-----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, K6+TRLvV9VGuri3h1J1H52LKGdixPrZkPTBalkUT3BKaSnkOdcUifsuky3+cFmtH fqAq43Pem6mKuyzrPLrXDg== 0000950130-99-000932.txt : 19990223 0000950130-99-000932.hdr.sgml : 19990223 ACCESSION NUMBER: 0000950130-99-000932 CONFORMED SUBMISSION TYPE: SC 13E3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990222 GROUP MEMBERS: DELTA AIR LINES INC /DE/ GROUP MEMBERS: DELTA AIRLINES HOLDINGS, INC. GROUP MEMBERS: DELTA SUB, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ASA HOLDINGS INC CENTRAL INDEX KEY: 0001023944 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512] IRS NUMBER: 582258221 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3 SEC ACT: SEC FILE NUMBER: 005-50903 FILM NUMBER: 99546867 BUSINESS ADDRESS: STREET 1: 100 HARTSFIELD CENTRE PARKWAY SUITE 800 CITY: ATLANTA STATE: GA ZIP: 30354 BUSINESS PHONE: 4047661400 MAIL ADDRESS: STREET 1: 100 HARTSFIELD CENTRE PARKWAY SUITE 800 CITY: ATLANTA STATE: GA ZIP: 30354 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 13E3 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 13E3 1 SCHEDULE 13E-3 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13E-3 Rule 13E-3 Transaction Statement (Pursuant to Section 13(e) of the Securities Exchange Act of 1934) ASA HOLDINGS, INC. (Name of Issuer) DELTA AIR LINES, INC. DELTA AIR LINES HOLDINGS, INC. DELTA SUB, INC. (Name of Person(s) Filing Statement) -------------------- Common Stock, $0.10 Par Value (Title of Class of Securities) -------------------- 04338Q 10 7 (CUSIP Number of Class of Securities) -------------------- Robert S. Harkey, Esquire Senior Vice President - General Counsel Delta Air Lines, Inc. Hartsfield Atlanta International Airport Atlanta, GA 30320 (404) 715-2387 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Person(s) Filing Statement) -------------------- With Copies to: Joseph Rinaldi Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 (212) 450-4000 This statement is filed in connection with (check the appropriate box): a. [_] The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. b. [_] The filing of a registration statement under the Securities Act of 1933. c. [X] A tender offer. d. [_] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: [_] CALCULATION OF FILING FEE ================================================================================ Transaction Valuation* Amount of Filing Fee** ================================================================================ $720,965,818 $144,193 ================================================================================ * Calculated by multiplying $34.00, the per share tender offer price, by 20,528,177, which represents (i) the sum of the number of shares of common stock outstanding on February 19, 1999 (excluding shares of common stock already owned by Delta Air Lines, Inc. and its affiliates) plus (ii) the 676,700 shares of common stock subject to options which were vested and exercisable as of February 19, 1999. ** Calculated as 1/50 of 1% of the transaction value. [X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. Amount previously paid: $144,193 Filing party: Delta Air Lines, Inc. Form or registration no.: Schedule 14D-1 Date filed: February 22,1999 ================================================================================ INTRODUCTION This Rule 13e-3 Transaction Statement on Schedule 13E-3 (the "Schedule 13E-3") is being filed by (i) Delta Air Lines, Inc., a Delaware corporation ("Delta"), (ii) Delta Sub, Inc., a Georgia corporation ("Delta Sub") and an indirect wholly-owned subsidiary of Delta and (iii) Delta Air Lines Holdings, Inc., a Delaware corporation ("Delta Holdings") and a direct wholly-owned subsidiary of Delta, pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended, and Rule 13e-3 thereunder in connection with the tender offer by Delta Sub for all of the issued and outstanding shares (the "Shares") of common stock, $0.10 par value per share, of ASA Holdings, Inc. ("ASA") upon the terms and subject to the conditions set forth in the Offer to Purchase dated February 22, 1999 (the "Offer to Purchase") and the related Letter of Transmittal (which together constitute the "Offer"), copies of which are filed as Exhibits (d)(1) and (d)(2) hereto, respectively. The following Cross Reference Sheet, prepared pursuant to General Instruction F to Schedule 13E-3, shows the location in the Tender Offer Statement on Schedule 14D-1 filed by Delta, Delta Sub and Delta Holdings (the "Schedule 14D-1") with the Securities and Exchange Commission on the date hereof of the information required to be included in this Schedule 13E-3. The information set forth in the Schedule 14D-1, including all exhibits thereto, is hereby expressly incorporated herein by reference as set forth in the Cross Reference Sheet and the responses in this Schedule 13E-3, and such responses are qualified in their entirety by reference to the information contained in the Offer to Purchase and the schedules and annexes thereto. The information contained in this Schedule 13E-3 concerning ASA, including, without limitation, the deliberations of ASA's Board of Directors in connection with the transaction, the opinion of ASA's financial advisor and ASA's capital structure and historical financial statements and projections, was supplied by ASA. None of Delta, Delta Sub or Delta Holdings takes responsibility for the accuracy of such information. 2 CROSS REFERENCE SHEET WHERE LOCATED IN ITEM IN SCHEDULE 13E-3 SCHEDULE 14D-1 - ---------------------- -------------- Item 1(a) .................................................. Item 1(a) Item 1(b) .................................................. Item 1(b) Item 1(c) .................................................. Item 1(c) Item 1(d) .................................................. * Item 1(e) .................................................. * Item 1(f) .................................................. * Item 2(a) .................................................. Item 2(a) Item 2(b) .................................................. Item 2(b) Item 2(c) .................................................. Item 2(c) Item 2(d) .................................................. Item 2(d) Item 2(e) .................................................. Item 2(e) Item 2(f) .................................................. Item 2(f) Item 2(g) .................................................. Item 2(g) Item 