate a beneficiary to receive, in the event of my death,
certain payments pursuant to said Agreement. I, therefore, exercise this right
and designate Judith Stuelpe to receive any such payments if (s)he survives me,
but if Judith Stuelpe does not survive me, I designate Tyson and Casey Stuelpe.
Any and all previous designations of beneficiary made by me are hereby revoked
and I hereby reserve the right to revoke this designation of beneficiary.
/s/ G. Walter Stuelpe, Jr.
-----------------------------
G. Walter Stuelpe, Jr.
Dated: 4/14/89
Receipt of this Designation of Beneficiary form is acknowledged by
the undersigned Secretary of APCOA, Inc.
APOCA, INC.
By: /s/
----------------------------------
, Secretary
Dated: 4/14/89
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SUPPLEMENTAL PENSION PLAN
IN CONSIDERATION of the mutual promises contained herein, it is
agreed by the Executive and the Company as follows:
1. The Executive may retire from active employment at any time after
he reaches ages 65.
2. Upon retirement, the Company shall provide the Executive with a
retirement benefit of 240 equal consecutive monthly payments of $4,166.67. The
first monthly payment shall be made on the first day of the month coinciding
with or next following the date of the Executive's retirement.
3. In the event the Executive dies after commencement of payments
under paragraph 2 hereof, but before he received the number of monthly
installments set forth therein, the Company shall pay the remainder of said
monthly installments to the executive's designated beneficiary hereunder. For
purposes of this provision, the executive's designated beneficiary hereunder is
Judith Stuelpe. Executive shall have the right to change such beneficiary at
anytime hereafter, either prior to or after retirement, by notifying the Company
in writing of such change.
4. If the executive shall die prior to age 65 while in the active
employment of the Company, the Company shall pay the Executive's designated
beneficiary an aggregate of $482,000 in 60 equal monthly installments of
$8,033.33. The first installment shall be paid on the first day of the month
following the month in which the Executive dies.
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5. This Plan is part of a certain Executive Employment Agreement
(the "Employment Agreement") dated April 14, 1989. Nothing herein shall prevent
the Company from terminating the Employment for "cause" in accordance with the
terms thereof, and in which event this Plan shall be terminated and void in all
respects and neither party shall have any further responsibility for satisfying
any obligations that may have otherwise arisen hereunder. However, should the
Executive's employment terminate prior to retirement for any reason, other than
for "cause," resignation, disability or death, the Insurance Policy shall be
transferred by the Company to the Executive within thirty days after such
termination, and the full value of the Insurance Policy and its full cash
surrender value shall become the sole property of the Executive to do with as he
sees fit.
In the event of the Executive's resignation which is not associated
with termination for "cause" or for disability, the Company shall cancel the
Insurance Policy and provide the Executive with the cash surrender value
according to the following schedule:
After five (5) full years' service = 25%
After ten (10) full years' service = 50%
After fifteen (15) full years' service = 75%
After twenty (20) full years' service = 100%
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In the event of permanent disability the Company will continue to
pay the premiums on the full value of the Insurance Policy for twelve months
following the Executives' termination because of such disability in accordance
with Section 4(b) of the Employment Agreement and after twelve months to
transfer the full value of the Insurance Policy to the Executive within thirty
days. The full value of the Insurance Policy and its full cash current value
shall become the sole property of the Executive to do with as he sees fit, and
the Company shall have further responsibility to fulfill any terms of the Plan
or to continue to pay premiums on the Insurance Policy after the transfer of the
Insurance Policy has been completed.
6. For so long as Executive is receiving payments hereunder,
Executive agrees that Sections 5, 6 and 7 of the Employment Agreement shall
remain in full force and effect.
7. Nothing in this Plan shall prevent Executive from receiving, in
addition to any amounts he may be entitled to under the Plan, any amounts which
may be distributable to him at any time under any pension plans, profit sharing
or other incentive compensation or similar plan of the Company now if effect or
which may hereafter be adopted.
8. This Plan shall be binding upon the Executive, his heirs,
executors, administrators and assigns, and on the Company, its successors and
assigns. The rights of Executive hereunder shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge.
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9. This Plan may be altered, changed, amended or terminated only by
writing signed by the party to be bound thereby.
10. This document has been executed in the State of Ohio and shall
be interpreted in accordance with the laws of that State without regard to
conflict of law provisions.
11. This document contains the entire agreement between the parties
with respect to the subject matter hereof, supersedes any all prior discussions
or agreements the parties may have had with respect thereto (including any prior
Supplemental Pension Plan).
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