EXHIBIT (c)(2)
STOCKHOLDER TENDER AGREEMENT
by and among
MAX ACQUISITION DELAWARE INC.,
SEARS, XXXXXXX AND CO.,
SUNWESTERN INVESTMENT FUND II,
and
SUNWESTERN CAYMAN 1984 PARTNERS,
Dated as of Xxxxx 0, 0000
XXXXXXXXXXX TENDER AGREEMENT
This STOCKHOLDER TENDER AGREEMENT, dated as of March 2, 1997 (this
"Agreement"), is by and among Max Acquisition Delaware Inc., a Delaware
corporation ("Purchaser"), Sears, Xxxxxxx and Co., a New York corporation
("Parent"), Sunwestern Investment Fund II, a Texas limited partnership
("Sunwestern Fund"), and Sunwestern Cayman 1984 Partners ("Sunwestern Cayman").
Sunwestern Fund and Sunwestern Cayman are referred to herein collectively as
"Stockholders" and individually as a "Stockholder." Capitalized terms used in
this Agreement are defined in Section 11 hereof unless otherwise indicated.
WHEREAS, on February 4, 1997, Parent and Purchaser commenced a tender
offer to purchase all outstanding shares of common stock, par value $.01 per
share (the "Shares") of MaxServ, Inc., a Delaware corporation (the "Company")
for a purchase price of $7.00 per Share, net to the Seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated February 4, 1997 (the "Offer to Purchase") of Purchaser
and the related Letter of Transmittal (collectively, the "Initial Offer") which
are filed as exhibits to (a) the Tender Offer Statement on Schedule 14D-1 filed
by Parent and Purchaser (together with all supplements or amendments thereto,
the "Schedule 14D-1") and (b) the Transaction Statement on Schedule 13E-3 filed
by Parent and Purchaser (together with all supplements or amendments thereto,
the "Schedule 13E-3"), each in respect of the Initial Offer, with the Securities
and Exchange Commission (the "SEC") on February 4, 1997;
WHEREAS, on February 18, 1997, the Special Committee (the "Special
Committee") of the Board of Directors of the Company (the "Company Board") filed
a Solicitation/Recommendation Statement on Schedule 14D-9 on behalf of the
Company (together with all supplements or amendments thereto, the "Schedule 14D-
9") in which it recommended the Company's stockholders reject the Initial Offer;
WHEREAS, the Boards of Directors of Parent, Purchaser and, on the
recommendation of the Special Committee and following approval of the
disinterested directors of the Company Board, the Company Board each have
determined that it is in the best interests of their respective companies and
stockholders for Parent to acquire the Company upon the terms and conditions set
forth in an Agreement and Plan of Merger, dated as of the date hereof (as
amended from time to time, the "Merger Agreement"), which provides in part,
that, upon the terms and subject to the conditions therein, Purchaser will merge
with and into the Company (the "Merger");
WHEREAS, promptly following the execution hereof Parent and Purchaser
will file with the SEC amendments to the Schedule 14D-1 and the Schedule 13E-3
which reflect the Amendments (as defined in the Merger Agreement), and the
Company Board will file an amendment to the Schedule 14D-9 in which it
recommends to the Company's stockholders that they accept the Offer (as defined
in the Merger Agreement);
WHEREAS, the Stockholders own an aggregate of 1,014,800 Shares; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, Purchaser has requested that the Stockholders
agree, and in order to induce Parent and Purchaser to enter into the Merger
Agreement, the Stockholders have agreed, to enter into this Agreement so that
Purchaser is assured it will acquire Shares pursuant to and in accordance with
the terms of the Offer;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1. Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to the Purchaser and the Parent as follows:
(a) Such Stockholder is the sole record and Beneficial Owner of, and
has good title to, its Shares and there exist no restrictions on transfer,
options, proxies, voting agreements, voting trusts or Liens affecting the
Shares.
(b) The Shares constitute all of the Securities of the Company
beneficially owned, directly or indirectly, by such Stockholder.
(c) Except for the Shares, such Stockholder does not, directly or
indirectly, beneficially own or has any option, warrant or other right to
acquire any Securities of the Company (presently, with the passage of time,
subject to conditions or otherwise) that are or may by their terms or law become
entitled to voting rights or any Securities that are convertible or exchangeable
into or exercisable for any Securities of the Company.
