<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(E) OF THE SECURITIES EXCHANGE
ACT OF 1934 AND RULE 13E-3 THEREUNDER)
MAXXIM MEDICAL, INC.
(NAME OF ISSUER)
MAXXIM MEDICAL, INC.
FOX PAINE MEDIC ACQUISITION CORPORATION
FOX PAINE CAPITAL FUND, L.P.
KENNETH W. DAVIDSON
PETER M. GRAHAM
DAVID L. LAMONT
HENRY T. DEHART
JACK F. CAHILL
ALAN S. BLAZEI
JOSEPH D. DAILEY
SUZANNE R. GARON
ERNEST J. HENLEY
DAVIS C. HENLEY
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(TITLE OF CLASS OF SECURITIES)
57777G 10 5
(CUSIP NUMBER OF CLASS OF SECURITIES)
<TABLE>
<S> <C>
SAUL A. FOX KENNETH W. DAVIDSON
FOX PAINE MEDIC ACQUISITION CORPORATION CHAIRMAN OF THE BOARD, PRESIDENT AND
950 TOWER LANE, SUITE 1150 CHIEF EXECUTIVE OFFICER
FOSTER CITY, CALIFORNIA 94404 MAXXIM MEDICAL, INC.
(650) 525-1300 10300 49TH STREET NORTH
CLEARWATER, FL 33762
(727) 561-2100
</TABLE>
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT)
WITH COPIES TO:
<TABLE>
<S> <C> <C>
MITCHELL S. PRESSER, ESQ. PAUL R. LYNCH, ESQ. MICHAEL E. GIZANG, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ SHUMAKER, LOOP & KENDRICK, LLP SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
51 WEST 52ND STREET 101 E. KENNEDY BLVD., SUITE 2800 919 THIRD AVENUE
NEW YORK, NEW YORK 10019 TAMPA, FL 33602 NEW YORK, NEW YORK 10022
(212) 403-1000 (813) 229-7600 (212) 735-2000
</TABLE>
<PAGE> 2
This statement is filed in connection with (check the appropriate box):
a. [X] The filing of solicitation materials or an information statement subject
to Regulation 14A, Regulation 14C, or Rule 13e-3(c) under the Securities
Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities Act of 1933.
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: [X]
CALCULATION OF FILING FEE
<TABLE>
======================================================================================================================
<S> <C>
Transaction Valuation * Amount of Filing Fee
$373,802,475 $74,760
======================================================================================================================
</TABLE>
* For purposes of calculating the fee only. Calculated in accordance with Rule
0-11(b)(2) under the Securities Exchange Act of 1934, as amended. Assumes the
purchase of 13,732,826 shares of Common Stock, par value .001 per share, of
Maxxim Medical, Inc. at $26.00 per share and the purchase of the underlying
options to purchase Common Stock for an aggregate of $16,748,999.
[X] Check box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the
offsetting fee was previously paid. Identify the previous
filing by registration statement number, or the Form or
Schedule and the date of its filing. Amount Previously Paid:
$74,760
Form or Registration No.: Preliminary Proxy Statement on Schedule 14A
(filed concurrently with this Schedule 13E-3)
Filing Party: Maxxim Medical, Inc.
Date Filed: September __, 1999
<PAGE> 3
SCHEDULE 13E-3
INTRODUCTION
This Amendment No. 1 (this "Transaction Statement") to the
Rule 13e-3 transaction statement, first filed July 26, 1999, is being filed with
the Securities and Exchange Commission in connection with the merger of Fox
Paine Medic Acquisition Corporation, a Texas corporation ("Fox Paine Medic"),
with and into Maxxim Medical, Inc., a Texas corporation ("Maxxim"), pursuant to
an Agreement and Plan of Merger, dated as of June 13, 1999 (the "Merger
Agreement"), among Fox Paine Medic and Maxxim. Under the Merger Agreement,
Maxxim will continue as the surviving corporation and each share of Maxxim
common stock, par value $.001 per share, outstanding immediately prior to the
merger (together with the preferred stock purchase rights associated with those
shares), other than a portion of the shares held by the Continuing Shareholders
(as defined below), and shares held by dissenting shareholders, will be
converted into the right to receive $26.00 in cash, without interest. The
Continuing Shareholders are Kenneth W. Davidson, Peter M. Graham, David L.
