<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 14, 1997
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MaxServ, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-12544 74-2707626
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(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
8317 Cross Park Drive Austin, Texas 78754
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (512) 834-8341
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N/A
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(Former name or former address, if changed since last report.)
<PAGE>
Item 1. Changes in Control of Registrant.
On March 18, 1997 (the "Effective Time"), Max Acquisition Delaware
Inc., a Delaware corporation ("Purchaser") and a wholly owned subsidiary of
Sears, Roebuck and Co., a New York corporation ("Parent"), was merged (the
"Merger") with and into MaxServ, Inc., a Delaware corporation (the
"Registrant"), pursuant to an Agreement and Plan of Merger by and among the
Registrant, Purchaser and Parent, dated as of March 2, 1997 (the "Merger
Agreement"). The Merger occurred subsequent to a tender offer (the "Offer") by
Purchaser for any and all outstanding shares of common stock of the Registrant
not owned by Parent at a cash price of $7.75 per share, which Offer expired on
March 14, 1997. Purchaser acquired 3,696,183 shares pursuant to the Offer,
which, together with the 7,033,333 shares previously owned by Parent and
transferred to Purchaser prior to the Effective Time, resulted in Purchaser's
aggregate ownership of approximately 98% of the outstanding shares of common
stock of the Registrant. As a result of the Merger, the Registrant became a
wholly owned subsidiary of Parent and Purchaser ceased to exist as a separate
corporate entity.
In connection with the Merger, each outstanding share of the
Registrant's common stock not tendered pursuant to the Offer or otherwise owned
by Purchaser immediately prior to the Effective Time was converted into the
right to receive $7.75 per share in cash, without interest thereon, from the
Registrant upon surrender and delivery of such shares (together with a properly
completed and executed Letter of Transmittal) to the disbursing agent in
connection with the Merger. This right is subject to the appraisal rights
described in the Notice of Merger and Appraisal Rights Available to Former
Stockholders of MaxServ, Inc., dated as of March 25, 1997 (the "Notice"), which
Notice was mailed to former stockholders of the Registrant on March 25, 1997.
As a result of the Merger, the stock transfer books of the Registrant
were closed at 4:15 p.m. EST on March 18, 1997.
In accordance with the terms of the Merger Agreement, the eight
members of the Board of Directors of the Registrant resigned effective as of the
Effective Time and were replaced by the three directors of Purchaser.
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MAXSERV, INC.
Date: March 28, 1997 By: /s/ Neil A. Johnson
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Neil A. Johnson
Senior Vice President, Finance and
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Page
Exhibit Description of Exhibit Number
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<S> <C> <C>
2.1 Agreement and Plan of Merger, by and among MaxServ, Inc.,
Max Acquisition Delaware Inc. and Sears, Roebuck and Co.,
dated as of March 2, 1997*
2.2 Notice of Merger and Appraisal Rights Available to Former
Stockholders of MaxServ, Inc.
2.3 Letter of Transmittal
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</TABLE>
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* Previously filed with the Securities and Exchange Commission as Exhibit 21
to Amendment No. 1 to Schedule 14D-9 (Solicitation/Recommendation
Statement) filed by the Registrant on March 3, 1997. The Agreement and
Plan of Merger is hereby incorporated herein by reference.
<PAGE>
EXHIBIT (d)(12)
MAXSERV, INC.
8317 CROSS PARK DRIVE
AUSTIN, TEXAS 78754
NOTICE OF MERGER AND APPRAISAL RIGHTS
AVAILABLE TO FORMER STOCKHOLDERS OF
MAXSERV, INC.
To the Holders of Certificates Formerly
Representing Common Stock of MaxServ, Inc.
NOTICE IS HEREBY GIVEN pursuant to Sections 253(d) and 262(d)(2) of the
General Corporation Law of the State of Delaware (the "DGCL") that, effective
on March 18, 1997 (the "Effective Time"), Max Acquisition Delaware Inc., a
Delaware corporation ("Max Acquisition") and a wholly owned subsidiary of
Sears, Roebuck and Co., a New York corporation ("Sears"), was merged (the
"Merger") with and into MaxServ, Inc., a Delaware corporation (the "Company").
