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EXHIBIT 10.10
NATIONAL CONVENIENCE STORES INCORPORATED
OFFICERS' RETIREMENT PLAN
ARTICLE I
Definitions
As used herein, the following terms shall have the meanings indicated.
1.01 Actuarial Equivalent and Actuarially Equivalent shall mean
equality in value of the aggregate amounts of benefits to be paid a Participant
or a Beneficiary hereunder. In computing the benefits payable to a Participant
or a Beneficiary, the mortality rate assumptions used shall be based on the
"1983 Group Annuity Mortality Table" and the interest rate assumption used
shall be 7.0% which rate shall be reviewed periodically and may be changed by
the Board of Directors.
1.02 Basic Retirement Benefit shall mean a life annuity payable at
age 65, equal to 2% of Final Average Earnings multiplied by Credited Service.
1.03 Beneficiary shall mean the person who, upon the death of a
Participant or a Retired Participant, is entitled to receive either of a
Participant's (i) Termination Benefit; or, (ii) Basic Retirement Benefit and
Deferred Compensation Account, if a Participant has elected to have the Basic
Retirement Benefit and Deferred Compensation Account paid either as a lump sum
or in three equal annual payments, as provided for in Article III, and dies
before all payments have been made. A Participant may designate a Beneficiary
in a written notice delivered to the Company. In the event no written
designation of beneficiary has been received by the Company prior to a
Participant's death, the Beneficiary shall be deemed to be Participant's
estate.
1.04 Board of Directors shall mean the Board of Directors of
National Convenience Stores Incorporated.
1.05 Bonus Compensation shall mean the amount of bonus
compensation, if any, earned by a Participant in a Fiscal Year.
1.06 Change in Control of the Company is deemed to have occurred
when individuals who are directors of the Company on the Effective Date cease
to constitute a majority of the Board of Directors.
1.07 Committee shall mean the committee appointed to administer
the Plan.
1.08 Company shall mean National Convenience Stores Incorporated,
a Delaware corporation doing business under the laws of the State of Texas, or
any successor company thereto, or any of its affiliates or subsidiaries or
their successors.
1.09 Credited Service as of any date shall mean the number of
years, and any fractions thereof, of continuous employment with the Company of
a Participant from the most recent hire date. Credited Service shall include
leaves of absence granted by the Company for any period of not more than two
years. The Board of Directors, in its sole discretion, may make an irrevocable
grant to any Officer of additional years of service which shall be used in
calculation of Credited
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Service. The number of years which shall be utilized in calculation of
Credited Service shall never exceed thirty.
1.10 Deferred Compensation Account shall mean the account credited
with Employer Credits and Elective Deferral Credits. Earnings in the Deferred
Compensation Account shall be credited: (i) from the dates that amounts are
posted to such account through the date the Deferred Compensation Account is
distributed to a Participant or Beneficiary; and, (ii) at a gross rate equal to
the actual investment return before expenses and taxes. A Participant may
request a preferred investment of funds in his Deferred Compensation Account.
1.11 Effective Date shall mean March 31, 1994.
1.12 Elective Deferral Credits shall mean the amount of Bonus
Compensation, if any, a Participant may elect to defer. A Participant may make
an Elective Deferral Credit by sending written notice to the Company, prior to
the beginning of the Fiscal Year in which the Bonus Compensation may be earned,
designating the portion of Bonus Compensation to be deferred. Such amount will
be credited to the Deferred Compensation Account on the date Bonus Compensation
is first available to be paid to Participant had Participant not elected to
defer. An Elective Deferral Credit shall continue until modified or revoked by
Participant's delivery of written notice to the Company; provided, however,
that any such revocation or modification shall be effective beginning with the
Fiscal Year next following the date of such notice.
1.13 Employer Credits shall mean an amount equal to 15% of any
Bonus Compensation earned by a Participant which amount will be credited to the
Deferred Compensation Account on the date Bonus Compensation is paid or, if
deferred, is first available to be paid to Participant.
