UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 2)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE FISCAL YEAR ENDED September 30, 2006
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/ / TRANSITION REPORT PURSUANT TO SECTION 13 OF 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM to
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Commission File Number 1-15589
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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 (I.R.S. Employer
of incorporation or organization) Identification No.)
7405 Irvington Road, Omaha NE 68122
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (402) 331-3727
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Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
None None
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Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 Par Value
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(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act. Yes No X
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Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Act. Yes No X
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Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 of 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of Registrants' knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Annual Report on
Form 10-K or any other amendment to this Form 10-K. / /
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, or a non-accelerated filer. See definition of
"accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange
Act. (Check one):
Large accelerated filer Accelerated filer Non-accelerated filer X
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Indicate by check mark whether the registrant is a shell company (as defined
in Rule 12b-2 of the Exchange Act). Yes No X
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The aggregate market value of equity securities held by non-affiliates of the
Registrant on March 31, 2006 was approximately $3.7 million.
As of December 25, 2006 there were 527,062 shares of common stock
outstanding.
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EXPLANATORY NOTE
AMCON Distributing Company (the "Company") is filing this amendment No. 2 on
Form 10-K/A (the "Amendment") in response to a comment letter received from
the Staff of the Securities and Exchange Commissions (the "Staff"). This
Amendment amends and replaces in its entirety the Company's disclosure in
Item 9A of our Annual Report on Form 10-K for the year ended September 30,
2006, filed on December 29, 2006 (the "Report").
Except to the extent modified, this Amendment is as of the original filing
date of our Report and has not been updated to reflect events occurring
subsequent to the original filing date other than those required to reflect
the effects of the comment letter received from the Staff. This Amendment
should be read in conjunction with our filings made with the Securities and
Exchange Commission subsequent to the filing of the Report, including any
amendments to those filings.
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ITEM 9A. CONTROLS AND PROCEDURES
The Company maintains disclosure controls and procedures (as defined in Rules
13a-15(f) and 15d-15(e) under the Exchange Act of 1934, as amended (the
"Exchange Act")), that are designed to ensure that information required to be
disclosed in the Company's reports filed or furnished under the Exchange Act
is recorded, processed, summarized and reported within the time periods
specified in the Exchange Act and the related rules and forms of the SEC.
Such information is accumulated and communicated to the Company's management,
including its Chief Executive Officer ("CEO") and Chief Financial Officer
("CFO"), as appropriate, to allow timely decisions regarding required
disclosures. Any controls and procedures, no matter how well designed and
operated, can provide only reasonable, not absolute, assurance of achieving
the desired control objectives.
The Company carried out the evaluation required by Rule 13a-15(b) under the
Securities Exchange Act of 1934 (the "Exchange Act"), under the supervision
and with the participation of our management, including the Chief Executive
Officer and Chief Financial Officer, of the effectiveness of our disclosure
controls and procedures. Based upon that evaluation, the Chief Executive
Officer and the Chief Financial Officer concluded that, as of the end of the
period covered by this report, the design and operation of the Company's
disclosure controls and procedures were effective to provide reasonable
assurance that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified by the
SEC's rules and forms, and that such information is accumulated and
communicated to management, including the Chief Executive Officer and Chief
Financial Officer, as appropriate, to allow timely decisions regarding
required disclosure.
As previously disclosed, in connection with the Company's fiscal year 2005
audit, and the Company's evaluation of disclosure and controls procedures,
management determined that material weaknesses existed at September 30, 2005
related to incorrect accounting entries made at the Company's HNWC
subsidiary, and interest expense allocations made by the Company to one of
its wholly-owned subsidiaries (The Beverage Group, Inc.) which was a
component of discontinued operations. During fiscal 2006, the Company
implemented a plan which resulted in the successful remediation and
elimination of our material weaknesses in internal control over financial
reporting as disclosed in Form 10-K for the fiscal year ended September 30,
2005.
Except for the changes related to the remediated material weaknesses
described above, there has been no change during the Company's fiscal year
ended September 30, 2006, in the Company's internal controls over financial
reporting (as such term is defined in Rules 13(a)-15(f) under the Exchange
Act) that has materially affected, or is reasonably likely to materially
affect, the Company's internal control over financial reporting.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities Act of
1934, the Registrant, AMCON Distributing Company, a Delaware corporation, has
duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Omaha, State of Nebraska, on the
23rd day of May 2007.
AMCON DISTRIBUTING COMPANY
(registrant)
By: /s/ Christopher H. Atayan
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Christopher H. Atayan,
Chief Executive Officer
and Vice Chairman
Pursuant to the requirements of the Securities Act of 1934, this report has
been signed below by the following persons in the capacities indicated on the
23rd day of May 2007.
Signature Title
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/s/ William F. Wright Chairman of the Board and Director
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William F. Wright
/s/ Christopher H. Atayan Chief Executive Officer
------------------------ and Vice Chairman
Christopher H. Atayan
/s/ Kathleen M. Evans President and Director
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Kathleen M. Evans
/s/ Andrew C. Plummer Vice President and Chief Financial
------------------------ Officer (Principal Financial and
Andrew C. Plummer Accounting Officer)
/s/ Allen D. Petersen Director
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Allen D. Petersen
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/s/ Jeremy W. Hobbs Director
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Jeremy W. Hobbs
/s/ John R. Loyack Director
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John R. Loyack
/s/ Raymond F. Bentele Director
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Raymond F. Bentele
/s/ Stanley Mayer Director
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Stanley Mayer
/s/ Timothy R. Pestotnik Director
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Timothy R. Pestotnik
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