-----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, KxTgPpG70GljeymZp0YkeIccDk3sX5MvqxWzLvxbaqe504Wp/a/N14Z5WbWiqJt3 DPsQqvHTcvaGQrrT+U34og== 0000950103-99-001029.txt : 19991124 0000950103-99-001029.hdr.sgml : 19991124 ACCESSION NUMBER: 0000950103-99-001029 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19991123 GROUP MEMBERS: DEUTSCHE POST AG GROUP MEMBERS: DP ACQUISITION CORP 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 14D1/A SEC ACT: SEC FILE NUMBER: 005-07933 FILM NUMBER: 99763201 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: DP ACQUISITION CORP CENTRAL INDEX KEY: 0001098997 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: C/O DEUTSCHE POST AG D-53175 CITY: BONN GERMANY BUSINESS PHONE: 011492281823620 MAIL ADDRESS: STREET 1: C/O DEUTSCHE POST AG STREET 2: D-53175 CITY: BONN GERMANY SC 14D1/A 1 File No. 005-07933 As filed with the Securities and Exchange Commission on November 23, 1999 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 14D-1 Tender Offer Statement Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 (Amendment No. 1) AIR EXPRESS INTERNATIONAL CORPORATION (Name of Subject Company) DEUTSCHE POST AG DP ACQUISITION CORPORATION a wholly-owned subsidiary of DEUTSCHE POST AG (Bidders) ----------------------- Common Stock, Par Value $0.01 Per Share (Title of Class of Securities) ----------------------- 009104100 (Cusip Number) Dr. Klaus Engelen Deutsche Post AG Heinrich-von-Stephan-Str. 1 53175 Bonn, Germany Telephone: 011-49-228-182-3600 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Bidders) Copies to: Christopher Mayer Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Telephone: (212) 450-4000 ================================================================================ This Amendment No.1 ("Amendment No. 1") amends and supplements the Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") originally filed on November 19, 1999 by Deutsche Post AG, a German corporation ("Parent"), and DP Acquisition Corporation ("Purchaser"), a Delaware corporation and a wholly-owned subsidiary of Parent, relating to the offer by Purchaser to purchase all outstanding shares of common stock, par value $0.01 per share (the "Shares"), of Air Express International Corporation, a Delaware corporation (the "Company"), at a price of $33.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated November 19, 1999 (the "Offer to Purchase") and in the related Letter of Transmittal. All capitalized terms used in this Amendment No.1 without definition have the meanings attributed to them in the Schedule 14D-1. The items of the Schedule 14D-1 set forth below are hereby amended and supplemented as follows: Item 10. Additional Information. Item 10(e) of the Schedule 14D-1 is hereby amended and restated to read in its entirety as follows: On November 19, 1999, an action was filed by an alleged shareholder of the Company in the Court of Chancery of the State of Delaware, styled Smith v. Hartong, et al., C.A. No. 17594-NC. The complaint in the action seeks to proceed on behalf of a purported class consisting of owners of Shares other than the defendants. The complaint names as defendants the Company and the members of the Company's board of directors. Plaintiff alleges that in agreeing to the Merger Agreement, the members of the Company's board of directors breached their fiduciary duties to the stockholders of the Company by failing to take appropriate measures to maximize the value of the Shares. Plaintiff seeks monetary and/or rescissory damages in an unspecified amount, preliminary and permanent injunctive relief against the consummation of the transactions contemplated under the Merger Agreement and plaintiff's costs and disbursements in bringing the action. Defendants believe that the action is without merit and intend to defend against it vigorously. Item 11. Material to be Filed as Exhibits. Item 11 is hereby amended and supplemented to add the following exhibit: (g)(1) Class Action Complaint filed on November 19, 1999 in the Court of Chancery of the State of Delaware, in an action entitled Smith v. Hartong, et al. SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 23, 1999 DP ACQUISITION CORPORATION By: /s/ Dr. Klaus Engelen ----------------------------------- Name: Dr. Klaus Engelen Title: General Counsel, Executive Vice President and Secretary DEUTSCHE POST AG By: /s/ Dr. Bernd Boecken ------------------------------------ Name: Dr. Bernd Boecken Title: Director of Finance By: /s/ Dr. Klaus Engelen ----------------------------------- Name: Dr. Klaus Engelen Title: General Counsel EXHIBIT INDEX Exhibit No. - -------------------------------------------------------------------------------- 99(g)(1) Class Action Complaint filed on November 19, 1999 in the Court of Chancery of the State of Delaware, in an action mentitled Smith v. Hartong, et al. EX-99.G.1 2 CLASS ACTION COMPLAINT -- SMITH V. HARTONG, ET AL Exhibit (g)(1) IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - ------------------------------------x STEVE SMITH, : : Plaintiff, : : Civil Action No. 17594NC v. : : HENDRIK J. HARTONG, JR. : GUENTER ROHRMANN, JOHN M. : FOWLER, DONALD J. KELLER : ANDREW L. LEWIS IV, RICHARD T. : NINER, JOHN RADZIWILL, NOEL E. : VARGAS and AIR EXPRESS : INTERNATIONAL CORPORATION, : : Defendants. : - ------------------------------------x CLASS ACTION COMPLAINT Plaintiff alleges upon information and belief, except for paragraph 2 hereof, which is alleged upon personal knowledge, as follows: SUMMARY OF ACTION 1. Plaintiff brings this action on behalf of himself and all other shareholders of defendant Air Express International Corporation. ("Air Express" or the "Company"), except defendants and their affiliates, against the directors of Air Express for breaching their fiduciary duties to Air Express's shareholders in failing to take appropriate measures to maximize the value of the Air Express stock held by its shareholders. THE PARTIES 2. Plaintiff owns shares of the common stock of Air Express and has been the owner of such shares at all times relevant hereto. 3. Air Express is a corporation organized and existing under the laws of the State of Delaware. Air Express primarily provides services that facilitate the movement of freight across international markets. The Company's core business, air and ocean freight forwarding, involves purchasing transportation services in bulk from air and ocean carriers at wholesale rates and profiting from the spread by offering consolidation services at retail rates. 4. Defendant Hendrik J. Hartong, Jr. ("Hartong") is Chairman of the Board of Directors of Air Express. 5. Defendant Guenter Rohrmann ("Rohrmann") is President, Chief Executive Officer and a Director of Air Express. 6. Defendant John M. Fowler ("Fowler") is a Director of Air Express. 7. Defendant Donald J. Keller ("Keller") is a Director of Air Express. 8. Defendant Andrew L. Lewis IV ("Lewis") is a Director of Air Express. 9. Defendant Richard T. Niner ("Niner") is a Director of Air Express. 10. Defendant John Radziwill ("Radziwill") is a Director of Air Express. 11. Defendant Noel E. Vargas ("Vargas") is a Director of Air Express. 12. The defendants named in paragraphs 4-11 above are hereinafter sometimes collectively referred to as the "Individual Defendants" or the "Director Defendants." 2 13. By virtue of the Individual Defendants' position as officers and/or directors of Air Express, they are in a fiduciary relationship with plaintiff and other public shareholders of Air Express and owe them the highest obligations of good faith, fair dealing, loyalty and due care. CLASS ACTION ALLEGATIONS 14. Plaintiff brings this action, pursuant to Rule 23 of the Rules of this Court, on behalf of himself and all other holders of the common stock of Air Express (except defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any of the defendants) and their successors in interest, who are or will be threatened with injury arising from defendants' actions as more fully described herein. 15. This action is properly maintainable as a class action because; (1) The class is so numerous that joinder of all members is impracticable. There are about 33,598,000 shares of Air Express common stock outstanding held by at least hundreds of shareholders throughout the United States. 16. There are questions of law and fact which are common to the class and which predominate over questions affecting any individual class member. The common questions include, inter alia, the following: (1) whether defendants have breached their fiduciary and other common law duties owed by them to plaintiff and the other members of the class; (2) whether the class is entitled to injunctive relief or damages as a result of the wrongful conduct of the defendants; and (3) whether defendants have failed to take appropriate measures to ensure the realization of the maximum value of the Air Express stock held by the class. 3 17. Plaintiff is committed to prosecuting this action and has retained competent counsel experienced in litigation of this nature. The claims of the plaintiff are typical of the claims of other members of the class and plaintiff has the same interests as the other members of the class. 18. Defendants have acted in a manner which affects plaintiff and all other members of the class alike, thereby making appropriate injunctive relief and/or corresponding declaratory relief with respect to the class as a whole. SUBSTANTIVE ALLEGATIONS 19. On November 15, 1999, Air Express and Deutsche Post AG, Europe's largest mail, parcel and logistics company ("Deutsche Post"), announced that they had signed a definitive merger agreement. Under the terms of the merger agreement, Deutsche Post will acquire the outstanding shares of Air Express for $33 per share in cash or approximately $1.14 billion. The companies further announced that Air Express's Board of Directors and Deutsche Post's supervisory board had both approved the agreement. 