1.14 Earnings shall mean the sum of:
(i) Amounts paid by the Company to a Participant for services
rendered, as reported on Participant's Federal income tax withholding statement
(Form W-2 or its subsequent equivalent), for each calendar year (ending during
a Plan Year) Participant is an employee of the Company, exclusive of Bonus
Compensation, reimbursements and other expense allowances, fringe benefits
(cash and noncash), moving expenses, welfare benefits, and all other
extraordinary compensation; and,
(ii) Amounts, if any, which would have been included in 1.14(i)
above for any calendar year if such amounts had not been deferred by a
Participant through a plan of deferred compensation under a salary reduction
agreement pursuant to Section 125 or Section 401(k) of the Internal Revenue
Code of 1986 ("Code"), or any other applicable provision of the Code.
1.15 Final Average Earnings shall mean a Participant's average
monthly Earnings during any three of the five calendar years immediately
preceding the date on which his employment terminates, which yields the highest
Final Average Earnings.
1.16 Fiscal Year shall mean the fiscal year of the Company.
1.17 Involuntary Termination shall mean the cessation by
Participant of employment with the Company, other than by reason of Voluntary
Termination, death, becoming Permanently and Totally Disabled or retirement
after age 65.
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1.18 Joint and 50% Spouse Annuity shall mean an annuity payable to
a Participant during his lifetime and 50% payable to his spouse, on the death
of Participant, during the lifetime of the spouse of Participant.
1.19 Late Retirement Benefit shall mean a benefit provided
pursuant to Section 3.02 of the Plan.
1.20 Normal Retirement Benefit shall mean a benefit provided
pursuant to Section 3.01 of the Plan.
1.21 Normal Retirement Date shall mean the first day of the month
coincident with or immediately following a Participant's sixty-fifth birthday.
1.22 Participant shall mean any person eligible or selected
pursuant to Article II to participate in the Plan and who has elected to do so.
1.23 Permanently and Totally Disabled shall have the same
definition as that contained in the Company's LTD plan. In the absence of such
plan, it shall mean a mental or physical impairment which in the opinion of a
qualified doctor, selected by the Company, renders a Participant unable to
perform with reasonable diligence the ordinary functions and duties of such
Participant on a full time basis and which impairment will continue in the
opinion of such doctor for a period of not less than 180 days.
1.24 Plan shall mean the National Convenience Stores Incorporated
Officers' Retirement Plan.
1.25 Plan Year shall mean Fiscal Year.
1.26 Retired Participant shall mean a Participant who has
qualified for and taken retirement from the Company.
1.27 Trust shall mean the trust established pursuant to Section
7.03 of the Plan.
1.28 Voluntary Termination shall mean the voluntary cessation by a
Participant of employment with the Company, whether by reason of resignation or
otherwise, but excluding termination by reason of Involuntary Termination,
death, becoming Permanently and Totally Disabled or retirement after age 65.
1.29 Any words herein used in the masculine shall be read and
construed in the feminine in all cases where they would so apply. Words in the
singular shall be read and construed as though used in the plural in all cases
where they would so apply.
ARTICLE II
Participation in the Plan
2.01 Participation in the Plan shall be limited to management
personnel of the Company who have a significant impact upon the formulation of
policy for the Company and upon its profitability. Those persons eligible to
participate in the Plan are: (i) the senior officers
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of the Company which shall include, and are limited to, the President, Senior
Vice Presidents, Vice Presidents, Secretary and Treasurer ("Officer"); and,
(ii) any other key management employees of the Company who are approved by the
Board of Directors.
2.02 Participation in the Plan shall commence as of the first day
of the month coincident with or immediately following the date a person is
either elected an Officer or is approved by the Board of Directors as provided
in 2.01(ii) above and such person elects to participate by execution of a form
provided by the Company.
2.03 If a Participant becomes entitled to a benefit under Sections
3.01, 3.02 or 4.01 of the Plan, he shall not later be entitled to a benefit
under any other Section of the Plan unless such Participant is re-employed by
the Company either as an Officer or is approved by the Board of Directors as
provided in 2.01(ii) above.
