SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
AMENDMENT NO. 6
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
AMENDMENT NO. 6
UNDER THE SECURITIES EXCHANGE ACT OF 1934
________________
BUTTREY FOOD AND DRUG STORES COMPANY
NAME OF SUBJECT COMPANY
LOCOMOTIVE ACQUISITION CORP
ALBERTSON'S, INC
BIDDERS
________________
COMMON STOCK, PAR VALUE $.01 PER SHARE
TITLE OF CLASS OF SECURITIES
________________
124234105
CUSIP NUMBER OF CLASS OF SECURITIES
________________
THOMAS R. SALDIN, ESQ
ALBERTSON'S, INC
250 PARKCENTER BOULEVARD
P.O. BOX 20
BOISE, IDAHO 83726
TELEPHONE: (208) 395-6200
FACSIMILE: (208) 395-6225
NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS
COPY TO
THEODORE J. KOZLOFF, ESQ
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
FOUR EMBARCADERO CENTER, SUITE 3800
SAN FRANCISCO, CALIFORNIA 94111
TELEPHONE: (415) 984-6400
FACSIMILE: (415) 984-2698
AUGUST 26, 1998
DATE OF EVENT WHICH REQUIRES FILING OF STATEMENT ON SCHEDULE 13D
CALCULATION OF FILING FEE
TRANSACTION VALUATION* $141,424,821
AMOUNT OF FILING FEE $28,285
__________
* Estimated for purposes of calculating the amount of the filing fee only.
This amount assumes the purchase of 9,124,182 shares of common stock,
$.01 par value (the "Shares"), of Buttrey Food and Drug Stores Company
at a price of $15.50 per Share in cash. Such number of Shares represents
the 8,644,631 Shares outstanding as of January 23, 1998 and assumes the
issuance prior to the consummation of the Offer of 479,551 Shares upon
the exercise of outstanding options and warrants. The amount of the
filing fee calculated in accordance with Regulation 240.0-11 of the
Securities Exchange Act of 1934, as amended, equals 1/50th of one
percent of the value of the transaction.
[X] Check box if any part of the fee is offset as provided by Rule 0-11
(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $28,285
Form or Registration No.: Schedule 14D-1 and Schedule 13D
Filing Party: Locomotive Acquisition Corp. and Albertson's, Inc.
Date Filed: January 26, 1998
This Amendment No. 6 to the Tender Offer Statement on Schedule 14D-1
and Amendment No. 6 to Schedule 13D amends and supplements the Tender Offer
Statement on Schedule 14D-1 and Schedule 13D originally filed on January
26, 1998 (the "Schedule 14D-1") by Albertson's, Inc., a Delaware
corporation ("Parent"), and Locomotive Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Purchaser"), with
respect to Purchaser's offer to purchase all of the outstanding shares of
common stock, par value $.01 per share (the "Shares"), of Buttrey Food and
Drug Stores Company, a Delaware corporation (the "Company"), at $15.50 per
Share, net to the seller in cash, without interest, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated January
26, 1998 (the "Offer to Purchase"), and the related Letter of Transmittal
(which, together with any amendments or supplements thereto, constitute the
"Offer"), which were filed as Exhibits (a)(1) and (a)(2), respectively, to
the Schedule 14D-1. Unless otherwise defined herein, all capitalized terms
used herein shall have the respective meanings given to such terms in the
Schedule 14D-1.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(f) is hereby amended and supplemented by incorporating by
reference therein the press release issued by Parent on August 26, 1998, a
copy of which is filed as Exhibit (a)(14) to the Schedule 14D-1.
Item 10(f) is hereby further amended and supplemented by the
following:
Section 11 of the Offer to Purchase is hereby supplemented to add the
following:
Pursuant to an agreement, dated as of August 26, 1998, by and
among Parent, Purchaser and the Company (a copy of which is filed as
Exhibit (c)(8) to the Schedule 14D-1), the parties agreed to extend
the Expiration Date of the Offer to 12:00 midnight, New York City
time, on September 30, 1998. In the event that all conditions to the
Offer are satisfied on or before the day that is 10 business days
prior to the Expiration Date, the Expiration Date will be changed to
12:00 midnight, New York City time, on the day that is 10 business
days following the date on which Parent and Purchaser file with the
Commission an amendment to the Schedule 14D-1 noting such change.
Parent and Purchaser have agreed to file such amendment on or before
the second business day following the day on which such conditions
have been satisfied. In the event that Parent and Purchaser so change
the Expiration Date, Parent and Purchaser shall, upon the filing with
the Commission of the amendment to the Schedule 14D-1 noting such
change, waive any and all rights either of them may have to further
extend the Expiration Date, including any such right which may be
provided by the Merger Agreement. Notice of such Schedule 14D-1
amendment will be given to the Company's stockholders promptly by
press release and by a mailing thereto.
In addition, pursuant to an agreement, dated as of August 26,
1998, by and among Parent, Purchaser and the Majority Stockholder (a
copy of which is filed as Exhibit (c)(9) to the Schedule 14D-1), the
parties amended the termination provision of the Tender Agreement such
that all rights and obligations of the parties thereunder will
terminate upon the earliest of (i) the date the Merger Agreement is
terminated in accordance with its terms or the date the Offer is
terminated by Parent or Purchaser as a result of any failure of a
condition to the Offer; provided, however, that the provisions of the
Tender Agreement providing for the Stock Option will, under certain
circumstances, not terminate until at least 60 days thereafter; (ii)
the purchase of all of the Major Stockholder's Shares pursuant to the
Offer or pursuant to the Stock Option; or (iii) September 30, 1998
(which date may be extended, under certain circumstances, to the date
of termination of the Merger Agreement).
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
Item 11 is hereby amended to add the following:
(a)(14) Press Release of Parent, dated August 26, 1998.
(c)(8) Fourth Extension, Early Termination and Waiver Agreement,
dated as of August 26, 1998, by and among Parent, Purchaser
and the Company.
(c)(9) Second Extension Agreement, dated as of August 26, 1998, by
and among Parent, Purchaser and the Major Stockholder.
SIGNATURE
After due 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.
Date: August 26, 1998
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Thomas R. Saldin
_____________________________
Name: Thomas R. Saldin
Title: Vice President
ALBERTSON'S, INC.
By: /s/ Thomas R. Saldin
______________________________
Name: Thomas R. Saldin
Title: Executive Vice President,
INDEX TO EXHIBITS
-----------------
Exhibit
Number Exhibit
- -------- -------
(a)(14) Press Release of Parent dated August 26, 1998.
(c)(8) Fourth Extension, Early Termination and Waiver Agreement,
dated as of August 26, 1998, by and among Parent, Purchaser
and the Company.
(c)(9) Second Extension Agreement, dated as of August 26, 1998, by
and among Parent, Purchaser and the Major Stockholder.
Exhibit (a)(14)
August 26, 1998
FOR IMMEDIATE RELEASE
ALBERTSON'S, INC. EXTENDS TENDER OFFER
Albertson's, Inc. (NYSE:ABS) announced today that it is extending its
tender offer for all outstanding shares of common stock of Buttrey Food and
Drug Stores Company (NASDAQ:BTRY) until 12:00 midnight New York City time
on September 30, 1998. Albertson's noted that all other terms and
conditions of its tender offer, including the purchase price of $15.50 per
share, remain unchanged.
Albertson's stated that it has reached a tentative agreement with the
Federal Trade Commission (FTC) staff and the staff has submitted that
agreement for approval by the FTC commissioners with a favorable
recommendation.
Albertson's also reiterated that it has agreed with Buttrey that it
will amend its tender offer to accelerate the expiration date of the offer
(and the date on which it will purchase tendered shares) to a date that is
not less than ten business days following the date on which all conditions
to the offer (including clearance by the FTC) are satisfied, if such change
would result in an earlier expiration date. Notice of such amendment will
be given promptly by press release.
Albertson's tender offer was scheduled to expire at 12:00 midnight on
September 1, 1998. The depositary for the offer, ChaseMellon Shareholder
Services, L.L.C., has advised Albertson's that as of the close of business
on Tuesday, August 25, 1998, approximately 8.5 million shares of Buttrey
common stock, or approximately 98% of the total number of outstanding
shares had been tendered pursuant to Albertson's offer.
