0001437749-13-002686.txt : 20130312 0001437749-13-002686.hdr.sgml : 20130312 20130312145249 ACCESSION NUMBER: 0001437749-13-002686 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20130312 DATE AS OF CHANGE: 20130312 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Ansley T. Michael CENTRAL INDEX KEY: 0001434679 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 21751 W. ELEVEN MILE ROAD STREET 2: SUITE 208 CITY: SOUTHFIELD STATE: MI ZIP: 48076 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Diversified Restaurant Holdings, Inc. CENTRAL INDEX KEY: 0001394156 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MANAGEMENT SERVICES [8741] IRS NUMBER: 030606420 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-85278 FILM NUMBER: 13683697 BUSINESS ADDRESS: STREET 1: 27680 FRANKLIN ROAD CITY: SOUTHFIELD STATE: MI ZIP: 48034 BUSINESS PHONE: (248) 223-9160 MAIL ADDRESS: STREET 1: 27680 FRANKLIN ROAD CITY: SOUTHFIELD STATE: MI ZIP: 48034 FORMER COMPANY: FORMER CONFORMED NAME: Diversified Restaurants Holding, Inc. DATE OF NAME CHANGE: 20070322 SC 13D/A 1 ansley_sc13da-031113.htm AMENDMENT NO. 1 ansley_sc13da-031113.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________

SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
____________________

Diversified Restaurant Holdings, Inc.
(Name of Issuer)

Common Stock, par value $0.0001 per share
(Title of Class of Securities)

25532M 10 5
(CUSIP Number)

Michael T. Raymond
Dickinson Wright, PLLC
2600 W. Big Beaver Rd., Suite 300
Troy, Michigan 48084-3312
248-433-7274
_____________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

March 8, 2013 (See Introduction)
(Date of Event which Requires Filing of This Statement)
____________________

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [___].

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosure provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 
 
CUSIP No. 25532M 10 5
  
1.
NAMES OF REPORTING PERSON
T. Michael Ansley
2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP  (a) o (b) x
3.
SEC USE ONLY
4.
SOURCE OF FUNDS
OO
5.
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)  o
6.
CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF
SHARES
BENEFICIALLY 
OWNED BY
EACH
REPORTING
PERSON WITH
 7.
SOLE VOTING POWER
13,277,100 shares
 8.
SHARED VOTING POWER
0 shares
 9.
SOLE DISPOSITIVE POWER
11,172,600 shares
 10.
SHARED DISPOSITIVE POWER
0 shares
11.
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,277,100 shares
12.
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*  o
13.
70.1%
14.
IN

 
 
 

Introduction

This Amendment No. 1 to Schedule 13D (“Amendment No. 1”) is being filed by T. Michael Ansley (“Mr. Ansley” or the “Reporting Person”) with respect to the common stock, par value $0.0001 per share (“Common Stock”) of Diversified Restaurant Holdings, Inc. (the “Issuer”).

The Reporting Person previously entered into a voting agreement, dated January 31, 2013, with four other shareholders (collectively, the “Granting Shareholders”): Thomas D. Ansley, the father of the Reporting Person who currently owns 1,356,500 shares of Common Stock; Jason T. Curtis, the Chief Operating Officer of the Issuer who currently owns 900,000 shares of Common Stock; Steve Menker, the IT Director of the Issuer who currently owns 900,000 shares of Common Stock; and Mark Ansley, the brother of the Reporting Person who currently owns 748,000 shares of Common Stock.

On March 8, 2013, in order to consolidate voting authority among family members only and for voting expediency, this agreement was amended and restated to remove Jason T. Curtis and Steve Menker to allow them to vote their shares independently.  As a result, the Reporting Person’s beneficial ownership of Common Stock has decreased by 1,800,000 shares to a total of 13,277,100 shares of Common Stock.

Item 1.  Security and Issuer

No material change.

Item 2.  Identity and Background

No material change.

Item 3.  Source and Amount of Funds or Other Consideration

The Reporting Person’s beneficial ownership of Common Stock has decreased by 1,800,000 shares to a total of 13,277,100 shares.  This came about as the result of amending and restating the agreement, dated January 31, 2013, entered into by and among the Reporting Person and the Granting Shareholders to remove Jason T. Curtis and Steve Menker.

