SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 12b-25
NOTIFICATION OF LATE FILING
SEC File Number 0-24708
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(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 24, 2004
[ ] 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:
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Nothing in this form shall be construed to imply that the Commission
has verified any information contained herein.
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If the notification relates to a portion of the filing checked above,
identify the item(s) to which the notification relates:
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PART I - REGISTRANT INFORMATION
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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
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PART II - RULES 12b-25(b) AND (c)
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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).
(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.
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PART III - NARRATIVE
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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 for the fiscal year ended September 24, 2004 without unreasonable
effort or expense. Due to the events summarized below, AMCON is not able to
complete its financial statements, Management's Discussion and Analysis or
selected financial data, and Deloitte & Touche LLP ("Deloitte"), AMCON's
independent auditors, are currently unable to complete their audit of AMCON's
financial statements as of and for the fiscal year ended September 24, 2004.
On June 17, 2004, AMCON acquired substantially all of the assets of Trinity
Springs Ltd. ("TSL"). TSL, headquartered in Sun Valley/Ketchum, Idaho,
bottles and sells geothermal bottled water and a natural mineral supplement.
The source of this water is located at the base of Trinity Mountains in
Paradise, Idaho.
AMCON organized a new subsidiary, which has changed its name to Trinity
Springs, Inc. ("Trinity Springs"), to acquire TSL's assets. Immediately upon
consummation of this transaction, TSL changed its name to Crystal Paradise
Holdings, Inc. ("Crystal Paradise"). The acquisition consideration paid by
AMCON consisted of, among other things, a royalty equal to the greater of 4%
of net sales (as defined in the asset purchase agreement) of Trinity Springs
or $.03 per liter of water extracted for commercial purposes from the source
in Paradise, Idaho which is guaranteed by AMCON up to a maximum of $5
million, subject to a floor of $206,400 for the first year and $288,000
annually thereafter. TSL retained the right to receive any water royalty
payment for the first five years in shares of AMCON common stock up to a
maximum of 41,666 shares. The water royalty can be cancelled after ten years
have elapsed following the closing of the sale of assets of TSL, or if the
business of TSL is sold to an unaffiliated third party, in which case TSL
would be entitled to receive the appraised fair market value of the water
royalty but not less than $5 million.
In order to conduct an impairment analysis of the intangible assets acquired
in the Trinity Springs transaction, as well as, the intangible assets of the
other AMCON subsidiaries, AMCON has engaged a valuation firm to assist with
the analysis and expects to receive the valuation reports in the near future.
See Exhibit A for an explanation of why the valuation reports cannot be
completed by December 23, 2004, the date that AMCON's Annual Report on Form
10-K for its 2004 fiscal year is due.
Deloitte has indicated that they are unable to complete their audit of
AMCON's financial statements until they have completed their audit procedures
with respect to the valuation reports from the independent valuation firm.
AMCON expects Deloitte to issue its audit report when such procedures have
been concluded, thus allowing AMCON to file its Form 10-K and Annual Report
shortly thereafter.
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PART IV - OTHER INFORMATION
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(1) Name and telephone number of person to contact in regard to
this notification
MICHAEL D. JAMES (402) 331-3727
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(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) 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.
See Exhibit B for an explanation of why a reasonable
estimate of the results of operations cannot currently
be made.
2
AMCON DISTRIBUTING COMPANY
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(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 23, 2004 By: /s/ Michael D. James
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Michael D. James
Secretary, Treasurer and Chief
Financial Officer
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EXHIBIT A TO FORM 12b-25 OF AMCON DISTRIBUTING COMPANY
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December 23, 2004
Securities and Exchange Commission
450 Fifth Street, NW
Washington, D.C. 20549
RE: Valuation Reports for Impairment Analysis
Dear Sirs:
We have been engaged by AMCON Distributing Company ("AMCON") to prepare a
valuation report to assist management with its annual review for impairment
of intangible assets which includes the intangible assets acquired in the
Trinity Springs, Inc. ("Trinity") transaction in June 2004. In addition, we
have been engaged to prepare a valuation report for the intangible assets of
Trinity in order to assist management with the final allocation of the
purchase price for the acquisition transaction.
We began work on the valuation reports for the impairment review of AMCON's
intangible assets, except those acquired in the Trinity transaction, on or
about November 12, 2004 and have substantially completed our work. A draft
of the report was sent to AMCON on December 14, 2004 to be reviewed by AMCON
and Deloitte & Touche LLP's ("Deloitte's") valuation specialists. We will
issue our final report after Deloitte's valuation specialists have completed
their review of our report, and we have received any and all additional
information that might be required to finalize the report, which we expect to
occur prior to January 7, 2005.
We began work on the valuation report for the impairment review of the
Trinity intangible assets on or about December 10, 2004 at the request of
management on that date. Despite significant efforts on our part, due to the
timing of the request and unique nature of the assets acquired in the Trinity
transaction, specifically the water royalty, we will not be able to complete
the final Trinity valuation report by December 23, 2004, which we understand
is the date that AMCON's Form 10-K is due to be filed with the SEC. We do
expect to issue a draft of our report on December 24, 2004. A final report
will be issued once Deloitte's valuation specialists have completed their
review of our report and any and all additional information is received,
which we expect to occur prior to January 7, 2005.
Subsequent to issuing our final valuation reports to be used by AMCON for its
annual impairment review, we will complete our valuation report of the
identifiable intangible assets of Trinity. This valuation report will then
be used by management to complete the purchase price allocation for the
Trinity transaction.
Very truly yours,
/s/ John C. Korschot
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John C. Korschot, CFA, ASA, CBA, CPA/ABV
President
Stern Brothers Valuation Advisors
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EXHIBIT B TO FORM 12b-25 OF AMCON DISTRIBUTING COMPANY
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AMCON incurred net losses in its second and third quarter of fiscal 2004 due
to losses incurred in its retail and beverage segments. AMCON will report a
net loss for its fourth quarter and fiscal year ended September 24, 2004, but
it is unable to determine, or reasonably estimate, the amount of that loss
until the valuation report referred to in the Form 12b-25 is completed and
any impairment charge in the carrying value of the intangible assets
(including goodwill and trade name) of Trinity Springs, Inc. that may result
from such valuation report is determined. AMCON reported net income of
$1,026,473 for its 2003 fiscal year.