SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the Fiscal Quarter Ended OctoberJanuary 31, 19961997
Commission File Number 0-12788
CASEY'S GENERAL STORES, INC.
(Exact name of registrant as specified in its charter)
IOWA 42-0935283
State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE CONVENIENCE BOULEVARD, ANKENY, IOWA
(Address of principal executive offices)
50021
(Zip Code)
(515) 965-6100
(Registrant's telephone number, including area code)
NONE
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO _____
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock, No Par Value 26,225,20626,231,206 shares
(Class) (Outstanding at December 9, 1996)March 7, 1997)
CASEY'S GENERAL STORES, INC.
INDEX
Page
PART I - FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements.
Consolidated condensed balance sheets -
OctoberJanuary 31, 19961997 and April 30, 1996 3
Consolidated condensed statements
of income - three and sixnine months ended
OctoberJanuary 31, 19961997 and 19951996 5
Consolidated condensed statements of
cash flows - sixnine months ended
OctoberJanuary 31, 19961997 and 19951996 6
Notes to consolidated condensed
financial statements 7
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations. 8
PART II - OTHER INFORMATION
Item 1. Legal Proceedings. 13
Item 4. Submission of Matters to a Vote of
Security Holders. 145. Other Information 13
Item 6. Exhibits and Reports on Form 8-K. 14
SIGNATURE 16
- 2 -17
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
CASEY'S GENERAL STORES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(Unaudited)
OctoberJanuary 31, April 30,
19961997 1996
ASSETS
Current assets:
Cash and cash equivalents ............ $ 5,306,3495,309,023 12,673,855
Short-term investments ............... 15,478,1895,403,330 13,953,926
Receivables .......................... 3,535,5392,771,290 2,679,967
Inventories .......................... 36,707,34238,594,734 32,437,323
Prepaid expenses ..................... 5,386,2455,323,137 8,266,308
------------ -----------
Total current assets ........ 66,413,66457,401,514 70,011,379
------------ -----------
Long-term investments ......................... 4,314,9924,061,865 5,153,169
Other assets .................................. 1,301,6581,319,349 1,356,643
Property and equipment, net of
accumulated depreciation
OctoberJanuary 31, 1996, $145,066,1641997, $151,380,899
April 30, 1996, $132,609,514 ................ 353,768,900361,055,950 328,313,767
------------ -----------
$425,799,214$423,838,678 404,834,958
============ ===========
See notes to consolidated condensed financial statements.
- 3 -
CASEY'S GENERAL STORES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(Unaudited)
(Continued)
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable ...................... $ 19,975,00020,500,000 21,025,000
Current maturities of
long-term debt ................... 8,611,6508,576,309 8,679,217
Accounts payable ................... 39,169,22831,650,965 36,190,236
Accrued expenses ................... 17,489,44317,140,039 17,032,275
Income taxes payable ............... 2,154,0002,713,647 ---
------------ -----------
Total current liabilities ........ 87,399,32180,580,960 82,926,728
------------ -----------
Long-term debt, net of
current maturities ........................ 77,036,66074,911,816 81,249,264
------------ -----------
Deferred income taxes ....................... 36,791,00038,791,000 32,791,000
------------ -----------
Deferred compensation ....................... 1,897,0181,998,883 1,693,288
------------ -----------
Shareholders' equity
Preferred stock, no par value ............. --- ---
Common Stock, no par value ................ 63,592,717 63,556,842
Retained earnings ......................... 159,082,498163,963,302 142,617,836
------------ -----------
Total shareholders' equity .................. 222,675,215227,556,019 206,174,678
------------ -----------
$425,799,214$423,838,678 404,834,958
============ ===========
See notes to consolidated condensed financial statements.
- 4 -
CASEY'S GENERAL STORES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(Unaudited)
Three Months Ended SixNine Months Ended
OctoberJanuary 31, OctoberJanuary 31,
1997 1996 19951997 1996 1995
Net sales ............. $286,291,027 243,235,120 573,198,976 496,231,874$272,069,769 221,607,765 845,268,745 717,839,639
Franchise revenue ..... 1,379,406 1,400,148 2,836,808 2,854,7551,200,071 1,262,368 4,036,879 4,117,123
------------ ----------- ----------- -----------
287,670,433 244,635,268 576,035,784 499,086,629273,269,840 222,870,133 849,305,624 721,956,762
------------ ----------- ----------- -----------
Cost of goods sold .... 226,565,820 187,822,781 455,370,742 387,355,727218,436,327 170,203,976 673,807,069 557,559,703
Operating expenses .... 38,825,230 35,443,127 76,246,543 70,241,12037,686,020 33,913,000 113,932,563 104,154,120
Depreciation and
amortization ........ 6,633,423 6,115,652 13,008,293 11,967,9376,865,161 6,296,382 19,873,454 18,264,319
Interest, net ......... 1,340,825 1,113,578 2,854,369 2,671,2351,494,897 1,457,309 4,349,266 4,128,544
------------ ----------- ----------- -----------
273,365,298 230,495,138 547,479,947 472,236,019264,482,405 211,870,667 811,962,352 684,106,686
------------ ----------- ----------- -----------
Income before
income taxes ........ 14,305,135 14,140,130 28,555,837 26,850,6108,787,435 10,999,466 37,343,272 37,850,076
Federal and state
income taxes ........ 5,400,000 5,338,000 10,780,000 10,136,0003,251,000 4,152,000 14,031,000 14,288,000
------------ ----------- ----------- -----------
Net income ................... $ 8,905,135 8,802,130 17,775,837 16,714,6105,536,435 6,847,466 23,312,272 23,562,076
============ =========== =========== ===========
Earnings per common
and common
equivalent share .... $ .34 .34 .68 .64.21 .26 .89 .90
============ =========== =========== ===========
Weighted average number
of common and common
equivalent shares
outstanding ......... 26,284,041 26,241,608 26,289,058 26,209,61726,283,035 26,250,220 26,287,161 26,224,481
============ =========== =========== ===========
See notes to consolidated condensed financial statements.
- 5 -
CASEY'S GENERAL STORES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
SixNine Months Ended
OctoberJanuary 31,
1997 1996 1995
----------- -------
Cash flows from operations:
Net income ................................ $ 17,775,837 16,714,61023,312,272 23,562,076
Adjustments to reconcile
net income to net cash
provided by operations:
Depreciation and amortization ......... 13,008,293 11,967,93719,873,454 18,264,319
Deferred income taxes ................. 4,000,000 1,000,0006,000,000 1,500,000
Changes in assets and liabilities:
Receivables ......................... (855,572) 530,895(91,323) 499,727
Inventories ......................... (4,270,019) (2,973,055)(6,157,411) (2,525,272)
Prepaid expenses .................... 2,880,063 (389,328)2,943,171 (272,287)
Accounts payable .................... 2,978,992 (1,261,121)(4,539,271) (11,492,596)
Accrued expenses .................... 457,168 609,396107,764 (101,342)
Income taxes payable ............ 2,154,000 579,000................ 2,713,647 1,524,729
Other, net ............................ 401,062 52,602983,773 129,371
------------ -----------
Net cash provided by operations ............. 38,529,824 26,830,93645,146,076 31,088,725
------------ -----------
Cash flows from investing:
Purchase of property and equipment ........ (38,669,389) (36,527,736)(53,114,828) (48,241,164)
Purchase of investments ................... (7,514,604) (3,346,400)(9,689,830) (10,253,779)
Sale of investments ....................... 6,892,134 3,447,13419,190,037 4,983,784
------------ -----------
Net cash used in investing activities ....... (39,291,859) (36,427,002)(43,614,621) (53,511,159)
------------ -----------
Cash flows from financing:
Proceeds from long-term debt .............. --- 30,000,000
Payments of long-term debt ................ (4,280,171) (4,239,199)(6,440,356) (6,348,319)
Net activity of short-term debt ........... (1,050,000) 15,050,000(525,000) 2,600,000
Proceeds from exercise of stock
options ................................. 35,875 1,307,7811,352,550
Payment of cash dividends ................. (1,311,175) (1,172,105)(1,966,806) (1,825,129)
------------ -----------
Net cash (used in) provided by
financing activities ...................... (6,605,471) 10,946,477(8,896,287) 25,779,102
------------ -----------
Net (decrease) increase in cash
and cash equivalents ............................... (7,367,506) 1,350,411...................... (7,364,832) 3,356,668
Cash and cash equivalents at
beginning of the year ..................... 12,673,855 5,477,784
------------ -----------
Cash and cash equivalents at
end of the quarter ........................ $ 5,306,349 6,828,1955,309,023 8,834,452
============ ===========
See notes to consolidated condensed financial statements.
- 6 -
CASEY'S GENERAL STORES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. The accompanying consolidated condensed financial statements
(unaudited) include the accounts and transactions of the Company and
its two wholly-owned subsidiaries, Casey's Marketing Company and
Casey's Services Company. All material inter-company balances and
transactions have been eliminated in consolidation.
2. The accompanying consolidated condensed financial
statements (unaudited) have been prepared by the
Company pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain
information and footnote disclosures normally included
in financial statements prepared in accordance with
generally accepted accounting principles have been
condensed or omitted pursuant to such rules and
regulations. Although management believes that the
disclosures are adequate to make the information
presented not misleading, it is suggested that these
interim consolidated condensed financial statements
(unaudited) be read in conjunction with the Company's
most recent audited financial statements and notes
thereto. In the opinion of management, the
accompanying consolidated condensed financial
statements (unaudited) contain all adjustments
(consisting of only normal recurring accruals)
necessary to present fairly the financial position as
of OctoberJanuary 31, 1996,1997, and the results of operations for
the sixthree and threenine months ended OctoberJanuary 31, 19961997 and
1995,1996, and changes in cash flows for the sixnine months
ended OctoberJanuary 31, 19961997 and 1995.1996.
3. Sales generallyThe Company's financial condition and results of
operations are
strongest during the Company's first quarter (May-July) and weakest during
its fourth quarter (February-April). In the warmer months customers tend to
purchase greater quantities of gasoline and certain convenience items, such
as beer, soft drinks and ice. Difficult weather conditions in any quarter,
however, may affect sales of Company stores in specific regions and have an
adverse impact on net income for that period.
- 7 -
4. Retail gasoline profit margins have a substantial impact on the Company's
net income. Profit margins on gasoline sales can be adversely affected by a variety of factors beyond the controland
business influences, certain of the Company, including over-supplywhich are described in
the retail gasoline market, uncertainty or volatilityCautionary Statement Relating to Forward-Looking
Statements filed as Exhibit 99 to this Quarterly Report
on Form 10-Q. These interim consolidated condensed
financial statements (unaudited) should be read in
the wholesale gasoline
market (such asconjunction with that experienced in fiscal 1991 as a result of the Persian
Gulf crisis) and price competition from other gasoline marketers. Any
substantial decrease in profit margins on retail gasoline sales or the
number of gallons sold could have a material adverse effect on the
Company's earnings. 5. Recent congressional action to increase the federal
minimum wage may have a significant impact on the Company's operating
results, particularly in the near term, to the extent the forthcoming
increases in labor expenses cannot be passed along to customers through
price increases. Although the Company has in the past been able to, and
will continue to attempt to, pass along increases and operating costs
through price increases, there can be no assurance that all of the expected
increases in labor costs can be reflected in prices, or that price
increases will be absorbed by customers without diminishing customer
spending in Company stores.Cautionary Statement.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
Financial Condition and Results of Operations
Casey's derives its revenue from the retail sale of food (including
freshly prepared foods such as pizza, donuts and sandwiches), beverages and
non-food products such as health and beauty aids, tobacco products, automotive
products and gasoline by Company stores and from the wholesale sale of certain
grocery and general merchandise items and gasoline to franchised stores. The
Company also generates revenues from continuing monthly royalties based on sales
by franchised stores, sign and facade rental fees and the provision of certain
maintenance, transportation and construction services to the Company's
franchisees. A typical store is generally not profitable for its first year of
operation due to start-up costs and will usually attain representative levels of
sales and profits during its third year of operation.
- 8 -
Due to the nature of the Company's business, most sales are for cash,
and cash provided by operations is the Company's primary source of liquidity.
The Company finances its inventory purchases primarily from normal trade credit
aided by the relatively rapid turnover of inventory. This turnover allows the
Company to conduct its operations without large amounts of cash and working
capital. As of OctoberJanuary 31, 1996,1997, the Company's ratio of current assets to
current liabilities was .76.71 to 1. The ratio at OctoberJanuary 31, 19951996 and April 30,
1996, was .54.82 to 1 and .84 to 1, respectively. Management believes that the
Company's current $27,000,000 bank lines of credit (aggregate amount), together
with cash flow from operations, will be sufficient to satisfy the working
capital needs of its business.
Net cash provided by operations increased $11,698,888 (43.6%$14,057,351 (45.2%) in the
sixnine months ended OctoberJanuary 31, 19961997 from the comparable period in the prior year,
primarily as a result of a decrease in prepaid expenses and an increase in accounts payabledeferred income taxes and income taxesa smaller
decrease in accounts payable. Cash flows from investing and financing in the
sixnine months ended OctoberJanuary 31, 19961997 decreased, primarily as a result of increased
capital expenditures and a reduction of short-term debt.the proceeds from long-term debt received in the
comparable period in the prior year. Cash flows in the future are also expected
to decrease as a result of the anticipated growth in capital expenditures.
Capital expenditures represent the single largest use of Company funds.
Management believes that by reinvesting in Company stores, the Company will be
better able to respond to competitive challenges and increase operating
efficiencies. During the first sixnine months of fiscal 1997, the Company expended
$38,669,389$53,114,828 for property and equipment, primarily for the construction and
remodeling of Company stores, compared to $36,527,736$48,241,164 for the comparable period
in the prior year. The Company anticipates expending approximately $65,000,000
in fiscal 1997 for construction, acquisition and remodeling of Company stores,
primarily from funds generated by operations, existing cash and short-term
investments and proceeds of the 7.70% Senior Notes due December 15, 2004 (the
"7.70% Notes") and the 7.38% Senior Notes due December 28, 2020 (the 7.38%"7.38%
Notes").
As of OctoberJanuary 31, 1996,1997, the Company had long-term debt of $77,036,660,$74,911,816,
consisting of $21,750,000$21,000,000 in principal amount of 7.70% Notes, $30,000,000 in
principal amount of 7.38% Notes, $12,648,943$12,326,254 of mortgage notes payable,
$6,781,250$6,000,000 of unsecured notes payable and $5,856,467$5,585,562 of capital lease
obligations.
- 9 -
Interest on the 7.70% Notes is payable on the 15th day of each month at
the rate of 7.70% per annum. Principal of the 7.70% Notes matures in forty
quarterly installments beginning March 15, 1995. The Company may prepay the
7.70% Notes in whole or in part at any time in an amount of not less than
$1,000,000 or integral multiples of $100,000 in excess thereof at a redemption
price calculated in accordance with the Note Agreement dated as of February 1,
1993 between the Company and the purchasers of the 7.70% Notes.
Interest on the 7.38% Notes is payable semi-annually on the
28thtwenty-eighth day of June and December in each year, commencing June 28, 1996,
and at maturity, at the rate of 7.38% per annum. The 7.38% Notes mature on
December 28, 2020, with prepayments of principal commencing December 28, 2010
and ending June 28, 2020, inclusive, with the remaining principal payable at
maturity on December 28, 2020. The Company may prepay the 7.38% Notes in whole
or in part at any time in an amount of not less than $1,000,000 or in integral
multiples of $100,000 in excess thereof at a redemption price calculated in
accordance with the Note Agreement dated as of December 1, 1995 between the
Company and Principal Mutual Life Insurance Company, as the purchaser of the
7.38% Notes.
To date, the Company has funded capital expenditures primarily from the
proceeds of the sale of Common Stock, issuance of the 6-1/4% Convertible
Subordinated Debentures (which were converted into 3,683,064 shares of Common
Stock on March 28, 1994), the 7.70% Notes and the 7.38% Notes, a mortgage note,
unsecured notes payable and through funds generated from operations. Future
capital needs required to finance operations, improvements and the anticipated
growth in the number of Company stores are expected to be met from cash
generated by operations, existing cash, short-term and long-term investments and
additional long-term debt or other securities as circumstances may dictate, and
are not expected to adversely affect liquidity.
The United States Environmental Protection Agency and several states,
including Iowa, have established requirements for owners and operators of
underground gasoline storage tanks (USTs) with regard to (i) maintenance of leak
detection, corrosion protection and overfill/spill protection systems; (ii)
upgrade of existing tanks; (iii) actions required in the event of a detected
leak; (iv) prevention of leakage through tank closings; and (v) required
gasoline inventory recordkeeping. Since 1984, new Company stores have been
equipped with non-corroding fiberglass USTs, including many with double-wall
construction, over-fill protection and electronic tank monitoring, and the
Company has an active - 10 -
inspection and renovation program with respect to its
older USTs. The Company currently has 1,7671,803 USTs, of which 1,4011,441 are fiberglass
and 366362 are steel. Management believes that its existing gasoline procedures and
planned capital expenditures will continue to keep the Company in substantial
compliance with all current federal and state UST regulations.
Several of the states in which the Company does business have trust
fund programs with provisions for sharing or reimbursing corrective action or
remediation costs incurred by UST owners, including the Company. These programs,
other than the State of Iowa, generally are in the early stages of operation and
the extent of available coverage or reimbursement under such programs for costs
incurred by the Company is not fully known at this time. In each of the years
ended April 30, 1996 and 1995, the Company spent approximately $718,000 and
$2,137,000, respectively, for assessments and remediation. During the sixnine
months ended OctoberJanuary 31, 1996,1997, the Company expended approximately $351,000$502,000 for
such purposes. Substantially all of these expenditures have been submitted for
reimbursement from state-sponsored trust fund programs and as of OctoberJanuary 31,
1996,1997, approximately $4,000,000 has been received from such programs. Such
amounts are typically subject to statutory provisions requiring repayment of the
reimbursed funds for noncompliancenon-compliance with upgrade provisions or other applicable
laws. The Company has accrued a liability at OctoberJanuary 31, 19961997 of approximately
$2,600,000 for estimated expenses related to anticipated corrective actions or
remediation efforts, including relevant legal and consulting costs. Management
believes the Company has no material joint and several environmental liability
with other parties.
Management of the Company currently estimates that aggregate capital
expenditures for electronic monitoring, cathodic protection and overfill/spill
protection will approximate $1,000,000 in fiscal 19961997 through December 23, 1998,
in order to comply with the existing UST regulations. Additional regulations, or
amendments to the existing UST regulations, could result in future revisions to
such estimated expenditures. Such expenditures are expected to be funded as
described above, and are not expected to adversely affect liquidity.
Three Months Ended OctoberJanuary 31, 19961997 Compared to Three
Months Ended OctoberJanuary 31, 19951996
Net sales for the secondthird quarter of fiscal 1997 increased by $43,055,907 (17.7%$50,462,004
(22.8%) over the comparable period
- 11 -
in fiscal 1996. Retail gasoline sales
increased by $30,472,955 (23.1%$39,972,228 (32.1%) as the number of gallons sold increased by
13,247,104 (10.6%13,742,001 (11.3%) while the average retail price per gallon increased 11.3%18.6%.
During this same period, retail sales of grocery and general merchandise
increased by $10,998,178 (12.0%$9,759,557 (12.4%) due to the addition of 6874 new Company Stores and
a greater number of stores in operation for at least three years.
Cost of goods sold as a percentage of net sales was 79.1%80.29% for the
secondthird quarter of fiscal 1997, compared to 77.2%76.80% for the comparable period in
the prior year. The gross profit margins on retail gasoline sales decreased
(8.2%(8.5%) during the secondthird quarter of fiscal 1997 from the secondthird quarter of the
prior year (11.5%(12.6%) due to the increase in wholesale gasoline costs during the
quarter.period. The gross profit margin per gallon also decreased (to $.0958)$.1031) in the
secondthird quarter of fiscal 1997 from the comparable period in the prior year
($.1211).1294). These factors were partiallyslightly offset by an increase in gross profits on
retail sales of grocery and general merchandise (to 42.2%42.0%) from the comparable
period in the prior year (41.4%(41.9%).
Operating expenses as a percentage of net sales were 13.6%13.9% for the
secondthird quarter of fiscal 1997 compared to 14.6%15.3% for the comparable period in the
prior year. The decrease in operating expenses as a percentage of net sales was
caused primarily by an increase in the number of gasoline gallons sold, an
increase in the average retail price per gallon of gasoline sold (11.3%).and an increase
in retail sales of grocery and general merchandise.
Net income increaseddecreased by $103,005 (1.2%$1,311,031 (19.1%). The slight increasedecrease in net income
was attributable primarily to the increasedecrease in gross profit margins on retail
sales of grocery and
general merchandise, angasoline due to the increase in wholesale gasoline costs during the
number of gallons of gasoline sold and
an increased number of stores in operation for at least three years.
Sixperiod.
Nine Months Ended OctoberJanuary 31, 19961997 Compared to SixNine
Months Ended OctoberJanuary 31, 19951996
Net sales for the first sixnine months of fiscal 1997 increased by
$76,967,102 (15.5%$127,429,106 (17.8%) over the comparable period in fiscal 1996. Retail gasoline
sales increased by $52,693,005 (19.4%$92,665,233 (23.4%) as the number of gallons sold increased
by 24,413,692 (9.8%38,155,693 (10.3%) and the average retail price per gallon increased 8.8%11.9%.
During this same period, retail sales of grocery and general merchandise
increased by $21,663,147 (11.7%$31,422,704 (11.9%) due to the addition of 6874 new Company stores
and a greater number of stores in operation for at least three years.
- 12 -
Cost of goods sold as a percentage of net sales was 79.4%79.7% for the first
sixnine months of fiscal 1997 compared to 78.1%77.7% for the comparable period in the
prior year. This result occurred because the gross profit margins on retail
gasoline sales decreased (8.6%) during the first sixnine months of fiscal 1997 from
the comparable period in the prior year (10.8%(11.4%) due to the increase in wholesale
gasoline costs during the period. The gross profit margin per gallon also
decreased in the first sixnine months of fiscal 1997 (to $.1017)$.1022) from the
comparable period in the prior year ($.1174).1213). However, these factors were
slightly offset by an increase in gross profits on retail sales of grocery and
general merchandise increased (to 40.5%41.0%), from the comparable period in the prior year
(40.1%(40.7%).
Operating expenses as a percentage of net sales were 13.3%13.5% for the
first sixnine months of fiscal 1997 compared to 14.2% during14.5% for the comparable period in
the prior year. The decrease in operating expenses as a percentage of net sales
was caused primarily by an increase in the number of gasoline gallons sold, an
increase in the average retail price per gallon of gasolilnegasoline sold (8.8%).and an increase
in retail sales of grocery and general merchandise.
Net income increaseddecreased by $1,061,227 (6.3%$249,804 (1.1%). The increasedecrease in net income was
attributable primarily to the increasedecrease in gross profit margins on retail sales
of grocery and
general merchandise, angasoline due to the increase in wholesale gasoline costs during the numberperiod.
Cautionary Statement
The foregoing Management's Discussion and Analysis of
gallonsFinancial Condition and Results of gasoline sold,Operations contains
various "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933, as amended, and an increased numberSection 21E of storesthe Securities Exchange
Act of 1934, as amended. Forward-looking statements represent the Company's
expectations or beliefs concerning future events, including (i) any statements
regarding future sales and gross profit percentages, (ii) any statements
regarding the continuation of historical trends and (iii) any statements
regarding the sufficiency of the Company's cash balances and cash generated from
operations and financing activities for the Company's future liquidity and
capital resource needs. The Company cautions that these statements are further
qualified by important factors that could cause actual results to differ
materially from those in operation at least three years.the forward-looking statements, including, without
limitations, the factors described in the Cautionary Statement Relating to
Forward-Looking Statements included as Exhibit 99 to this Form 10-Q.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
The Company from time to time is a party to legal proceedings arising
from the conduct of its business operations, including proceedings relating to
personal injury and employment claims, environmental remediation activities or
contamination-related claims, disputes under franchise agreements and claims by
state and federal regulatory authorities relating to the sale of products
pursuant to state or federal licenses or permits. Management does not believe
that the potential liability of the Company with respect to such proceedings
pending as of the date of this Form 10-Q is material in the aggregate.
- 13 -
Item 4. Submission of Matters to a Vote of Security Holders.
At5. Other Information.
In connection with the Annual Meeting of shareholders held on September 20, 1996, eight
directors were elected for a term of one year. Each"safe harbor" provisions of the nominees so elected
previously has servedPrivate
Securities Litigation Reform Act of 1995, the Company is filing a cautionary
statement with this Form 10-Q (included as a directorExhibit 99 hereto) identifying
important factors that could cause the Company's actual results to differ
materially from those projected in any forward-looking statements made by or on
behalf of the Company.
The votes cast or withheld for each nominee were as follows:
For Withheld
Donald F. Lamberti ........................ 23,612,452 610,691
Ronald M. Lamb ............................ 23,605,204 617,939
Douglas K. Shull .......................... 23,610,602 612,541
John G. Harmon ............................ 23,608,082 615,061
John R. Fitzgibbon ........................ 23,956,731 266,412
Patricia Clare Sullivan ................... 23,737,016 486,127
Kenneth H. Haynie ......................... 23,224,160 998,983
John P. Taylor ............................ 23,971,270 251,873
With respectOn December 9, 1996, the Board of Directors of the Company approved of
amendments to the other proposal voted upon atexisting Employment Agreements with the Annual Meeting,
votes were castfour executive
officers (Messrs. Lamberti, Lamb, Shull and Harmon). The amendments extended the
terms of the agreements with Messrs. Shull and Harmon (to August 1, 2001, in
each case) and added provisions to each agreement relating to the provision of
health insurance coverage and the payment of retirement benefits to the
officer and his spouse. The amendments became effective as follows:
Proposal 2 - Amendment of RestatedDecember 9, 1996.
Copies of the amendments are being filed as Exhibits 10.21(a), 10.22(a),
10.23(a) and Amended Articles10.24(a) to this Form 10-Q.
On March 3, 1997, the Board of Incorporation to IncreaseDirectors of the Number of Authorized Shares of
Common Stock:
For Against Abstain
18,245,515 5,817,787 159,841
Proposal 2 received the affirmative voteCompany approved of a
majorityRestatement of the outstanding sharesAmended and Restated Bylaws adopted in September 1989. As so
restated, the Amended and Restated Bylaws include several prior amendments made
in previous years, reflect a number of Common Stocknew editorial changes and was therefore approved.include several
new provisions. A copy of the Amended and Restated Bylaws, as so restated, is
being filed as Exhibit 3.2(a) to this Form 10-Q.
At the same meeting, the Board of Directors approved of a form of
"change of control" Employment Agreement (the "Agreement") to be entered into
between the Company and twelve of its key employees. The Agreement requires the
Company to employ the individual for a period of two years (or three years, in
the case of the Company's four Vice Presidents) following a "change of control"
of the Company (as defined therein), and provides for the payment of benefits to
the individual if his employment is terminated during the stated period. A copy
of the Agreement is being filed as Exhibit 10.29 to this Form 10-Q.
Item 6. Exhibits and Reports on Form 8-K.
(a) The following exhibits are filed with this Report
or, if so indicated, incorporated by reference:
Exhibit
No. Description
3.1(a) Restatement of the Restated and Amended
Articles of Incorporation of Casey's
General Stores, Inc. - 14 -
(g)
3.2(a) Restatement of Amended and Restated Bylaws
4.2 Rights Agreement dated as of June 14, 1989
between Casey's General Stores, Inc. and
United Missouri Bank of Kansas City, N.A.,
as Rights Agent(a) and amendments thereto
(b),(c),(d)
4.3 Note Agreement dated as of February 1,
1993 between Casey's General Stores, Inc.
and Principal Mutual Life Insurance
Company and Nippon Life Insurance Company
of America (e) and First Amendment thereto (f)
4.4 Note Agreement dated as of December 1,
1995 between Casey's General Stores, Inc.
and Principal Mutual Life Insurance Company (f)
10.21(a) First Amendment to Employment Agreement
with Mr. Lamberti
10.22(a) First Amendment to Employment Agreement
with Mr. Lamb
10.23(a) First Amendment to Employment Agreement
with Mr. Shull
10.24(a) First Amendment to Employment Agreement
with Mr. Harmon
10.29 Form of "change of control" Employment
Agreement
11 Statement regarding computation of per
share earnings
27 Financial Data Schedule
99 Cautionary Statement Relating to Forward-
Looking Statements
- --------------------
(a) Incorporated by reference from the Registration
Statement on Form 8-A (0-12788) filed June 19, 1989
relating to Common Share Purchase Rights.
(b) Incorporated by reference from the Form 8 (Amendment
No. 1 to the Registration Statement on Form 8-A filed
June 19, 1989) filed September 10, 1990.
(c) Incorporated by reference from the Form 8-A/A
(Amendment No. 3 to the Registration Statement on Form
8-A filed June 19, 1989) filed March 30, 1994.
(d) Incorporated by reference from the Form 8-A12G/A
(Amendment No. 2 to the Registration Statement on Form
8-A filed June 19, 1989) filed July 29, 1994.
(e) Incorporated by reference from the Current Report on
Form 8-K filed February 18, 1993.
- 15 -
(f) Incorporated by reference from the Current Report on
Form 8-K filed January 11, 1996.
(g) Incorporated by reference from the Quarterly Report on
Form 10-Q for the fiscal quarter ended October 31,
1996, filed December 13, 1996.
(b) There were no reports on Form 8-K filed during the quarter for
which this Report is filed.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CASEY'S GENERAL STORES, INC.
Date: December 12, 1996March 13, 1997 By: /s/ Douglas K. Shull
--------------------
Douglas K. Shull,
Treasurer (Authorized
Officer and Principal
Financial Officer)
- 16 -
EXHIBIT INDEX
Exhibit No. Description 3.1(a)Page
3.2(a) Restatement of theAmended
and Restated and Amended
ArticlesBylaws
10.21(a) First Amendment to Employment
Agreement with Mr. Lamberti
10.22(a) First Amendment to Employment
Agreement with Mr. Lamb
10.23(a) First Amendment to Employment
Agreement with Mr. Shull
10.24(a) First Amendment to Employment
Agreement with Mr. Harmon
10.29 Form of Incorporation"change of Casey's
General Stores, Inc.control"
Employment Agreement
11 Statement regarding
computation of
per share earnings
27 Financial Data Schedule
- 17 -99 Cautionary Statement Relating
to Forward-Looking Statements
EXHIBIT 3.1(a)
RESTATEMENT
OF THEExhibit 3.2(a)
AMENDED AND RESTATED
AND AMENDED
ARTICLES OF INCORPORATIONBY-LAWS
OF
CASEY'S GENERAL STORES, INC.
ARTICLE I
OFFICES
The principal office of Casey's General Stores, Inc., a corporation duly organized and existing
under (the
"Corporation") in the State of Iowa shall be located in the County of Polk,
State of Iowa. The Corporation may have such other offices, either within or
without the State of Iowa, as the Board of Directors of the Corporation (the
"Board") may designate or as the business of the Corporation may require from
time to time.
The registered office of the Corporation required by the Iowa Business
Corporation Act Chapter 490, Code(the "Act") to be maintained in the State of Iowa 1995,may be, but
need not be, identical with the principal office in the State of Iowa, and the
address of the registered office may be changed from time to time by the Board
in accordance with the Act.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall
be held on the third Friday in September in each year at the hour of 10:00 A.M.
or on such other date or at such other time as amended, does hereby restate itsa majority of the Board may
establish for the purpose of electing directors and for the transaction of such
other business as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday, and a different day is not designated by the
Board, such meeting shall be held on the next succeeding business day. If the
election of directors shall not be held on the day designated herein for any
annual meeting of the shareholders, or any adjournment thereof, the Board shall
cause the election to be held at a meeting of the shareholders as soon
thereafter as conveniently may be. Any previously scheduled annual meeting of
the shareholders may be postponed by action of the Board taken prior to the time
previously scheduled for such annual meeting of shareholders.
Section 2. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the Restated and Amended Articles of Incorporation,
as amended, of the Corporation (the "Restated Articles"), may be called by the
Chief Executive Officer, Chief Operating Officer or the President, and shall be
called by the Chief Executive Officer, Chief Operating Officer or the President
at the request in writing of a majority of the Board, or at the request in
writing of the holders of not less than one-tenth in amount of all the issued
and outstanding shares of the entire capital stock of the Corporation entitled
to vote at the meeting. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting of the shareholders
shall be limited to the purpose stated in the notice.
Section 3. Place of Meeting. The Board may designate any place, either
within or without the State of Iowa, as the place of meeting for any annual
meeting or for any special meeting called by the Board. A waiver of notice
signed by all shareholders entitled to vote at a meeting may designate any
place, either within or without the State of Iowa, as the place for the holding
of such meeting. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the registered office of the Corporation
in the State of Iowa.
Section 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of the shareholders, whether annual or special,
shall be given, either by personal delivery or by mail, not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each shareholder
of record entitled to notice of the meeting. If mailed, such notice shall be
deemed given when deposited in the United States mail, postage pre-paid,
directed to the shareholder at such shareholder's address as it appears on the
records of the Corporation. Each such notice shall state the place, date and
time of the meeting, and the purpose or purposes for which the meeting is
called. Notice of any meeting of shareholders shall not be required to be given
to any shareholder who shall attend such meeting in person or by proxy without
protesting, prior to or at the commencement of the meeting, the lack of proper
notice to such shareholder, or who shall sign a written waiver of notice
thereof, whether before or after such meeting. Notice of adjournment of a
meeting of shareholders need not be given if the new date, time and place to
which the meeting is adjourned are announced at such meeting before adjournment.
If a new record date for the adjourned meeting is or must be fixed under Section
5 of Article VI of these By-laws or the Act, however, notice of the adjourned
meeting shall be given under this Section to persons who are
shareholders as of the new record date.
Section 5. Voting Lists. The officers or agent having charge of the
transfer books for shares of the Corporation shall make, for each meeting of
shareholders, a complete list of the shareholders entitled to vote at such
meeting, or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each. Beginning two (2) business
days after notice of the meeting is given for which the list was prepared and
continuing through the meeting, the shareholders' list shall be kept on file at
the registered office of the Corporation and shall be subject to inspection and
copying, under the terms set forth in the Act and at the person's expense, by
any shareholder, or a shareholder's agent or attorney, during regular business
hours. The original share ledger or transfer book, or a duplicate thereof, shall
be prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of shareholders.
Section 6. Quorum. Except as otherwise provided by
law or by the Restated Articles, the holders of a majority
of the votes entitled to be cast by the shareholders entitled to vote generally,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business at all meetings of the shareholders. If a quorum is
present, the affirmative vote of the holders of a majority of the shares
represented at the meeting and entitled to vote on the subject matter shall be
the act of the shareholders, unless the question is one upon which by express
provision of the Act or of the Restated Articles a different vote is required,
in which case, such express provision shall govern and control the decision of
such question.
Section 7. Adjournments. The chairman of the meeting or the holders of
a majority of the votes entitled to be cast by the shareholders who are present
in person or represented by proxy may adjourn the meeting from time to time,
whether or not a quorum is present. If less than a majority of the outstanding
shares are represented at a meeting, the chairman of the meeting or the holders
of a majority of the shares so represented, either in person or by proxy, may
adjourn the meeting to another place, date or time without further notice other
than announcement at the meeting; provided, however, that if a new record date
is fixed for the adjourned meeting, written notice of the place, date and time
of the adjourned meeting shall be given as required in Section 4 of this Article
II. At such adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the meeting
as originally noticed.
Section 8. Order and Notice of Business. (a) At each meeting of the
shareholders, the chairman of the Board or, in the absence of the chairman of
the Board, such person as shall be selected by the Board, shall act as chairman
of the meeting. The order of business at each such meeting shall be as
determined by the chairman of the meeting. The chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts and things as are necessary or desirable for the proper
conduct of the meeting, including, without limitation, the establishment of
procedures for the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof, and the opening and closing of the voting polls.
(b) At any annual meeting of shareholders, only such business shall be
conducted as shall have been brought before the annual meeting (i) by or at the
direction of the chairman of the meeting, (ii) pursuant to the provisionsnotice provided
for in Section 4 of said Actthis Article II or (iii) by any shareholder who is a holder
of record at the time of the giving of such notice provided for in this Section
8, who is entitled to vote at the meeting and who complies with the procedures
set forth in this Section 8.
(c) For business properly to be brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation (the "Secretary"). To be
timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than ninety (90)
days prior to the one-year anniversary date of the date of the immediately
preceding annual meeting of shareholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the shareholder in order to
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of annual meeting was
made, whichever first occurs. To be in proper written form, a shareholder's
notice to the Secretary shall set forth in writing as to each matter the
shareholder proposes to bring before the annual meeting: (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting; (ii) the name and address of
the shareholder proposing such business and all amendments
thereto.