3(a)(1) ............................................... Item 3(a) Item 3(a)(2) ............................................... Item 3(b) Item 3(b) .................................................. * Item 4 ..................................................... * Item 5 ..................................................... Item 5 Item 6(a) .................................................. Item 4(a) Item 6(b) .................................................. * Item 6(c) .................................................. Item 4(b) Item 6(d) .................................................. * Item 7(a) .................................................. Item 5 Item 7(b) .................................................. * Item 7(c) .................................................. * Item 7(d) .................................................. * Item 8 ..................................................... * Item 9 ..................................................... * Item 10 .................................................... Item 6 Item 11 .................................................... Item 7 Item 12 .................................................... * Item 13 .................................................... * Item 14 .................................................... * Item 15(a) ................................................. * Item 15(b) ................................................. Item 8 Item 16 .................................................... Item 10(f) Item 17 .................................................... Item 11 - ---------------- * The Item is located in the Schedule 13E-3 only. 3 Item 1. Issuer and Class of Security Subject to the Transaction (a)-(c) The response to Item 1(a)-(c) of the Schedule 14D-1 is incorporated herein by reference. (d) The information set forth in the Offer to Purchase under "Special Factors--The Merger Agreement" and "The Tender Offer--Price Range of Shares; Dividends" is incorporated herein by reference. (e) Not applicable. (f) The information set forth in the Offer to Purchase under "The Tender Offer -- Certain Information Concerning ASA--Repurchases of Shares by ASA" is incorporated herein by reference. Item 2. Identity and Background (a)-(g) This Statement is filed by Delta, Delta Sub and Delta Holdings. The response to Item 2 of the Schedule 14D-1 is incorporated herein by reference. Item 3. Past Contacts, Transactions or Negotiations (a)(1) and (a)(2) The response to Item 3 of the Schedule 14D-1 is incorporated herein by reference. (b) Not applicable. Item 4. Terms of the Transaction (a) The information set forth in the Offer to Purchase on the cover page thereof and under "Introduction", "Special Factors--Background of the Offer", "Special Factors--The Merger Agreement", "The Tender Offer--Terms of the Offer", "The Tender Offer--Acceptance for Payment and Payment for Shares", "The Tender Offer--Procedures for Accepting the Offer and Tendering Shares", "The Tender Offer--Withdrawal Rights", "The Tender Offer--Dividends and Distributions", "The Tender Offer--Certain Conditions of the Offer" and "The Tender Offer--Certain Legal Matters; Regulatory Approvals" is incorporated herein by reference. (b) The information set forth in the Offer to Purchase under "Special Factors--Interests of Certain Persons in the Offer and the Merger" is incorporated herein by reference. Item 5. Plans or Proposals of the Issuer or Affiliate (a)-(g) The response to Item 5 of the Schedule 14D-1 is incorporated herein by reference. Item 6. Source and Amount of Funds or Other Consideration (a) The response to Item 4(a) of the Schedule 14D-1 is incorporated herein by reference. (b) The information set forth in the Offer to Purchase under "The Tender Offer--Fees and Expenses" is incorporated herein by reference. (c) The response to Item 4(b) of the Schedule 14D-1 is incorporated herein by reference. (d) Not applicable. 4 Item 7. Purpose(s), Alternatives, Reasons and Effects (a) The information set forth under "Special Factors--Purpose and Structure of the Offer and the Merger; Reasons of Delta for the Offer and the Merger", "Special Factors--Plans for ASA after the Offer and the Merger" and "Special Factors--Position of Delta, Delta Sub and Delta Holdings Regarding Fairness of the Offer and the Merger" is incorporated herein by reference. (b) The information set forth in the Offer to Purchase under "Special Factors--Background of the Offer", "Special Factors--Recommendation of the ASA Board; Fairness of the Offer and the Merger" and "Special Factors--Purpose and Structure of the Offer and the Merger; Reasons of Delta for the Offer and the Merger" is incorporated herein by reference. (c) The information set forth in the Offer to Purchase under "Introduction", "Special Factors--Background of the Offer", "Special Factors--Recommendation of the ASA Board; Fairness of the Offer and the Merger", "Special Factors--Purpose and Structure of the Offer and the Merger; Reasons of Delta for the Offer and the Merger", "Special Factors--Position of Delta, Delta Sub and Delta Holdings Regarding Fairness of the Offer and the Merger" and "Special Factors--Plans for ASA After the Offer and the Merger" is incorporated herein by reference. (d) The information set forth in the Offer to Purchase under "Introduction", "Special Factors--Background of the Offer", "Special Factors--Recommendation of the ASA Board; Fairness of the Offer and the Merger", "Special Factors--Purpose and Structure of the Offer and the Merger; Reasons of Delta for the Offer and the Merger", "Special Factors--Position of Delta, Delta Sub and Delta Holdings Regarding Fairness of the Offer and the Merger", "Special Factors--Plans for ASA After the Offer and the Merger", "Special Factors--Interests of Certain Persons in the Offer and the Merger", "The Tender Offer--Certain Federal Income Tax Consequences" and "The Tender Offer--Certain Effects of the Offer" is incorporated herein by reference. Item 8. Fairness of the Transaction (a)-(e) The information set forth in the Offer to Purchase under "Introduction", "Special Factors--Background of the Offer ", "Special Factors--Recommendation of the ASA Board; Fairness of the Offer and the Merger", "Special Factors--Position of Delta, Delta Sub and Delta Holdings Regarding Fairness of the Offer and the Merger" and "Special Factors--Purpose and Structure of the Offer and the Merger; Reasons of Delta for the Offer and the Merger" is incorporated herein by reference. (f) Not applicable. Item 9. Reports, Opinions, Appraisals And Certain Negotiations (a)-(c) The information set forth in the Offer to Purchase under "Special Factors--Background of the Offer", "Special Factors--Recommendation of the ASA Board; Fairness of the Offer and the Merger", "Special Factors--Opinion of Financial Advisor to the ASA Board" and "Special Factors--Position of Delta, Delta Sub and Delta Holdings Regarding Fairness of the Offer and the Merger" and Exhibit (b)(1) hereto is incorporated herein by reference. Item 10. Interest in Securities of the Issuer (a)-(b)The response to Item 6 of the Schedule 14D-1 is incorporated herein by reference. 5 Item 11. Contracts, Arrangements or Understandings with Respect to the Issuer's Securities The response to Item 7 of the Schedule 14D-1 is incorporated herein by reference. Item 12. Present Intention and Recommendation of Certain Persons with Regard to the Offer and the Merger (a)-(b) The information set forth in the Offer to Purchase under "Introduction", "Special Factors--Background of the Offer", "Special Factors--Recommendation of the ASA Board; Fairness of the Offer and the Merger" and "Special Factors--Interests of Certain Persons in the Offer and the Merger" is incorporated herein by reference. Item 13. Other Provisions of the Offer and the Merger (a) The information set forth in the Offer to Purchase under "Special Factors--Rights of Shareholders in the Offer and the Merger", "Special Factors--The Merger Agreement" and in Exhibits (c)(2) and (e) to this Schedule 13E-3 is incorporated herein by reference. (b) Not applicable. (c) Not applicable. Item 14. Financial Information (a) The information set forth in the Offer to Purchase under "The Tender Offer--Certain Information Concerning ASA" and "The Tender Offer--Price Range of Shares; Dividends" is incorporated herein by reference. (b) Not applicable. Item 15. Persons and Assets Employed, Retained or Utilized (a) The information set forth in the Offer to Purchase under "Special Factors--Background of the Offer", "Special Factors--Recommendation of the ASA Board; Fairness of the Offer and the Merger", "Special Factors--Plans for ASA After the Offer and the Merger" and "The Tender Offer--Certain Effects of the Offer" is incorporated herein by reference. (b) The response to Item 8 of the Schedule 14D-1 is incorporated herein by reference. Item 16. Additional Information The response to Item 10(f) of the Schedule 14D-1 is incorporated herein by reference. Item 17. Material to Be Filed as Exhibits (a)(1) Credit Agreement dated as of May 2, 1997 among Delta, Certain Banks and NationsBank, N.A. (South), as agent bank. (Incorporated herein by reference to Exhibit 4.7 of Delta's Annual Report on Form 10-K for the year ended June 30, 1997). (b)(1) Opinion of Morgan Stanley & Co. Incorporated dated February 15, 1999. (b)(2) Presentation of Morgan Stanley & Co. Incorporated dated February 15, 1999. 6 (c)(1) Stock Purchase Agreement dated May 28, 1986, between Delta and Atlantic Southeast Airlines, Inc. (Incorporated herein by reference to Exhibit 1 of Delta's Schedule 13D filed on June 6, 1986). (c)(2) Stock Agreement among Delta, Atlantic Southeast Airlines, Inc. and ASA dated as of March 17, 1997.* (c)(3) Agreement and Plan of Merger, dated as of February 15, 1999, among ASA, Delta and Delta Sub. (Incorporated herein by reference to Exhibit 99.3 of Amendment No. 3 to Delta's Schedule 13D filed on February 15, 1999.) (c)(4) Shareholders Agreement dated as of February 15, 1999, among Delta and certain shareholders of ASA. (Incorporated herein by reference to Exhibit 99.4 of Amendment No. 3 to Delta's Schedule 13D filed on February 15, 1999.) (d)(1) Offer to Purchase dated February 22, 1999.* (d)(2) Letter of Transmittal sent to holders of Shares.* (d)(3) Notice of Guaranteed Delivery.* (d)(4) Letter from Goldman, Sachs & Co. to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (d)(5) Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (d)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.* (d)(7) Summary Advertisement as published in The Wall Street Journal on February 22, 1999.* (d)(8) Text of Press Release issued by Delta on February 16, 1999.* (e) Article 13 of the Georgia Business Corporation Code relating to dissenting shareholders. (f) Not applicable. - ----------------------- * Incorporated by reference to the Statement on Schedule 14D-1 filed by Delta, Delta Holdings and Delta Sub on February 22, 1999. 7 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. February 22, 1999 DELTA AIR LINES, INC. By: /s/ Maurice W. Worth ----------------------------------------------- Name: Maurice W. Worth Title: Chief Operating Officer DELTA AIR LINES HOLDINGS, INC. By: /s/ Leslie P. Klemperer ----------------------------------------------- Name: Leslie P. Klemperer Title: Vice President and Secretary DELTA SUB, INC. By: /s/ Dean C. Arvidson ----------------------------------------------- Name: Dean C. Arvidson Title: Secretary EXHIBIT INDEX Exhibit No. Description - ----------- ----------- (b)(1) Opinion of Morgan Stanley & Co. Incorporated dated February 15, 1999. (b)(2) Presentation of Morgan Stanley & Co. Incorporated dated February 15, 1999. (e) Article 13 of the Georgia Business Corporation Code relating to dissenting shareholders. EX-99.(B)(1) 2 OPINION OF MORGAN STANLEY & CO. Exhibit (b)(1) February 15, 1999 Board of Directors ASA Holding, Inc. 100 Hartsfield Centre Parkway Suite 800 Atlanta, GA 30354-1356 Members of the Board We understand that ASA Holdings, Inc. ("ASA" or the "Company"), Delta Air Lines, Inc. ("Delta") and Delta Sub, Inc., a wholly owned subsidiary of Delta ("Acquisition Sub"), propose to enter into an Agreement and Plan of Merger dated as of February 15, 1999 (the "Merger Agreement"), which provides, among other things, for (i) the commencement by Acquisition Sub of a tender offer (the "Tender Offer") for all outstanding shares of common stock, par value $0.10 per share, of ASA (the "Common Stock") for $34.00 per share net to the seller in cash, and (ii) the subsequent merger (the "Merger") of Acquisition Sub with and into ASA. Pursuant to the Merger, ASA will become a wholly owned subsidiary of Delta and each outstanding share of Common Stock of ASA, other than shares held in treasury or held by Delta or any subsidiary of Delta or as to which dissenters' rights have been perfected, will be converted into the right to receive $34.00 per share in cash. The terms and conditions of the Tender