<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT #2
to
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(d)(1) OF THE SECURITIES AND EXCHANGE ACT OF 1934
NATIONAL CONVENIENCE STORES INCORPORATED
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(Name of subject company)
CIRCLE K ACQUISITION, INC.
THE CIRCLE K CORPORATION
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(Bidders)
Common Stock, $.01 par value per share (including the Associated Rights)
Warrants to Purchase Common Stock
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(Title of Class of Securities)
635570500 (Common Stock) and 635570112 (Warrants)
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(CUSIP numbers of classes of securities)
Gehl P. Babinec, Esq.
The Circle K Corporation
Phoenix Corporate Center
3003 North Central Avenue
Phoenix, Arizona 85012
(602) 437-0600
(Name, address and telephone number of person
authorized to receive notice and communications on behalf of bidders)
Copy to:
Richard M. Russo, Esq.
Gibson, Dunn & Crutcher
1801 California Street, Suite 4100
Denver, Colorado 80202
(303) 298-5700
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This Amendment No. 2 amends and supplements the Tender Offer Statement
on Schedule 14D-1 dated September 7, 1995, as heretofore amended and
supplemented (the "Schedule 14D-1"), of Circle K Acquisition, Inc., a Delaware
corporation (the "Purchaser") and The Circle K Corporation, a Delaware
corporation ("Circle K") filed in connection with the Purchaser's offer to
purchase all outstanding common stock, par value $.01 par share, and the
associated preferred stock purchase rights of National Convenience Stores
Incorporated, a Delaware corporation (the "Company"), and all warrants to
purchase shares of such Common Stock, as set forth in the Schedule 14D-1 (the
"Offer").
Items 3(b) and 11(c) and the Exhibit Index of the Schedule 14D-1 are
hereby amended by adding the following:
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(b)
In order to gain access to confidential information regarding the
Company which the Company is willing to make available as part of its
previously announced program of exploring strategic alternatives, including a
sale of the Company, Circle K was required to execute a Confidentiality
Agreement with the Company. On October 18, 1995, Circle K and the Company
entered into such Confidentiality Agreement. In the Confidentiality Agreement,
(a) Circle K agreed, among other things, to keep such information confidential,
and, (b) for one hundred twenty (120) days (unless prior written approval of the
Company is received) Circle K (1) has agreed not to acquire directly or
indirectly any securities of the Company (other than pursuant to the Offer), (2)
has agreed not to amend the Offer, except to extend the Offer, (3) has agreed
not to enter into any business combination or other extraordinary transaction
with the Company, (4) has agreed not to seek to control or influence the
management, Board of Directors, or policies of the Company (through proxy
solicitation or otherwise), (5) has agreed not to enter into a plan inconsistent
with the foregoing, and (6) has agreed not to advise, assist or encourage any
other persons in connection with any of the foregoing (collectively, except for
the agreement of confidentiality, the "Standstill Obligations"). Circle K will
be released from the Standstill Obligations if (i) the Company terminates the
process of considering the sale of the Company, (ii) the Company accepts a third
party's offer for the Company, (iii) a third party proposes to acquire more than
30% of the total voting power of the securities of the Company, (iv) a
recapitalization of the Company or a similar transaction is announced, or (v)
the Company announces that it has set a date for the Company's 1995 Annual
Meeting of Stockholders (except that upon the announcement of such a meeting,
Circle K will be released from all its Standstill Obligations other than the
ability to acquire or enter into a binding agreement to acquire the securities
or property of the Company until after one hundred twenty (120) days, or until
Circle K is otherwise released from its Standstill Obligations).
A copy of the Confidentiality Agreement, the text of which is
incorporated herein by reference, is attached as Exhibit (c)(1).
2
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ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(c)(1) Confidentiality Agreement, dated October 18, 1995 between
The Circle K Corporation and National Convenience Stores Incorporated.
3
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 20, 1995
CIRCLE K ACQUISITION, INC.
/s/ Gehl P. Babinec
------------------------------------------
Name: Gehl P. Babinec
Title: Senior Vice President, Secretary
and General Counsel
THE CIRCLE K CORPORATION
/s/ Gehl P. Babinec
------------------------------------------
Name: Gehl P. Babinec
Title: Senior Vice President, Secretary
and General Counsel
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
(c)(1) Confidentiality Agreement, dated October 18, 1995
between The Circle K Corporation and National
Convenience Stores Incorporated.