ARTICLE III
Normal Retirement Benefit
3.01 If a Participant shall continue in the employ of the Company
until Normal Retirement Date, he may retire as of such date and be entitled to
receive a Normal Retirement Benefit which shall be the sum of: (i) the
Basic Retirement Benefit payable monthly as a Joint and 50% Spouse Annuity for
a married Participant or as a life annuity for a single Participant, and (ii)
the Deferred Compensation Account payable as a lump sum.
Notwithstanding the foregoing, a Participant may within 30 days of
commencement of participation in the Plan irrevocably elect, by written notice
delivered to the Company, to have the Basic Retirement Benefit and the Deferred
Compensation Account paid either as a lump sum or in three equal annual
installments.
3.02 No provision of the Plan shall require the retirement of a
Participant at the Normal Retirement Date. If a Participant retires after the
Normal Retirement Date, he shall be entitled to receive a Late Retirement
Benefit, the monthly amount of which shall be equal to the monthly benefit
calculated in accordance with the provisions of Section 3.01 above, but
utilizing Participant's Final Average Earnings and Credited Service as of the
actual date of retirement.
3.03 The benefit payments provided for in Sections 3.01 and 3.02
above shall commence as soon as practicable following retirement but in no
event later than 90 days after the date Participant retires.
ARTICLE IV
Termination Benefit
4.01 A Participant who ceases to be employed by the Company prior
to age 65 and is vested pursuant to Article V is entitled to a Termination
Benefit which shall be the sum of: (i) the Actuarial Equivalent lump sum of
the Basic Retirement Benefit (utilizing Final Average
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Earnings and Credited Service of Participant), and (ii) the vested portion of
the Deferred Compensation Account.
4.02 The Termination Benefit shall be paid only in a lump sum and
as soon as practicable after termination, but in no event later than 90 days
after the termination date of such Participant.
ARTICLE V
Vesting
5.01 A Participant shall be fully vested in the Basic Retirement
Benefit upon the earliest to occur of the following:
(a) Continuous employment with the Company until Normal
Retirement Date,
(b) December 15, 1998 or five years of Credited Service,
whichever is later,
(c) Involuntary Termination of a Participant with more than five
years of Credited Service,
(d) Death,
(e) Permanent and Total Disability,
(f) Change in Control of the Company, or
(g) Discontinuation of the Plan.
5.02 A Participant shall be fully vested: (i) in the Employer
Credits portion of the Deferred Compensation Account three years after the date
of each Employer Credit; (ii) immediately in the earnings in the Deferred
Compensation Account; and, (iii) immediately in the Elective Deferral Credits
portion of the Deferred Compensation Account. Notwithstanding the provision of
5.02(i), the Deferred Compensation Account shall be fully vested upon the
earliest to occur of the following:
(a) Continuous employment with the Company until Normal
Retirement Date,
(b) Involuntary Termination of a Participant with more than five
years of Credited Service,
(c) Death,
(d) Permanent and Total Disability
(e) Change in Control of the Company, or
(f) Discontinuation of the Plan.
5.03 The benefits provided in the Plan (other than the Elective
Deferral Credits portion of the Deferred Compensation Account) shall be
forfeited by a Participant if his employment with the Company is terminated as
a result of any act of dishonesty, fraud, theft or embezzlement in connection
with such employment and Participant is convicted of such crime in a court of
competent jurisdiction.
ARTICLE VI
The Committee
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6.01 The Board of Directors shall administer the Plan but may
delegate its responsibilities, other than its rights to designate any other key
management employee as a Participant and to discontinue or amend the Plan, to a
Committee appointed by it. The Board of Directors may overrule any decision of
the Committee. The Committee, or in the absence of a Committee the Board of
Directors, shall be the Plan Administrator. The Company agrees to indemnify
and to hold harmless each person serving as Plan Administrator from all
liabilities and claims arising from the performance of his duties in accordance
with the terms of the Plan, unless such liability or expense results from gross
negligence or willful act or omission, or an act or omission performed in bad
faith. The Committee shall keep a permanent record of its meetings and
actions.
