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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934)
(AMENDMENT NO. 1)
MAXSERV, INC.
(NAME OF THE ISSUER)
SEARS, ROEBUCK AND CO.
MAX ACQUISITION DELAWARE INC.
(NAME OF THE PERSONS FILING STATEMENT)
COMMON STOCK $.01 PAR VALUE 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 PERSONS FILING STATEMENT)
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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 Rule 13e-3 Transaction Statement on Schedule 13E-3 (the
"Schedule 13E-3"), filed with the Securities and Exchange Commission on
February 4, 1997, with respect to the offer to purchase 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. The item numbers and
responses thereto below are in accordance with the requirements of Schedule
13E-3. Capitalized terms not defined herein have the meaning ascribed to them
in the Schedule 13E-3.
ITEM 5.PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 of the Schedule 13E-3 is hereby amended to add the following
information:
On Tuesday, February 4, 1997, at 4:30 p.m., the members of the MaxServ Board
who had been designated by Parent received notice by facsimile transmission of
a special meeting of the Board of Directors of MaxServ to be held at 5 p.m.
(Dallas time) on Wednesday, February 5, 1997. The meeting was purported to be
called by two unnamed directors.
On the afternoon of February 5, outside counsel to Parent sought to contact
counsel to the Company as to the validity of the call of such meeting; his
call to her was not returned. At approximately 5 p.m. on February 5, a
teleconference began in which the Parent designated directors participated, as
well as inside legal counsel to Parent. Prior to the start of any such
meeting, the Parent designated directors joined the teleconference and
inquired as to whether the meeting had been properly called, as Section 2.7 of
the Bylaws of the Company requires that the call of a special meeting other
than by the President must be made "on the written request of two directors. .
. ." The Company acknowledged that such written request had been provided to
the Company only on February 5. The Parent designated directors then renewed
their objections to the call and notice of the meeting, and suggested that a
duly called and noticed meeting be scheduled at an agreed upon date and time.
The Chairman of the MaxServ Board then left the teleconference to consult with
counsel to the Company. They rejoined the call, and announced a new meeting
would be called and noticed for Friday, February 7, 1997.
During the teleconference, the Parent designated directors received
typewritten resolutions which, they presumed, were to be proposed for adoption
at the improperly called special meeting (the "Draft Resolutions"). The Draft
Resolutions, which are attached as Exhibit (g)(1) to this Amendment, provided
for the following:
1. The appointment of James F. Leary to fill the vacancy on the MaxServ
board created by Mr. Leary's own resignation in December 1996 (after
announcement of Sears' interest in acquiring the Minority Interests). Mr.
Leary is a principal of Sunwestern.
2. Amendment of the Company's Bylaws (the "Bylaw Amendments") with
respect to the establishment of record dates for the taking of action not
by written consent or by written consent, procedures for the appointment of
an independent inspectors to tabulate written consents and certain terms
regarding the effective dates of written consents. More specifically:
(a) The Bylaw Amendment concerning the establishment of a record date
for action by written consent would have required Parent to request in
writing that the MaxServ Board establish a record date for the taking
of action by stockholders by written consent in lieu of a meeting, and
allowed the MaxServ Board up to 10 days to establish such a record date
and which record date could be up to 10 days after the date on which
the record date is established. During the pendency of such period,
Parent would be unable to exercise any rights as a majority stockholder
of the Company.
(b) The Bylaw Amendment concerning independent inspectors of written
consents provided that "no action by written consent without a meeting
shall be effective until such date as the independent inspectors
certify to the Company that the consents delivered to the Company in
accordance with Section 6.3.2 represent at least the minimum number of
votes that would be necessary to take the corporate action." During
such period of inspection, a written consent properly executed by
Parent would not be effective.
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3. The appointment of an "Independent Committee" comprised of Messrs.
Turner, Keane, Rivelli, Leary and a member of the Company's management, Mr.
