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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
(PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
(AMENDMENT NO. 4)
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 11)
MAXSERV, INC.
(NAME OF SUBJECT COMPANY)
SEARS, ROEBUCK AND CO.
MAX ACQUISITION DELAWARE INC.
(BIDDERS)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
005779171
(CUSIP NUMBER OF CLASS OF SECURITIES)
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MICHAEL D. LEVIN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
SEARS, ROEBUCK AND CO.
3333 BEVERLY ROAD
HOFFMAN ESTATES, IL 60179
(847) 286-2500
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
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COPY TO:
MARK D. GERSTEIN, ESQ.
LATHAM & WATKINS
SEARS TOWER, SUITE 5800
233 SOUTH WACKER DRIVE
CHICAGO, IL 60606-6401
(312) 876-7700
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Sears, Roebuck and Co. and Max Acquisition Delaware Inc. hereby amend and
supplement their Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-
1"), filed with the Securities and Exchange Commission on February 4, 1997,
with respect to the offer to purchase any and all of the shares of Common
Stock, par value $.01 per share, of MaxServ, Inc., at a price of $7.00 per
share upon the terms and subject to the conditions set forth in the Offer to
Purchase and in the related Letter of Transmittal. This Amendment No. 4 to the
Schedule 14D-1 also constitutes the Amendment No. 11 to the Statement on
Schedule 13D of Parent and Purchaser. The item numbers and responses thereto
below are in accordance with the requirements of Schedule 14D-1. Capitalized
terms not defined herein have the meaning ascribed to them in the Schedule
14D-1.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(f) of the Schedule 14D-1 is hereby amended to read as follows:
On February 18, 1997, Parent issued a press release, a copy of which is
included as exhibit (g)(4) hereto and the information contained therein is
incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 of the Schedule 14D-1 is hereby amended to add the following
exhibits:
(f)(1) Written statement furnished to D.F. King & Co., Inc. by Parent on
February 18, 1997.
(g)(4) Text of Press Release issued by Parent, dated February 18, 1997.
2
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SIGNATURE
AFTER DUE INQUIRY AND TO THE BEST OF MY KNOWLEDGE AND BELIEF, I CERTIFY THAT
THE INFORMATION SET FORTH IN THIS STATEMENT IS TRUE, COMPLETE AND CORRECT.
Max Acquisition Delaware Inc.
Dated: February 19, 1997
/s/ John T. Pigott
By: _________________________________
Name: John T. Pigott
Title: Vice President and
Treasurer
Sears, Roebuck and Co.
/s/ Michael D. Levin
By: _________________________________
Name: Michael D. Levin
Title: Senior Vice President,
General Counsel and Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
Written statement furnished to D.F. King & Co., Inc. by Parent on
(f)(1) February 18, 1997.
(g)(4) Text of Press Release issued by Parent, dated February 18, 1997.
</TABLE>
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EXHIBIT (f)(1)
SEARS ROEBUCK & CO.'S RESPONSE TO THE SPECIAL COMMITTEE'S INTERPRETATION OF
SEARS ABILITY TO EFFECT THE SECOND STEP MERGER
The Special Committee of the MaxServ, Inc. Board of Directors in its
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule") states
that Sears cannot effect the Second Step Merger unless it acquires more than
71,093 Shares in the Offer. It bases this statement on an interpretation of
Section 7.4(e) of the Stock Purchase Agreement between Sears and MaxServ, dated
as of December 29, 1994, which reads as follows:
(e) Neither Sears nor any affiliate thereof, other than the Allstate
Corporation and its subsidiaries and The Savings and Profit Sharing Fund of
Sears Employees or similar plans with respect to Allstate (collectively,
the "Sears Group") will, directly or indirectly, acquire, without the
approval of a majority of the directors on the MaxServ Board of Directors
who are not affiliated with Sears, any Voting Securities if the effect of
such acquisition would be to increase the aggregate voting power in the
election of directors of all Voting Securities then owned by all members of
the Sears Group to greater than 64.93% of such total combined voting power
of all the Voting Securities then outstanding; provided that:
the Sears Group may acquire Voting Securities WITHOUT REGARD TO THE
FOREGOING LIMITATION IF A TENDER OFFER IS MADE BY SEARS or any one or more
members of the Sears Group to acquire all outstanding Voting Securities not
already owned by the Sears Group. For purposes of this provision, "Voting
Securities" shall mean all classes of capital stock of the Company which
are then entitled to vote generally in the election of directors. (emphasis
added)
Sears disagrees with the Special Committee's interpretation of the above
provision for the following reasons:
1. Plain Language. The plain language of Section 7.4(e) clearly states
that Sears is entitled to acquire shares "without regard to the foregoing
limitation" if a tender offer is made--such a tender offer has been made.
