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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 8, 1995
NATIONAL CONVENIENCE STORES INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 1-7936 74-1361734
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(State or other (Commission (IRS employer
jurisdiction of file number) identification no.)
incorporation)
100 Waugh Drive, Houston, Texas 77007
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (713) 863-2200
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Item 5. Other Events.
National Convenience Stores Incorporated (the "Company") recently received an
unsolicited cash acquisition proposal at $17.00 per share from The Circle K
Corporation ("Circle K"). The Board of Directors is in the process of
evaluating the offer and has engaged Merrill Lynch & Co. to undertake an in
depth evaluation of the offer for the Company.
On August 10, 1995, the Board of Directors of the Company adopted an amendment
to the Company's Restated By-Laws. The Restated By-Laws, as amended (the
"By-Laws"), 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. The
By-Laws are filed as an exhibit hereto.
On August 11, 1995, the Company received from Circle K a proposal to amend the
By-Laws to increase the number of directors to 17, to rescind certain
amendments to the By-Laws and to elect nine persons for election as directors
at the Company's 1995 annual meeting. The Company also received from a
stockholder of the Company the nomination of four persons for election as
directors at the 1995 annual meeting. The Board of Directors intends to fix
the date for the Company's 1995 annual meeting later this year once it
determines the most appropriate date in view of emerging circumstances.
Each of the foregoing events is described in the press release filed as an
exhibit hereto.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit
Number Identification of Exhibit
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3.1 Restated By-Laws, as amended.
99.1 Press release dated August 14, 1995.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONAL CONVENIENCE STORES INCORPORATED
By:____________________________________
A. J. Gallerano
Senior Vice President
and General Counsel
Dated: August 14, 1995
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EXHIBIT INDEX
Exhibit
Number Identification of Exhibit
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3.1 Restated By-Laws, as amended.
99.1 Press release dated August 14, 1995.
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EXHIBIT 3.1
Restated as of March 9, 1993, as amended August 10, 1995
NATIONAL CONVENIENCE STORES INCORPORATED
RESTATED BY-LAWS
ARTICLE I.
MEETINGS OF STOCKHOLDERS
Section 1. The annual meeting of the stockholders of the Company
shall be held on the fourth Thursday of October in each year, at ten o'clock
a.m., at the offices of the Company in the City of Houston, Texas, or at such
other place, within or without the State of Texas, as may be stated in the
notice of meeting, for the purposes of electing directors and of transacting
such other business as may properly come before the meeting. If the day
designated herein is a legal holiday, the annual meeting shall be held on the
first succeeding day which is not a legal holiday. If for any reason the
annual meeting shall not be held on the day designated herein, the Board of
Directors shall cause the annual meeting to be held as soon thereafter as may
be convenient.
Section 2. Special meetings of the stockholders may be called at any
time only by (i) the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption), (ii) the
Executive Committee of the Board of Directors, if any, pursuant to a resolution
adopted by a majority of such committee (whether or not there exist any
vacancies on such committee), or (iii) the President.
Section 3. Every special meeting of the stockholders shall be held at
such place within or without the State of Texas as the Board of Directors or
Executive Committee (if any) may designate, or, in the absence of such
designation, at the offices of the Company in the City of Houston, State of
Texas.
Section 4. Written notice of every meeting of the stockholders shall
be given by the Secretary of the Company to each stockholder of record entitled
to vote at the meeting, by placing such notice in the mail not less than ten
nor more than sixty days prior to the day fixed for the meeting addressed to
each stockholder at his address
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appearing on the books of the Company or supplied by him to the Company for
the purpose of notice.
Section 5. The Board of Directors may fix a date, not less than ten
nor more than sixty days preceding the date of any meeting of stockholders, as
a record date for the determination of stockholders entitled to notice of, or
to vote at, any such meeting. The Board of Directors shall not close the books
of the Company against transfers of shares during the whole or any part of such
period.
Section 6. The notice of every meeting of the stockholders may be
accompanied by a form of proxy approved by the Board of Directors or Executive
Committee (if any) in favor of such person or persons as the Board of Directors
or Executive Committee (if any) may select.
