===================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Amendment No. 6
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)
---------------
RDS Acquisition Inc.
Revco D.S., Inc.
(Bidders)
---------------
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)
---------------
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)
---------------
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. 6. 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) On October 4, 1996, Parent issued a press release
announcing that it had entered into a Confidentiality Agreement,
dated October 3, 1996, with the Company. Pursuant to the
Confidentiality Agreement, Parent agreed that from the date of this
Agreement through the Termination Date (as defined below), neither
Parent nor any of Parent's 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 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 or any other action or legal proceeding not
restricted pursuant to clause (v) above. In furtherance of the
agreement set forth in clause (v) above, the Company and Parent
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
<PAGE>
of this Agreement, "Termination Date" shall mean the earliest to
occur of (w) November 30, 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 parent 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.
A copy of Confidentiality Agreement entered into by
Parent and the Company is attached as Exhibit (c)(4) to this
Amendment No. 6 and is incorporated herein by reference. In
addition, a copy of the above Confidentiality Agreement, marked to
show changes from the form of the Confidentiality Agreement sent by the
Company to Parent on October 1, 1996, is attached as Exhibit (c)(5)
to this Amendment No. 6. The text of the press release relating to
the Confidentiality Agreement is attached as Exhibit (a)(12) to
this Amendment No. 6.
Item 10. Additional Information.
(a) On October 1, 1996, the Company filed a Motion to Remand
its Complaint for Declaratory and Injunctive Relief (CV-96-H-2496-S)
before the United States District Court for the Northern District of
Alabama, Southern Division, to the Circuit Court for Jefferson County,
Alabama, Bessemer Division. On October 2, 1996, Parent and the
Purchaser filed a Response in Opposition to the Company's Motion to
Remand. At a hearing held on October 2, 1996, the Honorable Judge
William M. Acker, Jr., heard arguments with respect to the Motion to
Remand. Copies of the Motion to Remand and the Response in Opposition
to the Company's Motion to Remand are attached as Exhibits (g)(6) and
(g)(7), respectively.
(f) Parent announced on October 4, 1996 that the
Purchaser had extended the Expiration Date of the Offer until 5
p.m., New York time, on Friday, October 18, 1996.
<PAGE>
Item 11. Material to be Filed as Exhibits.
(a)(12) Text of Press Release dated October 4, 1996.
(c)(4) Confidentiality Agreement between Parent and the
Company dated October 3, 1996.
(c)(5) Confidentiality Agreement between Parent and the
Company dated October 3, 1996, marked to show changes from the form
of Confidentiality Agreement sent by the Company to Parent on
October 1, 1996.
(g)(6) Motion to Remand filed by the Company on October
1, 1996, in the action entitled Big B, Inc. v. Revco D.S., Inc. and
RDS Acquisition Inc. (United States District Court for the Northern
District of Alabama, Southern Division).
(g)(7) Response in Opposition to the Company's Motion to
Remand filed by the Purchaser and Parent on October 2, 1996, in the
action entitled Big B, Inc. v. Revco D.S., Inc. and RDS Acquisition
Inc. v. Anthony J. Bruno, Vincent J. Bruno, James A. Bruno and
Arthur M. Jones, Sr. (United States District Court for the Northern
District of Alabama, Southern Division).
<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. 6 is true, complete and correct.
Dated: October 4, 1996
REVCO D.S., INC.,
by
/s/ Jack A. Staph
-----------------------------
Name: Jack A. Staph
Title: Senior Vice President,
Secretary and General
Counsel
RDS ACQUISITION INC.,
by
/s/ Jack A. Staph
-----------------------------
Name: Jack A. Staph
Title: Vice President and
Secretary
<PAGE>
Exhibit Index
Page
Exhibit (a)(12) Text of Press Release dated October 4,
1996.
Exhibit (c)(4) Confidentiality Agreement between Parent
and the Company dated October 3, 1996.
Exhibit (c)(5) Confidentiality Agreement between Parent
and the Company dated October 3, 1996, marked
to show changes from the form of
Confidentiality Agreement sent by the Company
to Parent on October 1, 1996.
Exhibit (g)(6) Motion to Remand filed by the Company on
October 1, 1996, in the action entitled Big B,
Inc. v. Revco D.S., Inc. and RDS Acquisition
Inc. (United States District Court for the
Northern District of Alabama, Southern
Division).