Lamont, Alan S. Blazei, Henry T. Dehart, Joseph D. Dailey, Jack F. Cahill,
Suzanne R. Garon, Ernest J. Henley and Davis C. Henley, eight of whom are
executive officers of Maxxim, one is a non-executive director of Maxxim, and one
is a vice president and significant shareholder of Maxxim. As described in this
Transaction Statement and in the documents incorporated by reference herein, all
of the Continuing Shareholders are participating in the merger and will be
treated differently than the other Maxxim shareholders. Upon consummation of the
merger, approximately 15% (before giving effect to options and warrants) of the
equity interests will be owned by the Continuing Shareholders, and a majority of
the equity interests will be owned by the Fox Paine Capital Fund, L.P. a
Delaware limited partnership (the "Fox Paine Fund"). This Transaction Statement
is being filed by Maxxim, Fox Paine Medic, the Fox Paine Fund, and the
Continuing Shareholders.
Concurrently with the filing of this Transaction Statement,
Maxxim has filed with the SEC Amendment No. 1 to its preliminary Proxy Statement
on Schedule 14A (the "Proxy Statement") in connection with a special meeting of
the shareholders of Maxxim, at which meeting the shareholders will be asked to
approve the merger agreement. The following cross reference sheet is being
supplied pursuant to General Instruction F to Schedule 13E-3 and shows the
location in the preliminary Proxy Statement of the information required to be
included in response to the items of this statement. The information set forth
in the preliminary Proxy Statement, including all appendices thereto, is hereby
expressly incorporated herein by reference and the responses to each item are
qualified in their entirety by the provisions of the preliminary Proxy
Statement.
The filing of this Transaction Statement shall not be
construed as an admission by Maxxim, Fox Paine Medic, the Fox Paine Fund, or the
Continuing Shareholders or any of their affiliates that Maxxim is "controlled"
by Fox Paine or Fox Paine Fund or any of their affiliates (the "Fox Paine
Entities") or that any of the Fox Paine Entities is an "affiliate" of Maxxim
within the meaning of Rule 13e-3 under Section 13(e) of the Securities Exchange
Act of 1934, as amended.
<PAGE> 4
CROSS REFERENCE SHEET
ITEM IN CAPTION OR LOCATION
SCHEDULE 13E-3 IN THE PROXY STATEMENT
Item 1(a) "Summary - The Participants"
Item 1(b) "Summary - The Special Meeting," "Historical Market
Information" and "The Special Meeting - Record Date and
Voting"
Item 1(c) - (f) "Historical Market Information" and "Merger Financing - Senior
Bank Loans"
Item 2(a) - (g) "Summary - The Participants," "Historical Market
Information" and "Information About the Transaction
Participants"
Item 3(a)(1) "Summary - Interests of Certain Persons in the Merger,"
"Historical Market Information" and "Special Factors -
Interests of Certain Persons in the Merger"
Item 3(a)(2) "Summary - Interests of Certain Persons in the Merger,"
"Historical Market Information," "Special Factors -
Background of the Merger" and "- Interests of Certain Persons
in the Merger"
Item 3(b) "Summary - Structure of the Transactions," "- The Voting
Agreements," "- Terms of the Merger Agreement," "- Interests
of Certain Persons in the Merger," "Special Factors -
Structure of the Transactions; Transaction Participants,"
"- Background of the Merger," "- Interests of Certain Persons
in the Merger," "The Special Meeting - Voting Agreements" and
"The Merger"
Item 4(a) "Questions and Answers about the Merger," "Summary -
Structure of the Transactions," "- Terms of the Merger
Agreement," "- Interests of Certain Persons in the Merger,"
"- Appraisal Rights," "Special Factors - Structure of the
Transactions; Transaction Participants," "- Interests of
Certain Persons in the Merger," "- Certain Effects of the
