UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Act of 1934
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| Item 3.03 | Material Modification to Rights of Security Holders. |
The information set forth in Item 5.03 below is incorporated by reference into this Item 3.03.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
As described in Item 5.07 below, AMCON Distributing Company (the “Company”) held its annual meeting of stockholders (the “Annual Meeting”) on Thursday, January 25, 2024, at which meeting the Company's stockholders approved amendments to the Company's Certificate of Incorporation (the "Prior Certificate of Incorporation") to i) exculpate officers of the Company from personal liability for certain breaches of the duty of care (the "Exculpation Amendment"), and ii) provide for courts in Delaware to be the exclusive forum for certain legal actions and for federal courts of the United States of America to be the exclusive forum for certain legal actions (the "Exclusive Forum Amendment" and, together with the Exculpation Amendment, the "Amendments").
On January 25, 2024, the Company filed a Restated Certificate of Incorporation (the "Restated Certificate of Incorporation") with the Secretary of State of the State of Delaware to reflect the Amendments to the Prior Certificate of Incorporation (and consolidate prior amendments), which became effective upon filing.
The foregoing descriptions are qualified in their entirety by reference to the full text of the Restated Certificate of Incorporation, which is attached hereto as Exhibit 3.1 and is incorporated herein by reference. A more detailed description of the material changes in rights of the Company's stockholders as a result of the Exculpation Amendment and the Exclusive Forum Amendment was included in Proposal Nos. 3 and 4, respectively, of the Company's definitive proxy statement filed with the Securities and Exchange Commission on December 12, 2023, which description is incorporated in its entirety herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
The Company held its Annual Meeting on Thursday, January 25, 2024, at which Annual Meeting the Company’s stockholders voted upon the following matters:
| · | The election of six members of the Company’s board of directors; |
| · | The ratification and approval of the selection of RSM US LLP as the Company’s independent registered public accounting firm for the Company’s 2024 fiscal year; |
| · | The approval of the Exculpation Amendment; and |
| · | The approval of the Exclusive Forum Amendment. |
Election of Directors
At the Annual Meeting, Christopher H. Atayan, Jeremy W. Hobbs, John R. Loyack, Stanley Mayer, Timothy R. Pestotnik and Andrew C. Plummer each was elected as a director. The following is a summary of the votes cast at the Annual Meeting with respect to the election of directors:
| Name | Votes in Favor | Votes Withheld | |||
| Christopher H. Atayan | 561,170 | 2,422 | |||
| Jeremy W. Hobbs | 561,448 | 2,144 | |||
| John R. Loyack | 553,238 | 10,354 | |||
| Stanley Mayer | 560,817 | 2,775 | |||
| Timothy R. Pestotnik | 510,193 | 53,399 | |||
| Andrew C. Plummer | 560,799 | 2,793 |
There were 31,869 broker non-votes with respect to this matter.
Ratification and Approval of Independent Registered Public Accounting Firm
At the Annual Meeting, the selection of RSM US LLP as the Company's independent registered public accounting firm for the Company's 2024 fiscal year was ratified and approved. The following is a summary of the votes cast at the Annual Meeting with respect to this matter:
| Votes in Favor | Votes Against | Votes Abstaining | ||||
| Ratification and approval of the selection of RSM US LLP | 595,216 | 201 | 44 |
There were no broker non-votes with respect to this matter.
Approval of the Exculpation Amendment
At the Annual Meeting, the Exculpation Amendment was approved. The following is a summary of the votes cast at the Annual Meeting with respect to this matter:
| Votes in Favor |
Votes Against |
Votes Abstaining | ||||
| Approval of the Exculpation Amendment | 516,554 | 46,973 | 65 |
There were 31,869 broker non-votes with respect to this matter.
Approval of the Exclusive Forum Amendment
At the Annual Meeting, the Exclusive Forum Amendment was approved. The following is a summary of the votes cast at the Annual Meeting with respect to this matter:
| Votes in Favor |
Votes Against |
Votes Abstaining | ||||
| Approval of the Exclusive Forum Amendment | 559,608 | 3,939 | 45 |
There were 31,869 broker non-votes with respect to this matter.
| Item 9.01 | Financial Statements and Exhibits. |
| EXHIBIT NO. | DESCRIPTION | |
| 3.1 | Restated Certificate of Incorporation of AMCON Distributing Company. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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: January 25, 2024 | /s/ Charles J. Schmaderer |
| Name: | Charles J. Schmaderer | |
| Title: | Vice President, Chief Financial Officer and Secretary |