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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 1)
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.
RYAN S. HONG, Esq.
Riordan & McKinzie
300 South Grand Avenue
29th Floor
Los Angeles, California 90071
(213) 629-4824
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This Amendment No. 1 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 the Company on February 23, 1998, a copy of
which is filed as Exhibit 8 to the Schedule 14D-9.
Item 3 is hereby further amended and supplemented by the following:
(1) Item 3(b)(2) is hereby supplemented to add the following:
Pursuant to an agreement, dated as of February 23, 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
April 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. In the event that Parent and Purchaser so change the
Expiration Date, Parent and Purchaser shall file with the Commission an
amendment to their Schedule 14D-1 noting such change within 2 business days
of the satisfaction of all conditions of the offer and shall 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.
(2) The paragraph entitled "Antitrust" under Item 3(b)(2) is hereby
supplemented to add the following:
Parent and the Company have each received a second request from the FTC for
information pursuant to the HSR Act. Parent has agreed with the FTC not to
complete substantial compliance with such request earlier than March 23,
1998. Under the HSR Act, Purchaser cannot purchase Shares tendered pursuant
to the Offer any earlier than 10 days after it substantially complies with
the second request absent an agreement with the FTC.
ITEM 9. MATERIALS TO BE FILED AS EXHIBITS.
Item 9 is hereby amended to add the following:
8 Press Release of the Company dated, February 23, 1998.
9 Extension, Early Termination and Waiver Agreement, dated as of February
23, 1998, by and among Parent, Purchaser and the Company.
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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: March 2, 1998 BUTTREY FOOD AND DRUG STORES COMPANY
By: /s/ WAYNE S. PETERSON
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Name: Wayne S. Peterson
Title: Chief Financial Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ ----------------------------------------------------------------------
<C> <S> <C>
8 Press Release of Parent dated February 23, 1998.......................
9 Extension, Early Termination and Waiver Agreement, dated as of
February 23, 1998, by and among Parent, Purchaser and the Company.....
</TABLE>
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FOR IMMEDIATE RELEASE FEBRUARY 23, 1998
BUTTREY FOOD AND DRUG STORES COMPANY
RECEIVES NOTICE FROM ALBERTSON'S INC
THAT THE TENDER OFFER PERIOD WILL BE EXTENDED
Great Falls, Montana, February 23, 1998 . . . Buttrey Food and Drug Stores
Company (NASDAQ:BTRY) today announced that it has received notice from
Albertson's Inc. (NYSE:ABS) that the tender offer originally scheduled to expire
12:00 midnight New York City time on February 23, 1998 will be extended until
12:00 midnight New York City time on April 30, 1998.
Buttrey has been further informed by Albertson's that all other terms
and conditions of its tender offer, including the purchase price of $15.50 per
share, remain unchanged.
Buttrey also stated that it has agreed with Albertson's that the tender
offer would be amended 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 and by a mailing to Buttrey stockholders by Albertson's.
Buttrey also announced that it has received a request for additional
information from the Federal Trade Commission with regard to the Premerger
Notification and Report Form filed in connection with the proposed acquisition.
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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.
Contact: Wayne S. Peterson
Senior Vice President and Chief Financial Officer
Buttrey Food and Drug Stores Company
601 6th Street S.W.
Great Falls, Montana 59404
(406) 454-7280
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EXHIBIT 9
EXTENSION, EARLY TERMINATION AND WAIVER AGREEMENT
This Extension, Early Termination and Waiver Agreement (this
"Agreement") is made as of February 23, 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
agreement of the parties hereto with respect to the conduct of the Offer; and
WHEREAS, the parties hereto desire to set forth in writing
certain 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.
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2. Extension of 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 February 23, 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 April 30, 1998 (the "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
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, (a) mail notice of such changed expiration date,
together with a copy of the Letter of Transmittal previously included with the
Offer Documents, to each holder of record of shares of Common Stock and (b) give
such other 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 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.
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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/ Michael F. Reuling
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Name: Michael F. Reuling
Title: Executive Vice President,
Store Development
LOCOMOTIVE ACQUISITION CORP.
By: /s/ Michael F. Reuling
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Name: Michael F. Reuling
Title: Vice President
BUTTREY FOOD AND DRUG STORES
COMPANY
By: /s/ Wayne S. Peterson
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Name: Wayne S. Peterson
Title: Senior Vice President
Chief Financial Officer
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