Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Air Express International Corporation
at
$33.00 Net Per Share
by
DP Acquisition Corporation
a wholly-owned subsidiary of
Deutsche Post AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, DECEMBER 17, 1999, UNLESS THE OFFER IS EXTENDED.
The Board of Directors of Air Express International Corporation (the
"Company") has unanimously approved the Merger Agreement and the transactions
contemplated thereby and determined that the Merger Agreement and the
transactions contemplated thereby, including the Offer and the Merger, are
fair to, and in the best interests of, the holders of Shares (as defined
herein). The Board of Directors of the Company recommends that the Company's
stockholders tender their Shares pursuant to the Offer and approve and adopt
the Merger Agreement (if such approval is required under Delaware Law).
The Offer is conditioned upon, among other things, (1) there being validly
tendered and not withdrawn prior to the expiration of the Offer a number of
the shares of common stock, par value $0.01 per share (the "Shares"), of the
Company which, together with any Shares then beneficially owned by Deutsche
Post AG ("Parent"), represent at least a majority of the outstanding Shares on
a fully diluted basis (the "Minimum Condition"), (2) any waiting period under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 having expired or
having been terminated and (3) clearance under the European Commission's
Council Regulation No. 4064/89 having been received. See "Certain Conditions
of the Offer."
IMPORTANT
Any stockholder who desires to tender all or any portion of such
stockholder's Shares should either (1) complete and sign the Letter of
Transmittal (or a facsimile thereof) that accompanies this Offer to Purchase
in accordance with the instructions in such Letter of Transmittal and deliver
the Letter of Transmittal (or such facsimile) together with the certificate(s)
("Share Certificates") representing the tendered Shares and any other required
documents to ChaseMellon Shareholder Services, L.L.C. (the "Depositary") (at
the Depositary's address set forth on the back cover of this Offer to
Purchase) or tender such stockholder's Shares pursuant to the procedure for
book-entry transfer set forth in "Procedures for Accepting the Offer and
Tendering Shares" or (2) request such stockholder's broker, dealer, commercial
bank, trust company or other nominee to effect the transaction for such
stockholder. A stockholder whose Shares are registered in the name of a
broker, dealer, bank, trust company or other nominee must contact such broker,
dealer, bank, trust company or other nominee if such stockholder desires to
tender such Shares.
A stockholder who desires to tender such stockholder's Shares and whose
Share Certificates are not immediately available, or who cannot comply with
the procedure for book-entry transfer on a timely basis, or who cannot deliver
all required documents to the Depositary prior to the expiration of the Offer,
may tender such Shares by following the procedures for guaranteed delivery set
forth under the caption "Procedures for Accepting the Offer and Tendering
Shares."
Questions or requests for assistance may be directed to Xxxxxxxxx
Shareholder Communications Inc. (the "Information Agent") or Deutsche Bank
Securities Inc. (sometimes referred to herein as the "Dealer Manager") at
their respective addresses and telephone numbers set forth on the back cover
of this Offer to Purchase. Additional copies of this Offer to Purchase, the
Letter of Transmittal and other related materials may be obtained from the
Information Agent or the Dealer Manager.
---------------
The Dealer Manager for the Offer is:
Deutsche Banc Xxxx. Xxxxx
November 19, 1999
TABLE OF CONTENTS
Page
----
INTRODUCTION............................................................. 1
THE TENDER OFFER......................................................... 3
Terms of the Offer..................................................... 3
Acceptance for Payment and Payment for Shares.......................... 4
Procedures for Accepting the Offer and Tendering Shares................ 5
Withdrawal Rights...................................................... 8
Certain United States Federal Income Tax Considerations................ 8
Price Range of Shares; Dividends....................................... 9
Certain Information Concerning the Company............................. 10
Certain Information Concerning Parent and Purchaser.................... 12
Source and Amount of Funds............................................. 13
Background of the Offer; Past Contacts or Negotiations with the
Company............................................................... 14
The Merger Agreement; Other Arrangements............................... 16
Purpose of the Offer; Plans for the Company............................ 22
Certain Effects of the Offer........................................... 24
Dividends and Distributions............................................ 25
Extension of Tender Period; Termination; Amendment..................... 25
Certain Conditions of the Offer........................................ 26
Certain Legal Matters; Regulatory Approvals............................ 27
Fees and Expenses...................................................... 31
Miscellaneous.......................................................... 32
SCHEDULE I--Directors and Executive Officers of Parent and Purchaser and
Parent's Designees...................................................... S-1
i
INTRODUCTION
To the Holders of Shares of Common Stock
of Air Express International Corporation
DP Acquisition Corporation ("Purchaser"), a Delaware corporation and a
wholly-owned subsidiary of Deutsche Post AG ("Parent"), hereby offers to
purchase all outstanding shares of common stock, par value $0.01 per share
(the "Shares"), of Air Express International Corporation (the "Company") at a
price of $33.00 per Share, net to the seller in cash (the "Offer Price"), upon
the terms and subject to the conditions set forth in this Offer to Purchase
and in the related Letter of Transmittal (which, together with any amendments
or supplements hereto or thereto, collectively constitute the "Offer").
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 6 of the Letter of
Transmittal, stock transfer taxes with respect to the purchase of Shares by
Purchaser pursuant to the Offer. Parent or Purchaser will pay all charges and
expenses of Deutsche Bank Securities Inc. ("Deutsche Bank"), as dealer manager
(the "Dealer Manager"), ChaseMellon Shareholder Services, L.L.C., as
depositary (the "Depositary"), and Xxxxxxxxx Shareholder Communications Inc.,
as information agent (the "Information Agent"), incurred in connection with
the Offer. See "Fees and Expenses."
THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") HAS UNANIMOUSLY
APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY AND
DETERMINED THAT THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
THEREBY, INCLUDING THE OFFER AND THE MERGER, ARE FAIR TO, AND IN THE BEST
INTERESTS OF, THE HOLDERS OF SHARES. THE COMPANY BOARD RECOMMENDS THAT THE
COMPANY'S STOCKHOLDERS TENDER THEIR SHARES PURSUANT TO THE OFFER AND APPROVE
AND ADOPT THE MERGER AGREEMENT (IF SUCH APPROVAL IS REQUIRED UNDER DELAWARE
LAW).
Xxxxxx Xxxxxxx & Co. Incorporated, financial advisor to the Company
("Xxxxxx Xxxxxxx"), has delivered to the Company Board its written opinion as
investment bankers that, as of the date of such opinion and based on and
subject to the matters stated in such opinion, the consideration to be paid in
the Offer and the Merger is fair from a financial point of view to the holders
of Shares. The full text of the written opinion of Xxxxxx Xxxxxxx containing
the assumptions made, the matters considered and the scope of the review
undertaken in rendering such opinion as well as the limitations of such
opinion is included with the Company's Solicitation/Recommendation Statement
on Schedule 14D-9 ("Schedule 14D-9"), which is being mailed to stockholders
concurrently herewith. Stockholders are urged to read the full text of such
opinion in conjunction with this Offer.
The Offer is conditioned upon, among other things, (1) there being validly
tendered and not withdrawn prior to the expiration of the Offer a number of
the Shares which, together with any Shares then beneficially owned by Parent,
represent at least a majority of the outstanding Shares on a fully diluted
basis (the "Minimum Condition"), (2) any waiting period under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") having
expired or having been terminated and (3) clearance under the European
Commission's Council Regulation No. 4064/89 having been received. See "Certain
Conditions of the Offer."
Based upon information provided by the Company, as of the close of business
on November 12, 1999, there were outstanding 33,628,769 Shares and options to
purchase an aggregate of 2,567,491 Shares. Based upon the foregoing, there
were approximately 36,196,260 Shares outstanding on a fully diluted basis.
Neither Parent nor Purchaser or any person listed on Schedule I hereto
beneficially owns any Shares. Accordingly, Xxxxxxxxx believes that the Minimum
Condition would be satisfied if approximately 18,098,131 Shares are validly
tendered and not withdrawn prior to the Expiration Date (as defined herein).
The Offer is being made pursuant to the Tender Offer and Merger Agreement
dated as of November 15, 1999 (the "Merger Agreement") among the Company,
Purchaser and Parent. The Merger Agreement provides that as promptly as
practicable after the purchase of Shares pursuant to the Offer and the
satisfaction (or waiver, to the extent permissible under the
1
Merger Agreement) of the conditions to the Merger, Purchaser shall, in
accordance with the General Corporation Law of the State of Delaware
("Delaware Law"), be merged into the Company (the "Merger"), whereupon the
separate existence of Purchaser shall cease, and the Company shall continue as
the surviving corporation (the "Surviving Company"). Pursuant to the Merger,
each Share outstanding immediately prior to the effective time of the Merger
(the "Effective Time") (other than Shares beneficially owned by Parent, Shares
held by the Company in treasury and Shares held by stockholders properly
exercising appraisal rights under Delaware Law) shall be converted into the
right to receive the per Share price paid in the Offer in cash, without
interest (the "Merger Consideration"). The Merger Agreement is more fully
described in "The Merger Agreement; Other Arrangements." For a discussion of
the treatment of stock options, see "The Merger Agreement; Other
Arrangements."
The Merger Agreement provides that upon the acceptance for payment of
Shares pursuant to the Offer, Parent shall be entitled to designate such
number of directors, rounded up to the next whole number, on the Company Board
that equals the product of (i) the total number of directors on the Company
Board and (ii) the percentage that the number of votes represented by Shares
beneficially owned by Parent (including Shares accepted for payment pursuant
to the Offer) bears to the total number of votes represented by Shares then
outstanding. See "The Merger Agreement; Other Arrangements." Notwithstanding
the foregoing, in the event that Xxxxxx's designees are appointed or elected
to the Company Board, until the Effective Time, such Board shall have at least
two directors who are directors as of the date hereof and who are not officers
or affiliates of the Company, Parent or any of their respective subsidiaries.
See "The Merger Agreement; Other Arrangements."
The Merger is subject to the satisfaction or waiver of certain conditions,
including, if required, the approval and adoption of the Merger Agreement by a
majority of the stockholders of the Company. See "The Merger Agreement; Other
Arrangements." If the Minimum Condition is satisfied, Purchaser would have
sufficient voting power to approve the Merger without the affirmative vote of
any other stockholder of the Company. The Company has agreed, if required, to
cause a meeting of its stockholders to be held as promptly as practicable
following consummation of the Offer for the purpose of voting on the approval
and adoption of the Merger and the Merger Agreement. Parent and Purchaser have
agreed to vote their Shares in favor of the Merger.
This Offer to Purchase and the related Letter of Transmittal contain
important information that should be read carefully before any decision is
made with respect to the Offer.
2
THE TENDER OFFER
Terms of the Offer
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of such extension
or amendment), Purchaser will accept for payment and pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn as
permitted by "Withdrawal Rights." The term "Expiration Date" means 12:00
midnight, New York City time, on Friday, December 17, 1999, unless Purchaser,
in accordance with the Merger Agreement, extends the period during which the
Offer is open, in which event the term "Expiration Date" means the latest time
and date on which the Offer, as so extended, expires.
Purchaser expressly reserves the right, in its sole discretion (but subject
to the terms and conditions of the Merger Agreement), at any time and from
time to time, to extend the period of time during which the Offer is open by
giving oral or written notice of such extension to the Depositary. During any
such extension, all Shares previously tendered and not withdrawn will remain
subject to the Offer, subject to the rights of a tendering stockholder to
withdraw such stockholder's Shares. See "Withdrawal Rights."
Parent and Purchaser have agreed to extend the Expiration Date in
increments of not less than five business days until February 15, 2000, if on
a scheduled Expiration Date:
(i) the applicable waiting period under the HSR Act shall not have
expired or been terminated;
(ii) approvals under the European Commission's Council Regulation No.
4064/89 (the "European Approval"), the United States Department of
Transportation's Aviation Economic Regulations (the "DOT Approval") and
Section 721 of the Defense Production Act of 1950 (the "Exon-Xxxxxx
Provision") have not been completed, obtained or satisfied; or
(iii) any other domestic or foreign approvals, consents, filings,
notifications or other requirements of law, statute, rule or regulation
necessary in connection with the transactions contemplated by the Merger
Agreement shall not have been completed, obtained or satisfied, except for
such matters as would not reasonably be expected to have, individually or
in the aggregate, a material adverse effect (as defined herein) on the
Company or materially impair the ability of Parent or Purchaser to
consummate the transactions contemplated by the Merger Agreement or to own
or exercise control over the Company and its subsidiaries following the
Offer.
Subject to the applicable rules and regulations of the Securities and
Exchange Commission (the "Commission"), Purchaser also expressly reserves the
right, in its sole discretion (but subject to the terms and conditions of the
Merger Agreement, including the obligation of Purchaser to extend the Offer
until February 15, 2000 as described in the paragraph above), at any time and
from time to time, (i) to terminate the Offer and not accept for payment any
Shares upon the occurrence of any of the conditions specified in "Certain
Conditions of the Offer," (ii) to waive any condition except as described in
the following paragraph or (iii) to amend the Offer in any respect, except as
described in the following paragraph. Purchaser acknowledges that (i) Rule
14e-1(c) under the Securities and Exchange Act of 1934, as amended (the "1934
Act"), requires Purchaser to pay the consideration offered or return the
Shares tendered promptly after the termination or withdrawal of the Offer and
(ii) Purchaser may not delay acceptance for payment of, or payment for, any
Shares upon the occurrence of any of the conditions specified in "Certain
Conditions of the Offer" without extending the period of time during which the
Offer is open.
In addition, Purchaser has agreed in the Merger Agreement that, without the
prior written consent of the Company, Purchaser will not amend the Offer to
(i) reduce the cash price per Share to be paid in the Offer, (ii) reduce the
number of Shares to be purchased under the Offer, (iii) change the form of
consideration to be paid in the Offer, (iv) increase the minimum number of
Shares which must be tendered to satisfy the Minimum Condition, (v) impose
additional conditions to the Offer or (vi) otherwise amend the terms of the
Offer in a manner that is materially adverse to the stockholders of the
Company.
3
Any such extension, delay, termination, waiver or amendment will be
followed as promptly as practicable by public announcement thereof, such
announcement in the case of an extension to be made no later than 9:00 a.m.,
New York City time, on the next business day after the previously scheduled
Expiration Date. Subject to applicable law (including Rules 14d-4(c), 14d-6(d)
and 14e-1 under the 1934 Act, which require that material changes be promptly
disseminated to stockholders in a manner reasonably designed to inform them of
such changes) and without limiting the manner in which Purchaser may choose to
make any public announcement, Purchaser shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a press release to the Dow Xxxxx News Service.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, Purchaser will extend the Offer to the extent required by Rules 14d-
4(c), 14d-6(d) and 14e-1 under the 1934 Act.
Subject to the terms of the Merger Agreement, if, prior to the Expiration
Date, Purchaser should decide to decrease the number of Shares being sought or
to increase or decrease the consideration being offered in the Offer, such
decrease in the number of Shares being sought or such increase or decrease in
the consideration being offered will be applicable to all stockholders whose
Shares are accepted for payment pursuant to the Offer and, if at the time
notice of any such decrease in the number of Shares being sought or such
increase or decrease in the consideration being offered is first published,
sent or given to holders of such Shares, the Offer is scheduled to expire at
any time earlier than the period ending on the tenth business day from and
including the date that such notice is first so published, sent or given, the
Offer will be extended at least until the expiration of such ten business day
period. For purposes of the Offer, a "business day" means any day other than a
Saturday, Sunday or United States federal holiday and consists of the time
period from 12:01 a.m. through 12:00 midnight, New York City time.
