<PAGE> 1
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 11, 1995
---------------
NATIONAL CONVENIENCE STORES INCORPORATED
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-7936 74-1361734
--------------- ------------ -------------------
(State or other (Commission (IRS employer
jurisdiction of file number) identification no.)
incorporation)
100 Waugh Drive, Houston, Texas 77007
---------------------------------------- ----------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (713) 863-2200
--------------
<PAGE> 2
Item 5. Other Events.
Stockholder Proposals
On August 11, 1995, National Convenience Stores Incorporated (the "Company")
received from The Circle K Corporation a proposal to amend the Company's
Restated By-Laws, as amended (the "By-Laws"), to increase the number of
directors to 17, to rescind certain amendments to the By-Laws and to elect nine
persons as directors at the Company's 1995 annual meeting. The Company also
received from Bedford Falls Investors, L.P. a proposal regarding its intention
to nominate four persons for election as directors at the 1995 annual meeting,
to propose an amendment to the By-Laws to increase the number of directors to
five and to nominate a person for election to fill the resulting directorship.
Copies of these proposals are filed as exhibits hereto.
Litigation
On August 15, 1995, a class action lawsuit was filed in the Chancery Court of
New Castle County, Delaware against the Company and its directors seeking,
among other things, the invalidation of the amendment to the By-Laws adopted by
the Board of Directors of the Company on August 10, 1995 and unspecified
damages. The case is styled Thomas J. McKula, Jr., on behalf of himself all
others similarly situated v. William K. Wilde, et al., C.A. 14481.
-2-
<PAGE> 3
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit
Number Identification of Exhibit
------- -------------------------
99.1(a) Letter dated August 10, 1995 from The Circle K Corporation to
Mr. A. J. Gallerano
99.1(b) Letter dated August 10, 1995 from Cede & Co., indirectly on
behalf of The Circle K Corporation, to Mr. A. J. Gallerano,
including the exhibits thereto
99.2(a) Letter dated August 10, 1995 from Bedford Falls Investors,
L.P. to Mr. V. H. Van Horn
99.2(b) Letter dated August 10, 1995 from Bedford Falls Investors, L.P.
to the Company, including the exhibits thereto
99.3 Class Action Complaint, Thomas J. McKula, Jr., on behalf of
himself all others similarly situated v. William K. Wilde, et
al., C.A. 14481 (Delaware Chancery Court for the State of
Delaware in and for New Castle County) (as filed August 15,
1995)
-3-
<PAGE> 4
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: /s/ A. J. GALLERANO
______________________________
A. J. Gallerano
Senior Vice President
and General Counsel
Dated: August 21, 1995
-4-
<PAGE> 5
INDEX TO EXHIBITS
Exhibit
Number Identification of Exhibit
------- -------------------------
99.1(a) Letter dated August 10, 1995 from The Circle K Corporation to
Mr. A. J. Gallerano
99.1(b) Letter dated August 10, 1995 from Cede & Co., indirectly on
behalf of The Circle K Corporation, to Mr. A. J. Gallerano,
including the exhibits thereto
99.2(a) Letter dated August 10, 1995 from Bedford Falls Investors,
L.P. to Mr. V. H. Van Horn
99.2(b) Letter dated August 10, 1995 from Bedford Falls Investors, L.P.
to the Company, including the exhibits thereto
99.3 Class Action Complaint, Thomas J. McKula, Jr., on behalf of
himself all others similarly situated v. William K. Wilde, et
al., C.A. 14481 (Delaware Chancery Court for the State of
Delaware in and for New Castle County) (as filed August 15,
1995)
<PAGE> 1
EXHIBIT 99.1(a)
THE CIRCLE K CORPORATION
3003 N. Central Avenue * Phoenix, AZ 85012 *
P.O. Box 52084 * Phoenix, AZ 85072-2084
(602) 437-0600
August 10, 1995
VIA HAND DELIVERY
Mr. A. J. Gallerano
Senior Vice President
General Counsel and Secretary
National Convenience Stores Incorporated
100 Waugh Drive
Houston, Texas 77007
Re: Notice of Nomination of Directors and Intent to Propose an
Amendment to Bylaws of National Convenience Stores Incorporated
Dear Mr. Gallerano:
This letter serves as notice pursuant to Article I, Section 9(c) of
the Bylaws of National Convenience Stores Incorporated (the "Company") of the
nomination of the persons listed on Exhibit A attached hereto as candidates for
election to the Board of Directors of the Company at the Company's upcoming
annual meeting of shareholders. It also serves to notify you of certain
proposals to be made at the upcoming annual meeting of shareholders to amend
the Company's Bylaws as described below.
The Circle K Corporation is a stockholder of the Company and owns 85
shares of the Company's common stock, par value $.01 per share (the "Shares").
The Shares appear on the Company's stock ledger as being held of record in the
name of Cede & Co., the nominee of The Depository Trust Company used by Merrill
Lynch for shares held on behalf of its customers. Enclosed herewith is a
letter from Cede & Co. providing the required notice from them on our behalf.
The address of Cede & Co. should appear in the Company's records as follows:
Cede & Co., P.O. Box 20, Bowling Green Station, New York, New York 10274.
The Circle K Corporation hereby notifies the Company of the nomination
for election to the Board of Directors of the Company at the Company's upcoming
annual meeting of shareholders of the nominees listed on Exhibit A hereto
(collectively, the "Nominees"). Each of the Nominees has consented to be named
as Nominee for election to the Board of Directors of the Company and, if so
elected, to serve in such capacity. (A copy of the consent of each Nominee is
attached hereto.) The information required by Article 1, Section 9(c) of the
Company's Bylaws as to each nominee is set forth on Exhibit A attached hereto.
<PAGE> 2
Mr. A. J. Gallerano
Senior Vice President
General Counsel and Secretary
National Convenience Stores Incorporated
August 10, 1995
Page 2
The Circle K Corporation is also providing notice of its intent to
make the following proposals for the consideration of the shareholders at the
Company's upcoming annual meeting of shareholders:
RESOLVED, that Article II, Section 1 of the Company's Bylaws be amended
and restated to read in its entirety as follows:
Section 1. The business affairs and property of the Company shall be
managed by the Board of Directors. The number of directors shall be
seventeen (17). The directors' terms of office shall be classified in
the manner set forth in the Restated Certificate of Incorporation, as
amended. Each director shall be elected for terms of three years and
until their successors are elected and qualified. The stockholders at
any annual or special meeting of stockholders (including the meeting
at which this section of the Bylaws is adopted) shall elect such
number of directors as is required to (1) replace any directors whose
terms are expiring at such meeting and (2) fill any newly created
directorships and, notwithstanding the provisions of Section 2 of this
Article II, any existing vacancies in the Board of Directors. A
director need not be a resident of the State of Delaware or a
stockholder of the Company.
RESOLVED, that each provision of the Company's Bylaws or amendment
thereto adopted subsequent to January 1, 1994, and prior to the
effectiveness of the proposal set forth immediately above, shall be
repealed.
This letter will be hand delivered to the Company's principal
executive offices on August 11, 1995.
Sincerely yours,
/s/ JOHN F. ANTIOCO
_________________________
John F. Antioco
President and Chief Executive Officer
<PAGE> 3
EXHIBIT A
The following information is provided with respect to each of the
Nominees as of the date of this letter:
JOHN F. ANTIOCO, age 45, has been the President and Chief Executive
Officer of The Circle K Corporation since July 1993. This is his principal
occupation. Mr. Antioco joined the predecessor to The Circle K Corporation as
President and Chief Operating Officer in September 1991. Prior to joining the
predecessor to The Circle K Corporation, Mr. Antioco was Chief Operating Officer
of Pearle Vision Centers, Inc. from June 1990 to August 1991. From 1970 to
1990, Mr. Antioco held various positions with The Southland Corporation
("Southland"). Upon his departure from Southland his title was Senior Vice
President of U.S. Store Operations. Subsequent to his departure, Southland
commenced proceedings under Chapter 11 of the Bankruptcy Code in 1990. Mr.
