-----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, RRwaHARQVdiTIQlr97xNUU+RGJaElfflHsOryJlfBFd7jCarYTYuh8cBPHhrPaX1 FSlvfKJp7k9kUkDc1LZUDw== /in/edgar/work/20000907/0000928465-00-000029/0000928465-00-000029.txt : 20000922 0000928465-00-000029.hdr.sgml : 20000922 ACCESSION NUMBER: 0000928465-00-000029 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000907 EFFECTIVENESS DATE: 20000907 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMCON DISTRIBUTING CO CENTRAL INDEX KEY: 0000928465 STANDARD INDUSTRIAL CLASSIFICATION: [5141 ] IRS NUMBER: 470702918 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-45338 FILM NUMBER: 718382 BUSINESS ADDRESS: STREET 1: 10228 L ST STREET 2: POST OFFICE BOX 241230 CITY: OMAHA STATE: NE ZIP: 68127 BUSINESS PHONE: 4023313727 MAIL ADDRESS: STREET 1: 10228 L STREET STREET 2: POST OFFICE 241230 CITY: OMAHA STATE: NE ZIP: 68127 S-8 1 0001.txt AMCON DISTRIBUTING COMPANY FORM S-8 As filed with the Securities and Exchange Commission on September 7, 2000 ------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------------- FORM S-8 Registration Statement Under the Securities Act of 1933 AMCON DISTRIBUTING COMPANY ------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 47-0702918 ------------------------------- -------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 10228 "L" Street Omaha, Nebraska 68127 ------------------------------- ------- (Address of principal executive (Zip code) offices) AMCON DISTRIBUTING COMPANY FIRST AMENDED AND RESTATED 1994 STOCK OPTION PLAN ---------------------------- (Full title of the plan) Kathleen M. Evans President AMCON Distributing Company 10228 "L" Street Omaha, Nebraska 68127 (402) 331-3727 - ------------------------------- ---------------------- (Name and address of agent (Telephone number, including for service) area code, of agent for service) Copies to: Steven P. Amen, Esq. Kutak Rock LLP 1650 Farnam Street Omaha, Nebraska 68102 (402) 346-6000 CALCULATION of REGISTRATION FEE - ------------------- ----------- --------- --------- ------------ Proposed Proposed Amount to Maximum Maximum be Offering Aggregate Amount of Title of Securities Registered Price per Offering Registration be registered (1) Share (2) Price (2) Fee - ------------------- ----------- --------- ----------- ------------ Common Stock, 250,000 $5.75 $1,437,500 $380.00 par value $0.01 per share (1) This Registration Statement shall also cover any additional shares of Registrant's common stock which become issuable under the First Amended and Restated 1994 Stock Option Plan, as amended from time to time, with respect to the securities registered hereunder by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant's receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of common stock. (2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of calculating the registration fee. The price per share is estimated to be $6.00 based on the average of the high $6.00 and low $6.00 sale prices for the Common Stock in the American Stock Exchange on September 5, 2000, as reported in the Wall Street Journal on September 6, 2000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, previously filed with the Securities and Exchange Commission by AMCON Distributing Company (the "Registrant") pursuant to Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference: (a) The Registrant's Registration Statement on Form S-8 (Registration No. 333-33405) filed August 8, 1997. (b) The Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1999. (c) All reports filed under Section 13(a) or 15(d) of the Securities Exchange Act of 1934 by the Registrant since September 30, 1999. (d) Description of the Registrant's Common Stock incorporated into Registrant's Registration Statement on Form 8-A filed with the Securities and Exchange Commission on December 30, 1999. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 8. Exhibits. The following is a complete list of exhibits filed as part of this Registration Statement. Exhibit numbers correspond to the numbers in the Exhibit Table of Item 601 of Regulation S-K. Exhibit Number Description - ------- ---------------- 4(a) Specimen of Certificate of the Registrant's Common Stock, par value $0.01 per share (incorporated by reference to Exhibit 4.1 of the Registrant's Registration Statement on Form S-1 (Registration No. 33-82848) filed by the Registrant on August 15, 1994) 4(b) The Registrant's First Amended and Restated 1994 Stock Option Plan (incorporated by reference to Exhibit 10.17 of the Registrant's Report on Form 10-Q filed on August 4, 2000) 5 Opinion of Kutak Rock LLP 23(a) Consent of Kutak Rock LLP (contained in its opinion filed as Exhibit 5) 23(b) Consent of PricewaterhouseCoopers LLP SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Omaha, State of Nebraska, on September 7, 2000. AMCON DISTRIBUTING COMPANY By /s/ Kathleen M. Evans -------------------------- Kathleen M. Evans, President SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated as of September 7, 2000. Signature Title -------------- --------- /s/ William F. Wright Chairman of the Board, Director - ------------------------------ William F. Wright /s/ Kathleen M. Evans President (Principal Executive - ------------------------------ Officer) Kathleen M. Evans /s/ Michael D. James Chief Financial Officer and - ----------------------------- Treasurer (Principal Financial Michael D. James and Accounting Officer) /s/ J. Tony Howard Director - ------------------------------ J. Tony Howard /s/ Jerry Fleming Director - ------------------------------ Jerry Fleming /s/ Allen D. Petersen Director - ------------------------------ Allen D. Petersen /s/ William R. Hoppner Director - ------------------------------ William R. Hoppner /s/ Timothy R. Pestotnik Director - ------------------------------ Timothy R. Pestotnik EXHIBIT INDEX Exhibit Number Description - ------- --------------- 4(a) Form of Certificate of the Registrant's Common Stock, par value $0.01 per share (incorporated by reference to Exhibit 4.1 of the Registrant's Registration Statement of Form S-1 (Registration No. 33-82848) filed of August 15, 1994) 4(b) The Registrant's 1994 Stock Option Plan (incorporated by reference to Exhibit 10.7 of the Registrant's Statement of Form S-1 Registration No.33-82848) filed on August 15, 1994) 5 Opinion of Kutak Rock. 23(a) Consent of Kutak Rock (contained in its opinion filed as Exhibit 5) 23(b) Consent of Coopers & Lybrand LLP EX-5 2 0002.txt OPINION OF KUTAK ROCK LLP EXHIBIT 5 OPINION OF KUTAK ROCK LLP September 6, 2000 Board of Directors AMCON Distributing Company 10228 L Street Omaha, Nebraska 68127 RE: AMCON Distributing Company Registration Statement on Form S-8 for up to 250,000 Additional Shares of Common Stock Issuable Under the First Amended and Restated 1994 Stock Option Plan Ladies and Gentlemen: We have acted as counsel to AMCON Distributing Company, a Delaware corporation (the "Company") in connection with the filing of a registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"). The Registration Statement relates to 250,000 shares of the Company's common stock, par value $.01 per share (the "Common Stock"), issuable pursuant to the exercise of options which may be granted to directors, officers, employees and advisors of the Company under the terms of the Company's First Amended and Restated 1994 Stock Option Plan, as they may be further amended from time to time (the "Plan"). This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K. In rendering this opinion, we have reviewed the Company's charter documents, the Plan and the corporate proceedings taken by the Company in connection with the establishment, amendment and administration of the Plan. Based on, and subject to the foregoing, it is our opinion that the shares of Common Stock, when issued and paid for in accordance with the Plan, will be legally issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission thereunder. This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plan or the Common Stock. Sincerely, /S/ KUTAK ROCK LLP KUTAK ROCK LLP EX-23.B 3 0003.txt CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23(b) CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated November 24, 1999 relating to the financial statements and financial statement schedule of AMCON Distributing Company, which appears in AMCON Distributing Company's Annual Report on Form 10-K for the year ended September 30, 1999. /S/PRICEWATERHOUSECOOPERS LLP PRICEWATERHOUSECOOPERS LLP Omaha, Nebraska September 6, 2000 -----END PRIVACY-ENHANCED MESSAGE-----