Merger; Conduct of Business After the Merger," "Merger
Financing," "The Merger," "Appraisal Rights" and Appendix A to
the Proxy Statement
Item 4(b) "Questions and Answers about the Merger," "Summary - Structure
of the Transactions," "- Terms of the Merger Agreement,"
"- Interests of Certain Persons in the Merger," "Special
Factors - Structure of the Transactions; Transaction
Participants," "- Interests of Certain Persons in the Merger,"
"The Merger - Merger Consideration" and "- Treatment of Maxxim
Stock Options"
-2-
<PAGE> 5
Item 5(a) "Summary - Structure of the Transactions," "- Terms of the
Merger Agreement," "Special Factors - Structure of the
Transactions; Transaction Participants," "- Certain Effects of
the Merger; Conduct of Business After the Merger" "--Fox
Paine's and the Continuing Shareholders' Reasons for the
Merger" and "The Merger - Structure and Effective Time"
Item 5(b) "Merger Financing - Senior Bank Loans"
Item 5(c) "Special Factors - Interests of Certain Persons in the
Merger," "- Certain Effects of the Merger; Conduct of Business
After the Merger" and "The Merger - Directors and Officers"
Item 5(d) "Summary - Merger Financing," "Historical Market Information,"
"Merger Financing," "The Merger Treatment of Maxxim Stock
Options" and "- Retirement/Amendment of Maxxim Senior Notes"
Item 5(e) *
Item 5(f) - (g) "Special Factors - Certain Effects of the Merger; Conduct of
Business after the Merger"
Item 6(a) "Summary - Merger Financing" and "Merger Financing"
Item 6(b) "The Merger - Expenses" and "- Estimated Fees and Expenses of
the Merger"
Item 6(c) "Summary - Merger Financing" and "Merger Financing"
Item 6(d) *
Item 7(a) "Questions and Answers about the Merger," "Summary - Structure
of the Transactions," "Special Factors - Structure of the
Transactions; Transaction Participants," "- Background of the
Merger," "- Recommendation of the Special Committee and of the
Full Maxxim Board; Fairness of the Merger," "--Fox Paine's and
the Continuing Shareholders' Reasons for the Merger,"
"-Interests of Certain Persons in the Merger," "The Merger -
Structure and Effective Time" and "- Consideration"
Item 7(b)-(c) "Special Factors - Background of the Merger,"
"- Recommendation of the Special Committee and of the Full
Maxxim Board; Fairness of the Merger," "- Fox Paine's and the
Continuing Shareholders' Reasons for the Merger" and
"Information about the Transaction Participants - Fox Paine
Medic Acquisition Corporation and the other Fox Paine
Entities"
Item 7(d) "Questions and Answers About the Merger," "Summary - Structure
of the Transactions," "- Terms of the Merger Agreement,"
"- Accounting Treatment," "- Merger Financing," "- Interests
of Certain Persons in the
-3-
<PAGE> 6
Merger," "- Appraisal Rights," "Special Factors - Structure of
the Transactions; Transaction Participants," "--Fox Paine's
Reasons for the Merger," "- Interests of Certain Persons in
the Merger," "- Certain Effects of the Merger; Conduct of
Business After the Merger," "Merger Financing," "The Merger -
Structure and Effective Time," "- Merger Consideration,"
"- Treatment of Maxxim Stock Options," "- Retirement/Amendment
of Maxxim Senior Notes," "- Directors and Officers,"
"Appraisal Rights" and "Federal Income Tax Consequences"
Item 8(a) - (b) "Questions and Answers About the Merger," "Summary -
Recommendations to Shareholders," "- Fairness Opinion,"
"Special Factors - Background of the Merger,"
"- Recommendations of the Special Committee and of the Full
Maxxim Board," "Opinion of Lazard Freres & Co. LLC," "- Fox
Paine's and the Continuing Shareholders' Reasons for the
Merger," "- Position of the Continuing Shareholders as to
Fairness of the Merger" and "--Position of Fox Paine as to
Fairness of the Merger"
Item 8(c) "The Special Meeting - Required Vote"
Item 8(d) - (e) "Questions and Answers about the Merger," "Summary -
Recommendations to Shareholders," "Fairness Opinion," "Special
Factors - Background of the Merger," "- Recommendation of the
Special Committee and of the Full Maxxim Board; Fairness of
the Merger" and "- Opinion of Lazard Freres & Co. LLC"
Item 8(f) "Special Factors - Background of the Merger" and
"Recommendation of the Special Committee and of the Full
Maxxim Board; Fairness of the Merger"
Item 9(a)-(c) "Summary - Fairness Opinion," "Special Factors Background of
the Merger," "Recommendations of the Special Committee and of
the Full Maxxim Board; Fairness of the Merger," "Opinion of
Lazard Freres & Co. LLC" and Appendix B to Proxy Statement
Item 10(a)-(b) "Principal Shareholders and Stock Ownership of Management and
Others"
Item 11 "Summary - Structure of the Transactions" "- The Voting
Agreements," "- Terms of the Merger Agreement," "- Interests
of Certain Persons in the Merger," "Special Factors -
Structure of the Transactions; Transaction Participants,"
"- Interests of Certain Persons in the Merger," "The Special
Meeting - Required Vote," "- Voting Agreements" and "The
Merger"
Item 12(a) - (b) "Questions and Answers About the Merger," "Summary - The
Voting Agreements," "- Recommendations to Shareholders,"
"Special Factors - Background of the Merger,"
"- Recommendations of the Special Committee and of the Full
Maxxim Board; Fairness of the Merger," "- Fox Paine and the
Continuing Shareholders' Reasons for the Merger," "- Position
of the
-4-
<PAGE> 7
Continuing Shareholders as to Fairness of the Merger,"
"--Position of Fox Paine as to Fairness of the Merger," "The
Special Meeting - Required Vote" and "- Voting Agreement"
Item 13(a) "Summary - Appraisal Rights," "The Special Meeting - Record
Date and Voting," "Appraisal Rights" and Appendix C to the
Proxy Statement
Item 13(b) - (c) *
Item 14(a) - (b) "Selected Historical Consolidated Financial Data" and
"Incorporation of Certain Documents by Reference"
Item 15(a) - (b) "The Special Meeting - Proxies; Revocation" and "The Merger -
Estimated Fees and Expenses of the Merger"
Item 16 Proxy Statement
Item 17(a) - (f) *
- -----------------
* Not applicable or answer is negative.
ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION.
(a) The information set forth in the section entitled "Summary - The
Participants" of the Proxy Statement is incorporated herein by reference.
(b) The information set forth in the sections entitled "Summary - The
Special Meeting," "Historical Market Information" and "The Special Meeting -
Record Date and Voting" of the Proxy Statement is incorporated herein by
reference.
(c)-(f) The information set forth in the section entitled "Historical
Market Information" and "Merger Financing - Senior Bank Loans" of the Proxy
Statement is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(g) This statement is being filed jointly by Maxxim, Fox Paine
Medic, the Fox Paine Fund and the Continuing Shareholders. The information set
forth in the sections entitled "Summary - The Participants," "Historical Market
Information" and "Information About the Transaction Participants" of the Proxy
Statement is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
(a)(1) The information set forth in the sections entitled "Summary -
Interests of Certain Persons in the Merger," "Historical Market Information" and
"Special Factors - Interests of Certain Persons in the Merger" of the Proxy
Statement is incorporated herein by reference.
-5-
<PAGE> 8
(a)(2) The information set forth in the section entitled "Summary -
Interests of Certain Persons in the Merger," "Historical Market Information,"
"Special Factors - Background of the Merger" and "Interests of Certain Persons
in the Merger" of the Proxy Statement is incorporated herein by reference.
(b) The information set forth in the section entitled "Summary -
Structure of the Transactions," "The Voting Agreements," "- Terms of the Merger
Agreement," "- Interests of Certain Persons in the Merger," "Special Factors -
Structure of the Transactions; Transaction Participants," "- Background of the
Merger," "Interests of Certain Persons in the Merger," "The Special Meeting -
Voting Agreements" and "The Merger" of the Proxy Statement is incorporated
herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth in the Proxy Statement under "Questions
and Answers about the Merger," "Summary - Structure of the Transactions,"
"- Terms of the Merger Agreement," "- Interests of Certain Persons in the
Merger," "- Appraisal Rights," "Special Factors - Structure of the Transactions;
Transaction Participants," "Interests of Certain Persons in the Merger,"
"- Certain Effects of the Merger; Conduct of Business After the Merger,"
"Merger Financing," "The Merger," "Appraisal Rights" and Appendix A to the
Proxy Statement is incorporated herein by reference.
(b) The information set forth in the Proxy Statement under "Questions
and Answers about the Merger," "Summary - Structure of the Transactions,"
"- Terms of the Merger Agreement," "- Interests of Certain Persons in the
Merger," "Special Factors - Structure of the Transactions; Transaction
Participants," "- Interests of Certain Persons in the Merger," "The Merger -
Merger Consideration" and "- Treatment of Maxxim Stock Options" is incorporated
herein by reference.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
(a) The information set forth in the Proxy Statement under "Summary -
Structure of the Transactions," "Terms of the Merger Agreement," "Special
Factors - Structure of the Transactions; Transaction Participants," "Certain
Effects of the Merger; Conduct of Business After the Merger" "- Fox Paine's and
the Continuing Shareholders' Reasons for the Merger" and "The Merger - Structure
and Effective Time" and is incorporated herein by reference.
(b) The information set forth in the Proxy Statement under "Merger
Financing - Senior Bank Loans" is incorporated herein by reference.
(c) The information set forth in the Proxy Statement under "Special
Factors - Interests of Certain Persons in the Merger," "- Certain Effects of the
Merger; Conduct of Business After the Merger" and "The Merger Directors and
Officers" is incorporated herein by reference.
-6-
<PAGE> 9
(d) The information set forth in the Proxy Statement under "Summary -
Merger Financing," "Historical Market Information," "Merger Financing," "The
Merger - Treatment of Maxxim Stock Options" and "- Retirement/Amendment of
Maxxim Senior Notes" is incorporated herein by reference.
(e) None.
(f)-(g) The information set forth in the Proxy Statement under "Special
Factors - Certain Effects of the Merger; Conduct of Business after the Merger,"
is incorporated herein by Merger.
ITEM 6. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in the Proxy Statement under "Summary -
Merger Financing" and "- Merger Financing" is incorporated herein by reference.
(b) The information set forth in the Proxy Statement under "The Merger
- - Expenses" and "- Estimated Fees and Expenses of the Merger" is incorporated
herein by reference.
(c) The information set forth in the Proxy Statement under "Summary -
Merger Financing" and "Merger Financing" is incorporated herein by reference.
(d) Not applicable.
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
(a) The information set forth in the Proxy Statement under "Questions
and Answers About the Merger," "Summary - Structure of the Transactions,"
"- Interests of Certain Persons in the Merger," "Special Factors Structure of
the Transactions; Transaction Participants," "- Background of the Merger,"
"- Recommendations of the Special Committee and of the Full Maxxim Board;
Fairness of the Merger," "- Fox Paine's and the Continuing Shareholders'
Reasons for the Merger," "- Interests of Certain Persons in the Merger,"
"The Merger - Structure and Effective Time" and "Consideration" is
incorporated herein by reference.
(b)-(c) The information set forth in the Proxy Statement under "Special
Factors - Background of the Merger," "- Recommendation of the Special Committee
and of the Full Maxxim Board; Fairness of the Merger," "- Fox Paine's and the
Continuing Shareholders' Reasons for the Merger" and "Information about the
Transaction Participants - Fox Paine Medic Acquisition Corporation and the Other
Fox Paine Entities" is incorporated herein by reference.