</TABLE>
5
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NCS
- ---
National Convenience Stores Incorporated ______________________________________
October 18, 1995
The Circle K Corporation
3003 North Central Avenue
Phoenix, Arizona 85012
Gentlemen:
As you know, National Convenience Stores Incorporated (the "Company") has
determined to explore various strategic alternatives, including a possible sale
of the Company, and has retained Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") as its exclusive financial advisor in this
process. In connection with your analysis of a possible transaction with the
Company, you may request or receive certain oral and written information
concerning the business and affairs of the Company (collectively, the
"Evaluation Material") from officers, directors, employees, agents and/or
advisors of the Company, including Merrill Lynch. In consideration of the
Company making available to you the Evaluation Material, you hereby agree to the
following (it being understood that you also are hereby agreeing to cause your
affiliates, directors, officers, employees, agents, and advisors to comply with
the provisions hereof):
(1) Nondisclosure of Evaluation Material. The Evaluation Material will be used
------------------------------------
solely for the purpose of evaluating a possible transaction between the
Company and you and not in any way which is not related to such a
transaction, and unless and until you have completed the purchase of the
Company pursuant to a definitive agreement relating to a merger, purchase
and sale or other business combination (the "Definitive Agreement"), such
Evaluation Material will be kept strictly confidential by you and your
advisors, except that you may disclose the Evaluation Material or portions
thereof (i) to those of your directors, officers, affiliates and employees
and potential financing sources and representatives of your advisors,
including, without limitation, financial advisors, counsel and accountants
(the persons to whom such disclosure is permissible being collectively
referred to herein as "Representatives") who need to know such information
for the purpose of evaluating your possible acquisition of the Company (it
being understood that those Representatives will be informed of the
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The Circle K Corporation
October 18, 1995
Page 2
confidential nature of the Evaluation Material and will agree to be bound
by this Confidentiality Agreement and not to disclose the information to
any other person) and (ii) in an amendment or amendments to the Tender
Offer Statement on Schedule 14D-1 originally filed on September 7, 1995
with the Securities and Exchange Commission by Circle K Acquisition, Inc.
and The Circle K Corporation ("Circle K 14D-1"), including, without
limitation, an amendment or amendments to the Offer to Purchase
constituting an exhibit to the Circle K 14D-1, and in proxy solicitation
materials relating to matters incidental to the offer described in the
Circle K 14D-1, if and to the extent, upon advice of your counsel, you are
required to make such disclosure pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder. You agree to be responsible for any breach of this
Confidentiality Agreement by your Representatives. In the event that you
or any of your Representatives become legally compelled (by applicable law
or regulation, or by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or similar process) to disclose any of
the Evaluation Material, you shall provide the Company with prompt prior
written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy, consult with you with respect
to the Company taking steps to resist or narrow the scope of such request
or legal process, and/or waive compliance, in whole or in part, with the
terms of this Confidentiality Agreement. In the event that such protective
order or other remedy is not obtained, or that the Company waives
compliance with the provisions hereof, you agree to disclose only that
portion of the Evaluation Material which you are advised by written opinion
of independent counsel, a copy of which shall be furnished to the Company,
is legally required and to exercise best efforts to obtain assurance that
confidential treatment will be accorded such Evaluation Material.
(2) Definition of Evaluation Material. The term "Evaluation Material" does not
---------------------------------
include any information which (a) is or becomes generally available to and
known by the public (other than as a result of a disclosure directly or
indirectly by you or your Representatives), (b) was available to you on a
nonconfidential basis prior to its disclosure by the Company or its
advisors, provided that the source of such information is not known by you
to be or to have been bound by a confidentiality agreement or similar
nondisclosure agreement with the Company or otherwise under an obligation
to the Company or its officers, directors, affiliates, employees, agents or
advisors not to transmit the information to you, (c) becomes available to
you on a nonconfidential basis from a source
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The Circle K Corporation
October 18, 1995
Page 3
other than the Company or its officers, directors, affiliates, employees,
agents or advisors, provided, however, that such source is not known by you
to be or to have been bound by a confidentiality agreement or similar
nondisclosure agreement with the Company or otherwise under an obligation
to the Company or its officers, directors, affiliates, employees, agents or
advisors not to transmit the information to you, (d) has been independently
developed by you without reference to any Evaluation Material, or (e) has
been or is provided to you under any separate confidentiality agreement or
stipulation with the Company (which information will be kept confidential
as required by the terms of such agreement or stipulation).
