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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________________
FORM 8-A/A
(AMENDMENT NO. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF
SECURITIES PURSUANT TO SECTION 12(b) or (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
NATIONAL CONVENIENCE STORES INCORPORATED
(Exact name of registrant as specified in its charter)
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DELAWARE 76-1361734
(State of incorporation or organization) (I.R.S. Employer Identification No.)
9830 COLONNADE BOULEVARD, SAN ANTONIO, TEXAS 78230
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of If this Form relates to the registration of
a class of debt securities and is effective a class of debt securities and is to become
upon filing pursuant to General Instruction effective simultaneously with the
A(c)(1) please check the following box. [ ] effectiveness of a concurrent registration
statement under the Securities Act of 1933
pursuant to General Instruction A(c)(2)
please check the following box. [ ]
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SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Warrants to Purchase Common Stock, par value $0.01 per share
(Title of class)
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The Registrant, National Convenience Stores Incorporated (the
"Company"), hereby amends and restates in its entirety the Registration
Statement on Form 8-A filed by the Company with the Securities and Exchange
Commission (the "Commission") on March 4, 1993 (the "Form 8-A"). This
amendment is being filed following the merger of a wholly owned subsidiary of
Diamond Shamrock, Inc. ("Diamond Shamrock") with and into the Company on
December 18, 1995 (the "Merger"). As a result of the Merger, the Company
became an indirect, wholly owned subsidiary of Diamond Shamrock.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
COMMON STOCK
General. The authorized capital stock of the Company consists of
1,000 shares of common stock, par value $.01 per share ("Common Stock"), of
which 100 shares are issued and outstanding. Holders of Common Stock are
entitled to one vote per share on all matters submitted to the stockholders for
a vote. There are no cumulative voting rights in the election of directors,
and holders of Common Stock have no preemptive rights to purchase any shares of
the Company's capital stock. Holders of Common Stock are entitled to receive
such dividends as may be declared and paid by the Board of Directors of the
Company out of funds legally available therefor. In the event of liquidation,
dissolution or winding up of the Company, holders of Common Stock are entitled
to share ratably in all assets of the Company available for distribution to the
holders of Common Stock. All outstanding shares of Common Stock are fully paid
and nonassessable.
The Common Stock was listed for trading on the New York Stock Exchange
("NYSE") under the symbol "NCS." On December 14, 1995, the Common Stock was
suspended from trading on the NYSE. On February 12, 1996, the NYSE filed a
Form 25 with the Commission, notifying the Commission of its intention to
remove the Common Stock from listing and registration on the NYSE. The listing
of the Common Stock was terminated on February 23, 1996. The Company filed a
Form 15 with the Commission on March 13, 1996 requesting termination of the
registration of the Common Stock pursuant to Rule 12g-4(a)(1)(i) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
Limitation on Directors' and Officers' Liability; Indemnification. As
authorized by the General Corporation Law of the State of Delaware (the
"DGCL"), the Amended and Restated Certificate of Incorporation of the Company
(the "Certificate") limits the liability of directors of the Company to the
Company or its stockholders. Specifically, directors of the Company will not
be personally liable for monetary damages for breach of a director's fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omission
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemption as provided in Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit.
In addition, the Amended and Restated By-Laws of the Company require
the Company to indemnify each person who is or was a director or officer the
Company, or who is or was serving at the Company's request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, to the full extent permitted by the DGCL in the
event such person is involved in legal proceedings by reason of the fact that
he is or was a director or officer of the Company or is or was serving at the
Company's request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
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WARRANTS
The Warrants (the "Warrants") were issued pursuant to the Warrant
Agreement, dated as of March 9, 1993 (the "Warrant Agreement"), between the
Company and Boatmen's Trust Company, as Warrant Agent (the "Warrant Agent").
As of April 29, 1996, 31,535 Warrants were issued and outstanding and held by
787 owners of record. As a result of the Merger and pursuant to the Warrant
Agreement, each Warrant represents the right to receive $27.00 per Warrant (the
"Warrant Payment") in cash upon payment of the $17.75 exercise price (the
"Exercise Price"), in lieu of the one share of Common Stock previously issuable
upon exercise of a Warrant.