Exhibit (g)(7) Response in Opposition to the Company's
Motion to Remand filed by the Purchaser and
Parent on October 2, 1996, in the action
entitled Big B, Inc. v. Revco D.S., Inc. and
RDS Acquisition Inc. v. Anthony J. Bruno,
Vincent J. Bruno, James A. Bruno and Arthur M.
Jones, Sr. (United States District Court for
the Northern District of Alabama, Southern
Division).
FOR IMMEDIATE RELEASE
Media Contact: Investor Contact:
Thomas Dingledy Dianne McCormick
216/425-9811 x6145 216/425-9811 x1900
Joele Frank/Dan Katcher
Abernathy MacGregor Group
212/371-5999
REVCO ENTERS INTO A CONFIDENTIALITY AGREEMENT WITH BIG B
Twinsburg, Ohio (October 4, 1966)--Revco D.S., Inc. [NYSE:RXR]
announced today that it has entered into a confidentiality agreement
with Big B, Inc. [NASDAQ: BIGB]. In the confidentiality agreement, Big
B has agreed to provide Revco with confidential information regarding
Big B, and Revco has agreed that, until November 30, 1996 (or earlier
in certain events), Revco will not engage in a proxy solicitation or
take certain other actions to acquire control of Big B other than a
cash tender offer for all outstanding Big B common stock at at least
$15 per share. The confidentiality agreement also provides for a stay
of the litigation in the Federal District Court in Birmingham,
Alabama, with respect to Big B's poison pill rights plan.
D. Dwayne Hoven, President and Chief Executive Officer of Revco said,
"We are delighted that we have been able to negotiate a mutually
acceptable confidentiality agreement with Big B. We expect that the
confidentiality agreement with Big B will allow us to work on a level
playing field toward our goal of negotiating a transaction that is
enthusiastically supported by Big B's shareholders and employees, as
well as Big B's many loyal customers. We remain strongly committed to
concluding a transaction that serves the best interests of both
companies."
Separately, Revco also announced today that its subsidiary RDS
Acquisition Inc. has extended its cash tender offer for all of the
outstanding shares of Big B at a price of $15 per share until 5:00
p.m. (EDT), on Friday, October 18, 1996. As of 6:00 p.m. (EDT), on
October 3, 1996, 53,300 shares of Big B's outstanding common stock had
been tendered to Revco under the terms of the
<PAGE>
offer. The tender offer was scheduled to expire at midnight (EDT), on
Monday, October 7, 1996.
The tender offer is conditioned, among other things, upon the
acquisition of a majority of Big B's outstanding common shares and the
Big B poison pill shareholder rights being redeemed, invalidated or
otherwise being inapplicable to the tender offer and Revco's proposed
merger to acquire all outstanding Big B shares. As previously
announced, the Hart-Scott-Rodino waiting period applicable to the
tender offer has expired.
Revco, recognized as a Fortune 500 company, is the second largest
drugstore chain in the U.S. operating 2,202 stores in 14 contiguous
Midwestern, Southeastern and Eastern states. The stores sell
prescription and over-the-counter drugs, health and beauty aids and
other consumer products. Revco employs more than 32,000 associates in
its stores, network of five distribution centers, regional offices and
corporate offices in Twinsbsurg, Ohio.
Note to Editors: Today's news release, along with other news about
REvco, is available by calling Company News On-Call at
1-800-758-5804, extension 751257. Information is also available
on the Internet at: http:\\www.revco.com.
BIG B, INC.
2600 Morgan Road S.E.
Bessemer, Alabama 35023
October 3, 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 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>
Revco D.S., Inc.
October 3, 1996
Page 2
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
investigation 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 other hand), you will notify the Company
promptly in writing so that we may seek a protective order or
other
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 3
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 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
representation 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 review
of the Company, the use of the Information by you or your
representatives, or any errors therein or omission from the
Information. Nothing in the
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 4
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 Company's shareholder rights plan
or to seek the
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 5
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 or any other action or
legal proceeding not restricted pursuant to clause (v) above.
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) November 30, 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. The Company represents that it is the Company's intention to
conduct an orderly process with a goal of maximizing value to
its shareholders. To the extent consistent with its conduct of
the orderly process developed by it and with the Company's
preservation of its attorney client, work product and other
privileges, the Company will afford to you, and to your
Representatives, reasonable access prior to the Termination
Date to the Company's properties, books, management, records,
counsel and accountants for the purpose of evaluating a
Transaction and will furnish to you such information
concerning the Company's business, assets and liabilities as
you may reasonably request.
8. (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
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 6
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 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.