Antioco's business address is 3003 North Central Avenue, Phoenix, Arizona
85012, and his residence address is 10592 North 106th Place, Scottsdale,
Arizona 85258.
GEHL P. BABINEC, age 52, joined the predecessor to The Circle K
Corporation in 1986 as Senior Vice President and General Counsel, and currently
serves in that position and as Secretary for The Circle K Corporation. This is
his principal occupation. Formerly Mr. Babinec was in private practice from
1985 to 1986. He was General Counsel for Home State Financial from 1973 to
1985 and Associate Corporate Counsel for United States Shoe Company from 1969
to 1973. Mr. Babinec's business address is 3003 North Central Avenue,
Phoenix, Arizona 85012, and his residence address is 13047 North 80th Place,
Scottsdale, Arizona 85260.
BART A. BROWN, JR., age 62, joined the predecessor to The Circle K
Corporation in June 1990 as Chairman of the Board (which position he currently
holds, and which is his principal occupation), and also served as Chief
Executive Officer from June 1991 through July 1993. Prior to joining the
predecessor to The Circle K Corporation, Mr. Brown was an attorney practicing
in the Cincinnati, Ohio law firms of Keating, Muething & Klekamp and Brown &
Gardner for over 30 years. Mr. Brown is Chairman of the Board of Spreckles
Industries, Inc. and a director of Barry's Jewelers, Inc. Mr. Brown's
business address is 3003 North Central Avenue, Phoenix, Arizona 85012, and his
residence address is 5104 North 32nd Street, No. 429, Phoenix, Arizona 85018.
JOEL A. STERRETT, age 59, has been the Secretary and Associate General
Counsel of Circle K Stores, Inc. since prior to 1990, and has been Assistant
Secretary of The Circle K Corporation since July 1993. This is his principal
occupation. Mr. Sterrett's business address is 3003 North Central Avenue,
Phoenix, Arizona 85012, and his residence address is 8113 East Appaloosa Trail,
Scottsdale, Arizona 85258.
<PAGE> 4
Larry J. ZINE, age 40, joined the predecessor to The Circle K
Corporation in June 1981. Since June 1988 he has held the position of
Executive Vice President and Chief Financial Officer. This is his principal
occupation. Mr. Zine was Financial Reporting Manager and Assistant Secretary
from 1984 to 1987; and Audit and Tax Supervisor and Corporate Secretary from
1982 to 1984. Mr. Zine's business address is 3003 North Central Avenue,
Phoenix, Arizona 85012, and his residence address is 1225 East Warner Road,
Number 16, Tempe, Arizona 85284.
BRUCE KRYSIAK, age 45, has been an Executive Vice President of The
Circle K Corporation since July 1995. This is his principal occupation. Mr.
Krysiak joined The Circle K Corporation in April 1995. Prior to joining The
Circle K Corporation, Mr. Krysiak was Chairman of the Giant American Russian
Joint Venture, a food distribution joint venture, from 1991 until 1995. From
1988 until 1991 Mr. Krysiak was President of Retail Planning Associates, an
international retail consulting firm. Mr. Krysiak's business address is 3003
North Central Avenue, Phoenix, Arizona 85012, and his residence address is
11816 E. Terra Drive, Scottsdale, Arizona 85259.
Roger W. Cole, age 49, joined the predecessor to The Circle K
Corporation in January 1992 and currently serves as Vice President of
Operations. This is his principal occupation. From January 1992 to July 1995
Mr. Cole held various positions with The Circle K Corporation. Prior to
joining the predecessor to The Circle K Corporation, Mr. Cole was Director of
Training with Southland. Southland commenced proceedings under Chapter 11 of
the Bankruptcy Code in 1990. Mr. Cole's business address is 3003 North Central
Avenue, Phoenix, Arizona 85012, and his residence address is 5441 E. Hartford
Avenue, Scottsdale, Arizona 85254.
WANDA M. WILLIAMS, age 48, joined the predecessor to The Circle K
Corporation in July 1992. Ms. Williams held various Human Resources positions
with The Circle K Corporation prior to December 1994 when she became Vice
President of Human Resources. This is her principal occupation. Prior to
joining the predecessor to The Circle K Corporation, Ms. Williams was employed
by Southland as Corporate Personnel Manager. Southland commenced proceedings
under Chapter 11 of the Bankruptcy Code in 1990. Ms. Williams' business
address is 3003 North Central Avenue, Phoenix, Arizona 85012, and her residence
address is 4707 E. Michigan, Phoenix, Arizona 85032.
JERRY L. SNEARLY, age 45, joined the predecessor to The Circle K
Corporation in June 1993 as Vice President of Finance. This is his principal
occupation. Prior to joining the predecessor to The Circle K Corporation, Mr.
Snearly held various management positions with Southland since August 1989.
Southland commenced proceedings under Chapter 11 of the Bankruptcy Code in
1990. Mr. Snearly's business address is 3003 North Central Avenue, Phoenix,
Arizona 85012, and his residence address is 11111 E. Sorrell Lane, Scottsdale,
Arizona 85259.
2
<PAGE> 5
The following table gives information on the beneficial ownership of
the Company's common stock, par value $.01, by each of the Nominees as of the
date of this letter:
<TABLE>
<CAPTION>
------------------------------------------------------------------------
NOMINEE SHARES BENEFICIALLY OWNED
------------------------------------------------------------------------
<S> <C>
John F. Antioco 85(1)
------------------------------------------------------------------------
Gehl P. Babinec 85(1)
------------------------------------------------------------------------
Bart A. Brown 85(1)
------------------------------------------------------------------------
Joel A. Sterrett 85(1)
------------------------------------------------------------------------
Larry J. Zine 85(1)
------------------------------------------------------------------------
Bruce Krysiak 85(1)
------------------------------------------------------------------------
Roger W. Cole 85(1)
------------------------------------------------------------------------
Wanda M. Williams 85(1)
------------------------------------------------------------------------
Jerry L. Snearly 85(1)
------------------------------------------------------------------------
</TABLE>
(1) As disclosed in the text of this letter, The Circle K Corporation is
the beneficial owner of 85 shares of the Company's common stock
(the "Shares"). Since each of the Nominees is either an officer or
director of The Circle K Corporation or one of its affiliates or
subsidiaries, each could be deemed a beneficial owner of the Shares
owned by The Circle K Corporation. However, each of the Nominees
disclaims beneficial ownership of the Shares, and any filing listing
the above-mentioned shares as beneficially owned by the Nominees shall
not be deemed an admission of such beneficial ownership.
Within the last two years, The Circle K Corporation bought the 85
Shares of the common stock of the Company which it currently owns. The
Nominees have been involved in no other transactions with respect to the
securities of the Company in this time period. No part of the purchase price
of the Shares consisted of borrowed funds.
Except as disclosed above, no securities of the Company are
beneficially owned by any relative of a Nominee who shares the home of such
Nominee, nor by any associate of any Nominee. None of the Nominees has any
family relationship with any director or executive officer of the Company.
None of the Nominees is or has been involved during the past five
years with any legal proceedings of the nature described in Item 401(f) of the
Securities and Exchange Commission Regulation S-K, except that (i) the
predecessor to The Circle K Corporation operated under bankruptcy protection
from May 15, 1990 until July 26, 1993; and (ii) as
3
<PAGE> 6
discussed above, Southland commenced proceedings under Chapter 11 subsequent to
Mr. Antioco's departure.
