-----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, Ho9iHC712HN4L+TazD92/R5UysICKMXJSl8T123BwXBDnF1pIOcQdGYh2TZ8Ujkb B54xbSB6kOB/wGrRu+9f5A== 0000950152-00-004389.txt : 20000525 0000950152-00-004389.hdr.sgml : 20000525 ACCESSION NUMBER: 0000950152-00-004389 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20000521 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000524 FILER: 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: 8-K SEC ACT: SEC FILE NUMBER: 000-12497 FILM NUMBER: 642527 BUSINESS ADDRESS: STREET 1: 210 BROADWAY EAST CITY: CUYAHOGA FALLS STATE: OH ZIP: 44222 BUSINESS PHONE: 2037414444 8-K 1 DAIRY MART CONVENIENCE STORES, INC. 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 12 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): May 21, 2000 Dairy Mart Convenience Stores, Inc. - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Charter) Delaware 0-12497 04--2497894 - -------------------------------------------------------------------------------- (State or Other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) One Dairy Mart Way, 300 Executive Parkway West, Hudson, Ohio 44236 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (330) 342-6600 - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) Page 1 of 4 Pages (Exhibit Index appears on page 4) 2 ITEM 5. OTHER EVENTS On May 21, 2000, Dairy Mart Convenience Stores, Inc., a Delaware corporation (the "Company") issued a press release announcing an agreement (the "Agreement"), by and among the Company, the Committee of Concerned Dairy Mart Shareholders and Frank Colaccino, settling the proxy contest initiated by Frank Colaccino. The Agreement is attached hereto as Exhibit 10(a). The foregoing description of the Agreement is qualified in its entirety by reference to such exhibit, which is incorporated herein by reference. The Company also issued a press release on May 22, 2000 relating to the Agreement which is attached hereto as Exhibit 99. ITEM 7. EXHIBITS. (c) Exhibit No. Description ----------- ----------- (10(a)) Agreement by and among Dairy Mart Convenience Stores, Inc., the Committee of Concerned Dairy Mart Shareholders and Frank Colaccino, dated May 21, 2000. (99) Press Release dated May 22, 2000. Page 2 of 4 Pages 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. DAIRY MART CONVENIENCE STORES, INC. Date: May 24, 2000 By: /s/ Gregory G. Landry ------------------------------- Name: Gregory G. Landry Title: Chief Financial Officer Page 3 of 4 Pages 4 DAIRY MART CONVENIENCE STORES, INC. EXHIBIT INDEX TO CURRENT REPORT ON FORM 8-K EXHIBIT ------- (10(a)) Agreement by and among Dairy Mart Convenience Stores, Inc., the Committee of Concerned Dairy Mart Shareholders and Frank Colaccino, dated May 21, 2000. (99) Press Release dated May 22 2000. Page 4 of 4 Pages EX-10.A 2 EXHIBIT 10(A) 1 AGREEMENT This Agreement (this "Agreement") dated as of May 21, 2000 between the Committee of Concerned Dairy Mart Shareholders (the "Committee") and Frank Colaccino ("Colaccino"), on the one hand, and Dairy Mart Convenience Stores, Inc., a Delaware corporation (the "Company"), on the other hand. WHEREAS, the Company has distributed definitive proxy materials (the "Company Proxy Materials") in respect of its 2000 Annual Meeting of Stockholders (the "Meeting") currently scheduled to be held on May 25, 2000; WHEREAS, the Committee has distributed definitive proxy materials (the "Committee Proxy Materials") with respect to its proposal to nominate eight individuals to stand for election as directors at the Meeting in opposition to the management slate; and WHEREAS, the parties hereto wish to enter into a settlement on the terms and subject to the conditions set forth in this Agreement; NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties hereto agree as follows: 1. Before the opening of the stock markets on Monday, May 22, 2000, the Company and the Committee shall issue a joint press release in the form attached hereto as Exhibit A. 2. After the execution of this Agreement, each of the Committee and Colaccino shall not, directly or indirectly, and shall use their best efforts to cause each "participant" (as such term is defined in Item 4 of Schedule 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) and each of their agents and representatives not to, solicit any proxies or participate in any "solicitation" of any "proxy" (as such terms are defined in Rule 14a-1 under the Exchange Act, and including without limitation any revocations of proxies granted to the Company) with respect to matters to be presented at the, and shall not become a "participant" in any election contest relating to the Meeting, and (b) shall not take any other actions inconsistent with the matters contemplated hereby. As soon as possible on Monday, May 22, 2000, the Committee will inform the Securities and Exchange Commission of the foregoing. 3. Colaccino and the Committee hereby withdraw the letter from Cede & Co. on behalf of its participant and the participant's customer and the letter from the Committee, each dated May 5, 2000 to the Company providing notice that Colaccino intends to nominate eight persons (the "Committee Nominees") for election as directors of the Company at the Meeting. The parties agree that the foregoing will not require any action by Cede & Co. 4. Colaccino and the Committee will cause the proxies named in the Committee Proxy Material, or their substitutes, to be present at the Meeting with all proxies that have been granted to 2 2 them and not revoked prior to the Meeting. Each of Colaccino and the Committee will not, and will use their best efforts to cause the other members of the Committee not to, nominate the Committee Nominees or any other individual for election as directors at the Meeting. 