SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
SCHEDULE 14D-9
Solicitation/Recommendation Statement Pursuant to
Section 14(d)(4) of the Securities Exchange Act of 1934
(Amendment No. 1)
COMAIR HOLDINGS, INC.
(Name of Subject Company)
----------------------------
Comair Holdings, Inc.
(Name of Person Filing Statement)
Common Stock, no par value per share
(Title of Classes of Securities)
199789108
(CUSIP Number of Class of Securities)
------------------------------
Randy D. Rademacher
Senior Vice President Finance and Chief Financial Officer
Comair Holdings, Inc.
P.O. Box 75021, Cincinnati, OH 45275
(606) 767-2550
(Name, Address and Telephone Number of Person authorized to
Receive Notices and Communications on Behalf of
the Person Filing Statement)
-----------------------------
With a copy to:
Peter D. Lyons, Esq. Richard D. Siegel, Esq.
Shearman & Sterling Keating, Muething & Klekamp P.L.L.
599 Lexington Avenue 1800 Provident Tower
New York, New York 10022 One East Fourth Street
(212) 848-4000 Cincinnati, OH 45202
(513) 579-6400
- --------------------------------------------------------------------------------
<PAGE>
This Amendment No. 1 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission on October 22, 1999 (the "Schedule 14D-9"),
by Comair Holdings, Inc., a Kentucky corporation ("Comair"), relating to the
offer by Delta Air Lines, Inc., a Delaware corporation, to purchase through its
indirect, wholly owned subsidiary Kentucky Sub, Inc., a Kentucky corporation,
all of the issued and outstanding shares of common stock (the "Shares"), no par
value, of 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 Merger Agreement.
Capitalized terms used but not defined herein have the meaning ascribed
to them in the Schedule 14D-9.
Item 8. ADDITIONAL INFORMATION TO BE FURNISHED
Item 8 is hereby amended and supplemented as follows:
On October 19, 1999, an action styled Schear v. Comair Corporation, et
al., Index No. 99-CI-1213, was commenced by a purported Comair shareholder in
the Boone County Circuit Court, Commonwealth of Kentucky. On October 22, 1999,
an action styled Amend v. Comair Holdings, Inc., et al., Index No. 99-CI-01233,
was commenced by a purported Comair shareholder in the same court. On October
25, 1999, an action styled Barnett v. Comair Holdings, Inc., et al., Index No.
99-CI-01242, was commenced by a purported Comair shareholder in the same court.
On October 28, 1999, plaintiffs in those three actions filed a first amended
consolidated class action complaint in the Boone County Circuit Court, under the
caption Schear v. Comair Corporation, et al., Index No. 99-CI-1213, a copy of
which is attached to this Amendment No. 1 as Exhibit (d)(3) and is incorporated
herein by reference. On October 29, 1999, the Boone County Circuit Court
consolidated the three actions. The amended complaint names as defendants
Comair, the members of the Comair Board and Delta and seeks to proceed on behalf
of a purported class of Comair shareholders other than the defendants. It
alleges that the price for Comair shares agreed to in the Merger Agreement is
inadequate, that the members of the Comair Board breached their fiduciary duties
to Comair shareholders by allegedly failing to thoroughly investigate the value
of Comair before entering into the Merger Agreement, and that Delta purportedly
aided and abetted these alleged breaches of duty, and among other things also
makes other related claims against the Comair Board and Comair's financial
advisor, Morgan Stanley Dean Witter. The amended complaint seeks preliminary and
permanent injunctive relief against the Transaction, compensatory and/or
rescissory damages in an unspecified amount and plaintiffs' costs and attorneys'
fees.
On October 28, 1999, an action styled Deutch v. Mueller, et al., Case
No. A9906534, was commenced by a purported Comair shareholder in the Court of
Common Pleas of Hamilton County, Ohio. A copy of the complaint is attached to
this Amendment No. 1 as Exhibit (d)(4) and is incorporated herein by reference.
The complaint in the Deutch 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.
On October 27, 1999, plaintiff in the Barkley action filed an ex parte
motion for temporary restraining order, seeking a temporary restraining order
enjoining the Offer and the Merger and invalidating certain provisions of the
Merger Agreement. Plaintiff in the Barkley action also sought expedited
recovery. At a hearing before the Jefferson County Circuit Court on October 28,
1999, those applications were presented by the plaintiffs. On October 29, 1999,
the Court issued an opinion and order denying plaintiff's motions. A copy of the
opinion and order is attached to this Amendment No. 1 as Exhibit (d)(5) and is
incorporated herein by reference.