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 7
(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
of 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
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:/s/ Arthur M. Jones, Jr.
---------------------------
Name: Arthur M. Jones, Jr.
Title: President
Accepted and Agreed
as of the date first
written above:
Revco D.S., Inc.
By:
----------------------
Name:
Title:
[Marked to show changes from the form
sent to Revco D.S., Inc. on October 1,
1996. Additions appear surrounded by
[ ]. Deletions appear as endnotes
surrounded by < >].
BIG B, INC.
2600 Morgan Road S.E.
Bessemer, Alabama 35023
October <1> [3], 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>
Revco D.S., Inc.
October 3, 1996
Page 2
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
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 3
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
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
representation 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,<2> your
review of the Company, the use of the Information by you or
your representatives, or any errors therein or omission from
the Information. Nothing in the
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 4
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 Company's shareholder rights plan
or to seek the
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 5
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 [or any other action or
legal proceeding not restricted pursuant to clause (v) above].
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) <3> [November
30], 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[. The Company represents that it is the Company's intention to
conduct an orderly process with a goal of maximizing value to
its shareholders. To the extent consistent with its conduct of
the orderly process developed by it and with the Company's
preservation of its attorney client, work product and other
privileges, the Company will afford to you, and to your
Representatives, reasonable access prior to the Termination
Date to the Company's properties, books, management, records,
counsel and accountants for the purpose of evaluating a
Transaction and will furnish to you such information
concerning the Company's business, assets and liabilities as
you may reasonably request.
8]. (a) You agree that either party will be irreparably
injured by a breach of this letter agreement by
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 6
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 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.
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 7
(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
of 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 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:[/s/ Arthur M. Jones, Jr.]
-----------------------------
Name: [Arthur M. Jones, Jr.]
Title: [President]
Accepted and Agreed
as of the date first
written above:
Revco D.S., Inc.
By:
------------------------
Name:
Title:
<PAGE>
Revco D.S., Inc.
October 3, 1996
Page 8
- ------------------ DELETIONS ------------------
<1> 1
<2> your participation in evaluating the Transaction,
<3> December 15
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BIG B, INC., )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO:
) CV-96-H-2496-S
REVCO D.S. INC., and )
RDS ACQUISITION, INC., )
)
Defendants. )
MOTION TO REMAND
----------------
The Plaintiff, Big B, Inc. ("Big B") moves this Court to
remand this action to the Circuit Court for Jefferson County, Alabama,
Bessemer Division. In support of this Motion to Remand, Big B states
as follows:
1. This action was commenced by the filing of a Verified
Complaint for Declaratory and Injunctive Relief ("Complaint") on
September 23, 1996. This action was removed by Defendants Revco D.S.,
Inc. ("Revco") and RDS Acquisition Inc. ("RDS") by filing of a Notice
of Removal in this Court on September 23, 1996. The sole basis for
federal subject matter jurisdiction alleged in the Notice of Removal
is that this Court has jurisdiction based on the diversity of the
parties and because the amount in controversy exceeds $50,000.
<PAGE>
2. The Complaint requests construction of a Shareholder
Rights Plan ("Rights Plan") adopted by the Big B Board of Directors.
No federal statute is at issue in this case.
3. Pursuant to 28 U.S.C. ss. 1441 and 28 U.S.C. ss. 1332,
federal diversity subject matter jurisdiction only exists in this case
if the amount in controversy exceeds the sum of $50,000, exclusive of
interest and costs.
4. The $50,000 amount in controversy requirement is not
satisfied in this case. The relief requested by Big B is purely
equitable in nature and concerns only a determination of the validity
of the Rights Plan as adopted by the Board of Directors.
5. Pursuant to 28 U.S.C. ss. 1447(c), this Motion for Remand
has been filed within thirty (30) days after the filing of the Notice
of Removal.
<PAGE>
6. In support of this Motion, Big B submits its brief,
attached hereto as Exhibit "A."
WHEREFORE, PREMISES CONSIDERED, Big B respectfully requests
that this Court enter an order remanding this case to the Circuit
Court for Jefferson County, Alabama, Bessemer Division.
Respectfully submitted,
----------------------------
KAYE H. TURBERVILLE (HOU002)
SAMUEL M. HILL (HIL025)
MICHAEL A. CATALANO (CAT010)
Attorneys for Big B, Inc.
OF Counsel:
- -----------
SIROTE & PERMUTT, P.C.