Offer and the Merger are more fully set forth in the Merger Agreement. You have asked for our opinion as to whether the consideration to be received by the holders of shares of Common Stock pursuant to the Merger Agreement is fair from a financial point of view to such holders (other than Delta and its affiliates). For purposes of the opinion set forth herein, we have: (i) reviewed certain publicly available financial statements and other information of the Company; (ii) reviewed certain internal financial statements and other financial and operating data concerning the Company prepared by the management of the Company; (iii) analyzed certain financial projections prepared by the management of the Company; (iv) discussed the past and current operations and financial condition and the prospects of the Company, including the Company's expected future relationship with Delta, with senior executives of the Company; (v) reviewed the reported prices and trading activity for the Common Stock; (vi) (vii) compared the financial performance of the Company and the prices and trading activity of the Common Stock with that of certain other comparable publicly-traded companies and their securities; (viii)reviewed the financial terms, to the extent publicly available, of certain comparable acquisition transactions; (ix) participated in discussions and negotiations among representatives of the Company and Delta and their financial and legal advisors; (x) reviewed the Merger Agreement and certain related documents; (xi) performed such other analyses and considered such other factors as we have deemed appropriate. We have assumed and relied upon without independent verification the accuracy and completeness of the information reviewed by us for the purposes of this opinion. With respect to the financial projections, we have assumed that they have been reasonably prepared on bases reflecting the best currently available estimates and judgments of the future financial performance of the Company. We have assumed that the Tender Offer and the Merger will be consummated on the terms set forth in the Merger Agreement. We have not made any independent valuation or appraisal of the assets or liabilities of the Company, nor have we been furnished with any such appraisals. Our opinion is necessarily based on economic, market and other conditions as in effect on, and the information made available to us as of, the date hereof. In arriving at our opinion, we were not authorized to solicit, and did not solicit, interest from any party, nor did we have discussions with any party other than Delta with respect to the acquisition of the Company or any of its assets. We have acted as financial advisor to the Board of Directors of the Company in connection with this transaction and will receive a fee for our services. In addition, Morgan Stanley provides no advice or recommendation as to whether or not holders of shares of Common Stock should participate in the Tender Offer. In the past, Morgan Stanley has provided financial advisory and financing services for Delta and has received fees for the rendering of these services. Based on the foregoing we are of the opinion on the date hereof that the consideration to be received by the holders of shares of Common Stock pursuant to the Merger Agreement is fair from a financial point of view to such holders (other than Delta and its affiliates). Very truly yours, MORGAN STANLEY & CO. INCORPORATED By: /s/ Mark D. Eichorn -------------------------- Mark D. Eichorn Principal EX-99.(B)(2) 3 PRESENTATION OF MORGAN STANLEY & CO. Exhibit (b)(2) [GRAPHIC] PROJECT TURBO - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Discussion Materials February 15, 1999 MORGAN STANLEY DEAN WITTER Preliminary Draft PROJECT TURBO - -------------------------------------------------------------------------------- The following material is being provided to the Board of Directors of ASA Holdings, Inc. (the "Company") in connection with a presentation made by Morgan Stanley & Co. Incorporated at a meeting held to evaluate the acquisition proposal made by Delta Airlines, Inc. and should be reviewed and considered as a part of such presentation. The following material has been prepared solely for the use by the Board of Directors of the Company in connection with its evaluation of the foregoing acquisition proposal and may not be relied upon by any other persons for any purpose. PROJECT TURBO Preliminary Draft - -------------------------------------------------------------------------------- Table of Contents SECTION I TRANSACTION OVERVIEW SECTION II PRELIMINARY VALUATION ANALYSIS SECTION III OVERVIEW OF A-COMPANY STRATEGIC ALTERNATIVES - -------------------------------------------------------------------------------- TRANSACTION OVERVIEW - -------------------------------------------------------------------------------- MORGAN STANLEY DEAN WITTER PROJECT TURBO Preliminary Draft - -------------------------------------------------------------------------------- Transaction Overview
Description . Purchase of 72.7% of A-Company common stock by D-Company in a Cash Tender Offer . Long Form Merger of D-Company and A-Company Proposed Price . $34 net per A-Company share in cash Closing Price/(1)/ Offer ------------------ -------- Price per Share $31.94 $34.00 Premium to Current Market Price -- 6.5% ----------- Estimated Proforma Market Price/(2)/ $22-$16 | $22-$16 | Premium to Proforma Market Price/(2)/ 45%-100% | 55%-113% | ----------- Aggregate Value/(3)/ $804MM $846MM Equity Value/(4)/ 917MM 977MM Agg. Value/1998 EBITDA 6.1x 6.6x Agg. Value/Revised 1999 EBITDA/(6)/ 9.5x 10.2x IBES ---- Price/1999E EPS/(5)/ 12.0x 12.8x Price/2000E EPS/(5)/ 10.5x 11.1x Revised Projections ------------------- ---------- Price/1999 EPS/(6)/ 24.6x | 26.2x | Price/2000 EPS/(6)/ 20.6x | 21.9x | ---------- Ownership: . D-Company will own 100% of A-Company Conditions to Closing: . Completion of tender offer for A-Company shares . Hart-Scott-Rodino and other approvals Tax Treatment: . Taxable event to A-Company shareholders Accounting Treatment: . Purchase Accounting Expected Closing: . May 1999 Break-Up Fee: . $5MM Notes: (1) Closing price as of February 12, 1999. (2) Estimated proforma stock price assuming revised projections. (3) Based on -$113.1MM of net debt. (4) Based on fully diluted shares outstanding. (5) Based on February 1999 estimates from I/B/E/S. (6) Based on revised estimates, giving full effect of adjustments in 1999 and 2000.
