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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
(AMENDMENT NO. 2)
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
AMERICAN BANKERS INSURANCE
GROUP, INC.
(NAME OF SUBJECT COMPANY)
AMERICAN BANKERS INSURANCE
GROUP, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $1.00 PER SHARE,
INCLUDING THE ASSOCIATED SERIES A PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS
(TITLE OF CLASS OF SECURITIES)
24456 10 5
(CUSIP NUMBER OF CLASS OF SECURITIES)
GERALD N. GASTON
VICE CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERICAN BANKERS INSURANCE GROUP, INC.
11222 QUAIL ROOST DRIVE
MIAMI, FL 33157-6596
(305) 253-2244
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICE AND COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT)
------------------------
COPIES TO:
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<S> <C>
MORTON A. PIERCE, ESQ. JOSEPHINE CICCHETTI, ESQ.
JONATHAN L. FREEDMAN, ESQ. JORDEN BURT BERENSON & JOHNSON LLP
DEWEY BALLANTINE LLP 777 BRICKELL AVENUE, SUITE 500
1301 AVENUE OF THE AMERICAS MIAMI, FL 33131
NEW YORK, NY 10019 (305) 371-2600
(212) 259-8000
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This Amendment No. 2 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9, dated February 6, 1998 (as amended, the "Schedule
14D-9") of American Bankers Insurance Group, Inc., a Florida corporation (the
"Company"), filed in connection with the Cendant Offer. Capitalized terms used
herein shall have the definitions set forth in the Schedule 14D-9 unless
otherwise provided herein.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
The response to Item 8 is hereby amended and supplemented as follows.
Litigation
On February 9, 1998, the plaintiffs in the Lopate Federal Court Action
amended their complaint. The amended complaint asserts the same state law claims
of breach of fiduciary duty that plaintiffs originally brought, and also alleges
that the defendants made false and misleading statements in the Proxy
Statement/Prospectus and in the Schedule 14D-9 in violation of Sections 14(a)
and (e) of the Exchange Act and the regulations promulgated thereunder.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 21...............Amended Complaint filed in Lopate et. al. v.
Landon, et al., Civil Action No. 98-0168 (Moreno).
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
AMERICAN BANKERS INSURANCE GROUP, INC.
By: /s/ GERALD N. GASTON
---------------------------------------
Name: Gerald N. Gaston
Title: Chief Executive Officer,
President and Vice Chairman
Date: February 10, 1998
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EXHIBIT 21
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
--------------------------------------
JOEL L. LOPATE and KAY LOPATE,
individually and on behalf of all
others similarly situated, Case No. 98-0168
CIV-MORENO
Plaintiffs,
AMENDED
- V. - CLASS ACTION
COMPLAINT
R. KIRK LANDON, GERALD N. GASTON,
NICHOLAS A. BUONICONTI, ARMANDO M.
CODINA, PETER DOLARA, BERNARD P.
KNOTH, JAMES F. JORDEN, DARYL L.
JONES, EUGENE M. MATALENE, JR.,
ALBERT H. NAHMAD, NICHOLAS J. ST.
GEORGE, ROBERT C. STRAUSS, GEORGE
E. WILLIAMSON, II, AMERICAN BANKERS
INSURANCE GROUP, INC., AMERICAN
INTERNATIONAL GROUP, INC., and
AIGF, INC.,
Defendants.
-------------------------------------
Plaintiffs allege, upon information and belief except as to
paragraph 1, which is alleged on knowledge, as follows:
THE PARTIES
1. Plaintiffs Joel L. Lopate and Kay Lopate were at all times relevant
hereto the owners of shares of common stock of American Bankers Insurance Group,
Inc. ("American Bankers" or the "Company").
2. American Bankers is a Florida corporation with its principal
executive offices located in Miami, Florida. American Bankers shares are traded
on the New York
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Stock Exchange under the symbol "ABI". As of December 31, 1997, there were
approximately 20.8 million shares of American Bankers common stock outstanding
held by approximately 1,532 shareholders of record.
3. Defendant R. Kirk Landon ("Landon") is and was at all relevant times
Chairman of the Board of the Company, and was formerly the Chief Executive
Officer of the Company.
4. Defendant Gerald N. Gaston ("Gaston") is and was at all relevant
times Vice Chairman of the Board of the Company. Gaston has been President of
the Company since 1980 and Chief Executive Officer since 1996.
5. Defendants Nicholas A. Buoniconti, Armando M. Codina, Peter Dolara,
Bernard P. Knoth, James F. Jorden, Daryl L. Jones, Eugene M. Matalene, Jr.,
Albert H. