<PAGE>
As filed with the Securities and Exchange Commission on March 1, 1994
Registration No. 33-
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NATIONAL CONVENIENCE STORES INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 76-1361734
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Waugh Drive
Houston, Texas 77007
(713) 863-2200
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
NATIONAL CONVENIENCE STORES INCORPORATED
1993 NON-QUALIFIED STOCK OPTION PLAN
(Full Title of Plan)
A. J. Gallerano
National Convenience Stores Incorporated
100 Waugh Drive
Houston, Texas 77007
(713) 863-2200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Thomas W. Adkins
Bracewell & Patterson, L.L.P.
2900 South Tower Pennzoil Place
Houston, Texas 77002
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- -----------------------------------------------------------------------------
Proposed
Proposed maximum
Title of each class offering aggregate
of securities to be Amount to price per offering Amount of
registered be registered unit(1) price(1) registration fee
- ----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 900,000 $10.50 $9,450,000 $3,258,63
per share
- -----------------------------------------------------------------------------
</TABLE>
(1) The proposed maximum offering price per unit and the proposed maximum
aggregate offering price are calculated, pursuant to Rule 457(h)(1),
based on the price at which the options being offered may be exercised
for shares of the Common Stock, and are provided herein for the sole
purpose of determining the registration fee.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by National
Convenience Stores Incorporated ("NCS") with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended June 30,
1993.
2. Quarterly Report on Form 10-Q for the quarters ended
September 30, 1993 and December 31, 1993.
3. The description of the Common Stock of NCS contained in
its registration statement on Form 8-A filed on March 4,
1993.
In addition, all documents filed by NCS with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment to this Registration
Statement which indicates that all the shares of Common Stock
registered hereunder have been sold or which deregisters all shares
of Common Stock then remaining unsold, shall be deemed to be
incorporated herein by reference and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be
incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation and Bylaws of NCS incorporate
substantially all of the provisions of the Delaware General
Corporation Law (the "DGCL") providing for indemnification of
directors and officers of NCS against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in
connection with any proceeding arising by reason of the fact that
<PAGE>
such person is or was an officer or director of NCS or is or was
serving at the request of NCS as a director, officer or employee of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.
As permitted by Section 102 of the DGCL, the Certificate of
Incorporation contains provisions eliminating a director's personal
liability for monetary damages to NCS and its stockholders arising
from a breach of the director's fiduciary duty except for liability
(a) for any breach of the director's duty of loyalty to NCS or its
stockholders, (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (c)
under Section 174 of the DGCL or (d) for any transaction from which
the director derived an improper personal benefit.
Section 145 of the DGCL provides generally that a person sued
as a director, officer, employee or agent of a corporation may be
indemnified by the corporation for reasonable expenses including
attorneys' fees if, in the case of other than derivative suits, he
has acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation (and, in
the case of a criminal proceeding, had no reasonable cause to
believe that his conduct was unlawful). In the case of a derivative
suit, an officer, employee or agent of the corporation which is not
protected by the Certificate of Incorporation may be indemnified by
the corporation for reasonable expenses, including attorneys' fees,
if he has acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in the case of a
derivative suit in respect of any claim as to which an officer,
employee or agent has been adjudged to be liable to the corporation
unless that person is fairly and reasonably entitled to indemnity
for proper expenses. Indemnification is mandatory in the case of a
director, officer, employee or agent who is successful on the merits
in defense of a suit against him.
NCS has entered into Indemnity Agreements with its directors
and certain key officers pursuant to which NCS generally is
obligated to indemnify its directors and such officers to the full
extent permitted by the DGCL as described above. NCS also has
obtained directors and officers liability insurance policies which
cover the directors and certain officers of NCS.
<PAGE>
<TABLE>
Item 8. Exhibits.
