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EXHIBIT 10.11
TRUST UNDER
NATIONAL CONVENIENCE STORES INCORPORATED
OFFICERS' RETIREMENT PLAN
This agreement made this 30th day of June, 1994, by and between
National Convenience Stores Incorporated ("Company") and Bank One, Texas, N.A.
("Trustee") ("Trust Agreement").
WHEREAS, Company has adopted the National Convenience Stores
Incorporated Officers' Retirement Plan ("Plan") which is attached hereto as
Appendix A; and,
WHEREAS, Company has incurred or expects to incur liability under the
terms of the Plan with respect to the individuals participating therein; and,
WHEREAS, Company wishes to establish a trust ("Trust") and to
contribute to the Trust assets that shall be held therein, subject to the
claims of Company's creditors in the event of Company's Insolvency, as herein
defined, until paid to Plan participants and their beneficiaries in such manner
and at such times as specified in the Plan; and,
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and,
WHEREAS, it is the intention of Company to make contributions to the
Trust to provide itself with a source of funds to assist it in meeting its
liabilities under the Plan,
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
(a) Company hereby deposits with Trustee in trust $100.00 which shall
become the principal of the Trust to be held, administered and
disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan participants and their
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beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries
against Company. Any assets held by the Trust will be subject to the
claims of Company's general creditors under federal and state law in
the event of Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with
Trustee to augment the principal to be held, administered and disposed
of by Trustee as provided in this Trust Agreement. Neither Trustee
nor any Plan participant or beneficiary shall have any right to compel
such additional deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
(a) Company shall deliver to Trustee a schedule ("Payment Schedule") that
indicates the amounts payable in respect of each Plan participant (and
his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so
payable, the form in which such amount is to be paid (as provided for
or available under the Plan), and the time of commencement for payment
of such amounts. Except as otherwise provided herein, Trustee shall
make payments to the Plan participants and their beneficiaries in
accordance with such Payment Schedule. The Trustee shall make
provision for the reporting and withholding of any federal, state or
local taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan and shall pay
amounts withheld to the appropriate taxing authorities or determine
that such amounts have been reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his beneficiaries to benefits
under the Plan shall be determined by Company or such party as it
shall designate under the Plan, and any claim for such benefits shall
be considered and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan.
Company shall notify Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to
participants or their beneficiaries. In addition, if the principal of
the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Plan, Company
shall make the balance of each such payment as it falls due. Trustee
shall notify Company where principal and earnings are not sufficient.
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SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY
WHEN COMPANY IS INSOLVENT
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Company is Insolvent. Company shall be
considered "Insolvent" for purposes of this Trust Agreement if (i)
Company is unable to pay its debts as they become due, or (ii) Company
is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be
subject to claims of general creditors of Company under federal and
state law as set forth below:
(1) The Board of Directors and the Chief Executive Officer of
Company shall have the duty to inform Trustee in writing of
Company's Insolvency. If a person claiming to be a creditor
of Company alleges in writing to Trustee that Company has
become Insolvent, Trustee shall determine whether Company is
Insolvent and, pending such determination, Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency,
or has received notice from Company or a person claiming to be
a creditor alleging that Company is Insolvent, Trustee shall
have no duty to inquire whether Company is Insolvent. Trustee
may in all events rely on such evidence concerning Company's
solvency as may be furnished to Trustee and that provides
Trustee with a reasonable basis for making a determination
concerning Company's solvency.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the assets
of the Trust for the benefit of Company's general creditors.
Nothing in this Trust Agreement shall in any way diminish any
rights of Plan participants or their beneficiaries to pursue
their rights as general creditors of Company with respect to
benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section
2 of this Trust Agreement only after Trustee has determined
that Company is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due
to Plan participants or their beneficiaries under the terms of the
Plan for the period of such discontinuance, less the aggregate amount
of any payments made to Plan participants or their beneficiaries by
Company in lieu of the payments provided for hereunder during any such
period of discontinuance.
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SECTION 4
PAYMENTS TO COMPANY
Except as provided in Section 3 hereof, after Trust has become irrevocable,
Company shall have no right or power to direct Trustee to return to Company or
to divert to others any of the Trust assets before all payments of benefits
have been made to Plan participants and their beneficiaries pursuant to the
terms of the Plan.
SECTION 5
INVESTMENT AUTHORITY
(a) In no event may Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by Company, other than
a de minimis amount held in common investment vehicles in which
Trustee invests. All rights associated with assets of the Trust shall
be exercised by Trustee or the person designated by Trustee, and shall
in no event be exercisable by or rest with Plan participants.