2222 Arlington Avenue S.
P. O. Box 55727
Birmingham, AL 35255-5727
(205) 933-7111
<PAGE>
CERTIFICATE OF SERVICE
----------------------
I certify that a copy of the above foregoing instrument was
served on the following counsel of record BY HAND DELIVERY this 1 day
of October, 1996.
Hobart A. WcWhorter, Jr., Esq.
Philip A. Carroll, III, Esq.
Matthew A. Aiken, Esq.
BRADLEY, ARANT, ROSE & WHITE
P.O. Box 830709
Birmingham, AL 35283-0709
----------------------------
OF COUNSEL
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
- ---------------------------------------------------
BIG B, INC.,
Plaintiff and Counterclaim-Defendant,
-against-
REVCO D.S., INC. and RDS ACQUISITION INC.,
Civil Action No.
Defendants and Counterclaim-Plaintiffs, CV-96-AR-2496-S
-against-
ANTHONY J. BRUNO, VINCENT J. BRUNO,
JAMES A. BRUNO and ARTHUR M. JONES, SR.,
Additional Counterclaim-Defendants.
- ---------------------------------------------------
RESPONSE IN OPPOSITION TO
BIG B'S MOTION TO REMAND
------------------------
Defendants and counterclaim-plaintiffs Revco D.S.,
Inc. and RDS Acquisition Inc. (collectively, "Revco") submit
this response in opposition to the motion of plaintiff and
counterclaim-defendant Big B, Inc. ("Big B") to remand this
case to the State Court from which it was removed.<F1>
- --------------------
[FN]
<F1> Citations to Big B's Memorandum Brief in Support of
Plaintiff's Motion to Remand will be in the form "Big B
Mem. at __."
<PAGE>
Big B's motion to remand is a transparent attempt to
delay this Court's resolution of Revco's pending motion for a
preliminary injunction.<F2> In fact, Big B's entire strategy is
one of delay. Big B adopted a facially illegal Poison Pill for
the explicit purpose of delaying the consummation of Revco's
tender offer for all outstanding shares of Big B common stock
(the "Offer"). Now, despite having filed a Complaint seeking
declaratory and emergency injunctive relief, Big B does an
about- face and argues that it needs more time, and, to
support that argument has filed this baseless Motion for
Remand.
The purported basis for Big B's motion is Big B's
assertion that "[t]he $50,000 amount in controversy
requirement is not satisfied in this case." Motion to Remand
P. 4. As we demonstrate below, Revco has plainly met its
burden of "'prov[ing] by a preponderance of the evidence that
the amount in controversy more likely than not exceeds the
$50,000 jurisdictional requirement.'" Earnest v. General
Motors Corp., 923 F. Supp. 1469, 1471 (N.D. Ala. 1996)
(quoting Tapscott v. MS Dealer Service Corp., 77 F.3d 1353,
1357 (11th Cir. 1996)).<F3>
- --------------------
[FN]
<F2> We note in passing that the additional counterclaim-
defendants, Messrs. Anthony J. Bruno, Vincent J. Bruno,
James A. Bruno and Arthur M. Jones, Sr., have not joined
in Big B's motion to remand or in Big B's opposition to
Revco's request for an expedited hearing.
<F3> Big B mistakenly asserts that Revco must show
"'to a legal certainty that [Big B's] claim must exceed
$50,000.'" Big B Mem. at 7 (quoting Shelly v. Southern Bell
Telephone & Telegraph Co., 873 F. Supp. 613, 615 (M.D. Ala.
1995) (quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994))). As the Eleventh Circuit explained in
Tapscott, the Burns standard is applicable only "where a
plaintiff has specifically claimed less than the
jurisdictional amount", thus willingly foregoing any
additional damages to which the plaintiff might be entitled.
Tapscott, 77 F.3d at 1356.
<PAGE>
Big B's Complaint, and Revco's Counterclaims, seek
declaratory and injunctive relief. "In actions seeking
declaratory or injunctive relief, it is well established that
the amount in controversy is measured by the value of the
object of the litigation." Hunt v. Washington State Apple Adv.
Comm'n, 432 U.S. 333, 347 (1977); see also Occidental Chem.
Corp. v. Bullard, 995 F.2d 1046, 1047 (11th Cir. 1993). Big B
admits this much. Big B Mem. at 4. Big B's subsequent
assertions, to the effect that the value of the object of this
suit is less than $50,000, are simply incredible.