Immediately prior to the Effective Time, Max Acquisition owned approximately
98% of the outstanding shares of common stock, par value $.01 per share (the
"Shares"), of the Company. The Merger was effected pursuant to Section 253 of
the DGCL. Pursuant to Section 253 of the DGCL, no action was required by
stockholders of the Company (other than Max Acquisition) for the Merger to
become effective.
As a result of the Merger, the Company is now a wholly owned subsidiary of
Sears. Pursuant to the terms of the Merger, each Share outstanding immediately
prior to the Effective Time (other than Shares held by the Company in its
treasury and Shares held by Max Acquisition) has been converted, subject to
the appraisal rights described below, into the right to receive from the
Company $7.75 in cash, without interest thereon, upon surrender of
certificates for such Shares to First Chicago Trust Company of New York, as
Disbursing Agent (the "Disbursing Agent"), as set forth in the enclosed letter
of transmittal (the "Letter of Transmittal"). As a result of the Merger, the
stock transfer books of the Company were closed at the Effective Time of the
Merger. Accordingly, the Company cannot record any further transfers of Shares
on such books.
SURRENDER OF CERTIFICATES
The Disbursing Agent, on behalf of the Company, will accept the surrender of
certificates for Shares in exchange for the $7.75 per Share cash payment.
TO RECEIVE THE $7.75 PER SHARE CASH PAYMENT FOR A FORMER STOCKHOLDER'S
SHARES, THE FORMER STOCKHOLDER OR A DULY AUTHORIZED REPRESENTATIVE MUST (A)
DELIVER THE ENCLOSED LETTER OF TRANSMITTAL, APPROPRIATELY COMPLETED, TO THE
DISBURSING AGENT AND (B) SURRENDER SUCH SHARES BY DELIVERING THE STOCK
CERTIFICATE OR CERTIFICATES THAT, PRIOR TO THE MERGER, HAD EVIDENCED SUCH
SHARES TO THE DISBURSING AGENT, ALL AS SET FORTH IN THE LETTER OF TRANSMITTAL
AND ACCOMPANYING INSTRUCTIONS.
Each person who does NOT plan to seek an appraisal of such person's Shares
is urged to execute (or, if such person is not the record holder of such
Shares, to arrange for such record holder or such holder's duly authorized
representative to execute) and mail postage paid or deliver a Letter of
Transmittal, together with the stock certificate or certificates that, prior
to the Merger, evidenced such person's Shares, to the Disbursing Agent at one
of the addresses set forth in the Letter of Transmittal. Former stockholders
should note and follow carefully the instructions on the reverse side of the
Letter of Transmittal. FORMER STOCKHOLDERS SHOULD ALSO NOTE THAT SURRENDER TO
THE DISBURSING AGENT OF STOCK CERTIFICATES FOR THEIR SHARES MAY CONSTITUTE A
WAIVER OF APPRAISAL RIGHTS UNDER THE DGCL.
The method of delivery of the Letter of Transmittal, stock certificates and
all other required documents is at the election and risk of the former
stockholder. IF THE DECISION IS MADE TO SEND STOCK CERTIFICATES BY MAIL, IT IS
RECOMMENDED THAT SUCH STOCK CERTIFICATES BE SENT BY REGISTERED MAIL, PROPERLY
INSURED, WITH RETURN RECEIPT REQUESTED.
<PAGE>
APPENDIX A
Set forth below are Sections 253(d) and 262 of the General Corporation Law
of the State of Delaware regarding appraisal rights.
SECTIONS 253(d) AND 262 OF THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE
(S) 253 Merger of Parent Corporation and Subsidiary or Subsidiaries--(d) In
the event all of the stock of a subsidiary Delaware corporation party to a
merger effected under this section is not owned by the parent corporation
immediately prior to the merger, the stockholders of the subsidiary Delaware
corporation party to the merger shall have appraisal rights as set forth in
(S) 262 of this title.
