-----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, V414fU3JpTeSiU7WG/h2a7iYSnY+42ojP/v9bENz7gHqlnMECA9RV+Xq2AMr3rcI PlXOdxROrnwuC3woJxx99w== 0000928465-99-000031.txt : 19990806 0000928465-99-000031.hdr.sgml : 19990806 ACCESSION NUMBER: 0000928465-99-000031 CONFORMED SUBMISSION TYPE: 10-Q/A PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990805 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMCON DISTRIBUTING CO CENTRAL INDEX KEY: 0000928465 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 470702918 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-Q/A SEC ACT: SEC FILE NUMBER: 000-24708 FILM NUMBER: 99678290 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 10-Q/A 1 AMCON DISTRIBUTING COMPANY FORM 10-Q, 12/31/98 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q/A /X/ Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended December 31, 1998 OR / / Transition report pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from to ------------------------------ COMMISSION FILE NUMBER 0-24708 ------------------------------ AMCON DISTRIBUTING COMPANY (Exact name of registrant as specified in its charter) DELAWARE (State or other jurisdiction of Incorporation) 10228 "L" Street Omaha, NE 68127 (Address of principal executive offices) (Zip Code) 47-0702918 (I.R.S. Employer Identification No.) (402) 331-3727 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ------- ------- The Registrant had 2,479,903 shares of its $.01 par value common stock outstanding as of January 29, 1999. Form 10-Q 1st Quarter INDEX ------- PAGE ---- PART II - OTHER INFORMATION Item 6. Exhibits and Reports on Form 8-K 3 PART II - OTHER INFORMATION Item 6. Exhibits and Reports on Form 8-K (a) EXHIBITS 2.1 Stock Purchase Agreement dated November 3, 1997, between the Company and FFH Holdings, Inc. (incorporated by reference to Exhibit 2.1 of the Company's Current Report on Form 8-K filed on November 25, 1997) 3.1 Restated Certificate of Incorporation of the Company, as amended March 19, 1998 (incorporated by reference to Exhibit 3.1 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 3.3 Bylaws of the Company (incorporated by reference to Exhibit 3.2 of the Company's Registration Statement on Form S-1 (Registration No. 33-82848) filed on August 15, 1994) 4.1 Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 of the Company's Registration Statement on Form S-1 (Registration No. 33-82848) filed on August 15, 1994) 10.1 Grant of Exclusive Manufacturing Rights, dated October 1, 1993, between the Company and Famous Value Brands, a division of Philip Morris Incorporated, including Private Label Manufacturing Agreement and Amended and Restated Trademark License Agreement (incorporated by reference to Exhibit 10.1 of Amendment No. 1 to the Company's Registration Statement on Form S-1 (Registration No. 33-82848) filed on November 8, 1994) 10.2 Amendment No. 1 to Grant of Exclusive Manufacturing Rights, dated October 1, 1998, between the Company and Famous Value Brands, a division of Philip Morris Incorporated, including Amendment No. 1 To Private Label Manufacturing Agreement and Amendment No. 1 to Amended and Restated Trademark License Agreement (incorporated by reference to Exhibit 10.2 of the Company's Annual Report on Form 10-K filed on December 24, 1998) 10.3 Loan Agreement, dated November 10, 1997, between the Company and LaSalle National Bank (incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 8-K filed on November 25, 1997) 10.4 Amended Loan Agreement, dated February 25, 1998, between the Company and LaSalle National Bank (incorporated by reference to Exhibit 10.5 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 10.5 Note, dated November 10, 1997, between the Company and LaSalle National Bank (incorporated by reference to Exhibit 10.2 of the Company's Current Report on Form 8-K filed on November 25, 1997) 10.6 First Allonge to Note, dated February 25, 1998, between the Company and LaSalle National Bank (incorporated by reference to Exhibit 10.7 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 10.7 Loan and Security Agreement, dated February 25, 1998, between the Company and LaSalle National Bank (incorporated by reference to Exhibit 10.8 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 10.8 Promissory Note, dated February 25, 1998, between the Company and LaSalle National Bank (incorporated by reference to Exhibit 10.9 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 10.9 Loan and Security Agreement, dated February 25, 1998, between Food For Health Co., Inc. and LaSalle National Bank (incorporated by reference to Exhibit 10.10 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 10.10 Promissory Note, dated February 25, 1998, between Food For Health Co., Inc. and LaSalle National Bank (incorporated