<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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:
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY PERCENT OF
OWNED CLASS (1)
NAME OF REPORTING PERSON ------------ --------------
- ------------------------
<S> <C> <C>
FCN Properties Corporation 1,220,000 43.8%(2)
Charles Nirenberg 1,531,349 55.0%(3)
- -------------------
</TABLE>
(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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT A
<PAGE>
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
