Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K National Convenience Stores Inc. Form 8-K 9 44K
2: EX-99.1 Class Action Complaint - Crandon Capital Partners 10 32K
11: EX-99.10 Employment Agreement - V.H. Van Horn 28 117K
12: EX-99.11 Employment Agreement - A.J. Gallerano 25 111K
13: EX-99.12 Second Amend. Employmnt Agreemnt-Arnold Van Zanten 25 112K
14: EX-99.13 Employment Agreement - C. R. Wortham 25 110K
15: EX-99.14 Fourth Amend. Employment Agreement-Brian Fontana 25 113K
16: EX-99.15 Employment Agreement - Douglas B. Binford 25 108K
17: EX-99.16 Employment Agreement - Janice E. Bryant 5 28K
18: EX-99.17 Master Agreement for Atm Facilities 42 145K
19: EX-99.18 Order Providing for Closing Chaper 11 Cases 12 44K
20: EX-99.19 Promissory Note Dated 08/31/95 - V.H. Van Horn 3 17K
3: EX-99.2 Complaint - the Circle K Corporation 7 23K
4: EX-99.3 Complaint - the Circle K Corporation 6 22K
5: EX-99.4 Amended and Restated Ncs Officers' Retirement Plan 12 49K
6: EX-99.5 Amended and Restated Trust 15 48K
7: EX-99.6 Amended Directors' Retirement Plan 8 35K
8: EX-99.7 Amended Directors' Retirement Plan 15 48K
9: EX-99.8 Form of Twenty-Second Amendment to Profit Sharing 1 10K
10: EX-99.9 Form of Director Agreement 8 38K
EX-99.6 — Amended Directors’ Retirement Plan
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EXHIBIT 99.6
AMENDED AND RESTATED
NATIONAL CONVENIENCE STORES INCORPORATED
DIRECTORS' RETIREMENT PLAN
ARTICLE I
Definitions
As used herein, the following terms shall have the meanings indicated.
1.01 Board of Directors shall mean the Board of Directors of
National Convenience Stores Incorporated.
1.02 Change in Control of the Company shall mean the occurrence
with respect to the Company of any of the following events:
(i) a report on Schedule 13D is filed with the Securities
and Exchange Commission (the "SEC") pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any person, entity or group (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), other than the Company
(or one of its subsidiaries) or any employee benefit plan sponsored by
the Company (or one of its subsidiaries), is the beneficial owner (as
such term is defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of 20 percent or more of the outstanding
shares of common stock of the Company or the combined voting power of
the then-outstanding securities of the Company;
(ii) a report is filed by the Company disclosing a
response to either Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, or to Item 1 of Form 8-K
promulgated under the Exchange Act, or to any similar reporting
requirement hereafter promulgated by the SEC;
(iii) any person, entity or group (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), other than the Company
(or one of its subsidiaries) or any employee benefit plan sponsored by
the Company (or one of its subsidiaries), shall purchase securities
pursuant to a tender offer or exchange offer to acquire any common
stock of the Company (or securities convertible into common stock) for
cash, securities or any other consideration, provided that after
consummation of the offer, the person, entity or group in question is
the beneficial owner (as such term is defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of 20
percent or more of the combined voting power of the then-outstanding
securities of the Company (as determined under paragraph (d) of Rule
13d-3 promulgated under the Exchange Act, in the case of rights to
acquire common stock);
(iv) the stockholders of the Company shall approve:
(A) any merger, consolidation, or reorganization
of the Company:
(1) in which the Company is not the
continuing or surviving corporation,
(2) pursuant to which shares of common
stock of the Company would be
converted into cash, securities or
other property,
(3) with a corporation which prior to
such merger, consolidation, or
reorganization owned 20 percent or
more of the combined voting power of
the then-outstanding securities of
the Company, or
(4) in which the Company will not
survive as an independent,
publicly-owned corporation;
(B) any sale, lease, exchange or other transfer
(in one transaction or a series of related
transactions) of all or substantially all the
assets of the Company, or
(C) any liquidation or dissolution of the Company;
(v) the stockholders of the Company shall approve a
merger, consolidation, reorganization, recapitalization, exchange
offer, purchase of assets or other transaction after the consummation
of which any person, entity or group (as defined in accordance with
Section 13(d) or 14(d) of the Exchange Act) would own beneficially in
excess of 50% of the outstanding shares of common stock of the Company
or in excess of 50% of the combined voting power of the
then-outstanding securities of the Company;
(vi) the Company's common stock ceases to be listed on the
New York Stock Exchange;
(vii) the existence of a Distribution Date as defined in
the Rights Agreement of the Company dated August 31, 1995; or
(viii) during any period of two consecutive years, the
individuals who at the beginning of such period constituted the Board
of Directors of the Company cease for any reason to constitute a
majority of the Board of Directors of the Company, unless the election
or nomination for election by the Company's stockholders of each new
director during any such two-year period was approved by the vote of
two-thirds of the directors then still in office who were directors at
the beginning of such two-year period.