Bayless (the Chief Executive Officer). Such "Independent Committee" was to
have "plenary power and authority to take any and all action in connection
with all matters relating to Sears' Offer to Purchase", including "the
consideration and approval, if appropriate, of defensive measures
(including the specific authority to consider and approve, if appropriate,
the declaration of a dividend distribution of rights, entitling the holder,
in certain instances, to receive, upon exercise, common stock of the
Company, of a value to be determined by the Committee)"; a so-called
"poison pill."
Upon reviewing the Draft Resolutions, Parent concluded the contemplated
actions of the MaxServ Board were intended to impair Parent's legitimate right
to exercise voting power as the majority stockholder of the Company and its
legitimate rights to complete the Offer. Further, Parent also believes that
the appointment of the Independent Committee is unnecessary as the previously
appointed Special Committee, comprised solely of outside directors, has been
properly constituted and been provided sufficient authority to permit the
MaxServ Board to fulfill its fiduciary duties to the Company's stockholders,
including Parent, in connection with the Offer. Parent and Purchaser also
noted that pursuant to the condition established in clause (viii) of
subsection (g) of the section entitled "THE TENDER OFFER--Certain Conditions
of the Offer" of the Offer to Purchase, Parent and Purchaser would be entitled
to terminate the Offer if the Bylaw Amendments were to be adopted.
As a consequence, and in order to prevent members of the MaxServ Board from
adopting the Proposed Resolutions or further acting to impair the rights of
Parent as a majority stockholder of the Company, Parent executed a written
consent in lieu of a meeting of the Company's stockholders (the "Written
Consent") pursuant to Section 228 of the Delaware General Corporation Law (the
"DGCL") and properly served such written consent upon the registered agent of
the Company on Thursday, February 6, 1997, at which time the Written Consent
became effective under the provisions of the DGCL. A copy of the written
consent is attached as Exhibit (g)(2).
The Written Consent provided for the following:
1. Steven M. Cook, an officer of Parent, was appointed to fill the
vacancy on the MaxServ Board created by Mr. Leary's resignation.
2. Section 6.19 of the Company's Bylaws was amended and restated as
follows:
6.19 Amendments. These Bylaws may be altered, repealed or replaced by
the stockholders or by vote of the Board of Directors, which such vote
shall require, in addition to any other vote required by law, the
affirmative vote of each director then in office. The fact that the
Board of Directors has such power shall not operate to divest or limit
the stockholders of the power to alter, amend, repeal or replace the
Bylaws.
As a result of the effectiveness of the Written Consent, (i) four designees
of Parent now are members of the Company's Board and four members are
independent of Parent, and (ii) no amendment to the Company's Bylaws may be
made without the consent of Parent's designees on the MaxServ Board.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
Item 9 of the Schedule 13E-3 is hereby amended to add the following
information:
A copy of exhibit (b)(2) to the Schedule 13E-3, will be made available for
inspection and copying at 3333 Beverly Road, Hoffman Estates, Illinois 60179,
during the regular business hours of Parent by any interested equity security
holder of the Company or such holder's representative who has been so
designated in writing.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
Item 17 of the Schedule 13E-3 is hereby amended to add the following
exhibits:
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(g)(1) Draft resolutions of the Board of Directors of MaxServ, Inc.
(previously filed as exhibit (g)(1) to the Schedule 14D-1 and
incorporated herein by reference).
(g)(2) Written consent in lieu of a meeting executed by Sears, Roebuck and
Co. (previously filed as exhibit (g)(2) to the Schedule 14D-1 and
incorporated herein by reference).
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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 6, 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
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EXHIBIT
NUMBER DESCRIPTION
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(g)(1) Draft resolutions of the Board of Directors of MaxServ, Inc. (previously filed as
exhibit (g)(1) to the Schedule 14D-1 and incorporated herein by reference).
(g)(2) Written consent in lieu of a meeting executed by Sears, Roebuck and Co.
(previously filed as exhibit (g)(2) to the Schedule 14D-1 and incorporated herein
by reference).
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