File No. 005-07933
As filed with the Securities and Exchange Commission on November 23, 1999
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section
14(d)(1) of the Securities Exchange Act of 1934
(Amendment No. 1)
AIR EXPRESS INTERNATIONAL CORPORATION
(Name of Subject Company)
DEUTSCHE POST AG
DP ACQUISITION CORPORATION
a wholly-owned subsidiary of
DEUTSCHE POST AG
(Bidders)
-----------------------
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
-----------------------
009104100
(Cusip Number)
Dr. Klaus Engelen
Deutsche Post AG
Heinrich-von-Stephan-Str. 1
53175 Bonn, Germany
Telephone: 011-49-228-182-3600
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications on Behalf of Bidders)
Copies to:
Christopher Mayer
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
================================================================================
<PAGE>
This Amendment No.1 ("Amendment No. 1") amends and supplements the Tender
Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") originally filed on
November 19, 1999 by Deutsche Post AG, a German corporation ("Parent"), and DP
Acquisition Corporation ("Purchaser"), a Delaware corporation and a wholly-owned
subsidiary of Parent, relating to the offer by Purchaser to purchase all
outstanding shares of common stock, par value $0.01 per share (the "Shares"), of
Air Express International Corporation, a Delaware corporation (the "Company"),
at a price of $33.00 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated November 19,
1999 (the "Offer to Purchase") and in the related Letter of Transmittal.
All capitalized terms used in this Amendment No.1 without definition have
the meanings attributed to them in the Schedule 14D-1.
The items of the Schedule 14D-1 set forth below are hereby amended and
supplemented as follows:
Item 10. Additional Information.
Item 10(e) of the Schedule 14D-1 is hereby amended and restated to read in
its entirety as follows:
On November 19, 1999, an action was filed by an alleged shareholder of the
Company in the Court of Chancery of the State of Delaware, styled Smith v.
Hartong, et al., C.A. No. 17594-NC. The complaint in the action seeks to proceed
on behalf of a purported class consisting of owners of Shares other than the
defendants. The complaint names as defendants the Company and the members of the
Company's board of directors. Plaintiff alleges that in agreeing to the Merger
Agreement, the members of the Company's board of directors breached their
fiduciary duties to the stockholders of the Company by failing to take
appropriate measures to maximize the value of the Shares. Plaintiff seeks
monetary and/or rescissory damages in an unspecified amount, preliminary and
permanent injunctive relief against the consummation of the transactions
contemplated under the Merger Agreement and plaintiff's costs and disbursements
in bringing the action. Defendants believe that the action is without merit and
intend to defend against it vigorously.
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby amended and supplemented to add the following exhibit:
(g)(1) Class Action Complaint filed on November 19, 1999 in the Court of
Chancery of the State of Delaware, in an action entitled Smith v.
Hartong, et al.
<PAGE>
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.
Dated: November 23, 1999
DP ACQUISITION CORPORATION
By: /s/ Dr. Klaus Engelen
-----------------------------------
Name: Dr. Klaus Engelen
Title: General Counsel, Executive
Vice President and Secretary
DEUTSCHE POST AG
By: /s/ Dr. Bernd Boecken
------------------------------------
Name: Dr. Bernd Boecken
Title: Director of Finance
By: /s/ Dr. Klaus Engelen
-----------------------------------
Name: Dr. Klaus Engelen
Title: General Counsel
<PAGE>
EXHIBIT INDEX
Exhibit No.
- --------------------------------------------------------------------------------
99(g)(1) Class Action Complaint filed on November 19, 1999 in the
Court of Chancery of the State of Delaware, in an action
mentitled Smith v. Hartong, et al.
