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EXHIBIT 99.9
DIRECTOR AGREEMENT
THIS DIRECTOR AGREEMENT (this Agreement") is executed effective as of
August 31, 1995 (the "Effective Date"), by and between NATIONAL CONVENIENCE
STORES INCORPORATED, a Delaware corporation (the "Company"), and
______________________ ("Director").
R E C I T A L S:
A. Director was elected a director of the Company to serve as
such until the Company's ____ Annual Meeting of Stockholders, or until
Director's successor has been elected.
B. The Board of Directors of the Company (the "Board of
Directors") has authorized the President of the Company to enter into a written
agreement with Director regarding and formalizing (i) the compensation and
other amounts to be paid Director in connection with Director's service on the
Board of Directors, and (ii) certain other matters relating to Director's
service on the Board of Directors.
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 Director hereby agree as follows:
ARTICLE I
COMPENSATION AND RELATED ITEMS
1.1 Compensation. As compensation and consideration for Director
serving on the Board of Directors and/or serving on any committee of the Board
of Directors, the Company agrees to pay Director, and Director agrees to
accept, such compensation as may be approved from time to time by the Board of
Directors, including, but not limited to, any retirement plans and programs,
stock option agreements, and any medical, prescription, dental, disability,
individual life, group life, and accidental death and travel insurance plans,
programs and policies.
1.2 Expenses. The Company agrees that, during Director's term on
the Board of Directors, Director shall be allowed reasonable and necessary
business expenses in connection with his serving on the Board of Directors
and/or serving on any committee of the Board of Directors within guidelines
established by the Board of Directors ("Business Expenses"). Company will
promptly reimburse Director for all Business Expenses incurred by Director upon
Director's presentation to the Company of an itemized account thereof, together
with receipts, vouchers, or other supporting documentation. After the
expiration of Director's term on the Board of Directors, however such
expiration may come about, Director shall have ninety (90) days to submit for
reimbursement Business Expenses incurred by Director.
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1.3 Certain Additional 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 or any of its affiliates to or for the benefit of
Director, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (any such payments or distributions
being individually referred to herein as a "Payment," and any two or more of
such payments or distributions being referred to herein as "Payments"), would
be subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") (such excise tax, together with any
interest thereon, any penalties, additions to tax, or additional amounts with
respect to such excise tax, and any interest in respect of such penalties,
additions to tax or additional amounts, being collectively referred herein to
as the "Excise Tax"), then Director shall be entitled to receive an additional
payment or payments (individually referred to herein as a "Gross-Up Payment"
and any two or more of such additional payments being referred to herein as
"Gross-Up Payments") in an amount such that after payment by Director of all
taxes (as hereinafter defined) imposed upon the Gross-Up Payment, Director
retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 1.3(c) through
(i), any determination (individually, a "Determination") required to be made
under this Section 1.3, including whether a Gross-Up Payment is required and
the amount of such Gross-Up Payment, shall initially be made, at the Company's
expense, by nationally recognized tax counsel mutually acceptable to the
Company and Director (the "Tax Counsel"). Tax Counsel shall provide detailed
supporting legal authorities, calculations, and documentation both to the
Company and Director within 15 business days of the termination of Director's
employment, if applicable, or such other time or times as is reasonably
requested by the Company or Director. If Tax Counsel makes the initial
determination that no Excise Tax is payable by Director with respect to a
Payment or Payments, it shall furnish Director with an opinion reasonably
acceptable to Director that no Excise Tax will be imposed with respect to any
such Payment or Payments. Director shall have the right to dispute a
Determination (a "Dispute") within 15 business days after delivery of Tax
Counsel's opinion with respect to such Determination. The Gross-Up Payment, if
any, as determined pursuant to such Determination shall be paid by the Company
to Director within five business days of Director's receipt of such
Determination. The existence of a Dispute shall not in any way affect
Director's right to receive the Gross-Up Payment in accordance with the
Determination. If there is no Dispute, the Determination shall be binding,
final and conclusive upon the Company and Director, subject in all respects,
however, to the provisions of Section 1.3(c) through (i) below. As a result of
the uncertainty in the application of Sections 4999 and 280G of the Code, it is
possible that Gross-Up Payments (or portions thereof) which will not have been
made by the Company should have been made ("Underpayment"), and if upon any
reasonable written request from Director or the Company or upon the Tax
Counsel's own initiative, Tax Counsel, at the Company's expense, thereafter
determines that Director is required to make a payment of any Excise Tax or any
additional Excise Tax, as the case may be, Tax Counsel shall determine, at the
Company's expense, the amount of the Underpayment that has
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occurred and any such Underpayment shall be promptly paid by the Company to the
Director.