If, prior to the Expiration Date, Purchaser shall increase the
consideration offered to any holders of Shares pursuant to the Offer, such
increased consideration shall be paid to all holders of Shares that are
purchased pursuant to the Offer, whether or not such Shares were tendered
prior to such increase in consideration.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition and the other conditions specified in "Certain Conditions of the
Offer."
The Company has provided Purchaser with the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase and the related Letter of
Transmittal will be mailed to record holders of Shares whose names appear on
the Company's stockholder list and will be furnished, for subsequent
transmittal to beneficial owners of Shares, to brokers, dealers, commercial
banks, trust companies and similar persons whose names, or the names of whose
nominees, appear on the stockholder list or, if applicable, who are listed as
participants in a clearing agency's security position listing.
Acceptance for Payment and Payment for Shares
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such
extension or amendment), Purchaser will accept for payment and will pay for
all Shares validly tendered prior to the Expiration Date and not properly
withdrawn, promptly after the Expiration Date.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment (and thereby purchased) Shares validly tendered and not properly
withdrawn as, if and when Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance for payment of such Shares pursuant to
the Offer. Upon the terms and subject to the conditions of the Offer, payment
for Shares accepted for payment pursuant to the Offer will be made by deposit
of the purchase price therefor with the Depositary, which will act as agent
for tendering stockholders for the purpose of receiving payments from
Purchaser and transmitting such payments to tendering stockholders whose
Shares have been accepted for payment. UNDER NO CIRCUMSTANCES WILL INTEREST ON
THE PURCHASE PRICE FOR SHARES BE PAID, REGARDLESS OF ANY DELAY IN MAKING SUCH
PAYMENT.
4
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) the
certificates evidencing such Shares (the "Share Certificates") or confirmation
(a "Book-Entry Confirmation") of a book-entry transfer of such Shares into the
Depositary's account at The Depository Trust Company (the "Book-Entry Transfer
Facility") pursuant to the procedures set forth in "Procedures for Accepting
the Offer and Tendering Shares," (ii) the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, with any required
signature guarantees or, in the case of a book-entry transfer, an Agent's
Message (as defined below) in lieu of the Letter of Transmittal and (iii) any
other documents required under the Letter of Transmittal.
If any tendered Shares are not accepted for payment for any reason pursuant
to the terms and conditions of the Offer, or if Share Certificates are
submitted evidencing more Shares than are tendered, Share Certificates
evidencing unpurchased Shares will be returned, without expense to the
tendering stockholder (or, in the case of Shares tendered by book-entry
transfer into the Depositary's account at the Book-Entry Transfer Facility
pursuant to the procedure set forth in "Procedures for Accepting the Offer and
Tendering Shares," such Shares will be credited to an account maintained at
the Book-Entry Transfer Facility), as promptly as practicable following the
expiration or termination of the Offer.
Purchaser reserves the right to transfer or assign, in whole or from time
to time in part, to one or more of its affiliates, the right to purchase all
or any portion of the Shares tendered pursuant to the Offer, but any such
transaction or assignment will not relieve Purchaser of its obligations under
the Offer and will in no way prejudice the rights of tendering stockholders to
receive payment for Shares validly tendered and accepted for payment pursuant
to the Offer.
Procedures for Accepting the Offer and Tendering Shares
In order for a holder of Shares to validly tender Shares pursuant to the
Offer, (i) the Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, together with any required signature guarantees
(or, in the case of a book-entry transfer, an Agent's Message in lieu of the
Letter of Transmittal) and any other documents required by the Letter of
Transmittal must be received by the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase and either the Share
Certificates evidencing tendered Shares must be received by the Depositary at
such address or such Shares must be tendered pursuant to the procedure for
book-entry transfer described below and a Book-Entry Confirmation must be
received by the Depositary, in each case prior to the Expiration Date, or (ii)
the tendering stockholder must comply with the guaranteed delivery procedures
described below. The term "Agent's Message" means a message transmitted by the
Book-Entry Transfer Facility to and received by the Depositary and forming a
part of a Book-Entry Confirmation which states that the Book-Entry Transfer
Facility has received an express acknowledgment from the participant in the
Book-Entry Transfer Facility tendering the Shares, which are the subject of
such book-entry confirmation, that such participant has received and agrees to
be bound by the terms of the Letter of Transmittal and that Purchaser may
enforce such agreement against such participant.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT
THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND THE DELIVERY WILL BE
DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Book-Entry Transfer
The Depositary will establish an account with respect to the Shares at the
Book-Entry Transfer Facility for purposes of the Offer within two business
days after the date of this Offer to Purchase. Any financial institution that
is a participant in the system of the Book-Entry Transfer Facility may make a
book-entry delivery of
5
Shares by causing the Book-Entry Transfer Facility to transfer such Shares
into the Depositary's account at the Book-Entry Transfer Facility in
accordance with the Book-Entry Transfer Facility's procedures for such
transfer. However, although delivery of Shares may be effected through book-
entry transfer at the Book-Entry Transfer Facility, either the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed,
together with any required signature guarantees, or an Agent's Message in lieu
of the Letter of Transmittal, and any other required documents, must, in any
case, be received by the Depositary at one of its addresses set forth on the
back cover of this Offer to Purchase prior to the Expiration Date, or the
tendering stockholder must comply with the guaranteed delivery procedure
described below. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY
DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Signature Guarantees
Signatures on all Letters of Transmittal must be guaranteed by a firm which
is a member of a recognized Medallion Program approved by The Securities
Transfer Associations, Inc. (an "Eligible Institution"), except in cases where
Shares are tendered (i) by a registered holder of Shares who has not completed
the box entitled "Special Payment Instructions" on the Letter of Transmittal
or (ii) for the account of an Eligible Institution. If a Share Certificate is
registered in the name of a person other than the signer of the Letter of
Transmittal, or if payment is to be made, or a Share Certificate not accepted
for payment or not tendered is to be issued, in the name of a person other
than the registered holder(s), then the Share Certificate must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered holder(s) appear on the Share Certificate, with the
signature(s) on such Share Certificate or stock powers guaranteed by an
Eligible Institution. See Instructions 1 and 5 of the Letter of Transmittal.
Guaranteed Delivery
If a stockholder desires to tender Shares pursuant to the Offer and the
Share Certificates evidencing such stockholder's Shares are not immediately
available or such stockholder cannot deliver the Share Certificates and all
other required documents to the Depositary prior to the Expiration Date, or
such stockholder cannot complete the procedure for delivery by book-entry
transfer on a timely basis, such Shares may nevertheless be tendered; provided
that all of the following conditions are satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by Purchaser, is
received prior to the Expiration Date by the Depositary as provided below;
and
(iii) the Share Certificates (or a Book-Entry Confirmation) evidencing
all tendered Shares, in proper form for transfer, in each case together
with the Letter of Transmittal (or a facsimile thereof), properly completed
and duly executed, with any required signature guarantees (or, in the case
of a book-entry transfer, an Agent's Message), and any other documents
required by the Letter of Transmittal are received by the Depositary within
three National Association of Securities Dealers, Inc. Automated Quotation
("Nasdaq") National Market System trading days after the date of execution
of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or mail or
transmitted by telegram or facsimile transmission to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in the
form of Notice of Guaranteed Delivery made available by Purchaser.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of the
Share Certificates evidencing such Shares, or a Book-Entry Confirmation of the
delivery of such Shares, and the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message), and
any other documents required by the Letter of Transmittal.
6
Determination of Validity
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for payment of any tender of Shares will be determined
by Purchaser in its sole discretion, which determination shall be final and
binding on all parties. Purchaser reserves the absolute right to reject any
and all tenders determined by it not to be in proper form or the acceptance
for payment of which may, in the opinion of its counsel, be unlawful. Subject
to the terms of the Merger Agreement, Purchaser also reserves the absolute
right to waive any condition of the Offer or any defect or irregularity in the
tender of any Shares of any particular stockholder, whether or not similar
defects or irregularities are waived in the case of other stockholders. No
tender of Shares will be deemed to have been validly made until all defects
and irregularities have been cured or waived. None of Purchaser, the Dealer
Manager, the Depositary, the Information Agent or any other person will be
under any duty to give notification of any defects or irregularities in
tenders or incur any liability for failure to give any such notification.
Purchaser's interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the instructions thereto) will be final and
binding.
Other Requirements
By executing the Letter of Transmittal as set forth above, a tendering
stockholder irrevocably appoints designees of Purchaser as such stockholder's
proxies, each with full power of substitution, in the manner set forth in the
Letter of Transmittal, to the full extent of such stockholder's rights with
respect to the Shares tendered by such stockholder and accepted for payment by
Purchaser (and with respect to any and all other Shares or other securities
issued or issuable in respect of such Shares on or after November 15, 1999).
All such proxies shall be considered coupled with an interest in the tendered
Shares. Such appointment will be effective when, and only to the extent that,
Purchaser accepts such Shares for payment. Upon such acceptance for payment,
all prior proxies given by such stockholder with respect to such Shares (and
such other Shares and securities) will be revoked without further action, and
no subsequent proxies may be given nor any subsequent written consent executed
by such stockholder (and, if given or executed, will not be deemed to be
effective) with respect thereto. The designees of Purchaser will, with respect
to the Shares for which the appointment is effective, be empowered to exercise
all voting and other rights of such stockholder as they in their sole
discretion may deem proper at any annual or special meeting of the Company's
stockholders or any adjournment or postponement thereof, by written consent in
lieu of any such meeting or otherwise. Purchaser reserves the right to require
that, in order for Shares to be deemed validly tendered, immediately upon
Purchaser's payment for such Shares, Purchaser must be able to exercise full
voting rights with respect to such Shares.
The tender of Shares pursuant to any one of the procedures described above
will constitute the tendering stockholder's acceptance of the Offer, as well
as the tendering stockholder's representation and warranty that (a) such
stockholder owns the Shares being tendered within the meaning of Rule 14e-4
promulgated under the 1934 Act, (b) the tender of such Shares complies with
Rule 14e-4 and (c) such stockholder has the full power and authority to tender
and assign the Shares tendered, as specified in the Letter of Transmittal.
Purchaser's acceptance for payment of Shares tendered pursuant to the Offer
will constitute a binding agreement between the tendering stockholder and
Purchaser upon the terms and subject to the conditions of the Offer.
TO PREVENT BACKUP FEDERAL INCOME TAX WITHHOLDING WITH RESPECT TO PAYMENT TO
STOCKHOLDERS OF THE PURCHASE PRICE OF SHARES PURCHASED PURSUANT TO THE OFFER,
EACH UNITED STATES STOCKHOLDER MUST PROVIDE THE DEPOSITARY WITH SUCH
STOCKHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER OR SOCIAL SECURITY NUMBER
OR CERTIFY THAT SUCH STOCKHOLDER IS NOT SUBJECT TO BACKUP WITHHOLDING BY
COMPLETING THE SUBSTITUTE FORM W-9 IN THE LETTER OF TRANSMITTAL. IF BACKUP
WITHHOLDING APPLIES TO A STOCKHOLDER, THE DEPOSITARY IS REQUIRED TO WITHHOLD
31% OF ANY PAYMENTS MADE TO SUCH STOCKHOLDER. SEE INSTRUCTION 8 OF THE LETTER
OF TRANSMITTAL. IF A STOCKHOLDER IS A NONRESIDENT ALIEN OR FOREIGN ENTITY NOT
SUBJECT TO BACKUP WITHHOLDING, THE STOCKHOLDER IS URGED TO GIVE THE DEPOSITARY
A COMPLETED W-8BEN (CERTIFICATE OF FOREIGN STATUS) PRIOR TO RECEIPT OF
PAYMENT.
7
Withdrawal Rights
Tenders of Shares made pursuant to the Offer are irrevocable except that
such Shares may be withdrawn at any time prior to the Expiration Date and,
unless theretofore accepted for payment by Purchaser pursuant to the Offer,
may also be withdrawn at any time after January 17, 2000. If Purchaser extends
the Offer, is delayed in its acceptance for payment of Shares or is unable to
accept Shares for payment pursuant to the Offer for any reason, then, without
prejudice to Purchaser's rights under the Offer, the Depositary may,
nevertheless, on behalf of Purchaser, retain tendered Shares, and such Shares
may not be withdrawn except to the extent that tendering stockholders are
entitled to withdrawal rights as described herein.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover page of this Offer to
Purchase. Any such notice of withdrawal must specify the name, address and
taxpayer identification number of the person who tendered the Shares to be
withdrawn, the number of Shares to be withdrawn and the name of the registered
holder of such Shares, if different from that of the person who tendered such
Shares. If Share Certificates evidencing Shares to be withdrawn have been
delivered or otherwise identified to the Depositary, then, prior to the
physical release of such Share Certificates, the serial numbers shown on such
Share Certificates must be submitted to the Depositary and the signature(s) on
the notice of withdrawal must be guaranteed by an Eligible Institution, unless
such Shares have been tendered for the account of an Eligible Institution. If
Shares have been tendered pursuant to the procedure for book-entry transfer as
set forth in "Procedures for Accepting the Offer and Tendering Shares," any
notice of withdrawal must specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Shares.
All questions as to the form and validity (including time of receipt) of
any notice of withdrawal will be determined by Purchaser, in its sole
discretion, whose determination will be final and binding. None of Purchaser,
the Dealer Manager, the Depositary, the Information Agent or any other person
will be under duty to give notification of any defects or irregularities in
any notice of withdrawal or incur any liability for failure to give any such
notification.
Any Shares properly withdrawn will thereafter be deemed not to have been
validly tendered for purposes of the Offer. However, withdrawn Shares may be
re-tendered at any time prior to the Expiration Date by following one of the
procedures described in "Procedures for Accepting the Offer and Tendering
Shares."
Certain United States Federal Income Tax Considerations
The receipt of cash pursuant to the Offer or the Merger will constitute a
taxable transaction for federal income tax purposes under the Internal Revenue
Code of 1986, as amended (the "Code"), and may also constitute a taxable
transaction under applicable state, local, foreign and other tax laws. As a
result, a tendering stockholder will generally recognize gain or loss for
federal income tax purposes in an amount equal to the difference between the
amount of cash received by the stockholder pursuant to the Offer or the Merger
and such stockholder's aggregate adjusted tax basis in the Shares tendered and
purchased pursuant to the Offer or the Merger. Gain or loss will be calculated
separately for each block of Shares tendered and purchased pursuant to the
Offer or the Merger. If tendered Shares are held by a tendering stockholder as
capital assets (within the meaning of Section 1221 of the Code), any gain or
loss recognized by the tendering stockholder will constitute capital gain or
loss, and will constitute long-term capital gain or loss if the tendering
stockholder held the underlying Shares for more than 12 months as of the date
of disposition.
A stockholder that tenders Shares may be subject to backup withholding
unless the stockholder provides its taxpayer identification number and
certifies that such number is correct or properly certifies that it is
awaiting a taxpayer identification number, or unless an exemption applies. A
stockholder who does not furnish its taxpayer identification number may be
subject to a penalty imposed by the Internal Revenue Service. See "Procedures
for Accepting the Offer and Tendering the Shares."
If backup withholding applies to a stockholder, the Depositary is required
to withhold 31% from payments to such stockholder. Backup withholding is not
an additional tax. Rather, the amount of the backup withholding
8
can be credited against the federal income tax liability of the person subject
to the backup withholding, provided that the required information is given to
the Internal Revenue Service. If backup withholding results in an overpayment
of tax, a refund can be obtained by the stockholder upon filing an appropriate
income tax return.
The foregoing discussion may not be applicable with respect to Shares
received pursuant to the exercise of employee stock options or otherwise as
compensation or to stockholders who perfect their appraisal rights under
Delaware Law or with respect to holders of Shares who are subject to special
tax treatment under the Code, such as non-U.S. persons, life insurance
companies, dealers in securities, tax-exempt organizations and financial
institutions, and may not apply to a holder of Shares in light of its
individual circumstances.