ARTICLE I
The namepersons or entities acting in
concert with the shareholder; (iii) the class and number of shares of the
corporationCorporation which are owned of record by the shareholder and all persons or
entities acting in
concert with such shareholder; (iv) a description of all arrangements or
understandings between such shareholder and any other person or persons
(including their names) in connection with the proposal of such business by such
shareholder and any material interest of the shareholder in such business; (v) a
representation that such shareholder is the holder of record of Common Stock of
the Corporation outstanding and entitled to vote at such annual meeting of
shareholders and that such shareholder intends to appear in person or by proxy
at the annual meeting to bring such business before the meeting and (vi) such
other information regarding each such proposal as would be required to be
included in a proxy statement filed with the Securities and Exchange Commission.
The foregoing notice requirements shall be Casey's General Stores, Inc. Its
principal placedeemed satisfied by a shareholder if
the shareholder has notified the Corporation of his or her intention to present
a proposal at an annual meeting and such shareholder's proposal has been
included in a proxy statement that has been prepared by management of the
Corporation to solicit proxies for such annual meeting; provided, however, that
if such shareholder does not appear or send a qualified representative to
present such proposal at such annual meeting, the Corporation need not present
such proposal for a vote at such meeting, notwithstanding that proxies in
respect of such vote may have been received by the Corporation. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in Polk County, Iowa.
ARTICLE IIaccordance with the procedures set forth in this
Section 8. The corporation's existencechairman of an annual meeting shall, if the facts warrant,
determine that business was not properly brought before the annual meeting in
accordance with the provisions of this Section 8 and, if the chairman should so
determine, the chairman shall so declare to the annual meeting and any such
business not properly brought before the annual meeting shall not be transacted.
Section 9. Proxies. At all meetings of shareholders, a shareholder may
vote either in person or by proxy executed in writing by the shareholder or by
his duly authorized attorney in fact. Such proxy shall be perpetual.
ARTICLE III
The purpose whichfiled with the
corporation is authorized to pursue is and includesSecretary of the transactionCorporation before or at the time of any and all lawful businesses for which corporations may be
incorporated under the Iowa Business Corporation Act.
ARTICLE IV
A. The aggregate amount of authorized capital stock of this Corporationmeeting. No proxy
shall be divided into two classes: (i) 120,000,000 shares, consisting of one
class designated as Common, and having no par value and no pre-emptive rights,
and (ii) 1,000,000 shares, consisting of one class designated as Serial
Preferred having no par value. The preferences, voting rights, if any,
limitations and relative rights of the Serial Preferred Stock are as follows:
1. The holders of each series of the Serial Preferred Stock shall be
entitled to receive dividends when and as declared by the Board of Directors at
such rate or rates and on such dates as shall be fixed for each such series by
resolution of the Board of Directors as hereafter provided before any dividends
shall be paid or set apart for payment on the Common Stock. Such dividends on
the shares of each such series shall be fully cumulativevalid after eleven months from the date of first
original issueits execution, unless
otherwise provided in the proxy.
Section 10. Voting of Shares. Unless otherwise provided by law or by
the sharesRestated Articles, each shareholder of each such series. Unless dividends at the rate
fixed for each series of the Serial Preferred Stock shall have been declared and
paid in full on the shares of each such series for all past dividend periods and
any dividend period ending on the date of any payment, purchase, redemption or
other acquisition hereinafter referred to, and unless the full amount of all
mandatory redemption and sinking fund payments then required to be made on each
series of the Serial Preferred Stock shall have been made in full, no dividends
shall be declared or paid or set apart for payment upon any sharesrecord of the Common Stock and no purchase, redemption or other acquisition for value of any shares
of the Common Stock shall be made. If the payment of full cumulative dividends
with respect to the shares of any series of the Serial Preferred Stock shall be
in arrears, the Corporation thereafter shall (so long as such arrearage
continues), whenever it shall make any dividend payment with respect to the
shares of any series of the Serial Preferred Stock, make such dividend payment
to the holders of the shares of each series of the Serial Preferred Stock as to
which there shall be an arrearage and to the holders of the shares of each
series of the Serial Preferred Stock as to which a dividend is then payable, pro
rata among each such series in proportion to the full amount of dividends in
arrears or then payable on the shares of each such series of the Serial
Preferred Stock. The holders of the Serial Preferred Stock shall have no rights
to share in any dividend or distribution of the profits or assets of the
Corporation, whether in the form of cash, stock dividend or otherwise, except to
the extent specifically provided herein or in said resolutions of the Board of
Directors establishing the series of the Serial Preferred Stock.
2. In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of each series of the
Serial Preferred Stock shall be entitled to be paid such amount as shall be
fixed by resolution of the Board of Directors for each such series as hereafter
provided before any amount shall be paid on the Common Stock. If, in the event
of any such voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, the assets of the Corporation available for distribution to the
holders of the Serial Preferred Stock shall be insufficient to permit full
payment to the holders of each series of the Serial Preferred Stock of their
respective preferential amounts fixed by such resolution of the Board of
Directors, then such assets shall be distributed ratably among such holders in
proportion to their respective preferential amounts. After the payment to the
holders of the Serial Preferred Stock of all such amounts to which they are
entitled pursuant to said resolutions of the Board of Directors, the remaining
assets and funds of the
Corporation shall be dividedentitled at each meeting of shareholders to one vote for
each share of such stock, in each case, registered in such shareholder's name on
the books of the Corporation (i) on the date fixed pursuant to Section 5 of
Article VI of these By-laws as the record date for the determination of
shareholders entitled to notice of and paid to vote at such
meeting or (ii) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice of such
meeting is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. At each meeting of the
shareholders, all corporate actions to be taken by vote of the shareholders
(except as otherwise required by law and except as otherwise provided in the
Restated Articles or these By-laws), shall be authorized by a majority of the
votes cast by the shareholders entitled to vote thereon who are present in
person or represented by proxy, and where a separate vote by class is required,
a majority of the votes cast by the shareholders of such class who are present
in person or represented by proxy shall be the act of such class. Unless
required by law or determined by the chairman of the meeting to be advisable,
the vote on any matter, including the election of directors, need not be by
written ballot. In the case of a vote by written ballot, each ballot shall be
signed by the shareholder voting, or by such shareholder's proxy, and shall
state the number of shares voted.
Section 11. Voting of Shares by Certain Holders. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine. Shares held by an administrator, executor, guardian or conservator
may be voted by him, either in person or by proxy, without a transfer of such
shares into his name. Shares standing in the name of a trustee may be voted by
him, either in person or by proxy, but no trustee shall be entitled to vote
shares held by him without a transfer of such shares into his name. Shares
standing in the name of a receiver may be voted by such receiver, and shares
held by or under the control of a receiver may be voted by the receiver without
the transfer thereof into his name if authority so to do be contained in an
appropriate order of the court by which such receiver was appointed. A
shareholder whose shares are pledged shall be entitled to vote such shares until
the shares have been transferred into the name of the pledgee, and thereafter
the pledgee shall be entitled to vote the shares so transferred. Shares of its
own stock belonging to this Corporation shall not be voted, directly or
indirectly, at any meeting and shall not be counted in determining the total
number of outstanding shares at any time, but shares of its own stock held by it
in a fiduciary capacity may be voted and shall be counted in determining the
total number of outstanding shares at any given time.
Section 12. Informal Action by Shareholders. Any
action required to be taken at a meeting of the
shareholders, or any other action which may be taken at a
meeting of the shareholders, may be taken without a meeting if one or more
consents in writing, setting forth the action so taken, shall be signed by the
holders of not less than ninety percent in amount of all the Common Stock. Neitherissued and
outstanding shares of the consolidation norentire capital stock of the mergerCorporation entitled to
vote with respect to the subject matter thereof at such a meeting and are
delivered to the Secretary of the Corporation for inclusion in the minutes or
filing with the corporate records. A written consent shall bear the date of
signature of each shareholder who signs the consent and no written consent shall
be effective to take the corporate action referred to in the consent unless,
within sixty days of the earliest dated consent delivered in the manner required
by this Section to the Corporation, written consents signed by a sufficient
number of holders to take the action are delivered to the Corporation.
Section 13. Inspectors. At any meeting of shareholders, the chairman of
the meeting may, or upon the request of any shareholder, shall appoint one or
more persons, who need not be shareholders of the Corporation, as inspectors for
such meeting. Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon their determination of the validity and
effect of proxies; count all votes and report the results; and perform such
other duties as shall be specified by the chairman of the meeting. Each report
of an inspector shall be in writing and signed by him or by a majority of them
if there be more than one inspector acting at such meeting. If there is more
than one inspector, the report of a majority shall be the report of the
inspectors. The report of the inspector or inspectors on the number of shares
represented at the meeting and the results of the voting shall be prima facie
evidence thereof.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The Board may, except as otherwise required by law
or by the Restated Articles, exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, including, without
limiting the generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in
accordance with law;
(2) To purchase or otherwise acquire any property,
rights or privileges on such terms as it shall
determine;
(3) To authorize the creation, making and issuance, in such
form as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to do all
things necessary in connection therewith;
(4) To remove any officer of the Corporation with or into any other corporation or corporations, nor a reorganization of the
Corporation alone, nor the sale or transfer by the Corporation of all or any
part of its assets, shall be deemed to be a liquidation, dissolution or winding
up of the Corporation for the purpose of this paragraph 2.
3. The price atwithout
cause, and terms and conditions on which the shares of each series
of the Serial Preferred Stock may be redeemed shall be fixed for each such
series by resolution of the Board of Directors as hereafter provided. Whenever
the Corporation shall have failed to make any mandatory redemption or sinking
fund payment in whole or in part on the date provided therefor (and so long as
such nonpayment shall be continuing), the Corporation shall thereafter make
mandatory redemption or sinking fund payments on each series of the Serial
Preferred Stock (as to which it shall have failed to make all or any part of
such payment or as to which it has a mandatory redemption or sinking fund
obligation then due) pro rata among each such series in proportion to the sum of
(i) any mandatory redemption or sinking fund payment then due and (ii) the
amount of any previously unpaid mandatory redemption or sinking fund payments,
in each case with respect to each such series of the Serial Preferred Stock.
Redemption obligations of the Corporation shall be cumulative.
4. Each share of Serial Preferred Stock shall be entitled to such
privileges of conversion, if any, as are provided and declared by the Board of
Directors at such time as the issue of which it is part is established by the
Board of Directors.
5. Shares of Serial Preferred Stock shall be entitled to vote only upon
those matters required by Sections 57 and 70 of the Iowa Business Corporation
Act, Chapter 496A, Code of Iowa, as amended, as the same or any substitute
provisions therefor may be in effect from time to time.
The Serial Preferred Stock may be issued from time to time in series.
Authority is hereby expressly granted to devolve the Boardpowers and duties of Directors to establish one
or more series of Serial Preferred Stock and, in the resolution establishing
each such series, to fix and determine the number of shares to constitute each
such series, the distinctive designations thereof and the relative rights and
preferences of the shares of each such series. All shares of the Serial
Preferred Stock shall be identical in all respects, except as to the following
rights and preferences as to which there may be variations as between different
series:
(a) The rate of dividend and the dates on which dividends are payable.
(b) The price at and the terms and conditionsany
officer upon which shares may be
redeemed.
(c) The amount payable upon shares in the event of involuntary liquidation.
(d) The amount payable upon shares in the event of voluntary liquidation.
(e) Sinking fund provisionsany other person for the redemption or purchase of shares.
(f) The terms and conditions on which shares may be converted, if the
shares oftime being;
(5) To confer upon any series are issued with the privilege of conversion.
(g) Voting rights, if any.
Any unissued sharesofficer of the Corporation
may be issuedthe power to appoint, remove and any treasury
shares of the Corporation may be disposed ofsuspend subordinate
officers and agents;
(6) To adopt from time to time in such amount,stock, option, stock
purchase, bonus or other compensation plans for directors, officers and
agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such considerationinsurance, retirement, and
other benefit plans for directors, officers and agents of the
Corporation and its subsidiaries as it may determine; and
(8) To adopt from time to time regulations, not inconsistent
with these By-Laws, for the management of the Corporation's business
and affairs.
Section 2. Number, Tenure and Qualifications. The Board shall consist of
not more than nine (9) members nor less than four (4) members. At each annual
meeting the shareholders shall elect directors to hold office until the next
succeeding annual meeting, and each director shall hold office for the term for
which he is elected, and until his successor shall have been elected and
qualified. The Board may, upon such terms and conditions asa majority vote of its members, increase or
decrease the Board of
Directors may determine.
ARTICLE V
A. The number of directors ofwithin the Corporation shall be not fewer
than four (4) and not greater than nine (9).limits set up forth above. Vacancies
in the Board of
Directors or new directorships created by an increase in the number of
directors shallmay be filled by election by a majority of the remaining members of
the Board, thoughno less than a quorum, and the person filling such vacancy or
newly-created directorship shall serve out the remainder of the term forof the
vacated directorship or, in the case of a new directorship, the term designated
for the classparticular director. The directors need not be residents of directorsthe State of
which that directorship is a part.
B. TheIowa or shareholders of the Corporation.
Section 3. Shareholder Nomination of Director Candidates. Nominations for
the election of Directors may atbe made by the Nominating Committee appointed by
the Board or by any timeshareholder entitled to vote in the election of Directors
generally. However, any shareholder entitled to vote in the election of
Directors generally may nominate one
or more persons for election as Directors at a meeting expresslyonly if written notice of
such shareholder's intent to make such nomination or nominations has been given,
either by personal delivery or by United States registered or certified mail,
postage prepaid, return receipt requested, received by the Secretary of the
Corporation not later than (i) with respect to an election to be held at an
annual meeting of shareholders, at least ninety (90) days prior to the one-year
anniversary date of the date of the immediately preceding annual meeting of
shareholders, and (ii) with respect to an election to be held at a special
meeting of shareholders for the election of Directors, the close of business on
the tenth (10th) day following the date on which notice of such meeting was
first mailed to shareholders or public disclosure of the date of such special
meeting, whichever first occurs. Each such notice shall set forth: (a) the name
and address of the shareholder who intends to make the nomination and of the
person or persons to be nominated; (b) a representation that the shareholder is
a holder of record of Common Stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder; (d) such other
information regarding each nominee proposed by such shareholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board; and (e) the consent of each nominee to
serve as a Director of the Corporation if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Section 4. Regular Meetings. A regular meeting of the Board shall be
held without other notice than this ByLaw immediately after, and at the same
place as, the annual meeting of shareholders. The Board may provide, by
resolution, the time and place, either within or without the State of Iowa, for
the holding of additional regular meetings without other notice than such
resolution.
Section 5. Special Meetings. Special meetings of the Board may be called by
or at the request of the Chief Executive Officer, Chief Operating Officer, the
President or any two Directors. The person or persons authorized to call special
meetings of the Board may fix any place, either within or without the State of
Iowa, as the place for holding any special meeting of the Board called by him or
them.
Section 6. Notice. Notice of any special meeting of the Board shall be
given at least twenty-four hours previously thereto by telephone or by telegram.
If notice be given by telegram, such notice shall be deemed to be delivered when
the telegram is delivered to the telegraph company. Any Director may waive
notice of any meeting. The attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a Director attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
Board need be specified in the notice or waiver of notice of such meeting.
Section 7. Quorum. A majority of the number of the duly elected and
qualified Directors shall constitute a quorum for the transaction of business;
provided, that purpose removeif less than a majority of such number of Directors are present
at said meeting, a majority of the Directors present may adjourn the meeting
from time to time without further notice.
Section 8. Manner of Action. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board,
except as may be otherwise specifically provided by statute, the Restated
Articles or these By-Laws. Members of the Board or any committee designated by
such Board, may participate in a meeting of such Board or committee by
conference telephone or similar communications equipment by means of which all
persons attending the meeting can hear each other, and participation in the
meeting pursuant to this provision shall constitute presence in person at such
meeting.
Section 9. Compensation. The Board, by the affirmative vote of a
majority of Directors then in office, and irrespective of any personal interest
of any of its members, shall have authority to establish reasonable compensation
of all directors for services to the Corporation as Directors, officers or
otherwise. By resolution of the Board, the Directors may be paid their expenses,
if any, of attendance at each meeting of the Board. No such payment shall
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefore. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
Section 10. Presumption of Assent. A Director of the Corporation who is
present at the meeting of the Board at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the Secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered or certified mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a Director who voted in favor of such action.
Section 11. Informal Action by Directors. Unless specifically prohibited by
statute, the Restated Articles or these By-Laws, any action required to be taken
at a meeting of the Directors, or any other action which may be taken at a
meeting of the Directors or of a committee of Directors, may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all of the Directors or all of the directors, for cause, by a vote of two-thirdsmembers of the shares thencommittee of
Directors, as the case may be, entitled to vote with respect to the subject
matter thereof, and filed with the minutes of proceedings of the Board or
committee, as the case may be. Any such consent signed by all the Directors or
all the members of such committee shall have the same effect as a unanimous
vote, and may be stated as such in any document filed with the Secretary of
State, or issued for any other reason.
Section 12. Committees of Directors. In addition to an Executive Committee,
an Audit Committee, a Nominating Committee and a Compensation Committee, the
Board may, by resolution adopted by a majority of the whole Board, designate
from among its members one or more other committees, each committee to consist
of two or more of the Directors of the Corporation, which, to the extent
provided in the resolution, shall have and may exercise the powers of the Board
in the management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board.
Section 13. Committee Minutes. Each committee shall keep regular minutes of
its meetings and report the same to the Board when required.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be a Chief
Executive Officer, Chief Operating Officer, President, one or more Vice
Presidents, a Secretary and a Treasurer, each of whom shall be elected by the
Board. Such other officers, assistant officers and acting officers as
may be deemed necessary may be elected or appointed by the Board. Any two or
more offices may be held by the same person except that the offices of President
and Secretary shall not be held by the same person.
Section 2. Election and Term of Office. The officers of the Corporation
to be elected by the Board shall be elected annually by the Board at anthe first
meeting of the Board held after each annual meeting of the shareholders.
If the election of directors. For purposesofficers shall not be held at such meeting, such election
shall be held as soon thereafter as conveniently may be. Vacancies may be filled
or new offices created and filled at any meeting of the Board. Each officer
shall hold office until his successor shall have been duly elected and qualified
or until his death or until he shall resign or shall have been removed in the
manner hereinafter provided. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section 3. Other Officers. The Board may appoint such officers and
agents, including a Chairman of the Board, as it shall deem necessary, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board.