Section 7. Except as otherwise provided by law or by the Certificate
of Incorporation of the Company, as from time to time amended, or by these
By-laws, holders of a majority of the outstanding shares of stock of the
Company entitled to vote thereat shall constitute a quorum at each meeting of
the stockholders and all questions shall be decided by vote of the majority of
the shares so represented in person or by proxy at the meeting entitled to vote
thereat. The stockholders present at any duly convened meeting may continue to
do business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 8. Any meeting of the stockholders may be adjourned from time
to time, without notice other than by announcement at the meeting at which such
adjournment is taken, and at any such adjourned meeting at which a quorum shall
be present any action may be taken that could have been taken at the meeting
originally called.
Section 9. (a) Nominations of candidates for election as Directors at
any meeting of stockholders called for election of directors (an "Election
Meeting") may be made by the Board of Directors or by any stockholder entitled
to vote at such Election Meeting.
(b) Nominations by the Board of Directors shall be made by notice in
writing delivered to the Secretary of the Company not fewer than 45 days prior
to the date of an Election Meeting. At the request of the Secretary, each
proposed nominee shall
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provide the Corporation with such information concerning himself as is required
under the rules of the Securities and Exchange Commission (the "Commission") to
be included in the Company's proxy statement soliciting proxies for the
election of such nominee as a Director.
(c) If the Election Meeting is an annual meeting of stockholders, any
stockholder who intends to make a nomination at such Election Meeting shall
deliver a written notice to the Secretary no later than 45 days prior to the
date of the Company's proxy statement released to stockholders in connection
with the previous year's annual meeting of stockholders, which notice shall set
forth (i) the name, age, business address and residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of each
such nominee, (iii) the number of shares of capital stock of the Company which
are beneficially owned by each nominee, and (iv) such other information
concerning each such nominee as would be required, under the rules of the
Commission, in a proxy statement soliciting proxies for the election of such
nominee as a director. Such notice shall include a signed consent to serve as
a Director of the Company, if elected, of each such nominee.
If the Election Meeting is not an annual meeting of stockholders, the
notice referred to in the preceding paragraph shall be delivered to the Company
no later than five business days after the date of the Company's proxy
statement utilized in connection with such meeting.
(d) In the event that a person is validly designated as a nominee in
accordance with paragraph (b) or (c) of this Section and shall thereafter
become unable or unwilling to stand for election to the Board of Directors, the
Board of Directors or the stockholder who proposed such nominee, as the case
may be, may designate a substitute nominee upon delivery not fewer than five
business days prior to the date of an Election Meeting of a written notice to
the Secretary setting forth such information regarding such substitute nominee
as would have been required to be delivered to the Secretary pursuant to
paragraph (b) or (c) of this Section, as the case may be, had such substitute
nominee been initially proposed as a nominee. Such notice shall include a
signed consent to serve as a director of the Corporation, if elected, of each
such substitute nominee.
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(e) If the chairman of the Election Meeting determines that a
nomination of any candidate for election as a director was not made in
accordance with the applicable provisions of this Section, such nomination
shall be void.
ARTICLE II.
BOARD OF DIRECTORS
Section 1. The business, affairs and property of the Company shall be
managed by the Board of Directors. The number of directors shall be fixed from
time to time exclusively by the Board of Directors pursuant to resolution
adopted by a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board of Directors for adoption),
but shall not be greater than eight. The directors whose terms of office are
classified in the manner set forth in the Restated Certificate of
Incorporation, as amended, shall be elected for terms of three years each.
Directors of the class whose terms of office are expiring shall be elected by
the stockholders at an annual meeting and shall hold office for a term of three
years and until their successors are elected and qualified. A director need
not be a resident of the State of Texas or a stockholder of the Company.
Section 2. Any vacancy in the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office (as
provided herein) or other cause may be filled only by a majority vote of the
Directors then in office, though less than a quorum, and the director elected
to fill a vacancy shall be elected for the unexpired term of his predecessor in
office. Any directorship to be filled by reason of an increase in the number
of directors shall be filled by election at an annual meeting or at a special
meeting of stockholders called for that purpose.
