SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES ACT OF 1934
Date of Report (Date of earliest event reported) January 29, 2008
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AMCON DISTRIBUTING COMPANY
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(Exact name of registrant as specified in its charter)
DELAWARE 1-15589 47-0702918
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
7405 Irvington Road, Omaha, NE 68122
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(Address of principal executive offices) (Zip Code)
(402) 331-3727
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
Written communications pursuant to Rule 425 under the Securities Act
---(17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
---(17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
--- Act(17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
--- Act (17 CFR 240.13e-4(c))
Item 3.02 Unregistered Sales of Equity Securities.
On January 29, 2008, the compensation committee of the board of directors
of our company, AMCON Distributing Company, authorized and approved the
issuance of a total of 7,500 shares of our company's common stock pursuant to
awards of restricted stock granted under the AMCON Distributing Company 2007
Omnibus Incentive Plan. These shares of restricted stock are being issued to
five non-employee members of our board of directors in furtherance of the
plan's purpose of (i) encouraging non-employee directors of our company and
its affiliates to acquire a proprietary and vested interest in the growth and
performance of our company, and (ii) assisting in the retention of
non-employee directors by providing them with the opportunity to participate
in the success and profitability of our company. Each of our five
non-employee directors -- Raymond Bentele, Jeremy Hobbs, Stanley Mayer, John
Loyack and Timothy Pestotnik received an award of 1,500 shares of
restricted stock. The recipients of the shares did not pay or agree to
provide any consideration to our company for the shares of restricted stock
issued to them.
The shares of restricted stock may not be sold, assigned, or otherwise
transferred by any award recipient prior to the vesting date for such shares.
The award recipient will be entitled to exercise all voting rights and to
receive all dividends or other distributions with respect to the shares
awarded to him. However, any cash dividends payable with respect to unvested
shares of restricted stock will be held in escrow by our company and subject
to the same conditions regarding vesting as the shares of restricted stock.
The issuance of the shares of restricted stock was made in reliance on
the exemption from registration provided by Section 4(2) of the Securities
Act of 1933. The issuance was an isolated transaction made without general
solicitation or advertising, and the recipients were accredited investors and
otherwise were provided with access to material information concerning our
company.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
At a meeting of our company's board of directors held on January 29,
2008, our board approved the amendment and restatement of our Bylaws. This
amendment and restatement reflects the following amendments:
- Our bylaws were amended to eliminate the concept of the Office of
the Chairman, which was comprised of our company's chairman, vice chairman
and chief financial officer. Prior to the amendment, our president and our
other executive officers reported to the Office of the Chairman. As a result
of the amendment, our president, our chief executive officer and our other
executive officers will report to our board of directors.
- Our bylaws were amended to provide that at any time in which the offices
of our chairman and chief executive officer are held by the same person, our
board of directors will appoint one outside independent member of our board
to serve as the "lead director." If a lead director is appointed, he or she
will be subject to annual election by our board at a meeting of our board
held in conjunction with the annual meeting of our company's shareholders, or
at such other time as our board may establish. The lead director will have
such rights, duties and responsibilities as may be assigned to him or her by
our board of directors, including:
- Calling special meetings of our board of directors.
- Calling and presiding at executive sessions of our board of
directors at which only outside, independent directors are
permitted to be present, along with other persons invited to
attend such sessions by the lead director or a majority of the
outside, independent directors.
- Presiding at any special meetings of our board of directors.
- Establishing, creating and approving, in collaboration with our
chairman, the agendas, meeting dates, meeting locations and
materials for all regular meetings of our board of directors and
all special meetings of our board called by our chairman or the
lead director.
- Consulting regularly with our chief executive officer regarding
appropriate follow-up on items determined by the lead director
to be of importance to our board of directors.
- Consulting regularly with our chief executive officer when
requested by our board or any director, or otherwise as the lead
director deems appropriate, to bring various matters of interest
or concern to the attention of our chief executive officer.
- Consulting regularly with our board of directors or any
committee of our board when requested by our chief executive
officer, or otherwise as the lead director deems appropriate, to
bring various matters of interest or concern to their attention.
- Consulting regularly with our chief executive officer on his or
her annual and long-term objectives in preparation for
discussion and approval by our board of directors, and
coordinating the annual performance review of our chief
executive officer by the board.
- Consulting with our chief executive officer or his or her
designees regarding proposals, reports, budgets, presentations,
and other material matters prior to their presentation to our
board of directors in sufficient time prior to the board meeting
to allow for their meaningful review and consideration.
- Serving as an independent point of contact for any shareholder
of our company who seeks to communicate with one or more members
of our board of directors without the participation, assistance
or cooperation of management.
- Our bylaws were amended to provide that special meetings of our
stockholders may be called by the lead director (if one is appointed), in
addition to being called by our chairman of the board, a majority in number
of our full board of directors or our president.