Section 4. Removal. Any officer or agent elected or appointed by the
Board may be removed by the affirmative vote of a majority of the Board at any
meeting whenever in its judgment the best interests of the Corporation would be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 5. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
for the unexpired portion of the term.
Section 6. The Chief Executive Officer. The Board may elect a Chief
Executive Officer who, in the event of such election, shall be the principal
executive officer of the Corporation and, subject to the general powers of the
Board, shall in general supervise and control all of the business and affairs of
the Corporation. He shall, when present, preside at all meetings of the
shareholders and of the Board. He may sign, with the Secretary or any other
proper officer of the Corporation thereunto authorized by the Board,
certificates for shares of the Corporation, any deeds, mortgages, bonds,
contracts or other instruments which the Board has authorized to be executed,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board or by these By-Laws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise signed or executed,
and,
shall in general perform all duties incident to the office of the Chief
Executive Officer and such other duties as may be prescribed by the By-laws or
by the Board from time to time.
Section 7. The Chief Operating Officer. The Board may elect a Chief
Operating Officer who, in the event of such election and in the absence of the
Chief Executive Officer or in the event of his death, inability or refusal to
act, shall perform the duties of the Chief Executive Officer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Chief Executive Officer; and in addition thereto, shall perform such other
duties as may be assigned to him by the Chief Executive Officer or by the Board
or prescribed by the By- Laws.
Section 8. The President. In the absence of the Chief Executive Officer
and Chief Operating Officer, the President shall be the principal executive
officer of the Corporation and, subject to the general powers of the Board,
shall in general supervise and control all of the business and affairs of the
Corporation to the same extent as that permitted by the Chief Executive Officer
under Section 6 of this Article removal "for cause"IV.
Section 9. The Secretary. The Secretary shall: (a) attend all meetings of
the Board and all meetings of the shareholders and keep the minutes of the
shareholders' and of the Board meetings in one or more books provided for that
purpose, and shall meanperform like duties for the standing committees when
required; (b) see that all notices are duly given in accordance with the
directorprovisions of these By-Laws or as required by law; (c) be custodian of the
corporate records; (d) keep a register of the post office address of each
shareholder which shall be furnished to be removed has
been convictedthe Secretary by such shareholder; (e)
have general charge of a felony by a courtthe stock transfer books of competent jurisdictionthe Corporation; (f) in
general perform all duties incident to the office of Secretary and such conviction is no longer subjectother
duties as from time to direct appeal,time may be assigned to him by the President or thatby the
directorBoard; and (g) have custody of the corporate seal of the Corporation, if any,
and have authority to affix the same to any instrument requiring it and when so
affixed, it may be removed has been adjudgedattested by his signature. The Board may give general
authority to be liableany other officer to affix the seal of the Corporation, if any, and
to attest the affixing by his signature.
Section 10. The Treasurer. If required by the Board, the Treasurer shall
give a bond for negligence or misconduct in the performancefaithful discharge of his dutyduties in such sum and with such
surety or sureties as the Board shall determine. He shall: (a) have charge and
custody of and be responsible for all funds and securities of the Corporation;
receive and give receipts for
moneys due and payable to the Corporation from any source whatsoever, and
deposit all such moneys in the name of the Corporation in such banks, trust
companies or other depositories as shall be selected in accordance with the
provisions of Article V of these By-Laws; (b) disburse the funds of the
Corporation as may be ordered by a courtthe Board, taking proper vouchers for such
disbursements; (c) keep full and accurate accounts of competent jurisdictionreceipts and disbursements
in books belonging to the Corporation; (d) render to the Chief Executive
Officer, Chief Operating Officer or the President and the Board, at its regular
meetings, or when the Board so requires, an account of his transactions as
Treasurer and the financial condition of Corporation; and (e) in general perform
all of the duties incident to the office of Treasurer and such adjudication is no longerother duties as
from time to time may be assigned to him by the Chief Executive Officer, Chief
Operating Officer or the President or by the Board.
Section 11. The Vice President. In the absence of the Chief Executive
Officer, Chief Operating Officer and President, or in the event of their death,
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice President in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
direct appeal.
C. This Article Vall the restrictions upon the President; and in addition thereto, shall perform
such other duties as may not be amended, alteredassigned to him by the President or repealed withoutby the approval of two-thirds ofBoard or
prescribed by the shares entitled to vote at the time such
amendment, alteration or repeal is proposed.
ARTICLE VIBy-Laws.
Section 12. Other Assistants and Acting Officers. The Board of Directors of the Corporation shall have the
power to adopt a
corporation sealappoint any person to act as assistant to any officer, or to perform
the duties of such officer whenever for any reason it is impracticable for such
officer to act personally, and such assistant or acting officer so appointed by
the Board shall have the power to perform all the duties of the office to which
he is so appointed to be assistant, or as to which he is so appointed to act,
except as such power may be otherwise defined or restricted by the Board.
Section 13. Salaries. The salaries of the officers shall be fixed from
time to time by the corporate seal of this Corporation.
ARTICLE VII
The private property of the shareholders of this Corporation shall at all
times be exempt from liability of corporate debts of any kindBoard, and this Article
shall not be amended or repealed.
ARTICLE VIII
Stock in this Corporationno officer shall be transferred only by assignment upon the
books of the Corporation, subject to and in accordance withprevented from receiving such
restrictions as
may be provided in the Bylaws of this Corporation.
ARTICLE IX
RESERVED
ARTICLE X
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for a breach of the director's duty
of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or knowing violation
of law, (iii) for a transaction from which the director derives an improper
personal benefit, or (iv) under Section 496A.44 of the Iowa Business Corporation
Act.
If the Iowa Business Corporation Act is amended to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Iowa Business Corporation Act, as so
amended.
Any repeal or modification of this Article X by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
B. (1) Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"),salary by reason of the fact that he is also a Director of the Corporation.
ARTICLE V
WRITTEN INSTRUMENTS, LOANS AND DEPOSITS
Section 1. Written Instruments. Subject always to the specific directions
of the Board, all deeds and mortgages made by the Corporation to which the
Corporation shall be a party shall be executed in its name by the Chief
Executive Officer, Chief Operating Officer or she,the President or the Vice
President and attested by the Secretary. All other written contracts and
agreements to which the Corporation shall be a party shall be executed in its
name by the Chief Executive Officer, Chief Operating Officer or the President or
such other officer as may be designated by the Board and attested by the
Secretary.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation
and no evidences of indebtedness shall be issued in its name unless authorized
by a resolution of the Board. Such authority may be general or confined to
specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts, other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or offices, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board.
Section 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may select.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates for Shares. Every holder of shares of the
Corporation shall be entitled to have a certificate representing shares of the
Corporation. Subject to the provisions of the Act, certificates representing
shares of the Corporation shall be in such form as may be determined by the
Board. Such certificates shall be signed by the Chief Executive Officer, Chief
Operating Officer, President or a personVice President and the Secretary or an
Assistant Secretary of whom he or she is the legal
representative, (a) is or was a director or officerCorporation and shall be sealed with the seal of the
Corporation or (b)a facsimile thereof. The signatures of the Chief Executive
Officer, Chief Operating Officer, President or Vice President and the Secretary
or Assistant Secretary upon a certificate may be facsimiles. If the certificate
is countersigned by a transfer agent, or registered by a registrar, the
signatures of the person signing for such transfer agent or registrar also may
be facsimiles. In case any officer or other authorized person who has signed or
whose facsimile
signature has been placed upon such certificate for the Corporation shall have
ceased to be such officer or employee or agent before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer or employee or agent at the date of its issue. All certificates for
shares shall be consecutively numbered or otherwise identified. The name of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be cancelled, and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except that in the
case of a lost, destroyed, or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the Corporation as the Board may
prescribe.
Section 2. Transfers of Shares. Transfers of shares of the Corporation
shall be made only on the books of the Corporation by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the Corporation, and only
on surrender for cancellation of the certificate for such shares. Except as
otherwise provided by law, the person in whose name shares stand on the books of
the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation.
Section 3. Registered Shareholder. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to, or interest in, such shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
Section 4. Stock Regulations. The Board shall have the power and
authority to make all such further rules and regulations not inconsistent with
the statutes of the State of Iowa as they may deem expedient concerning the
issue, transfer, and registration of certificates representing shares of the
Corporation.
Section 5. Record Date. In order that the Corporation may determine the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board may fix, in advance, a record
date, which shall not be more than seventy (70) days before the date of such
meeting or action requiring a determination of shareholders. A determination of
shareholders entitled to notice of or to vote at a meeting of the shareholders
is effective and shall apply to any adjournment of the meeting, unless the Board
fixes a new record date for the adjourned meeting, which it shall do if the
meeting is adjourned to a date more than one hundred twenty (120) days after the
date fixed for the original meeting.
Section 6. Transfer Agents and Registrars. The Board may appoint, or
authorize any officer or officers to appoint, one or more transfer agents or one
or more registrars.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall begin on the 1st day of May
and end on the 30th day of April in each year.
ARTICLE VIII
DIVIDENDS
The Board may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by the Restated Articles and the Act.
ARTICLE IX
SEAL
The Corporation shall have a corporate seal which shall be in the form
of a circle and which shall have inscribed thereon the name of the Corporation
and the words Corporate Seal, Iowa.
ARTICLE X
DIRECTORS' CONTRACTS AND INDEMNIFICATION
Section 1. Transactions Concerning Directors. No contract or other
transaction between the Corporation and any other corporation shall be affected
or invalidated by the fact that any one or more of the Directors of this
Corporation is or was serving (at such time as heare interested in, or she is or was a director or
officer, or are directors or officers of such other corporation, and any
Director or Directors, individually or jointly, may be a party or parties to or
may be interested in any contract or transaction of this Corporation or in which
this Corporation is interested; and no contract, act or transaction of this
Corporation with any person or persons, firm or association, shall be affected
or invalidated by the fact that any Director or Directors of this Corporation is
a party, or are parties to, or interested in, such contract, act, or
transaction, or in any way connected with such person or persons, firm or
association. Each and every person who may become a Director of this Corporation
is hereby relieved from any liability that might otherwise exist from
contracting with the Corporation for the benefit of himself or any firm or
corporation in which he may be in any way interested.
Sections 2 through 8. Reserved.
ARTICLE XI
VOTING OF SHARES OWNED BY CORPORATION
Subject always to the specific directions of the Corporation)Board, any share or
shares of stock issued by any other corporation and owned or controlled by the
Corporation may be voted at any shareholder's meeting of such other corporation
by the Chief Executive Officer, Chief Operating Officer or President of the
Corporation if he be present, or in his absence by the Vice President of the
Corporation who may be present. Whenever, in the judgment of the Chief Executive
Officer, Chief Operating Officer or President, or in his absence, of the Vice
President, it is desirable for the Corporation to execute a proxy or give a
shareholders' consent in respect to any share or shares of stock issued by any
other corporation and owned by the Corporation, such proxy or consent shall be
executed in the name of the Corporation by the Chief Executive Officer, Chief
Operating Officer, President or the Vice President of the Corporation and shall
be attested by the Secretary of the Corporation without necessity of any
authorization by the Board. Any person or persons designated in the manner above
stated as the proxy or proxies of the Corporation shall have full right, power
and authority to vote the share or shares of stock issued by such other
corporation and owned by the Corporation the same as such share or shares might
be voted by the Corporation.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or
Director of the Corporation under the provisions of the Restated Articles, these
By-Laws or the Act, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
ARTICLE XIII
EXECUTIVE COMMITTEE
Section 1. Appointment. The Board, by resolution adopted by a majority of
the full Board, shall designate two or more of its members to constitute an
Executive Committee. The designation of such committee and the delegation
thereto of authority shall not operate to relieve the Board, or any member
thereof, of any responsibility imposed by law.
Section 2. Authority. The Executive Committee, when the Board is not in
session, shall have and may exercise all of the authority of the Board except to
the extent, if any, that such authority shall be limited by the resolution
appointing the Executive Committee and except also that the Executive Committee
shall not have the authority of the Board in reference to amending the Restated
Articles, adopting a plan of merger or consolidation, recommending to the
shareholders the sale, lease or other disposition of all or substantially all of
the property and assets of the Corporation otherwise than in the usual and
regular course of its business, recommending to the shareholders a voluntary
dissolution of the Corporation or a revocation thereof, or amending the By-Laws
of the Corporation.
Section 3. Tenure and Qualifications. Each member of the Executive
Committee shall hold office until the next regular annual meeting of the Board
following his designation and until his successor is designated as a member of
the Executive Committee and is elected and qualified.
Section 4. Meeting. Regular meetings of the Executive Committee may be
held without notice at such time and places as the Executive Committee may fix
from time to time by resolution. Special meetings of the Executive Committee may
be called by any member thereof upon not less than two day's notice stating the
place, date and hour of the meeting, which notice may be written or oral, and if
mailed, shall be deemed to be delivered when deposited in the United States mail
addressed to the member of the Executive Committee at his business address. Any
member of the Executive Committee may waive notice of any meeting and
no notice of any meeting need be given to any member thereof who attends in
person. The notice of a meeting of the Executive Committee need not state the
business proposed to be transacted at the requestmeeting.
Section 5. Quorum. A majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business at any meeting thereof
and action of the Executive Committee must be authorized by the affirmative vote
of a majority of the members present at a meeting at which a quorum is present.
Section 6. Action without a Meeting. Any action that may be taken by
the Executive Committee at a meeting may be taken without a meeting if a consent
in writing, setting forth the action so to be taken, shall be signed before such
action by all of the members of the Executive Committee.
Section 8. Resignation and Removal. Any member of the Executive Committee
may be removed at any time with or without cause by resolution adopted by a
majority of the full Board. Any member of the Executive Committee may resign
from the Executive Committee at any time by giving written notice to the Chief
Executive Officer, Chief Operating Officer, President or Secretary of the
Corporation, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 9. Procedure. The Executive Committee shall elect a presiding
officer from its members and may fix its own rules or procedure which shall not
be inconsistent with these By-Laws.
ARTICLE XIV
AUDIT COMMITTEE
Section 1. Appointment. There shall exist a standing Audit Committee
composed of not fewer than three Directors of the Corporation at least two of
whom are neither officers nor employees of the Corporation. The members of the
Audit Committee shall be designated by resolution passed by a majority of the
whole Board. The Board may designate one or more qualifying Directors as
alternate members of the Audit Committee, who may replace any absent or
disqualified members at any meeting of the committee. In the absence of any
member of the Audit Committee, the member or members thereof present at any
meeting and not disqualified from
voting, whether or not he or they constitute a majority, may unanimously appoint
another qualifying member of the Board to act at the meeting in the place of any
such absent or disqualified member not replaced by an alternate member
designated by the whole Board.
Section 2. Meeting. The Audit Committee shall meet on at least two
occasions each fiscal year, as specified in Section 3, below, and on such other
occasions as the members of the committee may deem appropriate and desirable.
Section 3. Authority. The Audit Committee shall meet each year prior to
the initiation of the annual audit and again following completion of the
investigatory work of the Corporation's independent auditors. At the former
meeting, the committee shall review the proper scope of the audit to be
performed by the Corporation's independent auditors and the audit-related
expenses to be incurred by the Corporation. At the latter meeting, the committee
shall: (1) review with the independent auditor its report or opinion, any
recommendations it may have for improving internal accounting controls,
management systems, or choice of accounting principles, and its perception of
the adequacy of the Corporation's financial and accounting personnel and the
cooperation it received from them during the audit; and (2) adopt a resolution
recommending to the Board the accounting firm to be selected by the Board as the
independent auditor of the Corporation. Moreover, the committee shall, at such
times and under such circumstances as it may deem appropriate: (1) recommend
that the Board discharge the firm acting as the Corporation's independent
auditor; (2) review the engagement of the independent auditor, including the
audit fees; (3) review and approve the auditor's performance of non-audit fees
and the fees for such services; (4) evaluate the independence of the independent
auditor, taking into account the relationship of audit to non-audit fees and
other pertinent matters; (5) review with the Corporation's financial and
accounting staff compliance with, and the need for any changes in, the
Corporation's policies and procedures with respect to internal accounting,
auditing and financial controls; (6) evaluate the degree of implementation of
any adopted recommendations of the independent auditor; (7) review any
significant business transactions which are not a normal part of the
Corporation's business, any change in accounting practices and all significant
adjustments in the Corporation's financial statements; and (8) perform such
other functions, in keeping with the purposes and authorization of the
committee, as the committee may deem necessary and appropriate to the
accomplishment of its designated objectives. The Audit Committee, to the extent
provided in this By-law, shall have and may exercise the powers of the Board in
the management of the business and affairs of the Corporation and may authorize
the seal of the
Corporation to be affixed to all papers that may require it.
Section 4. Minutes. The Audit Committee shall keep regular minutes of its
meetings and shall report the same to the Board when required.
Section 5. Directors. Each individual Director of the Corporation, as
well as the Board as a director, officer,
partner, trustee, administrator, employeewhole, shall continue to exercise due diligence to assure
that the financial statements of the Corporation fairly and accurately present
the results of the operation and financial position of the Corporation and that
the Corporation's financial operations are conducted in accordance with all
applicable laws and regulations, the Corporation's policies and the regular and
accepted principals of accounting. The existence and functioning of the Audit
Committee shall effect no derogation of this duty.
ARTICLE XV
NOMINATING COMMITTEE
Section 1. Appointment. The Board, by resolution adopted by a majority
of the full Board, shall designate two or agentmore of another corporationits members to constitute a
Nominating Committee. The designation of such committee and the delegation
thereto of authority shall not operate to relieve the Board, or any member
thereof, of any responsibility imposed by law.
Section 2. Authority. The Nominating Committee shall, at such times and
under such circumstances as it may deem appropriate: (1) establish criteria and
procedures for the election of Directors; (2) review the qualifications of and,
when it deems appropriate, interview candidates proposed for nomination as
Directors; (3) recommend to the Board not less than sixty (60) days prior to the
annual meeting of shareholders Directors to be elected at such meeting; and (4)
perform such other duties in connection with the election or termination of
Directors as the Board may request.
Section 3. Tenure and Qualifications. Each member of the Nominating
Committee shall hold office until the next regular annual meeting of the Board
following his designation and until his successor is designated as a member of
the Nominating Committee and is elected and qualified.
