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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the"Agreement") is executed effective as of
May 18, 1993 (the "Effective Date"), by and between NATIONAL CONVENIENCE STORES
INCORPORATED, a Delaware corporation (the "Company"), and ARNOLD VAN ZANTEN
("Executive").
R E C I T A L S
A. The Company filed a case under Chapter 11 of the Bankruptcy
Code on December 9, 1991 in the United States Bankruptcy Court for the Southern
District of Texas, Houston Division (the "Court"), Case No. 91-49819-H2-11 (the
"Case"). The company filed its Fourth Amended and Restated Plan of
Reorganization under Chapter 11 of the United States Bankruptcy Code (the
"Plan") in the Case, which Plan has been confirmed by the Court pursuant to an
Order confirming the Plan (the "Order") entered in the Case on February 25,
1993.
B. The Company is in the convenience store business and operates
stores in Texas, California and Georgia.
C. Executive is recognized as having experience in the management
and operation of companies that are in the convenience store business.
D. As contemplated in the Plan, the Company wishes to assure
itself of the services of Executive upon the conditions hereinafter provided,
and Executive desires to enter into this employment arrangement with the
Company.
E. As contemplated in the Plan, the Company and Executive have
agreed that as of the Effective Date this Agreement replaces any other
employment agreements with Executive.
W I T N E S S E T H
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and Executive hereby agree as follows:
ARTICLE I
EMPLOYMENT, REPORTING, TERM AND DUTIES
1.1 Employment. On the terms and subject to the conditions of
this Agreement, the Company hereby employs and engages the services of
Executive to serve as, and Executive
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agrees to diligently and competently serve as and perform the functions of,
Senior Vice President - Administration (the "Office") of the Company for the
term and for the compensation and benefits stated herein.
1.2 Term. The term of employment under this Agreement shall
commence on the Effective Date and shall continue for a term of (3) three
years thereafter (the "Term").
1.3 Major Responsibilities; Authority. Executive shall have the
responsibilities and authority usually associated with the Office of
corporations having assets similar in nature and value to the assets of the
Company and business similar to the business of the Company, and such other
duties as the Board of Directors of the Company shall determine from time to
time. The Company agrees that, except for removal with Cause (as defined in
Section 4.3 hereof), the removal of Executive from the position of the Office
during the Term of this Agreement shall constitute a material breach of this
Agreement.
1.4 Extent of Service. Executive agrees to devote his time and
energies to the business of the Company consistent with past practice and shall
not, during the Term of this Agreement, be engaged in any business activity
which would interfere or prevent Executive from carrying out his duties under
this Agreement; but this shall not be construed as preventing Executive from
investing his assets in such form or manner as will not require services on the
part of Executive in the operation of the affairs of any company in which such
investments are made.
1.5 Location. Executive shall not be required to move from
Executive's home in Montgomery County, Texas.
ARTICLE II
COMPENSATION AND RELATED ITEMS
2.1 Compensation. As compensation and consideration for the
services to be rendered by Executive under this Agreement and for the
performance by Executive of the usual obligations of such employment, the
Company agrees to pay Executive, and Executive agrees to accept, the following
compensation and benefits during the Term hereof:
a. Salary. A minimum annual salary in the amount of
$155,000 payable in equal weekly payments, subject to normal
withholding of state and federal income, unemployment and FICA taxes.
Any earnings over this minimum in one year shall not be applied to the
minimum salary for any subsequent years. If this Agreement terminates
on a date other than the last day of any month, Executive shall be
paid a pro rata portion of such salary for such month in the ratio
that the number of days of employment bears to the total number of
days in such month.
b. Additional Compensation. As further compensation,
Executive shall be entitled to participate in any other bonuses,
profit sharing plans, stock option agreements, vacation, retirement
benefits, medical and dental insurance and individual or group life
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insurance as are normally and customarily provided by the Company now
or in the future to its employees of similar experience and position.