<CAPTION>
Exhibit No. Description of Exhibit
<C> <S>
4.1 Restated Certificate of Incorporation of
National Convenience Stores Incorporated
- incorporated by reference to Exhibit 2.1
to the Registrant's Registration Statement
on Form 8-A filed with the Commission on
March 4, 1993
4.2 Restated Bylaws of National Convenience
Stores Incorporated - incorporated by
reference to Exhibit 2.2 to the
Registrant's Registration Statement on
Form 8-A filed with the Commission on
March 4, 1993
4.3 Warrant Agreement dated March 9, 1993
between National Convenience Stores
Incorporated and Boatmen's Trust Company,
as Warrant Agent - incorporated by
reference to Exhibit 2.3 to the
Registrant's Registration Statement on
Form 8-A filed with the Commission on
March 4, 1993
4.4 National Convenience Stores Incorporated
1993 Non-Qualified Stock Option Plan
5 Opinion of Bracewell & Patterson, L.L.P.
23.1 Consent of Deloitte & Touche
23.2 Consent of Bracewell & Patterson, L.L.P.
(contained in its opinion filed as Exhibit
5)
24 Powers of Attorney (included at page II-6
of this Registration Statement)
</TABLE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
<PAGE>
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any material
change to such information in this Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above shall not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorpo-
rated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing
<PAGE>
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Houston, State of Texas, on February 25, 1994.
NATIONAL CONVENIENCE STORES
INCORPORATED
By: /s/ A. J. Gallerano
-------------------------
A. J. Gallerano
Senior Vice President,
General and
Secretary
Each person whose signature appears below on this Registration
Statement hereby constitutes and appoints A. J. Gallerano and Brian
Fontana, each with full power to act without the other, his true and
lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any
and all capacities (until revoked in writing) to sign any and all
amendments (including post-effective amendments and amendments
thereto) to this Registration Statement, and to file the same, with
all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and
perform each and every act and thing he might do or could do in
person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or his substitute, may lawfully do or cause to be
done by virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
<S> <S> <S>
/s/ V. H. Van Horn President, Chief Executive February 23, 1994
- ---------------------- Officer and Director
V. H. Van Horn (Principal Executive Officer)
/s/ Brian Fontana Vice President and Chief
- ---------------------- Financial Officer and
Brian Fontana Principal Accounting Officer February 23, 1994
/s/ Richard C. Steadman Chairman of the Board and February 23, 1994
- ---------------------- Director
Richard C. Steadman
/s/ Dunbar N. Chambers, Jr. Director February 23, 1994
- ----------------------
Dunbar N. Chambers, Jr.
/s/ Charles J. Luellen Director February 23, 1993
- ----------------------
Charles J. Luellen
/s/ Raymond W. Oeland, Jr. Director February 23, 1993
- ----------------------
Raymond W. Oeland, Jr.
/s/ Lionel Sosa Director February 23, 1993
- ----------------------
Lionel Sosa
/s/ Robert B. Stobaugh
- ---------------------- Director February 23, 1993
Robert B. Stobaugh
/s/ William Key Wilde
- ---------------------- Director February 23, 1993
William Key Wilde
Director
</TABLE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit Page
- ------- ---------------------- ----
<C> <S>
4.1 Restated Certificate of Incorporation of National
Convenience Stores Incorporated
4.2 Restated Bylaws of National Convenience Stores
Incorporated
4.3 Warrant Agreement dated March 9, 1993 between
National Convenience Stores Incorporated and
Boatmen's Trust Company, as Warrant Agent
4.4 National Convenience Stores Incorporated 1993 10
Non-Qualified Stock Option Plan
5 Opinion of Bracewell & Patterson, L.L.P. 22
23.1 Consent of Deloitte & Touche 23
23.2 Consent of Bracewell & Patterson, L.L.P.
(contained in its opinion filed as Exhibit 5)
24 Powers of Attorney (included at page II-6 of
this Registration Statement)
</TABLE>
<PAGE>
EXHIBIT 4.4
NATIONAL CONVENIENCE STORES INCORPORATED
1993 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
National Convenience Stores Incorporated, a Delaware
corporation ("Company"), hereby adopts its 1993 Non-Qualified Stock
Option Plan ("Plan") to be effective as of March 9, 1993 ("Effective
Date"), as follows:
1. Definitions. As used herein, the following terms shall
have the meanings indicated below:
"Agreement" shall mean a non-qualified stock option agreement
between the Company and an Eligible Participant pursuant to the
terms of this Plan.