(b) The Trustee shall have the power to invest and reinvest the Trust in
accordance with the "Investment Guidelines" attached hereto as
Appendix B, as directed by the Board of Directors of the Company or by
the Committee appointed by it.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
Trustee shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such
specific records as shall be agreed upon in writing between Company and
Trustee. Within sixty (60) days following the close of each calendar year and
within sixty (60) days after the removal or resignation of Trustee, Trustee
shall deliver to Company a written account of its administration of the Trust
during such year or during the period from the close of the last preceding year
to the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown
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separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however,
that Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request or approval given by Company
which is contemplated by, and in conformity with, the terms of the
Plan or this Trust and is given in writing by Company. In the event
of a dispute between Company and a party, Trustee may apply to a court
of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, Company agrees to indemnify Trustee against Trustee's
costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily
liable for such payments. If Company does not pay such costs,
expenses and liabilities in a reasonably timely manner, Trustee may
obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations
hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise
herein, provided, however, that if an insurance policy is held as an
asset of the Trust, Trustee shall have no power to name a beneficiary
of the policy other than the Trust, to assign the policy (as distinct
from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
(f) However, notwithstanding the provisions of Section 8(e) above, Trustee
may loan to Company the proceeds of any borrowing against an insurance
policy held as an asset of the Trust.
(g) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of section 301.7701-2
of the Procedure and Administrative Regulations promulgated pursuant
to the Internal Revenue Code.
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SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
Company shall pay all administrative and Trustee's fees and expenses. If not
so paid, the fees and expenses shall be paid from the Trust.
SECTION 10
RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to Company, which
shall be effective ninety (90) days after receipt of such notice
unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on thirty (30) days notice or upon
shorter notice accepted by Trustee.
(c) Upon a Change of Control, as defined herein, Trustee may not be
removed by Company for two (2) years.
(d) If Trustee resigns or is removed within two (2) years of a Change of
Control, as defined herein, Trustee shall select a successor Trustee
in accordance with the provisions of Section 11(b) hereof prior to the
effective date of Trustee's resignation or removal.
(e) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within thirty (30) days
after receipt of notice of resignation, removal or transfer, unless
Company extends the time limit.
(f) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraphs (a) or (b) of this Section.
If no such appointment has been made, Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. All expenses of Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
(a) If Trustee resigns or is removed in accordance with Section 10(a) or
(b) hereof, Company may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers
under state law, as a successor to replace Trustee upon resignation or
removal. The appointment shall be effective when accepted in writing
by the new Trustee, who shall have all of the rights and powers of the
former Trustee, including ownership rights in the trust assets. The
former Trustee shall execute any
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instrument necessary or reasonably requested by Company or the
successor Trustee to evidence the transfer.
(b) If Trustee resigns or is removed pursuant to the provisions of Section
10(d) hereof and selects a successor Trustee, Trustee may appoint any
third party, such as a bank trust department or other party that may
be granted corporate trustee powers under state law. The appointment
of a successor Trustee shall be effective when accepted in writing by
the new Trustee. The new Trustee shall have all the rights and powers
of the former Trustee, including ownership rights in trust assets.
The former Trustee shall execute any instrument necessary or
reasonably requested by the successor Trustee to evidence the
transfer.
(c) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not
be responsible for and Company shall indemnify and defend the
successor Trustee from any claim or liability resulting from any
action or inaction of any prior Trustee or from any other past event,
or any condition existing at the time it becomes successor Trustee.
SECTION 12
AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written instrument executed
by Trustee and Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the
Trust revocable after it has become irrevocable in accordance with
Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of the
Trust any assets remaining in the Trust shall be returned to Company.
(c) Section 1 through Section 14, inclusive, of this Trust Agreement may
not be amended by Company for five (5) years following a Change of
Control, as defined herein.
SECTION 13
MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law
or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
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(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
(d) For purposes of this Trust, Change of Control shall mean when the
individuals who are Directors of the Company on the date this Trust
Agreement is effective cease to constitute a majority of the Board of
Directors of the Company.
(e) Notwithstanding anything contained herein to the contrary, Company
reserves the right to, and shall, fund this Trust pursuant to the
terms and provisions of the Plan.
SECTION 14
EFFECTIVE DATE
The effective date of this Trust Agreement shall be June 30, 1994.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed in its name and on its behalf by its proper officers thereunto
authorized on this 30th day of June, 1994, effective as of the 30th day of
June, 1994.
NATIONAL CONVENIENCE STORES
INCORPORATED
ATTEST:
_____________________________ By:_______________________________
Janice L. Ivey Arnold Van Zanten
Assistant Secretary Senior Vice President
- Administration
BANK ONE, TEXAS, N.A.
_____________________________ By:_______________________________
Trust Officer Name
Title
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APPENDIX A
National Convenience Stores Incorporated Officers' Retirement Plan
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APPENDIX B
TRUST UNDER
NATIONAL CONVENIENCE STORES INCORPORATED
OFFICERS' RETIREMENT PLAN
Investment Guidelines
Permitted Investments
1. U.S. Treasury Obligations and Agencies (Guaranteed by the U.S.
Government)
2. Commercial Paper
3. Corporate Notes
4. Certificate of Deposit and Time Deposits
5. Money Market Funds
6. National Convenience Stores Incorporated securities only to the extent
it is a de minimis amount held in common investment vehicles in which
the Trustee invests, as provided for in Section 5(a) of the Trust
Agreement
7. Mutual Funds
8. Common Stock or Preferred Stock
Special Provisions
1. Investments may only be made in U.S. domiciled banks, corporations and
money market funds.
2. Commercial paper may be purchased only if the issuer's commercial
paper is rated A1 or better and its long term debt is rated A+ or
better by Standard and Poor's.
3. Corporate notes may be purchased only from corporations whose senior
long term debt is rated AA or better by Standard and Poor's.
4. Certificates of deposit may be purchased only from banks whose senior
long term debt is rated AA or better by Standard and Poor's.
5. Time deposits may be made only in banks whose senior long term debt is
rated AA or better by Standard and Poor's.
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6. All investments (except numbers 6, 7 and 8 of the Permitted
Instruments above) must be scheduled to mature within two (2) years of
the date of the investment.
7. The weighted average maturity of all investments (except numbers 6, 7
and 8 of the Permited Instruments above) may not exceed one (1) year.
8. The maximum investment per issuer/obligor is 10% if the total
portfolio exceeds $1,000,000.00; 25% if the total portfolio is less
than or equal to $1,000,000.00 but greater than $100,000.00; 100% if
the total portfolio is less than or equal to $100,000.00.
9. Money market funds considered for investments must be subject to
quality and maturity guidelines no less restrictive than those
contained herein.
10. Stock and mutual funds are to be of high to superior investment
quality.
Trustee Discretionary Power
1. The Trustee shall have, with respect to the Trust, the power in its
discretion:
(a) To retain any property at any time received by it;
(b) To sell, exchange, convey, transfer, or dispose of, and to
grant options for the purchase or exchange with respect to,
any property at any time held by it, by public or private sale
for cash or on credit or partly for cash and partly upon
credit;
(c) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation, or other similar plan or
oppose any such plan or any action thereunder, or any
contract, purchase, sale, or other action by any person or
corporation;
(d) To deposit any property with any protective, reorganization or
similar committee, to delegate discretionary power to any such
committee and to pay and agree to pay part of the expenses and
compensation of any such committee and any assessments levied
with respect to any property so deposited;
(e) To exercise all conversion and subscription rights pertaining
to any property;
(f) To extend the time of payment of any obligation held in the
Trust;
(g) To enter into stand-by agreements for future investment,
either with or without a stand-by fee; and
(h) To invest and reinvest all or any specified portion of the
Trust through the medium of any common, collective or
commingled Trust which has been or may hereafter be
established and maintained by the Trustee.
2. The Trustee shall have the power in its discretion:
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(a) To exercise all voting rights with respect to the shares of
stock held in the Trust Fund and to grant proxies,
discretionary or otherwise;
(b) To cause any shares of stock to be registered and held in the
name of one or more of its nominees, or one or more nominees
of any system for the central handling of securities, without
increase or decrease of liability;
(c) To collect and receive any and all money and other property
due to the Trust and to give full discharge therefor;
(d) Subject to the provisions of Section 8 of the Trust Agreement,
to settle, compromise or submit to arbitration any claims,
debts, or damages due or owing to or from the Trust; to
commence or defend suits or legal proceedings to protect any
interest of the Trust; and to represent the Trust in all suits
or legal proceedings in any courtor before any other body or
tribunal;
(e) To organize under the laws of any state a corporation for the
purpose of acquiring and holding title to any property which
it is authorized to acquire under the Trust Agreement and to
exercise with respect thereto any or all of the powers set
forth in the Trust Agreement;
(f) Generally to do all acts, whether or not expressly authorized,
which the Trustee may deem necessary or desirable for the
protection of the Trust.
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