6.02 All members of the Committee shall be appointed by and serve
at the pleasure of the Board of Directors. No compensation shall be paid to
members of the Committee.
6.03 Subject to the limitations of the Plan, the Committee may
promulgate and adopt such rules, regulations and procedures for the transaction
of its business which it deems necessary for the proper administration of the
Plan. The Committee shall rely upon the records of the Company, as certified
to it, with respect to factual matters relating to a Participant. In the event
of a factual dispute, the Committee shall resolve such dispute by giving due
weight to the evidence available to it. The Committee shall interpret the Plan
in the administration and application thereof. All such determinations shall
be final, conclusive and binding, except to the extent that they are appealed
under the following procedure. In the event that the claim of any person shall
be denied as to all or any part of any payment or benefit under this Plan, the
Committee shall provide to the claimant (i) the reason or reasons for the
denial; (ii) reference to the Plan provisions on which the denial is based;
(iii) a description of additional material or information necessary for the
person to perfect the claim and an explanation of why such material or
information is necessary; and, (iv) an explanation of the Plan's claims
procedure.
The claimant shall have 60 days after receipt of the above material to
appeal the claim denial by the Committee to the Board of Directors for review.
The claimant may (i) request a review upon written notice to the Board of
Directors; (ii) review pertinent documents; and, (iii) submit issues and
comments in writing.
The Board of Directors shall render its decision not later than 60
days after receipt of a request for review by the claimant, unless special
circumstances require an extension of time, in which event a decision shall be
rendered as soon as possible, but in no event later than 120 days after such
receipt. The Board of Directors' decision shall be written and shall include
the reasons for its decision with reference to the Plan provisions on which the
decision is based.
6.04 A Participant who is a member of the Board of Directors shall
disqualify himself from voting on any issue which pertains to his eligibility
for any benefit under the Plan or the amount of payment or any benefit for
which he is eligible. Every decision and action of the Board of Directors
shall be binding.
6.05 The Committee may employ such counsel, accountants, actuaries
and agents as it shall deem advisable. The Company shall pay, or cause to be
paid, the compensation and other expenses of such counsel, accountants,
actuaries and agents incurred by the Committee in the administration of the
Plan.
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ARTICLE VII
Funding
7.01 The Company's obligation under the Plan shall be an
unsecured promise to pay.
7.02 The Plan shall not be construed so as to provide a
Participant, Retired Participant or surviving spouse or Beneficiary any greater
rights than those of an unsecured creditor of the Company. At no time shall a
Participant, Retired Participant or surviving spouse or Beneficiary be deemed
to have any right, title, or interest in or to any specified asset or assets of
the Company.
7.03 To fund the benefits payable pursuant to the Plan, the
Company shall establish an irrevocable trust for the benefit of the
Participants but which shall be subject to the general claims of the Company's
creditors. The Company shall: (i) make contributions to the Trust during each
Plan Year to fund the Basic Retirement Benefit on an actuarially sound basis;
(ii) fund the Trust with the Employer Credits on the date the Bonus
Compensation is paid or, if deferred, is first available to be paid to the
Participants; and, (iii) fund the Trust with the Elective Deferral Credits on
the date the Bonus Compensation is first available to be paid to the
Participants. Immediately prior to a Change in Control of the Company, the
Company shall contribute to the Trust an amount which, with the existing
amounts in the Trust, shall be sufficient to pay each Participant, Retired
Participant or surviving spouse or Beneficiary, all benefits, calculated as of
the day prior to the Change in Control of the Company, which are due to each
such person under the terms and provisions of the Plan. If the assets of the
Trust are insufficient to make any payments required under the Plan, the
Company shall make up such deficit from its assets. Upon termination of the
Trust, if all benefits required to be paid pursuant to the Plan have been paid,
any assets which remain shall be paid to the Company.