In order to consolidate voting authority among family members only and for voting expediency, Thomas D. Ansley and Mark Ansley (the “Remaining Shareholders”), the father and brother of the Reporting Person, respectively, entered into the amended and restated agreement granting the Reporting Person proxy authority to vote their shares in his sole discretion.  The relationship between the Remaining Shareholders and Mr. Ansley, including the terms under which such voting proxies may be rescinded or revoked, is governed by the amended and restated agreement set forth as Exhibit 1 to this Amendment No. 1.

Item 4.  Purpose of Transaction

No material change.
 
 
 
 

Item 5.  Interest in Securities of the Issuer

Item 5 is hereby amended and restated in its entirety as follows:

 
(a)
The Reporting Person is the deemed beneficial owner of the number of shares of Common Stock reflected in Column 1 of the table below next to his name.  This includes 11,113,600 shares currently owned directly by T. Michael Ansley, 9,000 shares indirectly owned as custodian for his children’s UGMA accounts, the beneficial ownership of which he disclaims, and options exercisable within 60 days of March 11, 2013 to purchase 50,000 shares at an exercise price of $2.50 per share.  Column 2 shows the percentage that such number of shares bears to 18,952,700, which is the total number of shares reflected as outstanding on the Issuer’s Quarterly Report on Form 10-Q for the period ended September 23, 2012.

 
Column 1
Number of Shares
Column 2
Percentage of Shares Outstanding
T. Michael Ansley
13,277,100
70.1%

 
(b)
The following table summarizes sole and share voting and dispositive power of the Reporting Person.

 
Sole Power to Vote or Direct the Vote
Shared Power to Vote or Direct the Vote
Sole Power to Dispose or Direct the Disposition of
Shared Power to Dispose or Direct the Disposition of
T. Michael Ansley
13,277,100
0
11,172,600
0

 
(c)
None.

 
(d)
None.

 
(e)
Not applicable.

Item 6.  Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer

Under the terms of the amended and restated agreement set forth as Exhibit 1 to this Amendment No. 1, Mr. Ansley was granted a voting proxy by the Remaining Shareholders that enables him to vote their shares in his complete discretion and as he deems appropriate.  The voting relationship is governed by the terms of the amended and restated agreement, which is to remain in effect for seven years or until the Issuer is dissolved and wound up, if this should occur sooner.  After seven years or dissolution, the agreement will be terminated.

Each voting proxy remains in effect until the amended and restated agreement is terminated.  The amended and restated agreement is terminated with respect to any shares of Common Stock that a Remaining Shareholder sells or transfers.  However, the amended and restated agreement and the voting proxies between Mr. Ansley and the Remaining Shareholders and the Issuer’s shares maintained by them would remain in effect.
 
 
 
 

Item 7.  Material to be Filed as Exhibits

Exhibit 1.
Amended and Restated Voting Agreement, dated March 8, 2013, by and among T. Michael Ansley, Thomas D. Ansley, and Mark Ansley.
 
 
 
 
 
Signature.  After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

     
     
     
     
By: 
    /s/       T. Michael Ansley         
March 11, 2013
  T. Michael Ansley  
     
EX-1 2 ex1.htm EXHIBIT 1 ex1.htm
Exhibit 1
 
AMENDED AND RESTATED VOTING AGREEMENT

This AMENDED AND RESTATED VOTING AGREEMENT (the “Agreement”) is effective as of March 8, 2013 (the “Effective Date”), by and between T. Michael Ansley (“Michael”), Thomas D. Ansley (“Thomas”), and Mark Ansley (“Mark”), all owners of common stock of Diversified Restaurant Holdings, Inc., a Nevada corporation (the “Company”), and amends, restates, and supersedes that certain Voting Agreement entered into by and between Michael, Thomas, Mark, Jason T. Curtis, and Steve Menker on January 31, 2013.  Michael, Thomas, and Mark may sometimes hereinafter be referred to separately as a “Shareholder” or collectively as the “Shareholders”.  Additionally, Thomas and Mark may sometimes hereinafter be referred to separately as a “Granting Shareholder” or collectively as the “Granting Shareholders”.

AGREEMENT

The Shareholders agree as follows:

1.           Stock Ownership. Michael is a Director, Chairman of the Board, President, and CEO of the Company and is the deemed beneficial owner of 11,172,600 shares of the Company’s common stock.  This includes 11,113,600 shares currently owned directly by T. Michael Ansley, 9,000 shares indirectly owned as custodian for his children’s UGMA accounts, the beneficial ownership of which he disclaims, and options exercisable within 60 days of March 11, 2013 to purchase 50,000 shares at an exercise price of $2.50 per share.  Thomas is the father of Michael and currently owns 1,356,500 shares of the Company’s common stock.  Mark is the brother of Michael and currently owns 748,000 shares of the Company’s common stock.  Shares of the Company’s common stock are hereinafter referred to as “Shares”, and a schedule of Shareholder Share ownership is included as Exhibit 1 to this Agreement.

