SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 12b-25
NOTIFICATION OF LATE FILING
SEC File Number 1-15589
-------
(CHECK ONE)
[X] Form 10-K and Form 10-KSB
[ ] Form 20-F
[ ] Form 11-K
[ ] Form 10-Q and Form 10-QSB
[ ] Form N-SAR
For Period Ended: September 30, 2005
[ ] Transition Report on Form 10-K
[ ] Transition Report on Form 20-F
[ ] Transition Report on Form 11-K
[ ] Transition Report on Form 10-Q
[ ] Transition Report on Form N-SAR
For the Transition Period Ended:
---------------------------------------------------------------------------
Nothing in this form shall be construed to imply that the Commission
has verified any information contained herein.
---------------------------------------------------------------------------
If the notification relates to a portion of the filing checked above,
identify the item(s) to which the notification relates:
---------------------------------------------------------------------------
PART I - REGISTRANT INFORMATION
---------------------------------------------------------------------------
AMCON DISTRIBUTING COMPANY
Full Name of Registrant
7405 Irvington Rd.
Address of Principal Executive Offices (Street and Number)
OMAHA, NEBRASKA 68122
City, State and Zip Code
1
---------------------------------------------------------------------------
PART II - RULES 12b-25(b) AND (c)
---------------------------------------------------------------------------
If the subject report could not be filed without unreasonable effort or
expense and the registrant seeks relief pursuant to Rule 12b-25(b), the
following should be completed. (Check box if appropriate).
[X] (a) The reasons described in reasonable detail in Part III of this
form could not be eliminated without unreasonable effort or
expense;
[X] (b) The subject annual report, semi-annual report, transition report
on Form 10-K, Form 20-F, 11-K or Form N-SAR, or portion thereof
will be filed on or before the fifteenth calendar day following
the prescribed due date; or the subject quarterly report or
transition report on Form 10-Q, or portion thereof will be filed
on or before the fifth calendar day following the prescribed due
date; and
(c) The accountant's statement or other exhibit required by Rule
12b-25(c) has been attached, if applicable.
---------------------------------------------------------------------------
PART III - NARRATIVE
---------------------------------------------------------------------------
State below in reasonable detail the reasons why Forms 10-K,
20-F, 11-K, 10-Q, N-SAR, or the transition report or portion
thereof, could not be filed within the prescribed time period.
Pursuant to Rule 12b-25 under the Securities Exchange Act of 1934, as
amended, AMCON Distributing Company ("AMCON") is unable to file its annual
report on Form 10-K for the fiscal year ended September 30, 2005 without
unreasonable effort or expense.
AMCON announced on October 21, 2005 that it had entered into a letter of
intent ("LOI") with William F. Wright, its Chairman of the Board, Chief
Executive Officer and largest stockholder, for the proposed acquisition of
80% of the outstanding common stock of The Healthy Edge, Inc. ("THE") which
is currently a direct wholly-owned subsidiary of AMCON. The LOI contemplated
that THE would own, at the time of closing of the proposed acquisition, 100%
of the equity of Health Food Associates, Inc. (d/b/a Akin's Natural Food
Market), Chamberlin's Natural Foods, Inc. (d/b/a Chamberlin's Market and
Cafe), and Hawaiian Natural Water Company, Inc. ("HNWC"), as well as 85% of
the equity of Trinity Springs, Inc. ("TSI"), each of which are currently
direct or indirect subsidiaries of AMCON.
The LOI also contemplated that the closing for the purchase of THE stock
would occur by December 12, 2005. This timing generally coincided with an
amendment to the loan agreement for the Company's revolving credit facility
with its bank lenders requiring the bottled water businesses of HNWC and TSI
to be sold or liquidated by December 10, 2005. The bank lenders recently
extended this date to December 31, 2005.
2
As announced on December 21, 2005, AMCON continues to negotiate the terms of
the potential acquisition with Mr. Wright, who is one of the proposed
investors in a limited liability company formed to effect such acquisition.
These negotiations have been complicated by, among other things, a ruling by
the District Court of the Fifth Judicial District of the State of Idaho on
December 15, 2005 which granted the plaintiff's motion for partial summary
judgment declaring that the stockholders of Trinity Springs Ltd. (which
subsequently changed its name to Crystal Paradise Holdings, Inc.) did not
validly approve the sale of its business and assets to TSI, AMCON's
subsidiary, because the vote of certain shares issued as a dividend should
not have been counted. The District Court has not yet ruled on whether money
damages or rescission of the sale transaction and related matters will be
ordered as the relief in this action. AMCON and TSI have filed a motion
seeking an order requiring the plaintiffs to show the details, terms and
conditions of their proposed rescission remedy and the plaintiffs' ability,
if any, to effectuate such a remedy. A rescission remedy would require the
plaintiffs to restore the parties to their position prior to the asset
transaction, including, without limitation, the return of the consideration
paid by TSI in the transaction. In response to AMCON and TSI's motion, the
District Court has ruled that by January 6, 2006, Plaintiffs are required to
present their rescission plan, as it relates to the restoration of the
consideration paid by AMCON to Crystal Paradise Holdings, Inc. in the asset
transaction. Plaintiffs are not required to present their entire plan for
rescission, but must produce any information they have relating to their
rescission plan."
AMCON's bank lenders are in the process of amending AMCON's revolving credit
agreement to exclude THE and its subsidiaries. However, the uncertainty
surrounding the ownership of TSI's business assets have prevented the bank
lenders from completing the amendments. The Company believes these
amendments are necessary in order to properly disclose its liquidity and
capital position and, therefore, will not be able to file its Annual Report
on Form 10-K until the TSI and bank matters become more clear.
---------------------------------------------------------------------------
PART IV - OTHER INFORMATION
---------------------------------------------------------------------------
(1) Name and telephone number of person to contact in regard to
this notification
MICHAEL D. JAMES (402) 331-3727
---------------- ----- --------
(Name) (Area Code) (Telephone Number)
(2) Have all other periodic reports required under Section 13 or
15(d) of the Securities Exchange Act of 1934 or Section 30 of
the Investment Company Act of 1940 during the preceding 12
months or for such shorter period that the registrant was
required to file such report(s) been filed? If the answer is
no, identify report(s).
[X] Yes [ ] No
3
(3) Is it anticipated that any significant changes in results of
operations from the corresponding period for the last fiscal
year will be reflected by the earnings statements to be
included in the subject report or portion thereof?
[X] Yes [ ] No
If so attach an explanation of the anticipated change, both
narratively and quantitatively, and if appropriate, state the
reasons why a reasonable estimate of the results cannot be
made.
AMCON incurred net losses in each of its first three quarters of fiscal 2005
due to losses incurred in its retail and beverage segments and discontinued
operations. AMCON will report a net loss for its fourth quarter and fiscal
year ended September 30, 2005, but it is unable to determine, or reasonably
estimate, the amount of that loss until the transactions discussed above are
completed, the final impairment charge of intangible assets is determined and
liquidity and capital resources can be fully assessed. AMCON reported a net
loss of $4,188,021 for its 2004 fiscal year.
AMCON DISTRIBUTING COMPANY
--------------------------
(Name of Registrant as Specified in Charter)
has caused this notification to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: December 30, 2005 By: /s/ Michael D. James
--------------------
Michael D. James
Secretary, Treasurer and Chief
Financial Officer
4