(d) The execution and delivery of this Agreement by such Stockholder
does not, and the performance by such Stockholder of its obligations hereunder
will not, constitute a violation of, conflict with, result in a default (or an
event which, with notice or lapse of time or both, would result in a default)
under, or result in the creation of any Lien on any Shares under, (i) any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which such Stockholder is a party or by which such Stockholder or
its Shares are bound or (ii) any judgment, writ, decree, order or ruling
affecting such Stockholder or its Shares.
(e) Such Stockholder has full power and authority to execute, deliver
and perform this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly authorized by such
Stockholder, and the execution, delivery and performance of this Agreement and
the consummation of the
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transactions contemplated hereby have been duly and validly authorized and no
other actions on the part of such Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by such Stockholder and,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(f) Neither the execution and delivery of this Agreement nor the
performance by such Stockholder of its obligations hereunder will violate any
law, decree, statute, rule or regulation applicable to such Stockholder or the
Shares or require any consent, authorization or approval of, filing with or
notice to, any court, administrative agency or other governmental body or
authority.
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2. Representations and Warranties of Purchaser. Purchaser represents
and warrants to the Stockholders as follows:
(a) Purchaser is duly organized and validly existing and in good
standing under the laws of the State of Delaware, has the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes the legal, valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(b) The execution and delivery of this Agreement by Purchaser does
not, and the performance by Purchaser of its obligations hereunder will not,
constitute a violation of, conflict with, or result in a default (or an event
which, with notice or lapse of time or both, would result in a default) under,
its certificate of incorporation or bylaws or any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which
Purchaser is a party or by which Purchaser is bound or any judgment, writ,
decree, order or ruling applicable to Purchaser.
(c) Neither the execution and delivery of this Agreement nor the
performance by Purchaser of its obligations hereunder will violate any order,
writ, injunction, judgment, law, decree, statute, rule or regulation applicable
to Purchaser or require any consent, authorization or approval of, filing with,
or notice to, any court, administrative agency or other governmental body or
authority.
3. Tender of Shares.
(a) Each Stockholder will cause to be tendered (and not withdrawn) (x)
within five business days of the execution of this Agreement, its Shares and (y)
any other Shares as to which it may subsequently acquire beneficial ownership,
on the next succeeding business day after the acquisition, in each case pursuant
to and in accordance with the terms of the Offer (collectively "Tendered
Securities"). Each Stockholder will receive the same price per Share received by
other stockholders of the Company in the Offer, in the same manner and upon the
same terms as such other stockholders. Each Stockholder acknowledges that
Purchaser's obligation to accept for payment and pay for the Tendered Securities
in the Offer is subject to all of the terms and conditions of the Offer.
(b) Each Stockholder hereby agrees to permit Parent and Purchaser to
publish and disclose in the Offer Documents (as such term is defined in the
Merger Agreement) and, if approval of the stockholders of the Company is
required under applicable
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law, the Proxy Statement, its identity and ownership of Shares and the nature of
its commitments, arrangements and understandings with the Company.
4. Transfer of the Shares. During the term of this Agreement,
except as otherwise provided herein, no Stockholder will (a) offer to sell,
sell, pledge or otherwise dispose of or transfer (except by operation of law in
a merger or business combination of the Company with or into any other entity or
entities) any interest in or encumber with any Lien any of its Shares, (b)
acquire any Shares or other securities of the Company (otherwise than in
connection with a transaction of the type described in Section 9, and any such
additional shares or securities will be deemed Shares and included in the Shares
subject to this Agreement), (c) deposit its Shares into a voting trust, enter
into a voting agreement or arrangement with respect to its Shares or grant any
proxy or power of attorney with respect to its Shares, or (d) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect acquisition or sale, assignment or other disposition of or transfer
of any interest in or the voting of any Shares or any other Securities of the
Company.
5. No Solicitation. Beginning on the date hereof and ending on the
date of termination of this Agreement, no Stockholder shall, in its capacity as
such, directly or indirectly, initiate, solicit (including by way of furnishing
information), encourage or respond to or take any other action knowingly to
facilitate, any inquiries or the making of any proposal by any person or entity
(other than Parent or any affiliate of Parent) with respect to the Company that
constitutes or reasonably may be expected to lead to, an Acquisition Proposal
(as such term is defined in the Merger Agreement), or enter into or maintain or
continue discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain any Acquisition Proposal, or agree to or endorse any
Acquisition Proposal, or authorize or permit any Person or entity acting on
behalf of such Stockholder to do any of the foregoing, provided that the
foregoing shall not be construed to limit or restrict a director of the Company
from performing his or her fiduciary duties as a director. If a Stockholder
receives any inquiry or proposal regarding any Acquisition Proposal, such
Stockholder shall promptly inform Parent of that inquiry or proposal and the
details thereof.
6. Waiver of Appraisal Rights. Each Stockholder hereby irrevocably
waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have pursuant to applicable law or otherwise.
7. Voting of Shares. Beginning on the date hereof and ending on the
date of termination of this Agreement, each Stockholder hereby agrees to vote
each Share at any annual, special or adjourned meeting of the stockholders of
the Company or execute a written consent in lieu thereof (a) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval and adoption thereof; (b) against any action or agreement that
would result in a breach in any respect of any covenant, agreement,
representation or warranty of the Company under the Merger Agreement; and (c)
against the following actions (other than the Merger and the other transactions
contemplated by the Merger Agreement): (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company; (ii) a
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sale, lease or transfer of a material amount of assets of the Company, or a
reorganization, recapitalization, dissolution or liquidation of the Company;
(iii) (A) any change in a majority of the persons who constitute the Company
Board as of the date hereof, except as contemplated by the Merger Agreement; (B)
any change in the present capitalization of the Company or any amendment of the
Company's Certificate of Incorporation or By-Laws, as amended to date; (C) any
other material change in the Company's corporate structure or business; or (D)
any other action which, in the case of each of the matters referred to in
clauses (iii)(A), (B), (C) and (D), is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Merger and the other transactions contemplated by this Agreement and the Merger
Agreement.
8. Enforcement of the Agreement. Each Stockholder acknowledges that
breach by it of any covenants or agreements contained in this Agreement will
cause the other party to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore each of the parties hereto agrees
that in the event of any such breach the aggrieved party shall be entitled to
the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
9. Adjustments. The number and type of securities subject to this
Agreement will be appropriately adjusted in the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the like
or any other action that would have the effect of changing the Stockholders'
ownership of the Company's capital stock or other securities.
10. Termination. This Agreement will terminate on the earliest of
(a) the date the Merger Agreement is terminated in accordance with its terms,
(b) the purchase of all the Shares pursuant to the Offer, upon termination of
the Offer if, prior thereto, the Stockholders shall have complied with their
covenants under Section 3(a) and (c) April 4, 1997, provided, however, that
this Agreement will automatically extend for up to 60 days if the consummation
of the Offer has been enjoined or otherwise stayed by any court or other
governmental authority.
11. Definitions.
"Adverse Interest" shall have the meaning accorded such term in
Article 8 of the Uniform Commercial Code as adopted by the State of Delaware.
"Agreement" shall have the meaning set forth in the introductory
paragraph of this Agreement.
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"Beneficial Owner" shall have the meaning ascribed to such term
in Rule 13d-3 under the Exchange Act.
"Company" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Company Board" shall have the meaning set forth in the second
Whereas clause of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, and as
amended, the rules and regulations promulgated thereunder.
"Initial Offer" shall have the meaning set forth in the first
Whereas clause of this Agreement.
"Liens" means any liens, claims, security interests, pledges,
charges, Adverse Interests or other encumbrances of whatever nature.
"Merger" shall have the meaning set forth in the third Whereas
clause of this Agreement.
"Merger Agreement" shall have the meaning set forth in the third
Whereas clause of this Agreement.
"Offer" shall have the meaning set forth in the Merger Agreement.
"Offer to Purchase" shall have the meaning set forth in the first
Whereas clause of this Agreement.
"Parent" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Proxy Statement" shall have the meaning set forth in the Merger
Agreement.
"Purchaser" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Schedule 13E-3" shall have the meaning set forth in the first
Whereas clause of this Agreement.
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"Schedule 14D-1" shall have the meaning set forth in the first
Whereas clause of this Agreement.
"Schedule 14D-9" shall have the meaning set forth in the second
Whereas clause of this Agreement.
"SEC" shall have the meaning set forth in the first Whereas
clause of this Agreement.
"Securities" shall have the meaning ascribed to such term in
Section 3(10) of the Exchange Act.
"Shares" shall have the meaning set forth in the fifth Whereas
clause of this Agreement.
"Special Committee" shall have the meaning set forth in the
second Whereas clause of this Agreement.
"Stock Purchase Agreement" shall mean that certain Stock Purchase
Agreement by and between the Parent and the Company dated as of December 29,
1994.
"Stockholder" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Sunwestern Cayman" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Sunwestern Fund" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Tendered Securities" shall have the meaning set forth in Section
3(a) of this Agreement.
12. Brokerage. Purchaser and each Stockholder represent and warrant
to the other that the negotiations relevant to this Agreement have been carried
on by Purchaser, on the one hand, and such Stockholder, on the other hand,
directly with the other, and that there are no claims for finder's fees or
brokerage commissions or other like payments in connection with this Agreement
or the transactions contemplated hereby. Purchaser, on the one hand, and each
Stockholder, on the other hand, will indemnify and hold harmless the other from
and against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred by reason of action taken by it or
any of them, as the case may be.
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13. Miscellaneous.
(a) Any provision of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in a writing signed by the party or parties
sought to be bound thereby. Any waiver by any party of a breach of any provision
of this Agreement will not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement or one or more sections hereof will not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(b) This Agreement contains the entire agreement among the parties
with respect to the subject matter hereof, and supersedes all prior agreements
among the parties with respect to such matters. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon the
delivery of a written agreement executed by the parties hereto.
(c) This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and
performed in that state. Each party hereto hereby (i) irrevocably and
unconditionally submits in any legal action or proceeding relating to this
Agreement, or for recognition and enforcement of any judgment in respect
thereof, to the exclusive general jurisdiction of the state and federal courts
in the state of Delaware, and appellate courts from any thereof and (ii)
consents that any action or proceeding may be brought in such courts and waives
any objection that it may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same.
(d) The descriptive headings contained herein are for convenience and
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
(e) All notices and other communications hereunder will be in writing
and will be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by telecopy, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to a Stockholder to the address set forth beneath such
Stockholder's name below:
Xxxxxxxxxx Xxxxxxxxxx Xxxx XX
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
00000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Sunwestern Cayman 0000 Xxxxxxxx
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
00000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
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If to the Purchaser or Parent to:
Max Acquisition Delaware Inc.
Sears, Xxxxxxx and Co.
0000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
Sears Tower, Suite 5800
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(f) This Agreement may be executed in any number of counterparts, each
of which will be deemed to be an original, but all of which together will
constitute one agreement.
(g) This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement will be assigned by any of the parties hereto without the
prior written consent of the other parties, except that (i) Purchaser will have
the right to assign to Parent or any other direct or indirect
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wholly owned subsidiary of Parent any and all rights and obligations of
Purchaser under this Agreement, including the right to purchase Shares tendered
by the Stockholders pursuant to the terms hereof and the Offer, provided that
any such assignment will not relieve Purchaser from any of its obligations
hereunder and (ii) Parent will have the right to assign to Purchaser or any
other direct or indirect wholly owned subsidiary of Parent any and all rights
and obligations of Parent under this Agreement, including the right to purchase
Shares held by the Stockholders pursuant to the terms hereof, provided that any
such assignment will not relieve Parent from any of its obligations hereunder.
(h) If any term or other provision of this Agreement is determined to
be invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
(i) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity will be cumulative and
not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
(j) While Xxxxxxx X. Xxxxxxx has no dispositive power over any Shares
held by Sunwestern Capital Ltd., he believes, based upon conversations that he
has had with Xxxxx X. Xxxxx (who has such dispositive power) since the inception
of the Offer, that all Shares held by Sunwestern Capital Ltd. will be tendered
pursuant to the Offer.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
MAX ACQUISITION DELAWARE INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------
Title: Vice President and Treasurer
--------------------------------
SEARS, XXXXXXX AND CO.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
STOCKHOLDERS:
SUNWESTERN INVESTMENT FUND II,
by a duly authorized signatory of
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
SUNWESTERN CAYMAN 1984
PARTNERS, by a duly authorized
signatory of its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
