-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NUEoBCytvlfII5ZdTqukVdbfA3dJeFjaA0MtbSn5ET9q+8eKRaF14LSrH+vTz0mn sMzY6PreWN1BIbQ+jOLbqA== 0000950109-95-004577.txt : 19951119 0000950109-95-004577.hdr.sgml : 19951119 ACCESSION NUMBER: 0000950109-95-004577 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19951113 SROS: NASD GROUP MEMBERS: CHARLES NIRENBERG GROUP MEMBERS: FC PROPERTIES CORPORATION GROUP MEMBERS: NIRENBERG CHARLES SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DAIRY MART CONVENIENCE STORES INC CENTRAL INDEX KEY: 0000721675 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CONVENIENCE STORES [5412] IRS NUMBER: 042497894 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-36859 FILM NUMBER: 95589426 BUSINESS ADDRESS: STREET 1: ONE VISION DRIVE CITY: ENFIELD STATE: CT ZIP: 06082 BUSINESS PHONE: 2037414444 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NIRENBERG CHARLES CENTRAL INDEX KEY: 0000949063 STANDARD INDUSTRIAL CLASSIFICATION: [] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O DAIRY MART CONVENIENCE STORES INC STREET 2: ONE VISION DRIVE CITY: ENFIELD STATE: CT ZIP: 06032 BUSINESS PHONE: 2037414401 SC 13D/A 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities and Exchange Act of 1934 (Amendment No. 2)* Dairy Mart Convenience Stores, Inc. (Name of Issuer) Class B Common Stock, Par Value, $.01 Per Share (Title or Class of Securities) 233860105 (CUSIP Number) FCN Properties Corporation Charles Nirenberg c/o Dairy Mart Convenience Stores, Inc. One Vision Drive Enfield, CT 06032 Copies to: Daniel L. Goldberg, Esq. Bingham, Dana & Gould 150 Federal Street Boston, MA 02110 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 30, 1995 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [_]. Check the following box if a fee is being paid with the statement [_]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. CUSIP No. 233860105 13D - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS FCN PROPERTIES CORPORATION S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Fed. Taxpayer ID# 06-1358626 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Connecticut - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER ----------------------------------------------------------- NUMBER OF None SHARES ----------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 1,220,000 REPORTING ----------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH None ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,220,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EAC REPORTING PERSON 1,220,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 43.8% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) CO - -------------------------------------------------------------------------------- Page 2 of 10 Pages CUSIP No. 233860105 13D - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS CHARLES NIRENBERG S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Social Security No. ###-##-#### - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF/OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER ----------------------------------------------------------- NUMBER OF 500 SHARES ----------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 1,530,849 REPORTING ----------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 311,349 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,220,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,531,349 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 55.0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- Page 3 of 10 Pages Reference is hereby made to the Statement on Schedule 13D, dated September 30, 1994, filed jointly by FCN Properties Corporation and Charles Nirenberg, as amended by Amendment No. 1 thereto, dated January 27, 1995, filed jointly by FCN Properties Corporation and Charles Nirenberg (said Statement on Schedule 13D, as so amended, being hereinafter referred to as the "Schedule 13D"). This Amendment No. 2 to Schedule 13D is being filed jointly by FCN Properties Corporation and Charles Nirenberg for purposes of amending and supplementing certain information with respect to FCN Properties Corporation and Charles Nirenberg provided in the Schedule 13D. Unless otherwise defined herein, capitalized terms used herein have the same meanings ascribed to them in the Schedule 13D. Item 4. Purpose of Transaction. Item 4 of Schedule 13D is hereby modified, amended and updated by the following disclosure: On October 30, 1995, Mr. Nirenberg