(d) The information set forth in the Proxy Statement under "Questions
and Answers About the Merger," "Summary - Structure of the Transactions,"
"- Terms of the Merger Agreement," "- Accounting Treatment," "- Merger
Financing," "Interests of Certain Persons in the Merger," "- Appraisal Rights,"
"Special Factors - Structure of the Transactions; Transaction Participants,"
"--Fox Paine's Reasons for the Merger," "- Interests of Certain
-7-
<PAGE> 10
Persons in the Merger," "- Certain Effects of the Merger; Conduct of Business
After the Merger," "Merger Financing," "The Merger - Structure and Effective
Time," " Merger Consideration," "- Treatment of Maxxim Stock Options,"
"- Retirement/Amendment of Maxxim Senior Notes," "Directors and Officers,"
"Appraisal Rights" and "Federal Income Tax Consequences" is incorporated herein
by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a)-(b) The information set forth in the Proxy Statement under
"Questions and Answers About the Merger," "Summary - Recommendations to
Shareholders," "- Fairness Opinion," "Special Factors - Background of the
Merger," "Recommendations of the Special Committee and of the Full Maxxim
Board," "- Opinion of Lazard Freres & Co. LLC," "Fox Paine's and the Continuing
Shareholders' Reasons for the Merger," "- Position of the Continuing
Shareholders as to Fairness of the Merger," and "- Position of Fox Paine as to
Fairness of the Merger" is incorporated herein by reference.
(c) The information set forth in the Proxy Statement under "The Special
Meeting - Required Vote" is incorporated herein by reference.
(d)-(e) The information set forth in the Proxy Statement under
"Questions and Answers about the Merger," "Summary - Recommendations to
Shareholders," "Special Factors - Background of the Merger," "Recommendation of
the Special Committee and of the Full Maxxim Board; Fairness of the Merger" and
"- Opinion of Lazard Freres & Co. LLC" is incorporated herein by reference.
(f) The information set forth in the Proxy Statement "Special Factors -
Background of the Merger" and "- Recommendation of the Special Committee and of
the Full Maxxim Board; Fairness of the Merger" is incorporated herein by
reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
(a)-(c) The information set forth in the Proxy Statement under "Summary
- - Fairness Opinion," "Special Factors - Background of the Merger,"
"-Recommendations of the Special Committee and of the Full Maxxim Board,"
"Opinion of Lazard Freres & Co. LLC" and Appendix B to Proxy Statement is
incorporated herein by reference.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(b) The information set forth in the Proxy Statement under
"Principal Shareholders and Stock Ownership of Management and Others" is
incorporated herein by reference.
-8-
<PAGE> 11
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE ISSUER'S
SECURITIES.
The information set forth in the Proxy Statement under "Summary -
Structure of the Transactions," "- The Voting Agreements," "- Terms of the
Merger Agreement," "- Interests of Certain Persons in the Merger," "Special
Factors - Structure of the Transactions; Transaction Participants,"
"- Interests of Certain Persons in the Merger," "The Special Meeting - Required
Vote," "- Voting Agreement" and "The Merger" is incorporated herein by
reference.
ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH REGARD TO
THE TRANSACTION.
(a)-(b) The information set forth in the Proxy Statement under
"Questions and Answers About the Merger," "Summary - The Voting Agreements,"
"- Recommendations to Shareholders," "Special Factors - Background of the
Merger," "- Recommendations of the Special Committee and of the Full Maxxim
Board; Fairness of the Merger," "- Fox Paine's and the Continuing Shareholders'
Reasons for the Merger," "- Position of the Continuing Shareholders as to
Fairness of the Merger," "- Position of Fox Paine as to Fairness of the
Merger," "The Special Meeting Required Vote" and "- Voting Agreement" is
incorporated herein by reference.
ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
(a) The information set forth in the Proxy Statement under "Summary -
Appraisal Rights," "The Special Meeting - Record Date and Voting," "Appraisal
Rights" and Appendix C to the Proxy Statement is incorporated herein by
reference.
(b) None.
(c) Not applicable.
ITEM 14. FINANCIAL INFORMATION.
(a)-(b) The information set forth in the Proxy Statement under
"Selected Historical Consolidated Financial Data" and "Incorporation of Certain
Documents by Reference" is incorporated herein by reference.
ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED.
(a)-(b) The information set forth in the Proxy Statement under "The
Special Meeting - Proxies; Revocation" and "The Merger - Estimated Fees and
Expenses of the Merger" is incorporated herein by reference.
ITEM 16. ADDITIONAL INFORMATION.
The entirety of the Proxy Statement is incorporated herein by
reference.
-9-
<PAGE> 12
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
(b)(1) Opinion of Lazard Freres & Co. LLC (included as Appendix B to
the Preliminary Proxy Statement filed by Maxxim Medical, Inc. on July 26,
1999 under cover of Schedule 14A)
(c)(1) Agreement and Plan of Merger, dated as of June 13, 1999, among
Fox Paine Medic Acquisition Corporation and Maxxim (included as Appendix A to
the Preliminary Proxy Statement filed by Maxxim Medical, Inc. on July 26, 1999
under cover of Schedule 14A)
(c)(2) Form of Voting Agreement, by and between Fox Paine Medic
Acquisition Corporation and each of 10 shareholders of Maxxim Medical, Inc.
(included as Appendix D to the Preliminary Proxy Statement filed by Maxxim
Medical, Inc. on July 26, 1999 under cover of Schedule 14A)
*(c)(3) Investor Participation Agreement, dated as of June 13, 1999, by
and among Fox Paine Medic Acquisition Corporation and each of 10 shareholders of
Maxxim Medical, Inc., in their individual capacities
(d)(1) Preliminary letter to shareholders (included in Amendment No. 1
to the Preliminary Proxy Statement filed by Maxxim Medical, Inc. on September 3,
1999 under cover of Schedule 14A)
(d)(2) Preliminary notice of special meeting of shareholders (included
in Amendment No. 1 to the Preliminary Proxy Statement filed by Maxxim Medical,
Inc. on September 3, 1999 under cover of Schedule 14A)
(d)(3) Preliminary Proxy Statement (incorporated by reference to
Amendment No. 1 to the Preliminary Proxy Statement filed by Maxxim Medical, Inc.
on September 3, 1999 under cover of Schedule 14A)
(d)(4) Preliminary form of proxy (incorporated by reference to
Amendment No. 1 to the Preliminary Proxy Statement filed by Maxxim Medical, Inc.
on September 3, 1999 under cover of Schedule 14A)
(d)(5) Press release issued by Maxxim and Fox Paine & Company, LLC
dated as of June 14, 1999 (incorporated by reference to the Current Report on
Form 8-K filed by Maxxim Medical, Inc. on June 16, 1999)
(e) Articles 5.11, 5.12 and 5.13 of the Texas Business Corporation Act
(included as Appendix C to the Preliminary Proxy Statement filed by Maxxim
Medical, Inc. on July 26, 1999 under cover of Schedule 14A)
(f) Not applicable.
- ------------
* Previously filed as an exhibit to schedule 13E-3 filed by Maxxim Medical,
Inc. on July 26, 1999.
-10-
<PAGE> 13
SIGNATURE
After due inquiry and to the best of our knowledge and belief,
we certify that the information set forth in this Transaction Statement is true,
complete and correct.
MAXXIM MEDICAL, INC.
Date: September 3, 1999 By: /s/ Kenneth W. Davidson
-------------------------------------
Kenneth W. Davidson,
Chairman of the Board, President and
Chief Executive Officer
FOX PAINE MEDIC ACQUISITION CORPORATION
Date: September 3, 1999 By: /s/ Saul A. Fox
-------------------------------------
Saul A. Fox
Chief Executive Officer
FOX PAINE CAPITAL FUND, L.P.
