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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1/A
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)
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ASA HOLDINGS, INC.
(Name of Issuer)
DELTA AIR LINES, INC.
DELTA AIR LINES HOLDINGS, INC.
DELTA SUB, INC.
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Common Stock, $0.10 Par Value
(Title of Class of Securities)
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04338Q 10 7
(CUSIP Number of Class of Securities)
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Robert S. Harkey, Esquire
Senior Vice President - General Counsel
Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
Atlanta, GA 30320
(404) 715-2387
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Bidders)
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With Copies to:
Joseph Rinaldi
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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February 22, 1999
(Date Tender Offer First Published, Sent or Given to Security Holder)
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<PAGE>
This Amendment No. 3 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed on February 22, 1999, as amended and supplemented on March
3, 1999 and March 5, 1999 (the "Schedule 14D-1"), by (i) Delta Air Lines, Inc.,
a Delaware corporation ("Delta"), (ii) Delta Sub, Inc., a Georgia corporation
and an indirect, wholly owned subsidiary of Delta ("Delta Sub") and (iii) Delta
Air Lines Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary
of Delta, relating to the offer by Delta Sub to purchase all of the issued and
outstanding shares (the "Shares") of common stock, $0.10 par value per share, of
ASA Holdings, Inc., a Georgia corporation ("ASA"), at a price of $34.00 per
Share, net to the seller in cash, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated February 22, 1999 and in the related
Letter of Transmittal, copies of which are attached as Exhibits (a)(1) and
(a)(2) to the Schedule 14D-1 (which are herein collectively referred to as the
"Offer").
Capitalized terms not separately defined herein shall have the meanings
specified in the Schedule 14D-1.
Item 3. Past Contacts, Transactions or Negotiations with the Subject Company
Item 3(b) is hereby amended and supplemented as follows:
In accordance with the Memorandum of Understanding described in Item 10(e),
below, on March 10, 1999, Delta, Delta Sub and ASA entered into Amendment No. 1
to the Merger Agreement, amending the Merger Agreement to eliminate the
$5,000,000 Termination Fee payable by ASA to Delta if ASA or Delta were to
terminate the Merger Agreement as a result of ASA's receiving and accepting a
Superior Proposal. A copy of Amendment No. 1 to the Merger Agreement is attached
as Exhibit (a)(10) and is incorporated herein by reference.
Item 10. Additional Information
Item 10(e) is hereby amended and supplemented as follows:
On March 9, 1999, counsel for the parties to the litigation initiated by
certain ASA 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 ASA, the members
of the ASA 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 ASA were to receive and act upon a Superior Proposal, and further
agreed to provide plaintiffs' counsel with an opportunity to review and comment
upon the disclosure contained in ASA's Information Statement prior to its
dissemination to ASA shareholders. The settlement contemplated in the Memorandum
of Understanding is subject to a number of conditions, including consummation of
the Merger; completion by plaintiffs 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 ASA 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 ASA 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 ASA 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 as Exhibit (a)(11) and is
incorporated herein by reference. On March 10, 1999, Delta and ASA issued a
joint press release regarding the proposed settlement. The full text of the
press release is attached hereto as Exhibit (a)(12) and is incorporated by
reference herein.
<PAGE>
Item 11. Material to Be Filed as Exhibits
Item 11 is hereby amended and supplemented as follows:
(a)(10) Amendment No. 1 to the Agreement and Plan of Merger, dated as of
March 10, 1999.
(a)(11) Memorandum of Understanding, dated as of March 9, 1999.
(a)(12) Joint press release issued by Delta and ASA on March 10, 1999.
After due inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
March 11, 1999 DELTA AIR LINES, INC.
By: /s/ Maurice W. Worth
-----------------------------------
Name: Maurice W. Worth
Title: Chief Operating Officer
DELTA AIR LINES HOLDINGS, INC.
By: /s/ Leslie P. Klemperer
---------------------------------
Name: Leslie P. Klemperer
Title: Vice President and
Secretary
DELTA SUB, INC.
By: /s/ Dean C. Arvidson
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Name: Dean C. Arvidson
Title: Secretary
<PAGE>
EXHIBIT INDEX
Exhibit No.
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(a)(10) Amendment No. 1 to the Agreement and Plan of Merger, dated as of March
10, 1999.
(a)(11) Memorandum of Understanding, dated as of March 9, 1999.
(a)(12) Joint press release issued by Delta and ASA on March 10, 1999.
EXHIBIT (a)(10)
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.
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.
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
---------------------------------
Name: George F. Pickett
Title: Chairman and Chief
Executive Officer
DELTA AIR LINES, INC.
By: /s/ Maurice W. Worth
---------------------------------
Name: Maurice W. Worth
Title: Chief Operating Officer
DELTA SUB, INC.
By: /s/ Edward H. West
---------------------------------
Name: Edward H. West
Title: Treasurer
EXHIBIT (a)(11)
MEMORANDUM OF UNDERSTANDING
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
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:
1. 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:
a. 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.
b. 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.
c. 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 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
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 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
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
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 (a)(12)
FOR IMMEDIATE RELEASE
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's 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's 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.
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