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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13E-3/A
Rule 13E-3 Transaction Statement
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934)
(Amendment No. 3)
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COMAIR HOLDINGS, INC.
(Name of Issuer)
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DELTA AIR LINES, INC.
DELTA AIR LINES HOLDINGS, INC.
KENTUCKY SUB, INC.
(Name of Person(s) Filing Statement)
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Common Stock, No Par Value
(Title of Class of Securities)
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199789 10 8
(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, Georgia 30320
(404) 715-2387
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
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With Copies to:
Joseph Rinaldi
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
This statement is filed in connection with (check the appropriate box):
a. [ ] The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C or Rule
13e-3(c) under the Securities Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities Act of 1933.
c. [X] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: [ ]
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This Amendment No.3 amends and supplements the Rule 13e-3 Transaction
Statement on Schedule 13E-3 (as previously amended, the "Schedule 13E-3") filed
on October 22, 1999 by (i) Delta Air Lines, Inc., a Delaware corporation
("Delta"), (ii) Kentucky Sub, Inc., a Kentucky corporation ("Kentucky Sub") and
an indirect wholly-owned subsidiary of Delta and (iii) Delta Air Lines
Holdings, Inc., a Delaware corporation ("Delta Holdings") and a direct
wholly-owned subsidiary of Delta, pursuant to Section 13(e) of the Securities
Exchange Act of 1934, as amended, and Rule 13e-3 thereunder in connection with
the tender offer by Kentucky Sub for all of the issued and outstanding shares
(the "Shares") of common stock, no par value, of Comair Holdings, Inc.
("Comair"), upon the terms and subject to the conditions set forth in the Offer
to Purchase dated October 22, 1999 (the "Offer to Purchase") and the related
Letter of Transmittal (which together constitute the "Offer"), copies of which
are filed as Exhibits (d)(1) and (d)(2) to the Schedule 13E-3.
Capitalized terms not separately defined herein shall have the meanings
specified in the Schedule 13E-3.
Item 3. Past Contacts, Transactions or Negotiations
Items (a)(1) and (a)(2) are hereby amended and supplemented as follows:
In accordance with the Memorandum of Understanding described in Item 16
below, on November 10, 1999, Delta, Kentucky Sub and Comair entered into
Amendment No. 1 to the Merger Agreement, amending the Merger Agreement to
eliminate the $50 million Termination Fee payable by Comair to Delta if Comair
or Delta were to terminate the Merger Agreement as a result of Comair's
receiving and accepting a Superior Proposal or in certain other circumstances.
A copy of Amendment No. 1 to the Merger Agreement is attached as Exhibit (a)(8)
to Amendment No. 3 to the Tender Offer Statement on Schedule 14D-1 (as amended,
the "Schedule 14D-1"), filed by Delta, Kentucky Sub and
Delta Holdings, and is incorporated herein by reference.
Item 4. Terms of the Transaction
Item 4(a) is hereby amended and supplemented as follows:
The first paragraph under "The Tender Offer - Acceptance for Payment and
Payment for Shares" in the Offer to Purchase that is incorporated by reference
in Item 4(a) of the Schedule 13E-3 is hereby deleted and replaced in its
entirety with the following paragraph:
"Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such
extension or amendment), Kentucky Sub will accept for payment, and will pay
for, all Shares validly tendered prior to the Expiration Date and not properly
withdrawn, promptly after the Expiration Date, if the conditions to the Offer
have been satisfied or waived on or prior to the Expiration Date. However,
subject to the applicable rules of the SEC, Kentucky Sub expressly reserves the
right to delay acceptance for payment of or payment for Shares in order to
comply, in whole or in part, with any applicable law, including the HSR Act."
Item 16. Additional Information
Item 16 is hereby amended and supplemented as follows:
On November 1, 1999, an action styled Schutte v. Comair Holdings, Inc., et
al., Index No. 99-CI-06569, was commenced by a purported Comair shareholder in
the Jefferson County Circuit Court, Commonwealth of Kentucky. A copy of the
complaint is attached to Amendment No. 3 to the Schedule 14D-1 as Exhibit
(g)(6) and is incorporated herein by reference. The complaint in the Schutte
action names as defendants Comair, the members of the Comair Board and Delta.
It makes allegations and seeks relief substantially similar to the allegations
made and relief sought in the Schear amended complaint and in the Barkley
complaint, which are described in the Schedule 13E-3.
On November 10, 1999, counsel for the parties to all of the various
actions brought on behalf of certain Comair shareholders 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
those actions. Under the Memorandum of Understanding, which was agreed to by
Comair, the members of the Comair Board and Delta
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(collectively, the "Defendants") solely to avoid the burden, expense and
distraction of further litigation, the Defendants agreed to amend the Merger
Agreement to eliminate the $50 million Termination Fee payable to Delta if the
Merger Agreement were terminated in the event Comair were to receive and accept
a Superior Proposal or in certain other circumstances, and agreed to certain
other matters, including meeting with plaintiffs' counsel and their financial
experts and discussing with them the considerations of the Comair Board
leading up to the Merger Agreement and providing plaintiffs' counsel with an
opportunity to review and comment upon the disclosure contained in the
publicly filed disclosure documents relating to the Merger Agreement. The
settlement contemplated in the Memorandum of Understanding is subject to a
number of conditions, including consummation of the Offer and the Merger as
contemplated in the Merger Agreement; completion by plaintiffs of appropriate
discovery reasonably satisfactory to plaintiffs' counsel; drafting and
execution of definitive settlement documents; and final approval of the
settlement by the Boone County Circuit Court following notice and a hearing
regarding its fairness and adequacy to Comair 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 actions or in connection with the Merger Agreement and the
actions will be dismissed with prejudice as to a class consisting of all
Comair shareholders (other than the Defendants) for the period from May 19,
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 to be
paid by Comair or its successor corporation up to an aggregate amount of
$675,000 and expenses up to an aggregate of $75,000, which the 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 to Amendment No. 3 to
the Schedule 14D-1 as Exhibit (g)(7) and is incorporated herein by reference.
The waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, applicable to the Offer and the Merger expired at 11:59
p.m. EST on November 10, 1999.
On November 11, 1999, Delta and Comair issued a joint press release
regarding the proposed settlement and the expiration of the waiting period
under the HSR Act. The full text of the press release is attached to Amendment
No. 3 to the Schedule 14D-1 as Exhibit (g)(8) and is incorporated by reference
herein.
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SIGNATURE
After due 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.
November 12, 1999
DELTA AIR LINES, INC.
By: /s/ M. Michele Burns
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Name: M. Michele Burns
Title: Vice President and Treasurer
DELTA AIR LINES HOLDINGS, INC.
By: /s/ Leslie P. Klemperer
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Name: Leslie P. Klemperer
Title: Vice President and Secretary
KENTUCKY SUB, INC.
By: /s/ Dean C. Arvidson
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Name: Dean C. Arvidson
Title: Secretary
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