Big B states that the object of this suit is whether
the Poison Pill "is valid and lawful and was adopted in full
conformance with applicable Alabama law" (Big B Mem. at 2),
but argues that the object of this suit does not include the
adverse effects of the Poison Pill on Revco. Id. at 4. As
Revco's Answer, Counterclaims and motion for a preliminary
injunction all demonstrate, this suit involves, at a minimum,
whether Big B may interfere with Revco's rights as a
shareholder of Big B and impede Revco's tender offer for all
outstanding shares of Big B common stock (the "Offer") by
adopting the Poison Pill.
First, even accepting, for the moment, Big B's
erroneous interpretation of the "object" of this litigation,
it is clear from the face of the Complaint that the
jurisdictional amount has been met. Big B asserts that the
Rights issued under the Poison Pill "have no independent
monetary value, unless and until such time as an
<PAGE>
event occurs in the future." Big B Mem. at 2.<F4> However, those
Rights must have some value in Big B's eyes since the Poison
Pill provides that "the Big B Board of Directors is entitled
to redeem the Rights at a price of $0.01 per Right" (Complaint
P. 12).<F5> Even using this "peppercorn" valuation, the Rights,
which are to be issued as "a dividend distribution of one
Right for each outstanding share of Big B common stock"
(Complaint P. 8), have a value of at least $220,103.10.<F6> This
Court should retain jurisdiction even under Big B's
interpretation of "object" of this litigation.
Second, Big B's argument is incorrect as the object
of this lawsuit plainly includes both the poison pill and its
effect on Revco's Offer. In fact, Big B's own Complaint makes
clear that Revco's interpretation of the object of this
litigation is correct. Big B admits that it adopted its Poison
Pill in order to prevent Revco's Offer from proceeding
(Complaint P. 5), and that it filed its Complaint against
Revco because it believed that Revco would challenge Big B's
efforts to impede the Offer (Complaint P. 15).
- --------------------
[FN]
<F4> Big B also suggests that any value the Rights
may have is not part of the amount in controversy here because
"the rights belong to the individual shareholders of Big B."
Big B Mem. at 2. However, since Big B has brought suit seeking
a declaration regarding the validity and legality of those
Rights, it should not be heard to argue that the value of
these Rights, created and distributed to its shareholders by
Big B, is not in controversy here.
<F5> Surely, Big B is not prepared to argue to this
Court that its Directors have authorized the payment of legal
fees (and other expenses) for the drafting of the Poison Pill
and the filing of this lawsuit all to the end of adopting and
declaring the lawfulness of something of no value.
<F6> Big B alleges that it has 22,010,310 shares of
common stock outstanding. Complaint P. 1.
<PAGE>
Nor does Big B's purported legal support help its
analysis. Big B discusses at length Healy v. Ratta, 292 U.S.
263 (1934), to support its argument that the Offer is not part
of the object of this suit. Big B suggests that the effect of
the Poison Pill on Revco's tender offer is only collateral or
conjectural and is, therefore, not part of the object of this
suit. Big B is wrong. Big B's quotation from Healy (Big B Mem.
at 5) intentionally omits language (by replacing it with
ellipses) indicating that the Court was excluding from the
object of that suit "the collateral effect of the decree, by
virtue of stare decisis, upon other and distinct
controversies". Healy, 292 U.S. at 267 (emphasis added). As
the full quotation makes clear, all Healy stands for is the
unremarkable proposition that the uncertain possibility of
future lawsuits raising the same issue of law should not be
considered part of the object of a given lawsuit. The effect
of the Poison Pill upon Revco's tender offer is not the type
of "collateral effect" to which the Court was referring.
Rather, the effect of the Poison Pill on Revco's Offer is part
and parcel of the object of this litigation.<F7>
Third, Big B argues that "[t]he value of the cause
of action or the amount in controversy is determined from the
plaintiff's point of view" (Big B Mem. at 3) (citations
omitted). Big B is wrong. As Revco noted in its Notice of
Removal (at 3), "[t]he purpose of an amount in controversy
requirement is to ensure the substantiality of the suit
itself, not solely the amount which the plaintiff stands to
recover." 1 J. Moore, Moore's Federal Practice P. 91[1] at 819
(2d ed. 1996).
- --------------------
[FN]
<F7> That Big B seeks a declaratory judgment
against Revco should make this abundantly clear.