THE SUMMARY OF TAX CONSEQUENCES SET FORTH ABOVE IS FOR GENERAL INFORMATION
ONLY AND IS BASED ON THE LAW AS CURRENTLY IN EFFECT. STOCKHOLDERS ARE URGED TO
CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO
THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL OR FOREIGN
INCOME AND OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
Price Range of Shares; Dividends
The Shares are traded on the Nasdaq National Market System under the symbol
"AEIC". The following table sets forth, for the periods indicated, the high
and low sale prices per Share (as quoted on the Nasdaq National Market System,
as reported in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998 with respect to the fiscal years ended December 31, 1997 and
December 31, 1998, and thereafter as reported in published financial sources)
and cash dividends paid per Share.
Market Price
------------------ Dividends
High Low Declared
--------- -------- ---------
1997
First Quarter................................. $22 1/8 $19 7/8 $0.04
Second Quarter................................ 26 5/8 20 1/2 0.05
Third Quarter................................. 36 1/2 24 1/2 0.05
Fourth Quarter................................ 37 1/8 26 3/8 0.05
1998
First Quarter................................. $31 3/8 $24 5/16 0.05
Second Quarter................................ 29 3/8 24 1/8 0.06
Third Quarter................................. 29 15 1/4 0.06
Fourth Quarter................................ 25 7/8 14 1/4 0.06
1999
First Quarter................................. $22 5/8 $14 1/8 $0.06
Second Quarter................................ 30 14 7/8 0.07
Third Quarter................................. 27 15/16 20 3/4 0.07
Fourth Quarter (through November 12).......... 32 11/16 20 3/4 --
On November 12, 1999, there were 33,628,769 outstanding Shares.
On November 11, 1999, the last full day of trading before the public
announcement of the execution of the Merger Agreement, the closing price of
the Shares on the Nasdaq National Market System was $30 9/16 per Share. On
November 12, 1999, trading on the Nasdaq National Market was suspended at
approximately 2:50 p.m. (New York time) due to market rumors of an impending
transaction involving the Company. On November 12, 1999, the last reported
sales price was $32 1/2 per Share. On November 18, 1999, the last full day of
trading before the commencement of the Offer, the closing price of the Shares
on the Nasdaq National Market System was $32 1/8 per Share. Stockholders are
urged to obtain a current market quotation for the Shares.
9
Certain Information Concerning the Company
General
The Company is a Delaware corporation with its principal offices located at
000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000. According to the Company's Form
10-K for the fiscal year ended December 31, 1998, the Company is the oldest
and largest international airfreight forwarder based in the United States and
a leading provider of global logistics services for importers and exporters
worldwide. The Company is primarily engaged in providing cargo transportation
logistics management, including international air and ocean freight
forwarding, customs brokerage and warehousing and distribution services.
The Company is subject to the informational filing requirements of the 1934
Act and, in accordance therewith, is required to file periodic reports, proxy
statements and other information with the Commission relating to its business,
financial condition and other matters. Such reports, proxy statements and
other information can be inspected and copied at the public reference
facilities maintained by the Commission at 000 Xxxxx Xxxxxx, X.X., Xxxx 0000,
Xxxxxxxxxx, X.X. 00000, and at the Commission's regional offices located at
Seven World Trade Center, Suite 1300, New York, New York 10048 and Citicorp
Center, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
Information regarding the public reference facilities may be obtained from the
Commission by telephoning 1-800-SEC-0330. The Company's filings are also
available to the public on the Commission's internet site
(xxxx://xxx.xxx.xxx). Copies of such materials may also be obtained by mail
from the Public Reference Section of the Commission at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000 at prescribed rates. Such material should also be
available for inspection at the offices of Nasdaq National Market operations,
0000 X Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000.
Selected Financial Information
The following selected consolidated financial data relating to the Company
and its subsidiaries has been taken or derived from the audited financial
statements contained in the Company's Form 10-Ks for the fiscal years ended
December 31, 1998, December 31, 1997 and December 31, 1996, respectively, and
the unaudited financial statements contained in the Company's quarterly
reports on Form 10-Q for its fiscal quarters ended September 30, 1998 and
September 30, 1999, respectively. More comprehensive financial information is
included in the Company's Form 10-Ks and Form 10-Qs and the other documents
filed by the Company with Commission, and the financial data set forth below
is qualified in its entirety by reference to such reports and other documents
and all of the financial statements and notes contained therein. Such reports
and other documents may be examined and copies may be obtained from the
offices of the Commission in the manner set forth above.
Nine Months Ended
September 30,
(unaudited) Year Ended December 31,
--------------------- --------------------------------
1999 1998 1998 1997 1996
---------- ---------- ---------- ---------- ----------
(Amounts in Thousands, Except Per Share Amounts)
Revenues................ $1,135,485 $1,123,831 $1,513,196 $1,545,720 $1,335,447
Operating profit........ 49,741 51,423 62,074 70,912 58,755
Income before taxes..... 62,096 57,828 69,502 79,122 62,096
Net income.............. 39,120 36,401 43,756 49,451 38,500
Earnings per share:
Basic................. 1.17 1.05 1.27 1.44 1.23
Diluted............... 1.15 1.04 1.26 1.41 1.16
At end of period:
Total current assets.. 457,874 430,403 440,947 442,079 399,134
Total assets.......... 711,018 652,763 675,478 634,570 581,329
Long-term debt........ 51,250 35,910 42,578 31,008 16,612
Stockholders'
investment........... 327,037 299,786 310,871 291,562 259,086
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or is based upon
reports and other documents on file with the Commission or
10
otherwise publicly available. Although neither Purchaser nor Parent have any
knowledge that would indicate that any statements contained herein based upon
such reports and documents are untrue, neither Purchaser nor Parent takes any
responsibility for the accuracy or completeness of the information contained
in such reports and other documents or for any failure by the Company to
disclose events that may have occurred and may affect the significance or
accuracy of any such information but that are unknown to Purchaser or Parent.
Certain Projections
The Company does not, as a matter of course, make public any forecasts as
to its future financial performance. However, in connection with Xxxxxx's
review of the transactions contemplated by the Offer and the Merger, the
Company has provided Parent with certain nonpublic information concerning the
Company and its subsidiaries. Such information included, among other things,
the Company's projections of consolidated net revenues, operating expenses,
income before income taxes, net income and earnings per share for the Company
for the fiscal years 1999 through 2002. Set forth below is a summary of such
projections. These projections should be read together with the financial
statements of the Company referred to herein.
Fiscal Year Ended December 31,
---------------------------------------------------
1999 2000 2001 2002
------------ ------------ ------------ ------------
(Amounts in Thousands, Except Per Share Amounts)
Net Revenue............. $ 528,323 $ 595,000 $ 656,000 $ 723,000
Operating Expenses:
Terminal.............. 296,266 333,000 361,000 389,000
Selling, general and
administration....... 157,908 174,000 190,000 207,000
Income before Income
Taxes.................. 80,746 96,300 115,700 141,000
Net Income.............. 51,025 60,800 72,800 88,800
Earnings per Share:
Basic................. 1.52 1.81 2.17 2.64
Diluted............... 1.50 1.79 2.15 2.62
The foregoing projections were prepared solely for internal use and not
with a view to public disclosure or compliance with the published guidelines
of the Commission or the American Institute of Certified Public Accountants
regarding projections and were not prepared with the assistance of, or
reviewed by, independent accountants. Such projections are included by
Purchaser in this Offer to Purchase solely because such information was
furnished to Parent and Purchaser by the Company. The projections were not
prepared in accordance with generally accepted accounting principles and were
not audited or reviewed by any independent accounting firm, nor did any such
firm perform any other services with respect thereto. While presented with
numerical specificity, the projections are based on a variety of assumptions
relating to the businesses of the Company, industry performance, general
business and economic conditions, and other matters which are inherently
subject to significant uncertainties and contingencies, many of which are
beyond the Company's control and are not capable of precise prediction. These
assumptions involve judgments with respect to, among other things, future
economic and competitive conditions, inflation rates and future business
conditions. Therefore, such projections are inherently imprecise and there can
be no assurance that they will prove to be reliable. Also, actual future
results may vary materially from those shown in the projections. None of
Parent, Purchaser, the Company, Xxxxxx Xxxxxxx or Deutsche Bank is under any
obligation to or has any intention to update the projections at any future
time and the inclusion of such projected information in this Offer to Purchase
should not be regarded as a representation by any such persons that such
projected outcomes will be achieved.
11
Certain Information Concerning Parent and Purchaser
General
Parent is a German corporation with its principal offices located at
Xxxxxxxx-xxx-Xxxxxxx-Xxx. 0, 00000 Xxxx, Xxxxxxx. Parent is Europe's largest
postal company and is principally engaged in letter services and logistics.
Parent's principal business involves the transportation of letters and parcels
up to 31.5 kg. In addition to providing letter and parcel services, Parent
provides its customers with an array of global logistics services, including
warehousing and distribution services and freight forwarding.
Purchaser is a Delaware corporation with its principal offices located at
Xxxxxxxx-xxx-Xxxxxxx-Xxx. 0, 00000 Xxxx, Xxxxxxx. Purchaser is a wholly-owned
subsidiary of Parent. Purchaser was organized on November 12, 1999 and has not
carried on any activities other than in connection with the Merger Agreement.
The name, citizenship, business address, principal occupation or employment
and five-year employment history for each of the directors and executive
officers of Parent and Purchaser and certain other information are set forth
in Schedule I hereto.
The consolidated financial statements of Deutsche Post AG were prepared in
accordance with the accounting rules of the German Commercial Code (sections
290ff), and are published in German Deutsche Marks ("DM").
DEUTSCHE POST AG
SELECTED CONSOLIDATED FINANCIAL DATA
Year Ended December 31,
-----------------------------------
1998(1)
in U.S.
Dollars 1998 1997 1996
------- -------- -------- --------
(Amounts in Millions)
Income Statement Data:
Net sales................................. $17,210 DM28,689 DM27,640 DM27,469
Operating income.......................... 765 1,276 758 643
Net income................................ 190 318 (402) 393
Balance Sheet Data:
Current assets............................ $ 5,262 DM8,771 DM5,081 DM3,859
Total assets.............................. 14,845 24,747 22,374 20,455
Long-term debt (including current
portion)................................. 1,640 2,734 3,032 3,579
Shareholder's equity...................... 3,244 5,408 6,141 5,721
--------
(1) DM amounts have been translated into U.S. Dollars using the December 31,
1998 exchange rate of $1.00 = DM1.6670.
For the six months ended June 30, 1999, Parent had net sales of DM19,742
million ($11,843 million), operating income of DM982 million ($589 million)
and net income of DM424 million ($254 million). DM amounts for the six months
ended June 30, 1999 have been translated into U.S. Dollars using the December
31, 1998 exchange rate of $1.00 = DM1.6670.
12
The following table sets forth, for the periods and dates indicated,
certain information concerning the exchange rate between DM and U.S. Dollars
based on the noon buying rate in The City of New York for cable transfers in
DM, as certified for customs purposes by the Federal Reserve Bank of New York
(the "Noon Buying Rate") (expressed as DM per U.S. Dollar). For the period
starting on January 1, 1999, the table reflects the conversion of the Noon
Buying Rate for Euro to DM at the legally fixed conversion rate of (Euro)1.00
= DM1.95583. From January 1, 1999, upon the introduction of the Euro, until
December 31, 2001, Germany and each other country which is part of the
European Monetary Union may use two currencies (the Euro and its local
currency). During this transitional period, the exchange rate between Euro and
DM is legally fixed at the exchange rate stated above. On January 1, 2002, DM
will cease to exist.
DM per U.S. Dollar
---------------------------------
Period-end Average
Calendar Year Rate Rate (1) High Low
------------- ---------- -------- ------ ------
1996....................................... 1.5387 1.5070 1.5835 1.4354
1997....................................... 1.7991 1.7394 1.8810 1.5413
1998....................................... 1.6670 1.7588 1.8542 1.6060
1999 (through November 12, 1999)........... 1.8961 1.8354 1.9290 1.6558
--------
(1) The average of the Noon Buying Rate on the last business day of each full
month during the relevant period with the exception of 1999 which is the
average of the last business day of each month and the average of each
business day thereafter.
Except as described in this Offer to Purchase, (i) none of Parent,
Purchaser nor, to the best knowledge of Parent and Purchaser, any of the
persons listed in Schedule I to this Offer to Purchase or any associate or
majority-owned subsidiary of Parent or Purchaser or any of the persons so
listed beneficially owns or has any right to acquire, directly or indirectly,
any Shares and (ii) none of Parent, Purchaser nor, to the best knowledge of
Parent and Purchaser, any of the persons or entities referred to above nor any
director, executive officer or subsidiary of any of the foregoing has effected
any transaction in the Shares during the past 60 days.
Except as provided in the Merger Agreement or as otherwise described in
this Offer to Purchase, none of Parent, Purchaser nor, to the best knowledge
of Parent and Purchaser, any of the persons listed in Schedule I to this Offer
to Purchase, has any contract, arrangement, understanding or relationship with
any other person with respect to any securities of the Company, including, but
not limited to, any contract, arrangement, understanding or relationship
concerning the transfer or voting of such securities, finder's fees, joint
ventures, loan or option arrangements, puts or call, guarantees of loans,
guarantees against loss, guarantees of profits, division of profits or loss or
the giving or withholding of proxies.
Except as set forth in this Offer to Purchase, since January 1, 1996, none
of Parent, Purchaser nor, to the best knowledge of Parent and Purchaser, any
of the persons listed on Schedule I hereto, has had any business relationship
or transaction with the Company or any of its executive officers, directors or
affiliates that is required to be reported under the rules and regulations of
the Commission applicable to the Offer. Except as set forth in this Offer to
Purchase, since January 1, 1996, there have been no contracts, negotiations or
transactions between Parent or any of its subsidiaries or, to the best
knowledge of Parent, any of the persons listed in Schedule I to this Offer to
Purchase, on the one hand, and the Company or its affiliates, on the other
hand, concerning a merger, consolidation or acquisition, tender offer or other
acquisition of securities, an election of directors or a sale or other
transfer of a material amount of assets.
Source and Amount of Funds
The total amount of funds required by Purchaser to purchase Shares pursuant
to the Offer and the Merger is estimated to be approximately $1.14 billion.
Purchaser will obtain such funds from Parent. Parent will obtain such funds
from its general corporate funds, and if necessary, by drawing upon three of
Parent's committed lines of credit at three German banks. Such lines of credit
total approximately $1.46 billion. There are no conditions to drawdown under
such lines of credit which Xxxxxx believes will not be satisfied at or prior
to the Expiration
13
Date. Parent expects that any such borrowings would be repaid from general
corporate funds or from proceeds of further borrowings (the interest rates and
other terms of which would depend upon market conditions and other factors
prevailing at such time or times as such borrowings are made).
By credit confirmation dated April 20, 1999, Bayerische Landesbank
Girozentrale extended to Parent a credit line in the amount of DM 1.5 billion.
This line of credit is unsecured and is available to Parent until April 19,
2000 with interest rates to be determined at the time of borrowing.
By agreement dated June 2, 1999 between Parent and Westdeutsche Landesbank
Girozentrale, London Branch ("WestLB"), WestLB extended to Parent a credit
line of (Euro)150 million. This line of credit is unsecured and is available
to Parent until June 1, 2000 with interest rates to be determined at the time
of borrowing.
By credit confirmation dated November 15, 1999, Deutsche Postbank AG
extended to Parent a credit line in the amount of DM 1 billion. This line of
credit is unsecured and is available to Parent until November 15, 2000 and
provides for loans with fixed or floating rates of interest to be determined
at the time of borrowing.