MORGAN STANLEY DEAN WITTER -1- - -------------------------------------------------------------------------------- PRELIMINARY VALUATION ANALYSIS - -------------------------------------------------------------------------------- MORGAN STANLEY DEAN WITTER Preliminary Draft PROJECT TURBO ================================================================================ Value Impact Of Revised Projections [BAR CHART APPEARS HERE] Price/1999E EPS Price/2000E EPS Valuation Methodology Valuation Methodology --------------------- --------------------- Estimated Value Estimated Value Reduction - 51.2% Reduction - 49.5% ----------------- ----------------- $31.94(/1/) $15.60 $31.94(/1/) $16.12 Current Proforma Current Proforma Value Value Value Value ------- -------- ------- -------- IBES EPS Estimate(/2/) $ 2.66 $ 3.05 Revised EPS Estimate $ 1.30(/3/) $ 1.55(/3/) Current Market P/E Multiple 12.0x 12.0x 10.4x 10.4x ------ ------ ------ ------ $31.94 $15.60 $31.94 $16.12 Notes: (1) Current price as of 2/12/99. (2) IBES estimate as of 2/12/99 (3) EPS proforma for full impact of adjustments -2- Preliminary Draft PROJECT TURBO - -------------------------------------------------------------------------------- Overview of Valuation Methodology Comparable . Universe of comparable companies deemed relevant for purposes Company of this analysis includes five other publicly traded regional Analysis airline companies . Relevant public market statistics include multiples of 1999 and 2000 estimated earnings per share Precedent . Review of valuation multiples and premiums paid in precedent Transactions airline industry transactions . Review of premiums paid in selected "going private" transactions over the past five years Discounted . Utilized 5 years of projected cash flows (1999-2003) based on Cash Flow revised estimates following recent negotiations with D-Company Analysis . Discounts rates: 11.0% to 12.0% based on analysis of weighted average cost of capital of A-Company . Terminal value methodology: perpetual growth of unlevered free cash flow in terminal year at annual rates ranging from 3.0% to 5.0% -3- MORGAN STANLEY DEAN WITTER Preliminary Draft PROJECT TURBO ================================================================================ Review of Revised Projected Financial Performance [THE FOLLOWING DATA WAS REPRESENTED BY A BAR GRAPH] Earnings per Share Operating Income ($MM) % ---------------------- Margin ($MM) Revised IBES(/3/) --------------------------- ------- --------- 1999E-03E CAGR (2.8%) 1998 23.5% $95.9 $2.22 $2.22 1999E(/1/) 16.6% $73.6 $1.85 $2.66 2000E(/2/) 12.5% $61.0 $1.55 $3.05 2001E 11.9% $63.7 $1.66 $3.54 2002E 11.1% $61.9 $1.70 $4.10 2003E 11.4% $65.6 $1.86 $4.76 Note: (1) Reflects half year of adjustments (2) Assumes full impact of adjustments (3) IBES earnings estimates as of February 12, 1999 for 1999 and 2000, IBES five-year growth rate thereafter. MORGAN STANLEY DEAN WITTER -4- Preliminary Draft PROJECT TURBO ================================================================================ Preliminary Valuation Summary Based on Revised Projections [THE FOLLOWING DATA WAS REPRESENTED BY A BAR CHART]
Comparable Company Precedent Transaction Discounted Cash Flow Current Market Proposed Analysis(/1/) Analysis(/2/) Analysis(/3/) Price Offer Price ------------------ --------------------- -------------------- -------------- ----------- $16 $22 $21 $32 $20 $25 ($31.94) ($34.00)
- ------------------------------------------------------------- 1999E P/E 9.3x 13.8x 18.5x 23.1x 27.7x 2000E P/E 7.7 11.6 15.5 19.4 23.2 - ------------------------------------------------------------- Note: (1) Assumes EPS proforma for full impact of adjustments. (2) Assumes 30% - 45% control premium. (3) Based on discount rate of 11.0% to 12.0% and perpetual growth rate of 3.0% to 5.0%. MORGAN STANLEY DEAN WITTER -5- Preliminary Draft PROJECT TURBO - -------------------------------------------------------------------------------- Summary Valuation Analysis Based On Revised Projections ($MM, except per share data)
Equity Value(/1/) -------------------------------------- Multiple Range Aggregate Per Share ---------------- --------------- ---------------- Benchmark Amount Low High Low High Low High - ---------------------------------------- -------- ----- ------ ----- ------ ----- ------ I. Comparable Company Trading Analysis - ---------------------------------------- Earnings(/2/) -1999E 37.4 12.0x - 1.65x $449 - $617 $16 - $22 -2000E 44.4 10.5 - 14.5 $466 - $643 $16 - $23 ---------------- Mean: $16 - $22 ---------------- Premium ---------------- II. Precedent Transactions Analysis Low High - --------------------------------------- ----- ------ ---------------- Premium to Proforma Price $16 - $22 30.0% - 45.0% $597 - $923 $21 - $32 ---------------- Perpetual Growth Rate ---------------- III. Discounted Cash Flow Analysis(/3/) Low High - --------------------------------------- ----- ------ ---------------- 3.0% - 5.0% $569 - $720 $20 - $25 ----------------
Notes: (1) Based on fully diluted shares outstanding. (2) Earnings for 1999 and 2000, are proforma for full impact of adjustments. (3) Based on an after-tax weighted average cost of capital of 11.0% - 12.0%. -6- MORGAN STANLEY DEAN WITTER Preliminary Draft PROJECT TURBO ================================================================================ Financial Trading Statistics of Selected Regional Airline Companies [THE FOLLOWING DATA WAS REPRESENTED BY A BAR GRAPH] Price/1999E EPS Price/2000E EPS (P/E) (P/E) --------------- --------------- Comair 16.6x 14.4x Mesa Air 16.4x 11.6x Atlantic Coast 15.3x 12.4x Skywest 14.9x 12.5x Mesaba 12.2x 9.4x A - Company 12.0x 10.4x --------------- --------------- Median (15.3x)(/1/) (12.1x)(/1/) Mean (15.1x)(/1/) (12.4x)(/1/) Note: (1) Mean and Median multiples exclude A-Company. MORGAN STANLEY DEAN WITTER -7- PROJECT TURBO Preliminary Draft - -------------------------------------------------------------------------------- Precedent Transactions Analysis Precedent Airlines Transactions ------------------------------------ Premium to Acquiror Target Unaffected Price ----------------- ---------------- ----------------------- American Airlines Reno Air 51.9% Mesa Air CCAir 24.4% Mean: 38.2% Median: 38.2% Precedent "Going Private" Transactions -------------------------------------- Premiums paid in certain "Going Private" transactions - past five years: /(1)/ Mean: 43.0% Median: 30.0% Note: (1) Source: Securities Data Corporation. PROJECT TURBO Preliminary Draft - -------------------------------------------------------------------------------- Discounted Cash Flow Analysis Based on Revised Projections ($MM, except per share data)
Perpetual Growth Rate (%) 3.0 4.0 5.0 ---------------------------- ---------------------------- ---------------------------- Discount Rate 11.0% 11.5% 12.0% 11.0% 11.5% 12.0% 11.0% 11.5% 12.0% -------- -------- -------- -------- -------- -------- -------- -------- -------- Present Value of Cash Flows - Year 1 $59 $59 $59 $59 $59 $59 $59 $59 $59 Cash Flows - Years 2-5 153 151 149 153 151 149 153 151 149 Terminus 290 268 248 335 306 281 394 357 325 -------- -------- -------- -------- -------- -------- -------- -------- -------- Aggregate Value $502 $478 $456 $547 $516 $490 $607 $567 $533 Cash $186 $186 $186 $186 $186 $186 $186 $186 $186 Preferred Stock 0 0 0 0 0 0 0 0 0 Total Debt (73) (73) (73) (73) (73) (73) (73) (73) (73) -------- -------- -------- -------- -------- -------- -------- -------- -------- Equity Value $616 $591 $569 $660 $630 $603 $720 $680 $646 ======== ======== ======== ======== ======== ======== ======== ======== ======== Price Per Share (1) $22 $21 $20 $23 $22 $21 $25 $24 $23 Implied Proforma 2000 P/E(2) 14.0 x 13.4 x 12.9 x 15.0 x 14.3 x 13.7 x 16.3 x 15.4 x 14.6 x
Notes: (1) Based on fully diluted shares outstanding. (2) Based on revised projections. - -------------------------------------------------------------------------------- OVERVIEW OF A-COMPANY STRATEGIC ALTERNATIVES - -------------------------------------------------------------------------------- MORGAN STANLEY DEAN WITTER
Preliminary Draft PROJECT TURBO - ------------------------------------------------------------------------------------------------------------------------------------ Summary of A-Company Strategic Alternatives -------------------------------------------------------------------------------------------------------------- Status Quo Leveraged Acquisition Recapitalization of Asteroid -------------------------------------------------------------------------------------------------------------- Description . Continue to run business in . Raise additional debt; use . Acquisition of Asteroid line with revised projections proceeds plus excess cash by A-Company to repurchase shares or pay extraordinary dividend -------------------------------------------------------------------------------------------------------------- Selected . Preserves limited flexibility to consider . May increase earnings growth . Combined entity would Advantages future strategic alternatives rate dominate Atlanta Airport's Concourse C . Delivers liquidity to shareholders . Enhanced regional jet route flexibility . Rumored to be for sale -------------------------------------------------------------------------------------------------------------- Selected . Does not address changing business terms . Decreases financial flexibility . Financially weak/highly Issues with D-Company levered partner . Increases operating risk -Currently unprofitable . Significant and near term loss of with debt amortization shareholder value as a result of . Does not address changing in the next 24 months revised business terms business terms with D-Company . A-Company equipment and . Unlikely that lost earnings could be . Only marginally offsets cost structure is not replaced through any near term significant and near term loss compatible with low fare standalone initiatives of shareholder value as a operations result of revised business terms . Replacing D-Company connecting traffic with low fare airline connecting traffic -Fundamentally different customer bases/rate structures . D-Company replacing connecting partner would create significantly more competition on existing routes . Labor integration issues . Value of Concourse C as majors have not traditionally been successful as #2 players at hubs -Example: Delta/DFW . Significantly dilutive to A-Company revised EPS assuming 0%-30% premium to market price -------------------------------------------------------------------------------------------------------------- Completion High High High Risk -------------------------------------------------------------------------------------------------------------- Ability to Create Near Term Low Low Low Value of $34.00 --------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------- Acquisition of/Merger Acquisition by Acquisition by with Star Comet D-Company -------------------------------------------------------------------------------------------------------------- Description . Acquisition of/merger with Star . Acquisition of A-Company . Acquisition of A-Company by Comet by D-Company for cash -------------------------------------------------------------------------------------------------------------- Selected . Modestly improved position vis a vis . Potential for improved . Delivers value to Advantages D-Company leverage for both carriers shareholders in form of vis a vis D-Company cash premium to current . Enhanced regional jet position - Two dominant D-Company market price connection carriers . Strong management teams - Prorate issues . Represents substantial - Route scheduling issues premium to expected . Increase exposure to other codes/ proforma stock price major airlines . Potential cost benefits based on revised - Diversifies away from D-Company . Dominant regional jet position projections - Enhances growth opportunities - Leverage Comet's regional jet experience . Avoids significant and . Strong management teams at both near term loss of companies shareholder value as a result of revised business terms . Provides enhanced stability for A- Company employees -------------------------------------------------------------------------------------------------------------- Selected . Given Star's smaller size and lower . Potentially negative reaction . Eliminates limited Issues exposure to D-Company, benefits likely by D-Company flexibility to consider to be less than with Comet future strategic . Likely expansion of D-Company alternatives . Potentially negative reaction by into Comet's hub markets D-Company . Labor integration/cost issues . Labor integration/cost issues . Significantly dilutive to A-Company . Increases concentration of code- revised EPS assuming 0%-30% premium sharing business with D-Company and to market price does not address changing business terms . Significantly dilutive transaction to Comet EPS at or above current A-Company stock price (based on revised estimates) -------------------------------------------------------------------------------------------------------------- Completion High High Low Risk -------------------------------------------------------------------------------------------------------------- Ability to Create Near Term Low Low High Value of $34.00 -------------------------------------------------------------------------------------------------------------- MORGAN STANLEY DEAN WITTER -10-
EX-99.(E) 4 ARTICLE 13 OF THE GEORGIA BUSINESS CODE Exhibit (e) ARTICLE 13 OF THE GEORGIA BUSINESS CORPORATION CODE RELATING TO DISSENTING SHAREHOLDERS TITLE 14, CHAPTER 2, ARTICLE 13 DISSENTERS' RIGHTS PART 1 RIGHT TO DISSENT AND OBTAIN PAYMENT FOR SHARES 14-2-1301. DEFINITIONS. As used in this article, the term: (1) "Beneficial shareholder" means the person who is a beneficial owner of shares held in a voting trust or by a nominee as the record shareholder. (2) "Corporate action" means the transaction or other action by the corporation that creates dissenters' rights under Code Section 14-2-1302. (3) "Corporation" means the issuer of shares held by a dissenter before the corporate action, or the surviving or acquiring corporation by merger or share exchange of that issuer. (4) "Dissenter" means a shareholder who is entitled to dissent from corporate action under Code Section 14-2-1302 and who exercises that right when and in the manner required by Code Sections 14-2-1320 through 14- 2-1327. (5) "Fair value," with respect to a dissenter's shares, means the value of the shares immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action. (6) "Interest" means interest from the effective date of the corporate action until the date of payment, at a rate that is fair and equitable under all the circumstances. (7) "Record shareholder" means the person in whose name shares are registered in the records of a corporation or the beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with a corporation. (8) "Shareholder" means the record shareholder or the beneficial shareholder. 14-2-1302. RIGHT TO DISSENT. (a) A record shareholder of the corporation is entitled to dissent from, and obtain payment of the fair value of his shares in the event of, any of the following corporate actions: (1) Consummation of a plan of merger to which the corporation is a party: (A) If approval of the shareholders of the corporation is required for the merger by Code Section 14-2- 1103 or the articles of incorporation and the shareholder is entitled to vote on the merger; or (B) If the corporation is a subsidiary that is merged with its parent under Code Section 14-2-1104; (2) Consummation of a plan of share exchange to which the corporation is a party as the corporation whose shares will be acquired, if the shareholder is entitled to vote on the plan; (3) Consummation of a sale or exchange of all or substantially all of the property of the corporation if a shareholder vote is required on the sale or exchange pursuant to Code Section 14-2-1202, but not including a sale pursuant to court order or a sale for cash pursuant to a plan by which all or substantially all of the net proceeds of the sale will be distributed to the shareholders within one year after the date of sale; (4) An amendment of the articles of incorporation that materially and adversely affects rights in respect of a dissenter's shares because it: (A) Alters or abolishes a preferential right of the shares; (B) Creates, alters or abolishes a right in respect of redemption, including a provision respecting a sinking fund for the redemption or repurchase, of the shares; (C) Alters or abolishes a preemptive right of the holder of the shares to acquire shares or other securities; (D) Excludes or limits the right of the shares to vote on any matter, or to cumulate votes, other than a limitation by dilution through issuance of shares or other securities with similar voting rights; (E) Reduces the number of shares owned by the shareholder to a fraction of a share if the fractional share so created is to be acquired for cash under Code Section 14-2-604; or (F) Cancels, redeems, or repurchases all or part of the shares of the class; or (5) Any corporate action taken pursuant to a shareholder vote to the extent that Article 9 of this chapter, the articles of incorporation, bylaws, or a resolution of the board of directors provides that voting or nonvoting shareholders are entitled to dissent and obtain payment for their shares. (b) A shareholder entitled to dissent and obtain payment for his shares under this article may not challenge the corporate action creating his entitlement unless the corporate action fails to comply with procedural requirements of this chapter or the articles of incorporation or bylaws of the corporation or the vote required to obtain approval of the corporate action was obtained by fraudulent and deceptive means, regardless of whether the shareholder has exercised dissenter's rights. (c) Notwithstanding any other provision of this article, there shall be no right of dissent in favor of the holder of shares of any class or series which, at the record date fixed to determine the shareholders entitled to receive notice of and to vote at a meeting at which a plan of merger or share exchange or a sale or exchange of property or an amendment of the articles of incorporation is to be acted on, were either listed on a national securities exchange or held of record by more than 2,000 shareholders, unless: (1) In the case of a plan of merger or share exchange, the holders of shares of the class or series are required under the plan of merger or share exchange to accept for their shares anything except shares of the surviving corporation or another publicly held corporation which at the effective date of the merger or share exchange are 2 either listed on a national securities exchange or held of record by more than 2,000 shareholders, except for scrip or cash payments in lieu of fractional shares; or (2) The articles of incorporation or a resolution of the board of directors approving the transaction provides otherwise. 14-2-1303. DISSENT BY NOMINEES AND BENEFICIAL OWNERS. A record shareholder may assert dissenter' rights as to fewer than all the shares registered in his name only if he dissents with respect to all shares beneficially owned by any one beneficial shareholder and notifies the corporation in writing of the name and address of each person on whose behalf he asserts dissenters' rights. The rights of a partial dissenter under this Code section are determined as if the shares as to which he dissents and his other shares were registered in the names of different shareholders. PART 2 PROCEDURE FOR EXERCISE OF DISSENTERS' RIGHTS 14-2-1320. NOTICE OF DISSENTER' RIGHTS. (a) If proposed corporate action creating dissenters' rights under Code Section 14-2-1302 is submitted to a vote at a shareholders' meeting, the meeting notice must state that shareholders are or may be entitled to assert dissenters' rights under this article and be accompanied by a copy of this article (b) If corporate action creating dissenters' rights under Code Section 14-2-1302 is taken without a vote of shareholders, the corporation shall notify in writing all shareholders entitled to assert dissenters' rights that the action was taken and send them the dissenters' notice described in Code Section 14-2-1322 no later than ten days after the corporate action was taken. 14-2-1321. NOTICE OF INTENT TO DEMAND PAYMENT. (a) If proposed corporate action creating dissenters' rights under Code Section 14-2-1302 is submitted to a vote at a shareholders' meeting, a record shareholder who wishes to assert dissenters' rights: (1) Must deliver to the corporation before the vote is taken written notice of his intent to demand payment for his shares if the proposed action is effectuated; and (2) Must not vote his shares in favor of the proposed action. (b) A record shareholder who does not satisfy the requirements of subsection (a) of this Code section is not entitled to payment for his shares under this article. 14-2-1322. DISSENTERS' NOTICE. (a) If proposed corporate action creating dissenters' rights under Code Section 14-2-1302 is authorized at a shareholders' meeting, the corporation shall deliver a written dissenters' notice to all shareholders who satisfied the requirements of Code Section 14-2-1321. (b) The dissenters' notice must be sent no later than ten days after the corporate action was taken and must: 3 (1) State where the payment demand must be sent and where and when certificates for certificated shares must be deposited; (2) Inform holders of uncertificated shares to what extent transfer of the shares will be restricted after the payment demand is received; (3) Set a date by which the corporation must receive the payment demand, which date may not be fewer than 30 nor more than 60 days after the date the notice required in subsection (a) of this Code section is delivered; and (4) Be accompanied by a copy of this Article. 14-2-1323. DUTY TO DEMAND PAYMENT. (a) A record shareholder sent a dissenters' notice described in Code Section 14-2-1322 must demand payment and deposit his certificates in accordance with the terms of the notice. (b) A record shareholder who demands payment and deposits his shares under subsection (a) of this Code section retains all other rights of a shareholder until these rights are canceled or modified by the taking of the proposed corporate action. (c) A record shareholder who does not demand payment or deposit his share certificates where required, each by the date set in the dissenters' notice, is not entitled to payment for his shares under this article. 14-2-1324. SHARE RESTRICTIONS. (a) The corporation may restrict the transfer of uncertificated shares from the date the demand for their payment is received until the proposed corporate action is taken or the restrictions released under Code Section 14-2-1326. (b) The person for whom dissenters' rights are asserted as to uncertificated shares retains all other rights of a shareholder until these rights are canceled or modified by the taking of the proposed corporate action. 