and two of his affiliates entered into an agreement with the Company and certain of its affiliates for purposes of settling the dispute between Mr. Nirenberg and the Company's management with respect to control of the Company. The terms and conditions of such agreement are described in Item 6 of this Amendment No. 2 to Schedule 13D. In light of such agreement, the Company adjourned its 1995 Annual Meeting of Stockholders (the "Annual Meeting"), originally scheduled for October 31, 1995, to November 30, 1995. Such adjournment was necessary in order to give the Company sufficient time to be in a position to consummate the transactions contemplated under such agreement. In the interim, Mr. Nirenberg has been reappointed as Chairman of the Board of Directors of the Company and the Board of Directors has been expanded from seven to nine directors and two of Mr. Nirenberg's nominees, Thomas O'Brien and Howard Jacobson, have been elected to the Board of Directors. If the transactions contemplated under such agreement are consummated on or prior to November 29, 1995, Messrs. Nirenberg, Kupperman, O'Brien and Jacobson will resign as directors of the Company, and Mr. Nirenberg will cause all of the shares of Class B Common Stock of DM Associates over which DM Management I exercises voting control to be voted at the Annual Meeting in favor of the election of the slate of persons nominated by the Board of Directors for election as directors of the Company. If the transactions contemplated under such agreement are not consummated on or prior to November 29, 1995, Messrs. Landry and Stein will resign as directors of the Company, and Messrs. Nirenberg, Kupperman, O'Brien and Jacobson will constitute a majority of the remaining seven directors of the Company and, therefore, will be in effective control the Company. If Messrs. Nirenberg, Kupperman, O'Brien and Jacobson acquire effective control of the Company in the manner described above, Mr. Nirenberg intends Page 4 of 10 Pages to propose to the Board of Directors of the Company that he be appointed as Chief Executive Officer of the Company. Mr. Nirenberg believes it is likely that he would have sufficient support among the members of the Board of Directors to become Chief Executive Officer of the Company. In the event that Mr. Nirenberg were to be appointed by the Board of Directors as Chief Executive Officer of the Company, Mr. Nirenberg anticipates that he would make a complete evaluation of the Company's management team. Recommendations as to the retention or dismissal of any member of the Company's management team would be discussed by Mr. Nirenberg with the Board of Directors and decisions as to the retention or dismissal of any such member would be made by the Board of Directors on a case by case basis. Such decisions will be based on factors including, without limitation, merit and ability to work effectively as a team. Mr. Nirenberg anticipates that he would recommend to the Board of Directors that Joseph Leonardo be appointed as President of the Company, and that, in such position, Mr. Leonardo would be in charge of the management of the day-to- day affairs of the Company. Item 5. Interest in Securities of the Issuer. The disclosure provided in Item 5 of Schedule 13D concerning beneficial ownership of shares of Class B Common Stock of the Company by each Reporting Person is hereby modified, amended and updated by the information set forth below. The following table sets forth certain information concerning beneficial ownership of shares of Class B Common Stock of the Company by each Reporting Person:
SHARES BENEFICIALLY PERCENT OF OWNED CLASS (1) NAME OF REPORTING PERSON ------------ -------------- - ------------------------ FCN Properties Corporation 1,220,000 43.8%(2) Charles Nirenberg 1,531,349 55.0%(3) - -------------------
(1) Based on 2,783,060 shares of Class B Common Stock issued and outstanding as of September 29, 1995. (2) FCN Properties Corporation shares voting and dispositive power with respect to these shares with Messrs. Gregory G. Landry, Robert B. Stein, Jr., Mitchell S. Kupperman and Charles Nirenberg, as general partners of DM Management I. Page 5 of 10 Pages (3) Mr. Nirenberg beneficially owns individually and has sole voting and dispositive power with respect to 500 shares of Class B Common Stock. In his capacity as managing general partner of DM Management I, Mr. Nirenberg (i) shares voting power with Messrs. Stein, Landry and Kupperman, the other general partners of DM Management I, with respect to 1,530,849 shares of Class B Common Stock, (ii) has sole dispositive power over 311,349 shares of Class B Common Stock, and (iii) shares voting and dispositive power with FCN with respect to 1,220,000 shares of Class B Common Stock. Mr. Nirenberg, also in his capacity as an officer, director and the sole shareholder of FCN, shares voting and dispositive power with FCN with respect to 1,220,000 shares of Class B Common Stock. The table above does not reflect 500 shares of Class A Common Stock that Mr. Nirenberg beneficially owns individually and with respect to which he has sole voting and dispositive power. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Item 6 of Schedule 13D is hereby modified, amended and updated by the following disclosure: On October 30, 1995, Mr. Nirenberg and two of his affiliates, FCN Properties Corporation ("FCN") and The Nirenberg Family Charitable Foundation, Inc. (the "Foundation"), entered into an Agreement with the Company and Messrs. Stein and Landry (the "Agreement") for purposes of settling the dispute between Mr. Nirenberg and the Company's management with respect to control of the Company. Pursuant to the Agreement, the Company has agreed (i) to purchase from Mr. Nirenberg and the Foundation all of their respective limited partner interests in DM Associates, (ii) to purchase from Mr. Nirenberg all of his general partner interests in DM Management I and DM Management II, (iii) to purchase from FCN all of its right, title and interest in and ownership of the 9% Secured Promissory Note, dated March 12, 1992 (the "CDA Note"), in the principal amount of $7,100,000 originally made by DM Associates in favor of the Connecticut Development Authority (the "CDA") and subsequently assigned by the CDA to FCN on or about September 30, 1994, and all of FCN's right title and interest in 1,220,000 shares of Class B Common Stock pledged by DM Associates as security for the payment of the CDA Note, and all of FCN's right, title and interest in all of the agreements (including security agreements and documents) executed by DM Associates in connection with the CDA Note and/or the loan evidenced thereby, and (iv) to purchase from Nirenberg, FCN and the Foundation all of their respective right, title and interest in and to the letter agreements entered into by Nirenberg, FCN and/or the Foundation with the Company, the other limited partners of DM Associates and/or the other Page 6 of 10 Pages general partners of DM Management I and DM Management II in connection with the reconstitution of DM Associates and its general partners. The aggregate cash consideration to be paid by the Company to Mr. Nirenberg, FCN and the Foundation pursuant to the Agreement is $13,150,000. Of such aggregate cash consideration, $10,000,000 represents the purchase price payable by the Company for the respective interests of Mr. Nirenberg, FCN and the Foundation referred to in the paragraph above. In addition, the Company has agreed to pay to Mr. Nirenberg the sum of $2,300,000 in consideration of Mr. Nirenberg's agreement not to compete against the Company and Mr. Nirenberg's agreement to allow the Company to use Mr. Nirenberg's name and likeness in its advertising and marketing materials, subject to Mr. Nirenberg's prior review and consent. The Company has also agreed to reimburse Mr. Nirenberg and FCN for up to $850,000 of previously unreimbursed fees and expenses incurred by Mr. Nirenberg and FCN from and after January 25, 1995 in connection with their activities relating to the Company. The closing of the transactions contemplated under the Agreement (the "Closing") is subject to the satisfaction of several conditions precedent, including, among others, that (i) the Company obtains financing on terms acceptable to the Company, (ii) the Company obtains all required consents and waivers from its bank lenders and from the holders of its Senior Subordinated Notes due 2004 (the "Senior Notes") in connection with the transactions contemplated by the Agreement and (iii) all required waivers, consents and releases of the partners of DM Associates, DM Management I, DM Management II and the CDA are obtained. The Agreement provides that the Closing must occur on or prior to November 29, 1995. If the Closing does not occur on or prior to November 29, 1995, the Agreement will terminate and neither the Company nor Mr. Nirenberg, FCN and the Foundation will have any obligation to consummate the transactions contemplated under the Agreement. In connection with the execution and delivery of the Agreement by the parties thereto, Mr. Nirenberg has been reappointed as Chairman of the Board of Directors of the Company (the "Board") and the Board has been expanded from seven to nine directors and two of Mr. Nirenberg's nominees, Thomas O'Brien and Howard Jacobson, have been elected to the Board. The Agreement requires that Messrs. Nirenberg, Kupperman, O'Brien, Jacobson, Landry and Stein have tendered their respective resignations from their positions as directors of the Company, and that all of such resignations be held in escrow by Stanford N. Goldman, Jr., an Assistant Secretary of the Company. The resignations of each of Messrs. Nirenberg, Kupperman, O'Brien and Jacobson will be released from escrow and become effective only if the transactions contemplated under the Agreement are consummated. The resignations of each of Messrs. Stein and Landry will be released from escrow Page 7 of 10 Pages and become effective only if the transactions contemplated under the Agreement are not consummated on or prior to November 29, 1995. Pursuant to the Agreement, Mr. Nirenberg has agreed, among other things, that, so long as the Agreement is in effect, neither he nor his affiliates will vote or purport to take action by written consent with respect to any of the Company's capital stock. In the event that the Closing occurs on or prior to November 29, 1995, the Agreement requires that, to the extent requested by Messrs. Landry and Stein immediately prior to the Closing in their capacities as general partners of DM Management I, Mr. Nirenberg will cause the shares of Class B Common Stock held by DM Associates over which New DM Management I exercises voting control to be voted in favor of the election of the slate of persons nominated by the Board for election as directors of the Company and in accordance with the recommendation of the Board with respect to the other matters to be considered at the Annual Meeting. The Agreement also provides that the Company and Messrs. Stein and Landry will not take any action (including any action to dissolve DM Associates or any of its general partners) that (i) would impair, impede or frustrate the ability of Mr. Nirenberg to vote at the Annual Meeting the shares of Class B Common Stock held by DM Associates over which New DM Management I exercises voting control in a manner determined by Mr. Nirenberg in his sole discretion in the event that the Closing does not occur on or prior to November 29, 1995, and (ii) would change the record date for the Annual Meeting. In addition, the Agreement provides that, from October 30, 1995 until the Closing, the Company will not issue any voting securities, except pursuant to the Company's employee stock purchase plan or pursuant to stock options granted prior to October 30, 1995 under the Company's stock option plans, and except for securities issued by the Company in order to finance the payments to be made to Mr. Nirenberg, FCN and the Foundation under the Agreement. Item 7. Material to be Filed as Exhibits. EXHIBIT A Agreement relating to the joint filing of this Amendment No. 2 to Schedule 13D, as required by Rule 13d-1(f). Page 8 of 10 Pages EXHIBIT B Agreement, dated October 30, 1995, among Dairy Mart Convenience Stores, Inc., Charles Nirenberg, FCN Properties Corporation, The Nirenberg Family Charitable Foundation, Inc. and, solely for purposes of Sections 8, 10(f), 10(h), 10(i) and 11 thereof, Robert B. Stein, Jr. and Gregory G. Landry, which is hereby incorporated herein by reference to Exhibit B to Amendment No. 8 to the Report on Schedule 13D, dated October 30, 1995, filed jointly by DM Associates Limited Partnership, New DM Management Associates I, Charles Nirenberg and Mitchell J. Kupperman. Page 9 of 10 Pages Signature After reasonable 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. FCN PROPERTIES CORPORATION By: /s/ Charles Nirenberg --------------------- Charles Nirenberg, President /s/ Charles Nirenberg --------------------- Charles Nirenberg, individually Page 10 of 10 Pages EX-99.A 2 AGREEMENT TO FILING EXHIBIT A The undersigned agree that a statement on Schedule 13D to be filed with the Securities and Exchange Commission on November 13, 1995, will be filed on behalf of each of them. FCN PROPERTIES CORPORATION By: /s/ Charles Nirenberg --------------------- Charles Nirenberg, President /s/ Charles Nirenberg --------------------- Charles Nirenberg -----END PRIVACY-ENHANCED MESSAGE-----