SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
(FINAL AMENDMENT)
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 III
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)
SAUL A. FOX KENNETH W. DAVIDSON
FOX PAINE MEDIC ACQUISITION CORPORATION CHAIRMAN OF THE BOARD, PRESIDENT
950 TOWER LANE, SUITE 1150 AND CHIEF EXECUTIVE OFFICER
FOSTER CITY, CALIFORNIA 94404 MAXXIM MEDICAL, INC.
(650) 525-1300 10300 49TH STREET NORTH
CLEARWATER, FL 33762
(727) 561-2100
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT)
WITH COPIES TO:
<PAGE>
<TABLE>
<CAPTION>
<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>
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: [ ]
CALCULATION OF FILING FEE
===========================================================================
Transaction Valuation * Amount of Filing Fee
$373,802,475 $74,760
===========================================================================
* 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
Filing Party: Maxxim Medical, Inc.
Date Filed: July 26, 1999
2
<PAGE>
SCHEDULE 13E-3
INTRODUCTION
This Amendment No. 3 amends and supplements the Rule 13e-3 Transaction
Statement on Schedule 13e-3, as previously amended (the "Statement"), filed on
July 26, 1999. This Amendment No. 3 to the Statement is being filed with the
Securities and Exchange Commission in connection with the merger (the "Merger")
of Fox Paine Medic Acquisition Corporation, a Texas corporation ("Fox Paine
Maxxim"), with and into Maxxim Medical, Inc., a Texas corporation ("Maxxim"),
with Maxxim continuing as the surviving corporation, pursuant to an Agreement
and Plan of Merger dated as of June 13, 1999, as amended, between Fox Paine
Maxxim and Maxxim (the "Merger Agreement"). The Merger Agreement was formally
approved by the shareholders of Maxxim at a special meeting of shareholders held
on November 3, 1999 (the "Special Meeting"). The purpose of this Amendment No. 3
to the Statement is to report that on November 12, 1999 (the "Closing Date") the
transactions contemplated by the Merger Agreement, including the Merger, were
consummated. Capitalized terms used but not defined herein have the meanings
given such terms in the Statement.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
Item 3(b) is hereby amended and supplemented as follows:
(b) At the Special Meeting, the Merger was approved by holders of
more than one-half of the outstanding shares of common stock, par value $.001
per share, of Maxxim ("Maxxim Common Stock"). On November 12, 1999, the Articles
of Merger were filed with the Secretary of State of the State of Texas. As a
result, the effective time of the Merger was November 12, 1999, at which time
Fox Paine Maxxim was merged with and into Maxxim.
As a result of the Merger, among other things, (1) each share of Maxxim
Common Stock outstanding immediately prior to the Merger, other than a portion
of the shares held by certain officers, directors and significant shareholders
(the "Continuing Shareholders"), was canceled and converted automatically into
the right to receive $26.00 in cash, without interest, (2) each outstanding
option to purchase Maxxim Common Stock (other than certain options held by the
Continuing Shareholders) was canceled in exchange for a cash payment for each
share of Maxxim Common Stock subject to the option equal to the excess of $26.00
over the per share exercise price of the option, and (3) all of the issued and
outstanding shares of capital stock of Circon Corporation, formerly an indirect
subsidiary of Maxxim ("Circon"), were sold to Circon Holdings Corporation,
formerly known as Fox Paine Citron Acquisition Corporation ("Circon Holdings").
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
Item 5 is hereby amended and supplemented as follows:
The Merger was consummated on November 12, 1999.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
Item 10 is hereby amended and supplemented as follows:
<PAGE>
As a result of the Merger, immediately after the Closing Date, all of the
outstanding shares of capital stock of Maxxim and Circon are owned by the
Continuing Shareholders, Fox Paine Capital Fund, L.P. ("Fox Paine"), certain
other funds managed by the general partner of Fox Paine and certain funds
managed by affiliates of Goldman, Sachs & Co. As a result thereof, the Maxxim
Common Stock ceased to trade on The New York Stock Exchange and became eligible
for delisting from The New York Stock Exchange and termination of registration
pursuant to Section 12(g)(4) and 12(h)(3) of the Securities Exchange Act of
1934, as amended. Accordingly, on November 15, 1999, Maxxim filed a
Certification and Notice of Termination of Registration on Form 15 with the
Securities and Exchange Commission.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
Item 17 is hereby amended and supplemented as follows:
*(b)(1) Opinion of Lazard Freres & Co. LLC (included as Appendix B to the
Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999 under cover of
Schedule 14A)
*(b)(2) Consent of Lazard Freres & Co. LLC dated July 20, 1999
*(b)(3) Presentation of Lazard Freres & Co. LLC dated June 13, 1999
*(c)(1) Agreement and Plan of Merger, dated as of June 13, 1999 by
and between Fox Paine Medic Acquisition Corporation and Maxxim Medical, Inc.
(included as Appendix A to the Proxy Statement filed by Maxxim Medical, Inc. on
October 5, 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 Proxy Statement filed by Maxxim Medical, Inc. on
October 5, 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
*(c)(4) Form of First Amendment to Voting Agreement, by and between Fox
Paine Medic Acquisition Corporation and each of 10 shareholders of Maxxim Paine
Medic Acquisition Corporation and each of 10 shareholders of Maxxim Medical,
Inc. (included as Appendix D to the Proxy Statement filed by Maxxim Medical,
Inc. on October 5, 1999 under cover of Schedule 14A)
*(c)(5) Amendment No. 1 to Merger Agreement, dated October 1, 1999, by and
between Fox Paine Medic Acquisition Corporation and Maxxim Medical, Inc.
(included as Appendix A to the Proxy Statement filed by Maxxim Medical, Inc. on
October 5, 1999 under cover of Schedule 14A)
*(c)(6) Amended and Restated Investor Participation Agreement, dated as of
September 30, 1999, by and among Fox Paine Medic Acquisition Corporation and
each of 10 shareholders of Maxxim Medical, Inc., in their individual capacities.
*(d)(1) Letter to shareholders (included in Amendment No. 2 to the
Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999 under cover of
Schedule 14A)
2
<PAGE>
*(d)(2) Notice of special meeting of shareholders (included in Amendment
No. 2 to the Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999
under cover of Schedule 14A)
*(d)(3) Proxy Statement (incorporated by reference to Amendment No. 2 to
the Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999 under cover
of Schedule 14A)
*(d)(4) Form of proxy (incorporated by reference to Amendment No. 2 to
the Proxy Statement filed by Maxxim Medical, Inc. on October 5, 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)
(d)(6) Press release issued by Maxxim dated as of October 14, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 14, 1999).
(d)(7) Press release issued by Maxxim dated as of October 15, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 14, 1999).
(d)(8) Press release issued by Maxxim dated as of October 27, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 27, 1999).
(d)(9) Press release issued by Maxxim dated as of November 3, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 27, 1999).
(d)(10) Press release issued by Maxxim dated November 12, 1999.
*(e) Articles 5.11, 5.12 and 5.13 of the Texas Business Corporation
Act (included as Appendix C to the Proxy Statement filed by Maxxim Medical, Inc.
on October 5, 1999 under cover of Schedule 14A)
(f) Not applicable.
- ----------------------
*Previously filed.
3
<PAGE>
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: November 12, 1999 By: /s/ Kenneth W. Davidson
Kenneth W. Davidson,
Chairman of the Board, President and
Chief Executive Officer
FOX PAINE MEDIC ACQUISITION CORPORATION
Date: November 12, 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: November 12, 1999 By: /s/ Saul A. Fox
Name: Saul A. Fox
Title: Member
Date: November 12, 1999 /s/ Kenneth W. Davidson
Kenneth W. Davidson
Date: November 12, 1999 /s/ Peter M. Graham
Peter M. Graham
Date: November 12, 1999 /s/ David L. Lamont
David L. Lamont
Date: November 12, 1999 /s/ Henry T. DeHart III
Henry T. DeHart III
Date: November 12, 1999 /s/ Jack F. Cahill
Jack F. Cahill
Date: November 12, 1999 /s/ Alan S. Blazei
Alan S. Blazei
Date: November 12, 1999 /s/ Joseph D. Dailey
Joseph D. Dailey
4
<PAGE>
Date: November 12, 1999 /s/ Suzanne R. Garon
Suzanne R. Garon
Date: November 12, 1999 /s/ Ernest J. Henley
Ernest J. Henley
Date: November 12, 1999 /s/ Davis C. Henley
Davis C. Henley
5
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. AND DESCRIPTION
*(b)(1) Opinion of Lazard Freres & Co. LLC (included as Appendix B to the
Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999 under cover of
Schedule 14A)
*(b)(2) Consent of Lazard Freres & Co. LLC dated July 20, 1999
*(b)(3) Presentation of Lazard Freres & Co. LLC dated June 13, 1999
*(c)(1) Agreement and Plan of Merger, dated as of June 13, 1999, by and
between Fox Paine Medic Acquisition Corporation and Maxxim Medical, Inc.