Section 4. Meetings. Regular meetings of the Nominating Committee may be
held without notice at such time and places as the Nominating Committee may fix
from time to time by resolution. Special meetings of the Nominating Committee
may be called by any member thereof upon not less
than two day's notice stating the place, date and hour of the meeting, which
notice may be written or oral, and if mailed, shall be deemed to be delivered
when deposited in the United States mail addressed to the member of the
Nominating Committee at his business address. Any member of the Nominating
Committee may waive notice of any meeting and no notice of any meeting need be
given to any member thereof who attends in person. The notice of a partnership, joint venture, trustmeeting of
the Nominating Committee need not state the business proposed to be transacted
at the meeting.
Section 5. Quorum. A majority of the members of the Nominating
Committee shall constitute a quorum for the transaction of business at any
meeting thereof and action of the Nominating Committee must be authorized by the
affirmative vote of a majority of the members present at a meeting at which a
quorum is present.
Section 6. Action Without a Meeting. Any action that may be taken by
the Nominating Committee at a meeting may be taken without a meeting if a
consent in writing, setting forth the action so to be taken, shall be signed
before such action by all of the members of the Nominating Committee.
Section 7. Vacancies. Any vacancy in the Nominating Committee may be filled
by a resolution adopted by a majority of the full Board.
Section 8. Resignations and Removal. Any member of the Nominating Committee
may be removed at any time with or without cause by resolution adopted by a
majority of the full Board. Any member of the Nominating Committee may resign
from the Nominating Committee at any time by giving written notice to the Chief
Executive Officer, Chief Operating Officer, President or Secretary of the
Corporation, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 9. Procedure and Minutes. The Nominating Committee shall elect
a presiding officer from its members and may fix its own rules of procedure
which shall not be inconsistent with these By-Laws. The Nominating Committee
shall keep regular minutes of its meetings and shall report the same to the
Board when required.
ARTICLE XVI
COMPENSATION COMMITTEE
Section 1. Appointment. The Board, by resolution adopted by a majority of
the full Board, shall designate two or more of its members to constitute a
Compensation Committee. The designation of such committee and the delegation
thereto of authorities shall not operate to relieve the Board, or any member
thereof, of any responsibility imposed by law.
Section 2. Authority. The Compensation Committee shall meet each year
at least once, not less than thirty (30) nor more than sixty (60) days before
the annual meeting of the Board, and at such other enterprise, including servicetimes and under such
circumstances as it may deem appropriate: (1) to review management's evaluation
of the performance of the executive officers of the Corporation and their
compensation arrangements; and (2) to recommend to the Board the compensation
levels, salaries and bonuses of the Corporation's executive officers for the
following year. The Compensation Committee shall be responsible for the stock
incentive plans of the Corporation and shall implement such plans and may make
awards or grants in accordance with the terms thereof. The Compensation
Committee also shall review and make recommendations to the Board regarding the
compensation arrangements of the Corporation's outside directors and with
respect to employee benefit programs and bonus or other benefit plans whetheraffecting
executive officers and directors.
Section 3. Tenure and Qualifications. Each member of the basisCompensation
Committee shall hold office until the next regular annual meeting of such proceedingthe Board
following his designation and until his successor is alleged action in an official capacitydesignated as a director, officer, partner, trustee,
administrator, employeemember of
the Compensation Committee and is elected and qualified.
Section 4. Meetings. Regular meetings of the Compensation Committee may
be held without notice at such time and places as the Compensation Committee may
fix from time to time by resolution. Special meetings of the Compensation
Committee may be called by any member thereof upon not less than two day's
notice stating the place, date and hour of the meeting, which notice may be
written or agent or in any other capacity while serving as a
director, officer, partner, trustee, administrator, employee or agent,oral, and if mailed, shall be indemnified and held harmless bydeemed to be delivered when deposited
in the CorporationUnited States mail addressed to the fullest extentmember of the Compensation Committee
at his business address. Any member of the Compensation Committee may waive
notice of any meeting and no notice of any meeting need be given to any member
thereof who attends in person. The notice of a meeting of the Compensation
Committee need not state the business proposed to be transacted at the meeting.
Section 5. Quorum. A majority of the members of the Compensation
Committee shall constitute a quorum for the transaction of business at any
meeting thereof and action of the Compensation Committee must be authorized by
the affirmative vote of a majority of the members present at a meeting at which
a quorum is present.
Section 6. Action Without a Meeting. Any action that may be taken by
the Compensation Committee at a meeting may be taken without a meeting if a
consent in writing, setting forth the action so to be taken, shall be signed
before such action by all of the members of the Compensation Committee.
Section 7. Vacancies. Any vacancy in the Compensation Committee may be
filled by a resolution adopted by a majority of the full Board.
Section 8. Resignations and Removal. Any member of the Compensation
Committee may be removed at any time with or without cause by resolution adopted
by a majority of the full Board. Any member of the Compensation Committee may
resign from the Compensation Committee at any time by giving written notice to
the Chief Executive Officer, Chief Operating Officer, President or Secretary of
the Corporation, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 9. Procedure and Minutes. The Compensation Committee shall
elect a presiding officer from its members and may fix its own rules of
procedure which shall not be inconsistent with these By-Laws. The Compensation
Committee shall keep regular minutes of its meetings and shall report the same
to the Board when required.
ARTICLE XVII
AMENDMENTS
These By-Laws may be altered, amended or repealed, and new By-Laws may
be adopted, at any regular or special meeting of the Board of the Corporation by
a majority vote of the Directors present at the meeting.
* * * *
The foregoing are the Amended and Restated By-Laws of Casey's General
Stores, Inc., duly amended and restated at a regular meeting of the Board of
Directors of said Corporation held on the 9th day of December, 1996. All ByLaws
previously in effect are superseded by these Amended and Restated By-Laws.
CASEY'S GENERAL STORES, INC.
By: /s/ John G. Harmon
-------------------------
John G. Harmon, Secretary
Exhibit 10.21(a)
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made and entered into
as of the 16th day of January, 1997 by and between Casey's General Stores, Inc.,
an Iowa Business Corporation Act,corporation (the "Company"), and Donald F. Lamberti ("Lamberti").
WHEREAS, the Company and Lamberti are parties to an Employment
Agreement dated as of March 2, 1992 (the "Original Agreement"), providing for
the employment of Lamberti to serve as the same exists or may
hereafter be amended (but, inChief Executive Officer of the
case of any such amendment, only toCompany under the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liabilityterms and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penaltiesconditions set forth therein; and
amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith, and such indemnification shall continue as to a person who
has ceased to be such a director or officer and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, (a)
with respect to proceedings seeking to enforce rights to indemnification as
provided in paragraph (2) of this Section B, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized byWHEREAS, the Board of Directors of the Corporation, (b)Company has determined that it
is appropriate and in the case of a
proceeding brought by or in the rightbest interests of the Corporation, any such
indemnification shall be limited as providedCompany and its shareholders to
modify the Original Agreement in certain respects relating to the Iowa Business Corporation
Actprovision of
health insurance coverage and (c) no such indemnification shallother benefits to be provided to Lamberti and his
spouse.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
Section 1. Compensation. Section 4 of the Original
Agreement is hereby amended to read as follows:
4. Compensation. The Company shall pay to Lamberti an annual
salary of Three Hundred and Fifty Thousand Dollars ($350,000), payable
in equal monthly installments, or such other amount as shall be
mutually agreed upon by the Company and Lamberti (the "Salary"). In
addition, Lamberti and/or Lamberti's family shall be entitled to
receive all benefits presently provided or those which may hereafter be
generally provided by the Company to its employees, officers or
directors, including health insurance and life insurance. With respect
to such health insurance benefits, the Company agrees that at all times
the health insurance coverages available to Lamberti and his spouse
under such plans shall include provisions providing for lifetime
benefits payable on behalf of Lamberti and his spouse of not less than
One Million Dollars ($1,000,000) each, or such other amount as the
Company and Lamberti may specifically agree upon in writing, subject,
however, to any directorlimitations, restrictions or officer,conditions that shall from
time to time be necessary to satisfy the requirements of applicable
federal or state laws and regulations.
Section 2. Obligations of the Company Upon Termination of Employment -
Death of Lamberti. Section 6, paragraph (a), of the Original Agreement is hereby
amended to read as applicable, for any proceeding wherein itfollows:
(a) Death of Lamberti. In the event of the death of Lamberti
during the term hereof, the Company shall ultimately be
determined by final judicial decision that such director or officer is liable
(i)pay to Lamberti's spouse,
commencing on the first day of the month following his death and
continuing for a breachperiod of the director's duty of loyaltytwenty-four (24) months thereafter, benefits
equal to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith ormonthly installments of Salary which involve
intentional misconduct or knowing violation of law, (iii) for a transaction from
whichwould have been due
to Lamberti pursuant to Section 4 herein. Immediately following such
two-year period, the director derives an improper personal benefit or (iv) under Section
496A.44 of the Iowa Business Corporation Act. The right to indemnification
conferred in this Section BCompany
shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that if the
Iowa Business Corporation Act requires,commence the payment of such expenses incurred by
a director or officermonthly benefits to Lamberti's spouse
equal in his or her capacity as a director or officer (and not
in any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, serviceamount to an employee
benefit plan) in advanceone-half (1/2) of the final disposition of a proceeding,amount to which Lamberti would
have been entitled as retirement benefits under Section 9 herein, which
monthly benefits shall be made
only upon deliverypaid for a period of twenty (20) years or
until the death of Lamberti's spouse, whichever occurs first. In
addition, the Company shall continue at all times to offer and provide
health insurance coverage to Lamberti's spouse, in accordance with the
plans, programs, practices and policies provided by the Company under
the terms of this Agreement at the time of Lamberti's death, until the
death of Lamberti's spouse, except to the Corporationextent such coverage is or
otherwise becomes available to Lamberti's spouse under the Medicare
program of benefits.
Section 3. Obligations of the written affirmationCompany Upon Termination of Employment -
Disability. Section 6, paragraph (b), of the good
faith beliefOriginal Agreement is hereby
amended by adding the following new unnumbered subparagraph:
Notwithstanding any Disability on the part of such director or officer that he or she has metLamberti, the
standard of
conduct necessary for indemnification,Company shall continue at all times to offer and an undertaking, by or on behalf of
such director or officer,provide health
insurance coverages to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision that such director or
officer is not entitled to be indemnified under this Section B or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
other employeesLamberti and agents of the Corporationhis spouse, in accordance with the
same scopemost favorable plans, programs, practices and effect as
the foregoing indemnification of directors and officers.
(2) If a claim under paragraph 1 of this Section B is not paid in fullpolicies provided by the
Corporation within thirty days after a written claim has been received byCompany during the Corporation,90-day period immediately preceding the claimant mayDisability
Effective Date or, if more favorable to Lamberti, as in effect at any
time thereafter bring suit againstwith respect to other key employees and their families,
until the Corporationdeath of Lamberti and his spouse, except to recover the unpaid amountextent such
coverage is or otherwise becomes available to Lamberti and his spouse
under the Medicare program of benefits.
Section 4. Obligations of the claimCompany Upon Termination of Employment - Good
Reason; Other Than for Cause or Disability. Section 6, paragraph (d),
subparagraph (ii), of the Original Agreement is hereby amended to read as
follows:
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Lamberti and/or Lamberti's
family at least equal to those which would have been provided to them
in accordance with the plans, programs, practices and policies provided
under this Agreement if successfulLamberti's employment had not been terminated,
including health insurance and life insurance, in wholeaccordance with the
most favorable plans, practices, programs or policies provided by the
Company and its subsidiaries during the 90-day period immediately
preceding the Date of Termination or, if more favorable to Lamberti, as
in part,effect at any time thereafter with respect to other key employees
and their families. Notwithstanding the claimantforegoing, however, the Company
shall continue at all times to offer and provide the above-described
health insurance coverages to Lamberti and his spouse until their
respective dates of death, except to the extent such coverage is or
otherwise becomes available to Lamberti and his spouse under the
Medicare program of benefits.
Section 5. Obligations of the Company Upon Termination of Employment -
Good Reason; Other Than for Cause or Disability, Following a Change of Control.
Section 6, paragraph (e), subparagraph (ii), of the Original Agreement is hereby
amended to read as follows:
(ii) for a three-year period following the Date
of Termination, the Company shall continue benefits to
Lamberti and/or Lamberti's family at least equal to
those which would have been provided to them in accordance with the
plans, programs, practices and policies provided under this Agreement
if Lamberti's employment had not been terminated, including health
insurance and life insurance, in accordance with the most favorable
plans, practices, programs or policies provided by the Company and its
subsidiaries during the 90-day period immediately preceding the Date of
Termination or, if more favorable to Lamberti, as in effect at any time
thereafter with respect to other key employees and their families.
Notwithstanding the foregoing, however, the Company shall continue at
all times to offer and provide the above-described health insurance
coverages to Lamberti and his spouse until their respective dates of
death, except to the extent such coverage is or otherwise becomes
available to Lamberti and his spouse under the Medicare program of
benefits.
Section 6. Retirement of Lamberti - Normal Retirement. Section 9, paragraph
(a) of the Original Agreement is hereby amended to read as follows:
(a) Normal Retirement. It is understood that Lamberti
shall retire on the last day of the calendar year during which
he reaches sixty-five (65) years of age and the Company, in
consideration for the services performed under Sections 3 and
10 hereof, shall pay to Lamberti an annual retirement benefit
equal to one-half (1/2) of his Salary (adjusted on an annual
basis to include the Annual Increase), which benefits shall
continue to be paid to Lamberti until his death, after which
such benefits shall be paid to Lamberti's spouse for a period
ending on (i) the twentieth (20th) anniversary of Lamberti's
retirement from the
Company or (ii) the death of Lamberti's spouse, whichever
occurs first.
Section 7. Retirement of Lamberti - Option of Lamberti. Section 9,
paragraph (c) of the Original Agreement is hereby amended to read as follows:
(c) Option of Lamberti. Upon (i) reaching fifty-nine
(59) years of age and (ii) having at any time prior thereto
completed twenty-five (25) years of employment with the
Company (whether or not this Agreement or an extension thereof
is then in effect), Lamberti at his option may retire and
shall no longer be required to perform his duties under
Section 3 of this Agreement, but Lamberti will be required to
perform his duties under Section 10 of this Agreement. If
Lamberti elects to retire, the Company shall pay to Lamberti
an annual retirement benefit, in lieu of his Salary, in an
amount equal to one-half (1/2) of his Salary (adjusted on an
annual basis to include the Annual Increase), which benefits
shall continue to be paid to Lamberti until his death, after
which such benefits shall be paid to Lamberti's spouse for a
period ending on (x) the twentieth (20th) anniversary of
Lamberti's retirement from the Company or (y) the death of
Lamberti's spouse, whichever occurs first. The obligation of
the Company to make payments pursuant to this subsection shall
not become effective unless and until Lamberti shall have
satisfied both of the foregoing conditions and shall have
given the Company thirty (30) days written notice of his
intention to retire from active employment with the Company,
but once both of such conditions have been met, Lamberti's
right to receive the benefits
described in this Section 9(c) shall vest irrevocably and the
Company shall be obligated to make the payments described
herein whether or not this Agreement or an extension thereof
is then in effect.
Section 8. Retirement of Lamberti - Continuation of Health Insurance.
Section 9 of the Original Agreement is hereby amended by adding the following
new paragraph:
(d) Continuation of Health Insurance. Following the retirement
of Lamberti under the provisions of this Section 9, the Company shall
continue at all times to offer and provide health insurance coverages
to Lamberti and his spouse, in accordance with the most favorable
plans, programs, practices and policies provided by the Company during
the 90-day period immediately preceding the effective date of
Lamberti's retirement or, if more favorable to Lamberti, as in effect
at any time thereafter with respect to other key employees and their
families, until the death of Lamberti and his spouse, except to the
extent such coverage is or otherwise becomes available to Lamberti and
his spouse under the Medicare program of benefits.
Section 9. Effective Date of Amendments. The amendments provided for herein
shall be deemed effective as of December 9, 1996.
Section 10. Miscellaneous.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in
the Original Agreement.
(b) Except as amended herein, all other terms and
conditions of the Original Agreement are in all respects
ratified, confirmed and approved.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Employment Agreement to be duly executed and attested, all as of the day and
year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
----------------------
Ronald M. Lamb, President
ATTEST:
By: /s/ John G. Harmon
-----------------------
John G. Harmon,
Corporate Secretary
(SEAL)
/s/ Donald F. Lamberti
-----------------------
Donald F. Lamberti
Exhibit 10.22(a)
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made and entered into
as of the 16th day of January, 1997 by and between Casey's General Stores, Inc.,
an Iowa corporation (the "Company"), and Ronald M. Lamb ("Lamb").
WHEREAS, the Company and Lamb are parties to an Employment Agreement
dated as of March 2, 1992 (the "Original Agreement"), providing for the
employment of Lamb to serve as the Chief Operating Officer and President of the
Company under the terms and conditions set forth therein; and
WHEREAS, the Board of Directors of the Company has determined that it
is appropriate and in the best interests of the Company and its shareholders to
modify the Original Agreement in certain respects relating to the provision of
health insurance coverage and other benefits to be provided to Lamb and his
spouse.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
Section 1. Compensation. Section 4 of the Original
Agreement is hereby amended to read as follows:
4. Compensation. The Company shall pay to Lamb an annual
salary of Three Hundred and Fifty Thousand Dollars ($350,000), payable
in equal monthly installments, or such other amount as shall be
mutually agreed upon by the Company and Lamb (the "Salary"). In
addition, Lamb and/or Lamb's family shall be entitled to receive all
benefits presently provided or those which may hereafter be paid alsogenerally
provided by the expenseCompany to its employees, officers or directors,
including health insurance and life insurance. With respect to such
health insurance benefits, the Company agrees that at all times the
health insurance coverages available to Lamb and his spouse under such
plans shall include provisions providing for lifetime benefits payable
on behalf of prosecutingLamb and his spouse of not less than One Million Dollars
($1,000,000) each, or such claim. It shall be a defenseother amount as the Company and Lamb may
specifically agree upon in writing, subject, however, to any
such action (other than an
action broughtlimitations, restrictions or conditions that shall from time to enforcetime be
necessary to satisfy the requirements of applicable federal or state
laws and regulations.
