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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
(AMENDMENT NO. 3)
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
(AMENDMENT NO. 3)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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BUTTREY FOOD AND DRUG STORES COMPANY
(NAME OF SUBJECT COMPANY)
LOCOMOTIVE ACQUISITION CORP.
ALBERTSON'S, INC.
(BIDDERS)
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COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
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124234105
(CUSIP NUMBER OF CLASS OF SECURITIES)
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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
APRIL 30, 1998
(DATE OF EVENT WHICH REQUIRES FILING OF STATEMENT ON SCHEDULE 13D)
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CALCULATION OF FILING FEE
TRANSACTION VALUATION* $141,424,821
AMOUNT OF FILING FEE $28,285
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* 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. 3 to the Tender Offer Statement on Schedule 14D-1
and Amendment No. 3 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 April 30, 1998, a
copy of which is filed as Exhibit (a)(11) to the Schedule 14D-1.
Item 10(f) is hereby further amended and supplemented by the
following:
Section 11 is hereby supplemented to add the following:
Pursuant to an agreement, dated as of April 30, 1998, by and
among Parent, Purchaser and the Company, the parties agreed to extend
the Expiration Date of the Offer to 12:00 midnight, New York City
time, on Wednesday, July 15, 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.
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
Item 11 is hereby amended to add the following:
(a)(11) Press Release of Parent dated April 29, 1998.
(c)(5) Second Extension, Early Termination and Waiver Agreement,
dated as of April 30, 1998, by and among Parent, Purchaser
and the Company.
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: April 30, 1998
LOCOMOTIVE ACQUISITION CORP.
By: /s/ GARY G. MICHAEL
Name: Gary G. Michael
Title: President
ALBERTSON'S, INC.
By: /s/ GARY G. MICHAEL
Name: Gary G. Michael
Title: Chairman of the Board
and Chief Executive Officer
INDEX TO EXHIBITS
Exhibit
Number Exhibit
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(a)(11) Press Release of Parent dated April 29, 1998.
(c)(5) Second Extension, Early Termination and Waiver Agreement, dated
as of April 30, 1998, by and among Parent, Purchaser and the
Company.
EXHIBIT (a)(11)
April 29, 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 July 15, 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 its discussions with the Federal Trade
Commission (FTC) are continuing, and it is anticipated that outstanding
issues will be resolved prior to July 15, 1998. Albertson's expressed
continued confidence that its acquisition of Buttrey will be completed.
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
April 30, 1998. The depositary for the offer, ChaseMellon Shareholder
Services, L.L.C., has advised Albertson's that as of the close of business
on Wednesday, April 29, 1998, approximately 7.9 million shares of Buttrey
common stock, or approximately 92% 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 operated 910
retail stores in 22 Western, Midwestern and Southern states.
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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)(5)
SECOND EXTENSION, EARLY TERMINATION AND WAIVER AGREEMENT
This Second Extension, Early Termination and Waiver Agreement
(this "Agreement") is made as of April 30, 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 that
certain Extension, Early Termination and Waiver Agreement, dated as of
February 23, 1998 (the "First Extension Agreement"), which sets forth
certain additional terms and conditions of their agreement with respect to
the conduct of the Offer;
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. 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 April 30, 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 July 15, 1998 (the "Second Extended
Expiration Date").
3. 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 Second 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.
4. Waiver. In the event Acquiror and Newco are required to
change the expiration date of the Offer pursuant to Section 3 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).
5. Further Extensions; Closing Actions. This Agreement does
not amend or modify Acquiror's or Newco's obligations to extend the Offer
beyond the Second 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 3
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.
6. Effect on First Extension Agreement. Upon the execution of
this Agreement by all of the parties hereto, the First 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.
ALBERTSON'S, INC.
By: /s/ Thomas R. Saldin
Name: Thomas R. Saldin
Title: Executive Vice President, Administration
and General Counsel
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Thomas R. Saldin
Name: Thomas R. Saldin
Title: Vice President
BUTTREY FOOD AND DRUG STORES COMPANY
By: /s/ Wayne S. Peterson
Name: Wayne S. Peterson
Title: Senior Vice President and
Chief Financial Officer
