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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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COMAIR HOLDINGS, INC.
(Name of Issuer)
DELTA AIR LINES, INC.
DELTA AIR LINES HOLDINGS, INC.
KENTUCKY SUB, INC.
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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 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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October 22, 1999
(Date Tender Offer First Published, Sent or Given to Security Holder)
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CUSIP No. 199789 10 8
14D-1/A
1. NAMES OF REPORTING PERSONS
Delta Air Lines, Inc.
IRS IDENTIFICATION NO. 58-0218548
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
BK
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(e) OR 2(f) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,072,655
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
[ ]
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
22.06%
10. TYPE OF REPORTING PERSON
CO
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CUSIP No. 199789 10 8
14D-1/A
1. NAMES OF REPORTING PERSONS
Delta Air Lines Holdings, Inc., a wholly owned subsidiary of Delta Air
Lines, Inc.
IRS IDENTIFICATION NO. 51-0323487
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(e) OR 2(f) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,072,655
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
[ ]
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
22.06%
10. TYPE OF REPORTING PERSON
CO
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CUSIP No. 199789 10 8
14D-1/A
1. NAMES OF REPORTING PERSONS
Kentucky Sub, Inc., an indirect wholly owned subsidiary of Delta Air
Lines, Inc.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(e) OR 2(f) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
KENTUCKY
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,072,655
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
[ ]
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
22.06%
10. TYPE OF REPORTING PERSON
CO
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This Amendment No.3 amends and supplements the Tender Offer Statement on
Schedule 14D-1 (as previously amended, the "Schedule 14D-1") filed on October
22, 1999 by (i) Delta Air Lines, Inc., a Delaware corporation ("Delta"), (ii)
Kentucky Sub, Inc., a Kentucky corporation and an indirect, wholly owned
subsidiary of Delta ("Kentucky Sub") and (iii) Delta Air Lines Holdings, Inc., a
Delaware corporation and a direct, wholly owned subsidiary of Delta ("Delta
Holdings"), relating to the offer by Kentucky Sub to purchase all of the issued
and outstanding shares (the "Shares") of common stock, no par value, of Comair
Holdings, Inc., a Kentucky corporation ("Comair"), at a price of $23.50 per
Share, net to the seller in cash, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated October 22, 1999 (the "Offer to
Purchase") and in the related Letter of Transmittal (which together constitute
the "Offer"), copies of which are attached as Exhibits (a)(1) and (a)(2) to the
Schedule 14D-1.
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 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 to this Amendment
No. 3 to the Schedule 14D-1 as Exhibit (a)(8) and is incorporated herein by
reference.
Item 10. Additional Information
Items 10 (b) and (c) are hereby amended and supplemented as follows:
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.
Item 10(e) 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 this 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 14D-1.
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 (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
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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
this Amendment No. 3 to the Schedule 14D-1 as Exhibit (g)(7) and is
incorporated herein by reference.
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 this
Amendment No. 3 to the Schedule 14D-1 as Exhibit (g)(8) and is incorporated by
reference herein.
10(f) 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 10(f) of the Schedule 14D-1 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 11. Material to Be Filed as Exhibits
Item 11 is hereby amended and supplemented as follows:
(a)(8) Amendment No. 1 to Agreement and Plan of Merger, dated as of
November 10, 1999.
(g)(6) Class Action Complaint filed on November 1, 1999, with the
Jefferson County Circuit Court, Commonwealth of Kentucky, in an
action entitled Schutte v. Comair Holdings, Inc., et al.
(g)(7) Memorandum of Understanding, dated November 10, 1999.
(g)(8) Joint press release issued by Delta and Comair on November 11,
1999.
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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
---------------------------------
Name: M. Michele Burns
Title: Vice President and Treasurer
DELTA AIR LINES HOLDINGS, INC.
By: /s/ Leslie P. Klemperer
---------------------------------
Name: Leslie P. Klemperer
Title: Vice President and Secretary
KENTUCKY SUB, INC.
By: /s/ Dean C. Arvidson
---------------------------------
Name: Dean C. Arvidson
Title: Secretary
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EXHIBIT INDEX
Exhibit No.
- -----------
(a)(8) Amendment No. 1 to Agreement and Plan of Merger, dated as of
November 10, 1999.
(g)(6) Class Action Complaint filed on November 1, 1999, with the Jefferson
County Circuit Court, Commonwealth of Kentucky, in an action entitled
Schutte v. Comair Holdings, Inc., et al.
(g)(7) Memorandum of Understanding, dated November 10, 1999.
(g)(8) Joint press release issued by Delta and Comair on November 11, 1999.
Exhibit (a)(8)
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 ("Amendment No. 1") dated as of November 10, 1999, to the
Agreement and Plan of Merger (the "Agreement") dated as of October 17, 1999,
among Comair Holdings, Inc., a Kentucky corporation (the "Company"), Delta Air
Lines, Inc., a Delaware corporation ("Buyer"), and Kentucky Sub, Inc., a
Kentucky 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. Amendment of Section 6.02(c) of the Agreement. Section 6.02(c)
of the Agreement is hereby amended by deleting the clause "and the fee payable
pursuant to Section 11.04 is paid to Buyer" from the last sentence of the first
paragraph thereof.
SECTION 2. Amendment of Section 10.01 of the Agreement. Section 10.01 of
the Agreement is hereby amended by (i) deleting the proviso occurring at the
end of paragraph (d) thereof and (ii) deleting the last paragraph thereof.
SECTION 3. Amendment of Section 11.04 of the Agreement. Section 11.04 of
the Agreement is hereby amended and restated to read in its entirety as
follows:
"SECTION 11.04. Fees and Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
cost or expense."
SECTION 4. Confirmation of Agreement. Except as expressly amended by this
Amendment No. 1, all terms and conditions of the Agreement shall remain in full
force and effect and are hereby ratified and confirmed.
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SECTION 5. Governing Law. This Amendment No. 1 shall be construed in
accordance with and governed by the laws of the Commonwealth of Kentucky,
except the conflicts of laws provisions thereof.
SECTION 6. Counterparts; Effectiveness. 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 No. 1 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 Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
COMAIR HOLDINGS, INC.
By: /s/ Randy D. Rademacher
----------------------------------------------
Name: Randy D. Rademacher
Title: Senior Vice President Finance and
Chief Financial Officer
DELTA AIR LINES, INC.
By: /s/ Edward H. West
----------------------------------------------
Name: Edward H. West
Title: Executive Vice President and Chief
Financial Officer
KENTUCKY SUB, INC.
By: /s/ M. Michele Burns
----------------------------------------------
Name: M. Michele Burns
Title: Vice President and Treasurer
Exhibit (g)(6)
NO.______________ JEFFERSON CIRCUIT COURT
DIVISION __________
PHILLIP J. SCHUTTE. On Behalf of
Himself and All Others Similarly Situated PLAINTIFF
V.
CLASS ACTION COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF
BREACH OF FIDUCIARY DUTY
COMAIR HOLDINGS, INC.
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
SERVE: Prentice Hall Corporation System
421 West Main Street
Frankfort, Kentucky 40601
and
RAYMOND A. MUELLER
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
ROBERT H. CASTELLINI
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
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CHRISTOPHER J. MURPHY, III
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
PETER H. FORSTER
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
JOHN A. HAAS
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
GERALD L. WOLKEN
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
DAVID R. MUELLER
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
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DAVID A. SIEBENBURGEN
P.O. Box 75021
Greater Cincinnati - Northern Kentucky
International Airport
Cincinnati, Ohio 45275
and
DELTA AIR LINES, INC.
P.O. Box 45852
Atlanta, Georgia 30320 DEFENDANTS
SERVE: CT Corporation Systems
Kentucky Home Life Building
Louisville, Kentucky 40202
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Plaintiff, by his attorneys, alleges as follows:
SUMMARY OF THE ACTION
1. This is a stockholder class action brought by plaintiff on behalf of
the holders of Comair Holdings, Inc. ("Comair" or the "Company") common stock
against Delta Air Lines, Inc. ("Delta"), Comair and its directors arising out of
defendants' efforts to complete a merger/acquisition of Comair at a grossly
inadequate and unfair price at the expense of, and which is unfair to, the
public Comair shareholders.
2. On October 18, 1999, Comair announced that its Board of Directors
had entered into an agreement wherein Delta would acquire all outstanding shares
of Comair for $23.50 per share - via a tender offer.
3. In pursuing the unlawful plan to cash out Comair's public
stockholders for grossly inadequate consideration, each of the defendants
violated the laws of the State of Kentucky by directly breaching and/or aiding
the other defendants' breaches of their fiduciary duties of loyalty, due care,
independence and good faith and fair dealing. Plaintiff seeks to enjoin the
proposed transaction or, alternatively, rescind the transaction and/or recover
damages in the event that the transaction is consummated.
JURISDICTION AND VENUE
4. This Court has jurisdiction over Comair because Comair conducts
business in Kentucky and is a citizen of Kentucky, as it is incorporated in
Kentucky. This action is not removable.
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5. Venue is proper in this Court because the conduct at issue took
place and had an effect in this County.
PARTIES
6. Plaintiff Phillip J. Schutte is, and at all times relevant hereto
was, a shareholder of Comair and is a citizen of Cincinnati, Ohio.
7. Defendant Comair is a corporation organized and existing under the
laws of the State of Kentucky with its principal place of business located at
Cincinnati/Northern Kentucky International Airport, Cincinnati, Ohio. Comair
operates as a transporter of passenger cargo in scheduled airline service.
Comair's common shares are listed and publicly traded on NASDAQ. As of June 30,
1999, Comair had 95.6 million shares outstanding held by thousands of
shareholders.
8. Defendant Raymond A. Mueller ("R. Mueller") serves as a director of
the Company.
9. Defendant Robert H. Castellini ("Castellini") serves as a director
of the Company.
10. Defendant Christopher J. Murphy, III ("Murphy") serves as a
director of the Company.
11. Defendant Peter H. Forster ("Forster") serves as a director of the
Company.
12. Defendant John A. Haas ("Haas") serves as a director of the
Company.
13. Defendant Gerald L. Wolken ("Wolken") serves as a director of the
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Company.
14. Defendant David R. Mueller ("D. Mueller") serves as the Chairman of
the Board and Chief Executive Officer of the Company.
15. Defendant David A. Siebenburgen ("Siebenburgen") serves as a
director, President and Chief Operating Officer of the Company.
16. Defendant Delta Air Lines, Inc. ("Delta") is an airline carrier
based in Atlanta, Georgia.
17. The defendants named above, R. Mueller, Castellini, Murphy,
Forster, Haas, Wolken, D. Mueller and Siebenburgen are sometimes collectively
referred to herein as the "Individual Defendants." Comair and the Individual
Defendants are referred to herein as the "Comair Defendants."
Defendants' Fiduciary Duties
18. In any situation where the directors of a publicly traded
corporation undertake a transaction that will result in either (i) a change in
corporate control or (ii) a break-up of the corporation's assets, the directors
have an affirmative fiduciary obligation to obtain the highest value reasonably
available for the corporation's shareholders, and if such transaction will
result in a change of corporate control, the shareholders are entitled to
receive a significant premium. To diligently comply with these duties, the
directors may not take any action that:
(a) adversely affects the value provided to the corporation's
shareholders;
(b) will discourage or inhibit alternative offers to purchase
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control of the corporation or its assets;
(c) contractually prohibits them from complying with their
fiduciary duties;
(d) will otherwise adversely affect their duty to search and secure
the best value reasonably available under the circumstances for the
corporation's shareholders; and/or
(e) will provide themselves with preferential treatment at the
expense of, or separate from, the public shareholders.
19. As described herein, the Individual Defendants have breached their
fiduciary duties by taking actions designed to halt any other offers and deter
higher offers from other potential acquirers so as to protect the interests of
defendants at the expense of Comair's shareholders. Defendants cannot possibly
fulfill their fiduciary obligations after implementing provisions which disable
them from maximizing shareholder value. The Individual Defendants have breached
their fiduciary obligation to act reasonably and establish a "level playing
field" for all potential bidders such that Comair's shareholders will benefit
from fair competition to acquire the Company.
CLASS ACTION ALLEGATIONS
20. Plaintiff brings this action pursuant to ss.ss.23.01 and 23.02 of
the Kentucky Rules of Civil Procedure on his own behalf and as a class action on
behalf of all holders of Comair stock who are being and will be harmed by
defendants' actions described below (the "Class"). Excluded from the Class are
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defendants herein and any person, firm, trust, corporation, or other entity
related to or affiliated with any defendants and their principals or affiliates.
21. This action is properly maintainable as a class action.
22. The Class is so numerous that joinder of all members is
impracticable. According to Comair's SEC filings, there were more than 95.6
million shares of Comair common stock outstanding as of June 30, 1999.
23. There are questions of law and fact which are common to the Class
and which predominate over questions affecting any individual Class member.
The common questions include, inter alia, the following:
(a) whether defendants have breached their fiduciary duty of
undivided loyalty, independence or due care with respect to plaintiff and the
other members of the Class in connection with the acquisition;
(b) whether the Individual Defendants have breached their fiduciary
duty to secure and obtain the best price reasonable under the circumstances for
the benefit of plaintiff and the other members of the Class in connection with
the acquisition;
(c) whether defendants have breached any of their other fiduciary
duties to plaintiff and the other members of the Class in connection with the
acquisition, including the duties of good faith, diligence, honesty and fair
dealing;
(d) whether the defendants, in bad faith and for improper motives,
have impeded or erected barriers to discourage other offers for the
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Company or its assets;
(e) whether the acquisition compensation payable to plaintiff
and the Class is unfair and inadequate; and
(f) whether plaintiff and the other members of the Class would be
irreparably damaged were the transactions complained of herein consummated or
alternatively whether they have suffered compensable damages.
24. Plaintiff's claims are typical of the claims of the other members
of the Class and plaintiff does not have any interests adverse to the Class.
25. Plaintiff is an adequate representative of the Class, has retained
competent counsel experienced in litigation of this nature and will fairly and
adequately protect the interests of the Class.
26. The prosecution of separate actions by individual members of the
Class would create a risk of inconsistent or varying adjudications with respect
to individual members of the Class which would establish incompatible standards
of conduct for the party opposing the Class.
27. Plaintiff anticipates that there will be no difficulty in the
management of this litigation. A class action is superior to other available
methods for the fair and efficient adjudication of this controversy.
28. Defendants have acted on grounds generally applicable to the Class
with respect to the matters complained of herein, thereby making appropriate the
relief sought herein with respect to the Class as a whole.
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BACKGROUND TO PROPOSED ACQUISITION
29. In the Summer and early Fall of 1999, Comair and Delta were in
intense negotiations concerning a new long-term service agreement to replace the
current one which expires at the end of October 1999.
30. From May 19 through May 24, 1999, defendant and Chairman of the
Board D. Mueller purchased 25,000 shares of Comair at $20 per share. D.
Mueller is the son of director defendant R. Mueller.
31. From June 7 through June 11, 1999, director defendant R. Mueller
(the father of defendant D. Mueller) purchased 19,350 shares of Comair at prices
ranging from $20.06 to $21.44 per share.
32. From August 17 through August 26, 1999, director defendant
Castellini purchased 3,000 shares of Comair at prices ranging from $23 to $23.44
per share.
33. On September 9, 1999, Comair reported its highest August traffic
ever, with passenger boardings of 643,357 passengers, an 18.1% increase. Comair
also reported that revenue passenger miles increased 26.9% and available seat
miles increased 23.1%.
THE PROPOSED ACQUISITION
34. On October 18, 1999, Comair announced that it had reached a
definitive agreement with Delta in which Delta will acquire Comair for a total
consideration of approximately $1.8 billion, or $23.50 per share via a tender
offer. Under the terms of the agreement, Comair will be operated as a separate
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subsidiary of Delta and its headquarters will remain at the Cincinnati/Northern
Kentucky International Airport.
35. Commenting on the announced acquisition, D. Mueller stated, in
part, that:
"COMAIR Holdings Board of Directors unanimously supports this
transaction. It builds on the long and close partnership between Delta
and COMAIR. All of us at COMAIR have the greatest respect for Delta and
its people and we look forward to an exciting future together."
36. Under the terms of the proposed acquisition, a Delta subsidiary
will make a tender offer to purchase all outstanding shares of common stock of
Comair for $23.50 per share. Comair has outstanding 95.5 million shares of
stock. Delta currently owns 21.1 million of these shares, or approximately 22%
of the outstanding shares.
37. Pursuant to employment agreements entered into by Comair with
defendant directors D. Mueller and Siebenburgen, these defendant directors may
receive in the form of a lump sum payment an amount equal to $2.7 million and
$2.1 million, respectively, upon consummation of the tender offer.
FIRST CAUSE OF ACTION
Claim for Breach of Fiduciary Duties
Against the Comair Defendants
38. Plaintiff repeats and realleges each allegation set forth herein.
39. The Comair Defendants have violated fiduciary duties of care,
loyalty, candor and independence owed to the public shareholders of Comair and
have acted to put their personal interests ahead of the interests of Comair
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shareholders.
40. By the acts, transactions and courses of conduct alleged herein,
these defendants, individually and acting as a part of a common plan, are
attempting to unfairly deprive plaintiff and other members of the Class of the
true value of their investment in Comair.
41. The Individual Defendants have violated their fiduciary duties by
entering into a transaction with Comair without regard to the fairness of the
transaction to Comair shareholders. The Comair Defendants directly breached
and/or aided and abetted the other defendants' breaches of fiduciary duties to
plaintiff and the other holders of Comair stock.
42. As demonstrated by the allegations above, the defendant directors
failed to exercise the care required, and breached their duties of loyalty, good
faith, candor and independence owed to the shareholders of Comair because, among
other reasons:
(a) they failed to take steps to maximize the value of Comair to
its public shareholders and they took steps to avoid competitive bidding, to cap
the price of Comair's stock and to give Delta an unfair advantage, by, among
other things, failing to solicit other potential acquirers or alternative
transactions;
(b) they failed to properly value Comair;
(c) they ignored or did not protect against the numerous
conflicts of interest resulting from the directors' own interrelationships, or
connection with the Delta transaction;
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(d) the proposed acquisition price is below where the price of
Comair common stock traded just two months prior;
(e) the Board of Directors of Comair is controlled by Delta which
owns over 22% of Comair's outstanding stock and poses a threat to each
director's ability to remain on the Board; and
(f) as a result of the acquisition, certain directors will receive
monetary payments that they would not have otherwise received, including "short
swing" profits and "change of control payments."
43. Because the Individual Defendants dominate and control the business
and corporate affairs of Comair and are in possession of private corporate
information concerning Comair's assets (including Comair's second quarter 2000
results) businesses and future prospects, there exists an imbalance and
disparity of knowledge and economic power between them and the public
shareholders of Comair which makes it inherently unfair for them to pursue any
proposed transaction wherein they will reap disproportionate benefits to the
exclusion of maximizing stockholder value.
44. By reason of the foregoing acts, practices and course of conduct,
the Comair Defendants have failed to exercise ordinary care and diligence in the
exercise of their fiduciary obligations toward plaintiff and the other members
of the Class.
45. As a result of the actions of these defendants, plaintiff and the
Class have been and will be irreparably damaged in that they have not and will
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not receive their fair portion of the value of Comair's assets and businesses
and have been and will be prevented from obtaining a fair price for their common
stock.
46. Unless enjoined by this Court, the Comair Defendants will continue
to breach their fiduciary duties owed to plaintiff and the Class, and may
consummate the proposed acquisition which will exclude the Class from its fair
share of Comair's valuable assets and businesses, and/or benefit them in the
unfair manner complained of herein, all to the irreparable harm of the Class, as
aforesaid.
47. The Comair Defendants are engaging in self-dealing, are not acting
in good faith toward plaintiff and the other members of the Class, and have
breached and are breaching their fiduciary duties to the members of the Class.
48. As a result of these defendants' unlawful actions, plaintiff and
the other members of the Class will be irreparably harmed in that they will not
receive their fair portion of the value of Comair's assets and business and will
be prevented from obtaining the real value of their equity ownership of the
Company. Unless the proposed acquisition is enjoined by the Court, these
defendants will continue to breach their fiduciary duties owed to plaintiff and
the members of the Class, will not engage in arm's-length negotiations on the
acquisition terms, will not supply to Comair's minority stockholders sufficient
information to enable them to cast informed votes on the proposed acquisition
and may consummate the proposed acquisition, all to the irreparable harm of the
members of the Class.
14
<PAGE>
49. Plaintiff and the members of the Class have no adequate remedy at
law. Only through the exercise of this Court's equitable powers can plaintiff
and the Class be fully protected from the immediate and irreparable injury which
defendants' actions threaten to inflict.
SECOND CAUSE OF ACTION
Aiding and Abetting of Breach of Fiduciary
Duties Against Delta
50. Plaintiff repeats and alleges each allegation set forth herein.
51. Delta aided and abetted the Comair Defendants' breaches of
fiduciary duties owed to Comair shareholders to maximize shareholder value by
actively participating and colluding in the Comair Defendants' breaches. Delta
aided in timing the acquisition to close before Comair or any other party had an
opportunity to assess the true value of Comair's assets and before Comair
reveals its second quarter results, all of which has deprived the Comair
shareholders of the highest value available to them. Delta is a controlling
shareholder of Comair and had access to certain information concerning Comair's
true value that is not otherwise available to the investing public. As a result
of Delta's conduct alleged herein, Delta benefitted financially.
52. Defendants must be enjoined from continuing with the tender offer.
Only through this Court's exercise of its broad equitable powers can plaintiff
and the Class be fully protected from the immediate and irreparable injury that
defendants' actions threaten to inflict.
15
<PAGE>
PRAYER FOR RELIEF
WHEREFORE, plaintiff demands judgment and preliminary and permanent
relief, including injunctive relief, in his favor and in favor of the Class and
against defendants as follows:
A. Declaring that this action is properly maintainable as a class
action;
B. Declaring and decreeing that the acquisition agreement was entered
into in breach of the fiduciary duties of the defendants and is therefore
unlawful and unenforceable;
C. Enjoining defendants, their agents, counsel, employees and all
persons acting in concert with them from consummating the acquisition via a
tender offer which is scheduled to commence no later than October 22, 1999,
unless and until the Company adopts and implements a procedure or process to
obtain the highest possible price for shareholders;
D. Directing the Individual Defendants to exercise their fiduciary
duties to obtain a transaction which is in the best interests of Comair's
shareholders until the process for the sale or auction of the Company is
completed and the highest possible price is obtained;
E. Rescinding, to the extent already implemented, the acquisition
agreement or any of the terms thereof;
F. In the event the acquisition is consummated, awarding compensatory
damages against defendants, jointly and severally, in an amount to be determined
at trial, together with pre-judgment interest at the maximum rate
16
<PAGE>
allowable by law;
G. Imposition of a constructive trust, in favor of plaintiff, upon any
benefits improperly received by defendants as a result of their wrongful
conduct;
H. Awarding plaintiff the costs and disbursements of this action,
including reasonable attorneys' and experts' fees; and
I. Granting such other and further relief as this Court may deem just
and proper.
JURY DEMAND
Plaintiff demands a trial by jury.
DATED this 1st day of November, 1999.
MIDDLETON & REUTLINGER
CHARLES G. MIDDLETON, III
------------------------------------
CHARLES G. MIDDLETON, III
2500 Brown & Williamson Tower
Louisville, KY 40202
Telephone: 502/584-1135
502/561-0442 (fax)
LAW OFFICES OF RICHARD D. KRANICH
RICHARD D. KRANICH
120 Broadway, Suite 1016
New York, NY 10271-0074
Telephone: 212/608-8965
212/962-3123 (fax)
Attorneys for Plaintiff
17
Exhibit (g)(7)
MEMORANDUM OF UNDERSTANDING
This MEMORANDUM OF UNDERSTANDING is entered into as of November 10, 1999,
among the counsel for plaintiffs ("Plaintiffs counsel") in the Actions (as
defined herein), and the counsel for Comair Holdings, Inc. ("Comair"), the
members of Comair's Board of Directors (the "Comair Board"), and Delta Air
Lines, Inc. ("Delta"), respectively. 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 October 17, 1999 among
Comair, Delta and Kentucky Sub., Inc. (the "Merger Agreement").
WHEREAS, on October 18, 1999, Delta and Comair publicly announced that
they had entered into the Merger Agreement; and
WHEREAS, beginning on October 19, 1999 and thereafter, several
class action lawsuits (the "Actions") on behalf of a putative class of Comair
common stockholders were commenced in the Circuit Court of Kentucky for Boone
County, where Comair is headquartered, and relating to the tender offer by
Kentucky Sub, Inc. for shares of Comair and the subsequent merger of Kentucky
Sub., Inc. with and into Comair, as set forth in the Merger Agreement (the
"Transaction"); and
WHEREAS the actions were consolidated by the Courts' Order entered
November 2, 1999 under the caption In re Comair Holdings, Inc. Shareholder
Litig., Case No. 99 CI 1213; and
<PAGE>
WHEREAS also beginning on October 19, 1999 and thereafter, several class
action lawsuits on behalf of a putative class of Comair common stockholders
were commenced in the Supreme Court of the State of New York, Nassau County
(the "New York Action"), the Circuit Court of Kentucky for Jefferson County
(the "Jefferson County Actions"), and the Ohio Court of Common Pleas for
Hamilton County (the "Ohio Action") and also relating to the Transaction; and
WHEREAS the Actions, the New York Action, the Jefferson County Actions and
the Ohio Action all seek injunctive and other equitable relief, monetary
damages, and/or recission with respect to the Transaction based upon the
allegations, inter alia, that the conduct of the members of the Comair Board in
connection with the Transaction constituted a breach of their fiduciary duties
to Comair and the Comair shareholders and that Delta allegedly aided and
abetted such breaches of fiduciary duty; and
WHEREAS Plaintiffs in the Actions, the New York Action, the Jefferson
County Actions, and the Ohio Action continue to maintain that Defendants have
committed and attempted to commit violations of law and breaches of fiduciary
duty and have acted in an improper manner toward Comair 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
Comair or Comair shareholders, or have otherwise acted in any improper manner;
and
WHEREAS Plaintiffs' counsel in the Actions, the New York Action, the
Jefferson County Actions, and the Ohio Action believe that time is of the
essence if any
2
<PAGE>
settlement is to be meaningful for Comair shareholders because any meaningful
equitable relief must occur before the November 19, 1999 date the Tender Offer
will close, and because this Court has previously denied a motion by Plaintiffs
in the Actions for a temporary injunction enjoining the Transaction and the
Circuit Court in Jefferson County has previously denied a motion for a
temporary restraining order enjoining the Transaction made by the Jefferson
County plaintiffs; and
WHEREAS the parties in the Actions, the New York Action, the Jefferson
County Actions, and the Ohio Action have reached an agreement in principle
providing for the proposed settlement of the Actions on the terms and
conditions set forth below (the "Settlement"); and
WHEREAS the parties in the Actions, the New York Action, the Jefferson
County Actions, and the Ohio Action believe that the proposed Settlement is
fair and in the best interests of the public shareholders of Comair;
NOW THEREFORE, IT IS HEREBY AGREED IN PRINCIPLE AS FOLLOWS:
I. PRINCIPAL TERMS OF SETTLEMENT
As a result of the efforts of plaintiffs and Plaintiff's counsel in the
Actions, the New York Action, the Jefferson County Actions, and the Ohio
Action, their communications with Defendants through their counsel, and
their litigation efforts, the parties agree in principle as follows:
A. Subject to the approval of the respective boards of directors of
Comair and Delta, the Defendants will modify the Transaction by
amending the terms of Section 11.04[b] of the Merger Agreement to
reduce the $50,000,000
3
<PAGE>
termination fee payable to Delta under that Section (either because
another bidder offers to pay a higher price or otherwise) to $0. If
this change in the Merger Agreement is not made within four calendar
days, this Memorandum of Understanding shall be null and void.
B. Defendants shall provide Plaintiffs' counsel the opportunity to
review and comment upon the disclosures contained in the
publicly-filed disclosure documents relating to the Transaction,
including those yet to be filed, and will make such additions and
changes to these publicly filed disclosure documents as Defendants
and Plaintiffs' counsel shall in good faith agree.
C. Counsel for the Defendants shall meet with Plaintiffs' counsel and
such experts as are retained by Plaintiffs' counsel and provide them
with additional information concerning the Transaction, the
considerations of the Comair board leading up to the entering of the
Merger Agreement, and the strategic alternatives considered by the
Comair board prior to entering the Merger Agreement. Such
presentation shall demonstrate that the Comair board made
substantial efforts to consider and pursue alternatives to selling
Comair to Delta, and acted in the best interests of Comair
shareholders in making the decision to enter into the Transaction.
Plaintiffs agree that any information or material received by
Plaintiffs' counsel shall be used solely for the purposes described
in this paragraph and shall be held strictly confidential, provided,
however, that Plaintiffs' counsel shall be free to disclose to
4
<PAGE>
plaintiffs and the Court such information as Defendants and
Plaintiffs' counsel shall in good faith agree.
D. The Defendants shall provide Plaintiffs' counsel with the opportunity
to review all documents considered by Comair's Board with respect to
the Transaction and such other documents as Plaintiffs' counsel in
the Actions and Defendants shall in good faith agree upon, and
subject to agreement among counsel, shall provide members of the
Comair Board and individuals from Delta involved in the Transaction
for deposition. Should such discovery suggest facts inconsistent with
those discussed in Paragraph C above, this Memorandum of
Understanding shall be null and void.
E. Defendants shall make arrangements so that Comair shareholders
calling Morrow & Company, the information agent for the Offer, will,
upon request, receive a copy of the provisions of the Kentucky
Business Corporations Code governing the exercise of dissenters'
rights to appraisal.
F. Defendants shall make arrangements so that Comair shareholders
calling Morrow & Company, the information agent for the Offer, and
expressing concern about the tax consequences of the Transaction,
will be advised to consult their tax advisor before making any
decisions about how to treat the Transaction for tax purposes.
5
<PAGE>
G. To the extent that dissenters rights to appraisal are properly
perfected by any Comair shareholder in connection with the Merger and
remain unsettled in accordance with Kentucky law, Comair or is
successors shall commence a proceeding, naming as parties all
dissenters whose properly perfected demands for payment remain
unsettled at that time. Accordingly, any evidence introduced in favor
of any one dissenting shareholder's argument for a higher price may
be considered in favor of all shareholders seeking a higher share
price through appraisal. Comair or its successor shall pay to such
dissenting shareholders the amount payable by it, as determined and
assessed by the Court pursuant to any final judgment in such
proceeding.
II. STIPULATION OF SETTLEMENT
The parties to the Actions 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 all the pending
actions upon the terms set forth in this Memorandum of Understanding
(collectively, the "Settlement Documents"). The Stipulation will expressly
provide for certification of a non-opt out settlement class, and the Settlement
Agreement shall make clear that the right of any Comair shareholder to
dissenters' statutory rights of appraisal shall be preserved. The Stipulation
will also expressly provide for the settlement class to include all Comair
shareholders from May 19, 1999 through and including the Effective Time as
defined in the Merger Agreement
6
<PAGE>
(the "Class") and their successors in interest and transferees; for entry of a
judgment dismissing the Actions "with prejudice" and without attorneys fees or
costs to any party except as expressly provided herein; for a complete release
and settlement of all claims of shareholders, 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, and the actions of the Comair Board
(including each member of the Comair Board), Delta, or Kentucky 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 Actions)
be the subject of the Actions; that defendants have denied and continue to deny
that they have committed or attempted to commit any violations of law or
breaches of fiduciary duty; that Defendants are entering into the Stipulation
solely because the proposed Settlement would eliminate the burden, inherent
risk, and expense of further litigation, and is in the best interests of Comair
and all its shareholders; and that
7
<PAGE>
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
pending or are commenced against any person in any court prior to Final Court
Approval of the Settlement that have not been dismissed or stayed in
contemplation of dismissal or (y) any of the additional conditions set forth in
IV 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.
III. NOTICE AND COURT APPROVAL
Subject to prior Court approval of the Stipulation and the form of the
Settlement Documents, the parties to the Actions will present the Settlement
Documents to the Court for approval as soon as practicable following
dissemination of appropriate notice of the proposed Settlement to Comair
shareholders. The funds to pay the costs and expenses related to providing such
notice will be paid by Defendants and shall not come from monies that otherwise
would go to Comair shareholders. 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. Subject to the terms and conditions of
this Memorandum of
8
<PAGE>
Understanding and the contemplated Stipulation of Settlement, Plaintiffs
counsel in the Actions, the New York Action, the Jefferson County Actions, and
the Ohio Action will apply for an award of fees in an amount not exceeding in
the aggregate $675,000 and an award of expenses in an amount not exceeding
$75,000, which Defendants and other releasees will not oppose, to be paid by
Defendants in the amount awarded by the Court within thirty days of such award.
This fee and partial reimbursement of expenses will not come from monies that
would otherwise go to Comair shareholders and shall be paid to the Law Offices
of Richard B. Brualdi which shall have the responsibility for allocating it
among Plaintiffs' Counsel.
IV. OTHER CONDITIONS
The consummation of the Settlement is subject to: (a) consummation of the
Transaction as contemplated in the Merger Agreement; (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 counsel of discovery in the Actions reasonably satisfactory to
Plaintiffs' counsel; and (d) Final Court Approval (as defined above) of the
Settlement and dismissal of the Actions with prejudice. This Memorandum of
Understanding shall be null and void and of no force and effect if (i) any of
these conditions are not met; (ii) Defendants withdraw from this Memorandum of
Understanding as expressly permitted in this Memorandum of Understanding; or
(iii) Plaintiffs' counsel in the Actions determine that the Settlement is not
fair and reasonable following additional discovery. In such an event, this
Memorandum of Understanding shall not be deemed to prejudice in any way the
positions of the parties with respect to the
9
<PAGE>
Actions and shall not entitle any party to recover any costs or expenses
incurred in connection with the implementation of this Memorandum of
Understanding.
V. INTERIM STAY OF THE ACTIONS
The parties agree that except as expressly provided herein, the Actions,
the New York Action, Jefferson County Actions and the Ohio 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 complaints in these actions is extended for the
duration of the stay. Counsel shall enter into such documentation as shall be
required to effectuate the foregoing agreements.
VI. 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 Commonwealth of Kentucky; (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 that none of the claims or
causes of action asserted in the Actions have been assigned,
encumbered or in any manner transferred, in whole or in part; (e)
except as provided herein, or pursuant to the Kentucky appraisal
statutes, no party shall bear any expenses, costs,
10
<PAGE>
damages or fees alleged or incurred by any other party or their
respective attorneys, experts, advisors, agents or representatives;
(f) 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 the
Defendants; and (g) the provisions contained in this Memorandum of
Understanding shall not be deemed a presumption, concession or
admission by any party, including an admission of breach of duty,
liability, default or wrongdoing as to any facts or claims alleged or
asserted in the Actions, or in any other action or proceedings, and
shall not be interpreted, construed, deemed, invoked, offered or
received in evidence or otherwise used by any person in the Actions
or in any other action or proceeding of any nature whatsoever.
BUSALD FUNK & ZEVELY, PSC
By: /s/ Andrew Busald
---------------------------------------
Andrew Busald
226 Main Street
P.O. Box 6910
Florence, Kentucky 41022
(606)746-5287
11
<PAGE>
LAW OFFICES OF RICHARD B. BRUALDI
By: /s/ Richard B. Brualdi
---------------------------------------
Richard B. Brualdi
29 Broadway, Suite 1515
New York, New York 10006
(212) 952-0602
GENE MESH & ASSOCIATES
By: /s/ Gene Mesh
---------------------------------------
Gene Mesh
R. Michael Phebus
Michael B. Brautigam
2605 Burnet Avenue
Cincinnati, Ohio 45219
(513) 221-8800
SPECTER SPECTER EVANS & MANOGUE, P.C.
By: /s/ David Manogue
---------------------------------------
David Manogue
Koppers Building, 26th Floor
Pittsburgh, Pennsylvania 15219
(412) 642-2300
Attorneys for Plaintiffs in the Actions
MIDDLETON & REUTLINGER
By: /s/ Charles G. Middleton, III
---------------------------------------
Charles G. Middleton, III
2500 Brown & Williamson Tower
Louisville, Kentucky 40202
(502) 584-1135
12
<PAGE>
Of Counsel:
MILBERG WEISS BERSHAD HYNES & LERACH LLP
600 West Broadway, Suite 1800
San Diego, California 92101
(619) 231-1058
LAW OFFICES OF RICHARD D. KRANICH
120 Broadway, Suite 1016
New York, New York 10271
(212) 608-8965
Of Counsel:
SHEPARD & GELLER, LLC
7200 W. Camino Real, Suite 203
Boca Raton, Florida 33433
(561) 750-2000
Attorneys for Plaintiffs in the Jefferson County Actions
WEISS & YOURMAN
By: /s/ Joseph H. Weiss
---------------------------------------
Joseph H. Weiss
551 Fifth Avenue
New York, New York 10176
(212) 682-3025
Of Counsel:
STULL STULL & BRODY
6 East 45th Street
New York, New York 10017
(212) 682-3025
13
<PAGE>
Attorneys for Plaintiffs in the New York Action
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
By: /s/ Stanley D. Bernstein
---------------------------------------
Stanley D. Bernstein
10 East 40th Street
New York, New York 10176
(212) 779-1414
Of Counsel:
STRAUSS & TROY
150 East Fourth Street
Cincinnati, Ohio 45202
(513) 621-2120
Attorneys for Plaintiffs in the Ohio Action
SHEARMAN & STERLING
By: /s/ Alan S. Goudiss
---------------------------------------
Alan S. Goudiss
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
Of Counsel:
KEATING, MUETHING & KLEKAMP, P.L.L.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-6400
14
<PAGE>
Attorneys for Comair and the Members of the
Comair Board of Directors
DAVIS POLK & WARDWELL
By: /s/ Dennis E. Glazer
---------------------------------------
Dennis E. Glazer
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Of Counsel:
GRAYDON, HEAD & RITCHEY
8100 Burlington Pike
Florence, Kentucky 41042
(606) 282-8800
WYATT, TARRANT & COMBS
Citizens Plaza
Louisville, Kentucky 40202
(502) 589-5235
15
Exhibit (g)(8)
CONTACT: Delta Air Lines COMAIR
Corporate Communications Corporate Communications
404-715-2554 606-767-1500
DELTA AIR LINES AND COMAIR ANNOUNCE AGREEMENT-
IN-PRINCIPLE TO SETTLE SHAREHOLDER LITIGATION,
AMENDMENT TO ACQUISITION AGREEMENT,
AND EXPIRATION OF HART-SCOTT-RODINO WAITING PERIOD
ATLANTA, November 11,1999 - Delta Air Lines, Inc. (NYSE: DAL) and COMAIR
Holdings, Inc. (NASDAQ: COMR), parent company of COMAIR, Inc. (COMAIR), today
announced that they have entered into an agreement-in-principle to settle
litigation commenced by certain COMAIR shareholders with respect to the
proposed acquisition of COMAIR by Delta.
Delta and COMAIR also announced that in connection with the
agreement-in-principle, they have amended their Acquisition Agreement to
eliminate the $50 million termination fee that otherwise would have been
payable to Delta if the Acquisition Agreement were to be terminated as a result
of COMAIR's receiving and accepting a superior offer for its shares or in
certain other circumstances.
Delta and COMAIR said they entered into the agreement-in-principle to
avoid the burden, expense and distraction of further litigation.
<PAGE>
- 2 -
Both the memorandum of understanding setting forth the terms of the
agreement-in-principle and the amendment to the Acquisition Agreement will be
filed with the Securities and Exchange Commission as exhibits to amendments to
Delta's Tender Offer Statement on Schedule 14D-1 and COMAIR's
Solicitation/Recommendation Statement on Schedule 14D-9.
Delta and COMAIR also announced that the waiting period applicable to
Delta's proposed acquisition of COMAIR under the Hart-Scott-Rodino Antitrust
Improvements Act expired on November 10, 1999.
As previously announced, the offer and withdrawal rights under Delta's
tender offer for all outstanding shares of common stock of COMAIR Holdings will
expire at 12:00 midnight, New York City time, on November 19, 1999, unless the
offer is extended.
###