Section 2. Obligations of the Company Upon
Termination of Employment - Death of Lamb. Section 6,
paragraph (a), of the Original Agreement is hereby amended
to read as follows:
(a) Death of Lamb. In the event of the death of Lamb during
the term hereof, the Company shall pay to Lamb's spouse, commencing on
the first day of the month following his death and continuing for a
claim for expenses incurred in defending any
proceeding in advanceperiod of its final disposition where the required affirmation
and undertaking, if any is required, has been tenderedtwenty-four (24) months thereafter, benefits equal to the
Corporation) thatmonthly installments of Salary which would have been due to Lamb
pursuant to Section 4 herein. Immediately following such two-year
period, the claimant has not met the standards of conduct which make it permissible
under the Iowa Business Corporation Act for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defenseCompany shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Iowa Business Corporation Act,
nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(3) The right to indemnification andcommence the payment of expenses incurredmonthly benefits to
Lamb's spouse equal in defendingamount to one-half (1/2) of the amount to which
Lamb would have been entitled as retirement benefits under Section 9
herein, which monthly benefits shall be paid for a proceedingperiod of twenty
(20) years or until the death of Lamb's spouse, whichever occurs first.
In addition, the Company shall continue at all times to offer and
provide health insurance coverage to Lamb's spouse, in advanceaccordance with
the plans, programs, practices and policies provided by the Company
under the terms of this Agreement at the time of Lamb's death, until
the death of Lamb's spouse, except to the extent such coverage is or
otherwise becomes available to Lamb's spouse under the Medicare program
of benefits.
Section 3. Obligations of the Company Upon Termination of Employment -
Disability. Section 6, paragraph (b), of the Original Agreement is hereby
amended by adding the following new unnumbered subparagraph:
Notwithstanding any Disability on the part of Lamb, the
Company shall continue at all times to offer and provide health
insurance coverages to Lamb and his spouse, in accordance with the most
favorable plans, programs, practices and policies provided by the
Company during the 90-day period immediately preceding the Disability
Effective Date or, if more favorable to Lamb, as in effect at any time
thereafter with respect to other key employees and their families,
until the death of Lamb and his spouse, except to the extent such
coverage is or otherwise becomes available to Lamb and his spouse under
the Medicare program of benefits.
Section 4. Obligations of the Company Upon
Termination of Employment - Good Reason; Other Than for
Cause or Disability. Section 6, paragraph (d),
subparagraph (ii), of the Original Agreement is hereby
amended to read as follows:
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Lamb and/or Lamb's family at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies provided
under this Agreement if Lamb's employment had not been terminated,
including health insurance and life insurance, in accordance with the
most favorable plans, practices, programs or policies provided by the
Company and its final disposition conferredsubsidiaries during the 90-day period immediately
preceding the Date of Termination or, if more favorable to Lamb, as in
effect at any time thereafter with respect to other key employees and
their families. Notwithstanding the foregoing, however, the Company
shall continue at all times to offer and provide the above-described
health insurance coverages to Lamb and his spouse until their
respective dates of death, except to the extent such coverage is or
otherwise becomes available to Lamb and his spouse under the Medicare
program of benefits.
Section 5. Obligations of the Company Upon Termination of Employment -
Good Reason; Other Than for Cause or Disability, Following a Change of Control.
Section 6, paragraph (e), subparagraph (ii), of the Original Agreement is hereby
amended to read as follows:
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Lamb and/or Lamb's
family at least equal to those which would have been provided to them
in accordance with the plans, programs, practices and policies provided
under this Agreement if Lamb's employment had not been
terminated, including health insurance and life insurance, in
accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day
period immediately preceding the Date of Termination or, if more
favorable to Lamb, as in effect at any time thereafter with respect to
other key employees and their families. Notwithstanding the foregoing,
however, the Company shall continue at all times to offer and provide
the above-described health insurance coverages to Lamb and his spouse
until their respective dates of death, except to the extent such
coverage is or otherwise becomes available to Lamb and his spouse under
the Medicare program of benefits.
Section 6. Retirement of Lamb - Normal Retirement.
Section 9, paragraph (a) of the Original Agreement is hereby
amended to read as follows:
(a) Normal Retirement. It is understood that Lamb
shall retire on the last day of the calendar year during which
he reaches sixty-five (65) years of age and the Company, in
consideration for the services performed under Sections 3 and
10 hereof, shall pay to Lamb an annual retirement benefit
equal to one-half (1/2) of his Salary (adjusted on an annual
basis to include the Annual Increase), which benefits shall
continue to be paid to Lamb until his death, after which such
benefits shall be paid to Lamb's spouse for a period ending on
(i) the twentieth (20th) anniversary of Lamb's retirement from
the Company or (ii) the death of Lamb's spouse, whichever
occurs first.
Section 7. Retirement of Lamb - Option of Lamb.
Section 9, paragraph (c) of the Original Agreement is hereby
amended to read as follows:
(c) Option of Lamb. Upon (i) reaching sixty (60)
years of age and (ii) having at any time prior thereto
completed twenty-five (25) years of employment with the
Company (whether or not this Agreement or an extension thereof
is then in effect), Lamb at his option may retire and shall no
longer be required to perform his duties under Section 3 of
this Agreement, but Lamb will be required to perform his
duties under Section 10 of this Agreement. If Lamb elects to
retire, the Company shall pay to Lamb an annual retirement
benefit, in lieu of his Salary, in an amount equal to one-half
(1/2) of his Salary (adjusted on an annual basis to include
the Annual Increase), which benefits shall continue to be paid
to Lamb until his death, after which such benefits shall be
paid to Lamb's spouse for a period ending on (x) the twentieth
(20th) anniversary of Lamb's retirement from the Company or
(y) the death of Lamb's spouse, whichever occurs first. The
obligation of the Company to make payments pursuant to this
subsection shall not become effective unless and until Lamb
shall have satisfied both of the foregoing conditions and
shall have given the Company thirty (30) days written notice
of his intention to retire from active employment with the
Company, but once both of such conditions have been met,
Lamb's right to receive the benefits described in this ArticleSection
9(c) shall notvest irrevocably and the Company shall be exclusive of any other rights which any person may have or
hereafter acquire under a provision ofobligated
to make the Restated and Amended Articles of
Incorporation, By-Laws, agreements, vote of stockholders or disinterested
directors or otherwise, both as to action in a person's official capacity and as
to action in another capacity while holding the office. The Corporation may
enter into separate written agreements with directors, officers, employees and
agents of the Corporation and of other enterprises, which agreements expressly
provide for indemnification and reimbursement of such persons to the fullest
extent now or hereafter permitted by this Article or applicable law.
(4) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss,payments described herein whether or not this
Agreement or an extension thereof is then in effect.
Section 8. Retirement of Lamb - Continuation of
Health Insurance. Section 9 of the Corporation wouldOriginal Agreement is
hereby amended by adding the following new paragraph:
(d) Continuation of Health Insurance. Following the retirement
of Lamb under the provisions of this Section 9, the Company shall
continue at all times to offer and provide health insurance coverages
to Lamb and his spouse, in accordance with the most favorable plans,
programs, practices and policies provided by the Company during the
90-day period immediately preceding the effective date of Lamb's
retirement or, if more favorable to Lamb, as in effect at any time
thereafter with respect to other key employees and their families,
until the death of Lamb and his spouse, except to the extent such
coverage is or otherwise becomes available to Lamb and his spouse under
the Medicare program of benefits.
Section 9. Effective Date of Amendments. The
amendments provided for herein shall be deemed effective as
of December 9, 1996.
Section 10. Miscellaneous.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all terms used herein have the powermeanings assigned to indemnify such person against such expense, liability or loss
underthem in
the Iowa Business Corporation Act.
ARTICLE XI
These Articles may beOriginal Agreement.
(b) Except as amended modified, revised and/or restated only by
resolution by the Board of Directors, which resolution is submitted to the
shareholders at an annual or special meetingherein, all other terms and
receives the affirmative voteconditions of the holders of a majorityOriginal Agreement are in all respects
ratified, confirmed and approved.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Employment Agreement to be duly executed and attested, all as of the shares entitled to vote thereon.
* * * *
This Restatement of the Amendedday and
Restated Articles of Incorporation of
Casey's General Stores, Inc., as amended to date, does not contain an amendment
requiring shareholder approval and has been adopted by the Board of Directors
this 9th day of December, 1996.year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Donald F. Lamberti
-----------------------------------------------------
Donald F. Lamberti, Chief
Executive Officer
ATTEST:
By: /s/ John G. Harmon
- --------------------------------------------
John G. Harmon,
Corporate Secretary
(SEAL)
/s/ Ronald M. Lamb
---------------------
Ronald M. Lamb
STATE OF IOWA Exhibit 10.23(a)
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made and entered into
as of the 9th day of January, 1997 by and between Casey's General Stores, Inc.,
an Iowa corporation (the "Company"), and Douglas K. Shull ("Shull") SS
COUNTY OF POLK .
WHEREAS, the Company and Shull are parties to an Employment Agreement
dated as of March 2, 1992 (the "Original Agreement")
We, Donald F. Lamberti, providing for the
employment of Shull to serve as the Treasurer of the Company under the terms and
conditions set forth therein; and
WHEREAS, the Board of Directors of the Company has determined that it
is appropriate and in the best interests of the Company and its shareholders to
modify the Original Agreement in certain respects relating to the provision of
health insurance coverage and other benefits to be provided to Shull and his
spouse.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
Section 1. Employment and Term. Section 2 of the Original Agreement is
hereby amended to read as follows:
2. Employment and Term. The Company agrees to
employ Shull, and Shull agrees to serve the Company, as
Treasurer of the Company until August 1, 2001, unless
his employment is otherwise terminated as provided
herein; provided, however, that in the event of a Change of Control
during the foregoing Employment Period, this Agreement shall continue
in full force and effect for an additional period of three (3) years
following the expiration of the Employment Period (until August 1,
2004).
Section 2. Compensation. Section 4 of the Original
Agreement is hereby amended to read as follows:
4. Compensation. The Company shall pay to Shull an annual
salary of One Hundred Forty-Five Thousand Dollars ($145,000), payable
in equal monthly installments, or such other amount as shall be
mutually agreed upon by the Company and Shull (the "Salary"). In
addition, Shull and/or Shull's family shall be entitled to receive all
benefits presently provided or those which may hereafter be provided
generally by the Company to its employees, officers or directors,
including health insurance and life insurance. With respect to such
health insurance benefits, the Company agrees that at all times the
health insurance coverages available to Shull and his spouse under such
plans shall include provisions providing for lifetime benefits payable
on behalf of Shull and his spouse of not less than One Million Dollars
($1,000,000) each, or such other amount as the Company and Shull may
specifically agree upon in writing, subject, however, to any
limitations, restrictions or conditions that shall from time to time be
necessary to satisfy the requirements of applicable federal or state
laws and regulations. Section 3. Termination of Employment -
Death or Disability. Section 5, paragraph (a), of the Original
Agreement is hereby amended by adding the following new unnumbered
subparagraph:
Notwithstanding any Disability on the part of Shull, the
Company shall continue at all times to offer and provide health
insurance coverages to Shull and his spouse, in accordance with the
plans, programs, practices and policies provided by the Company during
the 90-day period immediately preceding the Disability Effective Date
or, if more favorable to Shull, as in effect at any time thereafter
with respect to other key employees and their families, until the death
of Shull and his spouse, except to the extent such coverage is or
otherwise becomes available to Shull and his spouse under the Medicare
program of benefits.
Section 4. Obligations of the Company Upon Termination of Employment -
Death of Shull. Section 6, paragraph (a), of the Original Agreement is hereby
amended to read as follows:
(a) Death of Shull. In the event of the death of Shull during
the term hereof, the Company shall pay to Shull's spouse, commencing on
the first day of the month following his death and continuing for a
period of twelve (12) months thereafter, benefits equal to the monthly
installments of Salary which would have been due to Shull pursuant to
Section 4 herein. Immediately following such one-year period, the
Company shall commence the payment of monthly benefits to Shull's
spouse equal in amount to one-half (1/2) of the amount to which Shull
would have been entitled as retirement benefits under Section 9 herein,
which monthly benefits shall be paid for a period of twenty (20) years
or until the death of Shull's spouse, whichever occurs first. In
addition, the Company shall continue at all times to offer and provide
health insurance coverage to Shull's spouse, in accordance with the
plans, programs, practices and policies provided by the Company under
the terms of this Agreement at the time of Shull's death, until the
death of Shull's spouse, except to the extent such coverage is or
otherwise becomes available to Shull's spouse under the Medicare
program of benefits.
Section 5. Obligations of the Company Upon Termination of Employment - Good
Reason; Other Than for Cause or Disability. Section 6, paragraph (c),
subparagraph (ii), of the Original Agreement is hereby amended to read as
follows:
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Shull and/or Shull's family at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies provided
under this Agreement if Shull's employment had not been terminated,
including health insurance and life insurance, in accordance with the
most favorable plans, practices, programs or policies provided by the
Company and its subsidiaries during the 90-day period immediately
preceding the Date of Termination or, if more favorable to Shull, as in
effect at any time thereafter with respect to other key employees and
their families. Notwithstanding the foregoing, however, the Company
shall continue at all times to offer and provide the above-described
health insurance coverages to Shull and his spouse until their
respective dates of death, except to the extent such coverage is or
otherwise becomes available to Shull and his spouse under the Medicare
program of benefits.
Section 6. Obligations of the Company Upon Termination of Employment - Good
Reason; Other Than for Cause or Disability, Following a Change of Control.
Section 6, paragraph (e), subparagraph (ii), of the Original Agreement is hereby
amended to read as follows:
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Shull and/or
Shull's family at least equal to those which would have been provided
to them in accordance with the plans, programs, practices and policies
provided under this Agreement if Shull's employment had not been
terminated, including health insurance and life insurance, in
accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day
period immediately preceding the Date of Termination or, if more
favorable to Shull, as in effect at any time thereafter with respect to
other key employees and their families. Notwithstanding the foregoing,
however, the Company shall continue at all times to offer and provide
the above-described health insurance coverages to Shull and his spouse
until their respective dates of death, except to the extent such
coverage is or otherwise becomes available to Shull and his spouse
under the Medicare program of benefits.
Section 7. Retirement of Shull - Normal Retirement.
Section 9, paragraph (a) of the Original Agreement is hereby
amended to read as follows:
(a) Normal Retirement. Provided that this Agreement
or an extension thereof remains in effect, it is understood
that Shull shall retire on the last day of the calendar year
during which he reaches sixty-five (65) years of age, and the
Company, in consideration for the services performed under
Sections 3 and 10 hereof, shall pay to Shull, in such event,
an annual retirement
benefit equal to one-half (1/2) of his Salary (adjusted on an
annual basis to include the Annual Increase), which benefits
shall continue to be paid to Shull until his death, after
which such benefits shall be paid to Shull's spouse for a
period ending on (i) the twentieth (20th) anniversary of
Shull's retirement from the Company or (ii) the death of
Shull's spouse, whichever occurs first.
Section 8. Retirement of Shull - Option of Shull.
Section 9, paragraph (c), of the Original Agreement is
hereby amended to read as follows:
(c) Option of Shull. Provided that this Agreement or an
extension thereof remains in effect, Shull, upon reaching fifty-eight
(58) years of age, at his option, may retire and shall no longer be
required to perform his duties under Section 3 of this Agreement, but
Shull will be required to perform his duties under Section 10 of this
Agreement. If Shull elects to retire, the Company shall pay to Shull an
annual retirement benefit, in lieu of his Salary, in an amount equal to
one-third (1/3) of his Salary at age fifty-eight (58) (adjusted
thereafter on an annual basis to include the Annual Increase), with
such base amount to be increased each year thereafter by 2.4 percent of
the adjusted annual Salary until Shull determines to retire, to a
maximum amount equal to one-half (1/2) of Shull's Salary on the date of
his retirement occurring after he reaches age sixty-five (65), such
benefits to continue to be paid to Shull until his death, after which
such benefits shall be paid to Shull's spouse for a period ending on
(i) the twentieth (20th) anniversary of Shull's retirement from the
Company or (ii) the death of Shull's spouse, whichever occurs first.
The obligation of the Company to make payments pursuant to
this subsection shall not become effective unless and until Shull shall
have given the Company thirty (30) days written notice of his intention
to retire from active employment with the Company.
Section 9. Retirement of Shull - Continuation of
Health Insurance. Section 9 of the Original Agreement is
hereby amended by renumbering existing paragraph (d) as
paragraph (e) and by adding the following paragraph as a new
paragraph (d):
(d) Continuation of Health Insurance. Following the retirement
of Shull under the provisions of this Section 9, the Company shall
continue at all times to offer and provide health insurance coverages
to Shull and his spouse, in accordance with the most favorable plans,
programs, practices and policies provided by the Company during the
90-day period immediately preceding the effective date of Shull's
retirement or, if more favorable to Shull, as in effect at any time
thereafter with respect to other key employees and their families,
until the death of Shull and his spouse, except to the extent such
coverage is or otherwise becomes available to Shull and his spouse
under the Medicare program of benefits, and provided further that Shull
and his spouse shall pay the same contribution as that required by
other Company employees receiving such benefits until they reach
sixty-five (65) years of age.
Section 10. Effective Date of Amendments. The
amendments provided for herein shall be deemed effective as
of December 9, 1996.
Section 11. Miscellaneous.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in
the Original Agreement.
(b) Except as amended herein, all other terms and
conditions of the Original Agreement are in all respects
ratified, confirmed and approved.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Employment Agreement to be duly executed and attested, all as of the day and
year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
---------------------
Ronald M. Lamb, President
ATTEST:
By: /s/ John G. Harmon
---------------------
John G. Harmon, Secretary
(SEAL)
/s/ Douglas K. Shull
---------------------
Douglas K. Shull
Exhibit 10.24(a)
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is made and entered into
as of the 9th day of January, 1997 by and between Casey's General Stores, Inc.,
an Iowa corporation (the "Company"), and John G. Harmon being first duly sworn on oath,
depose("Harmon").
WHEREAS, the Company and state that weHarmon are parties to an Employment Agreement
dated as of July 19, 1994 (the "Original Agreement"), providing for the
Chief Executive Officer andemployment of Harmon to serve as the Corporate Secretary respectively, of the Company under
the terms and conditions set forth therein; and
WHEREAS, the Board of Directors of the Company has determined that it
is appropriate and in the best interests of the Company and its shareholders to
modify the Original Agreement in certain respects relating to the provision of
health insurance coverage and other benefits to be provided to Harmon and his
spouse.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
Section 1. Employment and Term. Section 2 of the
Original Agreement is hereby amended to read as follows:
2. Employment and Term. The Company agrees to
employ Harmon, and Harmon agrees to serve the Company,
as Secretary of the Company until August 1, 2001,
unless his employment is otherwise terminated as
provided herein; provided, however, that in the event of a Change of
Control during the foregoing Employment Period, this Agreement shall
continue in full force and effect for an additional period of three (3)
years following the expiration of the Employment Period (until August
1, 2004).
Section 2. Compensation. Section 4 of the Original
Agreement is hereby amended to read as follows:
4. Compensation. The Company shall pay to Harmon an annual
salary of One Hundred Thirty-Five Thousand Dollars ($135,000), payable
in equal monthly installments, or such other amount as shall be
mutually agreed upon by the Company and Harmon (the "Salary"). In
addition, Harmon and/or Harmon's family shall be entitled to receive
all benefits presently provided or those which may hereafter be
provided generally by the Company to its employees, officers or
directors, including health insurance and life insurance. With respect
to such health insurance benefits, the Company agrees that at all times
the health insurance coverages available to Harmon and his spouse under
such plans shall include provisions providing for lifetime benefits
payable on behalf of Harmon and his spouse of not less than One Million
Dollars ($1,000,000) each, or such other amount as the Company and
Harmon may specifically agree upon in writing, subject, however, to any
limitations, restrictions or conditions that shall from time to time be
necessary to satisfy the requirements of applicable federal or state
laws and regulations.
Section 3. Termination of Employment - Death or
Disability. Section 5, paragraph (a), of the Original
Agreement is hereby amended by adding the following new unnumbered subparagraph:
Notwithstanding any Disability on the part of Harmon, the
Company shall continue at all times to offer and provide health
insurance coverages to Harmon and his spouse, in accordance with the
plans, programs, practices and policies provided by the Company during
the 90-day period immediately preceding the Disability Effective Date
or, if more favorable to Harmon, as in effect at any time thereafter
with respect to other key employees and their families, until the death
of Harmon and his spouse, except to the extent such coverage is or
otherwise becomes available to Harmon and his spouse under the Medicare
program of benefits.
Section 4. Obligations of the Company Upon
Termination of Employment - Death of Harmon. Section 6,
paragraph (a), of the Original Agreement is hereby amended
to read as follows:
(a) Death of Harmon. In the event of the death of Harmon
during the term hereof, the Company shall pay to Harmon's spouse,
commencing on the first day of the month following his death and
continuing for a period of twelve (12) months thereafter, benefits
equal to the monthly installments of Salary which would have been due
to Harmon pursuant to Section 4 herein. Immediately following such
one-year period, the Company shall commence the payment of monthly
benefits to Harmon's spouse equal in amount to one-half (1/2) of the
amount to which Harmon would have been entitled as retirement benefits
under Section 9 herein, which monthly benefits shall be paid for a
period of twenty (20) years or until the death of Harmon's spouse,
whichever occurs first. In addition, the Company shall
continue at all times to offer and provide health insurance coverage to
Harmon's spouse, in accordance with the plans, programs, practices and
policies provided by the Company under the terms of this Agreement at
the time of Harmon's death, until the death of Harmon's spouse, except
to the extent such coverage is or otherwise becomes available to
Harmon's spouse under the Medicare program of benefits.
Section 5. Obligations of the Company Upon Termination of Employment - Good
Reason; Other Than for Cause or Disability. Section 6, paragraph (c),
subparagraph (ii), of the Original Agreement is hereby amended to read as
follows:
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Harmon and/or Harmon's family at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies provided
under this Agreement if Harmon's employment had not been terminated,
including health insurance and life insurance, in accordance with the
most favorable plans, practices, programs or policies provided by the
Company and its subsidiaries during the 90-day period immediately
preceding the Date of Termination or, if more favorable to Harmon, as
in effect at any time thereafter with respect to other key employees
and their families. Notwithstanding the foregoing, however, the Company
shall continue at all times to offer and provide the above-described
health insurance coverages to Harmon and his spouse until their
respective dates of death, except to the extent such coverage is or
otherwise becomes available to Harmon and his spouse under the Medicare
program of benefits.
Section 6. Obligations of the Company Upon Termination of Employment -
Good Reason; Other Than for Cause or Disability, Following a Change of Control.
Section 6, paragraph (d), subparagraph (ii), of the Original Agreement is hereby
amended to read as follows:
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Harmon and/or
Harmon's family at least equal to those which would have been provided
to them in accordance with the plans, programs, practices and policies
provided under this Agreement if Harmon's employment had not been
terminated, including health insurance and life insurance, in
accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day
period immediately preceding the Date of Termination or, if more
favorable to Harmon, as in effect at any time thereafter with respect
to other key employees and their families. Notwithstanding the
foregoing, however, the Company shall continue at all times to offer
and provide the above-described health insurance coverages to Harmon
and his spouse until their respective dates of death, except to the
extent such coverage is or otherwise becomes available to Harmon and
his spouse under the Medicare program of benefits.
Section 7. Retirement of Harmon - Normal Retirement.
Section 9, paragraph (a) of the Original Agreement is hereby
amended to read as follows:
\
(a) Normal Retirement. Provided that this
Agreement or an extension thereof remains in
effect, it is understood that Harmon shall retire
on the last day of the calendar year during which
he reaches sixty-five (65) years of age, and the
Company, in consideration for the services
performed under Sections 3 and 10 hereof, shall pay to Harmon,
in such event, an annual retirement benefit equal to one-half
(1/2) of his Salary (adjusted on an annual basis to include
the Annual Increase), which benefits shall continue to be paid
to Harmon until his death, after which such benefits shall be
paid to Harmon's spouse for a period ending on (i) the
twentieth (20th) anniversary of Harmon's retirement from the
Company or (ii) the death of Harmon's spouse, whichever occurs
first.
Section 8. Retirement of Harmon - Option of Harmon.
Section 9, paragraph (c), of the Original Agreement is
hereby amended to read as follows:
(c) Option of Harmon. Provided that this Agreement or an
extension thereof remains in effect, Harmon, upon reaching fifty-five
(55) years of age, at his option, may retire and shall no longer be
required to perform his duties under Section 3 of this Agreement, but
Harmon will be required to perform his duties under Section 10 of this
Agreement. If Harmon elects to retire, the Company shall pay to Harmon
an annual retirement benefit, in lieu of his Salary, in an amount equal
to one-fourth (1/4) of his Salary at age fifty-five (55) (adjusted
thereafter on an annual basis to include the Annual Increase), with
such base amount to be increased each year thereafter by five percent
(5%) of the adjusted annual Salary until Harmon determines to retire,
to a maximum amount equal to one-half (1/2) of Harmon's Salary on the
date of his retirement occurring after he reaches age sixty (60), such
benefits to continue to be paid to Harmon until his death, after which
such benefits shall be paid to Harmon's spouse for a period ending on
(i) the
twentieth (20th) anniversary of Harmon's retirement from the Company or
(ii) the death of Harmon's spouse, whichever occurs first. The
obligation of the Company to make payments pursuant to this subsection
shall not become effective unless and until Harmon shall have given the
Company thirty (30) days written notice of his intention to retire from
active employment with the Company.
Section 9. Retirement of Harmon - Continuation of
Health Insurance. Section 9 of the Original Agreement is
hereby amended by renumbering existing paragraph (d) as
paragraph (e) and by adding the following paragraph as a new
paragraph (d):
(d) Continuation of Health Insurance. Following the retirement
of Harmon under the provisions of this Section 9, the Company shall
continue at all times to offer and provide health insurance coverages
to Harmon and his spouse, in accordance with the most favorable plans,
programs, practices and policies provided by the Company during the
90-day period immediately preceding the effective date of Harmon's
retirement or, if more favorable to Harmon, as in effect and any time
thereafter with respect to other key employees and their families,
until the death of Harmon and his spouse, except to the extent such
coverage is or otherwise becomes available to Harmon and his spouse
under the Medicare program of benefits, and provided further that
Harmon and his spouse shall pay the same contribution as that required
of other Company employees receiving such benefits until they reach
sixty-five (65) years of age.
Section 10. Effective Date of Amendments. The
amendments provided for herein shall be deemed effective as
of December 9, 1996.
Section 11. Miscellaneous.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in
the Original Agreement.
(b) Except as amended herein, all other terms and
conditions of the Original Agreement are in all respects
ratified, confirmed and approved.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Employment Agreement to be duly executed and attested, all as of the day and
year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
--------------------
Ronald M. Lamb, President
ATTEST:
By: /s/ Eli J. Wirtz
---------------------
Eli J. Wirtz,
Assistant Secretary
(SEAL)
/s/ John G. Harmon
-------------------
John G. Harmon
Exhibit 10.29
EMPLOYMENT AGREEMENT
AGREEMENT by and between Casey's General Stores, Inc. (the "Company"),
and that we have
executed the foregoing Restatement_________________________ (the "Employee"), dated as of the Restated________ day of
_______________, 1997.
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and Amended Articlesits shareholders to assure
that the Company will have the continued dedication of Incorporation, as amendedthe Employee,
notwithstanding the possibility, threat, or occurrence of a Change of Control
(as defined below) of the Company. The Board believes it is imperative to
diminish the inevitable distraction of the Employee by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control, to
encourage the Employee's full attention and dedication to the Company currently
and in the event of any threatened or pending Change of Control, and to provide
the Employee with compensation arrangements upon a Change of Control which
provide the Employee with individual financial security and which are
competitive with those of other corporations and, in order to accomplish these
objectives, the Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. (a) The "Effective Date" shall be the first
date during the "Change of Control Period" (as defined in Section l(b)) on which
a Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if the Employee's employment with the Company is terminated
prior to the date on which a Change of Control occurs, and it is reasonably
demonstrated that such termination (1) was at the request of a third party who
has taken steps reasonably calculated to effect a Change of Control or (2)
otherwise arose in connection with or anticipation of a Change of Control, then
for all purposes of this Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination.
(b) The "Change of Control Period" is the period commencing on
the date hereof and ending on the earlier to occur of (i) the second anniversary
of such date or (ii) the first day of the month next following the Employee's
normal retirement date ("Normal Retirement Date") under the terms of the Sixth
Amended and Restated Casey's General Stores, Inc. Employees' Stock Ownership
Plan and Trust Agreement or any successor retirement plan (the "Retirement
Plan"); provided, however, that commencing on the date one year after the date
hereof, and on each annual anniversary of such date (such date and each annual
anniversary thereof is hereinafter referred to as the Chief
Executive Officer"Renewal Date"), the
Change of Control Period shall be automatically extended so as to terminate on
the earlier of (x) two years from such Renewal
Date or (y) the first day of the month coinciding with or next following the
Employee's Normal Retirement Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice that the Change of Control Period shall not
be so extended.
2. Change of Control. For the purpose of this
Agreement, a "Change of Control" shall mean:
(i) The acquisition (other than from the Company) by any
person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 (the "Exchange Act"), (excluding, for this
purpose, the Company or its subsidiaries, or any employee benefit plan of the
Company or its subsidiaries which acquires beneficial ownership of voting
securities of the Company) of beneficial ownership, (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of
either the then outstanding shares of Common Stock, no par value, of the Company
or the combined voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors (hereinafter referred to
as the "Common Stock"), unless such beneficial ownership was acquired as a
result of an acquisition of shares of Common Stock by the Company which, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such person, entity or "group" to twenty percent
(20%) or more of the Common Stock of the Company then outstanding; provided,
however, that if a person, entity or "group" shall become the beneficial owner
of twenty percent (20%) or more of the Common Stock of the Company then
outstanding by reason of share purchases by the Company and Corporate Secretaryshall, after such
share purchases by the Company, become the beneficial owner of any additional
shares of Common Stock of the Company, then such person, entity or "group" shall
be deemed to have met the conditions hereof; or
(ii) Individuals who, as of the date hereof, constitute the
Board (as of the date hereof, the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the Directors of the Company, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) shall be, for purposes of
this Agreement, considered as though such person were a member of the Incumbent
Board; or
(iii) Approval by the shareholders of the
Company of a reorganization, merger, consolidation, in each
case, with respect to which persons who were the
shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities, or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company.
3. Employment Period. The Company hereby agrees to continue the
Employee in its employ, and the Employee hereby agrees to remain in the employ
of the Company, for the period commencing on the Effective Date and ending on
the earlier to occur of (a) the second anniversary of such date or (b) the first
day of the month coinciding with or next following the Employee's Normal
Retirement Date (the "Employment Period").
4. Terms of Employment. (a) Position and Duties.
(i) During the Employment Period, (A) the Employee's position (including
status, offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material respects with
the most significant of those held, exercised and assigned at any time during
the 90-day period immediately preceding the Effective Date and (B) the
Employee's services shall be performed at the location where the Employee was
employed immediately preceding the Effective Date or any office or
location less than thirty-five (35) miles from such location.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Employee is entitled, the Employee
agrees to devote reasonable attention and time during normal business hours to
the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Employee hereunder, to use the
Employee's reasonable best efforts to perform faithfully and efficiently such
responsibilities.
(b) Compensation. (i) Base Salary. During the Employment Period, the
Employee shall receive a base salary ("Base Salary") at a monthly rate at least
equal to the highest monthly base salary paid or payable to the Employee by the
Company during the twelve-month period immediately preceding the month in which
the Effective Date occurs. During the Employment Period, the Base Salary shall
be reviewed at least annually and shall be increased at any time and from time
to time as shall be substantially consistent with increases in base salary
awarded in the ordinary course of business to other key employees of the Company
and its subsidiaries. Any increase in Base Salary shall not serve to limit or
reduce any other obligation to the Employee under this Agreement. Base Salary
shall not be reduced after any such increase.
(ii) Annual Bonus. In addition to Base Salary, the Employee
shall be awarded, for each fiscal year during the Employment Period, an annual
bonus (an "Annual Bonus") in cash at least equal to the average bonus payable to
the Employee from the Company and its subsidiaries in respect of the three
fiscal years immediately preceding the fiscal year in which the Effective Date
occurs.
(iii) Incentive, Savings and Retirement Plans. In addition to
Base Salary and Annual Bonus payable as hereinabove provided, the Employee shall
be entitled to participate during the Employment Period in all incentive,
savings and retirement plans, practices, policies and programs applicable to
other key employees of the Company and its subsidiaries, in each case providing
benefits which are the economic equivalent to those in effect or as subsequently
amended. Such plans, practices, policies and programs, in the aggregate, shall
provide the Employee with compensation, benefits and reward opportunities at
least as favorable as the most favorable of such compensation, benefits and
reward opportunities provided by the Company for the Employee under such plans,
practices, policies and programs as in effect at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the
Employee, as provided at any time thereafter with respect to other key employees
of the Company and its subsidiaries.
(iv) Welfare Benefit Plans. During the Employment Period, the
Employee and/or the Employee's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its subsidiaries
(including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), at least as favorable as the most
favorable of such plans, practices, policies and programs in effect at any time
during the 90-day period immediately preceding the Effective Date or, if more
favorable to the Employee and/or the Employee's family, as in effect at any time
thereafter with respect to other key employees of the Company and its
subsidiaries.
(v) Expenses. During the Employment Period, the Employee shall
be entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Employee in accordance with the most favorable policies, practices and
procedures of the Company and its subsidiaries in effect at any time during the
90-day period immediately preceding the Effective Date or, if more favorable to
the Employee, as in effect at any time thereafter with respect to other key
employees of the Company and its subsidiaries.
(vi) Fringe Benefits. During the Employment
Period, the Employee shall be entitled to fringe benefits,
including the continued use of an automobile and payment of related expenses, in
accordance with the most favorable plans, practices, programs and policies of
the Company and its subsidiaries in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the Employee,
as in effect at any time thereafter with respect to other key employees of the
Company and its subsidiaries.
(vii) Office and Support Staff. During the Employment Period, the Employee
shall be entitled to an office or offices of a size and with furnishings and
other appointments, and to secretarial and other assistance, at least equal to
the most favorable of the foregoing provided to the Employee by the Company and
its subsidiaries at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Employee, as provided at any time
thereafter with respect to other key employees of the Company and its
subsidiaries.
(viii) Vacation. During the Employment Period, the Employee shall be
entitled to paid vacation in accordance with the most favorable plans, policies,
programs and practices of the Company and its subsidiaries as in effect at any
time during the 90-day period immediately preceding the Effective Date or, if
more favorable to the Employee, as in effect at any time thereafter with respect
to other key employees of the Company and its subsidiaries.
5. Termination. (a) Death or Disability. This Agreement shall terminate
automatically upon the Employee's death. If the Company determines in good faith
that the Disability of the Employee has occurred (pursuant to the definition of
"Disability" set forth below), it may give to the Employee written notice of its
intention to terminate the Employee's employment. In such event, the Employee's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Employee (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Employee shall not
have returned to full-time performance of the Employee's duties. For purposes of
this Agreement, "Disability" means disability which, at least 26 weeks after its
commencement, is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Employee or the Employee's
legal representative (such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause. The Company may terminate the Em ployee's
employment for "Cause." For purposes of this Agreement, "Cause" means (i) an act
or acts of personal dishonesty taken by the Employee and intended to result in
substantial personal enrichment of the Employee at the expense of the Company,
(ii) repeated violations by the Employee of the Employee's obligations under
Section 4(a) of this Agreement which are demonstrably willful and deliberate
on the Employee's part and which are not remedied in a reasonable period of time
after receipt of written notice from the Company or (iii) the conviction of the
Employee of a felony.
(c) Good Reason. The Employee's employment may be
terminated by the Employee for Good Reason. For purposes of
this Agreement, "Good Reason" means
(i) the assignment to the Employee of any duties
inconsistent in any respect with the Employee's position
(including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or any other
action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for
this purpose an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the
Employee;
(ii) any failure by the Company to comply with any of
the provisions of Section 4(b) of this Agreement, other than
an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the
Employee;
(iii) the Company's requiring the Employee to be
based at any office or location other than that described in
Section 4(a)(i)(B) hereof, except for travel reasonably
required in the performance of the Employee's
responsibilities;
(iv) any purported termination by the
Company of the Employee's employment otherwise than
as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with
and satisfy Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by the Employee shall be conclusive.
(d) Notice of Termination. Any termination by the Company for
Cause or by the Employee for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than fifteen (15) days after
the giving of such notice). The failure by
the Employee to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason shall not waive any right of the
Employee hereunder or preclude the Employee from asserting such fact or
circumstance in enforcing his rights hereunder.
(e) Date of Termination. "Date of Termination" means the date
of receipt of the Notice of Termination or any later date specified therein, as
the case may be; provided, however, that (i) if the Employee's employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the Employee of such
termination and (ii) if the Employee's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of the
Employee or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination.