(3) Return of Evaluation Materials. If you determine that you do not wish to
------------------------------
proceed with a transaction with the Company, you agree to advise us
promptly of that decision. In that case, or if a merger or other business
combination with, or a purchase of, the Company is not consummated by you
or if the Company so requests, you will return promptly to Merrill Lynch or
the Company all copies of the Evaluation Material in your possession or in
the possession of your Representatives, and you will destroy all copies of
any analyses, compilations, studies or other documents prepared by you or
for your use containing, derived from or reflecting any Evaluation
Material.
(4) Nondisclosure of Discussions. Without the prior written consent of the
----------------------------
Company, you will not, and will direct your Representatives not to,
disclose to any person either the fact that you and the Company have
entered into this Confidentiality Agreement or that any investigations,
discussions or negotiations are taking place concerning a possible
transaction between the Company and you, or that you have requested or
received Evaluation Material from the Company or Merrill Lynch, or any of
the terms, conditions or other facts with respect to any such possible
transaction, including the status thereof, except as required by law or
upon the occurrence of an event specified in paragraph 8(b) hereof. The
term "person" as used in this Confidentiality Agreement will be interpreted
broadly to include, without limitation, any corporation, company,
partnership, other entity or individual. The Company will not disclose
that you have entered into this Confidentiality Agreement unless it
discloses the identities of the other persons who have entered into similar
confidentiality agreements with the Company; provided that the foregoing
shall not prevent the Company from disclosing the existence or contents of
this Confidentiality Agreement in pleadings filed or arguments made in
court in connection with litigation between
<PAGE>
The Circle K Corporation
October 18, 1995
Page 4
you and the Company relating to or arising out of the transactions
described in the Circle K 14D-1.
(5) Acknowledgement. You hereby acknowledge that you are aware (and that your
---------------
Representatives who are apprised of the matters that are the subject of
this Confidentiality Agreement have been, or will be, advised by you) that
the United States securities laws prohibit any person who has received from
an issuer material non-public information concerning the matters that are
the subject of this Confidentiality Agreement from purchasing or selling
securities of such issuer or from communicating such information to any
other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities.
(6) Conduct Prior to Definitive Agreement. (a) Until the earliest of (i) the
-------------------------------------
execution by you of a Definitive Agreement, (ii) an acquisition of the
Company by a third party or (iii) one hundred twenty (120) days from the
date of this Confidentiality Agreement, you agree not to initiate or
maintain contact (except for those contacts made in the ordinary course of
business) with any officer, director, employee, or agent of the Company or
its subsidiaries regarding its business, operations, prospects or finances,
except with the express permission of the Company. It is understood that
Merrill Lynch will arrange for appropriate contacts for due diligence
purposes. It is further understood that all (w) communications regarding
any possible transaction, (x) requests for additional information, (y)
requests for facility tours or management meetings, and (z) discussions or
questions regarding procedures, will be submitted or directed to Merrill
Lynch.
(b) The Company has signed confidentiality agreements with a number of
parties as a condition precedent to participating in a process to secure
Evaluation Material (the "Process"). Upon your execution of this
Confidentiality Agreement you shall receive similar treatment to the other
participants in the Process. The Company currently expects that all
participants in the Process will be asked to submit their proposals to
acquire the Company by a yet undetermined deadline. In these types of
transactions, however, there is always the possibility that a preemptive
bid may be submitted to the Company by a third party. In such event, the
Company will give you an opportunity to submit your best bid before the
Company accepts what it believes to be a preemptive proposal from a third
party.
