-----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, QEppDv67E1CuEwb+5R2GlUg8oWTG+f4XGwNOCzOq99ezIB3S3Wyau7CHGQ/+FgO8 6wLIn8RFm/sMSyhTO5YfUg== 0000913355-99-000173.txt : 19991125 0000913355-99-000173.hdr.sgml : 19991125 ACCESSION NUMBER: 0000913355-99-000173 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19991124 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AIR EXPRESS INTERNATIONAL CORP /DE/ CENTRAL INDEX KEY: 0000700674 STANDARD INDUSTRIAL CLASSIFICATION: ARRANGEMENT OF TRANSPORTATION OF FREIGHT & CARGO [4731] IRS NUMBER: 362074327 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-07933 FILM NUMBER: 99764187 BUSINESS ADDRESS: STREET 1: 120 TOKENEKE RD PO BOX 1231 CITY: DARIEN STATE: CT ZIP: 06820 BUSINESS PHONE: 2036557900 MAIL ADDRESS: STREET 1: 120 TOKENEKE RD STREET 2: P O BOX 1231 CITY: DARIEN STATE: CT ZIP: 06820 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AIR EXPRESS INTERNATIONAL CORP /DE/ CENTRAL INDEX KEY: 0000700674 STANDARD INDUSTRIAL CLASSIFICATION: ARRANGEMENT OF TRANSPORTATION OF FREIGHT & CARGO [4731] IRS NUMBER: 362074327 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 120 TOKENEKE RD PO BOX 1231 CITY: DARIEN STATE: CT ZIP: 06820 BUSINESS PHONE: 2036557900 MAIL ADDRESS: STREET 1: 120 TOKENEKE RD STREET 2: P O BOX 1231 CITY: DARIEN STATE: CT ZIP: 06820 SC 14D9/A 1 AMENDMENT NO. 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- SCHEDULE 14D-9 (Amendment No. 1) Solicitation/Recommendation Statement Pursuant to Section 14(d)(4) of the Securities Exchange Act of 1934 AIR EXPRESS INTERNATIONAL CORPORATION (Name of Subject Corporation) Air Express International Corporation (Name of Person(s) Filing Statement) Common Stock, $0.01 par value (Title of Class of Securities) 009104100 (CUSIP Number of Class of Securities) DENNIS M. DOLAN Executive Vice President and Chief Financial Officer AIR EXPRESS INTERNATIONAL CORPORATION 120 Tokeneke Road Darien, Connecticut 06820 (203) 655-7900 (Name, address and telephone number of person authorized to receive notice and communications on behalf of the person(s) filing statement) Copy to: KATHERINE P. BURGESON, ESQ. CUMMINGS & LOCKWOOD Four Stamford Plaza P. O. Box 120 Stamford, Connecticut 06904 (203) 351-4260 ================================================================================ The Solicitation/Recommendation Statement on Schedule 14D-9 of which this Amendment No. 1 (this "Amendment No. 1") is a part relates to an offer by DP Acquisition Corporation, a Delaware corporation (the "Offeror"), a wholly-owned subsidiary of Deutsche Post AG, a German corporation (the "Parent"), to purchase all of the outstanding shares of common stock, $0.01 par value per share, of Air Express International Corporation, a Delaware corporation (the "Company"), made by means of an Offer to Purchase dated November 19, 1999, as amended by a supplement dated November 23, 1999 (as so amended, the "Offer to Purchase"). The Solicitation/Recommendation Statement on Schedule 14D-9 of the Company dated November 19, 1999 is hereinafter referred to as the "Schedule 14-9." Except as otherwise amended by this Amendment No. 1, the information contained in the Schedule 14D-9 is hereby confirmed. All capitalized terms used in this Amendment No. 1 not defined herein shall have the meanings ascribed to them in the Schedule 14D-9. ITEM 3. IDENTITY AND BACKGROUND. The Annex I referenced in Item 3 is hereby amended under the heading "Security Ownership and Certain Beneficial Owners and Management" as follows: The following table sets forth as of November 8, 1999 (except as otherwise noted), information with respect to the beneficial ownership of the Company's common stock by (i) each person known by the Company to own beneficially more than 5% of the outstanding common stock of the Company, (ii) each executive officer of the Company named in the Summary Compensation Table under "Executive Compensation", (iii) each current director and (iv) all directors and executive officers of the Company as a group. Unless otherwise indicated in the footnotes to this table, beneficial ownership of shares represents sole voting and investment power with respect to those shares: Percentage of Shares Owned Outstanding Beneficial Owner Beneficially (#) Shares (%) (1) ---------------- ---------------- -------------- Wellington Management Company (2)............. 1,772,250 5.3% 75 State Street Boston, Massachusetts 02109 FMR Corp. (3) ................................ 1,907,637 5.7 82 Devonshire Street Boston, Massachusetts 02109 Hendrik J. Hartong, Jr. (4)................... 486,517 1.5 Guenter Rohrmann (5).......................... 480,507 1.4 Robert J. O'Connell (6)....................... 44,742 (13) Dennis M. Dolan (7)........................... 102,938 (13) Giorgio Laccona (8)........................... 45,935 (13) Daniel J. McCauley (9)........................ 49,238 (13) John M. Fowler (10)........................... 47,500 (13) Donald J. Keller 10).......................... 7,563 (13) Andrew L. Lewis IV (10)....................... 15,107 (13) Richard T. Niner (11)......................... 359,587 1.0 John Radziwill................................ 411,002 1.2 All directors and executive officers as a group (consisting of 11 persons ) (12)...... 2,050,636 6.10 - --------------------------- (1) Shares issuable upon the exercise of stock options owned by that person which can be exercised within 60 days of November 8, 1999, are deemed outstanding for the purpose of computing the number and percentage of outstanding shares owned by that person (and any group that includes that person) but are not deemed outstanding for the purpose of computing the percentage of outstanding shares owned by any other person. (2) Based on information believed to be accurate as of September 30, 1999, and includes shares with shared dispositive power and shared investment power. (3) Based on information believed to be accurate as of November 17, 1999, and includes shares with shared dispositive power and shared investment power. (4) Includes 83,750 shares issuable upon the exercise of stock options. (5) Includes 131,250 shares issuable upon the exercise of stock options. (6) Includes 18,750 shares issuable upon the exercise of stock options. (7) Includes 30,000 shares issuable upon the exercise of stock options. (8) Includes 7,500 shares issuable upon the exercise of stock options. (9) Includes 22,500 shares issuable upon the exercise of stock options. (10) Includes 2,500 shares issuable upon the exercise of stock options. (11) Includes 5,061 shares held in custodial accounts for the benefit of Mr. Niner's children. (12) Includes 306,250 shares issuable upon the exercise of stock options. (13) Less than 1%. ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED. The text of Item 8 is hereby deleted in its entirety and replaced with the following: On November 19, 1999, an action was filed by an alleged shareholder of the Company in the Court of Chancery of the State of Delaware, entitled Smith v. Hartong, et al., C.A. No. 17594-NC. The complaint in the action seeks to proceed on behalf of a purported class consisting of owners of the common stock of the Company other than the defendants. The complaint names as defendants the Company and the members of the Company's Board of Directors. Plaintiff alleges that in agreeing to the Merger Agreement, the members of the Company's board breached their fiduciary duties to shareholders of the Company by failing to take appropriate measures to maximize the value of the Company's common stock. Plaintiff seeks monetary and/or rescisionary damages in an unspecified amount, preliminary and permanent injunctive relief against the consummation of the transactions contemplated under the Merger Agreement and plaintiff's costs and disbursements in bringing the action. Defendants believe that the action is without merit and intend to defend against it vigorously. A copy of the complaint is filed as Exhibit (d)(1) and incorporated herein by reference, and the foregoing description is qualified in its entirety by reference to such Exhibit. ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. Item 9 is hereby amended to add the following exhibits: Exhibit (d)(1) Class Action Complaint filed on November 19, 1999 in the Court of Chancery of the State of Delaware, Civil Action No. 17594-NC, in an action entitled Smith v. Hartong, et al.* - ------------------- *Not included in copies mailed to stockholders. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. AIR EXPRESS INTERNATIONAL CORPORATION By: /s/ Daniel J. McCauley -------------------------------------- Daniel J. McCauley Vice President, Secretary and General Counsel Dated: November 24, 1999 EX-99 2 CLASS ACTION COMPLAINT Exhibit (d)(1) IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - ------------------------------------x STEVE SMITH, : : Plaintiff, : : Civil Action No. 17594NC v. : : HENDRIK J. HARTONG, JR. : GUENTER ROHRMANN, JOHN M. : FOWLER, DONALD J. KELLER : ANDREW L. LEWIS IV, RICHARD T. : NINER, JOHN RADZIWILL, NOEL E. : VARGAS and AIR EXPRESS : INTERNATIONAL CORPORATION, : : Defendants. : - ------------------------------------x CLASS ACTION COMPLAINT ---------------------- Plaintiff alleges upon information and belief, except for paragraph 2 hereof, which is alleged upon personal knowledge, as follows: SUMMARY OF ACTION ----------------- 1. Plaintiff brings this action on behalf of himself and all other shareholders of defendant Air Express International Corporation. ("Air Express" or the "Company"), except defendants and their affiliates, against the directors of Air Express for breaching their fiduciary duties to Air Express's shareholders in failing to take appropriate measures to maximize the value of the Air Express stock held by its shareholders. THE PARTIES ----------- 2. Plaintiff owns shares of the common stock of Air Express and has been the owner of such shares at all times relevant hereto. Exhibit (d)(2) 3. Air Express is a corporation organized and existing under the laws of the State of Delaware. Air Express primarily provides services that facilitate the movement of freight across international markets. The Company's core business, air and ocean freight forwarding, involves purchasing transportation services in bulk from air and ocean carriers at wholesale rates and profiting from the spread by offering consolidation services at retail rates. 4. Defendant Hendrik J. Hartong, Jr. ("Hartong") is Chairman of the Board of Directors of Air Express. 5. Defendant Guenter Rohrmann ("Rohrmann") is President, Chief Executive Officer and a Director of Air Express. 6. Defendant John M. Fowler ("Fowler") is a Director of Air Express. 7. Defendant Donald J. Keller ("Keller") is a Director of Air Express. 8. Defendant Andrew L. Lewis IV ("Lewis") is a Director of Air Express. 9. Defendant Richard T. Niner ("Niner") is a Director of Air Express. 10. Defendant John Radziwill ("Radziwill") is a Director of Air Express. 11. Defendant Noel E. Vargas ("Vargas") is a Director of Air Express. 12. The defendants named in paragraphs 4-11 above are hereinafter sometimes collectively referred to as the "Individual Defendants" or the "Director Defendants." 13. By virtue of the Individual Defendants' position as officers and/or directors of Air Express, they are in a fiduciary relationship with plaintiff and other public shareholders of Air Express and owe them the highest obligations of good faith, fair dealing, loyalty and due care. CLASS ACTION ALLEGATIONS ------------------------ 14. Plaintiff brings this action, pursuant to Rule 23 of the Rules of this Court, on behalf of himself and all other holders of the common stock of Air Express (except defendants herein and any person, firm, trust, corporation, or other entity related to or Exhibit (d)(2) affiliated with any of the defendants) and their successors in interest, who are or will be threatened with injury arising from defendants' actions as more fully described herein. 15. This action is properly maintainable as a class action because; (1) The class is so numerous that joinder of all members is impracticable. There are about 33,598,000 shares of Air Express common stock outstanding held by at least hundreds of shareholders throughout the United States. 16. There are questions of law and fact which are common to the class and which predominate over questions affecting any individual class member. The common questions include, inter alia, the following: (1) whether defendants have breached their fiduciary and other common law duties owed by them to plaintiff and the other members of the class; (2) whether the class is entitled to injunctive relief or damages as a result of the wrongful conduct of the defendants; and (3) whether defendants have failed to take appropriate measures to ensure the realization of the maximum value of the Air Express stock held by the class. 17. Plaintiff is committed to prosecuting this action and has retained competent counsel experienced in litigation of this nature. The claims of the plaintiff are typical of the claims of other members of the class and plaintiff has the same interests as the other members of the class. 18. Defendants have acted in a manner which affects plaintiff and all other members of the class alike, thereby making appropriate injunctive relief and/or corresponding declaratory relief with respect to the class as a whole. SUBSTANTIVE ALLEGATIONS ----------------------- 19. On November 15, 1999, Air Express and Deutsche Post AG, Europe's largest mail, parcel and logistics company ("Deutsche Post"), announced that they had signed a definitive merger agreement. Under the terms of the merger agreement, Deutsche Post will acquire the outstanding shares of Air Express for $33 per share in Exhibit (d)(2) cash or approximately $1.14 billion. The companies further announced that Air Express's Board of Directors and Deutsche Post's supervisory board had both approved the agreement. 