1.03 Committee shall mean the committee appointed to administer
the Plan.
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1.04 Company shall mean National Convenience Stores Incorporated, a
Delaware corporation doing business under the laws of the State of Texas, or
any successor company thereto, or any of its affiliates or subsidiaries or
their successors.
1.05 Director shall mean any person serving on the Board of
Directors.
1.06 Director Service as of any date shall mean the number of
completed months of service as a non-employee Director and shall include
non-continuous periods of service and service prior to the Plan Restatement
Date.
1.07 Effective Date shall mean March 31, 1994.
1.08 Fee shall mean the then current annual retainer paid to a
Director as compensation for service on the Board of Directors immediately
prior to Retirement, but shall exclude amounts paid for expense reimbursement.
1.09 Guaranteed Period shall have the same meaning as Director
Service.
1.10 Participant shall mean any person eligible, pursuant to
Article II, to participate in the Plan.
1.11 Plan shall mean the National Convenience Stores Incorporated
Directors' Retirement Plan.
1.12 Plan Restatement Date shall mean August 31, 1995.
1.13 Plan Year shall mean the fiscal year of the Company.
1.14 Retirement shall mean the cessation by a Director of service
on the Board of Directors for any reason except death or as provided in Section
3.02 of the Plan.
1.15 Retirement Benefit shall mean 100% of the Fee divided by 12.
1.16 Trust shall mean the trust established pursuant to Section
6.03 of the Plan.
1.17 Any words herein used in the masculine shall be read and
construed in the feminine in all cases where they would so apply. Words in the
singular shall be read and construed as though used in the plural in all cases
where they would so apply.
ARTICLE II
Participation in the Plan
2.01 Participation in the Plan shall be limited to: (i) any person
who, on the Effective Date, is a Director and who is not an employee of the
Company; and, (ii) any person elected to the Board of Directors subsequent to
the Effective Date and who is not an employee of the Company.
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2.02 Participation in the Plan shall commence as of the first day
of the month coincident with or immediately following the date a person is
elected a Director.
ARTICLE III
Retirement Benefit
3.01 A Director shall be entitled to receive, and the Company shall
pay to such Director, the Retirement Benefit commencing on the first day of the
month following Retirement and on the first day of each month thereafter, until
the expiration of the Guaranteed Period or until and including the date of the
death of the Director, whichever occurs first; provided, however, that if a
Director is married at the time of death and dies prior to the expiration of
the Guaranteed Period, 50% of the Retirement Benefit shall be paid to his
spouse on the first day of each month following the date of the Director's
death until the expiration of the Guaranteed Period or the death of the spouse,
whichever occurs first.
3.02 The benefits provided in the Plan shall be forfeited by a
Director if his service on the Board of Directors is terminated as a result of
any act of dishonesty, fraud, theft or embezzlement in connection with such
service as a Director and if the Director is convicted of such crime in a court
of competent jurisdiction.