None of the Nominees or any of their respective associates have any
claims against the Company or any of its subsidiaries, and none are a party
adverse to the Company or have a material adverse interest to the Company or
any of its subsidiaries in any legal proceeding.
Neither the Company nor any of its subsidiaries was or is a party to a
currently proposed transaction or transaction occurring since July 1, 1994, in
which any of the Nominees or members of their immediate family had or has a
material direct or indirect financial interest. None of the Nominees or any of
their respective associates has been indebted to the Company or any of its
subsidiaries at any time since July 1, 1994.
The Nominees do not know of any contractual agreements which have
resulted or will result in a change in control of the Company.
None of the Nominees is or has been since July 1, 1994, an executive
officer of, or own in excess of a 10% equity interest in, any business or
professional entity which (i) has made to or will receive payments from the
Company for property or services in excess of 5% of the Company's or such
entity's consolidated gross revenues for the last respective fiscal year, or
(ii) to which the Company was indebted on June 30, 1995, in an aggregate amount
in excess of 5% of the Company's total consolidated assets at that time.
None of the Nominees is (i) a member of, or of counsel to, a law firm
retained or to be retained by the Company; (ii) a partner or executive officer
of any investment banking firm that performed or proposes to perform services
for the Company; or (iii) in any other relationship substantially similar to
those listed in (i) and (ii).
None of the Nominees or any of their respective associates has any
arrangement or understanding with any person with respect to: (a) any future
employment by the Company, its subsidiaries or its other affiliates, or (b) any
future transactions to which the Company, its subsidiaries or its other
affiliates with or may be a party.
None of the Nominees or members of their respective immediate family
has received any compensatory amount from the Company.
The Nominees have agreed to stand for election at the request of The
Circle K Corporation. If elected, the Nominees are committed to the taking of
such actions as may be required to maximize shareholder value including
expediting the prompt consummation of a sale of the Company, subject to their
fiduciary duties.
The Nominees are indemnified under the Charter and Bylaws of The
Circle K Corporation.
4
<PAGE> 7
August 9, 1995
Gentlemen:
I, John F. Antioco, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ JOHN F. ANTIOCO
_______________________________
John F. Antioco
<PAGE> 8
August 9, 1995
Gentlemen:
I, Gehl P. Babinec, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ GEHL P. BABINEC
_______________________________
Gehl P. Babinec
<PAGE> 9
August 9, 1995
Gentlemen:
I, Bart A. Brown, Jr., hereby consent to be nominated for election to
the Board of Directors of National Convenience Stores Incorporated, and if
elected, to serve as a director of National Convenience Stores Incorporated.
/s/ BART A. BROWN, JR.
_______________________________
Bart A. Brown, Jr.
<PAGE> 10
August 9, 1995
Gentlemen:
I, Joel A. Sterrett, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ JOEL A. STERRETT
_______________________________
Joel A. Sterrett
<PAGE> 11
August 9, 1995
Gentlemen:
I, Larry J. Zine, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ LARRY J. ZINE
_______________________________
Larry J. Zine
<PAGE> 12
August 10, 1995
Gentlemen:
I, Bruce Krysiak, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ BRUCE KRYSIAK
_______________________________
Bruce Krysiak
<PAGE> 13
August 10, 1995
Gentlemen:
I, Roger Cole, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ ROGER COLE
_______________________________
Roger Cole
<PAGE> 14
August 10, 1995
Gentlemen:
I, Wanda Williams, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ WANDA WILLIAMS
_______________________________
Wanda Williams
<PAGE> 15
August 10, 1995
Gentlemen:
I, Jerry L. Snearly, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ JERRY L. SNEARLY
_______________________________
Jerry L. Snearly
<PAGE> 1
EXHIBIT 99.1(b)
Cede & Co.
c/o The Depository Trust Company
7 Hanover Square
New York, New York 10004
August 10, 1995
Mr. A. J. Gallerano
Senior Vice President,
General Counsel and Secretary
National Convenience Stores Incorporated
100 Waugh Drive
Houston, Texas 77007
Re: Notice of Nomination of Directors and Intent to Propose an
Amendment to National Convenience Stores Incorporated Bylaws
Dear Mr. Gallerano:
Cede & Co. the nominee of The Depository Trust Company ("DTC"), is a
record holder of common stock, par value $0.01 per share (the "Common Stock")
of National Convenience Stores Incorporated (the "Company"). DTC is informed by
its Participant, Merrill Lynch, Pierce Fenner & Smith Incorporated
("Participant") that on the date hereof 85 of such shares (the "Shares")
credited to Participant's DTC account are beneficially owned by The Circle K
Corporation, a customer of the Participant (the "Customer"). Cede & Co. is the
record holder of the Shares. Cede & Co. has no beneficial interest in any
security which is on deposit at DTC, including the Shares. The name and address
of the holder of record of the Shares as it should appear in the Company's
books is as follows: Cede & Co., P.O. Box 20, Bowling Green Station, New York,
New York, 10274.
At the request of Participant, on behalf of the Customer, Cede & Co.,
as holder of record of the Shares, hereby notifies the Company pursuant to
Article I, Section 9(c) of the Bylaws of the Company, of Cede & Co.'s
nomination of certain persons for election to the Board of Directors of the
Company at the Company's upcoming annual meeting of shareholders. This letter
also serves to notify you of certain proposals to be made at the Company's
upcoming annual meeting of shareholders to amend the Company's Bylaws as
described below.
Cede & Co., as record holder of the Shares, hereby provides notice of
the nomination for election to the Board of Directors of the Company at the
Company's upcoming annual meeting of shareholders of the nominees named on
Exhibit A attached hereto (collecively, the "Nominees"). Each of the Nominees
has consented to be named as a nominee for election to the Board of Directors
of the Company and, if so elected, to serve in such capacity. (A copy of the
consent of each nominee is attached hereto). The information required by
Article I, Section 9(c) of the Company's Bylaws as to each of the Nominees is
set forth on Exhbiit A attached hereto.
<PAGE> 2
Mr. A. J. Gallerano
Senior Vice President,
General Counsel and Secretary
National Convenience Stores Incorporated
August 10, 1995
Page 2
Cede & Co., as record holder of the Shares, is also providing notice of
its intent to make the following proposals for the consideration of the
shareholders at the Company's upcoming annual meeting of shareholders:
RESOLVED, that Article II, Section 1 of the Company's Bylaws be amended
and restated to read in its entirety as follows:
Section 1. The business affairs and property of the Company
shall be managed by the Board of Directors. The number of directors
shall be seventeen (17). The directors' terms of office shall be
classified in the manner set forth in the Restated Certificate of
Incorporation, as amended. Each director shall be elected for terms of
three years and until their successors are elected and qualified. The
stockholders at any annual or special meeting of stockholders
(including the meeting at which this section of the Bylaws is adopted)
shall elect such number of directors as is required to (1) replace any
directors whose terms are expiring at such meeting and (2) fill any
newly created directorships and, notwithstanding the provisions of
Section 2 of this Article II, any existing vacancies in the Board of
Directors. A director need not be a resident of the State of Delaware
or a stockholder of the Company.
RESOLVED, that each provision of the Company's Bylaws or amendment
thereto adopted subsequent to January 1, 1994, and prior to the
effectiveness of the proposal set forth immediately above, shall be
repealed.
While Cede & Co. makes the nominations and provides the notice
contained herein as the shareholder of record of the Shares, it does so at the
request of Participant and only as a nominal party for the true party in
interest, the Customer. Cede & Co. has no interest in this matter other than to
take those steps which may be necessary to ensure that the Customer is not
denied its rights as the beneficial owner of the Shares, and Cede & Co. assumes
no further responsibility in this matter.
Cede & Co. has been advised by Participant that this letter will be
hand delivered to the Company's principal executive offices on or before
August 11, 1995.
Very truly yours,
Cede & Co.
By: /s/ Gary LaCara
____________________________________
Gary LaCara, partner
<PAGE> 3
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
Gary LaCara, partner, having been first duly sworn according to law,
deposes and says that he is a partner of Cede & Co., that he is authorized to
make the foregoing notice of nominations to the Board of Directors of National
Convenience Stores Incorporated and notice of intent to make proposals at the
upcoming meeting of shareholders and to make the authorizations and
representations contained therein, and that the facts and statements contained
in the foregoing notice are true and correct.
Cede & Co.
By: /s/ GARY LaCARA
_____________________________
Gary LaCara, partner
SWORN TO AND SUBSCRIBED before me
this 10th day of August, 1995.
/s/ SUE ANN VAJDA
_________________________________
Notary Public
SUE ANN VAJDA
Notary Public, State of New York
No. 41-4822492
Qualified in Queens County
Commission Expires December 31, 1996
<PAGE> 4
EXHIBIT A
The following information is provided with respect to each of the
Nominees as of the date of this letter:
JOHN F. ANTIOCO, age 45, has been the President and Chief Executive
Officer of The Circle K Corporation since July 1993. This is his principal
occupation. Mr. Antioco joined the predecessor to The Circle K Corporation as
President and Chief Operating Officer in September 1991. Prior to joining the
predecessor to The Circle K Corporation, Mr. Antioco was Chief Operating Officer
of Pearle Vision Centers, Inc. from June 1990 to August 1991. From 1970 to
1990, Mr. Antioco held various positions with The Southland Corporation
("Southland"). Upon his departure from Southland his title was Senior Vice
President of U.S. Store Operations. Subsequent to his departure, Southland
commenced proceedings under Chapter 11 of the Bankruptcy Code in 1990. Mr.
Antioco's business address is 3003 North Central Avenue, Phoenix, Arizona
85012, and his residence address is 10592 North 106th Place, Scottsdale,
Arizona 85258.
GEHL P. BABINEC, age 52, joined the predecessor to The Circle K
Corporation in 1986 as Senior Vice President and General Counsel, and currently
serves in that position and as Secretary for The Circle K Corporation. This is
his principal occupation. Formerly Mr. Babinec was in private practice from
1985 to 1986. He was General Counsel for Home State Financial from 1973 to
1985 and Associate Corporate Counsel for United States Shoe Company from 1969
to 1973. Mr. Babinec's business address is 3003 North Central Avenue,
Phoenix, Arizona 85012, and his residence address is 13047 North 80th Place,
Scottsdale, Arizona 85260.
BART A. BROWN, JR., age 62, joined the predecessor to The Circle K
Corporation in June 1990 as Chairman of the Board (which position he currently
holds, and which is his principal occupation), and also served as Chief
Executive Officer from June 1991 through July 1993. Prior to joining the
predecessor to The Circle K Corporation, Mr. Brown was an attorney practicing
in the Cincinnati, Ohio law firms of Keating, Muething & Klekamp and Brown &
Gardner for over 30 years. Mr. Brown is Chairman of the Board of Spreckles
Industries, Inc. and a director of Barry's Jewelers, Inc. Mr. Brown's
business address is 3003 North Central Avenue, Phoenix, Arizona 85012, and his
residence address is 5104 North 32nd Street, No. 429, Phoenix, Arizona 85018.
JOEL A. STERRETT, age 59, has been the Secretary and Associate General
Counsel of Circle K Stores, Inc. since prior to 1990, and has been Assistant
Secretary of The Circle K Corporation since July 1993. This is his principal
occupation. Mr. Sterrett's business address is 3003 North Central Avenue,
Phoenix, Arizona 85012, and his residence address is 8113 East Appaloosa Trail,
Scottsdale, Arizona 85258.
<PAGE> 5
LARRY J. ZINE, age 40, joined the predecessor to The Circle K
Corporation in June 1981. Since June 1988 he has held the position of
Executive Vice President and Chief Financial Officer. This is his principal
occupation. Mr. Zine was Financial Reporting Manager and Assistant Secretary
from 1984 to 1987; and Audit and Tax Supervisor and Corporate Secretary from
1982 to 1984. Mr. Zine's business address is 3003 North Central Avenue,
Phoenix, Arizona 85012, and his residence address is 1225 East Warner Road,
Number 16, Tempe, Arizona 85284.
BRUCE KRYSIAK, age 45, has been an Executive Vice President of The
Circle K Corporation since July 1995. This is his principal occupation. Mr.
Krysiak joined The Circle K Corporation in April 1995. Prior to joining The
Circle K Corporation, Mr. Krysiak was Chairman of the Giant American Russian
Joint Venture, a food distribution joint venture, from 1991 until 1995. From
1988 until 1991 Mr. Krysiak was President of Retail Planning Associates, an
international retail consulting firm. Mr. Krysiak's business address is 3003
North Central Avenue, Phoenix, Arizona 85012, and his residence address is
11816 E. Terra Drive, Scottsdale, Arizona 85259.
ROGER W. COLE, age 49, joined the predecessor to The Circle K
Corporation in January 1992 and currently serves as Vice President of
Operations. This is his principal occupation. From January 1992 to July 1995
Mr. Cole held various positions with The Circle K Corporation. Prior to
joining the predecessor to The Circle K Corporation, Mr. Cole was Director of
Training with Southland. Southland commenced proceedings under Chapter 11 of
the Bankruptcy Code in 1990. Mr. Cole's business address is 3003 North Central
Avenue, Phoenix, Arizona 85012, and his residence address is 5441 E. Hartford
Avenue, Scottsdale, Arizona 85254.
WANDA M. WILLIAMS, age 48, joined the predecessor to The Circle K
Corporation in July 1992. Ms. Williams held various Human Resources positions
with The Circle K Corporation prior to December 1994 when she became Vice
President of Human Resources. This is her principal occupation. Prior to
joining the predecessor to The Circle K Corporation, Ms. Williams was employed
by Southland as Corporate Personnel Manager. Southland commenced proceedings
under Chapter 11 of the Bankruptcy Code in 1990. Ms. Williams' business
address is 3003 North Central Avenue, Phoenix, Arizona 85012, and her residence
address is 4707 E. Michigan, Phoenix, Arizona 85032.
JERRY L. SNEARLY, age 45, joined the predecessor to The Circle K
Corporation in June 1993 as Vice President of Finance. This is his principal
occupation. Prior to joining the predecessor to The Circle K Corporation, Mr.
Snearly held various management positions with Southland since August 1989.
Southland commenced proceedings under Chapter 11 of the Bankruptcy Code in
1990. W. Snearly's business address is 3003 North Central Avenue, Phoenix,
Arizona 85012, and his residence address is 11111 E. Sorrell Lane, Scottsdale,
Arizona 85259.
2
<PAGE> 6
The following table gives information on the beneficial ownership of
the Company's common stock, par value $.01, by each of the Nominees as of the
date of this letter:
<TABLE>
<CAPTION>
---------------------------------------------------------------------
NOMINEE SHARES BENEFICIALLY OWNED
---------------------------------------------------------------------
<S> <C>
John F. Antioco 85(1)
---------------------------------------------------------------------
Gehl P. Babinec 85(1)
---------------------------------------------------------------------
Bart A. Brown 85(1)
---------------------------------------------------------------------
Joel A. Sterrett 85(1)
---------------------------------------------------------------------
Larry J. Zine 85(1)
---------------------------------------------------------------------
Bruce Krysiak 85(1)
---------------------------------------------------------------------
Roger W. Cole 85(1)
---------------------------------------------------------------------
Wanda M. Williams 85(1)
---------------------------------------------------------------------
Jerry L. Snearly 85(1)
---------------------------------------------------------------------
</TABLE>
(1) As disclosed in the text of this letter, The Circle K Corporation is
the beneficial owner of 85 shares of the Company's common stock
(the "Shares"). Since each of the Nominees is either an officer or
director of The Circle K Corporation or one of its affiliates or
subsidiaries, each could be deemed a beneficial owner of the Shares
owned by The Circle K Corporation. However, each of the Nominees
disclaims beneficial ownership of the Shares, and any filing listing
the above-mentioned shares as beneficially owned by the Nominees shall
not be deemed an admission of such beneficial ownership.