by reference to Exhibit 10.11 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 10.11 First Amendment to Loan and Security Agreement, dated November 18, 1998, between Food For Health Co., Inc. and LaSalle National Bank 10.12 First Amendment and Allonge to Promissory Note, dated November 18, 1998, between Food For Health Co., Inc. and LaSalle National Bank 10.13 Unconditional Guarantee, dated February 25, 1998, between the Company and LaSalle National Bank (incorporated by reference to Exhibit 10.12 of the Company's Quarterly Report on Form 10-Q filed on May 11, 1998) 10.14 AMCON Distributing Company 1994 Stock Option Plan (incorporated by reference to Exhibit 10.7 of the Company's Registration Statement on Form S-1 (Registration No. 33-82848) filed on August 15, 1994) 10.15 AMCON Distributing Company Profit Sharing Plan (incorporated by reference to Exhibit 10.8 of Amendment No. 1 to the Company's Registration Statement on Form S-1 (Registration No. 33-82848) filed on November 8, 1994) 10.16 Employment Agreement, dated May 22, 1998, between the Company and William F. Wright (incorporated by reference to Exhibit 10.14 of the Company's Quarterly Report on Form 10-Q filed on August 6, 1998) 10.17 Employment Agreement, dated May 22, 1998, between the Company and Kathleen M. Evans (incorporated by reference to Exhibit 10.15 of the Company's Quarterly Report on Form 10-Q filed on August 6, 1998) 10.18 Employment Agreement, dated May 22, 1998, between the Food For Health Co., Inc. and Jerry Fleming (incorporated by reference to Exhibit 10.16 of the Company's Quarterly Report on Form 10-Q filed on August 6, 1998) 11.1 Statement re: computation of per share earnings (incorporated by reference to footnote 3 to the financial statements included in Item 1 of AMCON's Quarterly Report on Form 10-Q filed on February 8, 1999) 27.0 Financial Data Schedules (incorporated by reference to Exhibit 27.0 of AMCON's Quarterly Report on Form 10-Q filed on February 8, 1999) 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. AMCON DISTRIBUTING COMPANY (registrant) Date: August 5, 1999 Kathleen M. Evans ----------------- ------------------------- Kathleen M. Evans President & Principal Executive Officer Date: August 5, 1999 Michael D. James ----------------- ------------------------- Michael D. James Treasurer & CFO and Principal Financial and Accounting Officer EX-10.11 2 FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT November 18, 1998 Food For Health Co., Inc. 3655 West Washington Street Phoenix, Arizona 85009 Re: First Amendment Gentlemen: Food For Health Co., Inc., an Arizona corporation ("Borrower") and LaSalle National Bank, a national banking association ("Bank") have entered into that certain Loan and Security Agreement dated February 25, 1998 (the "Security Agreement"). From time to time thereafter, Borrower and Bank may have executed various amendments (each an "Amendment" and collectively the "Amendments") to the Security Agreement (the Security Agreement and the Amendments hereinafter are referred to, collectively, as the "Agreement"). Borrower and Bank now desire to further amend the Agreement as provided herein, subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. The Agreement hereby is amended as follows: (a) Paragraph 9 of the Agreement is deleted in its entirety and the following is substituted in its place: (9) TERMINATION: This Agreement shall be in effect from the date hereof until May 31, 2004 (the "Term"); provided, however, that Bank shall not make any Loans pursuant to subparagraphs (1)(a) and (1)(b) of Exhibit A of the Agreement after February 25, 2002 and shall review the Loans and the facility provided for in this Agreement annually; and, provided further, that the security interests and liens created under this Agreement and the Other Agreements shall survive until the payment in full of the Liabilities. At such time as Borrower has repaid all of the Liabilities and this Agreement has terminated, Borrower shall deliver to Bank a release, in form and substance satisfactory to Bank, of all obligations and liabilities of Bank and its officers, directors, employees, agents, parents, subsidiaries and affiliates to Borrower. At such time as Borrower has repaid all of the Liabilities and this Agreement has terminated and Borrower has delivered such release to Bank, Bank shall release its liens in the Collateral and deliver to Borrower such lien releases, terminations and reassignment as Borrower shall reasonably request and deliver any Collateral then in its possession to Borrower. (b) Subparagraph of 11(o) of the Agreement is deleted in its entirety and the following is substituted in its place: (o) TANGIBLE NET WORTH: Borrower shall, at all times from the date hereof through September 30, 1999 and thereafter on the first day of each fiscal quarter, maintain a Tangible Net Worth of not less than the Minimum Tangible Net Worth, as hereinafter defined. From the date hereof through September 30, 1999 "Minimum Tangible Net Worth" shall equal Two Hundred Thousand and No/100 Dollars ($200,000.00). On each of October 1, 1999, January 1, 2000, April 1, 2000, July 1, 2000 and on the first day of each fiscal quarter thereafter, "Minimum Tangible Net Worth" shall be equal to $200,000.00 plus the greater of (i) One Hundred Thousand and No/100 Dollars ($100,000.00), and (ii) fifty percent (50%) of Borrower's net profits during such preceding fiscal year. "Tangible Net Worth" shall mean, as of any time the same is to be determined, an amount equal to shareholder's equity in Borrower reflected on the most recent balance sheet of Borrower prepared in accordance with generally accepted accounting principles consistently applied, less the aggregate book value of all assets which would be classified as intangible assets under generally accepted accounting principles, including, without limitation, goodwill, patents, trademarks, trade names, copyrights, franchises and deferred charges (including, without limitation, unamortized debt discount and expense, organization and cost and deferred research and development expense) and similar assets. (c) Paragraph (1) of Exhibit A of the Agreement is deleted in its entirety and the following is substituted in its place: (1) LOAN LIMIT: Subject to the terms and conditions of the Agreement and the Other Agreements, Bank shall, absent the occurrence of an Event of Default, advance an amount up to the sum of the following sublimits (the "Loan Limit"): (a) Up to eighty-five percent (85%) of the face amount (less maximum discounts, credits and allowances which may be taken by or granted to Account Debtors in connection therewith) of Borrower's Eligible Accounts; plus (b) Up to seventy percent (70%) of the lower of the cost or market value of Borrower's Eligible Inventory; plus (c) Subject to Paragraph (1).(1) of this Exhibit A, up to One Million Eighty Thousand and No /100 Dollars ($1,080,000.00) as a Special Accommodation; minus (d) Such reserves as Bank elects, in its sole discretion, to establish from time to time; provided, that (i) the aggregate amount of advances made pursuant to subparagraphs (a) and (b) above shall in no event exceed Six Million Five Hundred Eighty Thousand and No/100 Dollars ($6,580,000.00). (d) Paragraph (1) of Exhibit A of the Agreement is amended to add the following provision: (1).(1) AVAILABILITY REDUCTIONS: The availability described in subparagraph (1)(c) of this Exhibit A shall be automatically curtailed by Eighteen Thousand and No/100 Dollars ($18,000.00) per month, commencing May 31, 1999, and continuing on the corresponding day of each month thereafter (or if there is no corresponding day, on the last Business Day of such month) until the earliest to occur of (i) the date on which said availability shall be reduced in full; and (ii) the date upon which this Agreement terminates pursuant to the provisions of Paragraph 9 of the Agreement, on which date said availability shall be reduced in full. (e) Subparagraph (3)(a) of Exhibit A of the Agreement is deleted in its entirety and the following is substituted in its place: (a) (i) All loans made pursuant to subparagraphs (1)(a) and (1)(b) of this Exhibit A shall bear interest at the rate of one-half of one percent (1/2 of 1%) per annum below Bank's publicly announced prime rate (which is not intended to be Bank's lowest or most favorable rate in effect at any time) (the "Prime Rate") in effect from time to time, and (ii) all loans made pursuant to subparagraph (1)(c) of this Exhibit A shall bear interest at the rate of one-fourth of one percent (1/4th of 1%) per annum below Bank's Prime Rate in effect from time to time, all payable on the last Business Day of each month in arrears. Said rates of interest shall increase or decrease by an amount equal to each increase or decrease in the Prime Rate effective on the effective date of each such change in the Prime Rate. (f) Paragraph (6) of Exhibit A of the Agreement is deleted in its entirety and the following is substituted in its place: (6) YEAR 2000: Borrower and its Subsidiaries have reviewed the areas within their business and operations which could be adversely affected by, and have developed or are developing a program to address on a timely basis, the "Year 2000 Problem" (that is, the risk that computer applications used by Borrower and its Subsidiaries may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date on or after December 31, 1999), and have made related appropriate inquiry of material suppliers and vendors. Based on such review and program, Borrower believes that the "Year 