20. Pursuant to the merger agreement, Deutsche Post will commence a tender offer for all outstanding shares of Air Express at a price of $33 per share in cash. Upon consummation of the tender offer, any remaining shares of Air Express will be acquired in a cash merger at the same price. 21. Deutsche Post plans to integrate all Air Express activities into its Danzas Inercontinental Business Unit ("Danzas"). As a result, Deutsche Post will gain a major stronghold in the U.S.A., and Danzas will become the leading airfreight forwarder worldwide. 22. Air Express's present Chief Executive Officer, defendant Rohrmann, will assume the position of Vice Chairman of the combined division. 23. Air Express's present Chairman, defendant Hartong, will join the board of the combined division. 24. The purchase price of $33.00 per share is inadequate. As recently as November 12, 1999, Air Express common stock traded as high as $32.69 so the proposed transaction offers virtually no premium to Class members. 25. By entering into the agreement with Deutsche Post, the Air Express Board has initiated a process to sell the Company, imposing heightened fiduciary responsibilities on its directors. However, the terms of the proposed transaction were not the result of an auction process; they were arrived at without a full and thorough investigation by the Individual Defendants and they are intrinsically unfair and inadequate from the standpoint of the Air Express shareholders. 26. The Individual Defendants have violated the fiduciary duties owed to the public shareholders of Air Express. The Individual Defendants' agreement to the terms of the transaction and the failure to auction the Company and invite other bidders Exhibit (d)(2) demonstrate a clear absence of the exercise of due care and of loyalty to Air Express's public shareholders. 27. In light of the foregoing, the Individual Defendants' fiduciary obligations require them to: (1) undertake an appropriate evaluation of Air Express's worth as a merger/acquisition candidate; (2) take all appropriate steps to enhance Air Express's value and attractiveness as a merger/acquisition candidate; and (3) take all appropriate steps to obtain the best available transaction for Air Express. 28. As a result of defendants' breaches of fiduciary duties, plaintiff and the other members of the Class have been and will be damaged in that they will be prevented from maximizing the value of their investment in Air Express. 29. Unless enjoined by this Court, defendants will continue to breach their fiduciary duties owed to plaintiff and the other members of the Class, to the irreparable harm of the Class. 30. Plaintiff and the other members of the class have no adequate remedy at law. WHEREFORE, plaintiff demands judgment against defendants jointly and severally, as follows: (1) declaring this action to be a class action and certifying plaintiff as the class representative; (2) preliminarily and permanently enjoining defendants and their counsel, agents, employees and all persons acting under, in concert with, or for them, from proceedings with, consummating, or closing the proposed transaction; (3) entering an order or orders requiring defendants to take the steps set forth above to maximize shareholder value; Exhibit (d)(2) (4) to the extent, if any, that the contemplated transaction or transactions complained of are consummated prior to the entry of this Court's final judgment, rescinding such transaction or transactions, or granting the Class rescissory damages; (5) directing that defendants account to plaintiff and the other members of the class for all damages caused to them and account for all profits and any special benefits obtained as a result of their unlawful conduct; (6) awarding plaintiff the costs and disbursement of this action, including a reasonable allowance for the fees and expenses of plaintiff's attorneys and experts; and (7) granting plaintiff and the other members of the class such other and further relief as may be just and proper. ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A. By: /s/ -------------------------------- Suite 1401, Mellon Bank Center P.O. Box 1070 Wilmington, Delaware 19899-1070 (302) 656-4433 Attorneys for Plaintiff OF COUNSEL: STULL, STULL & BRODY 6 East 45th Street New York, New York 10017 (212) 687-7230 WEISS & YOURMAN 551 Fifth Avenue, Suite 1600 New York, New York 10176 (212) 682-3025 -----END PRIVACY-ENHANCED MESSAGE-----