Registration No. 33-63035
SECURITIES AND EXCHANGE COMMISSION
_______________________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________________________
AIR EXPRESS INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction
of incorporation or organization)
36-2074327
(I.R.S. Employer
Identification No.)
120 TOKENEKE ROAD
DARIEN, CONNECTICUT 06820
(203) 655-7900
(Address including zip code, and telephone number,
including area code of registrant's principal executive offices)
DANIEL J. MCCAULEY, ESQ.
Vice President, General Counsel and Secretary
AIR EXPRESS INTERNATIONAL CORPORATION
120 Tokeneke Road
Darien, Connecticut 06820
(203) 665-7900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
KATHERINE P. BURGESON, ESQ.
Cummings & Lockwood
Four Stamford Plaza
107 Elm Street
Stamford, Connecticut 06902-3851
_______________________________________
Approximate date of commencement of proposed sale to the public: from
time to time within two years after the effective date of this Registration
Statement, as determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following
box. [ ]
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_______________________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A)
OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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979,887 SHARES
AIR EXPRESS INTERNATIONAL CORPORATION
COMMON STOCK
PAR VALUE $.01 PER SHARE
This Prospectus relates to 979,887 shares (the "SHARES") of Common
Stock, par value $.01 per share (the "COMMON STOCK"), of Air Express
International Corporation, a Delaware corporation (the "CORPORATION" or
"AEI"), to be offered or sold from time to time for the account of certain
shareholders of the Corporation (the "SELLING SHAREHOLDERS").
The Shares covered by this Prospectus were issued by the Corporation
in a private placement transaction to certain former shareholders of Radix
Ventures, Inc., a Delaware corporation ("RADIX"), in connection with the
Corporation's acquisition of Radix on June 8, 1995. See "Selling Shareholders"
and "Plan of Distribution."
The Shares may be offered for sale and sold by the Selling
Shareholders from time to time on the Nasdaq National Market at prevailing
market prices, in privately negotiated transactions at negotiated prices, in a
combination of such methods of sale, or otherwise as determined by the Selling
Shareholders. The Selling Shareholders may effect such transactions by selling
the Shares to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts or commissions from the Selling
Shareholders and/or the purchasers of the Shares for whom such broker-dealers
may act as agents or to whom they sell as principals, or both (which
compensation as to a particular broker-dealer may be in excess of customary
commissions). See "Plan of Distribution."
The Corporation will not receive any part of the proceeds from the
sale of the Shares. The Selling Shareholders will pay all applicable stock
transfer taxes and brokerage commissions, but the Corporation will bear all
other expenses of the Corporation and the Selling Shareholders in connection
with the offering made hereunder, including the Corporation's legal and
accounting fees connected therewith.
The Common Stock is included for quotation on the Nasdaq National
Market under the symbol "AEIC."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is December 7, 1995.
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AVAILABLE INFORMATION
AEI is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "COMMISSION"). Such reports,
proxy statements and other information filed by AEI can be inspected and
copied at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the Commission's Regional Offices at 7 World Trade Center, Suite 1300, New
York, New York 10048 and at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material can also be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
AEI's Common Stock is included for quotation on the Nasdaq National
Market under the symbol "AEIC," and AEI's Convertible Subordinated Debentures
due 2003 are listed on the American Stock Exchange ("AMEX"). The Corporation's
reports, proxy statements, and other information concerning AEI may be
inspected at the offices of the National Association of Securities Dealers,
Inc. at 1735 K Street N.W., Washington, D.C. 20006 and at the offices of the
AMEX at 86 Trinity Place, New York, New York 10006.
AEI has filed a Registration Statement on Form S-3 with the
Commission in Washington, D.C. in accordance with the provisions of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to the
Shares subject to this Prospectus. This Prospectus does not contain all of
the information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to the Corporation and the
Shares covered herein, reference is made to the Registration Statement and the
exhibits filed as part thereof. Statements herein concerning the provisions
of any document are not necessarily complete and, in each instance, reference
is made to the copy of such document filed as an exhibit to the Registration
Statement. The Registration Statement and the exhibits may be inspected
without charge at the offices of the Commission or copies thereof may be
obtained at prescribed rates from the Public Reference Section of the
Commission at the address set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the
Commission are incorporated into this Prospectus by reference:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1994, as amended by Amendment No. 1 on Form 10-K/A filed with the
Commission on April 26, 1995 and Amendment No. 2 on Form 10-K/A filed with the
Commission on May 19, 1995;
2. The Corporation's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1995, June 30, 1995 and September 30, 1995;
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3. The Corporation's Current Report on Form 8-K dated June 22,
1995, as amended by Amendment No. 1 on Form 8-K/A filed with the Commission
on August 8, 1995; and
4. The Corporation's definitive Proxy Statement dated May 23,
1995, filed in connection with its Annual Meeting of Stockholders held on
June 23, 1995.
All documents filed by the Corporation with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the offering
contemplated hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in this Prospectus will be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed documents which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Corporation will provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus is
delivered, upon written or oral request of any such person, a copy of any
and all information that has been incorporated by reference in the
registration statement of which this Prospectus is a part (other than
exhibits to such information, unless such exhibits are specifically
incorporated by reference into any such information). Requests should be
directed to: Air Express International Corporation, 120 Tokeneke Road,
Darien, Connecticut 06820, Attention, Daniel J. McCauley, Esq., Vice
President, General Counsel and Secretary; telephone number (203) 655-
7900.
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PROSPECTUS SUMMARY
The following material is qualified in its entirety by the
information appearing elsewhere in this Prospectus or in documents
incorporated by reference into this Prospectus.
THE OFFERING
Corporation................ Air Express International Corporation, a
Delaware corporation
Securities Offered......... 979,887 shares of Common Stock, par value
$.01 per share.
Use of Proceeds............ The Corporation will not receive any of the
proceeds of this offering.
Shares Outstanding
at November 8, 1995..... 18,574,458
Nasdaq Symbol.............. AEIC
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THE CORPORATION
AEI is one of the oldest and largest international airfreight
forwarders based in the United States. Through its global network of AEI-
operated facilities and agents, AEI consolidates, documents and arranges
for transportation of its customers' shipments of heavy cargo throughout
the world. During 1994, AEI handled more than 1,630,000 individual
airfreight shipments, with an average weight of 483 pounds, to nearly
2,860 cities in more than 182 countries. Since 1985, when its current
management assumed control, AEI has focused on the international
transportation of heavy cargo and has devoted its resources to expanding
and enhancing its global network.
Although AEI's headquarters are located in the United States, its
network is global, serving over 661 cities, including 146 cities in the
United States, 176 cities in Europe and 339 cities in Asia, the South
Pacific, the Middle East, Africa and Latin America. As of December 31,
1994, this network consisted of 182 AEI-operated facilities, including 50
in the United States and 132 abroad, supplemented at 479 additional
locations by agents, a substantial number of whom serve AEI on an
exclusive basis. The network is managed by experienced professionals,
most of whom are nationals of the countries in which they serve.
Approximately 80 percent of AEI's 28 regional and country managers have
been employed by AEI for more than ten years.
The Corporation's principal executive offices are located at 120
Tokeneke Road, Darien, Connecticut 06820 and its telephone number is (203)
655-7900.
RECENT DEVELOPMENTS
ACQUISITION OF RADIX. On June 8, 1995, AEI acquired all of the
issued and outstanding shares of capital stock of Radix. Through
operation of certain of its direct and indirect subsidiaries and their
branch offices, Radix conducts business primarily as a customs broker and
also as an international air and ocean freight forwarder. As of December
31, 1994, Radix maintained 22 offices in the United States and maintained
arrangements with joint venture partners and agents in approximately 60
foreign countries.
USE OF PROCEEDS
The Shares subject to this Prospectus are being offered for the
account of the Selling Shareholders. None of the proceeds from the sale
of Shares will be received by the Corporation.
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DESCRIPTION OF CAPITAL STOCK
AEI is authorized to issue 40,000,000 shares of Common Stock,
$.01 par value per share, and 1,000,000 shares of Preferred Stock, $1.00
par value per share (the "PREFERRED STOCK"). At November 8, 1995,
18,574,458 shares of Common Stock were issued and outstanding (net of
Common Stock held in Treasury) and no shares of Preferred Stock had been
issued.. The following description of the capital stock of AEI is
qualified in its entirety by reference to AEI's Certificate of
Incorporation, as amended, copies of which are on file with the Commission
and the AMEX.
COMMON STOCK. Each holder of Common Stock is entitled to one
vote per share. Subject to the rights of the holders of outstanding
Preferred Stock, if any, in the event of any liquidation, dissolution, or
winding up, the holders of Common Stock will be entitled to share ratably
in the assets available for distribution after payment of liabilities.
The holders of Common Stock have equal rights, share for share, to receive
dividends when declared by the Board of Directors out of funds legally
available therefor. No holder of Common Stock has any preemptive right to
subscribe for any securities of the Corporation. The shares of Common
Stock do not have cumulative voting rights. The Transfer Agent and
Registrar for the Common Stock is Chemical Mellon Shareholder Services,
L.L.C.
PREFERRED STOCK. The Board of Directors has authority to issue
Preferred Stock from time to time without shareholder approval, in one or
more series. The Board of Directors is authorized with respect to any
series of Preferred Stock to fix the designation, the number of shares,
the voting powers, the conditions of the conversion privilege, if any, the
terms and conditions of the redemption rights, if any, the rights upon
liquidation, merger, consolidation, distribution or sale of assets,
dissolution or winding up, the dividend rate and whether dividends shall
be cumulative, and any other powers, preferences and relative,
participating, optional and other rights and the qualifications,
limitations and restrictions of such series. These terms could adversely
affect the interests of the holders of the Common Stock. The authority of
the Board of Directors to issue Preferred Stock without further
shareholder approval could be exercised in a manner that might have the
effect of delaying, deferring, or preventing a change of control of the
Corporation.
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SELLING SHAREHOLDERS
The following table sets forth, as of November 29, 1995, (i) the
name of each Selling Shareholder and any position, office or other material
relationship with the Corporation, its predecessors or affiliates, within the
past three years, (ii) the number of Shares currently owned by each Selling
Shareholder, (iii) the maximum number of Shares to be offered and sold by
each Selling Shareholder and (iv) the number of Shares to be owned after the
sale assuming the sale of all Shares offered hereby. This information is
based on data furnished to the Corporation by or on behalf of the Selling
Shareholders.
Shares Presently Shares to be Shares to be
Name and Address Owned(1) Offered Owned After Sale
Diane Acker 19,443 19,443 -0-
Peter M. 13,169 13,169 -0-
Behrendt &
Charlotte J.
Behrendt Tr UA June
26, 1987 Behrendt
Living Trust
Robert C. Berner 13,610 13,610 -0-
Arthur Deutsch 32,405 32,405 -0-
Grace Countess of Dudley 5,703 5,703 -0-
Don S. Friedkin(2) 6,481 6,481 -0-
Karen Ginsberg & 70,966 70,966 -0-
Joyce Lapin et al Tr
UA July 28, 1990
Robert C. Lapin Ten
Year Trust
Irving F. Levitt(3) 82,891 82,891 -0-
Robert C. Lapin(4) 42,644 42,644 -0-
Leonard Lichter (5) 19,443 19,443 -0-
John 272,335 272,335 -0-
Radziwill(6)(10)(11)
Daniel R. Schoenheimer 3,596 3,596 -0-
Linda 2,592 2,592 -0-
Schoenheimer McCurdy
& David F.
Oleshansky Tr UA
October 20, 1994 FBO
Jacob F. Oleshansky
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Shares Presently Shares to be Shares to be
Name and Address Owned(1) Offered Owned After Sale
Linda E. 3,110 3,110 -0-
Schoenheimer
Joyce A. 3,370 3,370 -0-
Schoenheimer
Joyce 2,592 2,592 -0-
Schoenheimer & Idee
Schoenheimer Tr UA
October 20, 1994 FBO
Kate E. McCurdy
Pierre L. 272,852 272,852 -0-
Schoenheimer (7)
(10) (11)
Matthew P. 86,650 86,650 -0-
Sheppard (8)(11)
Arthur T. Birsh 129 129 -0-
Arthur Buffman 2,592 2,592 -0-
Carolyn Caudle Sewell 51 51 -0-
Smith Barney Inc. 907 907 -0-
Bear Stearns 13,156 13,156 -0-
Securities Corp.
Jan Endresen 388 388 -0-
Randall Houchen 129 129 -0-
Roberta A. 6,481 6,481 -0-
Koclanis & George J.
Koclanis JT. TEN. (9)
Irving Litt 259 259 -0-
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Shares Presently Shares to be Shares to be
Name and Address Owned(1) Offered Owned After Sale
Vincent T. Mancusi 129 129 -0-
Daniel Presser 518 518 -0-
Joseph Weinberg 1,296 1,296 -0-
- ------------------------------------------------------------------------
TOTAL: 979,887 979,887 -0-
1. The aggregate number of Shares identified in this column as being
owned by the Selling Shareholders includes 107,789 Shares
(approximately 11% of the Shares) held in escrow pursuant to the terms
of the Merger and such Shares may not be available for sale pursuant
to this Prospectus. See "Plan of Distribution."
2. Mr. Friedkin was a director, a Vice President and the Secretary of
Radix from 1971 through June 7, 1995.
3 Mr. Levitt was a director of Radix from 1981 through June 7, 1995.
4. Mr. Lapin was a director of Radix from 1981 through June 7, 1995.
5. Mr. Lichter was a director of Radix from 1985 through June 7, 1995.
6. Mr. Radziwill is currently a director of the Corporation. From
1979 through June 7, 1995, Mr. Radziwill was a director, the
President and the Chief Executive Officer of Radix.
7. Mr. Schoenheimer was a director of Radix from 1971 through June
7, 1995, and was the Chairman of Radix since 1979.
8. Mr. Sheppard is currently a Vice President of the Corporation and
a Vice President and the Treasurer of Radix. Prior to June 7, 1995,
Mr. Sheppard was a director of Radix since 1985.
9. Mr. Koclanis was an officer of Radix Group International, Inc.
until June 7, 1995.
10. Mr. Radziwill and Mr. Schoenheimer, respectively, will continue to
own approximately 1.47% (based on Mr. Radziwill's ownership of
272,335 shares of Common Stock) and 1.47% (based on Mr. Schoenheimer's
ownership of 272,852 shares of Common Stock), respectively, of the issued
and outstanding Common Stock of the Corporation (based on 18,574,458
shares of the Corporation's Common Stock being issued and outstanding at
November 8, 1995) after completion of the offering which is the subject of
this Prospectus, assuming neither Mr. Radziwill nor Mr. Schoenheimer sells
any Shares in the offering.
11. Messrs. Radziwill, Schoenheimer and Sheppard have each entered into
separate agreements with the Corporation restricting them, collectively,
from selling more than the number of Shares equal to one-third of their
Shares (such one-third being 210,619 Shares) during each of the 12-month
periods ending June 7, 1996 and June 7, 1997, respectively.
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PLAN OF DISTRIBUTION
On June 8, 1995, AEI acquired all of the issued and outstanding
shares of common stock of Radix as a result of the merger of AEIC
Acquisition Corporation, a Delaware corporation wholly owned by AEI, with
and into Radix, with Radix being the surviving corporation (the "MERGER").
Each of the Selling Shareholders was a former holder of shares of common
stock of Radix at the effective time of the Merger. The Shares subject to
this Prospectus were issued by the Corporation to the Selling Shareholders
in a private placement transaction pursuant to the terms of the Merger.
The Shares may be offered for sale and sold from time to time by
the Selling Shareholders within two years after the effective date of the
registration statement of which this Prospectus is a part. The Selling
Shareholders will act independently of the Corporation in making decisions
with respect to the timing, manner and size of each sale. Such sales may
be made on the Nasdaq National Market or otherwise, at prevailing prices
and on terms then prevailing or at prices related to the then market
price, or in negotiated transactions.
The manner in which the Shares may be sold include, without
limitation, the following: (a) block trades in which the broker-dealer(s)
engaged by the Selling Shareholders will attempt to sell the Shares as
agents but may position or resell a portion of the block as principals to
facilitate the transaction; (b) purchases by the broker-dealer(s) as
principals and resale by such brokers or dealers for their account
pursuant to this Prospectus; (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; (d) in negotiated
transactions; and (e) as otherwise determined by the Selling Shareholders.
In effecting sales, broker-dealers engaged by the Selling Shareholders may
arrange for other broker-dealers to participate.
The Selling Shareholders and any brokers, dealers or agent who
participate in the sale of the Shares may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act and the
commissions paid or discounts allowed to any such brokers, dealers or
agents in addition to any profits received on resale of the Shares, if any
such broker, dealer or agent should purchase any Shares as a principal,
may be deemed to be underwriting discounts or commissions under the
Securities Act.
AEI will not receive any part of the proceeds from the sale of
the Shares. Each of the Selling Shareholders, respectively, will pay all
applicable brokerage commissions, stock transfer taxes and the fees of
such Selling Shareholder's counsel in connection with the offer and sale
of Shares by such Selling Shareholder. AEI will bear all other expenses
in connection with the offering and sale of the Shares, including, without
limitation, all registration and filing fees, printing, messenger and
delivery fees, and legal and accounting fees and expenses. AEI is not
obligated to bear and will not bear any fees, costs or expenses relating
to the use by any of the Selling Shareholders of an underwriter in
connection with the disposition of Shares.
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LEGAL OPINION
The validity of the issuance of the Shares offered hereby has
been passed upon for the Corporation by Cummings & Lockwood, Four Stamford
Plaza, 107 Elm Street, Stamford, Connecticut 06902-3851.
EXPERTS
The consolidated balance sheets of AEI and subsidiaries as of
December 31, 1994 and 1993, and the related consolidated statements of
operations, stockholders' investment and cash flow for each of the three
years in the period ended December 31, 1994, incorporated into this
Prospectus by reference to the Annual Report on Form 10-K of the
Corporation for the year ended December 31, 1994, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in the giving of said reports.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED
OR INCORPORATED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY
THE CORPORATION, BY THE SELLING SHAREHOLDERS OR BY ANY OTHER PERSON DEEMED
TO BE AN UNDERWRITER. NEITHER THE DELIVERY OF THE PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE
HEREOF. ANY MATERIAL CHANGE OCCURRING WITHIN THE PERIOD WHEN DELIVERY OF
THIS PROSPECTUS IS REQUIRED WILL BE REFLECTED IN AN AMENDED OR
SUPPLEMENTED PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY THE SHARES COVERED BY THIS
PROSPECTUS BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANYONE TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
--------------------------------------------
The following table sets forth an itemization of all estimated
expenses in connection with the issuance and distribution of the
securities being registered, none of which are payable by the Selling
Shareholders:
Registration Statement Filing Fee $ 8,109.00
Legal Fees and Expenses $ 15,000.00
Accounting Fees and Expenses $ 10,000.00
Printing Costs $ 1,000.00
Miscellaneous $ 1,000.00
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Total $35,109.00
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Delaware General Corporation Law (the "GCL") (Section 102)
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damage for a breach of his/her fiduciary duty as a director, except in the
case where the director breached his/her duty of loyalty, failed to act in
good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase in
violation of Delaware corporate law or obtained an improper personal
benefit. The Certificate of Incorporation of AEI contains a provision
which eliminates directors' personal liability as set forth above.
The GCL (Section 145) gives Delaware corporations broad powers to
indemnify their present and former directors and officers and those of
affiliated corporations against expenses incurred in the defense of any
lawsuit to which they are made parties by reason of being or having been
such directors or officers, subject to specified conditions and
exclusions; gives a director or officer who successfully defends an action
the right to be so indemnified; and authorizes the corporation to buy
directors' and officers' liability insurance. Such indemnification is not
exclusive of any other right to which those indemnified may be entitled
under any bylaw, agreement, vote of stockholders or otherwise.
AEI's Certificate of Incorporation provides for indemnification
to the fullest extent authorized by Section 145 of the GCL for directors,
officers and employees of AEI and also to persons who are serving at the
request of AEI as directors, officers or employees of other corporations
(including subsidiaries). This right of indemnification is not exclusive
of any other right which any person may acquire under any statute, bylaw,
agreement, contract, vote of stockholders or otherwise.
For the undertaking with respect to the indemnification, see Item
17.
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Item 16. EXHIBITS
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EXHIBIT NO. DESCRIPTION OF EXHIBIT
(5) Opinion of Cummings & Lockwood
(23)(a) Consent of Arthur Andersen LLP
(23)(b) Consent of Cummings & Lockwood
(Included as Part of Exhibit 5)
(24) Power of Attorney
(Filed with the initial Registration
Statement on Form S-3 filed with the
Commission on September 28, 1995)
Item 17. UNDERTAKINGS
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration statement;
(2) That for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling a corporation pursuant to (1) any provision or arrangement
whereby the registrant may indemnify a director, officer or controlling
person of the registrant against liabilities arising under the Securities
Act of 1933, (2) provisions of an underwriting agreement whereby the
registrant indemnifies the underwriter or controlling persons of the
underwriter against such liabilities under the Securities Act of 1933
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and a director, officer or controlling person of the registrant is such an
underwriter or controlling person thereof or a member of any firm which is
such an underwriter, or (3) such other means designed to indemnify
directors, officers or controlling persons of the registrant for
liabilities arising under the Securities Act of 1933, AEI has been
informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Amendment to this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized in the Town of Darien, State
of Connecticut on December 7, 1995.
AIR EXPRESS INTERNATIONAL CORPORATION
By:/S/ DANIEL J. MCCAULEY
-----------------------
Daniel J. McCauley
Vice President, Secretary
and General Counsel
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to this Registration Statement has been signed on December 7,
1995 by the following persons in the capacities indicated.
SIGNATURE TITLE
/S/ HENDRIK J. HARTONG, JR.* Chairman of the Board of Directors
- ---------------------------------
Hendrik J. Hartong, Jr.
/S/ GUENTER ROHRMANN* President, Chief Executive Officer and
- --------------------------------- Director (Principal Executive Officer)
Guenter Rohrmann
/S/ DENNIS M. DOLAN* Vice President and Chief
- --------------------------------- Financial Officer
Dennis M. Dolan (Principal Financial Officer)
/S/ WALTER L. MCMASTER* Vice President and Controller
- --------------------------------- (Principal Accounting Officer)
Walter L. McMaster
/S/ JOHN M. FOWLER* Director
- ---------------------------------
John M. Fowler
/S/ DONALD J. KELLER* Director
- ---------------------------------
Donald J. Keller
/S/ ANDREW L. LEWIS IV* Director
- ---------------------------------
Andrew L. Lewis IV
/S/ RICHARD T. NINER* Director
- ---------------------------------
Richard T. Niner
/S/ JOHN RADZIWILL* Director
- ---------------------------------
John Radziwill
* Executed by Daniel J. McCauley as Attorney-in-Fact for the named
individuals pursuant to a Power of Attorney dated September 15, 1995, as
filed with the initial filing of this Registration Statement on September
28, 1995.
