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-99.2 — Complaint – the Circle K Corporation
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EXHIBIT 99.2
IN THE COURT CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
)
THE CIRCLE K CORPORATION, )
)
)
Plaintiff, )
)
- against - )
) Civil Action No. 14518
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 attorneys, for
its complaint herein, alleges as follows:
NATURE OF THE ACTION
1. Circle K is a holder of common stock of National Convenience Stores
Incorporated ("NCS" or the "Company") and has offered to acquire all remaining
shares of NCS. The individual defendants have wrongfully refused properly to
negotiate or consider any bona fide offer for the Company, and have taken
reactive defensive actions, which were wrongfully designed to entrench NCS
officers and directors in their positions of control, and which were and are
unreasonable in relation to any perceived threat posed by Circle K. In
furtherance of these efforts, the individual defendants, on August 10, 1995,
specifically adopted and
implemented an amendment to the Company's Restated By-Laws that purports to
require that any amendment to the By-Laws to change the number of directors
must be approved by holders of 75 percent of the shares entitled to vote at a
meeting of stockholders (the "75 Percent By-Law Provision"). In addition, on
August 31, 1995, the individual defendants adopted a poison pill. Their actions
constitute unfair dealing, improper interference with shareholder voting
rights, a manipulation of corporate machinery for personal purposes, and a
breach of their fiduciary duties to NCS stockholders. The individual defendants
are using their fidiciary positions of control over NCS to thwart Circle K in
its legitimate attempt to acquire NCS, and the individual defendants are trying
to entrench themselves in their positions with the Company.
PARTIES
2. Plaintiff is and, at all relevant times, has been the owner of
shares of NCS common stock.
3. NCS is a corporation organized under the laws of Delaware. NCS
operates approximately 660 specialty convenience stores under the name of "Stop
N' Go" in Texas. NCS has approximately 6 million shares of common stock
outstanding and 1,380 stockholders of record. NCS's stock is listed on the New
York Stock Exchange. NCS's Board of Directors has 8 members, 4 of whom will be
elected at the next annual meeting of NCS stockholders.
4. Defendant V. H. Van Horn is and has at all relevant times been NCS'
President and Chief Executive Officer and a member
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of its Board of Directors.
5. Defendant Richard C. Steadman is and has at all relevant times been
Chairman of NCS' Board of Directors.
6. Defendants Dunbar N. Chambers, Jr., Raymond W. Oeland, Jr., Robert
B. Stobaugh, William K. Wilde, Charles J. Luellen, and Lionel Sosa are and have
been at all relevant times directors of NCS.
SUBSTANTIVE ALLEGATIONS
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, which
has now been scheduled for November 7, 1995.
8. During the fiscal year ending June 30, 1995, the last full fiscal
year before the offer, NCS's common stock traded at prices as low as $6.50 and
never traded higher than $12.63.
9. On August 10, 1995, the individual defendants enacted the 75
Percent By-Law Provision, but made no public announcement of its enactment.
10. On August 11, 1995, Circle K (a) submitted a proposal for
shareholder vote at NCS's upcoming annual meeting to
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amend NCS' By-Laws to increase the size of NCS's Board of Directors from 8 to 17
directors, (b) proposed a slate of nine candidates for election at that
meeting, and (c) announced that it would seek to repeal any bylaw amendment
adopted since January 1, 1994.
11. On August 31, 1995, the individual defendants announced that they
had rejected Circle K's offer. The individual defendants did not engage in or
invite Circle K to engage in any negotiations concerning a possible
acquisition.
12. On August 31, the individual defendants also announced that they
had adopted a poison pill anti-takeover device (the "Poison Pill").
13. The NCS Poison Pill will have the result that, if Circle K or
anyone else becomes the beneficial owner (as therein defined) of 10% or more of
the Company's outstanding common stock, NCS' stockholders will have the right
to receive, upon exercise of the rights provided for therein, a number of
newly-issued shares of common stock having a current market price equal to two
times the exercise price of the right (which is now $55).
14. By enacting the 75 Percent By-Law Provision, the defendants have
purported, by unilateral board action, to restrict the stockholders' right to
amend the bylaws of their company. Delaware law does not permit corporate
directors to limit stockholders' right to amend corporate bylaws in this
manner.
15. The 75 Percent By-Law Provision and the Poison Pill have the
effect of making it extraordinarily time-consuming, difficult, and expensive for
any potential acquiror not approved by
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the individual defendants to acquire NCS. It also makes more difficult
shareholder action through corporate suffrage to change Board composition.
Therefore, the 75 Percent By-Law Provision and the Poison Pill have the effect
of interfering with shareholder voting and precluding successful and timely
completion of even the most attractive offer for NCS unless the Board
acquiesces, thus denying the Company's shareholders an opportunity to make
their own unfettered choice.
16. As a consequence, the adoption and implementation of the 75
Percent By-Law Provision and the Poison Pill have the force and effect of
entrenching the individual defendants in their corporate offices against any
real or perceived threat to their control, and dramatically impairs the rights
of shareholders to exercise freedom of choice in a proxy contest or to avail
themselves of a bona fide offer to purchase their shares by an acquiror
unfavored by incumbent management.
17. The individual defendants have breached the duties they owe to
plaintiff and other shareholders in that they have not and are not exercising
independent business judgment and have acted and are acting to the detriment of
the shareholders to benefit themselves.
18. The individual defendants are acting to entrench themselves in
their offices and positions and maintain their substantial salaries and
perquisites, all to the expense and to the detriment of the shareholders of
NCS.
19. By the acts, transactions and courses of conduct
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alleged herein, the individual defendants, individually and as part of a common
plan and scheme in breach of their fiduciary duties and obligations, are
attempting to ensure continuance of their positions as directors and officers.
The individual defendants have been engaged in a wrongful effort to entrench
themselves in their offices and positions of control and prevent the
acquisition of NCS except on terms which would further their own personal
interests.
20. Plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment against defendants as follows:
(a) declaring void and/or enjoining enforcement of the 75 Percent
By-Law Provision and the Poison Pill;
(b) ordering the individual defendants jointly and severally to
account to plaintiff for all damages suffered and to be suffered as a result of
the acts and transactions alleged herein;
(c) awarding plaintiff the costs and disbursements of this action,
including reasonable allowance for plaintiff's attorneys' and experts' fees;
and
(d) granting such other and further relief as may be just and proper.
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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
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Dates Referenced Herein and Documents Incorporated by Reference
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