Background of the Offer; Past Contacts or Negotiations with the Company
Interested in expanding its international freight forwarding operations,
Parent, through its Swiss subsidiary Danzas Holding Ltd. ("Danzas"), began in
January of 1999 to investigate possible acquisitions of freight forwarding
companies. Shortly thereafter, representatives of the Danzas Intercontinental
Business Unit, contacted representatives of the Company to express Xxxxxx's
interest in a possible strategic transaction with the Company. (All references
to Parent in this section shall include Danzas.)
At approximately the same time, as a result of increasing competition and
consolidation in the industry in which the Company's business is conducted,
the Company Board had been actively studying the Company's strategic position,
near and long-term prospects and as a result began reviewing its strategic
alternatives, including alternatives to remaining an independent company, in
order to increase stockholder value.
In April of 1999, a meeting of the Company Board was held at which it was
announced that four unrelated third parties, one of which was Parent, had
contacted the Company to express an interest in pursuing a strategic
transaction with the Company. Representatives of Xxxxxx Xxxxxxx attended the
meeting and Xxxxxx Xxxxxxx was retained to advise the Company Board in
connection with pursuing its strategic alternatives. The Company Board
authorized Xxxxxx Xxxxxxx to approach each of the four parties and assess
their level of interest in entering into a strategic transaction with the
Company. Xxxxxx Xxxxxxx proceeded to contact these four parties and forwarded
to each interested party public information regarding the Company. Parent
expressed the greatest level of interest in exploring a strategic transaction
with the Company.
During the period from June through July of 1999, senior management from
the Company and Parent engaged in preliminary discussions regarding a possible
strategic transaction, including an acquisition of the Company by Parent. The
parties discussed each other's growth strategies and issues relating to
integrating their respective businesses, including systems compatibility,
potential revenue losses and likely synergies.
In anticipation of conducting a financial, legal and other due diligence
review of the Company, Xxxxxx executed a confidentiality and standstill
agreement dated as of July 12, 1999.
On August 2, 1999, senior officers of the Company and Parent and
representatives from Xxxxxx Xxxxxxx met. At that meeting, the Company provided
to Parent certain confidential information regarding the Company and its
business, and the parties discussed the possibility of a strategic
transaction.
Throughout August of 1999, Parent, together with representatives of the
management consulting firm McKinsey & Company ("McKinsey") and representatives
of Deutsche Bank, Parent's financial advisor, analyzed the Company, its
activities and its prospects as a potential acquisition candidate.
14
During August and September of 1999, Parent met with its financial and
legal advisors to discuss various alternatives for a strategic transaction
with the Company, including the purchase of a minority stake in the Company,
the purchase of 51% of the Company and a 100% acquisition of the Company.
During the months of September and October of 1999, executive officers of
the Company met with representatives of Parent on several occasions to further
discuss the possibility of a strategic transaction and to allow Parent to
conduct certain basic business due diligence concerning the Company.
On September 24, 1999, a meeting was held between senior officers of the
Company and senior officers of Parent. At this meeting, Xx. Xxxxxxx Xxxxxxx,
Chairman of the Company Board, informed Xx. Xxxxx Xxxxxxxxx, Chairman of
Parent's Management Board, that the Company Board was of the belief that a
100% acquisition would create the greatest value for the Company's
stockholders.
In meetings on October 14 and 15, 1999, Parent communicated to the Company
a preliminary indication of interest to acquire the Company at a price of $29
per Share, subject to completion of business, legal and other due diligence,
negotiation of a satisfactory definitive acquisition agreement and receipt of
Parent Supervisory Board approval. The Company indicated to Parent that the
proposed price of $29 per Share was unsatisfactory to the Company. However, on
the understanding that Parent would be prepared to increase its indication of
interest above $29 per Share, the Company agreed to permit Parent to continue
its due diligence review in order to better evaluate the Company.
From October 18 to October 20, 1999, additional commercial due diligence
took place. Senior management of the Company briefed senior management of
Parent on the Company's business and current and future growth strategies.
On October 21, 1999, Xxxxxx communicated to the Company a revised
preliminary indication of interest at $31 per Share, subject to completion of
business, legal and other due diligence, negotiation of a satisfactory
definitive acquisition agreement and receipt of Parent Supervisory Board
approval.
On October 22, 1999, the Company Board held a special meeting to review the
revised preliminary indication of interest and, after consideration and
consultation with Xxxxxx Xxxxxxx, indicated that the revised price was
inadequate.
On November 2, 1999, Parent communicated to the Company a revised
preliminary indication of interest at $33 per Share, subject to completion of
business, legal and other due diligence, negotiation of a satisfactory
definitive acquisition agreement, and receipt of Parent Supervisory Board
approval.
On November 3, 1999, the Company Board held a special meeting (i) approving
the continued due diligence by Xxxxxx and (ii) authorizing the Company's
representatives to negotiate with representatives of Parent to determine
whether a mutually satisfactory agreement could be reached. Due diligence by
and negotiations with representatives of Parent continued through November 13,
1999.
On November 8, 1999, the Company signed an exclusivity agreement in which
the Company confirmed it had ceased all discussions and negotiations with
other parties and, subject to certain exceptions, agreed to negotiate
exclusively with Parent until November 15, 1999.
Between November 4 and November 12, Parent and its legal, financial, tax,
and benefits advisors conducted extensive due diligence of the Company. During
the same time period, the Company, Xxxxxxxx & Xxxxxxxx, the Company's counsel,
Parent and Xxxxx Xxxx & Xxxxxxxx, Xxxxxx's counsel, reviewed and negotiated
the terms of a definitive merger agreement.
15
On November 13, 1999, Xxxxxx's Supervisory Board met to discuss the
proposed transaction and a draft of the Merger Agreement. At the conclusion of
the meeting, the Supervisory Board approved the Merger Agreement and the
transactions contemplated thereby.
On November 13, 1999, the Company Board held a special telephonic meeting
to review the terms of the proposed transaction and a draft of the Merger
Agreement. The Company Board, after analyzing the Company's current position
and analyzing and reviewing the Offer and the Merger Agreement, unanimously
approved the Merger Agreement and the transactions contemplated thereby and
unanimously recommended that all of the Company's stockholders accept the
Offer and tender their Shares pursuant to the Offer and approve the Merger
Agreement.
The Merger Agreement was executed by the parties on November 14, 1999, and
publicly announced by both parties on November 15, 1999.
The Merger Agreement; Other Arrangements
The Merger Agreement
The following is a summary of the material provisions of the Merger
Agreement, a copy of which is filed as an exhibit to the Tender Offer
Statement on Schedule 14D-1 filed by Parent and Purchaser pursuant to Rule
14d-3 of the General Rules and Regulations under the 1934 Act with the
Commission in connection with the Offer (the "Schedule 14D-1"). The summary is
qualified in its entirety by reference to the Merger Agreement.
The Offer
The Merger Agreement provides for the making of the Offer. The obligation
of Purchaser to accept for payment and pay for Shares tendered pursuant to the
Offer is subject to the satisfaction or waiver of the Minimum Condition and
certain other conditions that are described in "Certain Conditions of the
Offer." Pursuant to the Merger Agreement, Purchaser may waive any condition to
the Offer or change any of the terms or conditions of the Offer, except that,
without the prior written approval of the Company, Purchaser may not reduce
the cash price per Share, change the form of consideration to be paid in the
Offer, reduce the number of Shares to be purchased, increase the minimum
number of Shares which must be tendered to satisfy the Minimum Condition,
impose additional conditions to the Offer, or otherwise amend the terms of the
Offer in a manner that is materially adverse to the stockholders of the
Company.
For information concerning directors of the Company prior to consummation
of the Merger, see "Purpose of the Offer; Plans for the Company."
Directors
The Merger Agreement provides that effective upon the acceptance for
payment of Shares, Parent shall be entitled, subject to applicable law, to
designate the number of directors, rounded up to the next whole number, on the
Company Board that equals the product of (i) the total number of directors on
the Company Board and (ii) the percentage that the number of votes represented
by Shares beneficially owned by Parent (including Shares accepted for payment
pursuant to the Offer) bears to the total number of votes represented by
Shares then outstanding. The Company has agreed promptly to take all action
(including, without limitation, increasing the number of Directors and
securing the resignations of incumbent directors) necessary to cause Xxxxxx's
designees to be elected or appointed to the Company Board.
If Parent exercises its right to designate directors, Parent currently
intends to designate one or more of the persons listed on Schedule I(C) hereto
to serve as directors of the Company. The foregoing and certain other
information contained in this Offer to Purchase and Schedule I hereto and in
the Schedule 14D-9 being mailed to stockholders herewith are being provided in
accordance with the requirements of Section 14(f) of the 1934 Act and Rule
14f-1 thereunder.
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The Merger Agreement provides that if Xxxxxx's designees are elected to the
Company Board, the Company Board shall have, until the Effective Time, at
least two directors who are directors as of the date hereof and who are not
officers or affiliates of the Company, Parent or any of their respective
subsidiaries (the "Independent Directors"). In such case, any amendment or
termination of the Merger Agreement by the Company, or any waiver by the
Company of any obligation of Parent or Purchaser, may be effected only by the
action of a majority of the Independent Directors.
Stock Options
Upon consummation of the Offer, the options to purchase Shares ("Stock
Options") outstanding under the Company's stock option and other compensation
plans, whether or not then vested or exercisable, shall automatically be
converted into the right to receive cash in an amount equal to (i) the excess
of the Merger Consideration over the exercise price per Share provided in such
Stock Option, multiplied by (ii) the number of Shares subject to such Stock
Option.
The Merger
The Merger Agreement provides that as promptly as practicable after all
conditions to the Merger set forth therein have been satisfied or, to the
extent permitted thereunder, waived, but in no event later than two business
days thereafter, Purchaser will be merged into the Company in accordance with
Delaware Law. As a result of the Merger, the separate existence of Purchaser
will cease, and the Company will continue as the Surviving Company.
Pursuant to the Merger, each Share outstanding immediately prior to the
Effective Time (other than Shares beneficially owned by Xxxxxx and Shares held
by the Company in treasury) will be converted into the right to receive the
Merger Consideration except as described below. Stockholders who perfect their
right to appraisal of their Shares under Delaware Law shall be entitled to the
amounts determined pursuant to such proceedings. See "Purpose of the Offer;
Plans for the Company."
Representations and Warranties
The Merger Agreement contains customary representations and warranties of
the parties thereto, including representations by the Company as to its
corporate existence and power, capitalization, corporate authorizations,
subsidiaries, Commission filings, financial statements, absence of certain
changes (including any change or effect that, individually or in the
aggregate, is or could reasonably be expected to be materially adverse to the
business, assets, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, other than those changes
in economic or financial conditions generally or affecting the freight
forwarding and global logistics industries generally (a "Material Adverse
Effect"), absence of undisclosed material liabilities, government
authorizations, no violations, absence of litigation, compliance with laws,
employee matters, labor matters, certain contracts, taxes, intellectual
property, brokers, antitakeover statutes, year 2000 compliance, proxy
statement information, recommendation documents and customs broker licenses
and approvals.
Covenants
The Merger Agreement contains various customary covenants of the parties
thereto. A description of certain of these covenants follows:
Conduct of Business. Prior to the date on which Xxxxxx's designees
constitute a majority of the Company Board (the "Control Date") or earlier
termination of the Merger Agreement, except as otherwise set forth in the
Merger Agreement, neither the Company nor any of its subsidiaries will
directly or indirectly do any of the following without Parent's prior written
consent, which shall not unreasonably be withheld:
(i) amend or otherwise change its certificate of incorporation or by-
laws;
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(ii) issue, sell, pledge, dispose of or encumber, any of its capital
stock or any options, warrants, convertible securities or other rights of
any kind to acquire any capital stock (except for the issuance of Shares
pursuant to Stock Options outstanding as of the date of the Merger
Agreement);
(iii) sell, lease, license or otherwise dispose of or encumber any
assets except (a) in the ordinary course of business consistent with past
practice or (b) obsolete, worthless, or immaterial assets not in excess of
$1,000,000 in the aggregate;
(iv) (a) declare, set aside, or pay any dividend except for a dividend
declared and paid by a subsidiary to the Company, (b) split, combine or
reclassify any class of capital stock or issue or authorize or propose the
issuance of any other securities in substitution for shares of its capital
stock or (c) amend the terms of, or repurchase, redeem or otherwise acquire
any securities of the Company or any subsidiary, except for repurchases of
the capital stock of any subsidiaries in accordance with contractual
obligations entered into in connection with joint ventures which were
entered into in the ordinary course of business consistent with past
practice;
(v) (a) acquire any company, corporation, partnership, or other business
organization or division thereof or acquire a material amount of stock or
assets of any other person, (b) incur any indebtedness for borrowed money
or issue any debt securities (except in the ordinary course and in amounts
less than $2,000,000 in the aggregate) or assume, guarantee, endorse or
otherwise become responsible for the obligations of any person (other than
guarantees of indebtedness of a wholly-owned subsidiary of the Company), or
make any loans or advances, except in the ordinary course of business
consistent with past practice and in amounts not in excess of $1,000,000 in
the aggregate, (c) enter into or amend any material contract except in the
ordinary course of business and only in a manner that does not have a
Material Adverse Effect, or (d) authorize any new capital expenditures or
purchase of fixed assets except in the ordinary course of business
consistent with past practice and in amounts not in excess of $5,000,000 in
the aggregate;
(vi) increase the compensation payable to its officers or employees,
except for increases in salary or wages of employees who are not officers
of the Company in the ordinary course of business and not in excess of 5%
of the aggregate annual salary or wages of all such employees, or grant any
new severance or termination pay to, or enter into any new employment or
severance agreement with any director, officer or employee or establish,
adopt or enter into or amend any collective bargaining, bonus, profit
sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or
other plan, agreement, trust, fund, policy or arrangement for the benefit
of any current or former directors, officers or employees, except, in each
case, as may be required by law, and except that the foregoing shall not
restrict the routine hiring of new lower level personnel in the ordinary
course of business consistent with past practice, immaterial changes in
policies affecting the workplace generally, or any of the foregoing
restrictions not including officers or directors of the Company that will
not, in the aggregate, increase the obligations of the Company thereunder
by more than $150,000;
(vii) change accounting policies or procedures, except for changes which
may be required under United States generally accepted accounting
principles or pursuant to Commission rules or regulations;
(viii) make any material tax election inconsistent with past practices
or settle or compromise any material federal, state, local or foreign tax
liability or agree to an extension of a statute of limitations;
(ix) pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise) other than in the ordinary course of business consistent with
past practice of liabilities reflected or reserved against in the financial
statements included in its Commission filings or incurred in the ordinary
course of business and consistent with past practice; or
(x) take or agree to take any of the actions described above, or any
action which would make any of the representations or warranties of the
Company contained in the Merger Agreement untrue or incorrect in any
material respect or prevent the Company from performing or cause the
Company not to perform its covenants under the Merger Agreement in any
material respect.
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No Solicitation. Prior to the Control Date or earlier termination of the
Merger Agreement, the Company and its subsidiaries shall not, and shall cause
their officers, directors, employees, investment bankers, attorneys,
accountants, or other representatives not to, directly or indirectly, (i)
initiate, solicit or encourage the making, submission or announcement of any
Alternative Transaction (as hereinafter defined) (ii) take any other action
intended to facilitate any inquiries or the making of any proposal to effect
an Alternative Transaction, (iii) approve, endorse or recommend any
Alternative Transaction, (iv) enter into any letter of intent or similar
document or contract contemplating or otherwise relating to any Alternative
Transaction, (v) enter into discussions or negotiate with or disclose any
nonpublic information relating to the Company or any of its subsidiaries to
any person regarding an Alternative Transaction, or (vi) grant any waiver or
release under any standstill or similar agreement with respect to any class of
equity securities of the Company or any of its subsidiaries. The Company will
notify Parent promptly (but in no event later than 48 hours) after receipt by
the Company of any Alternative Transaction, any indication that any person is
considering proposing an Alternative Transaction or any request for nonpublic
information relating to the Company or any of its subsidiaries. The Company
shall identify the person proposing, and the terms and conditions of, any such
Alternative Transaction, indication or request and shall keep Parent fully
informed, on a current basis, of the status and details of any such
Alternative Transaction or request. Nothing contained in the Merger Agreement
shall prevent the Company Board from complying with Rule 14e-2 under the 1934
Act with respect to any Alternative Transaction.