"Board of Directors" shall mean the Board of Directors of the
Company.
"Business Day" shall mean, for the purposes of this Plan, any
day upon which regular trading occurs on the New York Stock
Exchange.
"Change In Control" shall mean and occur with respect to the
Company when either (i) the individuals who were directors of the
Company immediately prior to the Effective Date cease to constitute
a majority of the Board of Directors, or (ii) the Board of Directors
has determined that the conditions concerning the waiver of the net
operating loss carryforward stock transfer restriction with respect
to tender offers as set forth in Article V of the Restated
Certificate of Incorporation of the Company have been met.
"Committee" shall mean any committee of directors of the
Company appointed by the Board of Directors to administer the Plan.
"Company" shall mean National Convenience Stores Incorporated.
"Eligible Participant(s)" shall mean the directors of the
Company, and management employees, including officers, or other key
employees of the Company.
<PAGE>
"Option" shall mean the option of an Eligible Participant to
purchase Common Stock under an Agreement.
"Option Price" shall mean for Options, other than
Reorganization Options, the purchase price for each Share which
shall not be less than the fair market value of such Share on the
date the Option is granted, except that any Options issued within
the first year after the confirmation of the Plan of Reorganization
shall not have an Option Price lower than $10.50.
"Optionee" shall mean an Eligible Participant having a right
to purchase Common Stock under an Agreement.
"Plan" shall mean the Company's 1993 Non-Qualified Stock
Option Plan.
"Plan of Reorganization" shall mean the Revised Fourth Amended
and Restated Joint Plan of Reorganization Under Chapter 11 of the
United States Bankruptcy Code of the Company and certain affiliates,
jointly administered under Case No. 91-49816-H4-11, as confirmed by
the United States Bankruptcy Court for the Southern District of
Texas, Houston Division, by Order entered February 25, 1993.
"Reorganization" shall mean any statutory merger, statutory
consolidation, sale of all or substantially all of the assets of the
Company, or sale, pursuant to an agreement with the Company, of
securities of the Company pursuant to which the Company is or
becomes a wholly owned subsidiary of another company after the
effective date of the Reorganization.
"Reorganization Agreement" shall have the meaning set out in
Section 10.3 hereof.
"Reorganization Options" shall have the meaning set out in
Section 8 hereof.
"Shares," "Stock" or "Common Stock" shall mean shares of $.01
par value common stock of the Company which is designated as Common
Stock in Article IV of the Restated Certificate of Incorporation of
the Company.
"Termination Date" shall mean the date an Optionee ceases to
be an employee, officer or director of the Company.
<PAGE>
"Total Issuable Shares" shall mean the estimated number of
Shares issuable pursuant to the Plan of Reorganization.
2. Purpose. The purpose of the Plan is to encourage and
enable Eligible Participants to acquire proprietary interests in the
Company through the ownership of Common Stock. The Company believes
that Eligible Participants who participate in the Plan will have a
closer identification with the Company by virtue of their ability as
stockholders to participate in the Company's growth and earnings.
The Plan is also designed to provide motivation for Eligible
Participants to continue their employment and for Eligible
Participants to give greater efforts on behalf of the Company.
3. Effective Date. The Plan shall be effective as of the
Effective Date.
4. Reserved for Plan. The Shares to be sold to Eligible
Participants under the Plan may, at the election of the Committee,
be either treasury Shares or Shares of Common Stock otherwise
reserved for such purpose. The maximum number of Shares which shall
be reserved and made available for sale under the Plan shall be Nine
Hundred Thousand (900,000) Shares. Any Shares subject to an Option
which for any reason expires or is terminated unexercised may again
become subject to an Option under the Plan.