Section 3. Regular meetings of the Board of Directors shall be held
at such place or places within or without the State of Delaware, at such hour
and on such day as may be fixed by resolution of the Board of Directors,
without further notice of such meetings.
Section 4. Special meetings of the Board of Directors shall be held
whenever called by the President, by five directors or by resolution adopted by
the Board of
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Directors, at such place or places within or without the State of Texas as may
be stated in the notice of the meeting.
Section 5. Written notice of the time and place of all special
meetings of the Board of Directors, and written notice of any change in the
time or place of holding the regular meetings of the Board of Directors, shall
be given to each director either personally or by mail or telegraph at least
two days before the day of the meeting; provided, however, that notice of any
meeting need not be given to any director if waived by him in writing, or if he
shall be present at such meeting without objecting thereto. Neither the
business to be transacted at, nor the purpose of, any meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting.
Section 6. A majority of the number of directors fixed by the By-Laws
shall constitute a quorum of the Board of Directors for the transaction of
business; but a lesser number may adjourn from day to day until a quorum is
present. Except as otherwise provided by law or in these By-Laws, all
questions shall be decided by a vote of a majority of the directors present.
Section 7. Any director may be removed solely for cause at any
special meeting of stockholders by the affirmative vote of a majority of the
outstanding shares entitled to vote at elections of directors. The notice
calling such meeting shall give notice of the intention to act upon such matter
and the cause upon which the action is based, and if the notice so provides,
the vacancy caused by such removal may be filled at such meeting by a vote of a
majority of the shares represented at such meeting and entitled to vote for the
election of directors.
ARTICLE III.
EXECUTIVE COMMITTEE
The Board of Directors may, by resolution adopted by a majority of the
whole Board, designate three or more of its number to constitute an Executive
Committee which committee, during intervals between meetings of the Board,
shall have and exercise the authority of the Board of Directors in the
management of the business of the Company to the extent permitted by law.
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ARTICLE IV.
OFFICERS
Section 1. The officers of the Company shall consist of a President,
Secretary, Treasurer and such Vice Presidents and other officers as may be
elected or appointed by the Board of Directors. Any two or more offices may be
held by the same person, except that the offices of President and Secretary may
not be held by the same person.
Section 2. All officers shall hold office until their successors are
elected or appointed, except that the Board of Directors may remove any officer
at any time at its discretion.
Section 3. The officers of the Company shall have such powers and
duties as generally pertain to their offices, except as modified hereby or by
the Board of Directors, as well as such powers and duties as from time to time
may be conferred by the Board of Directors. The President shall be the Chief
Executive Officer and shall preside at meetings of the Board and at meetings of
the stockholders.
ARTICLE V.
CERTIFICATES OF STOCK
The shares of stock of the Company shall be represented by
certificates of stock, signed by the President or such Vice President or other
officer designated by the Board of Directors, countersigned by the Treasurer or
the Secretary; and if such certificates of stock are signed or countersigned by
a corporate transfer agent and/or a corporate registrar of this Company, such
signature of the President, Vice President, or other officer, such
countersignature of the Treasurer or Secretary, or any of them, may be executed
in facsimile, engraved or printed. In case of any officer who has signed or
whose facsimile signature has been placed upon any share certificate shall have
ceased to be such officer because of death, resignation or otherwise before the
certificate is issued, it may be issued by the Company with the same effect as
if the officer had not ceased to be such at the date of its issue. Said
certificates of stock shall be in such form as the Board of Directors may from
time to time prescribe. So long as the restrictions
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set forth in Article V of the Restated Certificate of Incorporation shall not
have lapsed, all certificates of stock shall bear a conspicuous legend as
follows:
"THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS
PURSUANT TO ARTICLE V. OF THE RESTATED CERTIFICATE OF INCORPORATION OF
THE CORPORATION WHICH ARTICLE IS REPRINTED IN ITS ENTIRETY ON THE BACK
OF THIS CERTIFICATE."
ARTICLE VI.
SEAL
The seal of the Company shall be in such form as the Board of
Directors shall prescribe.