(included as Appendix A to the Proxy Statement filed by Maxxim Medical, Inc. on
October 5, 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 Proxy Statement filed by Maxxim Medical, Inc. on
October 5, 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
*(c)(4) Form of First Amendment to Voting Agreement, by and between Fox
Paine Medic Acquisition Corporation and each of 10 shareholders of Maxxim Paine
Medic Acquisition Corporation and each of 10 shareholders of Maxxim Medical,
Inc. (included as Appendix D to the Proxy Statement filed by Maxxim Medical,
Inc. on October 5, 1999 under cover of Schedule 14A)
*(c)(5) Amendment No. 1 to Merger Agreement, dated October 1, 1999, by and
between Fox Paine Medic Acquisition Corporation and Maxxim Medical, Inc.
(included as Appendix A to the Proxy Statement filed by Maxxim Medical, Inc. on
October 5, 1999 under cover of Schedule 14A)
*(c)(6) Amended and Restated Investor Participation Agreement, dated as of
September 30, 1999, by and among Fox Paine Medic Acquisition Corporation and
each of 10 shareholders of Maxxim Medical, Inc., in their individual capacities.
*(d)(1) Letter to shareholders (included in Amendment No. 2 to the
Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999 under cover of
Schedule 14A)
*(d)(2) Notice of special meeting of shareholders (included in Amendment
No. 2 to the Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999
under cover of Schedule 14A)
*(d)(3) Proxy Statement (incorporated by reference to Amendment No. 2
to the Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999 under
cover of Schedule 14A)
*(d)(4) Form of proxy (incorporated by reference to Amendment No. 2
to the Proxy Statement filed by Maxxim Medical, Inc. on October 5, 1999 under
cover of Schedule 14A)
6
<PAGE>
*(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)
(d)(6) Press release issued by Maxxim dated as of October 14, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 14, 1999).
(d)(7) Press release issued by Maxxim dated as of October 15, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 14, 1999).
(d)(8) Press release issued by Maxxim dated as of October 27, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 27, 1999).
(d)(9) Press release issued by Maxxim dated as of November 3, 1999
(incorporated by reference to the Current Report on Form 8-K filed by Maxxim
Medical, Inc. on October 27, 1999).
(d)(10) Press release issued by Maxxim dated November 12, 1999.
*(e) Articles 5.11, 5.12 and 5.13 of the Texas Business Corporation
Act (included as Appendix C to the Proxy Statement filed by Maxxim Medical, Inc.
on October 5, 1999 under cover of Schedule 14A)
(f) Not applicable.
- ------------------------
*Previously filed.
7
Exhibit (d)(10)
MAXXIM MEDICAL, INC. ANNOUNCES THE EXPIRATION OF ITS CASH TENDER OFFER
FOR ITS 10 1/2% SENIOR SUBORDINATED NOTES DUE 2006 AND CLOSING OF ITS MERGER
WITH FOX PAINE MEDIC ACQUISITION CORPORATION
CLEARWATER, FL, November 12, 1999 - Maxxim Medical, Inc. (NYSE: MAM) today
announced that its offer to purchase for cash any and all of the $100 million
aggregate principal amount of its outstanding 10 1/2% SeniOR Subordinated Notes
due 2006 expired at 12:01 a.m., New York City time, on Wednesday, November 10,
1999. In connection with the closing of the merger of Fox Paine Medic
Acquisition Corporation, an affiliate of Fox Paine Capital with and into Maxxim
today, Maxxim accepted for payment all of the Notes tendered.
Based on information from the Bank of New York, as Depositary for the
tender offer, $99,995,000 in aggregate principal amount of the Notes were
tendered in the tender offer, leaving $5,000 in aggregate principal amount of
the Notes outstanding.
Information regarding the pricing, tender and delivery procedures and
conditions of the tender offer are contained in the Offer to Purchase and
Consent Solicitation Statement, dated September 30, 1999, and related Consent
and Letter of Transmittal, which were sent to the holders of the Notes. Chase
Securities Inc. is the exclusive Dealer Manager and Solicitation Agent for the
tender offer and the related consent solicitation. Any questions concerning the
tender offer may be directed to Robert Berk at Chase Securities Inc. at
212/270-1100 (collect).
Maxxim Medical, Inc. is a diversified developer, manufacturer,
distributor and marketer of specialty medical products.
CONTACT: Mary Lugris
Investor Relations
(727) 561-2100