5. Eligibility. Options may be granted only to Eligible
Participants.
6. Term of the Plan. The Plan shall remain in effect until
the later of (i) the date on which all Shares subject or which may
become subject to the Plan shall have been purchased pursuant to
Options granted under the Plan or (ii) the date on which the Options
granted not otherwise exercised expire unexercised. The Shares
subject to any Option which expire without exercise shall continue
to be reserved for issuance under this Plan, and Options with
respect thereto may be issued in the discretion of the Board of
Directo2s to officers, employees and directors of the Company,
subject to the limitations set forth herein. All Options issued
under the Plan have a term of ten years, subject to the terms and
conditions of the Plan.
7. Administration of the Plan. The Plan shall be
administered by the Committee. The Committee shall consist of at
least two members of the Board of Directors (and more if the Board
so determines). Within the limitations described herein, the
Committee shall administer the Plan, select the Eligible
Participants to whom Options will be granted (other than those
granted pursuant to the Plan of Reorganization), determine the
number of Shares to be optioned to each Eligible Participant (other
than the Reorganization Options granted pursuant to the Plan of
Reorganization), and interpret, construe, and implement the
provisions of the Plan. The Committee shall select one of its
<PAGE>
members as Chairman and shall hold its meetings at such time and
places, and pursuant to such rules consistent with the Plan, as it
may determine. A majority of the members of the Committee shall
constitute a quorum, and acts of a majority of the members present
at any meeting at which a quorum is present, or acts approved in
writing by a majority of the members of the Committee, shall be the
acts of the Committee. The Committee may participate in a meeting
by means of conference telephone or similar communications
equipment, by means of which all persons participating in the
meeting can hear each other. Vacancies in the membership of the
Committee arising from death, resignation or other inability to
serve shall be filled by the Board of Directors. The Committee may
delegate to the Chief Executive Officer and to other senior officers
of the Company its duties under the Plan pursuant to such conditions
or limitations as the Committee may establish. No member of the
Committee or officer of the Company to whom it has delegated
authority in accordance with the provisions hereof shall be liable
for anything done or omitted to be done by him or her, by any member
of the Committee or by any officer of the Company in connection with
the performance of duties under the Plan, except for his or her own
willful misconduct or as expressly provided by federal or state
statute.
8. Reorganization Options. Pursuant to the Plan of
Reorganization, as of the Effective Date the following Optionees
will be granted an Option for the total number of Shares set forth
opposite their respective names ("Reorganization Options"):
<TABLE>
<CAPTION>
NAME TITLE No.
<S> <S> <C>
V.H. Van Horn President and CEO 150,000
Randy Wortham Senior Vice President -- Gasoline/Real Estate 60,000
Arnold Van Zanten Senior Vice President -- Administration 60,000
A.J. Gallerano Senior Vice President -- General Counsel 60,000
Jayar Daily Vice President -- Advertising and Sales Promotions 30,000
F.L. Chase Vice President -- Merchandise Sales and Buying 30,000
Brian Fontana Treasurer 30,000
Bruce Breedlove Controller 30,000
David Wishard Director of Store Operations 30,000
Jim Fenwick Manager Supply/Distribution 15,000
Tom Austin Corporate Property Manager 15,000
Bob Muir Director-Construction/Equipment 15,000
Ted Beilman Director-Fast Foods 15,000
Jimmy Gibson Group Marketing Manager -- Beverages 15,000
Hal Adams Group Marketing Manager -- Take Home 15,000
Paul Moody Operations Manager -- Division 7408 15,000
Margaret Bennett Director-Corporate Training 15,000
Chris Wilson Director-Merchandise/Administration 15,000
Roy Farr Operations Manager -- Division 7411 15,000
David Esones Corporate Loss Prevention Director 15,000
Randy Curson Real Estate Attorney 15,000
Jim Pearson Director of Risk Management 15,000
Oscar Buenaventura Tax Director 15,000
Reg Kennerty Director-Information Systems 15,000
Ed Chambers Assistant Controller -- Store Accounting 15,000
Betty Battaglini Assistant Controller 15,000
Jon Ketchum Operations Manager -- Zone 7395 15,000
John Kirk Operations Manager -- Zone 7340 15,000
Geoff De Castro Operations Manager -- Division 7405 15,000
Each Director as of the date stated below 15,000
</TABLE>
<PAGE>
To evidence such Reorganization Options, the Company shall enter
into an Agreement with each such Optionee reflecting the following
terms and conditions:
8.1 Price. The exercise price for Shares purchased
under the Reorganization Options shall be $10.50 per Share.