(c) The Company shall defend, hold harmless, and
indemnify Director on a fully grossed-up after tax basis from and against any
and all claims, losses, liabilities, obligations, damages, impositions,
assessments, demands, judgements, settlements, costs and expenses (including
reasonable attorneys', accountants', and experts' fees and expenses) with
respect to any tax liability of the Director resulting from any Final
Determination (as hereinafter defined) that any Payment is subject to the
Excise Tax.
(d) If a party hereto receives any written or oral
communication with respect to any question, adjustment, assessment or pending
or threatened audit, examination, investigation or administrative, court or
other proceeding which, if pursued successfully, could result in or give rise
to a claim by Director against the Company under this Section 1.3 ("Claim"),
including, but not limited to, a claim for indemnification of Director by the
Company under Section 1.3(c), then such party shall promptly notify the other
party hereto in writing of such Claim ("Tax Claim Notice").
(e) If a Claim is asserted against Director ("Director
Claim"), the Director shall take or cause to be taken such action in connection
with contesting such Director Claim as the Company shall reasonably request in
writing from time to time, including the retention of counsel and experts as
are reasonably designated by the Company (it being understood and agreed by the
parties hereto that the terms of any such retention shall expressly provide
that the Company shall be solely responsible for the payment of any and all
fees and disbursements of such counsel and any experts) and the execution of
powers of attorney, provided that:
(i) within 30 calendar days after the Company
receives or delivers, as the case may be, the Tax Claim Notice
relating to such Director Claim (or such earlier date that any
payment of the taxes claimed is due from Director, but in no
event sooner than five calendar days after the Company
receives or delivers such Tax Claim Notice), the Company shall
have notified the Director in writing ("Election Notice") that
the Company does not dispute its obligations (including, but
not limited to, its indemnity obligations) under this
Agreement and that the Company elects to contest, and to
control the defense or prosecution of, such Director Claim at
the Company's sole risk and sole cost and expense; and
(ii) the Company shall have advanced to Director
on an interest-free basis, the total amount of the tax claimed
in order for Director, at the Company's request, to pay or
cause to be paid the tax claimed, file a claim for refund of
such tax and, subject to the provisions of the last sentence
of Section 1.3(g), ▇▇▇ for a refund of such tax if such claim
for refund is disallowed by the appropriate taxing authority
(it being understood and agreed by the parties hereto that the
Company shall only be entitled to ▇▇▇ for a refund and the
Company shall not be entitled to initiate any
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proceeding in, for example, United States Tax Court) and shall
indemnify and hold Director harmless, on a fully grossed-up
after tax basis, from any tax imposed with respect to such
advance or with respect to any imputed income with respect
to such advance; and
(iii) the Company shall reimburse Director for any
and all costs and expenses resulting from any such request by
the Company and shall indemnify and hold Director harmless, on
fully grossed-up after-tax basis, from any tax imposed as a
result of such reimbursement.
(f) Subject to the provisions of Section 1.3(e) hereof,
the Company shall have the right to defend or prosecute, at the sole cost,
expense and risk of the Company, such Director Claim by all appropriate
proceedings, which proceedings shall be defended or prosecuted diligently by
the Company to a Final Determination; provided, however, that (i) the Company
shall not, without Director's prior written consent, enter into any compromise
or settlement of such Director Claim that would adversely affect the Director,
(ii) any request from the Company to Director regarding any extension of the
statute of limitations relating to assessment, payment, or collection of taxes
for the taxable year of Director with respect to which the contested issues
involved in, and amount of, the Director Claim relate is limited solely to such
contested issues and amount, and (iii) the Company's control of any contest or
proceeding shall be limited to issues with respect to the Director Claim and
Director shall be entitled to settle or contest, in his sole and absolute
discretion, any other issue raised by the Internal Revenue Service or any other
taxing authority. So long as the Company is diligently defending or
prosecuting such Director Claim, Director shall provide or cause to be provided
to the Company any information reasonably requested by the Company that relates
to such Director Claim, and shall otherwise cooperate with the Company and its
representatives in good faith in order to contest effectively such Director
Claim. The Company shall keep Director informed of all developments and events
relating to any such Director Claim (including, without limitation, providing
to Director copies of all written materials pertaining to any such Director
Claim), and Director or his authorized representatives shall be entitled, at
Director's expense, to participate in all conferences, meetings and proceedings
relating to any such Director Claim.
(g) If, after actual receipt by Director of an amount of
a tax claimed (pursuant to an Director Claim) that has been advanced by the
Company pursuant to Section 1.3(e)(ii) hereof, the extent of the liability of
the Company hereunder with respect to such tax claimed has been established by
a Final Determination, Director shall promptly pay or cause to be paid to the
Company any refund actually received by, or actually credited to, the Director
with respect to such tax (together with any interest paid or credited thereon
by the taxing authority and any recovery of legal fees from such taxing
authority related thereto), except to the extent that any amounts are then due
and payable by the Company to Director, whether under the provisions of this
Agreement or otherwise. If, after the receipt by Director of an amount
advanced by the Company pursuant to Section 1.3(e)(ii), a determination is made
by the Internal Revenue Service or other appropriate taxing authority that
Director shall not be entitled to any refund with respect to such tax claimed
and the Company does not notify Director in writing of its intent to contest
such denial of refund prior to the
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expiration of thirty days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of any Gross-Up Payments and
other payments required to be paid hereunder.
(h) With respect to any Director Claim, if the Company
fails to deliver an Election Notice to Director within the period provided in
Section 1.3(e)(i) hereof or, after delivery of such Election Notice, the
Company fails to comply with the provisions of Section 1.3(e)(ii) and (iii) and
(f) hereof, then Director shall at any time thereafter have the right (but not
the obligation), at his election and in his sole and absolute discretion, to
defend or prosecute, at the sole cost, expense and risk of the Company, such
Director Claim. Director shall have full control of such defense or
prosecution and such proceedings, including any settlement or compromise
thereof. If requested by Director, the Company shall cooperate, and shall
cause its affiliates to cooperate, in good faith with Director and his
authorized representatives in order to contest effectively such Director Claim.
The Company may attend, but not participate in or control, any defense,
prosecution, settlement or compromise of any Director Claim controlled by
Director pursuant to this Section 1.3 and shall bear its own costs and expenses
with respect thereto. In the case of any Director Claim that is defended or
prosecuted by Director, Director shall, from time to time, be entitled to
current payment, on a fully grossed-up after tax basis, from the Company with
respect to costs and expenses incurred by Director in connection with such
defense or prosecution.
(i) In the case of any Director Claim that is defended or
prosecuted to a Final Determination pursuant to the terms of this Section 1.3,
the Company shall pay, on a fully grossed-up after tax basis, to Director in
immediately available funds the full amount of any taxes arising or resulting
from or incurred in connection with such Director Claim that have not
theretofore been paid by the Company to Director, together with the costs and
expenses, on a fully grossed-up after tax basis, incurred in connection
therewith that have not theretofore been paid by the Company to Director,
within ten calendar days after such Final Determination. In the case of any
Director Claim not covered by the preceding sentence, the Company shall pay, on
a fully grossed-up after tax basis, to Director in immediately available funds
the full amount of any taxes arising or resulting from or incurred in
connection with such Director Claim at least ten calendar days before the date
payment of such taxes is due from Director, except where payment of such taxes
is sooner required under the provisions of this Section 1.3, in which case
payment of such taxes (and payment, on a fully grossed-up after tax basis, of
any costs and expenses required to be paid under this Section 1.3) shall be
made within the time and in the manner otherwise provided in this Section 1.3.
(j) For purposes of this Agreement, the term "Final
Determination" shall mean (A) a decision, judgment, decree or other order by a
court or other tribunal with appropriate jurisdiction, which has become final
and non-appealable; (B) a final and binding settlement or compromise with an
administrative agency with appropriate jurisdiction, including, but not limited
to, a closing agreement under Section 7121 of the Code; (C) any disallowance of
a claim for refund or credit in respect to an overpayment
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of tax unless a suit is filed on a timely basis; or (D) any final disposition
by reason of the expiration of all applicable statutes of limitations.
(k) For purposes of this Agreement, the terms "tax" and
"taxes" mean any and all taxes of any kind whatsoever (including, but not
limited to, any and all Excise Taxes, income taxes, and employment taxes),
together with any interest thereon, any penalties, additions to tax, or
additional amounts with respect to such tax and any interest in respect of such
penalties, additions to tax or additional amounts.
(l) For purposes of this Agreement, the terms "affiliate"
and "affiliates" mean, when used with respect to any entity, individual, or
other person, any other entity, individual, or other person which, directly or
indirectly, through one or more intermediaries controls, or is controlled by,
or is under common control with such entity, individual or person. The term
"control" and derivations thereof when used in the immediately preceding
sentence means the ownership, directly or indirectly, of 50% or more of the
voting securities of an entity or other person or possessing the power to
direct or cause the direction of the management and policies of such entity or
other person, whether through the ownership of voting securities, by contract
or otherwise.
1.4 Legal Fees and Expenses. The Company shall defend, hold
harmless, and indemnify Director on a fully grossed-up after tax basis from and
against any and all costs and expenses (including reasonable attorneys',
accountants' and experts' fees and expenses) incurred by Director from time to
time as a result of any contest (regardless of the outcome) by the Company or
others contesting the validity or enforcement of, or liability under, any term
or provision of this Agreement, plus in each case interest at the applicable
federal rate provided for in Section 7872(f)(2)(B) of the Code.
ARTICLE II
INDEMNIFICATION
Director shall be entitled to such rights of indemnification and
advancement of expenses as he may now or in the future be entitled under
applicable law, the Company's certificate of incorporation and/or by-laws, any
agreement, vote of stockholders, resolution of directors, or otherwise.
ARTICLE III
GENERAL PROVISIONS
3.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
3.2 Assignability. This Agreement is a personal services
agreement which, except as provided in this Agreement, may not be assigned or
transferred by Director. This Agreement shall be binding upon Director and the
Company, and their respective heirs, successors and assigns. The Company shall
require any corporation, entity, individual or other person who is the
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization, or otherwise) to all or substantially all of the business or
assets of the Company to assume, by a written agreement in form and
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substance satisfactory to Director, all of the obligations of the Company under
this Agreement.
3.3 Amendments. 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.
3.4 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.
3.5 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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
If to Director:
_____________________________
_____________________________
_____________________________
3.6 Waiver. The waiver of any breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any breach of
the same or any other term or condition of this Agreement.
3.7 Severability. In the event any provision of this Agreement is
found to be unenforceable or invalid, such provision shall be severable from
this Agreement and shall not effect the enforceability or validity of any other
provision of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
NATIONAL CONVENIENCE STORES
INCORPORATED
By: ______________________________
▇. ▇. ▇▇▇ ▇▇▇▇
President
"COMPANY"
__________________________________
__________________
"DIRECTOR"
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