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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 5
to
Schedule 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
and
Statement on
Schedule 13D
Under the Securities Exchange Act of 1934
Big B, Inc.
(Name of Subject Company)
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RDS Acquisition Inc.
Revco D.S., Inc.
(Bidders)
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Common Stock, Par Value $0.001 Per Share
(Including the Associated Common Stock Purchase Rights)
(Title of Class of Securities)
0888917106
(CUSIP Number of Classes of Securities)
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Jack A. Staph, Esq.
Senior Vice President, Secretary and General Counsel
Revco D.S., Inc.
1925 Enterprise Parkway
Twinsburg, OH 44087
(216) 487-1667
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
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Copy to:
Richard Hall, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
(212) 474-1293
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<PAGE>
RDS Acquisition Inc. (the "Purchaser") and Revco D.S., Inc.
("Parent") hereby amend and supplement their Tender Offer Statement on
Schedule 14D-1 and Statement on Schedule 13D (as amended prior to the
date hereof, the "Schedule 14D-1"), originally filed on September 10,
1996, with respect to their offer to purchase all outstanding shares
of Common Stock, par value $0.001 per share, including the associated
common stock purchase rights, of Big B, Inc., an Alabama corporation
(the "Company"), as set forth in this Amendment No. 5. Capitalized
terms not defined herein have the meanings assigned thereto in the
Schedule 14D-1.
Item 3. Past Contacts, Transactions or Negotiations with the
Subject Company
(b) Anthony J. Bruno, Chairman of the Board and Chief
Executive Officer of the Company sent D. Dwayne Hoven, President and
Chief Executive Officer of Parent the following letter on October 1,
1996:
October 1, 1996
Mr. Dwayne Hoven
President and Chief Executive Officer
Revco D.S., Inc.
1925 Enterprise Parkway
Twinsburg, Ohio 44087
Dear Dwayne:
I am writing in response to your letter to me of
September 27, 1996 with which you included your proposed
revisions to the confidentiality agreement that I sent you on
September 23, 1996.
As you know, one of Big B's objectives in the process
that we have undertaken is to promote the interests of Big B's
shareholders by seeking through confidentiality agreements to
discourage potential acquirors of Big B from efforts to minimize
the value available to Big B's shareholders through litigation
pressure or other tactics. If you are sincere in your repeatedly
stated desire to work constructively with Big B, I encourage you
to join the other interested parties who are proceeding
consistent with this objective and promptly execute a
confidentiality agreement on terms that Big B can accept.
Provided that a suitable agreement can be reached, I and the
other members of the Big B Board of Directors would welcome
Revco's active participation in the process.
<PAGE>
In response to the specifics of your proposed
confidentiality agreement, let me begin by noting that a number
of other potentially interested parties have executed
confidentiality agreements providing for the same standstill
restrictions that were included in the proposed form of
confidentiality agreement that I sent to you on September 23 and
that no party other than Revco has advised Big B that it will not
execute a confidentiality agreement because of reservations
concerning such standstill provisions. We believe that the
responses from these parties, each of whom has expressed an
interest in developing an acquisition proposal for Big B and is
mindful that others are doing the same, clearly demonstrate that
the standstill restrictions as proposed are entirely reasonable.
Even though what we have proposed has been found to be
reasonable by all of the others, Big B would still prefer to
reach a mutually acceptable confidentiality agreement with Revco.
In the interests of doing so, I am enclosing a revised form of
confidentiality agreement that Big B is prepared to execute with
Revco and which I believe appropriately balances Big B's and
Revco's interests. In order to preserve the level playing field
for Revco and the other interested parties that we have sought to
maintain, we will be communicating with each of the other parties
with whom we have executed confidentiality agreements to offer to
revise their agreements in accordance with the revised form being
provided to you, whether or not we reach agreement with you.
Although the revised form of confidentiality agreement
is self-explanatory, several points deserve emphasis:
o We have retained the proposed December 15, 1996
termination date previously discussed with your
counsel rather than your November 15 proposal. The
preliminary results of the process Big B has
undertaken has confirmed us in our initial
judgment that the additional time may be necessary
for certain parties to formulate their best
proposals. We have, however, sought to address
your other expressed concerns by providing for an
earlier termination in the event that Big B enters
into a definitive and binding agreement to be
acquired or takes certain other specified actions.
o We continue to believe that pursuit by Revco of
rights plan litigation at this juncture is clearly
premature and would be inimical to the process
under which Big B is seeking to develop and
consider in an orderly manner alternative
proposals. We have accordingly proposed that such
litigation be stayed by both parties at this time
but have agreed that it could be pursued once the
termination date occurs.
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o We remain unwilling to include several Big B
covenants proposed by you because we believe that
they would generally have the effect of
inappropriately restricting the Big B Board of
Directors' ability to comply with their fiduciary
responsibilities while potentially chilling
interest on the part of other parties. We have,
however, sought to address your stated concerns
that Big B not take certain kinds of actions while
Revco's actions are restricted by accelerating the
termination date under the circumstances described
above. In any event, neither the revised
confidentiality agreement nor the original
proposed form of confidentiality agreement would
restrict Revco's ability to seek judicial redress
(other than concerning the rights plan as
described above) at any time for actions which are
taken by Big B or the Big B Board of Directors and
which Revco believes violates its legal rights.
I remain hopeful that you will see the benefits for
Revco that an agreement promptly be reached which evidences
Revco's willingness to be part of an orderly process and which
affords Revco access to Big B's confidential financial
information. Whether or not Revco chooses to exclude itself from
the confidential information, I assure you that the Big B Board
of Directors will continue to act in the best interests of Big
B's shareholders and will carefully consider any acquisition
proposal that is timely received from Revco or any other party
that appropriately reflects Big B's intrinsic value.
Very truly yours,
/s/ Anthony J. Bruno
Anthony J. Bruno
Chairman of the Board and
Chief Executive Officer
A form of Confidentiality Agreement was included with Mr.
Bruno's letter and is attached as Exhibit (c)(3).
<PAGE>
Item 11. Material to be filed as Exhibits
(c)(3) Revised form of Confidentiality Agreement sent by the
Company to Parent on October 1, 1996.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Amendment No.
5 is true, complete and correct.
Dated: October 2, 1996
REVCO D.S., INC.,
by
/s/ Jack A. Staph
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Name: Jack A. Staph
Title: Senior Vice President,
Secretary and General
Counsel
RDS ACQUISITION INC.,
by
/s/ Jack A. Staph
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Name: Jack A. Staph
Title: Vice President and Secretary
<PAGE>
Exhibit Index
Page
Exhibit (c)(3) Revised form of Confidentiality Agreement
sent by the Company to Parent on
October 1, 1996.
BIG B, INC.
2600 Morgan Road S.E.
Bessemer, Alabama 35023
October 1, 1996
Revco D.S., Inc.
1925 Enterprise Parkway
Twinsburg, Ohio 44087
Attention: Mr. D. Dwayne Hoven
CONFIDENTIALITY AGREEMENT
Revco D.S., Inc. has requested that Big B, Inc. (the
"Company") furnish it with certain information as it may reasonably
request relating to the Company which is non-public, confidential and
proprietary in nature in connection with its proposed transaction with
the Company (the "Transaction"). All such information (whether written
or oral) furnished (whether before or after the date hereof) by the
Company or its directors, officers, employees, affiliates,
representatives (including, without limitation, financial advisors,
attorneys and accountants) or agents (collectively, "our
Representatives") to you and your directors, officers, employees,
affiliates, representatives (including, without limitation, financial
advisors, attorneys, proxy solicitors, public relations consultants and
accountants) or agents (collectively, "your Representatives") and all
analyses, compilations, forecasts, studies or other notes or documents
prepared by you or your Representatives which contain or reflect, or are
generated from, any such information is hereinafter referred to as the
"Information." The term Information will not, however, include (i)
information which is already in your possession (other than information
provided to you or your Representatives by the Company), (ii)
information which is or becomes publicly available other than as a
result of a disclosure by you or your Representative in breach of this
Agreement, (iii) information which is or becomes available to you on a
nonconfidential basis from a source (other than the Company or our
Representatives) which, to the best of your knowledge after due inquiry,
is not prohibited from disclosing such information to you by a legal,
contractual, fiduciary or other obligation to the Company, (iv) is or
<PAGE>
becomes available to you on a nonconfidential basis from the Company or
its Representatives pursuant to statutory or other legal rights to
inspect or receive information or (v) any analysis or other documents
prepared by you or your Representatives from the information described
in clauses (i), (ii), (iii) or (iv), above.