ARTICLE IV
Payment Upon Director's Death
Upon the death of a Director, the surviving spouse, if any, shall be
entitled to receive a death benefit (i) equal to 50% of the Retirement Benefit
which the Director would have received had Retirement occurred on the date of
death and (ii) paid on the first day of the month next following the date of
death and on the first day of each month thereafter until the expiration of the
Guaranteed Period or the death of the spouse, whichever occurs first.
ARTICLE V
The Committee
5.01 The Board of Directors shall administer the Plan but may
delegate its responsibilities, other than its right to continue or amend the
Plan, to a Committee appointed by it. The Board of Directors may overrule any
decision of the Committee. The Committee, or in the absence of a Committee the
Board of Directors, shall be the Plan Administrator. The Company agrees to
indemnify and to hold harmless each person serving as Plan Administrator from
all liabilities and claims arising from the performance of his duties in
accordance with the terms of the Plan, unless such liability or expense results
from gross negligence or willful act or omission, or an act or omission
performed in bad faith. The Committee shall keep a permanent record of its
meetings and actions.
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5.02 All members of the Committee shall be appointed by and serve
at the pleasure of the Board of Directors. No compensation shall be paid to
members of the Committee.
5.03 Subject to the limitations of the Plan, the Committee may
promulgate and adopt such rules, regulations and procedures for the transaction
of its business which it deems necessary for the proper administration of the
Plan. The Committee shall rely upon the records of the Company, as certified
to it, with respect to factual matters relating to a Participant. In the event
of a factual dispute, the Committee shall resolve such dispute by giving due
weight to the evidence available to it. The Committee shall interpret the Plan
in the administration and application thereof. All such determinations shall
be final, conclusive and binding, except to the extent that they are appealed
under the following procedure. In the event that the claim of any person shall
be denied as to all or any part of any payment or benefit under this Plan, the
Committee shall provide to the claimant (i) the reason or reasons for the
denial; (ii) reference to the Plan provisions on which the denial is based;
(iii) a description of additional material or information necessary for the
person to perfect the claim and an explanation of why such material or
information is necessary; and, (iv) an explanation of the Plan's claims
procedures.
The claimant shall have 60 days after receipt of the above material to
appeal the claim denial by the Committee to the Board of Directors for review.
The claimant may (i) request a review upon written notice to the Board of
Directors; (ii) review pertinent documents; and (iii) submit issues and
comments in writing.
The Board of Directors shall render its decision not later than 60
days after receipt of a request for review by the claimant, unless special
circumstances require an extension of time, in which event a decision shall be
rendered as soon as possible, but in not event later than 120 days after such
receipt. The Board of Directors' decision shall be written and shall include
the reasons for its decision with reference to the Plan provisions on which the
decision is based.
5.04 A Participant shall disqualify himself from voting on any
issue which pertains to his eligibility for any benefit under the Plan or the
amount of payment or any benefit for which he is eligible. Every decision and
action of the Board of Directors shall be binding.
5.05 The Committee may employ such counsel, accountants, actuaries
and agents as it shall deem advisable. The Company shall pay, or cause to be
paid, the compensation and other expenses of such counsel, accountants,
actuaries and agents incurred by the Committee in the administration of the
Plan.
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ARTICLE VI
Funding
6.01 The Company's obligation under the Plan shall be an unsecured
promise to pay.
6.02 The Plan shall not be construed so as to provide a Participant
or surviving spouse any greater rights than those of an unsecured creditor of
the Company. At no time shall a Participant or surviving spouse be deemed to
have any right, title, or interest in or to any specified asset or assets of
the Company.
6.03 To fund the benefits payable pursuant to the Plan, the Company
shall establish an irrevocable trust for the benefit of the Participants but
which shall be subject to the general claims of the Company's creditors. The
Company shall make contributions to the Trust during each Plan Year to fund the
Retirement Benefit on an actuarially sound basis. Immediately prior to a
Change in Control of the Company, the Company shall contribute to the Trust an
amount which, with the existing amounts in the Trust, shall be sufficient to
pay each Participant or surviving spouse all benefits, calculated as of the day
prior to the Change in Control of the Company, which are due to each such
person under the terms and provisions of the Plan. If the assets of the Trust
are insufficient to make any payments required under the Plan, the Company
shall make up such deficit from its assets. Upon termination of the Trust, if
all benefits required to be paid pursuant to the Plan have been paid, any
assets which remain shall be paid to the Company.