On October 22, 1999, plaintiffs in the Schear action filed a motion for
expedited discovery and preliminary injunctive relief, seeking among other
things a temporary injunction preventing the closing of the Offer and directing
that expedited discovery occur. Argument on plaintiff's motion was presented by
the parties at a hearing before the Boone County Circuit Court on October 29,
1999. At the conclusion of the hearing, the Court denied the motion for a
preliminary injunction and overruled the motion for expedited discovery.
2
<PAGE>
Comair, the Comair Board and Delta believe that the claims asserted
against them in all of the foregoing cases are without merit and intend to
defend these lawsuits vigorously.
Item 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 is supplemented as follows:
(d)(1) Complaint filed on October 20, 1999 in the Supreme Court of
the State of New York, County of Nassau in an action entitled
Larry Byrnes and Joe Bechtold v. Robert M. Castellini, et. al.
(Incorporated herein by reference to the Schedule 14D-1 filed
by Delta, Delta Holdings and Kentucky Sub on October 22, 1999)
(d)(2) Complaint filed on or about October 20, 1999, in Jefferson
Circuit Court Division 13 (Commonwealth of Kentucky) in an
action entitled Russell Barkley v. Comair Holdings, Inc. et.
al. (Case No. 99C106214). (Incorporated herein by reference to
the Schedule 14D-1 filed by Delta, Delta Holdings and Kentucky
Sub on October 22, 1999)
(d)(3) Plaintiff's First Amended Consolidated Class Action Complaint
filed on October 28, 1999 in the Circuit Court of Boone
County, Kentucky in an action entitled Schear v. Comair
Corporation, et. al. (Incorporated herein by reference to
Amendment No. 1 to the Schedule 14D-1 filed by Delta, Delta
Holdings and Kentucky Sub on November 1, 1999)
(d)(4) Class Action Complaint filed on October 28, 1999 in the Court
of Common Pleas of Hamilton County, Ohio in an action entitled
Deutch v. Mueller, et. al. (Incorporated herein by reference
to Amendment No. 1 to the Schedule 14D-1 filed by Delta, Delta
Holdings and Kentucky Sub on November 1, 1999)
(d)(5) Opinion and Order in Barkley v. Comair Holdings, Inc., et al.
(Incorporated herein by reference to Amendment No. 1 to the
Schedule 14D-1 filed by Delta, Delta Holdings and Kentucky Sub
on November 1, 1999)
3
<PAGE>
SIGNATURE
After reasonable 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.
Comair Holdings, Inc.
By: /s/ Randy D. Rademacher
-------------------------------
Name: Randy D. Rademacher
Title: Senior Vice President Finance
and Chief Financial Officer
Dated: November 1, 1999
4
<PAGE>
EXHIBIT INDEX
Exhibit No.
*(d)(1) Complaint filed on October 20, 1999 in the Supreme Court of the State
of New York, County of Nassau in an action entitled Larry Byrnes and
Joe Bechtold v. Robert M. Castellini, et. al.
*(d)(2) Complaint filed on or about October 20, 1999, in Jefferson Circuit
Court Division 13 (Commonwealth of Kentucky) in an action entitled
Russell Barkley v. Comair Holdings, Inc. et. al. (Case No. 99C106214).
**(d)(3) Plaintiff's First Amended Consolidated Class Action Complaint filed on
October 28, 1999 in the Circuit Court of Boone County, Kentucky in an
action entitled Schear v. Comair Corporation, et. al.
**(d)(4) Class Action Complaint filed on October 28, 1999 in the Court of Common
Pleas of Hamilton County, Ohio in an action entitled Deutch v. Mueller,
et. al.
**(d)(5) Opinion and Order in Barkley v. Comair Holdings, Inc., et al.
* Incorporated herein by reference to the Schedule
14D-1 filed by Delta, Delta Holdings and Kentucky Sub on
October 22, 1999.
** Incorporated herein by reference to Amendment No. 1 to the
Schedule 14D-1 filed by Delta, Delta Holdings and Kentucky Sub on
November 1, 1999.
5