Notwithstanding the foregoing, the Company Board is permitted to furnish
nonpublic information to, or enter into discussions or negotiations with, any
person in response to a Superior Proposal if (i) the Company has complied in
all material respects with the foregoing provisions of the "No Solicitation"
covenant, (ii) the Company Board determines in good faith, based on advice of
outside legal counsel, that it is reasonably likely that the failure to
consider the Superior Proposal would constitute a breach of its fiduciary
duties under applicable law, (iii) such person enters into a confidentiality
agreement with the Company with terms no less favorable to the Company than
those contained in the Confidentiality Agreement, and (iv) the Company shall
have given Parent written notice of the identity of such person and of the
Company's intention to take such action.
The Company Board shall be permitted to withdraw, or modify in a manner
adverse to Parent, its recommendation that the stockholders accept the Offer
and approve the Merger, if (i) the Company has complied in all material
respects with the foregoing provisions of the "No Solicitation" covenant, (ii)
a Superior Proposal is pending at the time the Company Board determines to
take such action, (iii) the Company Board determines in good faith, based on
advice of outside legal counsel, that it is reasonably likely that the failure
to do so would constitute a breach of its fiduciary duties under applicable
law, and (iv) the Company shall have delivered to Parent a prior written
notice advising Parent that it intends to take such action.
"Alternative Transaction" means any inquiry, proposal or offer for, or any
indication of interest in (other than the transactions contemplated by the
Merger Agreement) among other things, any merger, consolidation, amalgamation,
share exchange, business combination, issuance of securities, acquisition of
securities, tender offer, exchange offer or other similar transaction
involving (i) the Company or any subsidiary or the capital stock of the
Company, (ii) the acquisition of more than 15% of the Company's business or
assets, or more than 15% of the outstanding securities of any class of voting
securities of the Company or any of its subsidiaries, or (iii) any liquidation
or dissolution of the Company or any material subsidiary.
"Superior Proposal" means a bona fide, unsolicited, written proposal for an
Alternative Transaction on terms and conditions that the Company Board
determines, in its good faith judgment, based on advice of a financial advisor
of nationally recognized reputation, and taking into account all the terms and
conditions of the Alternative Transaction, is more favorable to the Company's
stockholders than the transaction contemplated in the Merger Agreement (after
giving effect to any changes to the Merger Agreement and the Offer as may be
proposed by Parent in response to the Alternative Transaction), and for which
financing, to the extent required, is then fully committed or reasonably
determined to be available by the Company Board.
Company Stockholders' Meeting. If required by Delaware Law, the Company
shall call and hold a meeting of its stockholders (the "Company Stockholders'
Meeting") promptly following consummation of the Offer for
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the purpose of voting upon the approval of the Merger Agreement. If requested
by Parent, the Company shall use its reasonable best efforts to solicit from
its stockholders proxies in favor of the approval of the Merger Agreement. At
any such meeting all outstanding Shares then owned by Parent or any of its
affiliates shall be voted in favor of approval of the Merger.
Consents; Approvals. The Company and Parent agree to use their reasonable
efforts to obtain all consents and approvals (including all governmental and
regulatory approvals) and to make all filings (including all governmental or
regulatory filings) required in connection with the transactions contemplated
by the Merger Agreement.
Employees, Employee Benefits. The Merger Agreement contains certain
covenants relating to the treatment of employees of the Company after
consummation of the Offer. These include the continuation for one year of
benefits in the aggregate no less favorable than the level in effect
immediately prior to the consummation of the Offer; continuation of certain
compensation plans and insurance coverage for certain members of senior
management for specified time periods following consummation of the Offer; an
agreement to honor all employment, severance, change of control and other
compensation arrangements disclosed in the Merger Agreement; and payment of
severance benefits at specified levels to employees not covered by statutory
or contractual arrangements whose employment is terminated other than for
cause within 120 days following the Effective Time.
Indemnification and Insurance. After the Effective Time, the Surviving
Company shall indemnify and hold harmless each present and former director or
officer of the Company from liabilities for acts or omissions occurring at or
prior to the Effective Time to the fullest extent permitted under applicable
law and the Company's certificate of incorporation and bylaws and shall assume
any indemnification agreements of the Company in effect as of the date of the
Merger Agreement. The Surviving Company shall also advance expenses, as
incurred, to the fullest extent permitted under applicable law or any
applicable indemnification agreement.
In addition, the Merger Agreement provides that for seven years after the
Effective Time, the Surviving Company shall provide directors' and officers'
liability insurance covering acts or omissions occurring prior to the
Effective Time with respect to those persons who are currently covered by the
Company's directors' and officers' liability insurance policy on terms with
respect to coverage and amounts no less favorable than those of such policy in
effect as of the date of the Merger Agreement, provided that in satisfying
this obligation the Surviving Company shall not be obligated to pay more than
$300,000.
Conditions to the Merger
The obligations to consummate the Merger are subject to the satisfaction of
the following conditions:
(i) if required by Delaware Law, the approval of the Merger Agreement by
the stockholders of the Company in accordance with such law;
(ii) no injunction, order, decree, ruling, statute, rule, or regulation
shall prohibit consummation of the Merger; and
(iii) Purchaser shall have purchased Shares pursuant to the Offer.
Termination
The Merger Agreement may be terminated at any time prior to the Effective
Time, notwithstanding approval of the Merger Agreement by the stockholders of
the Company:
(i) prior to the consummation of the Offer by mutual written consent of
Parent and the Company;
(ii) by either Parent or the Company, if the Offer shall not have been
consummated by March 31, 2000 (provided that the right to terminate shall
not be available to any party whose failure to fulfill any obligation under
the Merger Agreement has caused or resulted in the failure of the Offer to
occur on or before such date);
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(iii) by either Parent or the Company, if any statute, rule or
regulation makes consummation of the Offer or the Merger illegal or
otherwise prohibited, or any final nonappealable judgment, injunction,
order or decree of any court or governmental body having competent
jurisdiction enjoins the Offer or the Merger; provided, however, that the
party seeking to terminate the Merger Agreement pursuant to this clause
shall have used commercially reasonable best efforts to remove any such
judgment, injunction, order or decree;
(iv) by Parent, if prior to the purchase of any Shares pursuant to the
Offer:
(a) the Company Board shall have failed to recommend or withdrawn or
materially modified in a manner adverse to Parent its approval
or recommendation of the Offer and the Merger;
(b) the Company shall have entered into, or shall have publicly
announced its intention to enter into, an agreement with respect
to any Superior Proposal; or
(c) any person other than Parent and its subsidiaries shall have
acquired, directly or indirectly, beneficial ownership of at least
a majority of the Shares outstanding;
(v) by the Company, if, prior to the consummation of the Offer, (a) the
Company notifies Parent in writing at least 72 hours prior to such termination
that it intends to enter into an agreement with respect to a Superior
Proposal, attaching the most current version of such agreement (or a
description of all material terms and conditions thereof), provided the
Company has complied in all material respects with the provisions of the "No
Solicitation" covenant described above; (b) Parent does not make, within 72
hours after receipt of the Company's notification, an offer that the Company
Board determines, in good faith based on the advice of a financial advisor of
nationally recognized reputation, and taking into account all the terms and
conditions of such offer, is at least as favorable to the Company's
stockholders as the Superior Proposal (it being understood that the Company
shall not enter into any binding agreement regarding such Superior Proposal
during such 72-hour period) and (c) prior to or simultaneously with such
termination, the Company makes payment to Parent of the amounts payable
pursuant to the Merger Agreement. See "The Merger Agreement; Other
Arrangements--Fees and Expenses"; or
(vi) by the Company, if the Offer has not been consummated by February
15, 2000 as a result of a breach by Parent or Purchaser of any of their
representations and warranties or covenants such that Parent and Purchaser
are unable to perform their obligations under the Merger Agreement after
the conditions to their obligations have been satisfied (but for those
conditions which are not satisfied due to or resulting from the facts
constituting such breach) and the Company is not in material breach of any
of its representations and warranties or covenants set forth in the Merger
Agreement.
If the Merger Agreement is terminated, it will become void and there shall
be no liability on the part of the Company, Parent or the Purchaser, except
(i) for certain fees and expenses payable pursuant to the Merger Agreement
(see "The Merger Agreement; Other Arrangements--Fees and Expenses"), (ii) as
provided pursuant to the Confidentiality Agreement and under certain other
provisions of the Merger Agreement that shall survive termination, and (iii)
no such termination shall relieve any party from liability for any willful
breach of the Merger Agreement.
Fees and Expenses
Except as otherwise specified in the following sentence, all costs and
expenses incurred in connection with the Merger Agreement and the transactions
contemplated thereby shall be paid by the party incurring such cost or
expense.
The Merger Agreement provides that the Company shall pay to Parent in
immediately available funds (i) an amount equal to $23 million prior to or
simultaneously with the termination of the Merger Agreement pursuant to
subparagraphs (iv) and (v) under "The Merger Agreement; Other Arrangements--
Termination," and (ii) $2,000,000 as liquidated damages if the Offer shall not
have been consummated as a result of a material breach by the Company of its
representations and warranties set forth in the Merger Agreement, provided
that such breach existed as of the date of the Merger Agreement and provided
further that all of the other conditions to the
21
Offer shall have been satisfied (but for those conditions which are not
satisfied due to or resulting from the facts constituting such breach) and
Parent and the Purchaser are not in material breach of any of their
representations and warranties or covenants set forth in the Merger Agreement.
Amendments and Waivers
Any provision of the Merger Agreement may be amended or waived prior to the
Effective Time, but only if such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to the Merger Agreement or,
in the case of a waiver, by each party to be bound thereby; provided, however,
that after approval of the Merger Agreement by the stockholders of the Company
no amendment may be made which by law requires further approval by such
stockholders without such further approval.
Confidentiality Agreement
On July 12, 1999, Danzas and the Company entered into a Confidentiality
Agreement (the "Confidentiality Agreement") containing customary provisions
pursuant to which, among other matters, Danzas and its affiliates agreed to
keep confidential all nonpublic, confidential or proprietary information
furnished to it by the Company relating to the Company, subject to certain
exceptions (the "Information"), and to use the Information solely in
connection with evaluating a possible transaction involving the Company and
Danzas. For a period of three years from the date of the Confidentiality
Agreement, Xxxxxx has agreed to certain restrictions on its ability to acquire
or to offer to acquire Shares or take certain other actions, without the prior
written consent of the Company or the Company Board. Xxxxxx further agreed
that, prior to September 7, 2002, it would not, directly or indirectly,
solicit for employment or hire any employee of the Company or any of its
subsidiaries with whom Xxxxxx has had contact or who became known to Danzas in
connection with Danzas' consideration of a possible transaction involving
Xxxxxx and the Company, subject to certain exceptions. A copy of the
Confidentiality Agreement is filed as an Exhibit to the Schedule 14D-1 and the
foregoing summary is qualified in its entirety by reference to such agreement.
Purpose of the Offer; Plans for the Company
Purpose of the Offer
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The purpose of the Merger is to acquire all
outstanding Shares not tendered and purchased pursuant to the Offer. If the
Offer is successful, Purchaser intends to consummate the Merger as promptly as
practicable.
The Company Board has approved the Merger and adopted the Merger Agreement.
Depending upon the number of Shares purchased by Purchaser pursuant to the
Offer, the Company Board may be required to submit the Merger Agreement to the
Company's stockholders for approval at a stockholder's meeting convened for
that purpose in accordance with Delaware Law. If stockholder approval is
required, the Merger Agreement must be approved by a majority of all votes
entitled to be cast at such meeting.
If the Minimum Condition is satisfied, Purchaser will have sufficient
voting power to approve the Merger Agreement at the stockholders' meeting
without the affirmative vote of any other stockholder. If Purchaser acquires
at least 90% of the Shares pursuant to the Offer, the Merger may be
consummated without a stockholders' meeting and without the approval of the
Company's stockholders. The Merger Agreement provides that Purchaser will be
merged into the Company and that the certificate of incorporation and by-laws
of Purchaser will be the certificate of incorporation and by-laws of the
Surviving Company following the Merger provided that, at the Effective Time,
such certificate of incorporation shall be amended to provide that the name of
the corporation shall be Danzas Air Express International Corporation.
Under Delaware Law, holders of Shares do not have appraisal rights as a
result of the Offer. In connection with the Merger, however, stockholders of
the Company may have the right to dissent and demand appraisal of their Shares
under Delaware Law. Dissenting stockholders who comply with the applicable
statutory procedures
22
under Delaware Law will be entitled to receive a judicial determination of the
fair value of their Shares (exclusive of any element of value arising from the
accomplishment or expectation of the Merger) and to receive payment of such
fair value in cash. Any such judicial determination of the fair value of the
Shares could be based upon considerations other than or in addition to the
price per Share paid in the Merger and the market value of the Shares. In
Xxxxxxxxxx v. UOP, Inc., the Delaware Supreme Court stated, among other
things, that "proof of value by any techniques or methods which are generally
considered acceptable in the financial community and otherwise admissible in
court" should be considered in an appraisal proceeding. Stockholders should
recognize that the value so determined could be higher or lower than the price
per Share paid pursuant to the Offer or the consideration per Share to be paid
in the Merger. Moreover, Purchaser may argue in an appraisal proceeding that,
for purposes of such a proceeding, the fair value of the Shares is less than
the price paid in the Offer or the Merger.
In addition, several decisions by Delaware courts have held that, in
certain circumstances a controlling stockholder of a company involved in a
merger has a fiduciary duty to other stockholders which requires that the
merger be fair to such other stockholders. In determining whether a merger is
fair to minority stockholders, Delaware courts have considered, among other
things, the type and amount of consideration to be received by the
stockholders and whether there was fair dealing among the parties. The
Delaware Supreme Court stated in Xxxxxxxxxx and Xxxxxx v. Xxxxxx X. Xxxx
Chemical Corp. that the remedy ordinarily available to minority stockholders
in a cash-out merger is the right to appraisal described above. However, a
damages remedy or injunctive relief may be available if a merger is found to
be the product of procedural unfairness, including fraud, misrepresentation or
other misconduct.
Plans for the Company
Pursuant to the terms of the Merger Agreement, effective upon the
acceptance for payment of Shares pursuant to the Offer, Xxxxxx currently
intends to seek maximum representation on the Company Board, subject to the
Company's right to maintain through the Effective Time at least two directors
who are currently directors of the Company and are not officers or affiliates
of the Company, Parent or any of their respective subsidiaries. Purchaser
currently intends, as soon as practicable after consummation of the Offer, to
consummate the Merger.
In connection with its consideration of the Offer, Purchaser and Parent
have made a preliminary review, and will continue to review, on the basis of
available information, various possible business strategies that they might
consider in the event that Purchaser acquires control of the Company. Such
strategies are expected to include the integration of certain assets or lines
of business of the Company with those of Parent. Parent plans to integrate all
activities of the Company into Parent's Danzas Intercontinental Business Unit.
