-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Pt889mCuIAMGlPcjWG04yuSNQNc2mJYhBvuywHkXEzCj0bEvFFrEXXqzE6mg1cYG dIF9bZpUwpU+N+nRywNr5A== 0000950103-99-000976.txt : 19991115 0000950103-99-000976.hdr.sgml : 19991115 ACCESSION NUMBER: 0000950103-99-000976 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19991112 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COMAIR HOLDINGS INC CENTRAL INDEX KEY: 0000835344 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512] IRS NUMBER: 311243613 STATE OF INCORPORATION: KY FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: SEC FILE NUMBER: 005-40608 FILM NUMBER: 99747116 BUSINESS ADDRESS: STREET 1: P O BOX 75021 CINCINNATI NORTHERN STREET 2: KENTUCKY INTERNATIONAL AIRPORT CITY: CINCINNATI STATE: OH ZIP: 45275 BUSINESS PHONE: 6067672550 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DELTA AIR LINES INC /DE/ CENTRAL INDEX KEY: 0000027904 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512] IRS NUMBER: 580218548 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: HARTSFIELD ATLANTA INTL AIRPORT STREET 2: 1030 DELTA BLVD CITY: ATLANTA STATE: GA ZIP: 30320-6001 BUSINESS PHONE: 4047152600 MAIL ADDRESS: STREET 1: 1030 DELTA BLVD STREET 2: DEPT 971 CITY: ATLANTA STATE: GA ZIP: 30320-6001 FORMER COMPANY: FORMER CONFORMED NAME: DELTA AIR CORP DATE OF NAME CHANGE: 19660908 SC 14D1/A 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- SCHEDULE 14D-1/A TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. 3) --------------- COMAIR HOLDINGS, INC. (Name of Issuer) DELTA AIR LINES, INC. DELTA AIR LINES HOLDINGS, INC. KENTUCKY SUB, INC. --------------- Common Stock, No Par Value (Title of Class of Securities) --------------- 199789 10 8 (CUSIP Number of Class of Securities) --------------- 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) --------------- With Copies to: Joseph Rinaldi Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 (212) 450-4000 --------------- October 22, 1999 (Date Tender Offer First Published, Sent or Given to Security Holder) ================================================================================ 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 2 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 3 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 4 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 5 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. 6 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 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. EX-99.(A)(8) 2 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. 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. 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 EX-99.(G)(6) 3 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 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 2 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 3 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. 4 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 5 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 6 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 7 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 8 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. 9 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 10 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 11 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; 12 (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 13 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 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 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 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 EX-99.(G)(7) 4 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 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 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 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 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 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 (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 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 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 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 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 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 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 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 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 EX-99.(G)(8) 5 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. - 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. ### -----END PRIVACY-ENHANCED MESSAGE-----