14-2-1325. OFFER OF PAYMENT. (a) Except as provided in Code Section 14-2-1327, within ten days of the later of the date the proposed corporate action is taken or receipt of a payment demand, the corporation shall by notice to each dissenter who complied with Code Section 14-2-1323 offer to pay the amount the corporation estimates to be the fair value of his or her shares, plus accrued interest. (b) The offer of payment must be accompanied by: (1) The corporation's balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment, an income statement for that year, a statement of changes in shareholders' equity for that year, and the latest available interim financial statements, if any; (2) A statement of the corporation's estimate of the fair value of the shares; (3) An explanation of how the interest was calculated; (4) A statement of the dissenter's right to demand payment under Code Section 14-2-1327; and (5) A copy of this article. 4 (c) If the shareholder accepts the corporation's offer by written notice to the corporation within 30 days after the corporation's offer or is deemed to have accepted such offer by failure to respond within such 30 days, payment for his or her shares shall be made within 60 days after the making of the offer or the taking of the proposed corporate action, whichever is later. 14-2-1326. FAILURE TO TAKE ACTION. (a) If the corporation does not take the proposed action within 60 days after the date set for demanding payment and depositing share certificates, the corporation shall return the deposited certificates and release the transfer restrictions imposed on uncertificated shares. (b) If, after returning deposited certificates and releasing transfer restrictions, the corporation takes the proposed acting, it must send a new dissenters' notice under Code Section 14-2-1322 and repeat the payment demand procedure. 14-2-1327. PROCEDURE IF SHAREHOLDER DISSATISFIED WITH PAYMENT OR OFFER. (a) A dissenter may notify the corporation in writing of his own estimate of the fair value of his shares and amount of interest due, and demand payment of his estimate of the fair value of his shares and interest due, if: (1) The dissenter believes that the amount offered under Code Section 14-2-1325 is less than the fair value of his shares or that the interest due is incorrectly calculated; or (2) The corporation, having failed to take the proposed action, does not return the deposited certificates or release the transfer restrictions imposed on uncertificated shares within 60 days after the date set for demanding payment. (b) A dissenter waives his or her right to demand payment under this Code section and is deemed to have accepted the corporation's offer unless he or she notifies the corporation of his or her demand in writing under subsection (a) of this Code section within 30 days after the corporation offered payment for his or her shares, as provided in Code Section 14-2-1325. (c) If the corporation does not offer payment within the time set forth in subsection (a) of Code Section 14-2-1325: (1) The shareholder may demand the information required under subsection (b) of Code Section 14-2-1325, and the corporation shall provide the information to the shareholder within ten days after receipt of a written demand for the information; and (2) The shareholder may at any time, subject to the limitations period of Code Section 14-2-1332, notify the corporation of his own estimate of the fair value of his shares and the amount of interest due and demand payment of his estimate of the fair value of his shares and interest due. PART 3 JUDICIAL APPRAISAL OF SHARES 14-2-1330. COURT ACTION. (a) If a demand for payment under Code Section 14-2-1327 remains unsettled, the corporation shall commence a proceeding within 60 days after receiving the payment demand and petition the court to determine the fair value of 5 the shares and accrued interest. If the corporation does not commence the proceeding within the 60 day period, it shall pay each dissenter whose demand remains unsettled the amount demanded. (b) The corporation shall commence the proceeding, which shall be a nonjury equitable valuation proceeding, in the superior court of the county where a corporation's registered office is located. If the surviving corporation is a foreign corporation without a registered office in this state, it shall commence the proceeding in the county in this state where the registered office of the domestic corporation merged with or whose shares were acquired by the foreign corporation was located. (c) The corporation shall make all dissenters, whether or not residents of this state, whose demands remain unsettled parties to the proceeding, which shall have the effect of an action quasi in rem against their shares. The corporation shall serve a copy of the petition in the proceeding upon each dissenting shareholder who is a resident of this state in the manner provided by law for the service of a summons and complaint, and upon each nonresident dissenting shareholder either by registered or certified mail or by publication, or in any other manner permitted by law. (d) The jurisdiction of the court in which the proceeding is commenced under subsection (b) of this Code section is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend decision on the question of fair value. The appraisers have the powers described in the order appointing them or in any amendment to it. Except as otherwise provided in this chapter, Chapter 11 of Title 9, known as the "Georgia Civil Practice Act," applies to any proceeding with respect to dissenters' rights under this chapter. (e) Each dissenter made a party to the proceeding is entitled to judgment for the amount which the court finds to be the fair value of his shares, plus interest to the date of judgment. 14-2-1331. COURT COSTS AND COUNSEL FEES. (a) The court in an appraisal proceeding commenced under Code Section 14-2-1330 shall determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court, but not including fees and expenses of attorneys and experts for the respective parties. The court shall assess the costs against the corporation, except that the court may assess the costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the court finds the dissenters acted arbitrarily, vexatiously, or not in good faith in demanding payment under Code Section 14-2-1327. (b) The court may also assess the fees and expenses of attorneys and experts for the respective parties, in amounts the court finds equitable: (1) Against the corporation and in favor of any or all dissenters if the court finds the corporation did not substantially comply with the requirements of Code Sections 14-2-1320 through 14-2-1327; or (2) Against either the corporation or a dissenter, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this article. (c) If the court finds that the services of attorneys for any dissenter were of substantial benefit to other dissenters similarly situated, and that the fees for those services should not be assessed against the corporation, the court may award to these attorneys reasonable fees to be paid out of the amounts awarded the dissenters who were benefitted. 14-2-1332. LIMITATION OF ACTIONS. 6 No action by any dissenter to enforce dissenters' rights shall be brought more than three years after the corporate action was taken, regardless of whether notice of the corporate action and of the right to dissent was given by the corporation in compliance with the provisions of Code Section 14-2-1320 and Code Section 14-2-1322. 7 -----END PRIVACY-ENHANCED MESSAGE-----