As a condition to, and in consideration of the Company
providing you with Information, you acknowledge and agree
as follows:
1. You and your Representatives (i) will keep the Information
confidential and will not (except as required by applicable law,
regulation or legal process, and only after compliance with
paragraph 2 below), without our prior written consent, disclose any
Information in any manner whatsoever, and (ii) will not use any
Information other than in connection with the Transaction. You
further agree to disclose the Information only to your
Representatives (a) who need to know the Information in connection
with negotiating or evaluating the Transaction, (b) who are
informed by you of the confidential nature of the Information and
(c) who have agreed to be bound by the terms of this letter
agreement. You agree to prepare a list of those individuals and
entities to whom any Information has been disclosed and present the
list to the Company promptly upon request. The Company will keep
the list confidential. Notwithstanding any provision to the
contrary contained herein, you shall be permitted to disclose such
of the Information as you are advised by counsel is legally
required to be disclosed under the United States securities laws,
and paragraph 2 shall not apply to such disclosure. You agree that
you will be responsible for any breach of this letter agreement by
any of your Representatives.
2. In the event that you or any of your Representatives are requested
or required (by oral questions, interrogations, requests for
information documents, subpoena, civil investigative demand, any
informal or formal investigation by any government or governmental
agency or authority or otherwise) to disclose any of the
Information (other than in any litigation between the Company, or
any of its Representatives, on the one hand, and you or any of your
Representatives, on the other hand), you will notify the Company
promptly in writing so that we may seek a protective order or other
appropriate remedy or, in our sole discretion, waive compliance
with the terms of this letter agreement. You agree not to oppose
any action by the Company to obtain a protective order or other
appropriate remedy. In the event that no such protective order or
other
<PAGE>
remedy is obtained, or that the Company waives compliance
with the terms of this letter agreement, you agree that you will
furnish only that portion of the Information which you are advised
by counsel is legally required.
3. You shall keep a record of each location of the Information. You
agree, immediately upon a request from the Company, to return to
the Company all Information, and no copies, extracts or other
reproductions of the Information shall be retained by you or your
Representatives. Any portion of the Information that consists
solely of analyses, compilations, forecasts, schedules or other
notes or documents prepared by you or your Representatives, in lieu
of being returned to the Company, may be destroyed by you or such
Representative, in which event one of your authorized officers
shall provide certification to the Company that materials have in
fact been so destroyed; provided, however, that your financial
advisors and legal advisors may retain for their files, in
accordance with their usual practice, one copy of any Information
prepared by them. Any oral Information that is retained by you or
your Representatives will continue to be subject to this letter
agreement.
4. You acknowledge that none of the Company, nor our Representatives,
nor any of our or their respective officers, directors, employees,
agents or controlling persons within the meaning of Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), makes any express or implied representations or warranty as
to the accuracy or completeness of the Information, and you agree,
to the fullest extent permitted by law, that no such person will
have any liability to you or any of your Representatives on any
basis (including, without limitation, in contract or tort, under
federal or state securities laws or otherwise) with respect to the
Transaction as a result of this letter agreement, your
participation in evaluating the Transaction, your review of the
Company, the use of the Information by you or your representatives,
or any errors therein or
<PAGE>
omission from the Information. Nothing in the foregoing provision
shall be deemed to waive or limit in any respect any rights or
claims you may have based on any actual or alleged breaches of the
fiduciary duties owed by the Company's Board of Directors to the
Company and its shareholders. You further agree that you are not
entitled to rely on the accuracy or completeness of the Information
and that you will be entitled to rely solely on such
representations and warranties as may be included in any definitive
agreement with respect to the Transaction, subject to such
limitations and restrictions as may be contained therein.
5. You acknowledge that you are aware, and you will advise your
Representatives who are informed of the matters that are the
subject of this letter agreement, of the restrictions imposed by
the United States securities laws on the purchase or sale of
securities by any person who has received material, non-public
information from the issuer of such securities, which may include
certain portions of the Information, and on the communication of
such information to any other person.
