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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. 1)
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 8)
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 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 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. 1 to the Schedule 14D-1 also
constitutes the Amendment No. 8 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 5.PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 of the Schedule 14D-1 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.
2
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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 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 of the Schedule 14D-1 is hereby amended to add the following
exhibits:
(g)(1)Draft Resolutions of the Board of Directors of MaxServ, Inc.
(g)(2) Written consent in lieu of a meeting executed by Sears, Roebuck and Co.
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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
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
------- ----------- -------------
<C> <S> <C>
(g)(1) Draft Resolutions of the Board of Directors of
MaxServ, Inc.
(g)(2) Written consent in lieu of a meeting executed by
Sears, Roebuck and Co.
</TABLE>
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EXHIBIT (g)(1)
RESOLVED, that James F. Leary is hereby elected and appointed to serve
as a director of the Company until his successor is duly elected and qualified,
thereby filling the vacancy created by his resignation in December 1996.
FURTHER RESOLVED, that Section 6.3 of the Company's Bylaws is hereby
deleted in its entirety and that a new Section 6.3 is hereby added (to replace
deleted Section 6.3) to hereafter read as follows:
"6.3.1. Record Dates For Actions Not by Written Consent. In order
that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, to
receive payment of any dividend or other distribution or allotment of any
rights, to exercise any rights in respect of any change, conversion or
exchange of stock or to effect any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than
sixty (60) nor less than ten (10) days prior to any such action. In the
absence of any action by the Board of Directors, the record date shall be
at the close of business on the day preceding (i) the date on which a
notice of meeting is given, or (ii) the date the Board of Directors adopts
the resolution declaring a dividend or other distribution or allotment or
approving any change, conversion or exchange, as the case may be, shall be
the record date. A record date validly fixed for any meeting of
stockholders shall be valid for any adjournment of said meeting and shall,
at the Board of Directors election, be valid for any reconventions and
readjournments of the meeting made no later than ninety (90) days after
such record date.
6.3.2. Record Date for Action by Written Consent. In order that the
Company may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors.
Any stockholder of record seeking to have the stockholders authorize or
take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. The Board
of Directors shall promptly, but in all events within 10 days after the
date on which such a request is received, adopt a resolution fixing the
record date. If no record date has been fixed by the Board of Directors
within 10 days of the date on which such a request is received, the record
date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be
taken is delivered to the Company by delivery to its registered office in
Delaware, its principal place of business or to any officer or agent of the
Company having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Company's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by applicable law, the
record date for determining
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stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
6.3.3. Inspectors of Written Consent. In the event of the delivery,
in the manner provided by Section 6.3.2 to the Company of the requisite
written consent or consents to take corporate action and/or any related
revocation or revocations, the Company shall engage nationally recognized
independent inspectors of elections for the purpose of promptly performing
a ministerial review of the validity of the consents and revocations. For
the purpose of permitting the inspectors to perform such review, 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. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board of Directors or any
stockholder shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after such certification by the
independent inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation.)
6.3.4. Effectiveness of Written Consent. Every written consent shall
bear the date of signature of each stockholder who signs the consent and no
written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the date the earliest date written
consent was received in accordance with Section 6.3.2, a written consent or
consents signed by a sufficient number of holders to take such action are
delivered to the Company in the manner prescribed in Section 6.3.2."
FURTHER RESOLVED, that the Board of Directors does hereby designate a
committee to have plenary power and authority to take any and all action in
connection with all matters relating to Sears' Offer to Purchase for cash any
and all outstanding shares of common stock including, without limitation, the
preparation, approval and distribution of a Schedule 14D-9 and all matters
related thereto; 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); the preparation and
approval of all press releases related to any of the foregoing; and the
retention of any necessary advisors, professionals or independent contractors,
but excluding any matters not specifically authorized herein for which the Board
can not delegate authority pursuant to Section 141 of the Delaware General
Corporation Law without such specific authorization; which committee is
designated the "Independent Committee," the members of which are Messrs. Turner,
Keane, Rivelli, Bayless and Leary.
FURTHER RESOLVED, that the Independent Committee be, and hereby is,
authorized, for and on behalf and in the name of the Company, to engage such
advisors, professionals and others as the members of the Independent Committee
in their sole and absolute discretion deem
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advisable or necessary and to enter into agreements with such persons upon such
terms and conditions as the members of the Independent Committee in their sole
and absolute discretion deem advisable; and that the Company is authorized to
pay the fees of all such persons engaged by the Independent Committee in
accordance with the terms of the respective agreements with such persons.
FURTHER RESOLVED, that the officers of the Company and such other persons
as are designated by them, be, and each of them hereby is, authorized and
directed to make available to the members of the Independent Committee and their
advisors such books, records, reports, studies and other information as the
members of the Independent Committee or their advisors may deem necessary or
appropriate to facilitate the performance of their duties, and that the officers
of the Company are further authorized to take any and all additional action
necessary, desirable or appropriate to effect the intent of the resolutions
contained herein.
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EXHIBIT (g)(2)
WRITTEN CONSENT OF THE MAJORITY STOCKHOLDER
OF
MAXSERV, INC.
The undersigned, being the majority stockholder of MaxServ, Inc., a
Delaware corporation (the "Corporation"), hereby takes the following action with
respect to the Corporation by written consent in lieu of a meeting of
shareholders pursuant to Section 1.9 of the Corporation's by-laws and Section
228 of the Delaware General Corporation Law ("DGCL"):
WHEREAS, a vacancy currently exists on the Board of Directors of the
Corporation ("Board"), and
WHEREAS, the undersigned stockholder desires to fill the vacancy on
the Board of Directors of the Corporation:
THEREFORE BE IT RESOLVED, that Steven M. Cook is elected to serve on
the Board (in addition to the directors currently serving on the Board).
WHEREAS, the undersigned stockholder desires that the unanimous vote
of the directors of the Corporation be required in order for the directors to
amend the Corporation's bylaws:
THEREFORE BE IT RESOLVED, that Section 6.19 of the Corporation's by-
laws is amended and restated to read as follows:
6.19 Amendments. These Bylaws may be altered, amended,
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.
FURTHER RESOLVED, that the Secretary of the Corporation is hereby
directed to provide notice to the stockholders of the Corporation of the action
taken by this written consent pursuant to Section 1.9 of the Corporation's by-
laws and Section 228 of the DGCL.
February 5, 1997 SEARS, ROEBUCK AND CO.
By: /s/ Michael D. Levin
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Name: Michael D. Levin
Title: Senior Vice President,
General Counsel and Secretary