2.           Term and Termination.  This Agreement shall terminate as between all Shareholders on the seventh (7th) anniversary of the Effective Date or, should it occur sooner, upon the completion of the dissolution and winding up of the Company.  Additionally, in the event that a Granting Shareholder (the “Transferring Shareholder”) transfers some or all of his Shares to a third party who is not a Shareholder, this Agreement shall cease to have any effect whatsoever, by means of a voting proxy or otherwise, upon the Shares so transferred, and the non-Shareholder third party to whom such shares are transferred will be in no way bound by the terms of this Agreement; provided, however, that such occurrence shall in no way affect the continuing existence and validity of this Agreement as between Michael and the other Granting Shareholder, and furthermore this Agreement shall continue in force as between Michael and the Transferring Shareholder with respect to any Shares not so transferred by the Transferring Shareholder.

3.           Voting.  In order to consolidate voting authority among family members and for voting expediency, Thomas and Mark, the father and brother of Michael, respectively, believe that Michael should have complete discretion to vote their Shares as he deems appropriate.  Accordingly, in connection with entering into this Agreement, the Granting Shareholders each hereby agree to immediately execute and deliver to Michael a voting proxy in the form included as Exhibit 2 to this Agreement.  Each such voting proxy shall be irrevocable to the fullest extent permitted by law and shall remain in effect as between Michael and the Granting Shareholder until termination of this Agreement as between Michael and such Granting Shareholder as described above in Paragraph 2.
 
 
 
 
 
4.           Legend.

(a)            Each stock certificate representing Shares shall be stamped or otherwise imprinted with the following restrictive legend (the “Legend”):

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED HEREBY.  A COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.

(b)            During the term of this Agreement, the Company shall not remove, and shall not permit to be removed (upon re-issuance or otherwise), the Legend from any such certificate and shall place the Legend or cause the Legend to be placed on any certificate issued to represent Shareholder Shares theretofore represented by a certificate carrying the Legend.  The Legend shall be removed upon termination of this Agreement or upon the transfer of shares as described above in Paragraph 2.

5.           Injunctive Relief.  Immediate and irreparable injury would be suffered by the Shareholders if any Shareholder breaches the terms of this Agreement.  In addition to all of the remedies available at law or in equity, the non-breaching Shareholders will be entitled to a temporary restraining order and a permanent injunction to prevent a threatened breach (or remedy an actual breach) of any provision of this Agreement.  If any Shareholder should seek an injunction, the Shareholder against whom such injunction is sought waives any requirement that the Shareholder bringing such action offer proof of the economic value of any threatened breach of this Agreement or post a bond or any other form of security.  Any Shareholder against whom such action or proceeding is brought hereby waives the claim or defense therein that such party or such personal representative has an adequate remedy at law, and such Shareholder shall not offer in any such action or proceeding the claim or defense that such remedy at law exists.

6.           Amendment.  This Agreement may be amended only by the written consent of all Shareholders.  This Agreement applies to shares of the Company’s stock now owned or later acquired by each Shareholder, and is binding upon the parties, their legal representatives, heirs, successors, and assigns.

7.           Severability.  In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
 
 
 
 

8.           Successors.  This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, assigns, administrators, executors and other legal representatives.

9.           Waiver.  No waivers of any breach of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies of any other party hereto or with respect to any subsequent breach.

10.          Governing Law; Jurisdiction.  This Agreement is being made under and shall be interpreted in the accordance with the laws of the State of Nevada, without regard to any conflict of laws principles.  In the event any lawsuit is filed to interpret or enforce any provision of this Agreement, the exclusive jurisdiction for the resolution of that dispute will be the State Circuit Court sitting in Oakland County, Michigan and each party to this Agreement hereby irrevocably consents to the jurisdiction and venue described in this paragraph.

11.          Attorney’s Fees.  If any suit or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

12.          Consultation With Outside Counsel.  Each Shareholder agrees that he is freely entering into this Agreement after having had a reasonable opportunity to seek out and consult with outside legal counsel regarding the terms and legal consequences of entering into this Agreement.

