UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549
 


FORM 8-K

CURRENT REPORT
 
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): July 28, 2016
 

 
DIVERSIFIED RESTAURANT HOLDINGS, INC.
 
(Name of registrant in its charter)
 


 
 
 
 
 
Nevada
 
000-53577
 
03-0606420
(State or other jurisdiction of
 incorporation)
 
(Commission File Number)
 
(IRS Employer Identification No.)
 
 
27680 Franklin Road
Southfield, MI 48034
 
 
(Address of principal executive offices)

Registrant's telephone number:   (248) 223-9160


Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

[   ]    Written communications pursuant to Rule 425 under the Securities Act
 
[   ]    Soliciting material pursuant to Rule 14a-12 under the Exchange Act
 
[   ]    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
 
[   ]    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
 
 
 

1


 
 
 
Item 5.02    Compensatory Arrangements of Certain Officers

On July 28, 2016, Diversified Restaurant Holdings, Inc. (the "Company") entered into a Second Amendment (the “Option Amendment”) to the Stock Option Agreement of 2010 (the “Original Agreement”) with directors T. Michael Ansley, David G. Burke, Jay Dusenberry, David Ligotti, Gregory Stevens, Joe Nowicki, and Philip Friedman. The Original Agreement, entered into on July 31, 2010, and amended once previously by a first amendment thereto, granted each of foregoing directors, including T. Michael Ansley, who serves as the Company’s President and Chief Executive Officer, and David G. Burke, who serves as the Company’s Chief Financial Officer and Treasurer, the option to purchase 30,000 shares of common stock exercisable at $2.50 per share as compensation for their services as directors. The Original Agreement indicated that options will expire on July 31, 2016. The Option Amendment extends the expiration date from July 31, 2016 to July 31, 2019. A copy of the Option Amendment is attached as Exhibit 10.1.

Item 5.03    Amendments to Articles of Incorporation or Bylaws

On July 28, 2016, the Board of Directors of the Company approved and adopted the Second Amendment to the Company’s Amended and Restated Bylaws (the “Second Amendment”). Sections 2.01 and 2.04 of the Company’s Bylaws were amended to expressly permit the issuance of uncertificated shares and the trading of the Company’s securities in book-entry form; the Company previously possessed this power by statute and is now expressly incorporating this power into its Bylaws. Section 2.09 was amended to provide that that Company may issue fractional shares in certificated or book-entry form or may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined. Additionally, the changes to Section 2.09 eliminate certificates for scrip. The changes to Section 2.09 were made to align the Company’s procedures regarding fractional shares with those of its transfer agent.

The Second Amendment was effective immediately upon adoption. A copy of the Second Amendment is filed herewith as Exhibit 3.1.


Item 9.01         Financial Statements and Exhibits.
 
(d) Exhibits.
 
Exhibit No.                Description
 
3.1        Second Amendment to Amended and Restated Bylaws of Diversified Restaurant Holdings, Inc.
10.1        Form of Second Amendment to the Diversified Restaurant Holdings, Inc. Stock Option Agreement of 2010 



SIGNATURES

In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
DIVERSIFIED RESTAURANT
HOLDINGS, INC.
 
 
 
 
 
Dated:  July 29, 2016
By:
 /s/ David G. Burke
 
 
Name:
David G. Burke
 
 
Title:
Chief Financial Officer (Principal   
Financial and Accounting Officer)
 
 
 
 
 







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Exhibit Index


Exhibit No.                Description
 
3.1        Second Amendment to Amended and Restated Bylaws of Diversified Restaurant Holdings, Inc.

10.1        Form of Second Amendment to the Diversified Restaurant Holdings, Inc. Stock Option Agreement of 2010 





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Exhibit 3.1
                                

SECOND AMENDMENT TO
THE AMENDED AND RESTATED BYLAWS OF
DIVERSIFIED RESTAURANT HOLDINGS, INC.
Pursuant to the procedures set forth in Article XI of the Amended and Restated Bylaws of Diversified Restaurant Holdings, Inc. (the "Bylaws"), the Bylaws are hereby amended as follows:
1. The last sentence of Section 2.01 is hereby amended and replaced in its entirety, to read as follows:

Section 2.01. Capital Stock.

The capital stock may be evidenced by certificates of stock, issued in the name of the corporation and signed by the President and Secretary of the corporation under the corporate seal; however, the Board of Directors may also provide by resolution or resolutions that some or all of any or all classes or series of the corporation’s stock may be uncertificated shares. To the extent any shares are uncertificated, such shares shall be in book-entry form; that is, such shares shall be evidenced on the books of the corporation or through a depository (such as The Depositor Trust Company). Unless otherwise provided by applicable law, the rights and obligations applicable to holders of shares of the corporation’s stock evidenced by certificates shall be identical to the shares and obligations applicable to holders of shares of the corporation’s stock that are uncertificated and held in book-entry form. The issuance of uncertificated shares has no effect on existing certificates for shares until such certificated shares are surrendered to the corporation.
  
2.    Section 2.04 is hereby amended and replaced in its entirety, to read as follows:

Section 2.04. Lost Certificates.

No uncertificated shares or no certificate for shares of stock in the corporation shall be transferred or issued in place of any certificate alleged to have been lost, stolen, or destroyed, unless and until proof of loss, together with proper indemnification procedures, including an indemnification bond, if requested by the Board of Directors, is furnished by the applicant for the new certificate. Any cost of reissuing and indemnifying the corporation for reissuing lost certificates shall be paid by the applicant.
3.    Section 2.09 is hereby amended and replaced in its entirety, to read as follows:

Section 2.09. Fractional Shares

The corporation may, but shall not be required to, issue certificates or make book-entries for fractions of a share where necessary to effect authorized transactions, or the corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined.


4.    In all other respects, the provisions of the Bylaws are hereby ratified and affirmed.

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Exhibit 3.1
                                

The undersigned secretary certifies that this amendment was duly adopted at a meeting of the Board of Directors held July 28, 2016.

/s/ Jason Curtis            
Jason Curtis, Secretary


2

Exhibit 10.1

FORM OF
SECOND AMENDMENT TO THE
DIVERSIFIED RESTAURANT HOLDINGS, INC.
STOCK OPTION AGREEMENT OF 2010


THIS AMENDMENT is hereby adopted by and between Diversified Restaurant Holdings, Inc. (the “ Company ”) and the individual named below, effective as of July 28, 2016.

WHEREAS, the Company entered into a Nonqualified Stock Option Agreement (the “ Agreement ”) with the individual named below (the “ Optionee ”) on July 31, 2010, as previously amended by a First Amendment thereto;

WHEREAS, the parties desire to amend the Agreement to extend the Option Period;

NOW THEREFORE, the Agreement is hereby amended as follows:

1.
Subparagraph a. of Section 2 of the Agreement is amended to read as follows:    

a.
The term of the Option granted herein shall commence as of the Option Grant Date and end nine years from such date (such period referred to sometimes hereinafter as the "Option Period").

2.    Except as amended hereby, the Agreement shall remain in full force and effect.



IN WITNESS WHEREOF, this Amendment is adopted by the Board of Directors and the individual named below, effective as of the date first above written.

DIVERSIFIED RESTAURANT
HOLDINGS, INC.


____________________________________
By:
Its:


[CORPORATE SEAL]


OPTIONEE


____________________________________
Name: