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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
Solicitation/Recommendation Statement
Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934
(Amendment No. 1)
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Indigo Aviation Aktiebolag (publ.)
(Name of Subject Company)
Indigo Aviation Aktiebolag (publ.)
(Name of Person Filing Statement)
Ordinary Shares and American Depositary Shares,
each American Depositary Share representing one Ordinary Share
(Title of Class of Securities)
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45567P 10 4 (American Depositary Shares)
(CUSIP Number of Class of Securities)
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Sven Holmgren
Vice President and Corporate Counsel
Indigo Aviation AB
Sodra Forstadsgatan 4
S-211 43 Malmo, Sweden
011-46-40-660-3001
(Name, address and telephone number of person
authorized to receive notice and communications
on behalf of the person filing statement)
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With a copy to:
Kenneth C. Hoffman, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
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This Amendment No. 1 to Schedule 14D-9 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by Indigo
Aviation AB ("Indigo") with the Securities and Exchange Commission on November
17, 1999, relating to a cash tender offer by AerFi Sverige AB, a company
organized under the laws of the Kingdom of Sweden, and an indirect wholly-owned
subsidiary of AerFi Group plc, an Irish limited liability company ("AerFi"),
described in a Tender Offer Statement on Schedule 14D-1, dated November 17,
1999, as amended by Amendment No. 1 to Schedule 14D-1 filed December 10, 1999
and Amendment No. 2 to Schedule 14D-1 filed on December 16, 1999.
Item 4. The Solicitation or Recommendation.
Item 4(c) is hereby amended and restated in its entirety as follows:
(c) Reasons for the Recommendation of the Board of Directors.
In making its recommendation to Indigo's shareholders, Indigo's board of
directors considered a number of factors, including, but not limited to, the
following:
(i) the terms and provisions of the combination agreement and the offer;
(ii) discussions with management of Indigo (at board meetings on June 14, 1999,
August 5, 1999, November 9, 1999 and November 10, 1999 and at previous
board meetings) relating to Indigo's financial position, results of
operations, business and prospects, including Indigo's prospects if it
were to remain independent;
(iii) the unfavorable treatment in the capital markets for small-cap commercial
finance companies, such as Indigo, which made it difficult for Indigo to
remain independent and obtain on attractive terms the additional capital
necessary to grow its business;
(iv) the results of previous discussions with third parties regarding potential
merger or other business combination transactions with Indigo;
(v) the trading price of Indigo's shares since its initial public offering in
April 1998, and in particular the fact that over the past 12 months the
shares had traded on the Nasdaq National Market primarily in a range
between $6.00 and $9.00 and the fact that the $13.00 cash tender offer
price represents a premium of approximately 27% over the last sale price
of $10.25 for the Indigo shares on the Nasdaq National Market on November
9, 1999, the day prior to the meeting of the board to approve the
combination agreement;
(vi) the presentation by Bear Stearns at the November 9, 1999 board meeting
and the oral opinion of Bear Stearns to the effect that, as of such date,
and based on the assumptions made, matters considered and limits of
review as set forth in the opinion, the $13.00 per Indigo share in cash
to be received by the holders of Indigo shares in the offer was fair,
from a financial point of view to such holders, other than the
controlling shareholders. A copy of the written opinion of Bear Stearns,
dated November 11, 1999, which sets forth the assumptions made, matters
considered and certain limitations on the scope of review undertaken by
Bear Stearns, is attached as Annex A to the offer to purchase.
Shareholders are urged to read the opinion of Bear Stearns carefully in
its entirety. In connection with its determination, Indigo's board of
directors considered (i) the conclusion of Bear Stearns that the $13.00
per share cash tender offer price was fair, from a financial point of
view, to the holders of Indigo shares, other than the controlling
shareholders and (ii) the analyses by Bear Stearns upon which such
conclusion was based and expressly adopted such conclusion and analyses.
In its review of the analyses performed by Bear Stearns, Indigo's board
of directors did not place greater weight on any one of the separate
analyses prepared by Bear Stearns. Based on Bear Stearns' nationally
recognized expertise in the commercial finance industry, its expertise
and experience in the evaluation of businesses in connection with
transactions similar to the one contemplated by the combination
agreement, its and the board of directors' familiarity with Indigo's
business, financial condition, results of operations and prospects and
Bear Stearns' analyses and presentations related to the fairness opinion,
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Indigo's board of directors believes that Bear Stearns' opinion as to the
fairness of the cash tender offer to the holders of Indigo shares was
well supported and sound;
(vii) the fact that holders of approximately 72.7% of the Indigo shares were
prepared to enter into the related share exchange and share purchase
agreements;
(viii)the fact that the offer is not conditioned on the availability of
financing; and
(ix) the fact that the combination agreement permits Indigo's board of
directors, in the exercise of its fiduciary duties, to terminate the
combination agreement in favor of a superior alternative acquisition
proposal although such termination would trigger the payment of a fee to
AerFi by Indigo of $5 million and the reimbursement of expenses incurred
by AerFi up to a maximum of $2 million.
Indigo's board of directors recognized that the consummation of the offer
and the combination will deprive Indigo's current public shareholders of the
opportunity to participate in Indigo's future growth prospects and, therefore,
in reaching its conclusion, the board determined that the historical results of
operations and the future prospects of Indigo were adequately reflected in the
$13.00 cash tender offer price per Indigo share. Indigo's board of directors
also considered that although Indigo had in the past held discussions with
third parties regarding possible merger or business combination transactions,
no buyer other than AerFi had indicated an intention to make a proposal as
favorable to Indigo and its shareholders as that in the offer and related
transactions.
In view of the variety of factors considered in connection with its
evaluation of the transaction, Indigo's board did not assign relative weights
to the specific factors considered in reaching its decision.
In connection with its evaluation of the fairness of the offer, Indigo's
board of directors did not consider valuations of Indigo based on any valuation
methodologies other than those undertaken by Bear Stearns, because Indigo's
board of directors, after discussion with Bear Stearns, determined such
methodologies to be the most relevant to the assessment of the offer. In
addition, Indigo's board of directors did not consider the prices at which
certain directors or their affiliates had purchased shares subsequent to
Indigo's initial public offering (all of which were lower than the tender offer
price) to be material in determining whether the cash tender offer was fair to
Indigo's shareholders.
The non-executive directors of Indigo have not retained an unaffiliated
representative to act solely on behalf of the public shareholders for the
purposes of negotiating the terms of the combination and tender offer or
prepare a report concerning the fairness thereof. The combination and the
tender offer are not subject to the approval by a majority of the public
shareholders. If, after the expiration of the tender offer, AerFi Sverige owns
more than 90% of the voting rights and more than 90% of the outstanding shares,
AerFi Sverige intends to acquire the remaining shares under the compulsory
acquisition. The price for the shares acquired under the compulsory acquisition
must either be approved by (i) all the remaining minority shareholders or (ii)
and arbitration tribunal.
Indigo's board of directors considered and adopted the conclusion of Bear
Stearns in connection with its determination that the $13.00 per share cash
tender offer price was fair, from a financial point of view, to the holders of
Indigo shares, other than the controlling shareholders.
Considering the above factors, Indigo's board of directors determined that
acceptance of the offer and the tender of Indigo shares pursuant to the offer
would be in the best interest of Indigo's shareholders.
2
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Item 9. Material to be Filed as Exhibits.
Item 9 is hereby amended and supplemented by revising Exhibit (a)(1) as
follows:
Exhibit
Number Description
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(a)(1) Offer to Purchase, dated November 17, 1999 (filed as
Exhibit (a)(1) to Amendment No. 2 to the Schedule 14D-1 of
AerFi Group plc and AerFi Sverige AB filed with the
Securities and Exchange Commission (the "Commission") on
December 16, 1999 and incorporated herein by reference).
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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.
December 16, 1999
INDIGO AVIATION AB
By: /s/ Bradley M. Winograd
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Name: Bradley M. Winograd
Title: Executive Vice President and
Chief Financial Officer