- Our bylaws were amended to provide that special meetings of our board of
directors may be called by the lead director (if one is appointed), in
addition to being called by our chairman of the board, our president or any
vice president.
- Our bylaws were amended to provide that our chairman will preside at all
meetings of our stockholders, at all regular meetings of our board of
directors and at all special meetings of our board of directors at which the
lead director (if one is appointed) is not present. However, our chairman
will not preside at any executive sessions of our board of directors.
- Our bylaws were amended to provide that the lead director may specify any
duties to be performed by our corporate secretary, in addition to any duties
as may be prescribed by our board of directors, chairman, vice chairman or
president.
The amendment and restatement of our bylaws, which includes the
amendments summarized above, became effective on January 29, 2008. A copy of
our amended and restated bylaws is attached hereto as exhibit 3.2 and is
incorporated herein by reference. The description contained in this report
of the amendments made as a part of the amendment and restatement of our
bylaws is qualified in its entirety by reference to our amended and restated
bylaws.
Following adoption of the amended and restated bylaws, our board of
directors elected our chief executive officer, Christopher Atayan, as our
chairman. Since the offices of our chairman and chief executive officer are
now held by the same person, our board of directors appointed Timothy
Pestotnik, an outside independent member of our board, to serve as the lead
director.
ITEM 9.01. Financial Statements and Exhibits.
(d) Exhibits
EXHIBIT NO. DESCRIPTION
Exhibit 3.2 Amended and Restated Bylaws of AMCON Distributing
Company
Exhibit 99.1 Company Press Release Dated February 4, 2008
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMCON DISTRIBUTING COMPANY
(Registrant)
Date: February 4, 2008 By : Andrew C. Plummer
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Name: Andrew C. Plummer
Title: Vice President & Chief
Financial Officer
EXHIBIT INDEX
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Exhibit Description
Exhibit 3.2 Amended and Restated Bylaws of AMCON Distributing Company
Exhibit 99.1 Company Press Release Dated February 4, 2008
EXHIBIT 99.1
AMCON DISTRIBUTING COMPANY NAMES CHRISTOPHER ATAYAN CHAIRMAN
NEWS RELEASE
Chicago, IL, February 4, 2008 - AMCON Distributing Company ("AMCON") (AMEX:DIT),
an Omaha, Nebraska based consumer products company is pleased to announce that
at its Annual Shareholders Meeting, Christopher H. Atayan, the Company's Chief
Executive Officer, was named to the additional post of Chairman of the Board.
Atayan succeeds William F. Wright, AMCON's founder and largest common
shareholder. Wright will remain as a director and consultant to the Company on
strategic matters. This appointment is part of the management transition plan
that was initiated in March 2006. "We are delighted that Bill will continue to
work closely with us as we implement our strategic plan. We will continue to
build on his vision of creating the premier service provider in the industry,"
said Atayan.
Our Annual Shareholders Meeting was held in Irving, Texas on January 29, 2008
and all matters up for consideration were approved. Additionally, the Company
named Timothy Pestotnik, a Director of the Company, to the position of Lead
Director. He succeeds Raymond Bentele who remains a director. Atayan commented,
"We look forward to working with Tim as we continue to position AMCON as a
leader in corporate governance and appreciated Ray's efforts in the role over
the years."
The Chairman and CEO's 2007 annual letter to shareholders can be found at
www.amcon.com/fiscal07.aspx.
AMCON is a leading wholesale distributor of consumer products, including
beverages, candy, tobacco, groceries, food service, frozen and chilled foods,
and health and beauty care products with distribution centers in Illinois,
Missouri, Nebraska, North Dakota and South Dakota. Chamberlin's Natural Foods,
Inc. and Health Food Associates, Inc., both wholly-owned subsidiaries of The
Healthy Edge, Inc., operate health and natural product retail stores in central
Florida (6), Kansas, Missouri, Nebraska and Oklahoma (4). The retail stores
operate under the names Chamberlin's Market & Cafe and Akins Natural Foods
Market.
This news release contains forward-looking statements that are subject to risks
and uncertainties and which reflect management's current beliefs and estimates
of future economic circumstances, industry conditions, Company performance and
financial results. A number of factors could affect the future results of the
Company and could cause those results to differ materially from those expressed
in the Company's forward-looking statements including, without limitation,
availability of sufficient cash resources to conduct its business and meet its
capital expenditures needs. Moreover, past financial performance should not be
considered a reliable indicator of future performance. Accordingly, the Company
claims the protection of the safe harbor for forward-looking statements
contained in the Private Securities Litigation Reform Act of 1995 with respect
to all such forward-looking statements.
Visit AMCON Distributing Company's web site at: www.amcon.com
For Further Information Contact:
Christopher H. Atayan
AMCON Distributing Company
Ph 312-327-1770
Fax: 312-527-3964