8.2 Number of Shares. The Agreement shall grant an
Option to purchase the number of Shares as set forth above,
expressly provided that in no event with respect to each
Eligible Participant shall the amount of Shares in the
Reorganization Options, plus any other shares that may be
granted pursuant to Options or any other option for a period of
three years after the Effective Date exceed two and one-half
percent (2.5%) of the Total Issuable Shares. Each director of
the Company on the 180th day following the date in which the
order confirming the Plan of Reorganization was entered shall
automatically receive an option to purchase 15,000 Shares at an
exercise price equal to $10.50 per Share.
8.3 Vesting; Exercise of Option. With respect to each
such Optionee, the Option shall become vested and exercisable
as follows: each Option shall vest one-third (1/3) per year
over a three (3) year period beginning on the date the Option
is granted and the Option on the Shares shall be exercisable
immediately after the vesting of the Option and thereafter
until the term of the Option expires. No partial exercise of
the Option may be for less than fifty (50) Shares or its
equivalent.
8.4 Medium and Time of Payment. Shares purchased
pursuant to an Agreement shall be paid for in full at the time
of purchase in cash. Upon receipt of payment, the Company
shall promptly, without transfer or issue tax, deliver to the
Optionee (or other person entitled to exercise the Option) a
certificate or certificates for such Shares.
8.5 Rights as a Stockholder. An Optionee shall have no
rights as a stockholder with respect to any Shares covered by
his or her Option until the date of the issuance of the stock
certificate to the Optionee for such Shares. Except as
otherwise expressly provided in the Plan, no adjustments shall
be made for dividends or other rights for which the record date
is prior to the date such stock certificate is issued.
8.6 Nonassignability of Option. No Option shall be
assignable or transferable by an Optionee except by will or by
the laws of descent and distribution. During the lifetime of
an Optionee, the Option shall be exercisable only by him or
her. In the event the Optionee exercises the Option granted
hereby and acquires Shares, Optionee must hold those Shares for
at least six months after the Option was granted, prior to
transferring such shares.
8.7 Effect of Termination of Employment or Death.
Notwithstanding Section 8.3 hereof, in the event that an
Optionee ceases to be an employee or director of the Company
for any reason other than (i) voluntary resignation by
Optionee, (ii) willful misconduct by Optionee, (iii) the gross
neglect by Optionee 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 Optionee
specifically identifying the gross negligence of Optionee and
directing Optionee to discontinue same, (iv) the commission by
Optionee of a crime constituting a felony or (v) the commission
by Optionee of an act, other than an act taken in good faith
within the course and scope of Optionee's employment, which is
directly detrimental to the Company and which act exposes the
Company to material liability, then all Shares not previously
vested shall automatically become vested and exercisable by
Optionee. If termination is not due to the death of the
Optionee, any Option or unexercised portion thereof with
respect to which the Optionee was vested on the Termination
Date, including any Shares vested by reason of the first
sentence in this Section 8.7, shall expire unless exercised
within a period of ninety (90) days from the Termination Date,
but in no event after the expiration of the term of the Option.