The Information Agent for the offer is Georgeson & Company Inc., and
questions about the offer may be addressed to them by calling 212-440-9800
or 800-223-2064.
Albertson's, Inc. is one of the largest retail food-drug chains in the
United States. The Boise, Idaho based company currently operates 932
retail stores in 24 Western, Midwestern and Southern states.
**********
CONTACT:
Albertson's, Inc., Boise, Idaho
Investor Relations
A. Craig Olson 208/395-6284
Renee Bergquist 208/395-6622
News Media 208/395-6392
Mike Read
Jenny Enochson
Exhibit (c)(8)
FOURTH EXTENSION, EARLY TERMINATION AND WAIVER AGREEMENT
This Fourth Extension, Early Termination and Waiver Agreement
(this "Agreement") is made as of August 26, 1998 by and between
Albertson's, Inc., a Delaware corporation ("Acquiror"), Locomotive
Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Acquiror ("Newco"), and Buttrey Food and Drug Stores Company, a Delaware
corporation (the "Company"), in connection with that certain Agreement and
Plan of Merger, dated as of January 19, 1998, among Acquiror, Newco and the
Company (the "Merger Agreement").
RECITALS
WHEREAS, Acquiror, Newco and the Company constitute all of the
parties to the Merger Agreement; and
WHEREAS, Section 1.1 of the Merger Agreement describes the
initial agreement of the parties hereto with respect to the conduct of the
Offer; and
WHEREAS, the parties hereto have previously entered into three
Extension, Early Termination and Waiver Agreements, dated as of February
23, 1998, April 30, 1998 and July 15, 1998 (the "Prior Extension
Agreements"), which set forth certain additional terms and conditions of
their agreement with respect to the conduct of the Offer; and
WHEREAS, the parties hereto desire to set forth in writing
certain further additional terms and conditions of their agreement with
respect to the conduct of the Offer; and
WHEREAS, each of the respective Boards of Directors of the
parties hereto has authorized the execution of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements set forth herein and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to such terms in
the Merger Agreement.
2. Termination Date. The date "July 19, 1998" referred to in
Section 9.1(c) of the Merger Agreement is hereby amended and changed to
"September 30, 1998."
3. Extension of Extended Expiration Date. In the event all
conditions to the Offer (including the conditions set forth in Exhibit A to
the Merger Agreement) have not been satisfied or waived at or before 12:00
midnight, New York City time, on September 1, 1998, Acquiror and Newco
shall extend the expiration date of the Offer by filing with the Commission
an amendment to the Schedule 14D-1 providing that the Offer will expire at
12:00 midnight, New York City time, on September 30, 1998 (the " Fourth
Extended Expiration Date").
4. Early Termination. In the event all conditions to the Offer
(including the conditions set forth in Exhibit A to the Merger Agreement)
have been satisfied on or before the day that is 10 Business Days prior to
the Fourth Extended Expiration Date, Acquiror and Newco shall change the
expiration date of the Offer to 12:00 midnight, New York City time, on the
day that is 10 Business Days following the date on which they will have
filed with the Commission an amendment to the Schedule 14D-1 providing for
such change. Acquiror and Newco hereby agree to file such amendment on or
before the second Business Day following the day on which such conditions
have been satisfied and, in connection with such filing, give such notice
of such changed expiration date as may be required by the rules and
regulations of the Commission.
5. Waiver. In the event Acquiror and Newco are required to
change the expiration date of the Offer pursuant to Section 4 above,
Acquiror and Newco shall, upon the filing with the Commission of the
amendment providing for such change, waive any and all rights either of
them may have to extend the expiration date of the Offer further (including
any such right set forth in Section 1.1(b) of the Merger Agreement).
6. Further Extensions; Closing Actions. This Agreement does
not amend or modify Acquiror's or Newco's obligations to extend the Offer
beyond the Fourth Extended Expiration Date as required pursuant to Section
1.1(b) of the Merger Agreement. In the event that Acquiror and Newco are
unable to change the expiration date of the Offer as provided in Section 4
above for any reason, Acquiror, Newco and the Company shall take all
actions necessary to consummate the Offer and the Merger as expeditiously
as possible.
