UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Act of 1934


Date of Report (Date of earliest event reported) February 2, 2023
 
 
AMCON DISTRIBUTING COMPANY
(Exact name of registrant as specified in its charter)
 

Delaware
  
1-15589
  
47-0702918
(State or other jurisdiction
  
(Commission
  
(IRS Employer
of incorporation)
  
File Number)
  
Identification No.)
         

7405 Irvington Road, Omaha NE 68122
(Address of principal executive offices) (Zip Code)
 
Registrant’s telephone number, including area code: 402-331-3727
 
Not Applicable
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFO 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, $0.01 par value
DIT
NYSE American

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company          ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐
Item 1.01                                        Entry into a Material Definitive Agreement.

On February 3, 2023, LOL Foods, Inc. ("LOL Foods"), a wholly owned subsidiary of AMCON Distributing Company (the "Company"), and HF Real Estate, LLC, a wholly owned subsidiary of the Company ("HF" and, together with LOL Foods, the "Borrowers"), entered into a Loan and Security Agreement (the "Loan Agreement") with BMO Harris Bank N.A. ("BMO"), as administrative agent, and the lenders party thereto. The Borrowers entered into the Loan Agreement in connection with the closing of the acquisition described in Item 2.01 below and used the proceeds thereunder to partially fund the acquisition.

The Loan Agreement provides for a $40 million senior secured asset-based revolving credit facility (the "ABL Revolver"), secured by substantially all of the Borrowers' assets, including accounts receivable, intangibles, inventory, deposit accounts and real property, excluding certain equipment. Outstanding amounts under the Loan Agreement bear interest at rates per annum equal to, at the Borrowers' election, SOFR or an alternate base rate, plus a core interest rate mark-up based on excess availability. The Loan Agreement will mature on February 3, 2026, at which time all amounts borrowed under the ABL Revolver will be payable in full unless otherwise refinanced.

The Borrowers may prepay amounts borrowed under the Loan Agreement at any time without penalty. The Loan Agreement also includes an unused commitment fee provision and is subject to customary covenants and a minimum fixed charge ratio.

Contemporaneously with entering into the Loan Agreement with BMO, LOL Foods also entered into an equipment loan financing arrangement with Bank of America Leasing and Capital, LLC ("BALC") pursuant to which BALC made a $7 million term loan to LOL Foods secured by various equipment (the "BALC Equipment Financing"). The BALC Equipment Financing has a fixed interest rate and is payable over a 60-month term. The proceeds of the BALC Equipment Financing were used to partially fund the acquisition described in Item 2.01 below.

In addition, on February 2, 2023, the Company and certain of its subsidiaries entered into an amendment (the "Amendment") to their existing revolving credit facility (the "Existing Facility") with Bank of America, N.A. and BMO. The Amendment amended the Existing Facility to, among other things, provide lender consent to the acquisition described under Item 2.01 below, including the use of proceeds thereunder to partially fund the acquisition.

The foregoing descriptions of the ABL Facility and the Amendment do not purport to be complete and are subject to, and qualified in their entirety by, reference to the full text of the ABL Facility and the Amendment, copies of which will be filed with the Securities and Exchange Commission as exhibits to the Company's Quarterly Report on Form 10-Q for the quarter ending March 31, 2023.

Item 2.01                                        Completion of Acquisition or Disposition of Assets.

On February 3, 2023, LOL Foods closed the transactions contemplated by the previously disclosed asset purchase agreement, dated December 7, 2022 (the "Asset Purchase Agreement"), by and among LOL Foods, Henry's Foods, Inc., The Eidsvold Family LLC, and the other parties thereto. Under the Asset Purchase Agreement, LOL Foods (or its affiliate, HF, with respect to certain real property) purchased substantially all of Henry’s Foods, Inc. wholesale distribution assets for approximately $55.0 million, inclusive of working capital adjustments as set forth in the Asset Purchase Agreement.  The Company or its subsidiaries funded the transaction with borrowings of $23.0 million under the ABL Facility, $7.0 million under the BALC Equipment Financing, and $25.0 million drawn and applied under the Company’s Existing Facility.