Within the last two years, The Circle K Corporation bought the 85
Shares of the common stock of the Company which it currently owns. The
Nominees have been involved in no other transactions with respect to the
securities of the Company in this time period. No part of the purchase price
of the Shares consisted of borrowed funds.
Except as disclosed above, no securities of the Company are
beneficially owned by any relative of a Nominee who shares the home of such
Nominee, nor by any associate of any Nominee. None of the Nominees has any
family relationship with any director or executive officer of the Company.
None of the Nominees is or has been involved during the past five
years with any legal proceedings of the nature described in Item 401(f) of the
Securities and Exchange Commission Regulation S-K, except that (i) the
predecessor to The Circle K Corporation operated under bankruptcy protection
from May 15, 1990 until July 26, 1993; and (ii) as
3
<PAGE> 7
discussed above, Southland commenced proceedings under Chapter 11 subsequent to
Mr. Antioco's departure.
None of the Nominees or any of their respective associates have any
claims against the Company or any of its subsidiaries, and none are a party
adverse to the Company or have a material adverse interest to the Company or
any of its subsidiaries in any legal proceeding.
Neither the Company nor any of its subsidiaries was or is a party to a
currently proposed transaction or transaction occurring since July 1, 1994, in
which any of the Nominees or members of their immediate family had or has a
material direct or indirect financial interest. None of the Nominees or any of
their respective associates has been indebted to the Company or any of its
subsidiaries at any time since July 1, 1994.
The Nominees do not know of any contractual agreements which have
resulted or will result in a change in control of the Company.
None of the Nominees is or has been since July 1, 1994, an executive
officer of, or own in excess of a 10% equity interest in, any business or
professional entity which (i) has made to or will receive payments from the
Company for property or services in excess of 5% of the Company's or such
entity's consolidated gross revenues for the last respective fiscal year, or
(ii) to which the Company was indebted on June 30, 1995, in an aggregate amount
in excess of 5% of the Company's total consolidated assets at that time.
None of the Nominees is (i) a member of, or of counsel to, a law firm
retained or to be retained by the Company; (ii) a partner or executive officer
of any investment banking firm that performed or proposes to perform services
for the Company; or (iii) in any other relationship substantially similar to
those listed in (i) and (ii).
None of the Nominees or any of their respective associates has any
arrangement or understanding with any person with respect to: (a) any future
employment by the Company, its subsidiaries or its other affiliates, or (b) any
future transactions to which the Company, its subsidiaries or its other
affiliates will or may be a party.
None of the Nominees or members of their respective immediate family
has received any compensatory amount from the Company.
The Nominees have agreed to stand for election at the request of The
Circle K Corporation. If elected, the Nominees are committed to the taking of
such actions as may be required to maximize shareholder value including
expediting the prompt consummation of a sale of the Company, subject to their
fiduciary duties.
The Nominees are indemnified under the Charter and Bylaws of The
Circle K Corporation.
4
<PAGE> 8
August 9, 1995
Gentlemen:
I, John F. Antioco, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ JOHN F. ANTIOCO
_______________________________
John F. Antioco
<PAGE> 9
August 9, 1995
Gentlemen:
I, Gehl P. Babinec, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ GEHL P. BABINEC
_______________________________
Gehl P. Babinec
<PAGE> 10
August 9, 1995
Gentlemen:
I, Bart A. Brown, Jr., hereby consent to be nominated for election to
the Board of Directors of National Convenience Stores Incorporated, and if
elected, to serve as a director of National Convenience Stores Incorporated.
/s/ BART A. BROWN, JR.
_______________________________
Bart A. Brown, Jr.
<PAGE> 11
August 9, 1995
Gentlemen:
I, Joel A. Sterrett, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ JOEL A. STERRETT
_______________________________
Joel A. Sterrett
<PAGE> 12
August 9, 1995
Gentlemen:
I, Larry J. Zine, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ LARRY J. ZINE
_______________________________
Larry J. Zine
<PAGE> 13
August 10, 1995
Gentlemen:
I, Bruce Krysiak, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ BRUCE KRYSIAK
_______________________________
Bruce Krysiak
<PAGE> 14
August 10, 1995
Gentlemen:
I, Roger Cole, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ ROGER COLE
_______________________________
Roger Cole
<PAGE> 15
August 10, 1995
Gentlemen:
I, Wanda Williams, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ WANDA WILLIAMS
_______________________________
Wanda Williams
<PAGE> 16
August 10, 1995
Gentlemen:
I, Jerry L. Snearly, hereby consent to be nominated for election to the
Board of Directors of National Convenience Stores Incorporated, and if elected,
to serve as a director of National Convenience Stores Incorporated.
/s/ JERRY L. SNEARLY
_______________________________
Jerry L. Snearly
<PAGE> 1
EXHIBIT 99.2(a)
BEDFORD FALLS INVESTORS, L.P.
660 Madison Avenue
20th Floor
New York, N.Y. 10021
(212) 486-8100
Fax: (212) 355-7480
August 10, 1995
V.H. Van Horn
President/Chief Executive Officer
National Convenience Stores Incorporated
100 Waugh Drive
Houston, TX 77007
Dear Pete:
By letters attached, Bedford Falls Investors, L.P. ("Bedford"), an
investment partnership under my management, and a stockholder of National
Convenience Stores Incorporated ("NCS"), is submitting nominations for election
to the four seats on the Company's Board of Directors which are to be filled at
the Company's next annual meeting. Such nominations are being made consistent
with the requirements of Article I, Section 9 of the Company's By-Laws.
We have, in addition, submitted an additional nomination in order to
reserve our rights to elect such nominee to an additional Board seat if the
By-Laws are amended to expand the Board. Our present intention is to make a
motion at the annual meeting to fix the Board at nine seats.
At this time, we have neither publicly announced such nominations or
intention, nor made any filings with Securities and Exchange Commission
regarding a proxy solicitation for the election of such nominees and the
approval of such proposal. Bedford's need to preserve all its options with
regard to its investment in NCS compelled us to make these nominations now, due
to the advance notice requirements present in the By-Laws of NCS. It is our
hope that a public proxy contest will not be necessary. As one of the
Company's largest shareholders, Bedford desires to meet with you in the next
two weeks to discuss your plans for, as well as our thoughts about, the future
of NCS. Our determination to pursue a proxy contest to obtain control of the
Board of Directors of NCS will be greatly influenced by the outcome of our
meeting.
I will contact you on Monday, August 14 to arrange a meeting.
Yours truly,
/s/ Jeffrey E. Schwarz
__________________________
Jeffrey E. Schwarz
<PAGE> 1
EXHIBIT 99.2(b)
BEDFORD FALLS INVESTORS, L.P.
660 Madison Avenue
20th Floor
New York, N.Y. 10021
(212) 486-8100
Fax: (212) 355-7480
August 10, 1995
National Convenience Stores Incorporated
100 Waugh Drive
Houston, TX 77007
Attention: A.J. Gallerano, Senior Vice President, General Counsel and Secretary
Ladies and Gentlemen:
Bedford Falls Investors, L.P., a Delaware limited partnership
("Bedford"), the record holder of 100 shares of common stock, par value $.01
per share, of National Convenience Stores Incorporated (the "Company"), hereby
furnishes written notice in accordance with Article 1, Section 9 (c) of the
Company's By-Laws (the "By-Laws"), that Bedford intends to nominate Jeffrey E.
