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As filed with the Securities and Exchange Commission
on November 5, 1997
Registration Statement No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BEST BUY CO., INC.
-------------------------------------------------
(Exact name of issuer as specified in its charter)
Minnesota 41-0907483
----------------------------------- --------------------
(State of incorporation) (I.R.S. Employer
Identification No.)
7075 Flying Cloud Drive
Eden Prairie, Minnesota 55344
--------------------------------- -----------
(Address of Principal Executive Offices) (Zip Code)
Best Buy Co., Inc.
1997 Employee Non-Qualified Stock Option Plan
---------------------------------------------
(Full title of the plan)
Richard M. Schulze
7075 Flying Cloud Drive Copy of communications to:
Eden Prairie, MN 55344
- -----------------------
(Name and address of Anne M. Rosenberg
agent for service) Robins, Kaplan, Miller & Ciresi L.L.P.
2800 LaSalle Plaza
(612) 947-2000 800 LaSalle Avenue
- ---------------------- Minneapolis, MN 55402-2015
(Telephone number, (612) 349-8500
including area code,
of agent for service)
(cover page is continued on next page)
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered (1) per share (2) offering price fee
- --------------------------------------------------------------------------------
Common Stock
par value
$.10 per share 4,300,000 $ 27.31 $ 117,433,000 $ 35,586
shares
- --------------------------------------------------------------------------------
(1) An undetermined number of additional shares may be issued if the
anti-dilution provisions of the Plan become operative.
(2) The shares are to be offered at prices not presently determinable.
Pursuant to Rule 457(h), the offering price is estimated solely for the
purpose of determining the registration fee on the basis of the average of
the high and low sale prices of the Registrant's Common Stock reported on
the New York Stock Exchange on October 30, 1997.
Exhibit Index on Page 10.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated in this Registration Statement by reference:
1. Registrant's Annual Report on Form 10-K for the year ended March 1,
1997.
2. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "1934 Act") for periods
ended or as of dates subsequent to March 1, 1997.
3. The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission pursuant to
Section 12 of the 1934 Act.
All documents hereafter filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all the securities offered
hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Elliot S. Kaplan, a director and Secretary of the Registrant, is also a
member of the law firm of Robins, Kaplan, Miller & Ciresi L.L.P., which will
be rendering an opinion as to the legality of the securities being registered.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is subject to the Minnesota Business Corporation
Act, Minnesota Statutes, Chapter 302A. Minnesota Statutes, Section 302A.521,
provides that a corporation shall indemnify any person made or threatened to
be made a party to a proceeding by reason of the former or present official
capacity of such person against judgments, penalties, fines, including,
without limitation, excise taxes assessed against such person with respect to
an employee benefit plan, settlements and reasonable expenses, including
attorneys' fees and disbursements, incurred by such person in connection with
the proceeding, if, with
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respect to the acts or omissions of such person complained of in the
proceeding, such person (1) has not been indemnified therefor by another
organization or employee benefit plan; (2) acted in good faith; (3) received
no improper personal benefit and Section 302A.255 (with respect to director
conflicts of interest), if applicable, has been satisfied; (4) in the case of
a criminal proceeding, had no reasonable cause to believe the conduct was
unlawful; and (5) reasonably believed that the conduct was in the best
interests of the corporation in the case of acts or omissions in such
person's official capacity for the corporation, or reasonably believed that
the conduct was not opposed to the best interests of the corporation in the
case of acts or omissions in such person's official capacity for other
affiliated organizations.
In addition, the Registrant's Articles of Incorporation provide that a
director of the Registrant shall not be personally liable to the Registrant
or its shareholders for monetary damages for breach of fiduciary duty as a
director except for liability (1) for any breach of the director's duty of
loyalty to the Registrant or its shareholders; (2) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law; (3) for paying a dividend or approving a stock repurchase in
violation of Minnesota Statutes, Section 302A.551; (4) for violating the
securities registration or anti-fraud provisions of Minnesota Statutes,
Section 80A.23; (5) for any transaction from which the director derived an
improper personal benefit; or (6) for acts or omissions occurring prior to
the date when the relevant provision of the Articles of Incorporation became
effective. The Articles of Incorporation do not limit directors' liability
for violations of the federal securities laws. The Articles of Incorporation
are consistent with the Minnesota Business Corporation Act and if such Act is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Registrant would be eliminated or limited to the fullest extent permitted by
Minnesota law.
As of September 1, 1997, the Registrant obtained a Directors' and
Officers' Liability Insurance Policy, with coverage of $30 million, subject
to various deductibles and exclusions from coverage. There is no coverage
for liabilities arising in connection with the filing of a registration
statement by the Registrant under the Securities Act of 1933 (the "1933 Act")
or under any underwriting agreement entered into in connection with a public
offering of securities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following are filed as exhibits to this Registration Statement:
EXHIBITS
4.1 Amended and Restated Articles of Incorporation of the
Registrant, as amended, defining the rights of holders of
its Common Stock (incorporated by reference to Exhibit
3.1 filed as part of the Registrant's Annual Report on
Form 10-K for the fiscal year ended February 26, 1994
[File No. 1-9595]).
4.2 Amended and Restated By-Laws of the Registrant, as
amended, defining the rights of holders of its Common
Stock (incorporated by reference to Exhibit 4.2 filed as
part of the Registrant's Registration Statement on Form
S-3 [Reg. No. 33-43065]; Exhibit 3.1 filed as part of the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended November 30, 1991 [File No. 1-9595] and
Exhibit 3.3 filed as part of the Registrant's Annual
Report on Form 10-K for the fiscal year ended February
25, 1995 [File No. 1-9595]).
