Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K National Convenience Stores Inc. Form 8-K 9 44K
2: EX-99.1 Class Action Complaint - Crandon Capital Partners 10 32K
11: EX-99.10 Employment Agreement - V.H. Van Horn 28 117K
12: EX-99.11 Employment Agreement - A.J. Gallerano 25 111K
13: EX-99.12 Second Amend. Employmnt Agreemnt-Arnold Van Zanten 25 112K
14: EX-99.13 Employment Agreement - C. R. Wortham 25 110K
15: EX-99.14 Fourth Amend. Employment Agreement-Brian Fontana 25 113K
16: EX-99.15 Employment Agreement - Douglas B. Binford 25 108K
17: EX-99.16 Employment Agreement - Janice E. Bryant 5 28K
18: EX-99.17 Master Agreement for Atm Facilities 42 145K
19: EX-99.18 Order Providing for Closing Chaper 11 Cases 12 44K
20: EX-99.19 Promissory Note Dated 08/31/95 - V.H. Van Horn 3 17K
3: EX-99.2 Complaint - the Circle K Corporation 7 23K
4: EX-99.3 Complaint - the Circle K Corporation 6 22K
5: EX-99.4 Amended and Restated Ncs Officers' Retirement Plan 12 49K
6: EX-99.5 Amended and Restated Trust 15 48K
7: EX-99.6 Amended Directors' Retirement Plan 8 35K
8: EX-99.7 Amended Directors' Retirement Plan 15 48K
9: EX-99.8 Form of Twenty-Second Amendment to Profit Sharing 1 10K
10: EX-99.9 Form of Director Agreement 8 38K
EX-99.3 — Complaint – the Circle K Corporation
EX-99.3 | 1st Page of 6 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 99.3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
THE CIRCLE K CORPORATION, )
)
)
Plaintiff, )
)
- against - )
) C.A. No. 95-537
NATIONAL CONVENIENCE STORES )
INCORPORATED, V.H. VAN HORN, )
RICHARD C. STEADMAN, DUNBAR N. )
CHAMBERS, JR., RAYMOND W. )
OELAND, JR., ROBERT B. STOBAUGH, )
WILLIAM K. WILDE, CHARLES J. )
LUELLEN and LIONEL SOSA. )
)
Defendants. )
)
COMPLAINT
Plaintiff, The Circle K Corporation ("Circle K"), by its undersigned
attorneys, for its Complaint herein, alleges as follows:
JURISDICTION AND VENUE
1. This Court has jurisdiction over this action pursuant to Section 27
of the Securities Exchange Act of 1934, 15 U.S.C. Section 78aa (the "Exchange
Act") and 28 U.S.C. Sections 1331 and 1337.
2. Venue is proper in this District pursuant to Section 27 of the
Exchange Act, and 28 U.S.C. Section 1391(c) because acts and transactions
complained of here occurred and, unless enjoined, will continue to occur, in
this Distrct.
PARTIES
3. Plaintiff is a corporation organized under the laws of Delaware
with its principal place of business in Arizona. Plaintiff owns shares of the
common stock of defendant National Convenience Stores Incorporated ("NCS"). On
August 8, 1995, Circle K offered to acquire all of the remaining shares of NCS
common stock.
4. Defendant NCS is a corporation organized under the laws of Delaware
with its principal place of business in Texas. NCS's 6 million shares of
outstanding common stock are listed on the New York Stock Exchange.
5. Each of the 8 remaining defendants (the "individual defendants") is
a member of the NCS Board of Directors. NCS has a "staggered" Board; only 4
directors will stand for reelection at the upcoming annual meeting of NCS
stockholders.
DEFENDANTS' WRONGFUL CONDUCT
6. After Circle K offered to acquire NCS's common stock, the
individual defendants undertook a series of acts and transactions intended to
entrench themselves in their positions of power, prestige, and economic
advantage.
7. On August 8, 1995, Circle K submitted to the management and Board
of Directors of NCS a proposal whereby Circle K would purchase all outstanding
common stock of NCS at a price of $17 per share in cash. In addition, Circle K
would agree to assume approximately $100 million in existing debt of NCS. The
transaction was valued at approximately $210 million. Circle K also advised Mr.
Van Horn on August 8, 1995 that it intended to nominate a slate of directors
for election at NCS' upcoming annual
meeting of stockholders.