7. Conditions to Offer. Acquiror and Newco hereby agree and
acknowledge that, as of the date hereof, (A) none of the conditions, events
or circumstances described in subparagraph (a), (b), (f) or ( g) of
Exhibit A to the Merger Agreement or in Section 9.1(a) or (h) of the Merger
Agreement has occurred and (B), to the best knowledge of Acquiror and
Newco, none of the conditions, events or circumstances described in
subparagraph (c) or (d) of Exhibit A to the Merger Agreement or in Section
9.1(i) or (j) of the Merger Agreement has occurred. No representation,
warranty or covenant of the Company and the Subsidiary in the Merger
Agreement will be breached by, and no condition to the Offer or the Merger
will fail to be satisfied as a result of, any action, omission, effect on
or adverse change in the business, operations, properties (including
intangible properties), condition (financial or otherwise), results of
operations, assets or liabilities of the Company and the Subsidiary, taken
as a whole, arising out of or related to (i) the sale or proposed sale of
stores pursuant to the Antitrust Laws, (ii) changes in the Company's
business operations requested or acquiesced in by Acquiror, prior to, on or
after the date hereof or (iii) deterioration in the Company's financial
performance after August 1, 1998 attributable to the expected purchase of
shares of Common Stock pursuant to the Offer.
8. Effect on Prior Extension Agreements. Upon the execution of
this Agreement by all of the parties hereto, the Prior Extension Agreements
shall be of no further force or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their duly authorized representatives as of
the day and year first above written.
ALBERTSON'S, INC.
By: /s/ Thomas R. Saldin
--------------------------
Name: Thomas R. Saldin
Title: Executive Vice President
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Thomas R. Saldin
--------------------------
Name: Thomas R. Saldin
Title: Vice President
BUTTREY FOOD AND DRUG STORES
COMPANY
By: /s/ Joseph H. Fernandez
-------------------------
Name: Joseph H. Fernandez
Title: Chairman, President and Chief Executive Officer
Exhibit (c)(9)
SECOND EXTENSION AGREEMENT
This Second Extension Agreement (this "Agreement") is made as of
August 26, 1998 by and among Albertson's, Inc., a Delaware corporation
("Acquiror"), Locomotive Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of Acquiror ("Newco"), and FS Equity Partners II,
L.P., a California limited partnership (the Stockholder), in connection
with that certain Tender and Option Agreement, dated as of January 19,
1998, among Acquiror, Newco and the Stockholder (the "T&O Agreement").
RECITALS
WHEREAS, Acquiror, Newco and the Stockholder constitute all of
the parties to the T&O Agreement;
WHEREAS, the parties hereto have entered into an Extension
Agreement, dated as of July 15, 1998, extending the term of the T&O
Agreement (the "Prior Extension Agreement"); and
WHEREAS, the parties hereto desire to enter into this Agreement
to extend further the term of the T&O Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements set forth herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to such terms in
the Merger Agreement.
2. Termination Date. The date "July 19, 1998" referred to in
Section 9(c) of the T&O Agreement is hereby amended and changed to
"September 30, 1998."
3. Deletion and Renumbering. Section 10 of the T&O Agreement is
hereby deleted in its entirety. Sections subsequent to Section 10 of the
T&O agreement shall not be renumbered.
4. Effect on Prior Agreement. Except as set forth above, all
provisions of the T&O Agreement shall remain in full force or effect.
5. Effect on Prior Extension Agreement. Upon the execution of
this Agreement by all of the parties hereto, the Prior Extension Agreement
shall be of no further force or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their duly authorized representatives as of
the day and year first above written.
ACQUIROR:
ALBERTSON'S, INC.
By: /s/ Thomas R. Saldin
-----------------------------
Name: Thomas R. Saldin
Title: Executive Vice President
NEWCO:
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Thomas R. Saldin
-----------------------------
Name: Thomas R. Saldin
Title: Vice President
STOCKHOLDER:
FS EQUITY PARTNERS II, L.P.
By: Freeman Spogli & Co.
Its: General Partner
By: /s/ James F. Simmons
-----------------------------
Name: J. Frederick Simmons
Title: General Partner