As a result, Parent will gain a major presence in the United States logistics
industry and Danzas will become one of the leading airfreight forwarders
worldwide. If Purchaser acquires Shares pursuant to the Offer, Purchaser and
Parent intend to continue their detailed review of the Company and its assets,
businesses, operations, properties, policies, corporate structure,
capitalization and the responsibilities and qualifications of the Company's
management and personnel and consider what changes Purchaser and Parent deem
desirable in light of the circumstances which then exist.
There have been some preliminary discussions between representatives of
Parent and senior management of the Company concerning their continued
employment with the Company. During these discussions, Parent indicated its
desire that the current senior management of the Company remain with the
Company after the consummation of the Merger. Parent did not propose or agree
to any specific arrangements as to compensation or benefits.
Upon consummation of the Merger, Xxxxxxx Xxxxxxxx, Chief Executive Officer
of the Company, will be appointed Vice Chairman of the Surviving Company by
Parent; Xxxxx Xxxxxx, Chief Executive Officer of Logistics of Parent and Chief
Executive Officer of Danzas, will be elected Chairman of the Board of the
Surviving Company by Parent; Xxxxxx Xxxxxx, head of intercontinental business
at Danzas, will be appointed Chief Executive Officer of the Surviving Company
by Parent; and Xxxxxxx X. Xxxxxxx Xx., Chairman of the Company Board, will
join the board of Danzas. Xx. Xxxxxxx shall be compensated for his attendance
at any board meetings in accordance with Danzas' practices generally for the
compensation of its directors.
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Except as described above or elsewhere in this Offer to Purchase, Purchaser
and Parent have no present plans or proposals that would relate to or result
in an extraordinary corporate transaction involving the Company or any of
their respective subsidiaries (such as a merger, reorganization, liquidation,
relocation of any operations or sale or other transfer of a material amount of
assets), any sale or transfer of a material amount of assets of the Company or
any of its subsidiaries, any change in the Company Board or management, any
material change in the Company's capitalization or dividend policy or any
other material change in the Company's corporate structure or business.
Certain Effects of the Offer
Market for the Shares
The purchase of Shares pursuant to the Offer will reduce the number of
holders of Shares and the number of Shares that might otherwise trade
publicly, which could adversely affect the liquidity and market value of the
remaining Shares held by stockholders other than Purchaser. Purchaser cannot
predict whether the reduction in the number of Shares that might otherwise
trade publicly would have an adverse or beneficial effect on the market price
for, or marketability of, the Shares or whether such reduction would cause
future market prices to be greater or less than the Offer Price.
Stock Quotation
Depending upon the number of Shares purchased pursuant to the Offer, the
Shares may no longer meet the standards for continued inclusion in the Nasdaq
National Market System. If, as a result of the purchase of Shares pursuant to
the Offer, the Shares no longer meet the criteria for continuing inclusion in
the Nasdaq National Market System, the market for the Shares could be
adversely affected. According to Nasdaq's published guidelines, the Shares
would not be eligible for continued listing if, among other things, the number
of Shares publicly held falls below 750,000, the number of beneficial holders
of Shares falls below 400 (round lot holders) or the aggregate market value of
such publicly-held Shares does not exceed $5 million. If the Shares were no
longer eligible for inclusion in the Nasdaq National Market System, they may
nevertheless continue to be included in the Nasdaq SmallCap Market unless,
among other things, the public float was less than 500,000 Shares, or there
were fewer than 300 stockholders (round lot holders) in total, or the market
value of public float was less than $1 million. If the Shares are no longer
eligible for inclusion in the Nasdaq National Market System or the Nasdaq
SmallCap Market, the Shares might still be quoted on the OTC Bulletin Board.
The extent of the public market for the Shares and the availability of such
quotations would, however, depend upon the number of holders of such Shares
remaining at such time, the interest in maintaining a market in such Shares on
the part of securities firms, the possible termination of registration of such
Shares under the 1934 Act as described below, and other factors.
Margin Regulations
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"), which has the effect, among other things, of allowing brokers to
extend credit on the collateral of the Shares. Depending upon factors similar
to those described above regarding the market for the Shares and stock
quotations, it is possible that, following the Offer, the Shares would no
longer constitute "margin securities" for the purposes of the margin
regulations of the Federal Reserve Board and therefore could no longer be used
as collateral for loans made by brokers.
Exchange Act Registration
The Shares are currently registered under Section 12(g) of the 1934 Act.
Such registration may be terminated upon application of the Company to the
Commission if the Shares are neither listed on a national securities exchange
nor held by 300 or more holders of record. Termination of registration of the
Shares under the 1934 Act would substantially reduce the information required
to be furnished by the Company to its stockholders and to the Commission and
would make certain provisions of the 1934 Act no longer applicable to the
Company, such as the short-swing profit recovery provisions of Section 16(b)
of the 1934 Act, the requirement of furnishing a proxy statement pursuant to
Section 14(a) of the 1934 Act in connection with
24
stockholders' meetings and the related requirement of furnishing an annual
report to stockholders and the requirements of Rule 13e-3 under the 1934 Act
with respect to "going private" transactions. Furthermore, the ability of
"affiliates" of the Company and persons holding "restricted securities" of the
Company to dispose of such securities pursuant to Rule 144 promulgated under
the Securities Act of 1933, as amended, may be impaired or eliminated. If
registration of the Shares under the 1934 Act were terminated, the Shares
would no longer be "margin securities" or be eligible for inclusion on the
Nasdaq National Market System. Parent and Purchaser currently intend to seek
to cause the Company to terminate the registration of the Shares under the
1934 Act as soon after consummation of the Offer as the requirements for
termination of registration are met.
Dividends and Distributions
If on or after November 15, 1999, the Company should (i) split, combine or
otherwise change the Shares or its capitalization, (ii) acquire or otherwise
cause a reduction in the number of outstanding Shares or (iii) issue or sell
any additional Shares (other than Shares issued pursuant to and in accordance
with the terms in effect on November 15, 1999 of employee stock options
outstanding prior to such date), shares of any other class or series of
capital stock, other voting securities or any securities convertible into, or
options, rights, or warrants, conditional or otherwise, to acquire, any of the
foregoing, then, without prejudice to Purchaser's rights under "Extension of
Tender Period; Termination; Amendment" and "Certain Conditions of the Offer,"
Purchaser may, in its sole discretion, make such adjustments in the purchase
price and other terms of the Offer as it deems appropriate, including the
number or type of securities to be purchased.
If, on or after November 15, 1999, the Company should declare or pay any
dividend on the Shares or any distribution with respect to the Shares
(including the issuance of additional Shares or other securities or rights to
purchase any securities) that is payable or distributable to stockholders of
record on a date prior to the transfer to the name of Purchaser or its nominee
or transferee on the Company's stock transfer records of the Shares purchased
pursuant to the Offer, then, without prejudice to Purchaser's rights under
"Extension of Tender Period; Termination; Amendment" and "Certain Conditions
of the Offer," (i) the purchase price per Share payable by Purchaser pursuant
to the Offer will be reduced to the extent of any such cash dividend or
distribution and (ii) the whole of any such non-cash dividend or distribution
to be received by the tendering stockholders will (a) be received and held by
the tendering stockholders for the account of Purchaser and will be required
to be promptly remitted and transferred by each tendering stockholder to the
Depositary for the account of Purchaser, accompanied by appropriate
documentation of transfer, or (b) at the direction of Purchaser, be exercised
for the benefit of Purchaser, in which case the proceeds of such exercise will
promptly be remitted to Purchaser. Pending such remittance and subject to
applicable law, Purchaser will be entitled to all rights and privileges as
owner of any such non-cash dividend or distribution or proceeds thereof and
may withhold the entire purchase price or deduct from the purchase price the
amount or value thereof, as determined by Purchaser in its sole discretion.
Extension of Tender Period; Termination; Amendment
Parent and Purchaser expressly reserve the right, in their sole discretion
and regardless of whether or not any of the conditions specified in "Certain
Conditions to the Offer" shall have been satisfied, (i) to extend the period
of time during which the Offer is open by giving oral or written notice of
such extension to the Depositary and by making a public announcement of such
extension; provided, that pursuant to the Merger Agreement, Parent and
Purchaser are required to extend the period during which the Offer is open, in
increments of not less than five business days but not past February 15, 2000,
if, at the earlier scheduled or any extended expiration date of the Offer, (x)
the applicable waiting period under the HSR Act shall not have expired or been
terminated, (y) the European Approval, the DOT Approval and the Exon-Xxxxxx
Provision shall not have been completed, obtained or satisfied, or (z) any
other domestic or foreign approvals, consents, filings, notifications or other
requirements of law, statute, rule or regulation necessary in connection with
the transactions contemplated by the Merger Agreement shall not have been
completed, obtained or satisfied, except for such matters as would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or materially impair the ability of Parent or Purchaser to
consummate the transactions contemplated by the Merger Agreement or to own or
exercise control over the Company and its subsidiaries following the Offer;
and (ii) to waive any of the
25
conditions to the Offer and to modify the terms and conditions of the Offer
from time in their sole discretion, provided that the prior written approval
of the Company shall be required to (i) reduce the cash price per Share to be
paid in the Offer, (ii) reduce the number of Shares to be purchased under the
Offer, (iii) change the form of consideration to be paid in the Offer, (iv)
increase the minimum number of Shares which must be tendered to satisfy the
Minimum Condition, (v) impose additional conditions to the Offer or (vi)
otherwise amend the terms of the Offer in a manner that is materially adverse
to the stockholders of the Company.
If, with the Company's consent, Purchaser decreases the percentage of
Shares being sought or increases or decreases the consideration to be paid for
Shares pursuant to the Offer and the Offer is scheduled to expire at any time
before the expiration of a period of 10 business days from, and including, the
date that notice of such increase or decrease is first published, sent or
given in the manner specified below, the Offer will be extended until the
expiration of such period of 10 business days. If Purchaser makes a material
change in the terms of the Offer (other than a change in price or percentage
of securities sought) or in the information concerning the Offer, or waives a
material condition of the Offer, Purchaser will extend the Offer, if required
by applicable law, for a period sufficient to allow the Company's stockholders
to consider the amended terms of the Offer. In a published release, the
Commission has stated that in its view an offer must remain open for a minimum
period of time following a material change in the terms of such offer and that
the waiver of a condition such as the Minimum Condition is a material change
in the terms of an offer. The release states that an offer should remain open
for a minimum of five business days from the date the material change is first
published, sent or given to security holders, and that if material changes are
made with respect to information that approaches the significance of price and
share levels, a minimum of 10 business days may be required to allow adequate
dissemination and investor response.
Purchaser also reserves the right, in its sole discretion, in the event any
of the conditions specified in "Certain Conditions to the Offer" shall not
have been satisfied and so long as Shares have not theretofore been accepted
for payment, to delay (except as otherwise required by applicable law)
acceptance for payment of or payment for Shares or, except as described above,
to terminate the Offer and not accept for payment or pay for Shares.
If Purchaser extends the period of time during which the Offer is open, is
delayed in accepting for payment or paying for Shares or is unable to accept
for payment or pay for Shares pursuant to the Offer for any reason, then,
without prejudice to Purchaser's rights under the Offer, the Depositary may,
on behalf of Purchaser, retain all Shares tendered, and such Shares may not be
withdrawn except as otherwise provided in "Withdrawal Rights." The reservation
by Purchaser of the right to delay acceptance for payment of or payment for
Shares is subject to applicable law, which requires that Purchaser pay the
consideration offered or return the Shares deposited by or on behalf of
stockholders promptly after the termination or withdrawal of the Offer.
Any extension, termination or amendment of the Offer will be followed as
promptly as practicable by a public announcement thereof. Without limiting the
manner in which Purchaser may choose to make any public announcement,
Purchaser will have no obligation (except as otherwise required by applicable
law) to publish, advertise or otherwise communicate any such public
announcement other than by making a release to the Dow Xxxxx News Service. In
the case of an extension of the Offer, Purchaser will make a public
announcement of such extension no later than 9:00 a.m., New York City time, on
the next business day after the previously scheduled Expiration Date.
Certain Conditions of the Offer
Notwithstanding any other provision of the Offer, Purchaser shall not be
required to accept for payment or pay for any Shares tendered pursuant to the
Offer and may, subject to the terms of the Merger Agreement, terminate the
Offer, if:
(i) at the Expiration Date (as it may be extended in accordance with the
terms of the Merger Agreement):
(a) the Minimum Condition has not been satisfied;
26
(b) the applicable waiting period under the HSR Act shall not have
expired or been terminated;
(c) the European Approval, the DOT Approval and the Exon-Xxxxxx
Provision shall not have been completed, obtained or satisfied; or
(d) any other domestic or foreign approvals, consents, filings,
notifications or other requirements of law, statute, rule or regulation
necessary in connection with the transactions contemplated by this
Agreement shall not have been completed, obtained or satisfied, except
for such matters as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or
materially impair the ability of Parent or Purchaser to consummate the
transactions contemplated by the Merger Agreement or to own or exercise
control over the Company and its subsidiaries following the Offer; or
(ii) at any time on or after November 15, 1999 and prior to the
acceptance for payment of Shares, any of the following conditions exist:
(a) any order, decree or injunction of a court or governmental agency
of competent jurisdiction or any law or regulation enjoins or prohibits
the consummation of the transactions contemplated by the Merger
Agreement (including the Offer or the Merger) or the ownership or
exercise of control by the Parent over the Company and its subsidiaries
following the Offer;
(b) any representations and warranties of the Company contained in
the Merger Agreement that are qualified as to materiality shall not be
true and correct and any of the representations and warranties that are
not so qualified shall not be true and correct in any material respects
on and as of the date of consummation of the Offer as if such
representations and warranties were made on and as of such date (except
where such representations and warranties are stated as of a specific
date), or the Company shall have breached the agreements and covenants
required by the Merger Agreement to be performed by it on or prior to
such date in any material respect (provided that the Company may, prior
to the expiration of the Offer, seek to cure any such breach); or
(c) the Merger Agreement shall have been terminated in accordance
with its terms.
The foregoing conditions are for the sole benefit of Parent and Purchaser
and may, subject to the terms of the Merger Agreement, be waived by Parent and
Purchaser in whole or in part at any time and from time to time in their
discretion.
Certain Legal Matters; Regulatory Approvals
General
Purchaser is not aware of any material pending legal proceeding relating to
the Offer. Based on its examination of publicly available information filed by
the Company with the Commission and other publicly available information
concerning the Company, Purchaser is not aware of any governmental license or
regulatory permit that appears to be material to the Company's business that
might be adversely affected by Purchaser's acquisition of Shares as
contemplated herein or, except as set forth below, of any approval or other
action by any government or governmental administrative or regulatory
authority or agency, domestic or foreign, that would be required for the
acquisition or ownership of Shares by Purchaser or Parent as contemplated
herein. Should any such approval or other action be required, Purchaser
currently contemplates that, except as described below under "State Takeover
Statutes", such approval or other action will be sought. There can be no
assurance that any such approval or other action, if needed, would be obtained
or would be obtained without substantial conditions or that if such approvals
were not obtained or such other actions were not taken, adverse consequences
might not result to the Company's business, or certain parts of the Company's
business might not have to be disposed of, any of which could cause Purchaser
to elect to terminate the Offer without the purchase of Shares thereunder
under certain conditions. See "Certain Conditions of the Offer."
27
State Takeover Statutes
A number of states have adopted laws which purport, to varying degrees, to
apply to attempts to acquire corporations that are incorporated in, or which
have substantial assets, stockholders, principal executive offices or
principal places of business or whose business operations otherwise have
substantial economic effects in, such states. The Company, directly or through
subsidiaries, conducts business in a number of states throughout the United
States, some of which have enacted such laws. Except as described herein,
Purchaser does not know whether any of these laws will, by their terms, apply
to the Offer or the Merger or any other business combination between Purchaser
or any of its affiliates and the Company, and has not complied with any such
laws. To the extent that certain provisions of these laws purport to apply to
the Offer or the Merger or other business combination, Purchaser believes that
there are reasonable bases for contesting such laws.