2.2 Expenses. The Company agrees that, during the Term of this
Agreement, Executive shall be allowed reasonable and necessary business
expenses in connection with the performance of his duties hereunder within
guidelines established by the Board of Directors. Executive may incur
reasonable and necessary expenses for food, travel, lodging, entertainment and
other items in the promotion of Company's business within such guidelines
("Business Expenses"). Company will reimburse Executive for all Business
Expenses incurred by Executive upon Executive's presentation to the Company of
an itemized account thereof, together with receipts, vouchers, or other
supporting documentation. After termination or expiration of this Agreement,
however such termination or expiration may come about, Executive shall have
ninety (90) days to submit Business Expenses incurred during the Term hereof to
the Company for reimbursement.
2.3 Working Facilities. Executive shall be furnished with
offices, administrative staff, stenographic help and such other facilities and
services as are suitable to Executive's position and adequate for the
performance of Executive's duties.
ARTICLE III
EXCULPATION
Company agrees that Executive will not be liable for any losses,
expenses, costs or damages caused by or resulting from the recommendations,
suggestions, actions, errors, omissions or mistakes (collectively, the
"Management") of Executive undertaken or proposed by Executive if Executive
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company.
ARTICLE IV
TERMINATION AND SEVERANCE
4.1 Termination of Agreement. Except as may otherwise be provided
herein, this Agreement and the employment, compensation and benefit
arrangements hereunder shall be terminated upon the occurrence of the first to
occur of any of the following events:
a. Thirty (30) days after written notice of termination
is given by either party to the other; or
b. Executive's death or, at the Company's option, upon
Executive's becoming Disabled (hereinafter defined); or
c. The third (3) anniversary of the Effective Date.
Any notice of termination given by Executive to the Company or by the
Company to Executive under Section 4.1(a) above shall specify whether such
termination is made with or
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without Cause (as defined below) and, if not specified, shall be deemed to be
without Cause. Any notice of termination given by Executive to the Company
within ninety (90) days after a Change in Control (as defined below) shall be
deemed to be with Cause ("Cause-Change in Control").
4.2 Severance Upon Termination. As to a termination pursuant to
Section 4.1(a) hereof, if Executive terminates this Agreement without Cause, or
the Company terminates this Agreement with Cause, Executive shall not be
entitled to any severance payment upon termination of this Agreement. If
Executive terminates this Agreement with Cause-Change in Control, the Company
shall pay to Executive within ten (10) days after termination a severance
payment equal to one (1) week's salary for each year of employment of Executive
including any year(s) of employment prior to the Effective Date plus all
accrued benefits including vacation compensation. If Executive terminates this
Agreement with Cause (other than Cause-Change in Control) or the Company
terminates this Agreement without Cause, the Company shall pay to Executive
within ten (10) days after termination a severance payment equal to the full
amount of compensation which would have otherwise been paid to such Executive
for the remaining portion of the Term.
4.3 Cause. As used in this Agreement, with respect to a
termination of this Agreement by Executive, the term "Cause" means (i) the
breach of any material provision of this Agreement by the Company which is not
cured within thirty (30) days after written notice from Executive to the
Company specifically identifying such breach, or (ii) the occurrence of any
"Change in Control." As used in this Agreement, with respect to a termination
of this Agreement by the Company, the term "Cause" means (i) willful misconduct
by Executive, (ii) the gross neglect by Executive of his duties as an employee,
officer or director of the Company which continues for more than thirty (30)
days after written notice from the Company to Executive specifically
identifying the gross negligence of Executive and directing Executive to
discontinue same, (iii) the commission by Executive of a crime constituting a
felony or (iv) the commission by Executive of an act, other than an act taken
in good faith within the course and scope of Executive's employment, which is
directly detrimental to the Company and which act exposes the Company to
material liability. As used in this Agreement, the term "Change in Control"
means when the individuals who were directors of the Company immediately prior
to the Effective Date cease to constitute a majority of the Board of Directors.
4.4 Return of Materials; Confidential Information. In the event
of any termination of this Agreement, with or without Cause, Executive shall
promptly deliver to the Company all lists, books, records, literature, products
and any other materials owned or provided by the Company in connection with
Executive's employment hereunder. Executive shall not at any time during or
after the Term hereof use for himself or others, or divulge to others, any
secret or confidential information, knowledge or data of the Company obtained
by Executive as a result of his employment unless authorized by a majority of
the full Board of Directors.