2. Absence of Limitations or Minimum. Section 7.4(e) specifically does
not require that Sears purchase any minimum number of Shares pursuant to
the tender offer, nor does it restrict Sears from acquiring Shares outside
of the Offer, so long as a tender offer "is made."
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EXHIBIT (g)(4)
Contact:
Tom Nicholson
847-286-5321
For Immediate Release
February 18, 1997
SEARS COMMENTS ON MAXSERV RECOMMENDATION TO SHAREHOLDERS;
INTENDS TO COMPLETE ITS OFFER AT $7.00 PER SHARE
Hoffman Estates, IL -- Sears, Roebuck and Co. (NYSE-S) today commented on the
Schedule 14D-9 prepared and filed by the Special Committee of the Board of
Directors of MaxServ, Inc. (Nasdaq-MXSV) in response to Sears all cash $7.00
per share tender offer for all shares of MaxServ not currently owned by Sears.
"Sears regrets the Special Committee has determined to recommend against Sears
offer," said Michael D. Levin, senior vice president, general counsel and
secretary of Sears. "Sears offer of $7.00 per share represents an approximate
44 percent premium to the $4.875 price of MaxServ's shares prior to the date of
announcement of Sears interest and an approximate 82 percent premium to the
twelve-month average to such date of $3.85. In addition, Merrill Lynch & Co.
has provided Sears its opinion that the offer is, from a financial point of
view, fair to the stockholders of MaxServ other than Sears."
Sears has sought to negotiate with the Special Committee, believing there may
be additional value in a negotiated transaction. The Special Committee has
refused to meet with Sears unless Sears is willing to pay a price per share in
excess of $8.00. Sears notes that, despite repeated requests, the Special
Committee has provided neither Sears nor MaxServ's stockholders with any
valuation or opinion that supports the Special Committee's belief that only a
price of $8.00 or more will be fair to the stockholders of MaxServ.
"Sears is confident of its rights to complete its planned second-step merger of
MaxServ with Max Acquisition Delaware, Inc., regardless of the number of shares
tendered in the offer," said Levin. Sears also noted that the 71,093 shares the
Special Committee believes would allow Sears to complete a second-step merger
represent only 1.8% of the shares held by stockholders other than Sears.
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"Nothing in the Special Committee's Schedule 14D-9 has changed Sears view that
its offer is fair to the stockholders of MaxServ, and in light of the Special
Committee's unwillingness to negotiate, Sears has concluded that there is little
or no likelihood of a negotiated transaction, and intends to complete its tender
offer at $7.00 per share," said Levin.
In connection with filing of the Schedule 14D-9 by MaxServ, Sears amended its
Schedules 14D-1 and 13E-3 to set forth certain correspondence between the Sears
designated directors of MaxServ and the Special Committee regarding the Schedule
14D-9.
Sears, Roebuck and Co. is a leading U.S. retailer of apparel, home and
automotive products and services, with annual revenue of more than $38 billion.
Sears has been a customer of MaxServ since 1983 and accounts for more than 90
percent of MaxServ's revenues. MaxServ provides information services for the
repair and servicing of appliances and electronics by Sears technicians.