In 1982, in Xxxxx x. MITE Corp., the Supreme Court of the United States
invalidated on constitutional grounds the Illinois Business Takeover Statute
which, as a matter of state securities law, made takeovers of corporations
meeting certain requirements more difficult. However, in 1987 in CTS Corp. v.
Dynamics Corp. of America, the Supreme Court held that the State of Indiana
could, as a matter of corporate law, constitutionally disqualify a potential
acquiror from voting shares of a target corporation without the prior approval
of the remaining stockholders where, among other things, the corporation is
incorporated in, and has a substantial number of stockholders in, the state.
Subsequently, in TLX Acquisition Corp. v. Telex Corp., a Federal District
Court in Oklahoma ruled that the Oklahoma statutes were unconstitutional
insofar as they apply to corporations incorporated outside Oklahoma in that
they would subject such corporations to inconsistent regulations. Similarly,
in Tyson Foods, Inc. x. XxXxxxxxxx, a Federal District Court in Tennessee
ruled that four Tennessee takeover statutes were unconstitutional as applied
to corporations incorporated outside Tennessee. This decision was affirmed by
the United States Court of Appeals for the Sixth Circuit.
If any government official or third party should seek to apply any state
takeover law to the Offer or the Merger or other business combination between
Purchaser or any of its affiliates and the Company, Purchaser will take such
action as then appears desirable, which action may include challenging the
applicability or validity of such statute in appropriate court proceedings. In
the event it is asserted that one or more state takeover statutes is
applicable to the Offer or the Merger and an appropriate court does not
determine that it is inapplicable or invalid as applied to the Offer or the
Merger, Purchaser might be required to file certain information with, or to
receive approvals from, the relevant state authorities or holders of Shares,
and Purchaser might be unable to accept for payment or pay for Shares tendered
pursuant to the Offer, or be delayed in continuing or consummating the Offer
or the Merger. In such case, Purchaser may not be obligated to accept for
payment or pay for any tendered Shares. See "Extension of Tender Period;
Termination; Amendment" and "Certain Conditions of the Offer."
Antitrust in the United States
Under the HSR Act and the rules that have been promulgated thereunder by
the Federal Trade Commission (the "FTC"), certain acquisition transactions may
not be consummated unless certain information has been furnished to the
Antitrust Division of the Department of Justice (the "Antitrust Division") and
the FTC and certain waiting period requirements have been satisfied. The
purchase of Shares pursuant to the Offer is subject to such requirements.
Pursuant to the requirements of the HSR Act, Purchaser expects to file a
Notification and Report Form with respect to the Offer and Merger with the
Antitrust Division and the FTC on or about November 30, 1999. As a result, the
waiting period applicable to the purchase of Shares pursuant to the Offer is
scheduled to expire at 11:59 p.m., New York City time, 15 days after such
filing. However, prior to such time, the Antitrust Division or the FTC may
extend the waiting period by requesting additional information or documentary
material relevant to the Offer from Purchaser. If such a request is made, the
waiting period will be extended until 11:59 p.m., New York City time, on the
tenth day after substantial compliance by Purchaser with such request.
Thereafter, such waiting period can be extended only by court order.
A request is being made pursuant to the HSR Act for early termination of
the waiting period applicable to the Offer. There can be no assurance,
however, that the applicable 15-day HSR Act waiting period will be
28
terminated early. Shares will not be accepted for payment or paid for pursuant
to the Offer until the expiration or early termination of the applicable
waiting period under the HSR Act. See "Certain Conditions of the Offer." Any
extension of the waiting period will not give rise to any withdrawal rights
not otherwise provided for by applicable law. See "Withdrawal Rights." If
Purchaser's acquisition of Shares is delayed pursuant to a request by the
Antitrust Division or the FTC for additional information or documentary
material pursuant to the HSR Act, the Offer will be extended in certain
circumstances. See "Extension of Tender Period; Termination; Amendment" and
"Certain Conditions of the Offer."
The Antitrust Division and the FTC scrutinize the legality under the
antitrust laws of transactions such as the acquisition of Shares by Purchaser
pursuant to the Offer. At any time before or after the consummation of any
such transactions, the Antitrust Division or the FTC could take such action
under the antitrust laws of the United States as it deems necessary or
desirable in the public interest, including seeking to enjoin the purchase of
Shares pursuant to the Offer or seeking divestiture of the Shares so acquired
or divestiture of substantial assets of Parent or the Company. Private parties
(including individual states) may also bring legal actions under the antitrust
laws of the United States. Purchaser does not believe that the consummation of
the Offer will result in a violation of any applicable antitrust laws.
However, there can be no assurance that a challenge to the Offer on antitrust
grounds will not be made, or if such a challenge is made, what the result will
be. See "Certain Conditions of the Offer", including conditions with respect
to litigation and certain governmental actions and "The Merger Agreement;
Other Arrangements" for certain termination rights.
European Approval
The European Commission's Council Regulation No. 4064/89 of December 21,
1989, as amended, requires notification to the European Commission, within one
week of the conclusion of an agreement, the announcement of a public bid or
the acquisition of a controlling interest, of all concentrations between
companies which are deemed to have a "Community dimension" because they exceed
certain global and European turnover thresholds. Such concentrations may not
be consummated until the European Commission, acting within fixed deadlines,
approves them as being "compatible with the Common Market." A concentration is
compatible with the European Common Market if it does not create or strengthen
a dominant position as a result of which effective competition would be
significantly impeded in the European Common Market, or in a substantial part
thereof.
The European Commission has exclusive competence for approving or
prohibiting concentrations with a Community dimension; however, it may, upon
request, refer the case to the national antitrust authority of a particular
member state if the concentration has a specific effect on the territory of
such member state.
The notification involves the disclosure to the European Commission of
detailed information, including the structure of the relevant markets and the
parties' competitive position. Upon receipt of a notification, the European
Commission conducts a preliminary review with a maximum duration of one month
from notification, which may be extended to six weeks in certain
circumstances. The preliminary review concludes with a decision either to
approve the notified concentration (with or without conditions) or to initiate
an in-depth investigation if the concentration raises serious doubts as to its
compatibility with the European Common Market. Such an in-depth investigation
has a maximum duration of four months, and must end with a European Commission
decision either approving the concentration (with or without conditions) or
prohibiting it. If the European Commission raises substantive issues in
connection with the proposed concentration, the parties may negotiate with the
European Commission to find a solution, which may take the form of an
undertaking to make structural modifications to the entity resulting from the
concentration, on conditions and within a timeframe agreed to with the
European Commission.
Parent, the Company, and their respective affiliates each conduct
substantial operations within the European Common Market and satisfy the
applicable turnover thresholds, with the result that the acquisition of Shares
will amount to a concentration with a Community dimension and will therefore
be subject to the requirement of notification to, and approval by, the
European Commission.
29
Parent and Purchaser believe that the concentration effected by the
acquisition of the Shares by Purchaser will be considered to be compatible
with the European Common Market, and approved by the European Commission
during the preliminary review phase of one month. However, there can be no
assurance of approval by the European Commission, and it is possible that the
European Commission might seek to require structural undertakings as a
condition to its approval, and/or to open a second phase investigation to
examine serious doubts regarding the concentration's compatibility with the
Common Market.
DOT Approval
Under the federal aviation laws and the regulations promulgated thereunder
by the United States Department of Transportation ("DOT"), a foreign air
freight forwarder (i.e., an air freight forwarder that does not qualify as a
"citizen of the United States") doing business in the United States is
required to hold an effective registration issued by DOT. To date, the Company
has not needed such a registration because it has been able to qualify as a
citizen of the United States. Upon consummation of the transaction
contemplated by the Merger Agreement, however, the percentage of the Company's
Shares owned by non-U.S. citizens will be such that the Company will no longer
be characterized as a U.S. citizen for purposes of federal aviation law.
Accordingly, in order to continue its air freight forwarding activities in
the United States, the Company will be required to apply for a registration.
DOT's regulations require that a foreign air freight forwarder apply for a
registration not less than 60 days prior to the launch of operations, but do
not set forth registration procedures specifically applicable to existing air
freight forwarders that lose their U.S. citizenship through an acquisition by
non-U.S. citizens. Consistent with the practices applicable to the
registration of new foreign air freight forwarders and with DOT's notification
practices on other change-of-ownership matters, the Company will promptly
inform DOT in writing of the proposed change in ownership, file a registration
application (OST Form 4506), and seek a waiver of the 60-day waiting period.
Upon receipt of the application form, DOT will publish a notice in its
weekly summary of filings. Interested persons have twenty-eight days from the
date of filing within which to comment on the application. At the end of the
comment period, DOT will consider whether the application is consistent with
the public interest (including, but not limited to, whether there is
sufficient reciprocity between the U.S. and Germany to support the issuance of
the registration) and may take any of the following actions: approve the
application, reject the application, request additional information, approve
the application subject to limitations, or institute a proceeding to evaluate
the application. Although Purchaser and Parent believe that DOT will approve
the application, there is no deadline by which DOT must act and there can be
no assurance that DOT Approval will be obtained. Under the Merger Agreement,
Purchaser is not required to accept for payment or pay for any Shares, and
may, subject to the terms of the Merger Agreement, terminate the Offer, if DOT
Approval has not been obtained. See "Certain Conditions of the Offer" and
"Extension of Tender Period; Termination; Amendment."
Exon-Xxxxxx Provision
Under the Exon-Xxxxxx Provision, the President of the United States is
authorized to investigate and, if necessary, prohibit or suspend acquisitions
of U.S. entities by non-U.S. persons if such acquisitions threaten to impair
the national security of the United States. Under the Exon-Xxxxxx Provision,
the President is required to undertake an investigation if (1) the acquirer is
a government-controlled entity and (2) the acquisition is one which "could
result in control of a person engaged in interstate commerce in the United
States that could affect the national security of the United States." Pursuant
to the Exon-Xxxxxx Provision, notice of an acquisition by a foreign person may
be made to the Committee on Foreign Investment in the United States ("CFIUS")
either voluntarily by the parties to such proposed acquisition, or by any
member of CFIUS. Acquisitions for which no notice is filed remain indefinitely
subject to divestment or other appropriate action by the President.
If an investigation is to be conducted, it must commence no later than 30
days after receipt by CFIUS of written notification of a proposed acquisition
as prescribed by regulations promulgated under the Exon-Xxxxxx Provision. Any
such investigation must be completed within 45 days after its commencement,
and any decision by the President to take action must be announced within 15
days of the completion of the investigation.
30
Parent and the Company intend promptly to file with CFIUS a joint written
notification of the transactions contemplated by the Merger Agreement.
Although Xxxxxx believes that the transactions contemplated by the Merger
Agreement should not raise any national security concerns, there can be no
assurance that CFIUS will not determine to conduct an investigation of the
proposed transactions and, if an investigation is commenced, there can be no
assurance regarding the outcome of such investigation. Under the Merger
Agreement, Purchaser is not required to accept for payment or pay for any
Shares, and may, subject to the terms of the Merger Agreement, terminate the
Offer, if the Exon-Xxxxxx Provision process has not been satisfactorily
concluded and clearance has not been obtained. See "Certain Conditions of the
Offer."
Other Foreign Filings
Based upon Purchaser's examination of publicly available information
concerning the Company, it appears that the Company and its subsidiaries own
property and conduct business in a number of foreign countries. In connection
with the acquisition of Shares pursuant to the Offer, the laws of certain of
these foreign countries may require the filing of information with, or the
obtaining of the approval of, governmental authorities therein. After
commencement of the Offer, Purchaser will seek further information regarding
the applicability of any such laws and currently intends to take such action
as they may require, but no assurance can be given that such approvals will be
obtained. If any action is taken prior to completion of the Offer by any such
government or governmental authority, Purchaser may not be obligated to accept
for payment or pay for any tendered Shares. See "Extension of Tender Period;
Termination; Amendment" and "Certain Conditions of the Offer."
Appraisal Rights
If the Merger is consummated, stockholders of the Company may have the
right to dissent and demand appraisal of their Shares under Delaware Law. See
"Purpose of the Offer; Plans for the Company." Under Delaware Law, dissenting
stockholders who comply with the applicable statutory procedures will be
entitled to receive a judicial determination of the fair value of their Shares
(exclusive of any element of value arising from the accomplishment or
expectation of the Merger) and to receive payment of such fair value in cash,
together with a fair rate of interest, if any. Any such judicial determination
of the fair value of the Shares could be based upon considerations other than
or in addition to the Offer Price, the consideration per Share to be paid in
the Merger and the market value of the Shares, including asset values and the
investment value of the Shares. Stockholders should recognize that the value
so determined could be higher or lower than the price per Share paid pursuant
to the Offer or the consideration per Share to be paid in the Merger.
Fees and Expenses
Except as set forth below, Parent and Purchaser will not pay any fees or
commissions to any broker, dealer or other person for soliciting tenders of
Shares pursuant to the Offer.
Pursuant to the terms of Deutsche Bank's engagement, Parent has agreed to
pay Deutsche Bank for its services as financial advisor and Dealer Manager in
connection with the Offer and the Merger an aggregate fee of $6,860,000.
Parent has also agreed to reimburse Deutsche Bank for its reasonable travel
and other out-of-pocket expenses, including those incurred in connection with
Deutsche Bank's activities as Dealer Manager and the fees and expenses of its
legal counsel, and to indemnify Deutsche Bank and certain related parties
against certain liabilities, including liabilities under the federal
securities laws, arising out of Deutsche Bank's engagement.
Parent and Purchaser have retained Xxxxxxxxx Shareholder Communications
Inc. to be the Information Agent and ChaseMellon Shareholder Services, L.L.C.
to be the Depositary in connection with the Offer. The Information Agent may
contact holders of Shares by mail, telephone, telecopy, telegraph and personal
interview and may request banks, brokers, dealers and other nominees to
forward materials relating to the Offer to beneficial owners of Shares.
31
The Information Agent and the Depositary each will receive reasonable and
customary compensation for their respective services in connection with the
Offer, will be reimbursed for reasonable out-of-pocket expenses, and will be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities under federal securities laws. Brokers, dealers,
commercial banks and trust companies will be reimbursed by Purchaser for
customary handling and mailing expenses incurred by them in forwarding
material to their customers.
Miscellaneous
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of
such jurisdiction. However, Purchaser may, in its discretion, take such action
as it may deem necessary to make the Offer in any such jurisdiction and extend
the Offer to holders of Shares in such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR PURCHASER NOT CONTAINED HEREIN OR IN THE
LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Purchaser has filed with the Commission a Tender Offer Statement on
Schedule 14D-1 pursuant to Rule 14d-3 of the General Rules and Regulations
under the 1934 Act, together with exhibits furnishing certain additional
information with respect to the Offer, and may file amendments thereto. In
addition, the Company has filed with the Commission a
Solicitation/Recommendation Statement on Schedule 14D-9, together with
exhibits, pursuant to Rule 14d-9 under the 1934 Act, setting forth the
recommendations of the Company Board with respect to the Offer and the reasons
for such recommendations and furnishing certain additional related
information. A copy of such documents, and any amendments thereto, may be
examined at, and copies may be obtained from, the Commission (but not the
regional offices of the Commission) in the manner set forth under "Certain
Information Concerning the Company" above.