Exhibit (g)(1)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------x
STEVE SMITH, :
:
Plaintiff, :
: Civil Action No. 17594NC
v. :
:
HENDRIK J. HARTONG, JR. :
GUENTER ROHRMANN, JOHN M. :
FOWLER, DONALD J. KELLER :
ANDREW L. LEWIS IV, RICHARD T. :
NINER, JOHN RADZIWILL, NOEL E. :
VARGAS and AIR EXPRESS :
INTERNATIONAL CORPORATION, :
:
Defendants. :
- ------------------------------------x
CLASS ACTION COMPLAINT
Plaintiff alleges upon information and belief, except for paragraph 2
hereof, which is alleged upon personal knowledge, as follows:
SUMMARY OF ACTION
1. Plaintiff brings this action on behalf of himself and all other
shareholders of defendant Air Express International Corporation. ("Air Express"
or the "Company"), except defendants and their affiliates, against the directors
of Air Express for breaching their fiduciary duties to Air Express's
shareholders in failing to take appropriate measures to maximize the value of
the Air Express stock held by its shareholders.
<PAGE>
THE PARTIES
2. Plaintiff owns shares of the common stock of Air Express and has
been the owner of such shares at all times relevant hereto.
3. Air Express is a corporation organized and existing under the laws
of the State of Delaware. Air Express primarily provides services that
facilitate the movement of freight across international markets. The Company's
core business, air and ocean freight forwarding, involves purchasing
transportation services in bulk from air and ocean carriers at wholesale rates
and profiting from the spread by offering consolidation services at retail
rates.
4. Defendant Hendrik J. Hartong, Jr. ("Hartong") is Chairman of the
Board of Directors of Air Express.
5. Defendant Guenter Rohrmann ("Rohrmann") is President, Chief
Executive Officer and a Director of Air Express.
6. Defendant John M. Fowler ("Fowler") is a Director of Air Express.
7. Defendant Donald J. Keller ("Keller") is a Director of Air Express.
8. Defendant Andrew L. Lewis IV ("Lewis") is a Director of Air
Express.
9. Defendant Richard T. Niner ("Niner") is a Director of Air Express.
10. Defendant John Radziwill ("Radziwill") is a Director of Air
Express.
11. Defendant Noel E. Vargas ("Vargas") is a Director of Air Express.
12. The defendants named in paragraphs 4-11 above are hereinafter
sometimes collectively referred to as the "Individual Defendants" or the
"Director Defendants."
2
<PAGE>
13. By virtue of the Individual Defendants' position as officers
and/or directors of Air Express, they are in a fiduciary relationship with
plaintiff and other public shareholders of Air Express and owe them the highest
obligations of good faith, fair dealing, loyalty and due care.
CLASS ACTION ALLEGATIONS
14. Plaintiff brings this action, pursuant to Rule 23 of the Rules of
this Court, on behalf of himself and all other holders of the common stock of
Air Express (except defendants herein and any person, firm, trust, corporation,
or other entity related to or affiliated with any of the defendants) and their
successors in interest, who are or will be threatened with injury arising from
defendants' actions as more fully described herein.
15. This action is properly maintainable as a class action because;
(1) The class is so numerous that joinder of all members is
impracticable. There are about 33,598,000 shares of Air Express common stock
outstanding held by at least hundreds of shareholders throughout the United
States.
16. 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:
(1) whether defendants have breached their fiduciary and other
common law duties owed by them to plaintiff and the other members of the class;
(2) whether the class is entitled to injunctive relief or damages
as a result of the wrongful conduct of the defendants; and
(3) whether defendants have failed to take appropriate measures
to ensure the realization of the maximum value of the Air Express stock held by
the class.
3
<PAGE>
17. Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. The claims of the
plaintiff are typical of the claims of other members of the class and plaintiff
has the same interests as the other members of the class.
18. Defendants have acted in a manner which affects plaintiff and all
other members of the class alike, thereby making appropriate injunctive relief
and/or corresponding declaratory relief with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
19. On November 15, 1999, Air Express and Deutsche Post AG, Europe's
largest mail, parcel and logistics company ("Deutsche Post"), announced that
they had signed a definitive merger agreement. Under the terms of the merger
agreement, Deutsche Post will acquire the outstanding shares of Air Express for
$33 per share in cash or approximately $1.14 billion. The companies further
announced that Air Express's Board of Directors and Deutsche Post's supervisory
board had both approved the agreement.
20. Pursuant to the merger agreement, Deutsche Post will commence a
tender offer for all outstanding shares of Air Express at a price of $33 per
share in cash. Upon consummation of the tender offer, any remaining shares of
Air Express will be acquired in a cash merger at the same price.
21. Deutsche Post plans to integrate all Air Express activities into
its Danzas Inercontinental Business Unit ("Danzas"). As a result, Deutsche Post
will gain a major stronghold in the U.S.A., and Danzas will become the leading
airfreight forwarder worldwide.
22. Air Express's present Chief Executive Officer, defendant Rohrmann,
will assume the position of Vice Chairman of the combined division.
4
<PAGE>
23. Air Express's present Chairman, defendant Hartong, will join the
board of the combined division.
24. The purchase price of $33.00 per share is inadequate. As recently
as November 12, 1999, Air Express common stock traded as high as $32.69 so the
proposed transaction offers virtually no premium to Class members.
25. By entering into the agreement with Deutsche Post, the Air Express
Board has initiated a process to sell the Company, imposing heightened fiduciary
responsibilities on its directors. However, the terms of the proposed
transaction were not the result of an auction process; they were arrived at
without a full and thorough investigation by the Individual Defendants and they
are intrinsically unfair and inadequate from the standpoint of the Air Express
shareholders.
26. The Individual Defendants have violated the fiduciary duties owed
to the public shareholders of Air Express. The Individual Defendants' agreement
to the terms of the transaction and the failure to auction the Company and
invite other bidders demonstrate a clear absence of the exercise of due care and
of loyalty to Air Express's public shareholders.
27. In light of the foregoing, the Individual Defendants' fiduciary
obligations require them to:
(1) undertake an appropriate evaluation of Air Express's worth as
a merger/acquisition candidate;
(2) take all appropriate steps to enhance Air Express's value and
attractiveness as a merger/acquisition candidate; and
(3) take all appropriate steps to obtain the best available
transaction for Air Express.
5
<PAGE>
28. As a result of defendants' breaches of fiduciary duties, plaintiff
and the other members of the Class have been and will be damaged in that they
will be prevented from maximizing the value of their investment in Air Express.
29. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the other members of the Class, to
the irreparable harm of the Class.
30. Plaintiff and the other members of the class have no adequate
remedy at law.
WHEREFORE, plaintiff demands judgment against defendants jointly and
severally, as follows:
(1) declaring this action to be a class action and certifying
plaintiff as the class representative;
(2) preliminarily and permanently enjoining defendants and their
counsel, agents, employees and all persons acting under, in concert with, or for
them, from proceedings with, consummating, or closing the proposed transaction;
(3) entering an order or orders requiring defendants to take the
steps set forth above to maximize shareholder value;
(4) to the extent, if any, that the contemplated transaction or
transactions complained of are consummated prior to the entry of this Court's
final judgment, rescinding such transaction or transactions, or granting the
Class rescissory damages;
(5) directing that defendants account to plaintiff and the other
members of the class for all damages caused to them and account for all profits
and any special benefits obtained as a result of their unlawful conduct;
(6) awarding plaintiff the costs and disbursement of this action,
including a reasonable allowance for the fees and expenses of plaintiff's
attorneys and experts; and
6
<PAGE>
(7) granting plaintiff and the other members of the class such
other and further relief as may be just and proper.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/
-----------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
STULL, STULL & BRODY
6 East 45th Street
New York, New York 10017
(212) 687-7230
WEISS & YOURMAN
551 Fifth Avenue, Suite 1600
New York, New York 10176
(212) 682-3025
7