20. Pursuant to the merger agreement, Deutsche Post will commence a tender offer for all outstanding shares of Air Express at a price of $33 per share in cash. Upon consummation of the tender offer, any remaining shares of Air Express will be acquired in a cash merger at the same price. 21. Deutsche Post plans to integrate all Air Express activities into its Danzas Inercontinental Business Unit ("Danzas"). As a result, Deutsche Post will gain a major stronghold in the U.S.A., and Danzas will become the leading airfreight forwarder worldwide. 22. Air Express's present Chief Executive Officer, defendant Rohrmann, will assume the position of Vice Chairman of the combined division. 4 23. Air Express's present Chairman, defendant Hartong, will join the board of the combined division. 24. The purchase price of $33.00 per share is inadequate. As recently as November 12, 1999, Air Express common stock traded as high as $32.69 so the proposed transaction offers virtually no premium to Class members. 25. By entering into the agreement with Deutsche Post, the Air Express Board has initiated a process to sell the Company, imposing heightened fiduciary responsibilities on its directors. However, the terms of the proposed transaction were not the result of an auction process; they were arrived at without a full and thorough investigation by the Individual Defendants and they are intrinsically unfair and inadequate from the standpoint of the Air Express shareholders. 26. The Individual Defendants have violated the fiduciary duties owed to the public shareholders of Air Express. The Individual Defendants' agreement to the terms of the transaction and the failure to auction the Company and invite other bidders demonstrate a clear absence of the exercise of due care and of loyalty to Air Express's public shareholders. 27. In light of the foregoing, the Individual Defendants' fiduciary obligations require them to: (1) undertake an appropriate evaluation of Air Express's worth as a merger/acquisition candidate; (2) take all appropriate steps to enhance Air Express's value and attractiveness as a merger/acquisition candidate; and (3) take all appropriate steps to obtain the best available transaction for Air Express. 5 28. As a result of defendants' breaches of fiduciary duties, plaintiff and the other members of the Class have been and will be damaged in that they will be prevented from maximizing the value of their investment in Air Express. 29. Unless enjoined by this Court, defendants will continue to breach their fiduciary duties owed to plaintiff and the other members of the Class, to the irreparable harm of the Class. 30. Plaintiff and the other members of the class have no adequate remedy at law. WHEREFORE, plaintiff demands judgment against defendants jointly and severally, as follows: (1) declaring this action to be a class action and certifying plaintiff as the class representative; (2) preliminarily and permanently enjoining defendants and their counsel, agents, employees and all persons acting under, in concert with, or for them, from proceedings with, consummating, or closing the proposed transaction; (3) entering an order or orders requiring defendants to take the steps set forth above to maximize shareholder value; (4) to the extent, if any, that the contemplated transaction or transactions complained of are consummated prior to the entry of this Court's final judgment, rescinding such transaction or transactions, or granting the Class rescissory damages; (5) directing that defendants account to plaintiff and the other members of the class for all damages caused to them and account for all profits and any special benefits obtained as a result of their unlawful conduct; (6) awarding plaintiff the costs and disbursement of this action, including a reasonable allowance for the fees and expenses of plaintiff's attorneys and experts; and 6 (7) granting plaintiff and the other members of the class such other and further relief as may be just and proper. ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A. By: /s/ ----------------------------- Suite 1401, Mellon Bank Center P.O. Box 1070 Wilmington, Delaware 19899-1070 (302) 656-4433 Attorneys for Plaintiff OF COUNSEL: STULL, STULL & BRODY 6 East 45th Street New York, New York 10017 (212) 687-7230 WEISS & YOURMAN 551 Fifth Avenue, Suite 1600 New York, New York 10176 (212) 682-3025 7 -----END PRIVACY-ENHANCED MESSAGE-----