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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
ASA HOLDINGS, INC.
(NAME OF SUBJECT COMPANY)
ASA HOLDINGS, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $0.10
(TITLE OF CLASS OF SECURITIES)
04338Q 10 7
(CUSIP NUMBER OF CLASS OF SECURITIES)
GEORGE F. PICKETT
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
ASA HOLDINGS, INC.
100 HARTSFIELD CENTRE PARKWAY, SUITE 800
ATLANTA, GEORGIA 30354
(404) 766-1400
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICE AND COMMUNICATIONS ON BEHALF OF THE
PERSON(S) FILING STATEMENT)
COPY TO:
BENJAMIN F. STAPLETON III, ESQ.
JOHN EVANGELAKOS, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
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<PAGE>
This Amendment No. 3 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission on February 22, 1999, and as subsequently
amended (as so amended, the "Schedule 14D-9"), by ASA Holdings, Inc., a Georgia
corporation (the "Company"), relating to the offer by Delta Air Lines, Inc., a
Delaware corporation, to purchase for cash through its wholly-owned indirect
subsidiary Delta Sub, Inc., a Georgia corporation, all of the outstanding common
shares, par value $0.10 per share, of the Company. Capitalized terms used but
not defined herein have the meaning ascribed to them in the Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND.
Item 3(b) is hereby amended and supplemented by adding thereto the
following:
In accordance with the Memorandum of Understanding described
in Item 8, below, on March 10, 1999, the Company, Delta and Purchaser
entered into Amendment No. 1 to the Merger Agreement, amending the
Merger Agreement to eliminate the $5,000,000 Termination Fee payable by
the Company to Delta if the Company were to terminate the Merger
Agreement as a result of the Company's receiving and accepting a
Superior Proposal. A copy of Amendment No. 1 to the Merger Agreement is
attached hereto as Exhibit 23 and is incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
On March 9, 1999, counsel for the parties to the litigation
initiated by certain of the Company's shareholders on February 25, 1999
entered into a memorandum of understanding (the "Memorandum of
Understanding") setting forth the parties' agreement-in-principle to
the terms of a proposed settlement of that action. Under the Memorandum
of Understanding, which was agreed to by the Company, the Board and
Delta (collectively, "Defendants") solely to avoid the burden, expense
and distraction of further litigation, Defendants agreed to amend the
Merger Agreement to eliminate the $5,000,000 Termination fee payable to
Delta if the Company were to receive and accept a Superior Proposal,
and further agreed to provide plaintiffs' counsel with an opportunity
to review and comment upon the disclosure contained in the Company's
Information Statement prior to its dissemination to the Company's
shareholders. The settlement contemplated in the Memorandum of
Understanding is subject to a number of conditions, including
consummation of the Merger; completion of appropriate discovery
reasonably satisfactory to plaintiffs' counsel; drafting and execution
of definitive settlement documents; and final court approval of the
settlement following notice and a hearing regarding its fairness and
adequacy to the Company's shareholders other than the Defendants. If
the Court approves the settlement that is contemplated in the
Memorandum of Understanding, the Defendants and certain other parties
will be released and discharged from all claims that were or could have
been raised against them in the action and the action will be dismissed
with prejudice as to a class consisting of all the Company's
shareholders (other than Defendants) for the period from February 15,
1999 through and including the Effective Time. In connection with Court
approval of the settlement contemplated in the Memorandum of
Understanding, plaintiffs' counsel intend to apply to the Court for an
award of fees and expenses to be paid by the Company or its successor
corporation up to an aggregate amount of $400,000, which Defendants
have agreed in principle not to oppose. this description of the terms
of the proposed settlement is qualified in its entirety by reference to
the Memorandum of Understanding, a copy of which is attached hereto as
Exhibit 24 and is incorporated herein by reference.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended and supplemented by adding thereto the
following:
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Exhibit 23 -- Amendment No. 1 to the Agreement and Plan of Merger,
dated as of March 10, 1999.
Exhibit 24 -- Memorandum of Understanding, dated as of March 9,
1999.
Exhibit 25 -- Text of Press Release, dated March 10, 1999.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
ASA HOLDINGS, INC.
By: /s/ George F. Pickett
---------------------------------
Name: George F. Pickett
Title: Chairman of the Board and
Chief Executive Officer
Dated: March 10, 1999
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Exhibit List
Exhibit 23 -- Amendment No. 1 to the Agreement and Plan of Merger,
dated as of March 10, 1999.
Exhibit 24 -- Memorandum of Understanding, dated as of March 9,
1999.
Exhibit 25 -- Text of Press Release, dated March 10, 1999.
Exhibit 23
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 ("AMENDMENT NO. 1") dated as of March 10, 1999 to the
Agreement and Plan of Merger (the "AGREEMENT") dated as of February 15, 1999
among ASA Holdings, Inc., a Georgia corporation (the "COMPANY"), Delta Air
Lines, Inc., a Delaware corporation ("BUYER"), and Delta Sub, Inc., a Georgia
corporation and an indirect, wholly-owned subsidiary of Buyer ("MERGER
SUBSIDIARY").
WHEREAS, the Company, Buyer and Merger Subsidiary have each determined
that it is in their respective best interests, and the best interests of their
respective stockholders, to amend the Agreement as hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Agreement has the meaning assigned
to such term in the Agreement.
Section 2. Amendment of Section 6.04(c). Section 6.04(c) of the
Agreement is amended by replacing the second paragraph thereof in its entirety
with the following:
However, the Company may not exercise its right to terminate
under this Section 6.04(c) (and may not enter into a binding written
agreement with respect to such an Acquisition Proposal) unless the
Company shall have provided to Buyer at least two business days' prior
written notice that the Company's Board intends to terminate this
Agreement pursuant to this Section 6.04(c), specifying the material
terms and conditions of such Acquisition Proposal. Buyer may exercise
its right to terminate under this Section 6.04(c) two business days
after receiving the notice contemplated by this Section 6.04(c).
Section 3. Amendment of Section 10.01(c). Section 10.01(c)(ii) of the
Agreement is hereby amended by adding, immediately after the word "if" in the
first line thereof, the phrase ", except in accordance with Section 6.04(c)
hereof,"
Section 4. Amendment of Section 11.04. Section 11.04(b) of the
Agreement is amended to read in its entirety as follows:
(b) The Company agrees to pay Buyer in immediately available
funds a termination fee of $5,000,000 (the "TERMINATION FEE") if:
(i) this Agreement is terminated by Buyer pursuant to
clause (ii) or (iii) of Section 10.01(c); or
(ii) within 6 months after termination of this Agreement
pursuant to Section 10.01(b)(i), the Company enters
into an agreement to consummate an Acquisition
Proposal with any Third Party and such Acquisition
Proposal shall subsequently be consummated.
<PAGE>
Section 5. Confirmation of Agreement. Except as modified or amended in
this Amendment No. 1, all terms and conditions in the Agreement remain in full
force and effect and are hereby ratified and confirmed.
Section 6. Governing Law. This Amendment No. 1 shall be construed in
accordance with and governed by the laws of the State of Georgia, except the
conflicts of laws provisions thereof.
Section 7. Counterparts. This Amendment No. 1 may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the parties hereto.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed by their respective authorized officers as of the day and
the year first above written.
ASA HOLDINGS, INC.
By: /s/ George F. Pickett
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Name: George F. Pickett
Title: Chairman of the Board and
Chief Executive Officer
DELTA AIR LINES, INC.
By: /s/ Maurice W. Worth
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Name: Maurice W. Worth
Title: Chief Operating Officer
DELTA SUB, INC.
By: /s/ Edward H. West
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Name: Edward H. West
Title: Treasurer
Exhibit 24
MEMORANDUM OF UNDERSTANDING
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This MEMORANDUM OF UNDERSTANDING is entered into as of March 9, 1999 among
the plaintiffs ("Plaintiffs") in the Action (as defined herein), ASA Holdings,
Inc. ("ASA"), the members of ASA's Board of Directors (the "ASA Board"), and
Delta Air Lines, Inc. ("Delta"), by their undersigned attorneys. Except as
otherwise stated in this Memorandum of Understanding, capitalized terms herein
have the meaning given them in the Agreement and Plan of Merger dated as of
February 15, 1999 among ASA, Delta and Delta Sub, Inc. (the "Merger Agreement").
WHEREAS, on February 25, 1999, Plaintiffs commenced a putative class action
on behalf of the public holders of ASA common stock in the Superior Court of the
State of Georgia, Fulton County (the "Court"), styled Mala Nebenzahl, et al. v.
John W. Beiser, George Berry, Jean A. Mori, Parker H. Petit, George F. Pickett,
Alan M. Voorhees, Ralph W. Voorhees, ASA Holdings, Inc. and Delta Air Lines,
Inc., Civ. No. 1999CV05541 (the "Action"), relating to the tender offer by Delta
Sub, Inc. for shares of ASA and the subsequent merger of Delta Sub, Inc. with
and into ASA, as set forth in the Merger Agreement (the "Transaction"); and
WHEREAS, the Action names as defendants ASA, the members of the ASA Board
and Delta (collectively, "Defendants"); and
WHEREAS, the Action seeks declaratory and injunctive relief, monetary
damages and/or rescission with respect to the Transaction based upon the
allegations, inter alia, that the conduct of Delta and the members of the ASA
Board in connection with the Transaction constituted a breach of their fiduciary
duties to ASA and ASA shareholders; and
WHEREAS, Defendants deny that they have committed or have attempted to
commit any violation of law or breach of duty, including breach of any duty to
ASA or ASA shareholders, or have otherwise acted in any improper manner; and
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WHEREAS, following the production of certain documents to Plaintiffs'
counsel and negotiations between the parties, counsel for the parties have
reached an agreement in principle providing for the proposed settlement of the
Action on the terms and conditions set forth below (the "Settlement"); and
WHEREAS, the parties believe that the proposed Settlement is in the best
interests of the public shareholders of ASA;
NOW THEREFORE, IT IS HEREBY AGREED IN PRINCIPLE AS FOLLOWS:
Principal Terms of Settlement. Subject to the additional conditions, terms
and limitations described herein, as a result of the bringing of the Action, the
parties agree in principle as follows:
(i) Subject to the approval of the respective boards of directors of ASA and
Delta, if necessary, the Transaction will be modified by amending the terms of
section 11.04(b) of the Merger Agreement to eliminate the $5,000,000 Termination
Fee payable to Delta in the event of termination of the Merger Agreement as the
result of a Superior Proposal as provided in section 6.04(c) of the Merger
Agreement.
(ii) Reasonably promptly following the execution of this Memorandum of
Understanding by the parties, Defendants shall publicly disclose the terms of
the proposed Settlement in a manner deemed reasonable by Defendants.
(iii) Prior to dissemination to ASA shareholders of an information statement or
proxy statement seeking ASA shareholder approval of the Merger (the "Information
Statement"), Defendants shall provide a draft or drafts of such Information
Statement to co-lead counsel for Plaintiffs for review and comment, and
Defendants will give such comments reasonable consideration in finalizing the
Information Statement. Plaintiffs agree that any drafts of the Information
Statement received by Plaintiffs' counsel hereunder shall be used solely for the
purposes described in this subparagraph and for no other purpose, and shall be
held strictly confidential and shall not be disclosed by Plaintiffs or
Plaintiffs' counsel except to a consultant or expert assisting Plaintiffs'
counsel in connection with the Action.
2. Stipulation of Settlement. The parties to the Action will attempt in good
faith to agree upon and execute an appropriate Stipulation of Settlement (the
"Stipulation") and such other documentation as may be required in order to
obtain Final Court Approval (as defined below) of the Settlement and the
dismissal
<PAGE>
of the Action upon the terms set forth in this Memorandum of Understanding
(collectively, the "Settlement Documents"). The Stipulation will expressly
provide, inter alia, for certification of a non-opt out settlement class of ASA
shareholders and their successors in interest and transferees, immediate and
remote, from February 15, 1999 through and including the Effective Time (as
defined in the Merger Agreement) (the "Class"); for entry of a judgment
dismissing the Actions "with prejudice" and without costs to any party except as
expressly provided herein; for a complete release and settlement of all claims,
whether asserted directly, derivatively or otherwise, against Defendants or any
of their families, parent entities, affiliates, subsidiaries, predecessors,
successors or assigns, and each and all of their respective past, present or
future officers, directors, associates, stockholders, controlling persons,
representatives, employees, attorneys, financial or investment advisors,
consultants, accountants, investment bankers, commercial bankers, engineers,
advisors or agents, heirs, executors, trustees, general or limited partners or
partnerships, personal representatives, estates or administrators, which have
been, or could have been, asserted, whether known or unknown and whether arising
under federal, state or any other law (including, without limitation, the
federal securities laws), relating to the Transaction, the actions of ASA, the
ASA Board (including each member of the ASA Board), Delta or Delta Sub, Inc.
relating to the Transaction, the related disclosure materials, the events
described in such disclosure materials, disclosures, facts and allegations that
are or could (insofar as such transactions, disclosures, facts and allegations
relate to, or occurred in connection with, the subject matter of the Action) be
the subject of the Action; that Defendants have denied and continue to deny that
they have committed or attempted to commit any violations of law or breaches of
duty of any kind; that Defendants are entering into the Stipulation solely
because the proposed Settlement would eliminate the burden, risk and expense of
further litigation, and is in the best interests of ASA and all its
shareholders; and that any of the Defendants shall have the right to withdraw
from the proposed Settlement in the event that (x) any claims related to the
Transaction or the subject matter of the Action (whether direct, derivative or
otherwise) are commenced against any person in any court prior to Final Court
Approval of the Settlement, and such claims are not dismissed or stayed in
contemplation of dismissal or (y) any of the additional conditions set forth in
paragraph 4 below shall not have been
<PAGE>
satisfied. The parties agree to use their good faith efforts to obtain the
dismissal or stay in contemplation of dismissal of any action covered by clause
(x) in the foregoing sentence and further agree that Defendants shall have the
right to withdraw from this Memorandum of Understanding if such efforts do not
result in the dismissal or stay in contemplation of dismissal of such an action.
3. Notice and Court Approval. Subject to prior Court approval of the Stipulation
and the form of the Settlement Documents, the parties to the Action will present
the Settlement Documents to the Court for approval as soon as practicable
following dissemination of appropriate notice of the proposed Settlement to ASA
shareholders. ASA or its successor shall pay the costs and expenses related to
providing such notice. As used herein, "Final Court Approval" of the Settlement
means that the Court has entered an order approving the Settlement and that such
order is finally affirmed on appeal or is no longer subject to appeal and the
time for any petition for reargument, appeal or review, by certiorari or
otherwise, has expired. Plaintiffs' counsel intend to apply to the Court for an
award of attorneys' fees and reasonable out-of-pocket disbursements. Subject to
the terms and conditions of this Memorandum of Understanding and the
contemplated Stipulation of Settlement, Plaintiffs' counsel will apply for an
award of fees and expenses in an amount not exceeding in the aggregate $400,000,
which the Defendants and other releasees will not oppose, to be paid by ASA or
its successor in the amount awarded by the Court.
4. Other Conditions. The consummation of the Settlement is subject to: (a)
consummation of the Transaction, as contemplated in the Merger Agreement as such
may be amended from time to time; (b) the drafting and execution of the
Settlement Documents and the other agreements necessary to effectuate the terms
of the proposed Settlement; (c) the completion by Plaintiffs of appropriate
discovery in the Action reasonably satisfactory to Plaintiffs' counsel; and (d)
Final Court Approval (as defined above) of the Settlement and dismissal of the
Action with prejudice and without awarding costs to any party, except as
provided herein. This Memorandum of Understanding shall be null and void and of
no force and effect if (i) any of these conditions are not met or (ii)
Plaintiffs' counsel in the Action determine that the Settlement is not fair and
reasonable. In such event, this Memorandum of Understanding shall not be deemed
to prejudice in any way the positions of the parties with respect to the Action
and shall not entitle any party to
<PAGE>
recover any costs or expenses incurred in connection with the implementation of
this Memorandum of Understanding.
5. Interim Stay of the Action. The parties to the Action agree that except as
expressly provided herein, the Action shall be stayed pending submission of the
proposed Settlement to the Court for its consideration. Plaintiffs' counsel
agrees that all Defendants' time to answer or otherwise respond to the class
action complaint in the Action is extended without date. Counsel shall enter
into such documentation as shall be required to effectuate the foregoing
agreements.
6. Miscellaneous. (a) This Memorandum of Understanding may be executed in
counterparts by any of the signatories hereto and as so executed shall
constitute one agreement; (b) this Memorandum of Understanding and the
Settlement contemplated by it shall be governed by and construed in accordance
with the laws of the State of Georgia; (c) this Memorandum of Understanding
shall be binding upon and inure to the benefit of the parties and their
respective agents, executors, heirs, successors and assigns, subject to the
conditions set forth herein; (d) Plaintiffs and their counsel represent and
warrant that none of the claims or causes of action asserted in the Action have
been assigned, encumbered or in any manner transferred, in whole or in part; (e)
except as provided herein, Defendants shall bear no expenses, costs, damages or
fees alleged or incurred by any named Plaintiff, any member of the Class or
their respective attorneys, experts, advisors, agents or representatives; and
(f) the provisions contained in this Memorandum of Understanding shall not be
deemed a presumption, concession or admission by any Defendant of any breach of
duty, liability, default or wrongdoing as to any facts or claims alleged or
asserted in the Action, or in any other actions or proceedings, and shall not be
<PAGE>
interpreted, construed, deemed, invoked, offered or received in evidence or
otherwise used by any person in the Action or in any other action or proceeding
of any nature whatsoever.
WEISS & YOURMAN
By: /s/ Joseph H. Weiss
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Joseph H. Weiss
551 Fifth Avenue
New York, New York 10176
Of Counsel: (212) 682-3025
Chitwood & Harley Attorneys for Plaintiffs
2900 Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 873-3900
Stull Stull & Brody
6 East 45th Street
New York, New York 10017
(212) 687-7230
SULLIVAN & CROMWELL
By: /s/ John L. Hardiman
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John L. Hardiman.
125 Broad Street
New York, New York 10004
Of Counsel: (212) 558-4000
Troutman Sanders LLP
5200 NationsBank Plaza Attorneys for
600 Peachtree Street, N.E. ASA Holdings, Inc. and
Atlanta, Georgia 30308 Its Board of Directors
(404) 885-3000
DAVIS POLK & WARDWELL
By: /s/ Dennis E. Glazer
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Dennis E. Glazer
450 Lexington Avenue
New York, New York 10017
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Of Counsel: (212) 450-4000
Rogers & Hardin
A Limited Liability Partnership Attorneys for
2700 International Tower Delta Air Lines, Inc.
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 522-4700
Exhibit 25
Text of Press Release
FOR IMMEDIATE RELEASE
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CONTACT: ASA Delta
Sam Watts Corporate Communications
404-766-1400 404-715-2533
ASA HOLDINGS AND DELTA ANNOUNCE
AMENDMENT TO ACQUISITION AGREEMENT
Atlanta, Georgia (March 10, 1999) --- ASA Holdings, Inc. (NASDAQ NM: ASAI),
parent company of Atlantic Southeast Airlines, Inc. (ASA) and Delta Air Lines,
Inc. today announced an amendment to their Acquisition Agreement to eliminate
the $5,000,000 break-up fee that would otherwise have been payable to Delta if
the Agreement were to be terminated as a result of ASA Holdings' receiving and
accepting a superior offer for its shares.
The amendment to the Agreement was entered into among ASA Holdings, Inc., Delta
and Delta Sub, Inc., a Delta subsidiary, in connection with an
agreement-in-principle to settle litigation commenced by certain ASA Holdings
shareholders with respect to the transactions contemplated by the Agreement.
Both the amendment to the Agreement and the memorandum of understanding setting
forth the terms of the agreement-in-principle will be filed today with the
Securities and Exchange Commission as exhibits to an amendment to ASA Holdings'
Schedule 14D-9.
As previously announced, the offer and withdrawal rights under Delta's tender
offer for all outstanding shares of common stock of ASA Holdings will expire at
12:00 midnight, New York City time, on March 19, 1999, unless the offer is
extended.