ARTICLE VII.
INDEMNIFICATION
Section 1. Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he, or a person of whom he is the legal
representative, is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held harmless
by the Company to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than said law permitted the
Company to provide prior to such amendment),
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against all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of his heirs, executors and administrators; provided, however, that,
except as provided in Section 2 of this Article VII, the Company shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Company. The
right to indemnification conferred in this Article VII shall be a contract
right and shall include the right to be paid by the Company the expenses
incurred in defending any such proceeding in advance of its final disposition;
provided, however, that, if the Delaware General Corporation Law requires, the
payment of such expenses incurred by a director or officer in his capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of the proceeding, shall be made only upon delivery to the Company
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article VII or otherwise.
The Company may, by action of its Board of Directors, provide indemnification
to employees and agents of the Company with the same scope and effect as the
foregoing indemnification of directors and officers.
Section 2. If a claim under Section 1 of this Article VII is not paid
in full by the Company within thirty days after a written claim has been
received by the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Company)
that the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the Company to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company (including
its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
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because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Company (including
its Board of Directors, independent legal counsel, or its stockholders) that
the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 3. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition
conferred in this Article VII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust and other enterprise
against any such expense, liability or loss, whether or not the Company would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
ARTICLE VIII.
AMENDMENTS
In addition to any other vote required by law, the affirmative vote of
the stockholders entitled to cast at least seventy-five percent (75%) of the
votes which all stockholders are entitled to cast shall be required to amend,
alter or repeal, or to adopt any By-Law inconsistent with, Article II, Section
1 of these By-Laws or this Article VIII. Subject to the foregoing, the By-Laws
may be altered, amended, added to or repealed by the stockholders at any annual
or special meeting, by the vote of stockholders entitled to cast at least a
majority of the votes which all stockholders are entitled to cast, and the
power to alter, amend, add to or repeal these By-Laws is also vested in the
Board of Directors, acting by a majority vote of the whole Board at any regular
or special meeting of the Board of Directors.
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EXHIBIT 99.1
NEWS NATIONAL CONVENIENCE STORES
INCORPORATED
100 WAUGH DRIVE
HOUSTON, TEXAS 77007
CONTACT: BRIAN FONTANA
CHIEF FINANCIAL OFFICER
(713) 863-2434
NCS #273
FOR IMMEDIATE RELEASE
NATIONAL CONVENIENCE STORES ANNOUNCES UNSOLICITED CASH
PROPOSAL AND OPPOSITION SLATES OF DIRECTORS
HOUSTON, TEXAS - - August 14, 1995 - - National Convenience Stores
Incorporated (NYSE:NCS) confirmed that it recently received an unsolicited cash
acquisition proposal at $17.00 per share from The Circle K Corporation. The
Board of Directors is in the process of evaluating the proposal and has engaged
Merrill Lynch & Co. to undertake an in depth evaluation of the proposal for the
Company.
In addition, the Company announced that, as required by the advanced notice
requirements of its bylaws, the Company had received on Friday, August 11,
1995, two sets of nominees for directors at the Company's 1995 annual meeting.
Bedford Falls Investors, L.P. submitted the names of four nominees in order to
preserve that firm's right to run an opposition slate of directors at the 1995
annual meeting. Circle K submitted a more comprehensive proposal. Circle K
seeks to amend the Company's bylaws to increase the number of directors from
eight to seventeen, to repeal any bylaw amendment adopted since January 1,
1994, and to elect nine Circle K officers, directors or affiliates as directors
of the Company at the 1995 annual meeting. The Company's bylaws provide that
any change in the number of directors constituting the Board of Directors must
be approved by 75% of the shares entitled to vote at a meeting of stockholders.
The Board of Directors intends to fix the date for the Company's 1995
annual meeting later this year once it determines the most appropriate date in
view of emerging developments.
National Convenience Stores Incorporated employs approximately 4,800 people
in Texas and is the leading convenience store operator in the geographic area
known as the "Texas Triangle" which encompasses Houston, Dallas/Fort Worth and
San Antonio.
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