8. On August 10, 1995, the NCS Board purported to amend NCS's bylaws
to make it substantially more difficult for shareholders to vote to expand the
number of persons serving on NCS's Board. Whereas under NCS's prior bylaws,
holders of a simple majority of NCS's outstanding common stock could amend the
company's bylaws to expand the size of the Board, now such a change purportedly
requires the vote of the holders of 75% of NCS's common stock.
9. On August 11, 1995, Circle K formally notified the individual
defendants of its intention, in connection with the annual meeting of NCS
stockholders this autumn,
(a) to propose bylaw amendments (i) expanding the size of the
NCS Board from 8 to 17 members, and (ii) rescinding the August 10
bylaw amendment requiring a 75% shareholder vote to expand the size
of the Board, and
(b) to nominate 9 persons for election to the NCS Board.
10. On August 14, 1995, the individual defendants caused NCS to issue
a press release purporting to describe, among other things, Circle K's offer
and its proposals concerning the Board. The August 14 press release stated in
part as follows:
The Company's bylaws provide that any change in the number of directors
must be approved by 75% of the shares entitled to vote at a meeting of
stockholders.
11. In describing the 75% vote requirement, the August 14 press
release did not reveal that the Board had voted to impose such a requirement
just 4 days earlier, or that, up until
3
that time, a simple majority of shareholders could amend the bylaws to increase
the number of directors.
12. The August 14 press release also did not advise stockholders that,
under Delaware law, corporate directors may not act unilaterally to restrict
stockholders' ability to amend or repeal bylaws, or in the alternative, that
there is at the very least a substantial legal question about the ability of
corporate directors to take such action.
13. In describing Circle K's proposals, the press release did not
reveal that Circle K was proposing to reduce from 75% to a simple majority the
number of shares needed to vote to expand the size of the Board.
14. These omissions rendered the press release materially false and
misleading.
15. On August 14, 1995, the individual defendants caused NCS to file a
report on Form 8-K (the "8-K") with the Securities and Exchange Commission
("SEC"). The 8-K reported, among other things, that another shareholder of NCS
nominated 4 persons to be elected to the NCS Board of Directors at this
autumn's annual meeting of shareholders.
16. The 8-K failed to state that the other shareholder (which the 8-K
failed to identify by name) also proposed to expand the size of the Board so
that 5 directors would be elected this year and also announced its intention to
nominate an additional candidate to fill that newly created directorship.
17. These omissions rendered the 8-K materially false and misleading.
4
18. Defendants made the representations and omissions set forth in the
press release and the 8-K through the use of the mails and other
instrumentalities of interstate commerce.
19. Plaintiff has no adequate remedy of law.
FIRST CLAIM FOR RELIEF
(For Violations of Section 10(b)
of the Exchange Act and Rule 10b-5)
20. Plaintiff repeats and realleges paragraphs 1-19 above as if set
forth here in full.
21. Defendants violated Section 10(b) of the 1934 Act, 15 U.S.C.
Section 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. Section
240.10b-5, in that defendants, by the use of a means of instrumentality of
interstate commerce and the mails and to the detriment of plaintiff:
(a) employed devices, schemes and artifices to defraud;
(b) made untrue statements of material facts and omitted to state
material facts necessary in order to make the statements made, in the light of
circumstances in which they were made, not misleading; and
(c) engaged in acts, practices and courses of business which operated
as a fraud and deceit upon plaintiff.
WHEREFORE, plaintiff respectfully requests judgment against defendants
as follows:
(a) compelling defendants to make immediate corrective action to
disclose material facts necessary to make defendants' statements not
misleading;
(b) enjoining defendants, until after an appropriate
5
period of time after full dissemination of the corrective disclosure referred
to above, from soliciting proxies from owners of NCS stock;
(c) granting plaintiff reasonable costs and expenses incurred in this
action; and
(d) granting such other and further relief as this Court may find just
and proper.
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/ KENNETH NACHBAR
--------------------------------------
Kenneth Nachbar
1201 North Market Street
P. O. Box 1347
Wilmington, DE 19899
(302) 658-9200
Attorneys for Plaintiff
OF COUNSEL:
Mitchell A. Karlan
GIBSON, DUNN & CRUTCHER
200 Park Avenue
New York, New York 10166
(212) 351-4000
September 5, 1995
Dates Referenced Herein and Documents Incorporated by Reference
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