DP Acquisition Corporation
November 19, 1999
32
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
PARENT AND PURCHASER AND XXXXXX'S DESIGNEES
The following table sets forth (i) the name, current business or residence
address and present principal occupation or employment and (ii) material
occupations, positions, offices or employments for the past five years, in
each case of each director and executive officer of Parent and Purchaser, and
persons who may be designated by Parent to serve as directors on the Company's
Board following the Offer and Merger. Except as otherwise indicated, each of
Parent's and Purchaser's directors and officers, and each person who may be
designated by Parent to serve as directors on the Company's Board upon
consummation of the Offer, is a citizen of the Federal Republic of Germany.
Except as otherwise indicated, the business address of each director and
executive officer of Parent and Purchaser is Heinrich-von-Xxxxxxx-Xxx. 0,
00000 Xxxx, Xxxxxxx. Except as otherwise indicated, each occupation set forth
opposite a person's name refers to employment with Parent or Purchaser,
respectively. Where no date is shown, the individual has occupied the position
indicated for a period of time beyond five years. No director or executive
officer of Parent or Purchaser beneficially owns more than 1% of the
outstanding Shares. Directors of each of Parent and Purchaser are indicated
with an asterisk.
A. Directors and Executive Officers of Parent.
Name, Citizenship Present Principal Occupation or Employment and
and Current Business Address Material Positions Held During the Past Five Years
---------------------------- --------------------------------------------------
* Xxxxxxx X. xxx Xxxxxxx.... Managing Partner of X. Xxxxxxxxxx GmbH & Co.
X. Xxxxxxxxxx GmbH & Co since 1984. Xx. xxx Xxxxxxx has served as a
Markstr. 1-3 member of the Supervisory Board of Parent since
70173 Stuttgart Germany January 1995.
Dutch Citizen
* Hero Xxxxxx............... Executive Officer of Finance of Xxxxx XX. Xx.
Xxxxx XX Xxxxxx has served as a member of the Supervisory
Xxxxxxx-Xxxxxxx-Str. 21 Board of Parent since January 1995.
65030 Wiesbaden
Germany
* Xxxx xxx Xxxxxx........... Chairman of Deutsche Postgewerkschaft. Prior to
Deutsche Postgewerkschaft Xx. xxx Xxxxxx'x appointment as Chairman, he
Hauptvorstand held various positions at Deutsche
Rhonestr. 2 Postgewerkschaft. Xx. xxx Xxxxxx has served as a
60525 Frankfurt am Main member of the Supervisory Board of Parent since
Germany January 1995.
* Xxxxx Xxxxxx.............. Senator (Minister of Land of the Federal
Bremer Landesvertretung Republic of Germany) for economy and harbours
Zweite Schlachforte 3 since 1997. Managing Director of Brauerei Xxxx &
28195 Bremen Co. from 1992 to 1997. Xx. Xxxxxx has served as
Germany a member of the Supervisory Board of Parent
since July 1996.
* Xxxxx Xxxxxx.............. Member of the works council of Parent since
Deutsche Post AG 1995. Xx. Xxxxxx has served as a member of the
Niederlassung Briefpost Supervisory Board of Parent since September
Halle 1997.
An der Spitze 1
06188 Hohenthrum
Germany
S-1
Name, Citizenship Present Principal Occupation or Employment and
and Current Business Address Material Positions Held During the Past Five Years
---------------------------- --------------------------------------------------
* Xxxxx Xxxxxxxx............ Member of the management of the general works
council of Parent. Xx. Xxxxxxx has served as a
member of the Supervisory Board of Parent since
January 1995.
* Xxxxx Xxxxxx.............. Executive Officer of Xxxxxxx-Konzern Rheinische
Xxxxxxx-Konzern Rheinische Versicherungs-Gruppe AG. Xx. Xxxxxx has served
Versicherungs-Gruppe AG as a member of the Supervisory Board of Parent
Xxxxxxx-Xxxxx-Ring 7 since January 1995.
50668 Koln
Germany
* Prof. Xx. Xxxx Xxxxxx..... Senior advisor Lazard & Co. GmbH. Prof. Xx.
Xxxxxx & Co. GmbH Xxxxxx is a professor of strategy and finance at
Xxxxxxxx. 00-00 Xxxxxxxxxxxxxx Xxxxxxxxx. Prof. Xx. Xxxxxx also
60325 Frankfurt am Main serves on the Supervisory Board of CT-Centrale
Germany Treuhand AG, Munchen, Germany, and has served as
a member of the Supervisory Board of Parent
since May 1996.
* Dr. Ing. Xxxxxxx Consultant for Schmachtenbergstr since February
Lennings.................. 1999. Consultant for Westdeutsche Landesbank,
Xxxxxxxxxxxxxxxxx. 000 Xxxxxxxxxx, Xxxxxxx, from March 1984 to February
45219 Xxxxx-Xxxxxxx 1999. Xx. Xxxxxxxx served as Chairman of the
Germany Supervisory Board of Fried Xxxxx XX from June
1989 to February 1999; member of Supervisory
Board of Thyssen Xxxxx XX since April 1999;
Chairman of Supervisory Board of Xxxxxxxxxxxx XX
since January 1985; Chairman of Supervisory
Board of IVG AG since November 1985; and member
of Supervisory Board of Xxxxx XX since June
1978. Xx. Xxxxxxxx has served as a member of the
Supervisory Board of Parent since January 1995.
* Xxxxxxx Xxxxx............. Member of works council of Parent. Xx. Xxxxx has
Deutsche Post AG served as a member of the Supervisory Board of
Niederlassung Briefpost Parent since January 1998.
Xxxxxxx
Xxxxxxxxx. 195
80634 Munchen
Germany
* Dr. Xxxxxxx Xxxxxxxx...... Undersecretary of State, Ministry of Finance of
Bundesministerium der the Federal Republic of Germany. Member of
Finanzen Supervisory Boards of Deutsche Bahn AG and EXPO
Graurheindorfer Str. 108 2000. Senator of Max-Xxxxxx-Gesellschaft. Member
53117 Bonn of Stiftungsrat PreuBisher Kulturbesitz,
Germany Kuratorium der Deutsche Bundesstiftung Umwelt,
Beirat der Bundesakademie fur offentliche
Verwaltung and Kuratorium der
Arbeitsgemeinschaft fur wirtschaftliche
Verwaltung E.V. Dr. Xxxxxxxxx has served as a
member of the Supervisory Board of Parent since
January 1995.
* Xx. Xxxxx Xxxxxxxx........ Executive Officer of Bayerische Landesbank
Bayerische Landesbank Girozentrale since 1992. Xx. Xxxxxxxx has served
Girozentrale as a member of the Supervisory Board of Parent
Brienner Str. 20 since January 1995.
80333 Munchen
Germany
S-2
Name, Citizenship Present Principal Occupation or Employment and
and Current Business Address Material Positions Held During the Past Five Years
---------------------------- --------------------------------------------------
* Prof. Xx. Xxxxxx Xxxxxxx.. Chairman of business management of Xxxxxxxxxxxx
Xxxxxxxxxxxx Fachinformation since June 1998. Chief Executive
Fachinformation Officer of Springer Verlag AG, Hamburg, Germany,
Xxxx Xxxxxxxxxxxx Str. 270 from May 1994 to December 1997. Member of
33311 Gutersloh Supervisory Boards of Xxxxxxx Globale
Germany Versicherungs AG from July 1994 to June 1998;
Borse Berlin from July 1994 to May 1998; and
Borse Hamburg from January 1996 to December
1997. Prof. Xx. Xxxxxxx has served as a member
of the Supervisory Board of Parent since January
1995.
* Xxxxxx Xxxxxxxx........... Management of Deutsche Postgewerkschaft. Mr.
Deutsche Postgewerkschaft Scheurle has served as a member of the
Hauptvorstand Rhonestr. 2 Supervisory Board of Parent since February 1996.
60525 Frankfurt
Germany
* Xxxxx Xxxxxxxx............ District Chairman of Deutsche Postgewerkschaft.
Deutsche Postgewerkschaft Xx. Xxxxxxxx has served as a member of the
Bezirksverwaltung Sudwest Supervisory Board of Parent since February 1996.
Xxxxxxxxxxx. 00
00000 Xxxxxxxxx
Xxxxxxx
* Xxxxxxxxx Xxxxxxx......... Vice-Chairman of the General Works Council of
Parent. Member of the Supervisory Board of VPV
Versicherungsgruppe, Stuttgart, Germany, for
over ten years. Xx. Xxxxxxx has served as a
member of the Supervisory Board of Parent since
January 1995.
* Xxxxxx Xxxxxx............. Member of the Management Board of Deutsche Bank
Deutsche Bank AG AG. Xx. Xxxxxx has served as a member of the
Adolphsplatz Supervisory Board of Parent since January 1995.
20457 Hamburg
Germany
* Xxxxx Xxxxxxxxx........... Managing Director of Parent. Member of the
Deutsche Post AG Supervisory Board of PSD-Bank, Nuremberg,
Postfach 70 00 Germany, from 1991 to July 1999. Mr. Xxxxxxxxx
30001 Hannover has served as a member of the Supervisory Board
Germany of Parent since January 1998.
* Xxxxx Xxxxxxxxxxxxx....... Chairman of the General Works Council of Parent.
Mr. Xxxxxxxxxxxxx has served as a member of the
Supervisory Board of Parent since January 1998.
Xx. Xxxxx Xxxxxxxxx........ Chief Executive Officer of Parent. Xx. Xxxxxxxxx
is also a Director of Deutsche Lufthansa AG,
Tchibo Holding AG, DHL Intl. Ltd., Bermuda, and
Thyssen Xxxxx Materials and Services AG.
Xx. Xxxx-Xxxxxx Xxxxxx..... Chief Executive Officer of Marketing of Parent.
Prof. Dr. Xxxxxx Xxxxxx Chief Executive Officer of Parcels and Express
Xxxx....................... Mail of Parent. Xx. Xxxx is also a Director of
Deutsche Bahn Xxxx XX.
S-3
Name, Citizenship
and Current Business Present Principal Occupation or Employment and
Address Material Positions Held During the Past Five Years
-------------------- --------------------------------------------------
Xxx Xxxx Xxxxxx......... Chief Executive Officer of International
Operations of Parent since June 1999. Xx. Xxxxxx
served as Director of International Operations
from 1994 to 1995.
Xxxxxxxx Xxxxxxxxx Xxxxxx.. Chief Executive Officer of Mail Communications
and Productions of Parent. Xx. Xxxxxx also
serves as director of Deutsche Bundesdruckerei
and Central fur Coordination GmbH.
Prof. Xx. Xxxx von Chief Executive Officer of Financial Services of
Xxxxxxxxxxxx............... Parent since 1999. Executive Officer of REGUS
Deutsche Postbank AG GmbH & Co. KK from 1997 to 1999. Executive
Xxxxxxxxx-Xxxxx-Allee 114- Officer BHF-Bank AG prior to 1997.
126
53113 Bonn
Germany
Xxxxx Xxxxx Xxxxxx......... Chief Executive Officer of Human Resources of
Parent since 1996. Prior to 1996, Xx. Xxxxxx
served as an Executive Officer of Deutsche
Postgewerkschaft.
Xx. Xxxxx Xxxxx............ Chief Financial Officer of Parent.
Xxxxx Xxxxxx............... Chief Executive Officer of Logistics of Parent
Danzas Management Ltd. and Chief Executive Officer of Danzas. Mr.
Xxxxxxxxxxxxx 1 Xxxxxx has served as a board member of TT Club
P. O. Box 4002 Basel (through Transport Mutual Insurance Association
Switzerland Limited) Bermuda since 1997; Vontobel Holding
Swiss Citizen AG, Zurich since 1996; and Bank X. Xxxxxxxx AG,
Zurich since 1994.
B. Directors and Executive Officers of Purchaser.
Name, Citizenship Present Principal Occupation or Employment and
and Current Business Address Material Positions Held During the Past Five Years
---------------------------- --------------------------------------------------
* Xxxxxx Xxxxxx............. President and Director since the Purchaser was
Danzas Management Ltd. founded. Mr. Xxxxxx has served as a Member of
Xxxxxxxxxxxxx 0 Group Management and Head of the
P. O. Box 4002 Basel Intercontinental Business Unit of Danzas since
Switzerland March 1996. Mr. Xxxxxx served as Head of the
Swiss Citizen Intercontinental Traffic Business Unit of Danzas
from 1994 to 1996.
* Xx. Xxxxx Xxxxxxx......... General Xxxxxxx, Executive Vice President and
Secretary since the Purchaser was founded. Xx.
Xxxxxxx has served as General Counsel of Parent
since April 1998. Prior to April 1998, Xx.
Xxxxxxx served as General Counsel of De Te Mobil
Deutsche Telekom MobilNet GmbH.
S-4
C. Persons Who May Be Designated by Parent to Serve as Directors on the
Company's Board upon Consummation of the Offer.
Name, Citizenship
and Current Business Present Principal Occupation or Employment and
Address Material Positions Held During the Past Five Years
-------------------- --------------------------------------------------
Xxxxx Xxxxxx............ See above for his principal occupation and
previous five year employment history.
Xxxxxx Xxxxxx........... See above for his principal occupation and
previous five year employment history.
Xxx Xxxxxxxx............ Xx. Xxxxxxxx has served as a Member of Group
Danzas Management Ltd. Management and Chief Financial Officer of Danzas
Xxxxxxxxxxxxx 0 since 1998. From 1979 to 1998, Xx. Xxxxxxxx held
P. O. Box 4002 Basel various financial management positions in the
Switzerland transportation and retailing industries.
U.S. Citizen
Xx. Xxxx Xxxxx Director of the Department of Mergers and
Xxxxxxxxx............... Corporations for Parent since 1998. Director
Marketing and Sales of Deutsche Post Parcelpost
of Parent from 1996 to 1998. Chief Executive
Officer of PSG Postdienst Services mbH from 1990
to 1996.
Xx. Xxxxx Xxxxxxx....... Director of Finance of Parent since April 1995.
Prior to 1995, Xx. Xxxxxxx served as Director of
Finance of XXXXX XX, Leverkusen, Germany.
Xx. Xxxxx Xxxxxxx....... See above for his principal occupation and
previous five year employment history.
Xx. Xxxxxxx Xxxxxxxx.... Xx. Xxxxxxxx has served as a Member of Group
Danzas Management Ltd. Management and Head of Information Technology of
Xxxxxxxxxxxxx 0 Danzas since October 1996. From October 1992 to
P. O. Box 4002 Basel October 1996, Mr. Xxxxxxxx was a Senior Lecturer
Switzerland for Management Information at the University of
Swiss Citizen St. Gallen (HSG).
S-5
Facsimile copies of the Letter of Transmittal will be accepted. The Letter
of Transmittal, Share Certificates and any other required documents should be
sent or delivered by each stockholder of the Company or such stockholder's
broker, dealer, commercial bank, trust company or other nominee to the
Depositary at its addresses set forth below.
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
By Mail: By Overnight Delivery: By Hand:
P.O. Box 0000 00 Xxxxxxxxxx Xxxx 000 Xxxxxxxx, 00xx Xxxxx
Xxxxx Xxxxxxxxxx, XX Mail Drop-Reorg New York, NY 10271
00000 Xxxxxxxxxx Xxxx, XX 00000 Attn: Reorganization
Attn: Reorganization Attn: Reorganization Department
Department Department
By Facsimile Transmission
(for Eligible Institutions only):
(000) 000-0000
Confirm By Telephone:
(000) 000-0000
Questions or requests for assistance or additional copies of this Offer to
Purchase and the Letter of Transmittal may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone
numbers set forth below. Stockholders may also contact their broker, dealer,
commercial bank or trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
XXXXXXXXX
SHAREHOLDER
COMMUNICATIONS INC.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bankers and Brokers Call Collect: (000) 000-0000
All Others Call Toll-Free: (000) 000-0000
The Dealer Manager for the Offer is:
Deutsche Banc Xxxx. Xxxxx
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
(Call Collect)