(a) Death. If the Employee's employment is
terminated by reason of the Employee's death, this Agreement shall terminate
without further obligations to the Employee's legal representatives under this
Agreement, other than those obligations accrued or earned and vested (if
applicable) by the Employee as of the Date of Termination, including, for this
purpose (i) the Employee's full Base Salary through the Date of Termination at
the rate in effect on the Date of Termination or, if higher, at the highest rate
in effect at any time from the 90-day period preceding
the Effective Date through the Date of Termination (the "Highest Base Salary"),
(ii) the product of the Annual Bonus paid to the Employee for the last full
fiscal year and a fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination, and the denominator of
which is 365 and (iii) any compensation previously deferred by the Employee
(together with any accrued interest thereon) and not yet paid by the Company and
any accrued vacation pay not yet paid by the Company (such amounts specified in
clauses (i), (ii) and (iii) are hereinafter referred to as "Accrued
Obligations"). All such Accrued Obligations shall be paid to the Employee's
estate or beneficiary, as applicable, in a lump sum in cash within 30 days of
the Date of Termination. Anything in this Agreement to the contrary
notwithstanding, the Employee's family shall be entitled to receive benefits at
least equal to the most favorable benefits provided by the Company and any of
its subsidiaries to surviving families of employees of the Company and such
subsidiaries under such plans, programs, practices and policies relating to
family death benefits, if any, in accordance with the most favorable plans,
programs, practices and policies of the Company and its subsidiaries in effect
at any time during the 90-day period immediately preceding the Effective Date
or, if more favorable to the Employee and/or the Employee's family, as in effect
on the date of the Employee's death with respect
to other key employees of the Company and its subsidiaries
and their families.
(b) Disability. If the Employee's employment is terminated by
reason of the Employee's Disability, this Agreement shall terminate without
further obligations to the Employee, other than those obligations accrued or
earned and vested (if applicable) by the Employee as of the Date of Termination,
including for this purpose, all Accrued Obligations. All such Accrued
Obligations shall be paid to the Employee in a lump sum in cash within 30 days
of the Date of Termination. Anything in this Agreement to the contrary
notwithstanding, the Employee shall be entitled after the Disability Effective
Date to receive disability and other benefits at least equal to the most
favorable of those provided by the Company and its subsidiaries to disabled
employees and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, in accordance with the
most favorable plans, programs, practices and policies of the Company and its
subsidiaries in effect at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Employee and/or the
Employee's family, as in effect at any time thereafter with respect to other key
employees of the Company and its subsidiaries and their families.
(c) Cause; Other than for Good Reason. If the
Employee's employment shall be terminated for Cause, this
Agreement shall terminate without further obligations to the Employee other than
the obligation to pay to the Employee the Highest Base Salary through the Date
of Termination plus the amount of any compensation previously deferred by the
Employee (together with accrued interest thereon). If the Employee terminates
employment other than for Good Reason, this Agreement shall terminate without
further obligations to the Employee, other than those obligations accrued or
earned and vested (if applicable) by the Employee through the Date of
Termination, including for this purpose, all Accrued Obligations. All such
Accrued Obligations shall be paid to the Employee in a lump sum in cash within
30 days of the Date of Termination.
(d) Good Reason; Other Than for Cause or Disabil ity. If,
during the Employment Period, the Company shall terminate the Employee's
employment other than for Cause, Disability, or death or if the Employee shall
terminate his employment for Good Reason:
(i) the Company shall pay to the Employee in a lump sum in
cash within thirty (30) days after the Date of Termination the
aggregate of the following amounts:
A. to the extent not theretofore paid, the
Employee's Highest Base Salary through the Date of
Termination; and
B. the product of (x) the Annual Bonus paid
to the Employee for the last full fiscal year (if
any) ending during the Employment Period or, if
higher, the Annual Bonus paid to the Employee for the last
full fiscal year prior to the Effective Date (as applicable,
the "Recent Bonus") and (y) a fraction, the numerator of which
is the number of days in the current fiscal year through the
Date of Termination and the denominator of which is 365; and
C. the product of (x) three [or two] and (y)
the sum of (i) the Highest Base Salary and (ii) the
Recent Bonus; and
D. in the case of compensation previously
deferred by the Employee, all amounts previously
deferred (together with any accrued interest
thereon) and not yet paid by the Company, and any
accrued vacation pay not yet paid by the Company;
and
(ii) for the remainder of the Employment
Period, or such longer period as any plan program, practice or policy
may provide, the Company shall continue benefits to the Employee and/or
the Employee's family at least equal to those which would have been
provided to them in accordance with the plans, programs, practices and
policies described in Section 4(b)(iv) of this Agreement if the
Employee's employment had not been terminated, including health
insurance and life insurance, in accordance with the most favorable
plans, practices, programs or policies of the Company
and its subsidiaries during the 90-day period
immediately preceding the Effective Date or, if more
favorable to the Employee, as in effect at any time
thereafter with respect to other key employees and
their families, and for purposes of eligibility for
retiree benefits pursuant to such plans, practices,
programs and policies, the Employee shall be considered
to have remained employed until the end of the
Employment Period and to have retired on the last day
of such period.
7. Non-exclusivity of Rights. Nothing in this
Agreement shall prevent or limit the Employee's continuing or future
participation in any benefit, bonus, incentive or other plans, programs,
policies or practices, provided by the Company or any of its subsidiaries and
for which the Employee may qualify, nor shall anything herein limit or otherwise
affect such rights as the Employee may have under any stock option or other
agreements with the Company or any of its subsidiaries. Amounts which are vested
benefits or which the Employee is otherwise entitled to receive under any plan,
policy, practice or program of the Company or any of its subsidiaries at or
subsequent to the Date of Termina tion shall be payable in accordance with such
plan, policy, practice or program.
8. Full Settlement. The Company's obligation to make
the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by
any set-off, counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Employee or others. In no event shall the
Employee be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Employee under any of the provisions
of this Agreement. The Company agrees to pay, to the full extent permitted by
law, all legal fees and expenses which the Employee may reasonably incur as a
result of any contest (regardless of the outcome thereof) by the Company or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Employee about the amount of any payment pursuant to
Section 9 of this Agreement), plus in each case interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Internal Revenue Code of
1986, as amended (the "Code").
9. Certain Reduction of Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the benefit of the
Employee (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise) (a "Payment") would be nondeductible
by the Company for Federal income tax purposes because of Section 280G of the
Code, then the aggregate present value of amounts payable or distributable to or
for the benefit of
the Employee pursuant to this Agreement (such payments or distributions pursuant
to this Agreement are hereinafter referred to as "Agreement Payments") shall be
reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed
in present value which maximizes the aggregate present value of Agreement
Payments without causing any Payment to be nondeductible by the Company because
of Section 280G of the Code. Anything to the contrary notwithstanding, if the
Reduced Amount is zero and it is determined further that any Payment which is
not an Agreement Payment would nevertheless be nondeductible by the Company for
Federal income tax purposes because of Section 280G of the Code, then the
aggregate present value of Payments which are not Agreement Payments shall also
be reduced (but not below zero) to an amount expressed in present value which
maximizes the aggregate present value of Payments without causing any Payment to
be nondeductible by the Company because of Section 280G of the Code. For
purposes of this Section 9, present value shall be determined in accordance with
Section 280G(d)(4) of the Code.
(b) All determinations required to be made under this Section 9 shall
be made by KPMG Peat Marwick LLP, or such other firm as shall have conducted the
most recent audit of the Company's financial statements (the "Accounting Firm"),
which shall provide detailed supporting calculations both to the Company and the
Employee within 15 business days of the
Date of Termination or such earlier time as is requested by the Company and an
opinion to the Employee that he has substantial authority not to report any
Excise Tax on his Federal income tax return with respect to any Payments. Any
such determination by the Accounting Firm shall be binding upon the Company and
the Employee. The Employee shall determine which and how much of the Payments
shall be eliminated or reduced consistent with the requirements of this Section
9, provided that, if the Employee does not make such determination within ten
business days of the receipt of the calculations made by the Accounting Firm,
the Company shall elect which and how much of the Payments shall be eliminated
or reduced consistent with the requirements of this Section 9 and shall notify
the Employee promptly of such election. Within five business days thereafter,
the Company shall pay to or distribute to or for the benefit of the Employee
such amounts as are then due to the Employee under this Agreement.
(c) As a result of the uncertainty in the application of Section 280G
of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Payments will have been made by the Company which
should not have been made ("Overpayment") or that additional Payments which will
not have been made by the Company could have been made ("Underpayment"), in each
case, consistent with the calculations required to be made hereunder. In the
event that the Accounting Firm, based
upon the assertion of a deficiency by the Internal Revenue Service against the
Employee which the Accounting Firm believes has a high probability of success
determines that an Overpayment has been made, any such Overpayment paid or
distributed by the Company to or for the benefit of the Employee shall be
treated for all purposes as a loan ab initio to the Employee which the Employee
shall repay to the Company together with interest at the applicable federal rate
provided for in Section 7872(f)(2) of the Code; provided, however, that no such
loan shall be deemed to have been made and no amount shall be payable by the
Employee to the Company if and to the extent such deemed loan and payment would
not either reduce the amount on which the Employee is subject to tax under
Section 1 and Section 4999 of the Code or generate a refund of such taxes. In
the event that the Accounting Firm, based upon controlling precedent or other
substantial authority, determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Employee together with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code.
10. Confidential Information. The Employee shall hold
in a fiduciary capacity for the benefit of the Company all
secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and
their respective businesses, which shall have been obtained
by the Employee during the Employee's employment by the
Company or any of its subsidiaries and which shall not be or become public
knowledge (other than by acts by the Employee or his representatives in
violation of this Agreement). After termination of the Employee's employment
with the Company, the Employee shall not, without the prior written consent of
the Company, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In no event shall an
asserted violation of the provisions of this Section 10 constitute a basis for
deferring or withholding any amounts otherwise payable to the Employee under
this Agreement.
11. Successors. (a) This Agreement is personal to the
Employee and without the prior written consent of the
Company shall not be assignable by the Employee otherwise
than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable
by the Employee's legal representatives.
(b) This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and
assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken
place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
12. Miscellaneous. (a) This Agreement shall be
governed by and construed in accordance with the laws of the
State of Iowa, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows: If to the Company, to Casey's General Stores, Inc., P.O. Box 3001, One
Convenience Blvd., Ankeny, Iowa 50021, Attn: President; and if to the Employee,
to his or her address appearing on the books of the Company, or to his
residence, or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Employee's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.
(f) This Agreement contains the entire
understanding of the Company and the Employee with respect
to the subject matter hereof.
(g) The Employee and the Company acknowledge that the employment of the
Employee by the Company is "at will", and, prior to the Effective Date, may be
terminated by either the Employee or the Company at any time, with or without
cause, and with or without prior notice. The Employee acknowledges that this
Agreement does not constitute a contract of continued employment for any
specified term, or a contract of any type for any benefits or rights of
employment, until the Effective Date hereof, and that upon a termination of the
statements contained therein are true.
/s/ Donald F. LambertiEmployee's employment prior to the Effective Date, there shall be no further
rights under this Agreement.
IN WITNESS WHEREOF, the Employee has hereunto set his or her hand and,
pursuant to the authorization from its Board of Directors, the Company as caused
these presents to be executed in its name on its behalf, all as of the day and
year first above written.
---------------------------------
(Employee)
----------------------------
(Print name below signature)
CASEY'S GENERAL STORES, INC.
By: ---------------------------
Donald F. Lamberti,
Chief Executive Officer
/s/ John G. Harmon
------------------------
John G. Harmon,President
ATTEST:
By: -------------------
Corporate Secretary
Subscribed and sworn to before me this 10th day of December, 1996.
/s/ Connie Hatcher
-----------------------
Notary Public in and for
the State of Iowa
Exhibit 11
CASEY'S GENERAL STORES, INC.
Computation of Per Share Earnings
Three Months Ended
OctoberJanuary 31,
1997 1996 1995
Weighted average number of
common and common equivalent
shares:
Weighted average number
of shares outstanding ................. 26,225,206 26,117,40626,125,906
Shares applicable to
stock options 58,835 124,202......................... 57,829 124,314
----------- ----------
----------
26,284,041 26,241,60826,283,035 26,250,220
=========== ==========
Net income .................................. $ 8,905,135 8,802,130
==========5,536,435 6,847,466
=========== ==========
Earnings per common and
common equivalent share ................... $ .34 .34.21 .26
=========== ==========
==========
SixNine Months Ended
OctoberJanuary 31,
1997 1996 1995
---------- ----------
Weighted average number of
common and common equivalent
shares:
Weighted average number
of shares outstanding ................. 26,225,206 26,063,69826,084,434
Shares applicable to
stock options 63,852 145,919......................... 61,955 140,047
----------- ----------
----------
26,289,058 26,209,61726,287,161 26,224,481
Net income $17,775,837 16,714,610
==========.................................. $23,312,272 23,562,076
=========== ==========
Earnings per common and
common equivalent share ................... $ .68 .64
==========.89 .90
=========== ==========
- 18 -
Exhibit 99
Additional Exhibits:
CAUTIONARY STATEMENT RELATING
TO FORWARD-LOOKING STATEMENTS
Casey's General Stores, Inc. (the "Company") may, in discussions of its
future plans, objectives, and expected performance in periodic reports filed by
the Company with the Securities and Exchange Commission (or documents
incorporated by reference therein) and in written and oral presentations made by
the Company, include projections or other "forward-looking statements" within
the meaning of Section 27A of the Securities Act of 1933, as amended, or Section
21E of the Securities Exchange Act of 1934, as amended. These statements reflect
the Company's current views with respect to future events and financial
performance, and are based on management's beliefs as well as assumptions made
by and information currently available to management. The words "believe",
"expect," "anticipate," "intends," "estimate," "project" and similar expressions
are intended to identify forward-looking statements.
The Company wishes to caution investors that any forward-looking
statements made by or on behalf of the Company are subject to uncertainties and
other factors that could cause actual results to differ materially from such
statements. These uncertainties and other factors include, but are not limited
to, the several factors listed below (all of which have been discussed in prior
SEC filings by the Company). Although the Company has attempted to list the
important factors that presently affect the Company's business and operating
results, the Company wishes to caution investors that other factors may in the
future prove to be important in affecting the Company's results of operations.
New factors emerge from time to time and it is not possible for management to
predict all such factors, nor can it assess the impact of each such factor on
the business or the extent to which any factor, or combination of factors, may
cause actual results to differ materially from those contained in any
forward-looking statements.
Investors are further cautioned not to place undue reliance on such
forward-looking statements, as they speak only of the Company's views as of the
date the statement is made. The Company undertakes no obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise.
In addition to any assumptions and other factors referred to
specifically in connection with such forward-looking statements, factors that
could cause the Company's actual results to differ materially from those
contemplated in any forward-looking statements include, among others, the
following:
Gasoline operations. Gasoline sales are an important part of the
Company's sales and earnings, and retail gasoline profit margins have a
substantial impact on the Company's net income. Profit margins on gasoline sales
can be adversely affected by factors beyond the control of the Company,
including over-supply in the retail gasoline market, uncertainty or volatility
in the wholesale gasoline market (such as that experienced during 1991 as a
result of the Persian Gulf crisis), increases in wholesale gasoline costs
generally during a period and price competition from other gasoline marketers.
Any substantial decrease in profit margins on gasoline sales or in the number of
gallons sold by Company stores could have a material adverse effect on the
Company's earnings.
The Company purchases its gasoline from a variety of independent
national and regional petroleum distributors. Although in recent years the
Company's suppliers have not experienced any difficulties in obtaining
sufficient amounts of gasoline to meet the Company's needs, unanticipated
national and international events could result in a reduction of gasoline
supplies available for distribution to the Company. Any substantial curtailment
in gasoline supplied to the Company could adversely affect the Company by
reducing its gasoline sales. Further, management believes that a significant
amount of the Company's business results from the patronage of customers
primarily desiring to purchase gasoline and, accordingly, reduced gasoline
supplies could adversely affect the sale of non-gasoline items. Such factors
could have a material adverse impact upon the Company's earnings and operations.
Environmental Compliance Costs. The United States Environmental
Protection Agency and several of the states in which the Company does business
have adopted laws and regulations relating to underground storage tanks used for
petroleum products. Substantial costs have been incurred by the Company in the
past to comply with such laws and regulations, and additional substantial costs
are anticipated to be necessary. Several states in which the Company does
business have trust fund programs with provisions for sharing or reimbursing
corrective action or remediation costs. Any reimbursements received in respect
of such costs typically are subject to statutory provisions requiring repayment
of the reimbursed funds for non-compliance with upgrade provisions or other
applicable laws. Although the Company regularly accrues expenses for the
estimated costs related to its future corrective action or
Remediation efforts, there can be no assurance that such accrued amounts will be
sufficient to pay such costs, or that the Company will not be subject to any
claims for reimbursement of funds disbursed to the Company under the various
state programs or that additional regulations, or amendments to existing
regulations, will not require additional expenditures beyond those presently
anticipated.
Competition. The Company's business is highly competitive, and many of
the food (including prepared foods) and non-food items similar or identical to
those sold by the Company are generally available from a variety of competitors
in the communities served by Company stores. Sales of such non-gasoline items
(particularly prepared food items) have contributed substantially to the
Company's gross profits from retail sales in recent years. Gasoline sales are
also intensely competitive. The Company competes with both independent and
national brand gasoline stations in the sale of gasoline, some of which may have
access to more favorable arrangements for gasoline supply then do the Company or
the firms that supply its stores. Some of the Company's competitors have greater
financial and other resources than the Company.
Seasonality of Sales. Company sales generally are strongest during its
first fiscal quarter (May-July) and weakest during its fourth fiscal year
(February-April). In the warmer months of a year, customers tend to purchase
greater quantities of gasoline and certain convenience items such as beer, soft
drinks and ice. Difficult weather conditions in any quarter (such as flooding,
prolonged rain or snow storms), however, may adversely affect sales at Company
stores in the affected regions, and may have an adverse impact on the Company's
net income for that period.
Minimum Wage Legislation. Recent congressional action to increase the
federal minimum wage may have a significant impact on the Company's operating
results, particularly in the near term, to the extent the forthcoming increases
in labor expenses cannot be fully passed along to customers through price
increases. Although the Company has in the past been able to, and will continue
to attempt to, pass along increases in operating costs through price increases,
there can be no assurance that all of the expected increases in labor costs can
be reflected in prices, or that price increases will be absorbed by customers
without diminishing customer spending in Company stores.