SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K/A
Amendment No. 1
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 30, 1995
DAIRY MART CONVENIENCE STORES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-12497 04-2497894
(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification
Number)
One Vision Drive, Enfield, Connecticut 06082
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (203) 741-4444
N/A
(Former name or former address, if changed since last report.)
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The purpose of this Form 8-K/A Amendment No. 1 is to amend the
previously filed Form 8-K of Dairy Mart Convenience Stores, Inc.
filed with the Securities and Exchange Commission on October 31,
1995 by amending Items 5 and 7 thereof. Such Items are set forth in
full in this Form 8-K/A Amendment No. 1.
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Item 5. Other Events
On October 30, 1995, Charles Nirenberg, a director and
shareholder of the Company, and two of his affiliates, FCN
Properties Corporation ("FCN") and The Nirenberg Foundation, Inc.
(the "Foundation"), entered into an Agreement (the "Agreement")
with the Company and Mr. Robert B. Stein, Jr., a director and the
President and Chief Executive Officer of the Company, and Mr.
Gregory G. Landry, a director and the Executive Vice President and
Chief Financial Officer of the Company, for purposes of settling
the dispute between Mr. Nirenberg and the Company's management with
respect to control of the Company.
Mr. Stein, Mr. Landry, Mr. Nirenberg and Mitchell J.
Kupperman, a director and the Executive Vice President - Human
Resources of the Company, are partners of (i) New DM Management
Associates I ("DM Management I"), and (ii) New DM Management
Associates II ("DM Management II"). Frank Colaccino is also a
partner of DM Management II. DM Management I and DM Management II
are the general partners of DM Associates Limited Partnership ("DM
Associates"), a limited partnership that owns a majority of the
outstanding shares of the Class B Common Stock of the Company. Mr.
Nirenberg and Mr. Kupperman have the right, by virtue of holding a
majority of the partnership interests of DM Management I, to vote
50% of the total voting power of the Common Stock of the Company
and a majority of the voting power of the Class B Common Stock,
pursuant to the partnership agreements of DM Associates and DM
Management I.
Mr. Nirenberg has nominated five directors to be elected at
the Company's annual meeting of the stockholders, originally
scheduled to be held on October 31, 1995. Mr. Nirenberg, together
with Mr. Kupperman, would have been able, by virtue of holding a
majority of the partnership interests of DM Management I, to elect
his nominees at the Company's annual meeting. Mr. Nirenberg's
nominees, if elected, would have constituted a majority of the
Company's seven member Board of Directors.
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 a 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
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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 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 light of the 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 seek 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"),
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 temporarily elected to the Board. The Agreement requires
that Messrs. Nirenberg, Kupperman, O'Brien, Jacobson, Landry and
Stein tender 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,
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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 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.
The Company does not know at this time whether the conditions
set forth in the Agreement will be satisfied so that the
transactions contemplated by the Agreement can be consummated.
Item 7. Exhibits
The following exhibits are filed as part of this report on
Form 8-K pursuant to Item 601 of Regulation S-K:
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Exhibit 10.1 - Agreement dated as of October 30, 1995
among Dairy Mart Convenience Stores, Inc., Charles
Nirenberg, FCN Properties Corporation and The Nirenberg
Family Charitable Foundation, Inc.
Exhibit 10.2 - Letter dated October 30, 1995 to Mitchell
J. Kupperman from Dairy Mart Convenience Stores, Inc.,
Robert B. Stein, Jr. and Gregory G. Landry.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, Dairy Mart Convenience Stores, Inc. has duly caused this
report to be signed on its behalf by the undersigned thereunto duly
authorized.
DAIRY MART CONVENIENCE
Date: November 20, 1995 STORES, INC.
By: /s/ Gregory G. Landry
---------------------------
Gregory G. Landry
Its Executive Vice
President and Chief
Financial Officer
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