Schwarz, Lawrence E. Golub, Michael P. Fleischer and Joseph F. Mazzella (each a
"Nominee") for election as Directors of the Company at the next Annual Meeting
of Stockholders to be held by the Company (the "Meeting") and any postponements
or adjournments thereof. Bedford currently intends to nominate Robert F.
Lietzow, Jr. (additionally, a "Nominee") for the additional directorship
referred to in the following paragraph.
Pursuant to Article VIII of the By-Laws, and subject to Bedford's right
to reconsider, Bedford intends to make motions at the Meeting to amend Article
II, Section 1 of the By-Laws and to set the number of Directors to be elected
at the Meeting to five. Bedford further intends to make a motion at the
Meeting to designate such new directorship as Class III and to nominate Mr.
Lietzow to such new directorship.
Please find attached hereto and incorporated herein by this reference:
(1) "Exhibit A" which sets forth (i) the name, age, business address and
residence address of each Nominee, (ii) the principal occupation or employment
of each 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 Nominee as would be required, under the rules of the Securities
and Exchange Commission, in a proxy statement soliciting proxies for the
election of the Nominees as Directors; and (2) "Exhibit B", comprising the
signed consent of each Nominee to serve as a Director of the Company, if
elected.
Neither this letter nor its delivery to you is intended to be an
acknowledgment that Section 9 (c) of Article I of the Company's By-Laws is
valid or properly applicable to Bedford or
<PAGE> 2
the Nominees, nor a waiver of any right to challenge the adoption of such
By-Law, its validity, its application, or any other aspects thereof.
Very truly yours,
BEDFORD FALLS INVESTORS, L.P.
By: Metropolitan Capital Advisors, L.P.,
General Partner
By: Metropolitan Capital Advisors, Inc.,
General Partner
By: /s/ JEFFREY E. SCWARTZ
_________________________________
Jeffrey E. Schwarz
Chief Executive Officer
<PAGE> 3
EXHIBIT A
<TABLE>
<S> <C> <C>
(i) JEFFREY E. SCHWARZ, AGE 36
Business Address: Metropolitan Capital Advisors, Inc.
660 Madison Avenue, 20th Floor
New York, NY 10021
Residence Address: 211 East 70th Street
Apt. 23A
New York, NY 10021
LAWRENCE E. GOLUB, AGE 35
Business Address: Golub Associates
230 Park Avenue
New York, NY 10169
Residence Address: 1125 Park Avenue
New York, NY 10128
MICHAEL P. FLEISCHER, AGE 39
Business Address: Active Management Group, Inc.
1418 So. 5th Street
Tacoma, WA 98405
Residence Address: 4 Rachel Drive, Apt. 14
Jackson, TN 38305
JOSEPH F. MAZZELLA, AGE 42
Business Address: Lane Altman & Owens
101 Federal Street
Boston, MA 02110
Residence Address: 115 Bogle Street
Weston, MA 02193
</TABLE>
3
<PAGE> 4
<TABLE>
<S> <C>
ROBERT F. LIETZOW, JR., AGE 30
Business Address: Metropolitan Capital Advisors, Inc.
660 Madison Avenue, 20th Floor
New York, NY 10021
Residence Address: 254 East 68th Street
Apt. 27F
New York, NY 10021
</TABLE>
(ii) Jeffrey E. Schwarz's principal occupation is Chief Executive Officer
of Metropolitan Capital Advisors, Inc., a firm that provides
investment management services.
Lawrence E. Golub's principal occupation is President of Golub
Associates, a firm that provides private equity investment management
services.
Michael P. Fleischer's principal occupation is Chief Executive Officer
of Active Management Group, Inc., a firm that provides turnaround
management services.
Joseph F. Mazzella's principal occupation is practicing law as a
partner of Lane Altman & Owens, a law firm.
Robert F. Lietzow's principal occupation is Vice President of
Metropolitan Capital Advisors, Inc., a firm that provides investment
management services.
(iii) Jeffrey E. Schwarz beneficially owns 277,100 shares of capital stock
of the Company by virtue of holding shared dispositive and shared
voting control over those shares of capital stock of the Company held
by Bedford.
Lawrence E. Golub beneficially owns no shares of capital stock of the
Company.
Michael P. Fleischer beneficially owns no shares of capital stock of
the Company.
Joseph F. Mazzella beneficially owns no shares of capital stock of the
Company.
4
<PAGE> 5
Robert F. Lietzow, Jr., beneficially owns 800 shares of capital stock
of the Company.
(iv) JEFFREY E. SCHWARZ has been Chief Executive Officer and a director of
Metropolitan Capital Advisors, Inc., a firm that provides investment
management services since July 1992. Mr. Schwarz served as President
of Metropolitan Capital Group, Inc., a firm providing investment
management and investment banking services from August 1990 until June
1992. Since August 1992, Mr. Schwarz has also been Chairman of EK
Management Corp., the general partner of EK Associates, L.P. (also
known as Ekco/Glaco Ltd.), a limited partnership engaged in
manufacturing.
LAWRENCE E. GOLUB has, since October 1994, been President of Golub
Associates Incorporated, an investment and financial advisory firm
that he founded and owns. From September 1993 to October 1994, Mr.
Golub was a Managing Director of Bankers Trust Company, where he
participated in structuring, recapitalizing, hedging and selling
public and private equity investments. From September 1992 to August
1993, Mr. Golub was a White House Fellow, serving as Special Assistant
to the Secretary of Health and Human Services and as policy
coordinator for the President's cabinet-level health care reform
group. Mr. Golub was a Managing Director of Wasserstein Perella &
Co., Inc. from February 1990 to August 1992, specializing in corporate
finance, and was a Vice President of Allen & Company Incorporated, a
private investment banking firm, from 1985 to 1990.
MICHAEL P. FLEISCHER has been principal and the Chief Executive
Officer of Active Management Group, Inc., a firm that provides
turnaround management services ("AMG"), since May 1990. Since August
1992, Mr. Fleischer has been a principal and the President of EK
Management Corp., the general partner of EK Associates, L.P. (also
known as Ekco/Glaco Ltd.), a limited partnership engaged in
manufacturing. As Chief Executive Officer of AMG, Mr. Fleischer
provides management services to EK Associates. Prior thereto, Mr.
Fleischer served as a consultant at McKinsey & Co., Inc. from
September 1985 until April 1990. From September 1979 until August
1983, Mr. Fleischer served in the U.S. Foreign Service. Mr. Fleischer
served as a director of Alliant Techsystems Inc. from August 1994
until March 1995.
5
<PAGE> 6
JOSEPH F. MAZZELLA has been a partner at the law firm of Lane Altman &
Owens in Boston, Massachusetts, since 1985. Mr. Mazzella joined Lane
Altman & Owens as an associate in 1980 and, prior thereto, was an
attorney with the Securities and Exchange Commission in Washington,
D.C. Mr. Mazzella is a director of Alliant Techsystems Inc.
("Alliant"), and has so served since August 1994. Mr. Mazzella chairs
the Compensation Committee of the Board of Directors of Alliant and is
a member of the Audit Committee thereof.
ROBERT F. LIETZOW, JR. is a Vice President of Metropolitan Capital
Advisors, Inc., and has so served since November 1994. During the
period from February 1992 until October 1994, Mr. Lietzow was the
Managing Director of Lietzow Investments, an investment management
company. From June 1989 until February 1991, Mr. Lietzow was an
associate at Equity Group Holdings, Inc., an investment holding
company.