By: Fox Paine Capital, LLC
its general partner
Date: September 3, 1999 By: /s/ Saul A. Fox
-------------------------------------
Name: Saul A. Fox
Title: Member
Date: September 3, 1999 /s/ Kenneth W. Davidson
-------------------------------------
Kenneth W. Davidson
Date: September 3, 1999 /s/ Peter M. Graham
-------------------------------------
Peter M. Graham
Date: September 3, 1999 /s/ David L. Lamont
-------------------------------------
David L. Lamont
Date: September 3, 1999 /s/ Henry T. DeHart
-------------------------------------
Henry T. DeHart
Date: September 3, 1999 /s/ Jack F. Cahill
-------------------------------------
Jack F. Cahill
Date: September 3, 1999 /s/ Alan S. Blazei
-------------------------------------
Alan S. Blazei
Date: September 3, 1999 /s/ Joseph D. Dailey
-------------------------------------
Joseph D. Dailey
-11-
<PAGE> 14
Date: September 3, 1999 /s/ Suzanne R. Garon
-------------------------------------
Suzanne R. Garon
Date: September 3, 1999 /s/ Ernest J. Henley
-------------------------------------
Ernest J. Henley
Date: September 3, 1999 /s/ Davis C. Henley
-------------------------------------
Davis C. Henley
-12-
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
(b)(1) Opinion of Lazard Freres & Co. LLC (included as Appendix B to the
Preliminary Proxy Statement filed by Maxxim Medical, Inc. on July 26,
1999 under cover of Schedule 14A)
(c)(1) Agreement and Plan of Merger, dated as of June 13, 1999, among Fox
Paine Medic Acquisition Corporation and Maxxim (included as Appendix A
to the Preliminary Proxy Statement filed by Maxxim Medical, Inc. on
July 26, 1999 under cover of Schedule 14A)
(c)(2) Form of Voting Agreement, by and between Fox Paine Medic Acquisition
Corporation and each of 10 shareholders of Maxxim Medical, Inc.
(included as Appendix D to the Preliminary Proxy Statement filed by
Maxxim Medical, Inc. on July 26, 1999 under cover of Schedule 14A)
*(c)(3) Investor Participation Agreement, dated as of June 13, 1999, by and
among Fox Paine Medic Acquisition Corporation and each of 10
shareholders of Maxxim Medical, Inc., in their individual capacities
(d)(1) Preliminary letter to shareholders (included in Amendment No. 1 to the
Preliminary Proxy Statement filed by Maxxim Medical, Inc. on September
3, 1999 under cover of Schedule 14A)
(d)(2) Preliminary notice of special meeting of shareholders (included in
Amendment No. 1 to the Preliminary Proxy Statement filed by Maxxim
Medical, Inc. on September 3, 1999 under cover of Schedule 14A)
(d)(3) Preliminary Proxy Statement (incorporated by reference to Amendment
No. 1 to the Preliminary Proxy Statement filed by Maxxim Medical, Inc.
on September 3, 1999 under cover of Schedule 14A)
(d)(4) Preliminary form of proxy (incorporated by reference to Amendment No.
1 to the Preliminary Proxy Statement filed by Maxxim Medical, Inc. on
September 3, 1999 under cover of Schedule 14A)
(d)(5) Press release issued by Maxxim and Fox Paine & Company, LLC dated as
of June 14, 1999 (incorporated by reference to the Current Report on
Form 8-K filed by Maxxim Medical, Inc. on June 16, 1999)
</TABLE>
-13-
<PAGE> 16
<TABLE>
<S> <C>
(e) Articles 5.11, 5.12 and 5.13 of the Texas Business Corporation Act
(included as Appendix C to the Preliminary Proxy Statement filed by
Maxxim Medical, Inc. on July 26, 1999 under cover of Schedule 14A)
(f) Not applicable.
</TABLE>
- ------------------
* Previously filed as an exhibit to Schedule 13E-3 filed by Maxxim Medical,
Inc. on July 26, 1999.
-14-