If termination is due to the death of the Optionee, any Option
or unexercised portion thereof with respect to which the
Optionee was vested on the Termination Date, including any
Shares vested by reason of the first sentence in this Section
8.7, shall expire unless exercised by his or her legal
representative, heirs or legatees within a period of one year
from the date of the Optionee's death, but in no event after
the expiration of the term of the Option. In the event that an
Optionee ceases to be an employee or director of the Company
for any reason stated in subparagraphs (i)-(v) of this Section
8.7, all Shares not previously vested shall be forfeited by
such Optionee.
8.8 Change in Control. Upon the occurrence of a Change
in Control, notwithstanding the provisions of Section 8.3
hereof, all Shares not previously vested shall automatically
become vested and exercisable by Optionee.
8.9 General Restriction. Each Option shall be subject
to the requirement that if at any time the Board of Directors
shall determine, in its discretion, that the listing,
registration or qualification of the Shares subject to such
Option upon any securities exchange or under any state or
federal law, or the consent or approval of any government
regulatory body is necessary or desirable as a condition of, or
<PAGE>
in connection with, the granting of such Option or the issue or
purchase of Shares thereunder, such Option may not be exercised
in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of
Directors. Each Optionee shall consent to the imposition of
such legends on the stock certificates evidencing the Shares to
be issued pursuant to this Plan as are necessary, in the
opinion of Company's counsel, to secure to the Company an
appropriate exemption from applicable securities laws. The
Company shall not be obligated to list, qualify, or register
the Shares with any governmental agency or securities exchange,
or if any such Shares have been listed, qualified, or
registered, to prepare any additional prospectus, to amend such
listing, qualification, or registration, or to continue said
listing, qualification, or registration in effect.
9. Additional Non-Qualified Stock Options. All Options
granted under the Plan, other than Reorganization Options, shall be
evidenced by Agreements approved by the Committee and shall include
such terms and conditions deemed advisable by the Committee. All
Agreements shall include the following terms and conditions:
9.1 Price. The exercise price for Shares purchased
under the Agreements shall be the Option Price.
9.2 Number of Shares. The Agreement shall specify the
number of Shares which the Optionee may purchase under such
Option.
9.3 Holding Period. The Optionee must hold any Shares
acquired pursuant to the Option for a period of at least six
months from the date the Option was granted, prior to
transferring such shares.
9.4 Exercise of Options. The Shares subject to exercise
under the Option may be purchased in whole or in part by the
Optionee from time to time, but in no event later than ten (10)
years after the date of the grant of the Option. No partial
exercise may be for less than fifty (50) Shares, or its
equivalent.
9.5 Medium and Time of Payment. Shares purchased
pursuant to an Agreement shall be paid for in full at the time
of purchase in cash. Upon receipt of payment, the Company
shall, without transfer or issue tax, promptly deliver to the
Optionee (or other person entitled to exercise the Option) a
certificate or certificates for such Shares.
9.6 Rights as a Stockholder. An Optionee shall have no
rights as a stockholder with respect to any Shares covered by
<PAGE>
his or her Option until the date of the issuance of the stock
certificate to the Optionee for such Shares. Except as
otherwise expressly provided in the Plan, no adjustments shall
be made for dividends or other rights for which the record date
is prior to the date such stock certificate is issued.
9.7 Nonassignability of Option. No Option shall be
assignable or transferable by an Optionee except by will or by
the laws of descent and distribution. During the lifetime of
an Optionee, the Option shall be exercisable only by him or
her.
9.8 Effect of Termination of Employment or Death. In
the event that an Optionee ceases to be an employee or director
of the Company or of any Subsidiary of the Company for any
reason other than death, any Option or unexercised portion
thereof which was otherwise exercisable on the Termination Date
shall expire unless exercised within a period of ninety (90)
days from the Termination Date, but in no event after the
expiration of ten (10) years from the date the Option was
granted. In the event of the death of an Optionee during the
term of the Option, the Option shall be exercisable by his or
her legal representative, heirs or legatees within a period of
one year from the date of the Optionee's death, but in no event
after the expiration of ten (10) years from the date the Option
was granted.