4.5 Death and Disability. If this Agreement is terminated by the
death of Executive pursuant to Section 4.1(b), the Company shall pay all
accrued salary and benefits through the date of death to Executive's estate
within thirty (30) days after the date of death. If this Agreement is
terminated upon Executive's becoming Disabled pursuant to Section 4.1(b), the
Company shall pay to Executive seventy-five percent (75%) of all unaccrued
annual salary and benefits over the remaining Term less the actual amount of
any benefits paid to Executive during
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such period from any disability insurance policy maintained by the Company for
Executive. As used herein, "Disabled" shall mean a mental or physical
impairment which in the opinion of a qualified doctor selected by the Company
renders Executive unable to perform with reasonable diligence the ordinary
functions and duties of Executive on a full-time basis in accordance with the
terms of this Agreement, which inability will continue in the opinion of such
doctor for a period of not less than 180 days.
ARTICLE V
GENERAL PROVISIONS
5.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and the State of
Delaware.
5.2 Assignability. This Agreement is a personal services
agreement which, except as provided in this Agreement, may not be assigned or
transferred by Executive or the Company. This Agreement shall be binding upon
Executive and the Company, their respective heirs, successors and assigns.
5.3 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between Executive and the Company and supersedes
any prior agreements or understandings, whether written or oral, with respect
to the employment of Executive by the Company. Except as may be otherwise
provided herein, this Agreement may not be amended or modified except by
subsequent written agreement executed by both parties hereto.
5.4 Multiple Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall constitute an original, but all of
which together shall constitute one Agreement.
5.5 Notices. Any notice provided for in this Agreement shall be
deemed delivered upon deposit in the United States mails, registered or
certified mail, addressed to the party to whom directed at the addresses set
forth below or at such other addresses as may be substituted therefor by notice
given hereunder. Notice given by any other means must be in writing and shall
be deemed delivered only upon actual receipt.
If to the Company:
National Convenience Stores
100 Waugh Drive
Houston, Texas 77007
Attn: General Counsel
If to Executive:
Arnold Van Zanten
37 Cascade Springs Place
The Woodlands, Texas 77381
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
NATIONAL CONVENIENCE STORES
INCORPORATED
By:___________________________
A. J. Gallerano Senior
Vice President
EXECUTIVE
______________________________
Arnold Van Zanten
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AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "Agreement") is effective
as of August 1, 1994 (the "Effective Date"), by and between NATIONAL
CONVENIENCE STORES INCORPORATED, a Delaware corporation (the "Company"), and
ARNOLD VAN ZANTEN ("Executive").
R E C I T A L S:
A. The Company and Executive executed an Employment Agreement
dated as of May 18, 1993.
B. The Company and Executive have agreed to amend such Employment
Agreement as set forth herein.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and Executive hereby agree as follows:
ARTICLE I
AMENDMENT
Section 2.1(a) is hereby replaced and amended to read as follows:
" a. Salary. A minimum annual salary in the amount of $162,750
payable in equal weekly payments, subject to normal withholding of
state and federal income, unemployment and FICA taxes. Any earnings
over this minimum in one year shall not be applied to the minimum
salary for any subsequent years. If this Agreement terminates on a
date other than the last day of any month, Executive shall be paid a
pro rata portion of such salary for such month in the ratio that the
number of days of employment bears to the total number of days in such
month."
ARTICLE II
MISCELLANEOUS
This Agreement (a) shall bind and benefit the Company and Executive
and their respective successors and permitted assigns; (b) may be modified or
amended only by a writing signed by each party; (c) shall be governed by and
construed in accordance with the laws of the State of Texas and the United
States of America; (d) may be executed in several counterparts and (e) embodies
the entire agreement and understanding between the parties with respect to
amendments to the Employment Agreement. The headings in this Agreement shall
be accorded no significance in interpreting this Agreement.
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This Agreement is executed on the ______ day of September 1994 and is
effective from and after the Effective Date.
NATIONAL CONVENIENCE STORES
INCORPORATED
By:___________________________
A. J. Gallerano Senior
Vice President
______________________________
Arnold Van Zanten
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