<PAGE>
The Circle K Corporation
October 18, 1995
Page 5
(7) No Warranty of Accuracy. You understand and acknowledge that neither the
-----------------------
Company nor Merrill Lynch is making any representation or warranty, express
or implied, as to the accuracy or completeness of the Evaluation Material,
and none of the Company, Merrill Lynch, or any of their respective
officers, directors, employees, stockholders, owners, affiliates, agents or
advisors will have any liability to you or any other person resulting from
your use of the Evaluation Material. Only those representations or
warranties that are made to a purchaser in a Definitive Agreement when, as,
and if it is executed, and subject to such limitations and restrictions as
may be specified in such Definitive Agreement, will have any legal effect.
(8) Conduct After Execution of Confidentiality Agreement. (a) Except as
----------------------------------------------------
provided paragraph 8(b), you agree that, until the expiration of one
hundred twenty (120) days from the date of this Confidentiality Agreement,
you shall not without the prior written approval of the Company or its
Board of Directors (i) in any manner acquire, agree to acquire or (except
for the offer described in the Circle K 14D-1, which offer you agree during
such period not to amend except to extend the expiration date) make any
proposal to acquire, directly or indirectly, any securities, or any direct
or indirect rights to acquire any securities, or any property, of the
Company or any of its subsidiaries; (ii) propose to enter into, directly or
indirectly, any merger, business combination or other extraordinary
transaction involving the Company or any of its subsidiaries or to
purchase, directly or indirectly, a material portion of the assets of the
Company or any of its subsidiaries; (iii) make, or in any way participate,
in any "solicitation" of "proxies" to vote (as those terms are used in the
rules of the Securities and Exchange Commission) any voting securities of
the Company or act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company;
(iv) enter into or disclose any intention, plan or arrangement inconsistent
with the foregoing; or (v) advise, assist or encourage any other persons in
connection with any of the foregoing. You also agree during such period
not to (x) request the Company (or its directors, officers, employees, or
agents), directly or indirectly, to amend or waive any provisions of this
paragraph (including this sentence) or (y) take any action which might
require the Company to make a public announcement regarding the possibility
of a business combination or merger.
(b) Notwithstanding the provisions of paragraph 8(a) hereof or any
other provisions hereof, the Company agrees that you shall be released from
<PAGE>
The Circle K Corporation
October 18, 1995
Page 6
your obligations under paragraph 8(a) hereof at and after the time of the
first to occur of any of the following events (except the event described
in paragraph 8(b)(ii) below, which shall release you from your obligations
under paragraph 8(a), except that you shall not be permitted in any manner
to acquire, or enter into a binding agreement to acquire, directly or
indirectly, any securities, or any direct or indirect rights to acquire any
securities, or any property, of the Company or any of its subsidiaries
until the expiration of the one hundred twenty day period referred to in
paragraph 8(a) or until you are otherwise released from your obligations
under paragraph 8(a) pursuant to another clause of this paragraph 8(b)):
(i) an announcement by the Company that it intends to or has
terminated the process of considering the sale of the Company;
(ii) an announcement by the Company that it has set the date for
the Company's 1995 Annual Meeting of Stockholders;
(iii) an announcement by the Company that it has accepted a
third party's offer to acquire the Company;
(iv) a public disclosure in a filing with the Securities and
Exchange Commission that voting securities of the Company representing
more than thirty percent (30%) of the total combined voting power of
all voting securities of the Company then outstanding are proposed to
be acquired, commencing a tender offer or exchange offer complying
with the requirements of the Exchange Act (and, in the case of an
exchange offer, the Securities Act of 1933, as amended) and the rules
and regulations promulgated thereunder, by a person unaffiliated with
and unrelated to you or any of your affiliates or any group of which
you or any of your affiliates are a member; or
(v) a public announcement of a proposal by the Company for a
recapitalization or similar transaction pursuant to which the public
stockholders of the Company would receive cash or other assets or debt
or equity securities of the Company in exchange for all or a portion
of their voting securities of the Company.
(9) Waiver of Claims. You also understand and agree that no contract or
----------------
agreement providing for the sale of the Company shall be deemed to exist
between you and
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The Circle K Corporation
October 18, 1995
Page 7
the Company and/or the stockholders of the Company unless and until a
Definitive Agreement has been executed and delivered, and you hereby waive,
in advance, any claims (including, without limitation, breach of contract)
that such a contract or agreement regarding the possible sale of the
Company may exist unless and until you shall have entered into a Definitive
Agreement. You also agree that unless and until a Definitive Agreement
between the Company and you with respect to the acquisition of the Company
has been executed and delivered, none of the Company or its stockholders
has any legal obligation of any kind whatsoever to pursue any such
transaction by virtue of this Confidentiality Agreement, any Evaluation
Material or any other written or oral communication. For purposes of this
paragraph, the term "Definitive Agreement" does not include an executed
letter of intent or any other preliminary written agreement, nor does it
include any written or verbal acceptance of an offer or bid on your part.
You further understand (without waiving any of your rights) that (a) the
Company and Merrill Lynch intend to conduct the process for the exploration
by the Company of strategic alternatives, including a sale of the Company,
as they in their sole discretion shall determine (including, without
limitation, negotiating with any other prospective buyers and entering into
a Definitive Agreement without prior notice to you or any other person),
and (b) any procedures relating to such exploration or sale may be changed
at any time without notice to you or any other person. You also agree that
you shall not have any claims whatsoever against the Company, Merrill Lynch
or any of their respective directors, officers, stockholders, owners,
affiliates, agents or advisors arising out of or relating to the Evaluation
Material (other than those set forth in the Definitive Agreement with you
in accordance with the terms thereof). Neither this paragraph nor any
other provision of this Confidentiality Agreement can be waived or amended
except by written consent of the Company (and, as this paragraph relates to
Merrill Lynch, with the written consent of Merrill Lynch), which consent
shall specifically refer to this paragraph (or such other provision) and
explicitly make such waiver or amendment.
(10) Non-Solicitation of Employees. You also agree that, without the Company's
-----------------------------
prior written consent, you will not directly or indirectly solicit for
employment or employ any person who is now employed by the Company or any
of its subsidiaries and who is identified by you as a result of your
evaluation or otherwise in connection with a possible transaction with the
Company; provided, however, that you shall not be prohibited from employing
any such person who
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The Circle K Corporation
October 18, 1995
Page 8
contacts you on his or her own initiative and without any direct or
indirect solicitation by you.
(11) Remedies, Jurisdiction and Governing Law. You agree that the Company shall
----------------------------------------
be entitled to equitable relief, including injunction and specific
performance, in the event of any breach of the provisions of this
Confidentiality Agreement, in addition to all other remedies available to
the Company at law or in equity. You also hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the
courts of the State of Delaware and of the United States of America located
in the City of Wilmington, Delaware for any actions, suits or proceedings
arising out of or relating to this Confidentiality Agreement and the
transactions contemplated hereby (and you agree not to commence any action,
suit or proceeding relating thereto except in such courts), and further
agree that service of any process, summons, notice or document by United
States registered mail to your address set forth above, attention General
Counsel, shall be effective service of process for any action, suit or
proceeding brought against you in any such court. You hereby irrevocably
and unconditionally waive any objection to the laying of venue of any
action, suit or proceeding arising out of this Confidentiality Agreement or
the transactions contemplated hereby, in the courts of the State of
Delaware or the United States of America located in the City of Wilmington,
Delaware and hereby further irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
(12) No Waiver. It is further understood and agreed that no failure or delay by
---------
the Company in exercising any right, power or privilege hereunder will
operate as a waiver thereof, nor will any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any right, power or privilege hereunder.
This Confidentiality Agreement will be governed by and construed in accordance
with the laws of the State of Delaware without regard to principles of conflicts
of laws. In the event any provision of this Confidentiality Agreement shall be
held to be invalid or unenforceable in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof. Your
obligations under this Confidentiality Agreement (except as otherwise provided
in paragraphs (6) and (8) above) will expire one (1) year from the date hereof.
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The Circle K Corporation
October 18, 1995
Page 9
If you agree with the foregoing, please sign and return two copies of this
letter, which will constitute our agreement with respect to the subject matter
of this letter.
Very truly yours,
NATIONAL CONVENIENCE STORES
INCORPORATED
By: /s/ A. J. Gallerano
---------------------------------
A. J. Gallerano
Senior Vice President, General
Counsel and Secretary
CONFIRMED AND AGREED
as of the date written above:
THE CIRCLE K CORPORATION
By: /s/ Gehl P. Babinec
------------------------------
Name: Gehl P. Babinec
Title: Senior Vice President, General
Counsel and Secretary