7.04 Pursuant to Section 1.10 above, a Participant may request a
preferred investment of funds in his Deferred Compensation Account; provided,
however, that the Company shall have no obligation to make investments or to
segregate assets according to a Participant's request.
ARTICLE VIII
Reservation of Rights by the Company
and Limitations on Rights of Participants
8.01 Nothing contained in the Plan shall be deemed to provide a
Participant the right to be retained in the service of the Company or to
interfere with the right of the Company to discharge a Participant, or any
other employee, at any time.
8.02 The benefits provided by the Plan are granted by the Company
as a fringe benefit to the Participants and are not part of any salary
increase. No Participant in the Plan has any option to take any current
payment or bonus in lieu of the benefits provided by the Plan.
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8.03 None of the benefits under the Plan shall be subject to the
claims of creditors of Participants, Retired Participants or surviving spouses
or Beneficiaries, and shall not be subject to attachment, garnishment, or any
other legal process. Neither a Participant, Retired Participant or surviving
spouse or Beneficiary may assign, sell, or otherwise encumber any beneficial
interest in the Plan, nor shall any such benefits be in any manner liable for
or subject to the deeds, contracts, liabilities, engagements or torts of any
Participant, Retired Participant or surviving spouse or Beneficiary.
8.04 The Company shall withhold from any benefit payments due
under the Plan all federal, state or local taxes required to be withheld
therefrom as determined by the Company in its sole, good faith judgment.
ARTICLE IX
Amendments
The Board of Directors reserves the right to modify or amend, in whole
or in part, any or all of the provisions of the Plan, including the right to
make any such modifications or amendments effective retroactively, at any time
and from time-to-time, without the consent of Participants, Retired
Participants or surviving spouses, or Beneficiaries or any person or persons
claiming through them; provided, however, that no modification or amendment
shall be made which would have the effect, in any way, of diminishing,
limiting, modifying or restricting any right or benefit, which had accrued
through the effective date of such modification or amendment, to a Participant,
Retired Participant or surviving spouse or Beneficiary.
ARTICLE X
Discontinuation
The Board of Directors reserves the right to discontinue the Plan at
any time, without the consent of Participants, Retired Participants or
surviving spouses, or Beneficiaries or any person or persons claiming through
them; provided, however, that discontinuation of the Plan shall not have the
effect, in any way, of diminishing, limiting, modifying or restricting any
right or benefit, which had accrued through the effective date of such
discontinuation, to a Participant, Retired Participant or surviving spouse or
Beneficiary.
ARTICLE XI
Miscellaneous
11.01 Nothing contained in the Plan shall be construed so as to
alter, abridge, or in any manner affect the rights and privileges of
Participants to participate in and be covered by any defined benefit, defined
contribution, savings, profit sharing, Section 401(k) of the Code, group
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insurance, group disability, health or medical, bonus, or similar employee
plans which the Company may now or hereafter have.
11.02 The provisions of the Plan shall bind and inure to the
benefit of the Company and its successors and assigns. The term successors as
used herein shall include any corporate or business entity which shall, whether
by merger, consolidation, purchase or otherwise acquire all or substantially
all of the business or assets of the Company and successors of any such
corporation or other business entity.
11.03 Any headings or subheadings in the Plan are inserted for
convenience of reference only and are to be ignored in the construction of any
provisions hereof.
11.04 This Plan shall be construed in accordance with the laws of
the State of Texas.
11.05 In case any provision of the Plan shall be held illegal or
invalid for any reason, such illegality or invalidity shall not affect the
remaining provisions of the Plan, and the Plan shall be construed and enforced
as if such illegal and invalid provisions had never been inserted herein.
11.06 Any notice or filing required or permitted to be given to the
Company under the Plan shall be sufficient if in writing and hand delivered, or
sent by registered or certified mail, to the Secretary of the Company at 100
Waugh Drive, Houston, Texas 77007. Such notice shall be deemed given as of the
date of delivery or, if delivery is made by mail, as of the date shown on the
receipt for registration or certification.
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