<PAGE>
Big B further asserts that Duderwicz v. Sweetwater
Sav. Ass'n, 595 F.2d 1008 (5th Cir. 1979), supports its
argument that the amount in controversy is limited to the
amount the plaintiff can recover. Big B is wrong. The
Duderwicz Court plainly stated that "the value of the matter
in controversy is measured not by the monetary judgment which
the plaintiff may recover, but by the judgment's pecuniary
consequence to those involved in the litigation". Id. at 1014
(emphasis added).<F8> Judge Nelson recently reiterated this
point. In Earnest v. General Motors Corp., 923 F. Supp. 1469
(N.D. Ala. 1996), Judge Nelson stated that "federal
jurisdiction is established if the value of the equitable
relief demanded exceeds the jurisdictional threshold," and
that "[t]he value of the equitable relief is measured by the
pecuniary consequence to those involved in the litigation."
Id. at 1473 (emphasis added).<F9>
- --------------------
[FN]
<F8> Big B also implies that Hunt, 432 U.S. 333 (1977),
stands for the proposition that only the value to the
plaintiff may be considered. What Big B fails to note,
however, is the posture of Hunt. In Hunt, the plaintiff
organization brought suit against the Governor of North
Carolina and others, challenging the constitutionality of a
North Carolina statute. The Court held that the object of the
suit was "the right of the individual Washington apple growers
and dealers to conduct their business affairs . . . free from
the interference of the challenged statute." Id. at 347.
Nothing in the Court's opinion suggests that the result would
have been any different if the State of North Carolina had
instead beat the plaintiff organization to the courthouse door
by filing a suit against that organization seeking a
declaration that the North Carolina statute was lawful.
Similarly, here, the value of the object of this suit cannot
be made to depend upon whether Big B or Revco was the first to
file suit.
<F9> It is common practice for federal courts to
entertain motions for equitable relief on the basis of
diversity jurisdiction where the legality of poison pills is
challenged. See, e.g., Clarendon Group, Ltd. v. Smith
Laboratories, Inc., 741 F. Supp. 1449 (S.D. Cal. 1990); Avon
Products, Inc. v. Chartwell Assoc. L.P., 1990 WL 422416
(S.D.N.Y. Mar. 1, 1990); R.D. Smith & Co., Ltd. v. Preway
Inc., 644 F. Supp. 868 (W.D. Wis. 1986); Amalgamated Sugar
Co., LLC v. NL Indus., Inc., 644 F. Supp. 1229 (S.D.N.Y.
1986).
<PAGE>
The law of this circuit clearly states that the
value of equitable relief upon which the jurisdictional amount
is determined is calculated by measuring the pecuniary
consequence of the judgment to all those involved in the
litigation. As set forth in Revco's Notice of Removal, the
pecuniary consequences to Revco include the value of the
Offer, which has an announced equity value of approximately
$330 million.<F10> Furthermore, the object of this suit includes
whether Big B may unlawfully impede Revco's Offer by adopting
the Poison Pill. Regardless of how the Court values that
object, it clearly exceeds the jurisdictional amount.
In light of the foregoing, Revco respectfully
requests that the Court deny Big B's motion to remand.
-------------------------------
Hobart A. McWhorter, Jr.
-------------------------------
Philip J. Carroll, III
- --------------------
[FN]
<F10> Even if Weeks v. American Dredging Co., 451 F.
Supp. 464 (E.D. Pa. 1978), which Big B cites as holding that
the amount in controversy is not measured by the amount of the
tender offer, were correctly decided, and even if this Court
were to follow Weeks, the jurisdictional amount would be met.
In Weeks the court rejected the idea of using the value of the
tender offer, and chose instead to use the value of the shares
held by the tender offeror. See id. at 466-67. Revco owns
1,190,000 shares of Big B common stock. Valuing these shares
at the Offer price of $15 per share, which Big B believes is
an undervaluation, it is clear that the jurisdictional amount
is exceeded.
<PAGE>
-------------------------------
Matthew A. Aiken
Attorneys for Defendants
and Counterclaim-Plaintiffs
Revco D.S., Inc. and
RDS Acquisition Inc.
OF COUNSEL:
BRADLEY, ARANT, ROSE & WHITE
P.O. Box 830709
Birmingham, Alabama 35283-0709
(205) 521-8000
Rory O. Millson
Julie A. North
CRAVATH, SWAINE & MOORE
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
CERTIFICATE OF SERVICE
----------------------
I hereby certify that I have this date served the foregoing on
Kaye H. Turberville, Esq., Sirote & Permutt, P.C., 2222 Arlington Avenue
South, Birmingham, Alabama 35255 by delivering a copy of same to her on
this day ____ of October, 1996.
-------------------------------
OF COUNSEL