9.9 General Restriction. Each Option shall be subject
to the requirement that if at any time the Board of Directors
shall determine, in its discretion, that the listing,
registration or qualification of the Shares subject to such
Option upon any securities exchange or under any state or
federal law, or the consent or approval of any government
regulatory body is necessary or desirable as a condition of, or
in connection with, the granting of such Option or the issue or
purchase of Shares thereunder, such Option may not be exercised
in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of
Directors. Each Optionee shall consent to the imposition of
such legends on the stock certificates evidencing the Option
Shares to be issued pursuant to this Plan as are necessary, in
the opinion of Company's counsel, to secure to the Company an
appropriate exemption from applicable securities laws. The
Company shall not be obligated to list, qualify, or register
the Shares with any governmental agency or securities exchange,
or if any such Shares have been listed, qualified, or
registered, to prepare any additional prospectus, to amend such
listing, qualification, or registration, or to continue said
listing, qualification, or registration in effect.
<PAGE>
10. Adjustments.
10.1 Recapitalization. In the event that the
outstanding Shares of Common Stock of the Company are hereafter
increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the
Company or of another corporation, by reason of a
recapitalization, reclassification, stock split-up, combination
of Shares, or dividend or other distribution payable in capital
stock, appropriate adjustment shall be made by the Board of
Directors or Committee to the authorized number and kind of
Shares for the purchase of which Options may be granted under
the Plan. In addition, the Board of Directors or Committee
shall make appropriate adjustment in the authorized number and
kind of Shares as to which outstanding Options, or portions
thereof then unexercised, shall be exercisable, to the end
that, to the extent practicable, the proportionate interest of
the holder of the Option shall be maintained as before the
occurrence of such event. Such adjustment in outstanding
Options shall be made without change in the total price
applicable to the unexercised portion of the Option but with a
corresponding adjustment in the price per Share.
10.2 Dissolution or Liquidation. In the event of the
dissolution or liquidation of the Company, any Option granted
under the Plan shall terminate as of a date to be fixed by the
Board of Directors or Committee, provided that not less than
thirty (30) days' written notice of the date so fixed shall be
given to each Optionee and each such Optionee shall have the
right during such period to exercise his Option as to all or
any part of the Shares covered thereby, including Shares as to
which such Option would not otherwise be exercisable by reason
of an insufficient lapse of time.
10.3 Reorganization. In the event of a Reorganization
in which the Company is not the surviving or acquiring company,
or in which the Company is or becomes a wholly owned subsidiary
of another company after the effective date of the
Reorganization, then
(1) If there is no plan or agreement respecting
the Reorganization ("Reorganization Agreement") or if the
Reorganization Agreement does not specifically provide
for the change, conversion or exchange of the Shares
under outstanding and unexercised Options for securities
of another corporation, then the Reorganization shall be
treated as a transaction to which subparagraph 10.2
applies and the rights of the Company and the Optionee
shall be governed thereby; or
<PAGE>
(2) If there is a Reorganization Agreement and if
the Reorganization Agreement specifically provides for
the change, conversion, or exchange of the Shares under
outstanding and unexercised Options for securities of
another corporation, then the Board of Directors or
Committee shall equitably adjust the Shares under such
outstanding and unexercised Options (and shall adjust the
Shares remaining under the Plan which are then available
to be optioned under the Plan, if the Reorganization
Agreement makes specific provision therefor) in a manner
not inconsistent with the provisions of the
Reorganization Agreement for the adjustment, change,
conversion, or exchange of such Shares and such Options.
The Board of Directors shall use its best efforts to
arrange for an equitable conversion of the option rights
of each Optionee under the Plan to option rights of equal
value with respect to the stock of the surviving or
acquiring corporation.
10.4 Decisions Final. Adjustments and determinations
under this Section shall be made by the Board of Directors or
the Committee, whose decisions shall be final, binding, and
conclusive.
11. Amendment of the Plan. Except with respect to the
Reorganization Options and Options then subject to an Agreement, the
Plan may at any time or from time to time be terminated, modified,
or amended by the affirmative vote of not less than a majority of
the issued and outstanding Common Stock of the Company entitled to
vote. Except with respect to the Reorganization Options and Options
then subject to an Agreement, the Board of Directors may, at any
time and from time to time, terminate, modify, or amend the Plan in
any respect, except without approval of a majority of the shares of
Common Stock issued and outstanding and entitled to vote, the Board
of Directors may not (i) increase the maximum number of Shares for
which Options may be granted under the Plan either in the aggregate
or to any Eligible Participant (other than increases due to changes
in capitalization as referred to in Section 10 hereof), or (ii)
change the class of persons eligible for non-qualified stock options
under Section 5 hereof, or (iii) otherwise materially modify the
requirements as to eligibility for participation in the Plan, or
(iv) otherwise materially increase the benefits accruing to Eligible
Participants under the Plan. The termination or any modification or
amendment of the Plan shall not, without the consent of an Optionee,
affect his or her rights under an Option previously granted to him
or her. With the consent of the Optionee affected, the Committee
may amend outstanding Agreements in a manner not inconsistent with
the Plan.
12. Binding Effect. All decisions of the Committee involving
the implementation, administration or operation of the Plan shall be
<PAGE>
binding on the Company, all Eligible Participants participating in
the Plan, and on all other persons eligible or who become eligible
to participate in the Plan.
Adopted as of the date first above written.
NATIONAL CONVENIENCE STORES
INCORPORATED
By:
-------------------------
A. J. Gallerano,
Senior Vice President,
General Counsel
<PAGE>
EXHIBIT 5
February 28, 1994
National Convenience Stores Incorporated
100 Waugh Drive
Houston, Texas 77007
Gentlemen:
We have acted as counsel to National Convenience Stores
Incorporated, a Delaware corporation ("NCS"), in connection with the
proposed issuance by NCS of (i) up to 900,000 shares of Common
Stock, par value $.01 per share, plus (ii) any additional shares
issuable pursuant to the antidilution provisions of NCS's 1993 Non-
Qualified Stock Option Plan (the "Plan") (together, the "Shares")
upon the exercise of options granted to employees and directors of
NCS pursuant to the terms of the Plan.
We have examined originals or copies of (i) the Restated Certificate
of Incorporation of NCS, (ii) the Restated Bylaws of NCS, (iii) the
Plan, (iv) certain resolutions of the Board of Directors of NCS and
(v) such other documents and records as we have deemed necessary and
relevant for purposes hereof. We have relied on certificates of
officers of NCS and certificates and telegrams of public officials
as to certain matters of fact relating to this opinion and have made
such investigations of law as we have deemed necessary and relevant
as a basis hereof.
We have assumed the genuineness of all signatures, the authenticity
of all documents, certificates and records submitted to us as
originals, the conformity to authentic original documents,
certificates and records of all documents, certificates and records
submitted to us as copies, and the truthfulness of all statements of
fact contained therein.
Based upon the foregoing and subject to the limitations and
assumptions set forth herein and having due regard for such legal
considerations as we deem relevant, we are of the opinion that:
1. NCS is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware.
<PAGE>
2. The Shares have been duly and validly authorized and, when
issued and paid for in accordance with the terms of the Plan,
for a consideration at least equal to the par value thereof,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as Exhibit 5 to NCS's Registration Statement
on Form S-8 relating to the Plan.
Very truly yours,
/s/ Bracewell & Patterson, L.L.P.
Bracewell & Patterson, L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement of National Convenience Stores
Incorporated ("NCS") on Form S-8 of our report dated
August 10, 1993, appearing in and incorporated by reference
into NCS's Annual Report on Form 10-K for the year ended
June 30, 1993.
/s/ Deloitte & Touche
DELOITTE & TOUCHE
Houston, Texas
February 28, 1994
