EXHIBIT 11
BIG B, INC.
0000 Xxxxxx Xxxx X.X.
Xxxxxxxx, Xxxxxxx 00000
October 1, 1996
Revco D.S., Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Mr. D. Xxxxxx Xxxxx
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, with-
out limitation, financial advisors, attorneys and accoun-
tants) 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 hereinaf-
ter referred to as the "Information." The term Informa-
tion will not, however, include (i) information which is
already in your possession (other than information pro-
vided 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) infor-
mation which is or becomes available to you on a noncon-
fidential 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 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 connec-
tion with the Transaction. You further agree to
disclose the Information only to your Representa-
tives (a) who need to know the Information in con-
nection with negotiating or evaluating the Transac-
tion, (b) who are informed by you of the confiden-
tial 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 permit-
xxx to disclose such of the Information as you are
advised by counsel is legally required to be dis-
closed 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 Representa-
tives.
2. In the event that you or any of your Representatives
are requested or required (by oral questions, inter-
rogations, requests for information documents,
subpoena, civil investigative demand, any informal
or formal investigation by any government or govern-
mental 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 Representa-
tives, 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 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 Informa-
tion 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 repro-
ductions of the Information shall be retained by you
or your Representatives. Any portion of the Infor-
mation that consists solely of analyses, compila-
tions, forecasts, schedules or other notes or docu-
ments prepared by you or your Representatives, in
lieu of being returned to the Company, may be de-
stroyed 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 prac-
xxxx, 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 control-
ling persons within the meaning of Section 20 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), makes any express or implied repre-
sentation or warranty as to the accuracy or com-
pleteness 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 Repre-
sentatives on any basis (including, without limita-
tion, 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 Informa-
tion by you or your representatives, or any errors
therein or 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 Trans-
action, 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 agree-
ment, 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
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 defini-
tive and binding agreement providing for the acqui-
sition 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 pro-
posal 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 equi-
table 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 privi-
lege 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 princi-
ples 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 previ-
ous 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 unen-
forceable, 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 coun-
terparts, 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 bene-
fit of and be binding upon our respective suc-
cessors 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 Compa-
ny, Big B, Inc., Attention: Chief Executive
Officer, 0000 Xxxxxx Xxxx X.X., Xxxxxxxx, Xxx-
xxxx 00000, telecopier: (000) 000-0000, or, in
the case of you, Revco D.S., Inc., Attention:
President and Chief Executive Officer, 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxx 00000,
telecopier: (000) 000-0000.
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:_____________________
Name:
Title:
Accepted and Agreed
as of the date first
written above:
Revco D.S., Inc.
By:_____________________
Name:
Title:
