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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 4)
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
BUTTREY FOOD AND DRUG STORES COMPANY
(Name of Subject Company)
BUTTREY FOOD AND DRUG STORES COMPANY
(Name of Person Filing Statement)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
124234 10 5
(CUSIP Number of Class of Securities)
Wayne S. Peterson
Buttrey Food and Drug Stores Company
601 6th Street, S.W.
Great Falls, Montana 59404
(406) 761-3401
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications
on Behalf of the Person Filing this Statement)
Copies to:
Cynthia M. Dunnett, Esq.
Ronn S. Davids, Esq.
Riordan & McKinzie
300 South Grand Avenue
29th Floor
Los Angeles, California 90071
(213) 629-4824
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This Amendment No. 4 to Solicitation/Recommendation Statement
on Schedule 14D-9 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 originally filed on January 26, 1998 (the "Schedule
14D-9") by Buttrey Food and Drug Stores Company, a Delaware corporation (the
"Company"), with respect to the offer by Albertson's, Inc., a Delaware
corporation ("Parent"), and Locomotive Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of Parent ("Purchaser") to purchase all of the
outstanding shares of common stock, par value $.01 per share (the "Shares"), of
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"). Unless otherwise defined herein, all capitalized terms
used herein shall have the respective meanings given to such terms in the
Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND.
Item 3 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 12 to the Schedule 14D-9.
Item 3(b)(2) is hereby amended and 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 13 to
the Schedule 14D-9), 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 14 to the Schedule 14D-9), 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 9. MATERIALS TO BE FILED AS EXHIBITS.
Item 9 is hereby amended to add the following:
12 Press Release of Parent, dated August 26, 1998.
13 Fourth Extension, Early Termination and Waiver
Agreement, dated as of August 26, 1998, by and among
Parent, Purchaser and the Company.
14 Second Extension Agreement, dated as of August 26,
1998, by and among Parent, Purchaser and the Major
Stockholder.
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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.
Dated: September 3, 1998 BUTTREY FOOD AND DRUG STORES COMPANY
By: /s/ Wayne S. Peterson
--------------------------------
Name: Wayne S. Peterson
Title: Chief Financial Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------- -------
<S> <C>
12 Press Release of Parent, dated August 26, 1998.
13 Fourth Extension, Early Termination and Waiver Agreement,
dated as of August 26, 1998, by and among Parent, Purchaser
and the Company.
14 Second Extension Agreement, dated as of August 26, 1998, by
and among Parent, Purchaser and the Major Stockholder.
</TABLE>
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Exhibit 12
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.
(Continued)
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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
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Exhibit 13
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:
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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
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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.
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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
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Name: Thomas R. Saldin
Title: Executive Vice President
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Thomas R. Saldin
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Name: Thomas R. Saldin
Title: Vice President
BUTTREY FOOD AND DRUG STORES
COMPANY
By: /s/ Joseph H. Fernandez
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Name: Joseph H. Fernandez
Title: Chairman, President and Chief Executive Officer
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Exhibit 14
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.
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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.
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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
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Name: Thomas R. Saldin
Title: Executive Vice President
NEWCO:
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Thomas R. Saldin
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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
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Name: J. Frederick Simmons
Title: General Partner
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