13.          Counterparts. This Agreement may be executed in counterparts each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement and this Agreement may be executed by facsimile or scanned and electronically mailed signature.


[Signatures on following page.]
 
 
 
 
 
This AMENDED AND RESTATED VOTING AGREEMENT is hereby executed as of the date first above written.
 
 
  SHAREHOLDERS:
   
   
   
  /s/ T. Michael Ansley
  T. Michael Ansley
   
  /s/ Thomas D. Ansley
  Thomas D. Ansley
   
  /s/ Mark Ansley
  Mark Ansley
   
 
Solely for purposes of agreeing to this amendment and restatement of the Voting Agreement and acknowledging their release from the original Voting Agreement dated January 31, 2013 and the revocation of the voting proxies previously granted pursuant thereto: 
 
   
  /s/ Jason T. Curtis
  Jason T. Curtis
   
  /s/ Steve Menker
  Steve Menker


(This signature page may be duplicated and signed in counterparts.)

 
 
 
 
EXHIBIT 1

SHAREHOLDERS AND SHARES


Shareholder
Number of Shares of Diversified Restaurant Holdings, Inc. Owned By Shareholder
T. Michael Ansley
11,172,600*
Thomas D. Ansley
1,356,500
Mark Ansley
748,000
 
*
This includes 11,113,600 shares currently owned directly by T. Michael Ansley, 9,000 shares indirectly owned as custodian for his children’s UGMA accounts, the beneficial ownership of which he disclaims, and options exercisable within 60 days of March 11, 2013 to purchase 50,000 shares at an exercise price of $2.50 per share.
 
 
 
 
 
EXHIBIT 2

PROXY


This Proxy is given to secure the performance of the duties of the undersigned Granting Shareholder pursuant to the Amended and Restated Voting Agreement dated of even date herewith (“Voting Agreement”).

The undersigned Granting Shareholder, an owner of shares of common stock of Diversified Restaurant Holdings, Inc., a Nevada corporation (the “Company”), appoints T. Michael Ansley (“Michael”), who is also a shareholder of the Company, as agent and proxy of the undersigned, with full power of substitution, to vote all shares of the Company which the undersigned would be entitled to vote if personally present at any meeting of the Company, solely to the extent permitted in the Voting Agreement.

This Proxy will become effective as of the date hereof, and shall continue for the maximum period permitted by applicable law or until termination of the Voting Agreement as between the undersigned Granting Shareholder and Michael as described in Paragraphs 2 and 3 of the Voting Agreement.

This Proxy is being given simultaneously with the execution of the Voting Agreement.  This Proxy shall be irrevocable to the fullest extent permitted by law.  This Proxy shall operate to revoke any prior proxy as to the Granting Shareholder’s Shares with respect to the subject matter of the Voting Agreement.

This Proxy shall be interpreted in accordance with the laws of the State of Nevada.
 
  SHAREHOLDER:  
       
       
Date:  March 8, 2013    /s/ Thomas D. Ansley  
    Thomas D. Ansley  


Number of shares of common stock: 1,356,500

 
 
 
 
EXHIBIT 2

PROXY


This Proxy is given to secure the performance of the duties of the undersigned Granting Shareholder pursuant to the Amended and Restated Voting Agreement dated of even date herewith (“Voting Agreement”).

The undersigned Granting Shareholder, an owner of shares of common stock of Diversified Restaurant Holdings, Inc., a Nevada corporation (the “Company”), appoints T. Michael Ansley (“Michael”), who is also a shareholder of the Company, as agent and proxy of the undersigned, with full power of substitution, to vote all shares of the Company which the undersigned would be entitled to vote if personally present at any meeting of the Company, solely to the extent permitted in the Voting Agreement.

This Proxy will become effective as of the date hereof, and shall continue for the maximum period permitted by applicable law or until termination of the Voting Agreement as between the undersigned Granting Shareholder and Michael as described in Paragraphs 2 and 3 of the Voting Agreement.

This Proxy is being given simultaneously with the execution of the Voting Agreement.  This Proxy shall be irrevocable to the fullest extent permitted by law.  This Proxy shall operate to revoke any prior proxy as to the Granting Shareholder’s Shares with respect to the subject matter of the Voting Agreement.

This Proxy shall be interpreted in accordance with the laws of the State of Nevada.
 
  SHAREHOLDER:  
       
       
Date:  March 8, 2013    /s/ Mark Ansley  
   
Mark Ansley
  


Number of shares of common stock: 748,000