(S) 262 Appraisal Rights--(a) Any stockholder of a corporation of this State
who holds shares of stock on the date of the making of a demand pursuant to
subsection (d) of this section with respect to such shares, who continuously
holds such shares through the effective date of the merger or consolidation,
who has otherwise complied with subsection (d) of this section and who has
neither voted in favor of the merger or consolidation nor consented thereto in
writing pursuant to (S) 228 of this title shall be entitled to an appraisal by
the Court of Chancery of the fair value of his shares of stock under the
circumstances described in subsections (b) and (c) of this section. As used in
this section, the word "stockholder" means a holder of record of stock in a
stock corporation and also a member of record of a nonstock corporation; the
words "stock" and "share" mean and include what is ordinarily meant by those
words and also membership or membership interest of a member of a nonstock
corporation; and the words "depository receipt" mean a receipt or other
instrument issued by a depository representing an interest in one or more
shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to
be effected pursuant to (S)(S) 251 (other than a merger effected pursuant to
subsection (g) of Section 251), 252, 254, 257, 258, 263 or 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall
be available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the holders of the surviving corporation as
provided in subsection (f) of (S) 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to
(S)(S) 251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect
thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock or depository receipts at the
effective date of the merger or consolidation will be either listed on
a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National
Association of Securities Dealers, Inc. or held of record by more than
2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
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d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under (S) 253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall
be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets
of the corporation. If the certificate of incorporation contains such a
provision, the procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply as nearly as is
practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which appraisal rights are
available pursuant to subsections (b) or (c) hereof that appraisal rights
are available for any or all of the shares of the constituent corporations,
and shall include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of his shares shall deliver to the
corporation, before the taking of the vote on the merger or consolidation,
a written demand for appraisal of his shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of his shares. A proxy or vote against the merger or
consolidation shall not constitute such a demand. A stockholder electing to
take such action must do so by a separate written demand as herein
provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to (S) 228 or
(S) 253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section, provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within twenty days after the date of
mailing of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to
A-2
<PAGE>
each stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection. An
affidavit of the secretary or assistant secretary or of the transfer agent
of the corporation that is required to give either notice that such notice
has been given shall, in the absence of fraud, be prima facie evidence of
the facts stated therein. For purposes of determining the stockholders
entitled to receive either notice, each constituent corporation may fix, in
advance, a record date that shall be not more than 10 days prior to the
date the notice is given; provided that, if the notice is given on or after
the effective date of the merger or consolidation, the record date shall be
such effective date. If no record date is fixed and the notice is given
prior to the effective date, the record date shall be the close of business
on the day next preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied
with subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger
or consolidation, any stockholder shall have the right to withdraw his demand
for appraisal and to accept the terms offered upon the merger or
consolidation. Within 120 days after the effective date of the merger or
consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which
demands for appraisal have been received and the aggregate number of holders
of such shares. Such written statement shall be mailed to the stockholder
within 10 days after his written request for such a statement is received by
the surviving or resulting corporation or within 10 days after expiration of
the period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the
addresses therein stated. Such notice shall also be given by 1 or more
publications at least 1 week before the day of the hearing, in a newspaper of
general circulation published in the City of Wilmington, Delaware or such
publication as the Court deems advisable. The forms of the notices by mail and
by publication shall be approved by the Court, and the costs thereof shall be
borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled
to appraisal rights. The Court may require the stockholders who have demanded
an appraisal for their shares and who hold stock represented by certificates
to submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as
to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger
or consolidation, together with a fair rate of interest, if any, to be paid
upon the amount determined to be the fair value. In determining such fair
value, the Court shall take into account all relevant factors. In determining
the fair rate of interest, the Court may consider all relevant factors,
including the rate of interest which the surviving or resulting corporation
would have had to pay to borrow money during the pendency of the proceeding.
