<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 27, 1997
REGISTRATION NO. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BUTTREY FOOD AND DRUG STORES COMPANY
(Exact name of registrant as specified in its charter)
Delaware 81-0466189
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
601 6th Street, S.W.
Great Falls, Montana 59404
(406) 761-3401
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------------
1996 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
WAYNE S. PETERSON
Chief Financial Officer
BUTTREY FOOD AND DRUG STORES COMPANY
601 6th Street, S.W.
Great Falls, Montana 59404
(406) 761-3401
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
COPIES TO:
Thomas M. Cleary, Esq.
Riordan & McKinzie
300 South Grand Avenue, Suite 2900
Los Angeles, California 90071
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE/(1)/ OFFERING PRICE/(1)/ FEE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 75,000 shares $8.50 $637,500.00 $194.00
======================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the average of the high and low sales prices
for the Company's Common Stock as reported on the Nasdaq National Market on
May 22, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Buttrey Food and Drug
Stores Company (the "Company") with the Commission, as noted below, are
incorporated by reference into this Registration Statement:
(1) The Annual Report of the Company on Form 10-K for the fiscal year
ended February 1, 1997;
(2) All other reports filed by the Company pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since February 1, 1997, the end of the Company's most
recently completed fiscal year for which an Annual Report on Form 10-K
was filed; and
(3) The description of the Company's Common Stock contained in Amendment
No. 2 to its Registration Statement on Form S-1 filed on February 13,
1992 (Registration No. 33-44646).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, and prior to the filing of a post-effective amendment
to the Registration Statement that indicates that all securities offered hereby
have been sold or that deregisters all such securities remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing such documents. Any statement contained herein or in any
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Principals and employees of Riordan & McKinzie are limited partners in a
partnership which is a limited partner of FS Equity Partners II, the Company's
principal stockholder.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Buttrey Food and Drug Stores Company (the "Company") is a Delaware
corporation. Article VI of the Company's Bylaws provides that the Company may
indemnify its officers and directors to the full extent permitted by law.
Section 145 of the General Corporation Law of the State of Delaware ("GCL")
provides that a Delaware corporation has the power to indemnify its officers and
directors in certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided that such director or officer had no cause to believe his conduct was
unlawful.
II-1
<PAGE>
Subsection (b) of the Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses actually and reasonably incurred in connection with the
defense or settlement of such action or suit provided that such director or
officer acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
may be made in respect of any claim, issue or matter as to which such director
or officer shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
was brought shall determine that despite the adjudication of liability such
director or officer is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation shall have power to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him or incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Article Ninth of the Company's Certificate of Incorporation currently
provides that each director shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the GCL, or (iv) for any transaction from which the director
derived an improper benefit.
The Company has entered into indemnity agreements with each of its
directors. The indemnity agreements generally indemnify such persons against
liabilities arising out of their service in their capacities as directors,
officers, employees or agents of the Company. The Company may from time to time
enter into indemnity agreements with additional individuals who become officers
and/or directors of the Company.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 1996 Non-Employee Directors Stock Option Plan of the Company.*
5.1 Opinion of Riordan & McKinzie as to the legality of the Common Stock
registered hereby.
23.1 Consent of Riordan & McKinzie - contained in the opinion filed as Exhibit
5.1.
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney - contained on page S-1 hereof.
________________
* Filed as an exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended February 1, 1997 (File No. 0-19802) on May 2, 1997.
II-2
<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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;
(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 Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
(3) 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.
Insofar as indemnification for liabilities under the Securities Act of 1933
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 Act and is,
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 Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Great Falls, State of Montana, on this 27th day of
May, 1997.
Buttrey Food and Drug Stores Company
By: /s/ Wayne S. Peterson
-------------------------------
Wayne S. Peterson
Senior Vice President, Chief
Financial Officer and Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. Frederick Simmons and William M. Wardlaw and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, 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, and each of them, full power and
authority to do and perform each and every act
S-1
<PAGE>
and thing requisite or 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 or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Joseph H. Fernandez Chairman of the Board, President, May 27, 1997
- -------------------------- Chief Executive Officer
Joseph H. Fernandez and Director
/s/ Wayne S. Peterson Senior Vice President, Chief May 27, 1997
- -------------------------- Financial Officer, Secretary and
Wayne S. Peterson Director
/s/ Matt L. Figel Director May 27, 1997
- --------------------------
Matt L. Figel
/s/ Robert P. Gannon Director May 27, 1997
- --------------------------
Robert P. Gannon
/s/ Michael P. Malone Director May 27, 1997
- --------------------------
Michael P. Malone
/s/ J. Frederick Simmons Director May 27, 1997
- --------------------------
J. Frederick Simmons
/s/ Peter J. Sodini Director May 27, 1997
- --------------------------
Peter J. Sodini
/s/ Ronald P. Spogli Director May 27, 1997
- ---------------------------
Ronald P. Spogli
/s/ William W. Wardlaw Director May 27, 1997
- ---------------------------
William W. Wardlaw
/s/ Thomas C. Young Director May 27, 1997
- ---------------------------
Thomas C. Young
S-2
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF RIORDAN & MCKINZIE]
May 27, 1997
FILE NO.
06.825.009
Buttrey Food and Drug Stores Company
601 6th Street, S.W.
Great Falls, Montana 59404
Ladies and Gentlemen:
You have requested our opinion with respect to 75,000 shares of the Common
Stock, par value $0.01 per share (the "Shares"), of Buttrey Food and Drug Stores
Company, a Delaware corporation (the "Company"), which Shares are to be issued
upon the exercise of stock options (the "Options") to be granted pursuant to the
terms of the Company's 1996 Non-Employee Directors Stock Option Plan (the
"Plan"). The Shares are the subject of a Registration Statement on Form S-8
(the "Registration Statement"), to which this opinion is attached as an exhibit,
to be filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
We have examined the Company's Amended Certificate of Incorporation, Bylaws
and the Plan. We have also examined the records of corporate proceedings taken
in connection with the adoption of the Plan.
Based upon the foregoing examinations and subject to compliance with the
applicable state securities and "blue sky" laws, we are of the opinion that the
shares of Common Stock, when offered, sold and paid for pursuant to the exercise
of options granted under the Plan, will be duly authorized, validly issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Riordan & McKinzie
<PAGE>
EXHIBIT 23.2
Independent Auditors' Consent
-----------------------------
The Board of Directors
Buttrey Food and Drug Stores Company
We consent to incorporation by reference in the Registration Statement on Form
S-8 of the Buttrey Food and Drug Stores Company 1996 Non-Employee Directors
Stock Option Plan of our report dated April 11, 1997 relating to the
consolidated balance sheets of Buttrey Food and Drug Stores Company and
subsidiary as of February 1, 1997, February 3, 1996 and January 28, 1995, and
the related consolidated statements of operations, stockholders' equity, and
cash flows for each of the fiscal years in the three-year period ended February
1, 1997, which report appears in the February 1, 1997 annual report on Form 10-K
of Buttrey Food and Drug Stores Company.
KPMG Peat Marwick LLP
Billings, Montana
May 27, 1997