Except as set forth in the tables attached to this Exhibit A, to the
best knowledge of Bedford, none of Bedford, any of the Nominees, nor any
associate of any of the foregoing person (i) owns beneficially, directly or
indirectly, or has the right to acquire, any securities of the Company or any
parent or subsidiary of the Company, (ii) owns any securities of the Company of
record but not beneficially, (iii) has purchased or sold any securities of the
Company within the past two years, (iv) has incurred indebtedness for the
purpose of acquiring or holding securities of the Company, (v) is or has been a
party to any contract, arrangement or understanding with respect to any
securities of the Company within the past year, (vi) has been indebted to the
Company or any of its subsidiaries since the beginning of the Company's last
fiscal year or (vii) has any arrangement or understanding with respect to
future employment by the Company or with respect to any future transactions to
which the Company or any of its affiliates will or may be party. In addition,
to the best knowledge of Bedford, none of Bedford, any of the Nominees, nor any
associate or immediate family member of any of the foregoing persons has had or
is to have a direct or indirect material interest in any transaction with the
Company during the Company's last fiscal year, or any proposed transaction, to
which the Company or any of its affiliates was or is a party.
Except as set forth in this Exhibit A, none of the corporations or
organizations in which any of the Nominees has conducted his principal
occupation or employment was a parent, subsidiary or other affiliate of the
Company and none of the Nominees holds any position or office with the Company,
has any family relationship with any executive officer or director of the
Company or each other, or has been involved in any legal proceedings of the
type required to be disclosed by the rules governing this solicitation.
Metropolitan Capital Advisors, Inc. is a general partner of Metropolitan
Capital Advisors, L.P., which is the general partner of Bedford.
6
<PAGE> 7
Mr. Golub's spouse is the President and a director of Metropolitan
Capital Advisors, Inc.
7
<PAGE> 8
TRANSACTIONS IN SHARES OF
NATIONAL CONVENIENCE STORES INCORPORATED
The following table sets forth information with respect to all
purchases and sales of shares of Common Stock of the Company by the Nominees
during the past two years:
<TABLE>
<CAPTION>
No. of Shares
of Common Stock
Trade Date Purchased (Sold)
---------- ----------------
<S> <C>
JEFFREY E. SCHWARZ (1)(2)
01/19/95 4,000
01/20/95 10,000
01/23/95 10,700
01/24/95 10,000
01/25/95 5,000
01/26/95 68,400
01/27/95 4,000
01/30/95 5,000
01/31/95 2,000
02/01/95 10,000
02/06/95 5,000
02/08/95 10,000
03/17/95 6,000
03/20/95 8,400
03/21/95 2,800
03/23/95 4,000
03/29/95 5,000
03/31/95 5,000
04/18/95 5,500
05/17/95 10,000
05/19/95 11,500
05/22/95 10,000
05/23/95 4,100
05/24/95 5,000
05/25/95 5,000
05/26/95 15,000
05/30/95 15,000
05/31/95 9,000
06/01/95 (22,100)
06/05/95 16,000
</TABLE>
8
<PAGE> 9
<TABLE>
<Captiion>
No. of Shares
of Common Stock
Trade Date Purchased (Sold)
---------- ----------------
<S> <C>
JEFFREY E. SCHWARZ (continued)
06/07/95 5,000
06/08/95 1,700
06/09/95 4,200
06/12/95 6,900
ROBERT F. LIETZOW, JR.
01/19/95 400
05/26/95 400
</TABLE>
(1) All transactions by Jeffrey E. Schwarz are by virtue of his holding
shared dispositive and shared voting power over shares of Common
Stock and no shares are owned directly by Mr. Schwarz.
(2) Some part of the purchase price of the shares bought was borrowed
pursuant to a margin account. The portion of such funds provided by
margin borrowing is not readily determinable and varies from time to
time as a result of varying margin account availability and other,
unrelated, ongoing transactions in such accounts. As of August 8,
1995, the amount of such indebtedness attributable to Common Stock of
the Company on a pro rata basis is approximately $530,640.
9
<PAGE> 10
INFORMATION CONCERNING STOCK HOLDINGS
The following sets forth the name, business address, and the number of
shares of common stock, par value $.01 per share of the Company ("Common
Stock") beneficially owned by the Nominees and Bedford.
<TABLE>
<CAPTION>
No. of Shares
of Common Stock
Business Beneficially Percent
Name Address Owned of Class
---- -------- ----- --------
<S> <C> <C> <C>
Jeffrey E. Schwarz Metropolitan Capital Advisors, Inc. 277,100(1) 4.58%
660 Madison Avenue, 20th Floor
New York, NY 10021
Bedford Falls Investors, L.P. Metropolitan Capital Advisors, Inc. 277,100 4.58%
660 Madison Avenue, 20th Floor
New York, NY 10021
Robert F. Lietzow, Jr. Metropolitan Capital Advisors, Inc. 800 0.013%
660 Madison Avenue, 20th Floor
New York, NY 10021
</TABLE>
____________
(1) Mr. Schwarz does not own any shares of the Common Stock directly, but
may be deemed to have beneficial ownership by virtue of holding shared
dispositive and shared voting power over all shares held by Bedford
Falls Investors, L.P.
10
<PAGE> 11
EXHIBIT B
11
<PAGE> 12
Jeffrey E. Schwarz, the undersigned, does hereby consent to serve as a
Director of National Convenience Stores Incorporated if so elected.
August 9, 1995 /s/ Jeffrey E. Schwarz
_____________________________ _____________________________
Date [Signature]
<PAGE> 13
Lawerence E. Golub, the undersigned, does hereby consent to serve as a
Director of National Convenience Stores Incorporated if so elected.
August 9, 1995 /s/ Lawerence E. Golub
_____________________________ ______________________________
Date [Signature]
<PAGE> 14
Michael P. Fleischer, the undersigned, does hereby consent to serve as a
Director of National Convenience Stores Incorporated if so elected.
August 9, 1995 /s/ Michael P. Fleischer
_____________________________ ____________________________
Date [Signature]
<PAGE> 15
Joseph F. Mazzella, the undersigned, does hereby consent to serve as a
Director of National Convenience Stores Incorporated if so elected.
August 10, 1995 /s/ JOSEPH F. MAZZELLA
_____________________________ _______________________________
Date [Signature]
<PAGE> 16
Robert F. Lietzow, Jr., the undersigned, does hereby consent to serve
as a Director of National Convenience Stores Incorporated if so elected.
August 9, 1995 /s/ ROBERT F. LIETZOW, JR.
_____________________________ _______________________________
Date [Signature]
<PAGE> 1
Exhibit 99.3
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
----------------------------------------------}
THOMAS J. McKULA, JR., on behalf }
of himself and all others similarly }
situated, } C.A. No. 14481
}
Plaintiff, }
}
- against - } CLASS ACTION
} COMPLAINT
WILLIAM K. WILDE, RICHARD C. STEADMAN, }
ROBERT B. STOBAUGH, RAYMOND W. OELAND, JR., }
DUNBAR N. CHAMBERS, JR., CHARLES J. LUELLEN, }
V. H. VAN HORN, LIONEL SOSA and }
NATIONAL CONVENIENCE STORES INCORPORATED }
}
Defendants. }
----------------------------------------------}
Plaintiff alleges upon information and belief except as to paragraph 1,
which is alleged on knowledge, as follows:
THE PARTIES
1. Plaintiff is and at all times relevant hereto has been the owner of
shares of the common stock of National Convenience Stores Incorporated ("NCS"
or the "Company").
2. NCS is a corporation organized and existing under the laws of the
State of Delaware with offices in Houston, Texas. NCS, at June 30, 1994,
operated 709 specialty convenience stores in Texas under the name "Stop N Go"
and sells gasoline on a self-serve basis at the majority
<PAGE> 2
of these stores. NCS has approximately 6 million shares of common stock issued
and outstanding which trade on the NASDAQ over-the-counter quotation system.