/S/ DANIEL J. MCCAULEY
----------------------
Daniel J. McCauley
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
NUMBER DESCRIPTION PAGE
5 Opinion of Cummings & Lockwood
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Cummings & Lockwood
(Included as part of Exhibit 5)
24 Power of Attorney
(Filed with the initial Registration
Statement on Form S-3 filed with the
Commission on September 28, 1995)
<PAGE>
EXHIBIT (5)
[CUMMINGS & LOCKWOOD LETTERHEAD]
December 7, 1995
Air Express International Corporation
120 Tokeneke Road
Darien, CT 06820
Re: 979,887 Shares of Common Stock, par value $.01 per
share, of Air Express International Corporation
--------------------------------------------------
Ladies and Gentlemen:
We are counsel to Air Express International Corporation, a
Delaware corporation (the "COMPANY"), and have represented the Company
with respect to the Registration Statement on Form S-3 initially filed by
the Company with the Securities and Exchange Commission (the "COMMISSION")
on September 28, 1995 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and Amendment No. 1 thereto to be filed by the Company
with the Commission on December 7, 1995 (as so amended, the "REGISTRATION
STATEMENT") relating to the registration of 979,887 issued and outstanding
shares of the Company's Common Stock, par value $.01 per share (the
"SHARES"), to be offered for sale and sold by and for the account of
existing shareholders of the Company.
In rendering this opinion, we have relied upon (i) a copy of the
Registration Statement; (ii) an executed copy of the Agreement and Plan of
Merger dated May 3, 1995, among the Company, AEIC Acquisition Corporation,
a Delaware corporation ("AEIC"), Radix Ventures, Inc., a Delaware
corporation ("RADIX"), and the certain representative stockholders of
Radix (the "MERGER AGREEMENT"), and a certified copy of the Certificate of
Merger filed by the Delaware Secretary of State on June 8, 1995, merging
AEIC with and into Radix (the "CERTIFICATE OF MERGER"), pursuant to which
documents the Shares were originally issued by the Company; and (iii) a
certificate from Chemical Mellon Shareholder Services, L.L.C., the stock
transfer agent for the Company, certifying that certificates representing
the Shares have been duly executed, countersigned and registered pursuant
to the terms of the Merger Agreement. We have also examined originals, or
copies of originals certified to our satisfaction, of such agreements,
documents, certificates and other statements of governmental officials and
other instruments, and have examined such questions of law and have
satisfied ourselves as to such matters of fact, as we have considered
relevant and necessary as a basis for this opinion. We have assumed the
authenticity of all documents submitted to us as originals, the
genuineness of all signatures, the legal capacity of all natural persons
and the conformity with the original documents of any
<PAGE>
copies thereof submitted to us for our examination. We have also assumed
the valid authorization, execution and delivery of the Merger Agreement by
each party other than the Company and the due organization, valid
existence and good standing of each such party.
Based upon and subject to the foregoing, we are of the opinion
that the Shares being registered pursuant to the Registration Statement
will, when sold, be legally issued, fully paid and non-assessable.
We express no opinion as to the application of the securities or
blue sky laws of the various states to the sale of the Shares.
This opinion is limited to the laws of the State of Connecticut,
the Delaware General Corporation Law and the laws of the United States of
America to the extent applicable.
We hereby consent to the filing of this opinion as an Exhibit to
the Registration Statement and to all references to our firm that are
included in or made a part of the Registration Statement.
Sincerely,
/s/ CUMMINGS & LOCKWOOD
CUMMINGS & LOCKWOOD
2
<PAGE>
Exhibit (23)(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports
dated March 23, 1995, included in the Annual Report on Form 10-K of the
Corporation for the year ended December 31, 1994, and to all references
to our firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
December 1, 1995
New York, NY
<PAGE>