Upon application by the surviving or resulting corporation or by any
stockholder entitled to participate in the appraisal proceeding, the Court
may, in its discretion, permit discovery or other pretrial
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<PAGE>
proceedings and may proceed to trial upon the appraisal prior to the final
determination of the stockholder entitled to an appraisal. Any stockholder
whose name appears on the list filed by the surviving or resulting corporation
pursuant to subsection (f) of this section and who has submitted his
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he is
not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to
the stockholders entitled thereto. Interest may be simple or compound, as the
Court may direct. Payment shall be so made to each such stockholder, in the
case of holders of uncertificated stock forthwith, and the case of holders of
shares represented by certificates upon the surrender to the corporation of
the certificates representing such stock. The Court's decree may be enforced
as other decrees in the Court of Chancery may be enforced, whether such
surviving or resulting corporation be a corporation of this State or of any
state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded his appraisal rights as provided in subsection
(d) of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation);
provided, however, that if no petition for an appraisal shall be filed within
the time provided in subsection (e) of this section, or if such stockholder
shall deliver to the surviving or resulting corporation a written withdrawal
of his demand for an appraisal and an acceptance of the merger or
consolidation, either within 60 days after the effective date of the merger or
consolidation as provided in subsection (e) of this section or thereafter with
the written approval of the corporation, then the right of such stockholder to
an appraisal shall cease. Notwithstanding the foregoing, no appraisal
proceeding in the Court of Chancery shall be dismissed as to any stockholder
without the approval of the Court, and such approval may be conditioned upon
such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which the shares
of such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation.
A-4
<PAGE>
EXHIBIT (d)(13)
LETTER OF TRANSMITTAL
TO SURRENDER CERTIFICATES FORMERLY REPRESENTING
SHARES OF COMMON STOCK
OF
MAXSERV, INC.
------------------
THE DISBURSING AGENT:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Overnight Courier: By Mail:
By Hand:
First Chicago Trust First Chicago Trust
First Chicago Trust Company Company
Company of New York of New York
of New York Attention: Tenders & Attention: Tenders &
Attention: Tenders & Exchanges Exchanges
Exchanges Suite 4680 -- MXV P.O. Box 2565, Suite 4660
c/o THE DEPOSITORY TRUST 14 Wall Street, 8th Floor Jersey City, NJ 07303-
COMPANY New York, NY 10005 2565
55 Water Street, DTC TAD
Vietnam Veterans Memorial
Plaza
New York, NY 10041
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE DOES
NOT
CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
DESCRIPTION OF CERTIFICATES SURRENDERED
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NAME(S) AND ADDRESS(ES) OF REGISTERED
HOLDER(S) SHARE CERTIFICATE(S) BEING SURRENDERED
(PLEASE FILL IN, IF BLANK, EXACTLY AS (ATTACH SIGNED ADDITIONAL LIST, IF
NAME(S) NECESSARY)
APPEAR(S) ON SHARE CERTIFICATE(S))
- --------------------------------------------------------------------------------
NUMBER OF
SHARES
SHARE FORMERLY
CERTIFICATE REPRESENTED BY
NUMBER(S) SHARE
CERTIFICATE(S)
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
TOTAL SHARES
[_] CHECK HERE AND RETURN THIS LETTER OF TRANSMITTAL TO THE DISBURSING AGENT IF
ANY OF YOUR SHARE CERTIFICATES HAVE BEEN MUTILATED, LOST, STOLEN, OR
DESTROYED. THE DISBURSING AGENT WILL THEREAFTER ADVISE YOU OF THE
REQUIREMENTS FOR RECEIVING PAYMENT FOR THE SHARES FORMERLY REPRESENTED BY
SUCH SHARE CERTIFICATES.
IMPORTANT: Appraisal rights described in the Notice of Merger and Appraisal
Rights accompanying this Letter of Transmittal should be considered carefully
before certificates formerly representing Shares are surrendered for payment.
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW FOR THIS LETTER OF TRANSMITTAL
AND FOR THE SUBSTITUTE FORM W-9 ON THE REVERSE
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
To: First Chicago Trust Company of New York, as Disbursing Agent (the
"Disbursing Agent")
The undersigned has received a copy of the Notice of Merger and Appraisal
Rights dated March 25, 1997 (the "Notice"), in respect of the merger (the
"Merger") of Max Acquisition Delaware Inc., a Delaware corporation, with and
into MaxServ, Inc., a Delaware corporation (the "Corporation"), which Merger
became effective on March 18, 1997 (the "Effective Time"). With respect to the
shares of common stock, par value $.01 per share (the "Shares"), of the
Corporation held by the undersigned at the Effective Time, the undersigned
hereby surrenders the above-described certificate(s) formerly representing
Shares (the "Share Certificate(s)") in exchange for payment of $7.75 per Share
in cash, without interest thereon (the "Merger Consideration"), by the
Disbursing Agent.
The name(s) and address(es) of the registered holder(s) should be printed,
if they are not already set forth on a label above, under "Description of
Certificates Surrendered," as they appear on the Share Certificate(s). The
Share Certificate(s) and the number of Shares formerly represented thereby
that the undersigned wishes to surrender should be indicated in the
appropriate boxes.
The undersigned will, upon request, execute any additional documents deemed
by the Disbursing Agent or the Corporation to be necessary to complete the
transmittal of the Share Certificate(s) surrendered hereby.
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to surrender any Share Certificate(s) delivered
herewith for payment as provided herein and that, when the Merger
Consideration is paid by the Disbursing Agent, the Corporation will not be
subject to any adverse claim in respect of such Share Certificate(s) and (b)
the undersigned has reviewed the Notice, including the information therein
with respect to the rights of stockholders to an appraisal of their Shares
under Sections 253(d) and 262 of the General Corporation Law of the State of
Delaware, and understands that surrender to the Disbursing Agent of Share
Certificate(s) may constitute a waiver of appraisal rights under the General
Corporation Law of the State of Delaware.
The undersigned hereby irrevocably constitutes and appoints the Disbursing
Agent the true and lawful agent and attorney-in-fact of the undersigned with
respect to the Share Certificate(s), with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), to deliver such Share Certificate(s), together with all
accompanying evidences of transfer and authenticity, to the Corporation upon
receipt by the Disbursing Agent, as the undersigned's agent, of the Merger
Consideration. All authority conferred or agreed to be conferred in this
Letter of Transmittal shall be binding upon the successors, assigns, heirs,
executors, administrators and legal representatives of the undersigned and
shall not be affected by, and shall survive the death or incapacity of, the
undersigned.
<PAGE>
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the Merger Consideration in the name(s) of the registered
holder(s) appearing under "Description of Certificates Surrendered" above.
Similarly, unless otherwise indicated below under "Special Delivery
Instructions," please mail the check for the Merger Consideration to the
address of the registered holder(s) appearing under "Description of
Certificates Surrendered" above. In the event that both the Special Payment
Instructions and the Special Delivery Instructions are completed, please issue
the check for the Merger Consideration in the name of, and deliver such check
to, the person so indicated.
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED-- (SIGNATURE GUARANTEE REQUIRED--
SEE INSTRUCTION 2) SEE INSTRUCTION 2)
To be completed ONLY if the To be completed ONLY if the
check for the Merger check for the Merger
Consideration is to be issued in Consideration is to be sent to
the name of someone other than someone other than the
the undersigned. undersigned or to the undersigned
at an address other than that
shown above.
Issue Check to:
Name _____________________________ Mail Check to:
(PLEASE PRINT)
Name _____________________________
Address __________________________ (PLEASE PRINT)
----------------------------------
(INCLUDE ZIP CODE) Address __________________________
---------------------------------- ----------------------------------
(TAXPAYER IDENTIFICATION OR (INCLUDE ZIP CODE)
SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9)
<PAGE>
IMPORTANT
STOCKHOLDERS: SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON OTHER SIDE)
----------------------------------------------------
----------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Dated: , 1997
(MUST BE SIGNED BY THE REGISTERED HOLDER(S)
EXACTLY AS NAME(S) APPEAR(S) ON SHARE
CERTIFICATE(S) OR ON A SECURITY POSITION LISTING OR
BY A PERSON(S) AUTHORIZED TO BECOME THE REGISTERED
HOLDER(S) BY CERTIFICATES AND DOCUMENTS TRANSMITTED
HEREWITH. IF SIGNATURE IS BY A TRUSTEE, EXECUTOR,
ADMINISTRATOR, GUARDIAN, ATTORNEY-IN-FACT, OFFICER
OF A CORPORATION OR OTHER PERSON ACTING IN A
FIDUCIARY OR REPRESENTATIVE CAPACITY, PLEASE
PROVIDE THE FOLLOWING INFORMATION AND SEE
INSTRUCTION 2.)
Name(s): ___________________________________________
____________________________________________________
(PLEASE PRINT)
Capacity (full title): _____________________________
Address: ___________________________________________
____________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No.: _______________________
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.: ____
(SEE SUBSTITUTE FORM W-9 ON
REVERSE SIDE)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTION 2)
Authorized Signature: ______________________________
Name: ______________________________________________
(PLEASE TYPE OR PRINT)
Title: _____________________________________________
Name of Firm: ______________________________________
Address: ___________________________________________
____________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No.: _______________________
Dated: , 1997
<PAGE>
INSTRUCTIONS
1. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATE(S). All Share
Certificate(s) to be surrendered, as well as this Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, and any other
documents required by this Letter of Transmittal, must be received by the
Disbursing Agent at one of its addresses set forth in this Letter of
Transmittal in order for the appropriate person to receive the Merger
Consideration.
Appraisal rights, which are described in the Notice relating to the Merger,
should be considered carefully before Share Certificate(s) are surrendered for
payment or this Letter of Transmittal is executed. Former stockholders should
also note that surrender to the Disbursing Agent of Share Certificate(s) may
constitute a waiver of appraisal rights under the General Corporation Law of
the State of Delaware. In any event, a registered holder who fails to demand
appraisal of such holder's Shares (or a beneficial owner of Shares who fails
to cause the registered holder of such Shares to demand an appraisal of such
Shares) on or prior to April 14, 1997 (i.e., within 20 days after the date of
mailing of the Notice), as provided under Section 262 of the General
Corporation Law of the State of Delaware ("Section 262"), will have waived
such holder's appraisal rights under Section 262. Each person who does NOT
plan to seek an appraisal of all such person's Shares is urged to execute (or,
if such person is not the registered holder of such Shares, to arrange for
such registered holder or such holder's duly authorized representative to
execute) and mail postage paid or deliver this Letter of Transmittal, together
with all Share Certificate(s), to the Disbursing Agent at one of the addresses
set forth on the reverse hereof.
Notwithstanding any other provision hereof, payment of the Merger
Consideration in exchange for Share Certificate(s) surrendered for payment
pursuant to the Merger shall in all cases be made only after receipt by the
Disbursing Agent of such Share Certificate(s), a Letter of Transmittal,
properly completed and duly executed, and any other required documents.
All questions as to the validity of any surrender of Share Certificate(s) or
mailing or delivery of this Letter of Transmittal shall be determined by the
Corporation, whose determination shall be final and binding. The Corporation
reserves the absolute right to reject any or all Share Certificate(s) or
Letters of Transmittal not in proper form or the payment for which may, in the
opinion of counsel for the Corporation, be unlawful. The Corporation also
reserves the absolute right to waive any defect or irregularity in the
surrender of any Share Certificate(s) or Letters of Transmittal. Neither the
Corporation (or any of its affiliates) nor the Disbursing Agent or any other
person will be under any duty to give notification of any defects or
irregularities in any Letter of Transmittal or will incur any liability for
failure to give any such notification to any person (even if such notification
is given to other persons).
2. SIGNATURES; SIGNATURE GUARANTEES. If Share Certificate(s) are registered
in the name of a person other than the signer of this Letter of Transmittal,
the Share Certificate(s) must be duly endorsed, or accompanied by stock
power(s) signed by the registered holder(s), with the signature(s) on the
endorsement(s) or stock power(s) guaranteed thereon and on this Letter of
Transmittal as provided below. If the surrendered Share Certificate(s) are
owned of record by two or more joint holders, all such holders must sign this
Letter of Transmittal. If this Letter of Transmittal is executed by an officer
on behalf of a corporation or by an executor, administrator, trustee,
guardian, attorney-in-fact, agent or other person acting in a fiduciary or
representative capacity, proper documentary evidence must be furnished of the
authority of the person executing the same. Questions regarding such evidence
of authority may be referred to the Disbursing Agent.
IF SHARE CERTIFICATE(S) ARE SURRENDERED BY A REGISTERED HOLDER WHO HAS
COMPLETED THE BOX ENTITLED "SPECIAL DELIVERY INSTRUCTIONS" OR THE BOX ENTITLED
"SPECIAL PAYMENT INSTRUCTIONS," SIGNATURES ON THIS LETTER OF TRANSMITTAL MUST
BE GUARANTEED BY A FIRM THAT IS A BANK, BROKER, DEALER, CREDIT UNION, SAVINGS
ASSOCIATION OR OTHER ENTITY WHICH IS A MEMBER IN GOOD STANDING OF THE
SECURITIES TRANSFER AGENTS MEDALLION PROGRAM OR BY ANY OTHER BANK, BROKER,
DEALER, CREDIT UNION, SAVINGS ASSOCIATION OR OTHER ENTITY WHICH IS AN
"ELIGIBLE GUARANTOR INSTITUTION" AS SUCH TERM IS DEFINED IN RULE 17AD-15 UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (EACH OF THE FOREGOING
CONSTITUTING AN "ELIGIBLE INSTITUTION"), UNLESS SUCH SHARE CERTIFICATE(S) ARE
SURRENDERED ON BEHALF OF AN ELIGIBLE INSTITUTION.
No signature guarantee is required on this Letter of Transmittal (a) if this
Letter of Transmittal is signed by the registered holder(s) of the Share
Certificate(s) surrendered herewith and payment is to be made directly to such
register holder(s) or (b) if such Share Certificate(s) are surrendered for the
account of an Eligible Institution.
3. STOCK TRANSFER TAXES. If the Merger Consideration is to be paid to any
persons other than the registered holder(s) of the Share Certificate(s), or if
the Share Certificate(s) are registered in the name(s) of any person(s) other
than the person(s) signing this Letter of Transmittal, the amount of any stock
transfer taxes (whether
<PAGE>
imposed on the registered holder(s) or such person(s)), payable on account of
the transfer to such person shall be deducted from the Merger Consideration
unless satisfactory evidence of the payment of such taxes or exemption
therefrom is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 3, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATE(S).
4. METHOD OF DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATE(S). The
method of delivery of this Letter of Transmittal, the Share Certificate(s) and
any other required documents is at the option and risk of the former
stockholder, but the delivery will be deemed made only when actually received
by the Disbursing Agent. If such delivery is by mail, registered mail with
return receipt requested, properly insured, is recommended. For those former
stockholders who desire to surrender their Share Certificate(s) by mail, an
envelope addressed to the Disbursing Agent is enclosed.
5. MULTIPLE REGISTRATIONS. If a former stockholder's Shares are registered
differently on several Share Certificate(s), it will be necessary for such
former stockholder to complete, sign and submit as many separate Letters of
Transmittal as there are different registrations for his Shares.
6. INADEQUATE SPACE. If the space provided herein is inadequate, the Share
Certificate numbers and/or the number of Shares should be listed on a separate
signed schedule attached hereto.
7. 31% BACKUP WITHHOLDING. In order to avoid backup withholding of Federal
income tax on the cash received upon the surrender of Share Certificate(s), a
former stockholder must, unless an exemption applies, provide the Disbursing
Agent with his correct taxpayer identification number ("TIN") on Substitute
Form W-9 on this Letter of Transmittal and certify, under penalties of
perjury, that such TIN is correct. If the correct TIN is not provided, a $50
penalty may be imposed by the Internal Revenue Service (the "IRS") and
payments made in exchange for the surrendered Shares may be subject to backup
withholding.
Backup withholding is not an additional Federal income tax. Rather, the
amount of backup withholding can be credited against the Federal income tax
liability of the person subject to the backup withholding, provided that the
required information is given to the IRS. If backup withholding results in an
overpayment of tax, a refund can be obtained by the former stockholder upon
filing an income tax return.
The TIN that must be provided on the Substitute Form W-9 is that of the
registered holder(s) of the Share Certificate(s) or of the last transferee
appearing on the transfers attached to, or endorsed on, the Share
Certificate(s). The TIN for an individual is his or her social security
number. In other cases, the correct TIN may be the employer indentification
number of the registered holder of Share Certificate(s). If the registered
holder of Share Certificate(s) has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future, such person should
write "Applied For" in the space provided for the TIN in Part III of the
Substitute Form W-9 and sign and date such form. If "Applied For" is written
in Part III and the Disbursing Agent is not provided with a TIN within 30
days, the Disbursing Agent may withhold 31% on all payments of the Merger
Consideration until it is provided with a properly certified TIN.
Exempt persons (including, among others, corporations) are not subject to
backup withholding. A foreign individual may qualify as an exempt person by
submitting a statement, signed under penalties of perjury, certifying such
individual's foreign status. Such statements can be obtained from the
Disbursing Agent. A former stockholder should consult such holder's tax
advisor about the qualifications for exemption from backup withholding and the
procedure for obtaining such exemption. For additional guidance, see the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
8. LOST CERTIFICATES. In the event that the former stockholder is unable to
deliver to the Disbursing Agent any of the Share Certificate(s) because of the
mutilation, loss, theft or destruction of such Share Certificate(s), this
Letter of Transmittal may nevertheless be submitted, together with any
documents that may be required, subject to acceptance at the discretion of the
Corporation, provided, among other requirements, that the former stockholder
agrees to indemnify the Corporation by signing the form of indemnity agreement
that may be obtained from the Disbursing Agent. In certain instances, the
Corporation may require a corporate bond or indemnity.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance or for additional copies of this Letter of Transmittal and the
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 may be directed to the Disbursing Agent at the addresses set forth in
this Letter of Transmittal.
<PAGE>
PAYER'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK
- -------------------------------------------------------------------------------
SUBSTITUTE PART I--Taxpayer PART III--Social
FORM W-9 Identification Number--For Security Number OR
DEPARTMENT OF all accounts, enter taxpayer Employer Identification
THE TREASURY identification number in the Number
box at right. (For most
individuals, this is your
social security number. If
you do not have a number,
see OBTAINING A NUMBER in
the enclosed Guidelines.)
Certify by signing and
dating below.
NOTE:If the account is in
more than one name, see
chart in the enclosed
Guidelines to determine
which number to give the
payer.
INTERNAL
REVENUE ------------------------
SERVICE (If awaiting TIN write
"Applied For")
PAYER'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER (TIN)
- -------------------------------------------------------------------------------
PART II--For Payees exempt from backup withholding, see the enclosed
Guidelines and complete as instructed therein.
- -------------------------------------------------------------------------------
CERTIFICATION--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me); and
(2) I am not subject to backup withholding either because (a) I have not
been notified by the Internal Revenue Service (IRS) that I am subject to
backup withholding as a result of a failure to report all interest or
dividends, or (b) the IRS has notified me that I am no longer subject to
backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have
been notified by the IRS that you are subject to backup withholding because
of underreporting interest or dividends on your tax return. However, if,
after being notified by the IRS that you were subject to backup withholding,
you received another notification from the IRS that you were no longer
subject to backup withholding, do not cross out item (2). (Also see
instructions in the enclosed Guidelines.)
- -------------------------------------------------------------------------------
SIGNATURE ____________________________DATE _________________________________
NAME ________________________________________________________________________
ADDRESS _____________________________________________________________________
CITY ____________________ STATE ____________________ ZIP ____________________
NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING (OR WILL SOON
APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office or (b) I intend to mail or deliver an application in
the near future. I understand that, notwithstanding the information I
provided in Part III of the Substitute Form W-9 (and the fact that I have
completed this Certificate of Awaiting Taxpayer Identification Number), if
I do not provide a correct TIN to the Disbursing Agent within thirty (30)
days, 31% of all reportable payments made to me may be withheld.
------------------------------------ ------------------------------------
Signature Date
