As filed with the Securities and Exchange Commission on April 3, 1998
Registration Statement No. 33-_______
- --------------------------------------------------------------------------------
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.
Deferred Compensation 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)
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------
Proposed Proposed
Title of Amount to be Maximum Maximum Amount of
Securities to be Registered Offering Price Aggregate Registration Fee
Registered(1) Per Obligation Offering Price
(2)
- ----------------------------------------------------------------------------------
Deferred
Compensation $10,000,000 100% $10,000,000 $2,950
Obligations
- ----------------------------------------------------------------------------------
(1) The Deferred Compensation Obligations are unsecured obligations of the
Registrant to pay deferred compensation in the future in accordance with
the terms of the Best Buy Co., Inc. Deferred Compensation Plan.
(2) Estimated solely for the purpose of determining the registration fee.
Exhibit Index on Page 10.
2
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") since March 2,
1997.
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.
The following description of the securities offered hereby is qualified by
reference to the Registrant's Deferred Compensation Plan (the "Plan").
Capitalized terms used herein and not otherwise defined are defined in the Plan.
Under the Plan, the Registrant will provide eligible employees and
directors the opportunity to enter into agreements for the deferral of a
specified amount or percentage of their future cash compensation and stock
option gains. The obligations of the Registrant under such agreements,
together with any amounts the Registrant may choose to contribute to the Plan
on behalf of one or more Participants, as defined below (collectively, the
"Obligations"), will be unsecured general obligations of the Registrant to
pay the deferred compensation and deferred stock option gains in the future
in accordance with the terms of the Plan, and will rank equally with other
unsecured and unsubordinated indebtedness of the Registrant from time to time
outstanding and payable from the general assets of the Registrant. Moreover,
because the Registrant maintains operating subsidiaries, the right of the
Registrant and, therefore, the right of the creditors of the Registrant
(including participants in the Plan), to participate in any distribution of
the assets of any subsidiary upon its liquidation or reorganization or
otherwise is necessarily subject to the prior claims of creditors of the
subsidiary, except to the extent that claims of the Registrant itself as a
creditor of the subsidiary may be recognized.
The amount of compensation and stock option gains to be deferred by each
participating employee or director (each a "Participant") will be determined
in accordance with the Plan based on elections by each Participant. Each
Obligation will be indexed to one or more Measurement Funds chosen by each
Participant from a list of investment media (currently five mutual funds and
the Registrant's common stock, par value $0.10 per share). The Obligation
will be adjusted to reflect the investment experience, whether positive or
negative, of the selected Measurement Fund(s), including any appreciation or
depreciation. The Obligations will be denominated and be payable in United
States dollars generally upon termination of employment or
3
on a date or dates selected by the Participant in accordance with the terms
of the Plan. The Plan is not required to be funded and the amount of
compensation or stock option gains deferred by each Participant are part of
the general funds of the Registrant, are subject to all the risks of the
Registrant's business and may be deposited, invested or expended in any
manner whatsoever by the Registrant.
A Participant's right or the right of any other person to the Obligations
cannot be assigned, alienated, sold, garnished, transferred, pledged or
encumbered except by a written designation of a beneficiary under the Plan, by
written will, or by the laws of descent and distribution.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each Participant except in
the event of extreme financial hardship of a Participant or termination of
his or her employment, although the Obligations could be redeemed in case of
termination of the Plan. However, the Registrant reserves the right to amend
or terminate the Plan at any time, except that no such amendment or
termination shall adversely affect the right of each Participant to the
vested balance of his or her deferred account as of the date of such
amendment or termination.
The Obligations are not convertible into another security of the
Registrant. The Obligations will not have the benefit of a negative pledge
or any other affirmative or negative covenant on the part of the Registrant.
No trustee has been appointed having the authority to take action with
respect to the Obligations and each Participant will be responsible for
acting independently with respect to, among other things, the giving of
notices, responding to any requests for consents, waivers or amendments
pertaining to the Obligations, enforcing covenants and taking action upon a
default.
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 validity of the Obligations issuable under
the Plan.
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 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
4
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.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this Registration Statement:
Exhibits
--------
4.1 Best Buy Co., Inc. Deferred Compensation Plan.
5 Opinion of Robins, Kaplan, Miller & Ciresi L.L.P. as to
the legality of the securities 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).
5
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:
(a) to include any prospectus required by Section 10(a)(3) of the
1933 Act;
(b) 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
(c) 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 (a) and (b), 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;
2. 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;
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;
4. 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
5. 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, 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
6
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.
7
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 30th day of March, 1998.
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.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on the date indicated.
Signature Title Date
- --------- ----- ----
Chairman, Chief March 30, 1998
/s/Richard M. Schulze Executive Officer
- ---------------------- (principal executive
Richard M. Schulze officer) and Director
Executive Vice March 30, 1998
/s/Allen U. Lenzmeier President and Chief
- ---------------------- Financial Officer
Allen U. Lenzmeier (principal financial
officer)
8
Signature Title Date
- --------- ----- ----
Senior Vice President- March 30, 1998
/s/Robert C. Fox Finance and Treasurer
- ---------------------- (principal accounting
Robert C. Fox officer)
Secretary and March 30, 1998
/s/Elliot S. Kaplan Director
- ----------------------
Elliot S. Kaplan
/s/Frank D. Trestman Director March 30, 1998
- ----------------------
Frank D. Trestman
/s/Bradbury H. Anderson Director March 30, 1998
- ----------------------
Bradbury H. Anderson
Director March ____, 1998
- ----------------------
Culver Davis, Jr.
Director March ____, 1998
- ----------------------
David Stanley
Director March ____, 1998
- ----------------------
James C. Wetherbe
9
EXHIBIT INDEX
SEQUENTIAL
EXHIBITS PAGE NO.
- -------- ----------
4.1 Best Buy Co., Inc. Deferred Compensation Plan.
5 Opinion of Robins, Kaplan, Miller & Ciresi L.L.P. as to the
legality of the securities 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).
10