EXHIBIT (c)(3)
STOCK TRANSFER AGREEMENT
This Stock Transfer Agreement (hereinafter called this "Agreement") is
executed as of this 17th day of March, 1997 by and between Sears, Xxxxxxx and
Co., a New York corporation ("Parent"), and Max Acquisition Delaware Inc., a
Delaware corporation and a wholly owned subsidiary of Parent ("Subsidiary").
WHEREAS, Parent owns 7,033,333 shares (the "Shares") of common stock, par
value $.01 per share, of MaxServ, Inc. ("MaxServ");
WHEREAS, Parent desires to transfer the Shares to Subsidiary and Subsidiary
desires to accept the transfer of such Shares;
NOW, THEREFORE, in consideration of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein
contained, and for other good and valuable consideration, the parties hereto
agree as follows:
1. Parent shall deliver any and all certificates representing the Shares
to Subsidiary and, as to each certificate, shall execute a stock power in the
name of Subsidiary or shall otherwise properly endorse such certificates to
Subsidiary. Parent shall further cause the Shares to be transferred on the
books of MaxServ from its name to the name of Subsidiary.
2. Within three (3) days of the date hereof, Subsidiary, through its Board
of Directors, shall adopt resolutions substantially in the form of Exhibit A
attached hereto and incorporated herein by reference and shall cause to be filed
with the Secretary of State of Delaware a Certificate of Ownership and Merger,
effectuating the merger of Subsidiary with and into MaxServ, substantially in
the form of Exhibit B attached hereto and incorporated herein by reference.
3. Subsidiary shall not (a) offer to sell, sell, pledge or otherwise
dispose of or transfer (except by operation of law in a merger or business
combination of MaxServ with or into any other entity or entities, including the
merger of Subsidiary with and into MaxServ) any interest in or encumber with any
lien, claims, security interests or other encumbrances any of the Shares or (b)
deposit the Shares into a voting trust, enter into a voting agreement or
arrangement with respect to the Shares or grant any proxy or power of attorney
with respect to the Shares.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the date first above written.
SEARS, XXXXXXX AND CO.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President - Law
MAX ACQUISITION DELAWARE INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
EXHIBIT A
WHEREAS, Max Acquisition Delaware Inc. (the "Company") owns at least ninety
percent (90%) of the outstanding shares (the "Shares") of common stock, par
value $.01 per share (the "MaxServ Common Stock"), of MaxServ, Inc., a Delaware
corporation ("MaxServ"), which is the only class of capital stock of MaxServ
outstanding.
WHEREAS, the Board has deemed it advisable that the Company be merged with
and into MaxServ pursuant to the provisions of Section 253 of the General
Corporation Law of the State of Delaware (the "DGCL").
NOW, THEREFORE, BE IT RESOLVED, that, effective upon the filing of an
appropriate Certificate of Ownership and Merger setting forth these resolutions
with the Secretary of State of the State of Delaware, the Company be merged with
and into MaxServ (the "Merger") and that all of the Company's property, rights,
privileges and other assets be transferred to, and all of its obligations and
liabilities be assumed by, MaxServ;
RESOLVED FURTHER, that MaxServ shall be the surviving corporation in the
Merger (the "Surviving Corporation");
RESOLVED FURTHER, that the terms and conditions of the Merger are as
follows:
(a) Upon the Merger becoming effective, each issued and outstanding
Share held of record by stockholders (other than Shares owned by the
Company, Shares held in the treasury of MaxServ and Shares held by
stockholders who properly exercise their appraisal rights under
Section 262 of the DGCL) immediately prior to the effective time of
the Merger (the "Effective Time") shall be converted into and
represent the right to receive, without interest, an amount in cash
equal to $7.75 (the "Merger Consideration") upon surrender to First
Chicago Trust Company of New York, as paying agent, of the certificate
or certificates formerly representing such Shares. As of the
Effective Time, all such Shares shall no longer be outstanding, shall
be automatically canceled and shall cease to exist, and each holder of
a certificate or certificates which prior to the Effective Time
represented any such Shares shall thereafter cease to have any rights
with respect to such Shares, except the right to receive the Merger
Consideration without interest for such Shares upon surrender of such
certificate or certificates;
(b) Each Share issued and outstanding immediately prior to the
Effective Time and owned by the Company, and each Share held in
MaxServ's treasury immediately prior to the Effective Time, shall no
longer be outstanding, shall be canceled without payment of any
consideration therefor and shall cease to exist, and each holder of a
certificate representing any such Shares shall thereafter cease to
have any rights with respect to such Shares;
(c) Each share of common stock, par value $.01 per share, of the
Company issued and outstanding immediately prior to the Effective Time
(the "Max Acquisition Common Stock") shall be converted into and
become one fully-paid and non-assessable share of common stock, par
value $.01 per share, of the Surviving Corporation, a certificate for
which shares shall be issued to Sears, Xxxxxxx and Co., a New York
corporation ("Parent"), as sole stockholder of the Company, upon
surrender to First Chicago Trust Company of New York of such
stockholder's certificate formerly representing Max Acquisition Common
Stock;
RESOLVED FURTHER, that the Merger and the foregoing resolutions be
submitted to Parent, as sole stockholder of the Company, and that, upon
receiving the unanimous written consent of such stockholder, the Merger shall
be, and hereby is, approved;
RESOLVED FURTHER, that the Merger shall become effective at the time
specified in a Certificate of Ownership and Merger which shall set forth the
above resolutions and be filed with the Secretary of State of the State of
Delaware;
RESOLVED FURTHER, that the Surviving Corporation shall notify each
stockholder of record of MaxServ immediately prior to the Effective Time, within
ten days after the effective date of the Merger, that the Merger has become
effective;
RESOLVED FURTHER, that the President or any Vice President of the Company
be, and each hereby is, authorized and directed to make and execute, and the
Secretary or any Assistant Secretary be and each hereby is authorized to attest,
a Certificate of Ownership and Merger setting forth a copy of these resolutions
for the purpose of effecting the Merger and setting forth the date of adoption
hereof, and to cause the same to be filed with the Secretary of State of the
State of Delaware and to do all acts and things, whatsoever, whether within or
without the State of Delaware, which may be in any way necessary or appropriate
to carry out and effectuate the purpose and intent of the resolutions relating
to the Merger;
RESOLVED FURTHER, that the officers of the Company be, and each of them
hereby is, authorized and directed to take any further action and execute any
such document as may be deemed necessary or advisable in order to carry out the
purpose and intent of the foregoing resolutions; and
RESOLVED FURTHER, that all actions heretofore taken to date, and any and
all things heretofore done by any officer or director of the Company in
furtherance of and consistent with the matters authorized by the foregoing
resolutions, are hereby in all respects authorized, approved, ratified and
confirmed.
EXHIBIT B
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
MAX ACQUISITION DELAWARE INC.
WITH AND INTO
MAXSERV, INC.
(Under Section 253 of the General
Corporation Law of the State of Delaware)
Max Acquisition Delaware Inc., a Delaware corporation, hereby certifies
that:
1. The name and state of incorporation of each of the constituent
corporations is as follows:
(a) Max Acquisition Delaware Inc., a Delaware corporation ("Max
Acquisition"); and
(b) MaxServ, Inc., a Delaware corporation ("MaxServ").
2. Max Acquisition owns at least 90% of the outstanding shares of Common
Stock, par value $.01 per share, of MaxServ, and MaxServ has no other class of
capital stock outstanding.
3. The Board of Directors of Max Acquisition (the "Board"), by resolutions
duly adopted by the unanimous written consent of the members thereof and filed
with the minutes of the Board pursuant to Section 141(f) of the General
Corporation Law of the State of Delaware on March __, 1997, a true copy of which
is attached hereto as Exhibit A and incorporated herein by reference, determined
to and, effective upon the filing of this Certificate of Ownership and Merger
with the Secretary of State of the State of Delaware, does merge Max Acquisition
with and into MaxServ pursuant to Section 253 of the General Corporation Law of
the State of Delaware (the "Merger").
4. The name of the surviving corporation (the "Surviving Corporation")
shall be, and hereby is, MaxServ, Inc.
5. The Certificate of Incorporation of MaxServ in effect immediately prior
to the Merger shall be the Certificate of Incorporation of the Surviving
Corporation.
6. The Merger has been approved by Sears, Xxxxxxx and Co., a New York
corporation, as sole stockholder of Max Acquisition, by unanimous written
consent in lieu of a meeting in accordance with Section 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Max Acquistion has caused this certificate to be signed
as of the ____ day of March, 1997.
MAX ACQUISITION DELAWARE INC.
By:_______________________________
Name: Xxxx X. Xxxxxx
Office: Vice President and Treasurer
EXHIBIT A
WHEREAS, Max Acquisition Delaware Inc. (the "Company") owns at least ninety
percent (90%) of the outstanding shares (the "Shares") of common stock, par
value $.01 per share (the "MaxServ Common Stock"), of MaxServ, Inc., a Delaware
corporation ("MaxServ"), which is the only class of capital stock of MaxServ
outstanding.
WHEREAS, the Board has deemed it advisable that the Company be merged with
and into MaxServ pursuant to the provisions of Section 253 of the General
Corporation Law of the State of Delaware (the "DGCL").
NOW, THEREFORE, BE IT RESOLVED, that, effective upon the filing of an
appropriate Certificate of Ownership and Merger setting forth these resolutions
with the Secretary of State of the State of Delaware, the Company be merged with
and into MaxServ (the "Merger") and that all of the Company's property, rights,
privileges and other assets be transferred to, and all of its obligations and
liabilities be assumed by, MaxServ;
RESOLVED FURTHER, that MaxServ shall be the surviving corporation in the
Merger (the "Surviving Corporation");
RESOLVED FURTHER, that the terms and conditions of the Merger are as
follows:
(a) Upon the Merger becoming effective, each issued and outstanding
Share held of record by stockholders (other than Shares owned by the
Company, Shares held in the treasury of MaxServ and Shares held by
stockholders who properly exercise their appraisal rights under
Section 262 of the DGCL) immediately prior to the effective time of
the Merger (the "Effective Time") shall be converted into and
represent the right to receive, without interest, an amount in cash
equal to $7.75 (the "Merger Consideration") upon surrender to First
Chicago Trust Company of New York, as paying agent, of the certificate
or certificates formerly representing such Shares. As of the
Effective Time, all such Shares shall no longer be outstanding, shall
be automatically canceled and shall cease to exist, and each holder of
a certificate or certificates which prior to the Effective Time
represented any such Shares shall thereafter cease to have any rights
with respect to such Shares, except the right to receive the Merger
Consideration without interest for such Shares upon surrender of such
certificate or certificates;
(b) Each Share issued and outstanding immediately prior to the
Effective Time and owned by the Company, and each Share held in
MaxServ's treasury immediately prior to the Effective Time, shall no
longer be outstanding, shall be canceled without payment of any
consideration therefor and shall cease to exist, and each holder of a
certificate representing any such Shares shall thereafter cease to
have any rights with respect to such Shares;
(c) Each share of common stock, par value $.01 per share, of the
Company issued and outstanding immediately prior to the Effective Time
(the "Max Acquisition Common Stock") shall be converted into and
become one fully-paid and non-assessable share of common stock, par
value $.01 per share, of the Surviving Corporation, a certificate for
which shares shall be issued to Sears, Xxxxxxx and Co., a New York
corporation ("Parent"), as sole stockholder of the Company, upon
surrender to First Chicago Trust Company of New York of such
stockholder's certificate formerly representing Max Acquisition Common
Stock;
RESOLVED FURTHER, that the Merger and the foregoing resolutions be
submitted to Parent, as sole stockholder of the Company, and that, upon
receiving the unanimous written consent of such stockholder, the Merger shall
be, and hereby is, approved;
RESOLVED FURTHER, that the Merger shall become effective at the time
specified in a Certificate of Ownership and Merger which shall set forth the
above resolutions and be filed with the Secretary of State of the State of
Delaware;
RESOLVED FURTHER, that the Surviving Corporation shall notify each
stockholder of record of MaxServ immediately prior to the Effective Time, within
ten days after the effective date of the Merger, that the Merger has become
effective;
RESOLVED FURTHER, that the President or any Vice President of the Company
be, and each hereby is, authorized and directed to make and execute, and the
Secretary or any Assistant Secretary be and each hereby is authorized to attest,
a Certificate of Ownership and Merger setting forth a copy of these resolutions
for the purpose of effecting the Merger and setting forth the date of adoption
hereof, and to cause the same to be filed with the Secretary of State of the
State of Delaware and to do all acts and things, whatsoever, whether within or
without the State of Delaware, which may be in any way necessary or appropriate
to carry out and effectuate the purpose and intent of the resolutions relating
to the Merger;
RESOLVED FURTHER, that the officers of the Company be, and each of them
hereby is, authorized and directed to take any further action and execute any
such document as may be deemed necessary or advisable in order to carry out the
purpose and intent of the foregoing resolutions; and
RESOLVED FURTHER, that all actions heretofore taken to date, and any and
all things heretofore done by any officer or director of the Company in
furtherance of and consistent with the matters authorized by the foregoing
resolutions, are hereby in all respects authorized, approved, ratified and
confirmed.