2000 Problem" will not have a material adverse effect on its business, assets or condition, financial or otherwise. From time to time, at the request of Bank, Borrower[, Parent] and its Subsidiaries shall provide to Bank such updated information or documentation as is requested regarding the status of their efforts to address the "Year 2000 Problem." (g) Paragraph (10) of Exhibit A of the Agreement is deleted in its entirety and the following is substituted in its place: (10) CONSENT TO STOCK ACQUISITION: Borrower has requested that Bank consent to a purchase of all of the outstanding common stock of U.S. Health Distributors, Inc., a Florida corporation ("U.S. Health"), pursuant to the terms and conditions set forth in the following documents in the form of Exhibit C attached hereto and made a part hereof (the "Acquisition Documents"):(i) Stock Purchase Agreement dated as of November 6, 1998 executed by the Shareholders of U.S. Health and by Borrower; Consents/Resolutions to the Stock Purchase Agreement executed by the Board of Directors and Shareholders of Borrower and of U.S. Health, each dated November 18, 1998; and Closing Statement; provided, however, the purchase price of the stock purchased shall not exceed One Million Two Hundred Sixty Thousand and No/100 Dollars ($1,260,000.00) in the aggregate. In reliance upon the foregoing and the terms of the documents set forth above and notwithstanding anything contained in subparagraph 11(m) of the Agreement to the contrary, Bank hereby grants its consent to the acquisition of all of the common stock of U.S. Health, subject to the receipt by Bank of the following documents, which shall be in form and substance satisfactory to Bank: (a) the executed Acquisition Documents and any related agreements; (b) a Solvency Certificate executed by Borrower; (c) Attorney's Opinion Letters upon which Bank may rely; (d) any other certificates, agreements or documents reasonably requested by Bank; and (e) an Assignment of Undertakings. (h) Subparagraph (14)(b) of Exhibit A of the Agreement is deleted in its entirety and the following is substituted in its place: (b) Guaranties: Borrower has caused to be executed in favor of Bank and delivered to Bank by AMCON a guaranty of the Liabilities of Borrower to Bank. Borrower shall cause to be executed in favor of Bank and delivered to Bank by U.S. Health a guaranty of the Liabilities of Borrower to Bank. 2. This Amendment shall not become effective until fully executed by all parties hereto. 3. Except as expressly amended hereby and by any other supplemental documents or instruments executed by either party hereto in order to effectuate the transactions contemplated hereby, the Agreement and Exhibit A thereto hereby are ratified and confirmed by the parties hereto and remain in full force and effect in accordance with the terms thereof. LASALLE NATIONAL BANK, a national banking association By: Michael W. Kiss -------------------------- Title: Sr. Vice President ------------------ Accepted and agreed to this 18th day of November, 1998. FOOD FOR HEALTH CO., INC. By: Jerry Fleming ------------------------ Title: President ---------------- Consented and agreed to by the following guarantor(s) of the obligations of Food For Health Co., Inc. to LaSalle National Bank. AMCON Distributing Company, a Delaware corporation By: William F. Wright ------------------------- Title: Chairman ------------------- EX-10.12 3 FIRST AMENDMENT AND ALLONGE TO PROMISSORY NOTE FIRST AMENDMENT AND ALLONGE TO THAT CERTAIN NOTE DATED FEBRUARY 25, 1998 EXECUTED BY FOOD FOR HEALTH CO., INC. ("UNDERSIGNED") IN FAVOR OF LASALLE NATIONAL BANK ("BANK") IN THE ORIGINAL PRINCIPAL AMOUNT OF $5,000,000.00 ("NOTE") This First Amendment and Allonge to the Note is made and accepted by the Undersigned as of this 18th day of November, 1998. All capitalized terms used herein but not otherwise defined will have the same meanings herein as in the Note. Bank and the Undersigned have agreed to amend the Note as herein provided. Accordingly the Note is hereby amended as follows: 1. The face amount of the Note is hereby amended to read Six Million Five Hundred Eighty Thousand and No/100 Dollars ($6,580,000.00) from Five Million and No/100 Dollars ($5,000,000.00). Except as specifically amended hereby, the Note shall remain in full force and effect as issued. An executed original of this First Amendment and Allonge shall be attached to the original Note and will constitute an integral part thereof. FOOD FOR HEALTH CO., INC. By: Jerry Fleming ------------------------- Title: President ---------------------- Accepted and Agreed to this 18th day of November, 1998. LASALLE NATIONAL BANK By: Michael W. Kiss ------------------- Title: Sr. Vice President ------------------ -----END PRIVACY-ENHANCED MESSAGE-----