4.3 Best Buy Co., Inc. 1997 Employee Non-Qualified Stock
Option Plan (incorporated by reference to the exhibits
filed on May 12, 1997, in connection with the
Registrant's definitive proxy statement [File No. 1-9595]).
5 Opinion of Robins, Kaplan, Miller & Ciresi L.L.P. as to the
shares of Common Stock being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Robins, Kaplan, Miller & Ciresi L.L.P.
(contained in their opinion filed as Exhibit 5).
24 Power of Attorney (included on signature page hereto).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
a. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
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i. to include any prospectus required by Section 10(a)(3) of
the 1933 Act;
ii. to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement; and
iii. to include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
PROVIDED, HOWEVER, that paragraphs (i) and (ii), above, do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of
the 1934 Act that are incorporated by reference in this
Registration Statement;
b. That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
c. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering;
d. That, for purposes of determining any liability under the 1933
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the 1934 Act that is incorporated
by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
e. Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 Act and is,
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therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the 1933 Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Eden Prairie, State of Minnesota,
on this 5th day of November, 1997.
BEST BUY CO., INC.
By: /s/Richard M. Schulze
---------------------------------------
Richard M. Schulze
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
RICHARD M. SCHULZE and ALLEN U. LENZMEIER, and each of them, his true and
lawful attorneys-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including
post-effective amendments) to the Registration Statement on Form S-8 and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 5, 1997.
Signature Title
- --------- -----
Chairman, Chief Executive Officer
/s/Richard M. Schulze (principal executive officer) and Director
- ----------------------------
Richard M. Schulze
Executive Vice President and Chief
/s/Allen U. Lenzmeier Financial Officer (principal financial
- ---------------------------- officer)
Allen U. Lenzmeier
Senior Vice President-Finance and
/s/Robert C. Fox Treasurer (principal accounting
- ------------------------------- officer)
Robert C. Fox
/s/Bradbury H. Anderson Director
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Bradbury H. Anderson
Director
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Culver Davis, Jr.
/s/Elliot S. Kaplan Director
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Elliot S. Kaplan
/s/Frank D. Trestman Director
- -------------------------------
Frank D. Trestman
Director
- -------------------------------
David Stanley
Director
- -------------------------------
James C. Wetherbe
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EXHIBIT INDEX
EXHIBITS
- --------
4.1 Amended and Restated Articles of Incorporation of the Registrant, as
amended, defining the rights of holders of its Common Stock
(incorporated by reference to Exhibit 3.1 filed as part of the
Registrant's Annual Report on Form 10-K for the fiscal year ended
February 26, 1994 [File No. 1-9595]).
4.2 Amended and Restated By-Laws of the Registrant, as amended, defining
the rights of holders of its Common Stock (incorporated by reference
to Exhibit 4.2 filed as part of the Registrant's Registration
Statement on Form S-3 [Reg. No. 33-43065]; Exhibit 3.1 filed as part
of the Registrant's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1991 [File No. 1-9595]; and Exhibit 3.3 filed as
part of the Registrant's Annual Report on Form 10-K for the fiscal
year ended February 25, 1995 [File No. 1-9595]).
4.3 Best Buy Co., Inc. 1997 Employee Non-Qualified Stock Option Plan
(incorporated by reference to the exhibits filed on May 12, 1997, in
connection with the Registrant's definitive proxy statement [File No.
1-9595]).
5 Opinion of Robins, Kaplan, Miller & Ciresi L.L.P. as to the shares of
Common Stock being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Robins, Kaplan, Miller & Ciresi L.L.P. (contained in their
opinion filed as Exhibit 5).
24 Power of Attorney (included on signature page hereto).
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[letterhead]
November 5, 1997
Best Buy Co., Inc.
7075 Flying Cloud Drive
Eden Prairie, MN 55344
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") of even date herewith of Best Buy Co., Inc., a
Minnesota corporation (the "Company"), relating to a proposed public offering
of 4,300,000 shares of the Company's common stock, par value $.10 per share
(the "Common Stock"), pursuant to the Best Buy Co., Inc. 1997 Employee
Non-Qualified Stock Option Plan, we, as counsel for the Company, have
examined such corporate records and other documents, including the
Registration Statement, and have reviewed such matters of law as we have
deemed relevant hereto, and, based upon such examination and review, it is
our opinion that all necessary corporate action on the part of the Company
has been taken to authorize the issuance and sale of 4,300,000 shares of
Common Stock by the Company, and that when issued and sold as contemplated in
the Registration Statement, such shares will be validly issued, fully paid
and nonassessable.
We hereby consent to being named in the Registration Statement, and in
the Prospectus related thereto, as counsel for the Company who have passed
upon legal matters in connection with the issuance of the Common Stock. We
further consent to the filing of this opinion as an exhibit to the
Registration Statement.
Yours very truly,
/s/Robins, Kaplan, Miller & Ciresi L.L.P.
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Best Buy Co., Inc. 1997 Employee Non-Qualified Stock
Option Plan of our report dated April 8, 1997, with respect to the consolidated
financial statements of Best Buy Co., Inc. incorporated by reference in its
Annual Report (Form 10-K) for the year ended March 1, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
November 3, 1997