Pursuant to an Escrow Trust Agreement, dated April 29, 1996 (the
"Escrow Agreement"), between the Company and the Warrant Agent, the Company has
deposited $293,687.50 in cash (the "Funds") with the Warrant Agent to pay the
$9.25 difference between the Warrant Payment and the Exercise Price (the
"Spread") for all outstanding Warrants. The Funds will be held in escrow
pursuant to the Escrow Agreement for the benefit of, and payment to, the record
holders of the Warrants. On May 6, 1996, the Company provided written notice
to the record Warrant holders of the deposit of the Funds and the right to
receive payment of the Spread upon exercise of the Warrants. A copy of that
notice has been filed as an exhibit to this report and is incorporated herein
by this reference. The Warrants will expire at 5:00 p.m., New York City time,
on March 9, 1998 (the "Expiration Time"), after which time the balance of the
Funds, if any, will be returned to the Company. Each Warrant not exercised
prior to the Expiration Time will automatically become void and no longer
outstanding.
ITEM 2. EXHIBITS.
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Exhibit Number Exhibit
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1 Form of Common Stock Certificate of the Company (previously filed as Exhibit 1.2 of the
Form 8-A)
2 Form of Warrant Certificate of the Company (previously filed as Exhibit 1.3 of the Form
8-A)
3 Amended and Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the period
ended December 31, 1995 (the "Form 10-Q"))
4 Amended and Restated By-Laws of the Company (incorporated by reference to Exhibit 3.2 to
the Form 10-Q)
5 Warrant Agreement between the Company and Boatmen's Trust Company, as Warrant Agent
(incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K
dated February 25, 1993 (Commission No. 1-7936, filed March 12, 1993))
6 Notice to holders of outstanding Warrants of the Company
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this amendment to be signed on its
behalf by the undersigned, thereunto duly authorized.
NATIONAL CONVENIENCE STORES INCORPORATED
Date: May 7, 1996 By: /s/ TIMOTHY J. FRETTHOLD
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Timothy J. Fretthold
Senior Vice President
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INDEX TO EHXIBITS
EXHIBIT
NUMBER DESCRIPTION
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6 Notice to holders of outstanding Warrants of the Company
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Exhibit 6
[NCS Letterhead]
To Holders of NCS Warrants:
On December 18, 1995, a subsidiary of Diamond Shamrock, Inc. ("Diamond
Shamrock") was merged with National Convenience Stores Incorporated ("NCS").
In the merger, holders of NCS Common Stock (the "Shares") received $27.00 per
Share in cash. As a result of the merger, NCS became a wholly owned subsidiary
of Diamond Shamrock.
As a result of the merger, the NCS warrants (the "Warrants") issued under the
Warrant Agreement, dated March 9, 1993, between NCS and Boatmen's Trust
Company, as warrant agent (the "Warrant Agent"), now represent the right to
receive $27.00 per Warrant in cash (the "Warrant Payment") upon payment of the
$17.75 per Warrant exercise price (the "Exercise Price"), in lieu of the one
Share previously issuable upon exercise of a Warrant.
Our records indicate that you are a record holder of Warrants. YOU WILL NEED
TO DELIVER THE CERTIFICATES REPRESENTING YOUR WARRANTS TO THE WARRANT AGENT IN
ORDER TO RECEIVE PAYMENT FOR YOUR WARRANTS. NCS has agreed to waive the
payment of the Exercise Price as a condition to receiving the $9.25 difference
between the Warrant Payment and the Exercise Price (the "Spread"). In order to
receive the Spread without paying the Exercise Price, you must write "DEDUCT
EXERCISE PRICE" immediately above your signature on the Purchase Form that
appears on the reverse of the certificate representing your Warrant.
NCS has deposited a sufficient amount of funds with the Warrant Agent to pay
the aggregate Spread on all outstanding Warrants. Those funds will be held in
escrow for the benefit of, and payment to, Warrant holders until 5:00 p.m. on
March 9, 1998, the date on which the Warrants will expire. WARRANT HOLDERS WHO
FAIL TO EXERCISE THEIR WARRANTS PRIOR TO 5:00 P.M. ON MARCH 9, 1998, WILL NOT
BE ENTITLED TO RECEIVE THE SPREAD.
No interest is payable on the Spread. Accordingly NCS believes that it is in
the economic interests of Warrant holders to exercise their Warrants as
promptly as practicable.
The exercise of your Warrants will be a taxable transaction for federal income
tax purposes and may also be a taxable transaction under applicable state,
local or other laws. If you have any questions concerning the tax treatment of
your Warrant exercise, please consult your tax advisor.
Please review the reverse side of your Warrant certificate for additional
instructions as to how to exercise your Warrants or contact the Warrant Agent,
Boatmen's Trust Company, Attention: Corporate Trust Division, by mail at P.O.
Box 14768, St. Louis, Missouri 63178, or in person or by hand delivery at 510
Locust Street, 2nd Floor, St. Louis, Missouri 63101, or by telephone at either
(800) 456-9852 or (314) 466-1357.
NATIONAL CONVENIENCE STORES INCORPORATED
May 6, 1996