3. (a) Defendant V.H. Van Horn ("Van Horn") is and has been at all
relevant times NCS' President, Chief Executive Officer and a director.
(b) Defendant Richard C. Steadman ("Steadman") is and has been at
all relevant times NCS' Chairman.
(c) Defendants Dunbar N. Chambers, Jr. ("Chambers"), Raymond W.
Oeland, Jr. ("Oeland"), Robert B. Stobaugh ("Stobaugh"), William K. Wilde
("Wilde"), Charles J. Luellen ("Luellen") and Lionel Sosa are and have been at
all relevant times directors of the Company.
4. As officers and/or directors of NCS, the individual defendants are
in a fiduciary relationship with plaintiff and the other public stockholders of
NCS and owe to plaintiff and other members of the class the highest obligations
of good faith, fair dealing and full disclosure.
CLASS ACTION ALLEGATIONS
5. Plaintiff brings this case on his own behalf and as a class action,
pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of all
public stockholders of NCS, and their successors in interest, who are or will
be threatened with injury arising from defendants' actions as
-2-
<PAGE> 3
more fully described herein (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation, or other entity
related to or affiliated with any of the defendants.
6. This action is properly maintainable as a class action.
7. The class is so numerous that joinder of all members is
impracticable. As of August 31, 1994, there were approximately 1,380
stockholders of record located throughout the United States.
8. There are questions of law and fact which are common to the class
and which predominate over questions affecting any individual class member.
9 Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. The claims of the
class and plaintiff has the same interests as the other members of the class.
Accordingly, plaintiff is an adequate representative of the class and will
fairly and adequately protect the interests of the class.
CLAIM FOR RELIEF
10. On or about August 14, 1995, Circle K Corp. ("Circle K") announced
that it had made a proposal to NCS pursuant to which Circle K offered to
purchase the Company
-3-
<PAGE> 4
for $17 cash per share or approximately $210 million (the "Circle K
proposal:").
11. In a letter submitted to the Company's Board of Directors, Circle K
indicated that it was "willing to consider any additional information" which
NCS believes would suport a higher offer price.
12. In a press release dated August 14, 1995, NCS announced that, on
August 11, 1995, it had received two sets of nominees for directors of the
Company's 1995 annual meeting typically held in October. One slate was proposed
by Circle K.
13. The Company, which has a staggered board, will propose the
re-election of the four Class III directors (i.e., defendants Wilde, Steadman,
Sosa and Luellen) at the 1995 annual meeting.
14. According to the August 14, 1995 press release, Circle K seeks to
(i) amend the Company's by-laws to increase the number of directors from 8 to
17; (ii) repeal any by-law amendment adopted since January 1, 1994; and (iii)
elect nine Circle K officers, directors or affiliates as directors at the 1995
annual meeting.
15. Although NCS said on August 14, 1995 that it was "premature" to
characterize the Company's response to the Circle K proposal, the individual
defendants have already implicitly indicated their disfavor with it.
-4-
<PAGE> 5
16. As disclosed in a Form 8-K filed with the Securities and Exchange
Commission on or about August 14, 1995, on August 10, 1995, (after Circle K
submitted its proposal) the individual defendants adopted an amendment to the
Company's Restated By-Laws which provides that any change in the number of
directors must be approved by 75% of the shares entitled to vote at a meeting
of stockholders ("amendment to by-laws" or "by-law amendment").
17. At all times herein, defendants were and are obligated to
adequately consider, in a timely fashion and on an informed basis, any
reasonable proposal from any party, not to place their own self interests and
personal considerations ahead of the interests of the stockholders and to make
corporate decisions in good faith. In approving the by-law amendment, the
individual defendants were selfishly motivated to further their own
self-interests and objectives, and correspondingly preserve and protect their
emoluments and positions in the Company, all in violation of their fiduciary
duties and to the detriment of the shareholders of the Company.
18. Through the amendment of the by-laws, defendants have erected a
barrier to persons who may wish to obtain control of NCS in an election
contest. The by-law amendment is designed to discourage and impede such
contests by stretching out over a period of years the time within
- 5 -
<PAGE> 6
which a dissident shareholder or group of shareholders may elect a majority of
NCS' Board.
19. By amending the by-laws, the individual defendants have acted to
manipulate the corporate machinery of NCS, thereby impairing the corporate
democratic process within the Company at the expense and to the detriment of
the Company's common stockholders. Further, the individual defendants have
restrained and impaired the ability of NCS stockholders to affect corporate
policy, and freely structure the directorial constituency of the Company.
Management clearly has a significant advantage in any proxy contest which
threatens to eliminate or diminish their control over NCS. The amendment
thereby thwarts shareholder opposition and serves to perpetuate senior
management's control over the business and operations of the Company.
20. Defendants' fiduciary obligations require them to:
(a) undertake an appropriate evaluation of any bona fide offers,
and take appropriate steps to solicit all potential bids for the Company or its
assets or consider strategic alternatives;
(b) act independently, including appointing a disinterested
committee so that the interests of NCS' public stockholders would be protected;
and
-6-
<PAGE> 7
(c) adequately ensure that no conflicts of interest exist between
defendants' own interests and their fiduciary obligations to the public
stockholders of NCS.
21. The Circle K proposal represents an opportunity to effect a change
of control of NCS, its business and affairs. In a change of control
transaction, the individual defendants necessarily and inherently suffer from a
conflict of interest between their own personal desires to retain their offices
in NCS, with the emoluments and prestige which accompany those offices, and
their fiduciary obligation to maximize shareholder value in a change of control
transaction. Because of such conflict of interest, it is unlikely that
defendants will be able to represent the interests of NCS' public stockholders
with the impartiality that their fiduciary duties require, nor will they be
able to ensure that their conflicts of interest will be resolved in the best
interests of NCS' public stockholders.
22. By virtue of the acts and conduct alleged herein, the individual
defendants, who direct the actions of the Company, are carrying out a
preconceived plan and scheme to entrench themselves in office and to protect
and advance their own personal parochial interests at the expense of NCS'
shareholders. Defendants' conduct has infringed upon the stockholders' ability
to chose between competing slates for control of the Company at the 1995 annual
meeting and
-7-
<PAGE> 8
thereby influnce corporate policy through the proxy mechanism.
23. As a result of the foregoing, the individual defendants have
breached and/or aided and abetted breaches of fiduciary duties owed to NCS and
its stockholders.
24. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff demands judgment as follows:
(a) declaring this to be a proper class action;
(b) ordering the individual defendants to carry out their
fiduciary duties to plaintiff and the other members of the Class by announcing
their intention to:
(i) undertake an appropriate evaluation of alternatives
designed to maximize value for NCS' public stockholders; and
(ii) adequately ensure that no conflicts of interests exist
between defendants' own interests and their fiduciary obligations to public
stockholders or, if such conflicts exist, to ensure that all the conflicts
would be resolved in the best interests of NCS' public stockholders.
(c) rescinding and rendering void the by-law amendment;
(d) ordering defendants, jointly and severally, to account to
plaintiff and the other member of the
-8-
<PAGE> 9
Class for all damages suffered and to be suffered by them as a result of the
acts and transactions alleged herein;
(e) awarding plaintiff the costs and disbursements of the action,
including a reasonable allowance for plaintiff's attorney's fees and experts'
fees; and
(f) granting such other and further relief as this Court may deem to be
just and proper.
ROSENTHAL, MONHAIT, GROSS
& CODDESS, P.A.
BY: /s/ [ILLEGIBLE SIGNATURE]
________________________________
First Federal Plaza
Suite 214
P. O. Box 1070
Wilmington, DE 19801
(302) 656-4433
OF COUNSEL:
GOODKIND LABATON RUDOFF
& SUCHAROW, LLP
100 Park Avenue
New York, New York 10017
(212) 907-0700
-9-