The foregoing description of the Asset Purchase Agreement does not purport to be complete and is subject to, and qualified in its entirety by, reference to the full text of the Asset Purchase Agreement, a copy of which was filed with the Securities and Exchange Commission as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2022.
Item 2.03.                                      Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Items 1.01 and 2.01 above is incorporated herein by reference as if fully set forth herein.

Item 7.01                                        Regulation FD Disclosure.

On February 6, 2023, the Company issued a press release announcing the closing of the transaction described under Item 2.01 above, a copy of which is furnished as Exhibit 99.1 hereto and incorporated herein by reference.

The information in this Item 7.01 (including Exhibit 99.1) shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section.  The information set forth in this Item 7.01 (including Exhibit 99.1) shall not be incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing.

Item 9.01                                        Financial Statements and Exhibits.

EXHIBIT NO. 
DESCRIPTION
   
99.1 Press release, dated February 6, 2023, issued by 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: February 6, 2023
/s/ Charles J. Schmaderer                                                   
 
 
 
Name:   Charles J. Schmaderer
 
 Title:     Vice President, Chief Financial Officer and Secretary

Exhibit 99.1

AMCON Distributing Company Completes Acquisition of Henry’s Foods, Inc.

OMAHA, Neb.--(BUSINESS WIRE)--February 6, 2023--AMCON Distributing Company (“AMCON” or “the Company”) (NYSE American: DIT), an Omaha, Nebraska-based Convenience Distributor is pleased to announce the closing of its previously announced acquisition of Henry’s Foods, Inc. (“Henry’s”), of Alexandria, Minnesota.

“We warmly welcome all of Henry’s leadership team, associates, customers and vendors to our extended AMCON Family,” said Christopher H. Atayan, AMCON’s Chairman and Chief Executive Officer. Mr. Atayan added, “Henry’s brings unrivaled strength and expertise in foodservice, which directly aligns with our long-term strategic plan.”

“Henry’s has developed an incredible breadth of products and service expertise in foodservice, which we look to integrate for the benefit of our customer base company-wide,” said Andrew C. Plummer, AMCON’s President and Chief Operating Officer. Mr. Plummer added, “We now operate in the marketplace as The AMCON Family of Brands, which includes AMCON Distributing Company, Henry’s and Team Sledd. Our customers have access, across a broad geography, to a comprehensive suite of services designed to enhance their profitability.”

“We share a commitment to premium customer service with AMCON and envision significant benefits to our customer base as we enthusiastically join the AMCON Family of Brands,” said Kellie Janssen, President of Henry’s. Ms. Janssen added, “The ability to project our services across an extended geographic footprint, has been a long-desired request and objective of our convenience store partners. In addition, Henry’s will have access to a cutting-edge technology and logistics platform designed to enhance our convenience partners’ profitability.”

AMCON is a leading convenience distributor of consumer products, including beverages, candy, tobacco, groceries, foodservice, frozen and refrigerated foods, automotive supplies and health and beauty care products servicing approximately 6,800 locations through distribution centers in Illinois, Missouri, Minnesota, Nebraska, North Dakota, South Dakota, Tennessee and West Virginia. AMCON, through its Healthy Edge Retail Group, also operates 18 health and natural product retail stores in the Midwest and Florida.

This news release contains forward-looking statements that are subject to risks and uncertainties and which reflect management's current beliefs and estimates of future economic circumstances, industry conditions, Company performance and financial results. A number of factors could affect the future results of the Company and could cause those results to differ materially from those expressed in the Company's forward-looking statements including, without limitation, availability of sufficient cash resources to conduct its business and meet its capital expenditures needs and the other factors described under Item 1.A. of the Company’s Annual Report on Form 10-K. Moreover, past financial performance should not be considered a reliable indicator of future performance. Accordingly, the Company claims the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 with respect to all such forward-looking statements.

Visit AMCON Distributing Company's web site at: www.amcon.com

Contacts

Christopher H. Atayan
AMCON Distributing Company
Ph 402-331-3727