ARTICLE VII
Reservation of Rights by the Company
and Limitations on Rights of Participants
7.01 Nothing contained in the Plan shall be deemed to provide a
Participant the right to be retained as a Director or to interfere with the
right of the stockholders of the Company, pursuant to the By-laws, to remove a
Director.
7.02 The benefits provided by the Plan are granted by the Company
as a fringe benefit to the Participants. No Participants in the Plan has any
option to take any current payment in lieu of the benefits provided by the
Plan.
7.03 None of the benefits under the Plan shall be subject to the
claims of creditors of Participants or surviving spouses, and shall not be
subject to attachment, garnishment, or any other legal process. Neither a
Participant nor surviving spouse may assign, sell, or otherwise encumber any
beneficial interest in the Plan, nor shall any such benefits be in any manner
liable for or subject to the deeds, contracts, liabilities, engagements or
torts of any Participant or surviving spouse.
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7.04 The Company shall withhold from any benefit payments due under
the Plan all federal, state or local taxes required to be withheld therefrom as
determined by the Company in its sole, good faith judgment.
ARTICLE VIII
Amendments
The Board of Directors reserves the right to modify or amend, in whole
or in part, any or all of the provisions of the Plan, including the right to
make any such modifications or amendments effective retroactively, at any time
and from time-to-time, without the consent of Participants or surviving spouses
or any person or persons claiming through them; provided, however, that no
modification or amendment shall be made which would have the effect, in any
way, of diminishing, limiting, modifying or restricting any right or benefit,
which had accrued through the effective date of such modification or amendment,
to a Participant or surviving spouse.
ARTICLE IX
Discontinuation
The Board of Directors reserves the right to discontinue the Plan at
any time, without the consent of Participants or surviving spouses or any
person or persons claiming through them; provided, however, that
discontinuation of the Plan shall not have the effect, in any way, of
diminishing, limiting, modifying or restricting any right or benefit, which had
accrued through the effective date of such discontinuation, to a Participant or
a surviving spouse.
ARTICLE X
Miscellaneous
10.01 The provisions of the Plan shall bind and inure to the benefit
of the Company and its successors and assigns. The term successors as used
herein shall include any corporate or business entity which shall, whether by
merger, consolidation, purchase or otherwise acquire all or substantially all
of the business or assets of the Company and successors of any such corporation
or other business entity.
10.02 Any headings or subheadings in the Plan are inserted for
convenience of reference only and are to be ignored in the construction of any
provision hereof.
10.03 This Plan shall be construed in accordance with the laws of
the State of Texas.
10.04 In case any provision of the Plan shall be held illegal or
invalid for any reason, such illegality or invalidity shall not affect the
remaining provisions of the Plan, and the Plan shall be construed and enforced
as if such illegal and invalid provisions had never been inserted herein.
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10.05 Any notice or filing required or permitted to be given to the
Company under the Plan shall be sufficient if in writing and hand delivered, or
sent by registered or certified mail, to the Secretary of the Company at 100
Waugh Drive, Houston, Texas 77007. Such notice shall be deemed given as of the
date of delivery or, if delivery is made by mail, as of the date shown on the
receipt for registration or certification.
IN WITNESS WHEREOF, National Convenience Stores Incorporated has caused
this Amended and Restated National Convenience Stores Incorporated Directors'
Retirement Plan to be executed in its name and on its behalf by its proper
officers thereto authorized on this 14th day of September, 1995, effective as
of the 31st day of August, 1995.
NATIONAL CONVENIENCE STORES
INCORPORATED
/s/ A. J. GALLERANO
By:_____________________________________
A. J. Gallerano
Senior Vice President,
General Counsel and Secretary
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Dates Referenced Herein and Documents Incorporated by Reference
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