5. Colaccino will promptly sign, date and return to the Company a white proxy card marked to vote FOR all of management's nominees with respect to all shares of the Company's common stock that are beneficially owned by him, whether individually or in any other capacity. In the event that Colaccino beneficially owns any such shares in "street" name and not of record, he will take all action necessary to cause the record owner of such shares to vote for management's nominees at the Meeting. 6. Each party hereto hereby releases and forever discharges each other party hereto and their respective present and former officers, directors, agents, attorneys, investment bankers, subsidiaries, affiliates, advisors and representatives, of and from all debts, demands, actions, causes of actions, suits, damages, losses and any and all claims, demands and liabilities whatsoever of every name and nature, whether known or unknown, both in law and in equity, against such other party or any of its assigns, which the releasing party has or ever had from the beginning of the world to the date hereof; provided, however, that the foregoing release shall not apply to any claims arising in respect of the performance of this Agreement. 7. Promptly after the execution of this Agreement, the Company shall pay, by wire transfer, to the Committee, or to those persons as shall be designated by the Committee, the aggregate amount of $150,000 in full reimbursement of the Committee's or any Committee member's expenses incurred in connection with the Committee Proxy Materials and related matters. 8. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof. This Agreement may be executed in one or more counterparts by each of the parties hereto, each of which shall be deemed to be an original, but all of which shall be considered one and the same instrument. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each party hereto. 9. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof. 10. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and their respective successors or assigns, and it is not the intention of the parties to confer third party beneficiary rights upon any other person. 11. Each of the parties hereto agrees that money damages would not be a sufficient remedy for any breach of this Agreement by any party hereto and that any party hereto shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. 3 3 12. The Company will make available to Colaccino any confidential memorandum prepared by the Company's investment bankers when it becomes available; provided that Colaccino shall have entered into a confidentiality agreement in form and substance customary under the circumstances. DAIRY MART CONVENIENCE STORES, INC. By: /s/ Robert Stein ------------------------------- Name: Robert Stein Title: Chief Executive Officer COMMITTEE OF CONCERNED DAIRY MART SHAREHOLDERS By: /s/ Frank Colaccino ------------------------------- Frank Colaccino, Chairman FRANK COLACCINO /s/ Frank Colaccino ------------------------------- EX-99 3 EXHIBIT 99 1 COMPANY PRESS RELEASE DAIRY MART AND COMMITTEE OF CONCERNED SHAREHOLDERS ANNOUNCE SETTLEMENT OF PROXY CONTEST HUDSON, Ohio--(BUSINESS WIRE)--May 22, 2000--Dairy Mart Convenience Stores, Inc., (AMEX: DMC - news) and the Committee of Concerned Dairy Mart Shareholders announced today that they have settled the proxy contest begun by the Committee. "We are both interested in the same thing -- maximizing shareholder value," said Robert B. Stein, Dairy Mart Chairman, President and Chief Executive Officer and Frank Colaccino, Chairman of the Committee. "We believe that the process of enhancing shareholder value is well under way and would be helped by this settlement." Mr. Colaccino added, "The Committee began the proxy contest in the interest of all shareholders and with a commitment to maximize value of the company's shares. I believe that the shareholders will now be best served by ending this proxy fight given that we have received assurances that management is focused on evaluating a sale of the company. We are committed to assist in that initiative and have decided to vote our shares for the current board's nominees." Mr. Stein reiterated the company's commitment to explore all options for increasing shareholder value, including a sale. He said, "We are continuing our review of the various expressions of interest Dairy Mart has received." Dairy Mart Convenience Stores, Inc. was named "Convenience Store Chain of the Year" in 1999 by Convenience Store Decisions magazine. The company owns and operates approximately 600 retail stores in seven states in the Midwest and Southeast. Through consulting and licensing agreements, the Company is also affiliated with more than 200 stores in Korea and approximately 400 locations in Malaysia. For more information, visit Dairy Mart's web site at www.dairymart.com. Statements contained in this release that are not historical facts, including those relating to possible outcomes of exploring the Company's strategic alternatives, such as a possible sale of the Company may constitute forward-looking statements. Factors that could cause actual results to differ materially from those stated or implied in the forward-looking statements include competition, general economic conditions, the ability to find one or more suitable buyers for the stores or the whole Company at acceptable prices, the ability of such buyers to finance store purchases or the whole Company, the determination of the board of directors, which may or may not include a sale of the stores or the whole Company and other factors disclosed in Dairy Mart's periodic filings with the Securities and Exchange Commission. The Company assumes no obligation to update the information contained in this release. - ------------------- Contact: MacKenzie Partners, Inc. Larry Dennedy, 800/322-2885 or Committee of Concerned Dairy Mart Shareholders Frank Colaccino, 860/688-3667 ext.11 or Dix & Eaton Incorporated Scott Chaikin, 216/241-4615 or Sullivan & LeShane Public Relations Gene Sheehan, 860/560-0001 -----END PRIVACY-ENHANCED MESSAGE-----