6. You agree that, from the date of this Agreement through the
Termination Date (as defined below), neither you nor any of your
affiliates will, without the prior written consent of the Company:
(i) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or
direct or indirect rights to acquire any voting securities of the
Company; (ii) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are used
in the rules of the Securities and Exchange Commission) whether
before or after the formal commencement of any such solicitation,
or seek to advise or influence any person or entity with respect to
the voting of, any voting securities of the Company; (iii) call, or
seek to call, a meeting of the Company's shareholders or execute
any written consent or initiate any shareholder proposal for action
by shareholders of the Company; (iv) otherwise act, alone or in
concert with others, to seek to acquire control of the Company or
influence the Board of Directors, management or policies of the
Company; (v) bring any action, or otherwise act through judicial
process, to contest the validity of the
<PAGE>
Company's shareholder rights plan or to seek the redemption of the
rights issued thereunder; or (vi) induce any other person or entity
to do any of the foregoing; provided, however, that the foregoing
shall not prevent (x) any cash tender offer for all the outstanding
shares of common stock, par value $0.001 per share, of the Company
at a price of not less than $15 per share, and any filings required
in connection therewith, (y) any transaction approved by the
Company's Board of Directors or (z) any action or other legal
proceeding to enforce this Agreement. In furtherance of the
agreement set forth in clause (v) above, the Company and you agree
to seek from the relevant courts a stay of the proceedings in the
action entitled Big B, Inc. v Revco D.S., Inc., and RDS Acquisition
Inc. in the Circuit Court of Jefferson County, Alabama, Bessemer
Division as removed to the United States District Court for the
Northern District Court of Alabama, Southern Division, and to take
no action to seek a lifting of such stay until the Termination
Date. For purposes of this Agreement, "Termination Date" shall mean
the earliest to occur of (w) December 15, 1996, (x) the execution
by the Company of a definitive and binding agreement providing for
the acquisition of the Company, (y) the adoption of any amendment
to the Company's existing shareholder rights plan in any manner
adverse to you or the adoption of any new shareholder rights plan,
or (z) any public announcement by the Company of any proposal to
amend its articles of incorporation.
7. (a) You agree that either party will be irreparably injured by a
breach of this letter agreement by the other party or its
Representatives, that monetary remedies are inadequate to
protect against any actual or threatened breach of this
letter agreement by either party or by its Representatives,
and that either party shall be entitled to specific
performance or other equitable relief as a remedy for
any breach. Such remedy shall not be deemed to be the
exclusive remedy for a breach of this letter agreement but
shall be in addition to all other remedies available at
law or equity.
(b) It is further agreed that no failure or delay in exercising
any right, power or privilege hereunder will operate as a
waiver thereof, nor will any
<PAGE>
single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power
or privilege hereunder.
(c) This letter agreement will be governed by and construed in
accordance with the laws of the State of Alabama, without
regard to the principles of conflict of laws thereof.
(d) This letter agreement contains the entire agreement between
you and us concerning the subject matter hereof and supersedes
all previous agreements, written or oral, relating to the
subject matter hereof. No modifications of this letter
agreement or waiver of the terms and conditions hereof will be
binding upon you or us, unless approved in writing by each of
you and us.
(e) If any provision of this letter agreement shall for any
reason, be adjudged by any court of competent jurisdiction to
be invalid or unenforceable, such judgment shall not affect,
impair or invalidate the remainder of this letter agreement
but shall be confined in its operation to the provision of
this agreement directly involved in the controversy in which
such judgment shall have been rendered.
(f) This letter agreement may be executed in counterparts, each of
which shall be deemed to be an original, but both of which
shall constitute the same agreement.
(g) This letter agreement shall inure to the benefit of and be
binding upon our respective successors and assigns; provided,
however, that neither this letter agreement nor any of the
rights, interests or obligations hereunder shall be assigned
by either of us without the prior written consent of the other
party.
(h) All notices hereunder shall be made in writing, by first class
mail, by courier or by telecopier (with a confirming copy sent
by first class mail) to, in the case o the Company, Big B,
Inc., Attention: Chief Executive Officer, 2600 Morgan Road
S.E., Bessemer, Alabama 35023, telecopier: (205) 425-3525, or,
in the case of you, Revco
<PAGE>
D.S., Inc., Attention: President and Chief Executive Officer,
1925 Enterprise Parkway, Twinsburg, Ohio 44087, telecopier:
(216) 487-1679.
Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
Very truly yours,
Big B, Inc.
By:
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Name:
Title:
Accepted and Agreed
as of the date first
written above:
Revco D.S., Inc.
By:
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Name:
Title:
