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EXHIBIT 99.16
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), effective from and after
February 1, 1995 (the "Effective Date"), is by and between NATIONAL CONVENIENCE
STORES INCORPORATED, a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxxx ("Executive").
W I T N E S S E T H
For and 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 agrees to diligently and competently serve as and
perform the functions of, Vice President - Controller (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 February 1, 1995 and shall terminate on January 31, 1996 (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 her 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 her duties under
this Agreement; but this shall not be construed as preventing Executive from
investing her 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 the
metropolitan Houston, Texas area.
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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
$145,000 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
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 her 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 she reasonably believed to be in or not
opposed to the best interests of the Company.
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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. January 31, 1996.
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 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
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 her 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 February 1, 1995 cease to constitute a majority of the Board of Directors.
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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 herself or others, or divulge to others, any
secret or confidential information, knowledge or data of the Company obtained
by Executive as a result of her employment unless authorized by a majority of
the 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 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 understanding, 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.
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If to the Company:
National Convenience Stores
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: General Counsel
If to Executive:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
21st day of March, 1995.
NATIONAL CONVENIENCE STORES
INCORPORATED
By: /s/ X. X. XXXXXXXXX
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X.X. Xxxxxxxxx
Senior Vice President, General Counsel
and Secretary
EXECUTIVE
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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