As filed with the Securities and Exchange Commission on August 8, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under the Securities Act of 1933
AMCON DISTRIBUTING COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 47-0702918
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10228 "L" Street
Omaha, Nebraska 68127
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(Address of principal executive (Zip code)
offices)
AMCON DISTRIBUTING COMPANY
1994 STOCK OPTION PLAN
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(Full title of the plan)
Kathleen M. Evans
President
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
1650 Farnam Street
Omaha, Nebraska 68102
(402) 346-6000
CALCULATION of REGISTRATION FEE
- ------------------- ----------- --------- ----------- ------------
Proposed Proposed
Maximum Maximum
Amount to Offering Aggregate Amount of
Title of Securities be Price per Offering Registration
be registered Registered Share (1) Price (1) Fee
- ------------------- ----------- --------- ----------- ------------
Common Stock, 300,000 $1.75 $525,000.00 $159.09
par value $0.01
per share
(1) Estimated pursuant to Rule 457(h) and (c) solely for purposes of
calculating the registration fee. The price per share is estimated to be $1.75
based on the average of the high $1.75 and low $1.75 sale prices for the Common
Stock in the NASDAQ SmallCap Market on August 1, 1997, as reported in the Wall
Street Journal on August 4, 1997.
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 Annual Report on Form 10-K for the fiscal
year ended September 30 1996;
(b) the Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended December 31, 1996 and March 31, 1997; and
(c) the description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on May 8, 1995.
Each document filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
that indicates that all securities offered herein have been sold or that
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the respective date of filing such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as amended,
provides with regard to indemnification of directors and officers as follows:
"Section 145. Indemnification of Officers, Directors, Employees and
Agents; Insurance. (a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b)of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee,
or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees)."
Article IX of the Registrant's Amended and Restated Bylaws provides
with regard to indemnification of directors and officers as follows:
ARTICLE I.
Section 1. Each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee
benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action or omission in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), against all
expense, liability and loss (including, without limitation, attorneys' fees,
judgments, fines, excise taxes or penalties and amounts paid or to be paid in
settlement) incurred or suffered by such indemnitee in connection therewith,
and such indemnification shall continue with respect to an indemnitee who has
ceased to be a director or officer and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided, however, that,
except as provided in Section 2 of this Article IX with respect to proceedings
to enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding initiated by such indemnitee only if
such proceeding was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article IX shall be a contract
right and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, further, that, if
required by the General Corporation Law of the State of Delaware, an
advancement of expenses incurred by an indemnitee shall be made only upon
delivery to the Corporation of an undertaking (hereinafter, an "undertaking"),
by or on behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which there is
no further right to appeal (hereinafter, a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article IX or otherwise.
Section 2. If a claim under Section 1 of this Article IX is not paid
in full by the Corporation within 60 days after a written claim has been
received by the Corporation (except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be 20 days), the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, the indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by
the indemnitee to enforce a right to an advancement of expenses), it shall be a
defense that, and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final
adjudication that, the indemnitee has not met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee
is proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the General Corporation Law of the State of
Delaware nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met the applicable standard of conduct shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case
of such a suit brought by the indemnitee, be a defense to such suit. In any
suit brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled under this Article IX or otherwise
to be indemnified, or to such advancement of expenses, shall be on the
Corporation.
Section 3. The rights to indemnification and to the advancement of
expenses conferred in this Article IX shall not be exclusive of any other right
which any person may have or hereafter acquire under this Restated Certificate
of Incorporation or any bylaw, contract, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. The Corporation may maintain insurance, at its expense, to
protect itself and any indemnitee against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation Law of
the State of Delaware.
Section 5. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article IX or as otherwise permitted
under the General Corporation Law of the State of Delaware with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
Item 7. Exemption from Registration Claimed.
Not Applicable
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
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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 on Form S-1 (Registration No.
33-82848) filed on August 15, 1994)
4(b) The Registrant's 1994 Stock Option Plan (incorporated by reference
to Exhibit 10.7 of the Registrant's Registration Statement on 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
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a)(l) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933 (the "Act"), each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h) That, insofar as indemnification for liabilities arising
under the Act may be permitted to directors, officers and controlling persons
of the Registrant as described in Item 6 hereof or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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 August 8, 1997.
AMCON DISTRIBUTING COMPANY
By /s/ Kathleen M. Evans
--------------------------
Kathleen M. Evans, President
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 August 8, 1997.
Signature Title
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/s/ William F. Wright Chairman of the Board,
- ------------------------------ Chief Corporate Officer,
William F. Wright Director
/s/ Kathleen M. Evans President and Chief Executive
- ------------------------------ Officer (Principal Executive
Kathleen M. Evans Officer)
/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/ Allen D. Petersen Director
- ------------------------------
Allen D. Petersen
/s/ William R. Hoppner Director
- ------------------------------
William R. Hoppner
EXHIBIT INDEX
Exhibit
Number Description
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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
EXHIBIT 5
OPINION OF KUTAK ROCK
August 8, 1997
Board of Directors
AMCON Distributing Company
10228 L Street
Omaha, Nebraska 68127
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 300,000
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 and employees of the Company under the terms of the
Company's 1994 Stock Option Plan (the "Plan"). In rendering this opinion, we
have reviewed such documents and made such examinations of law as we deemed
necessary for purposes hereof. 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.
Sincerely,
KUTAK ROCK
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference into the Registration
Statement on Form S-8 of AMCON Distributing Company (the "Company") of our
report, dated December 1, 1996, on our audit of the balance sheets of the
Company as of September 30, 1996 and 1995, and the related statements of
income, shareholders equity and cash flows for each of the three years ended
September 30, 1996.
COOPERS & LYBRAND L.L.P.
Omaha, Nebraska
August 8, 1997
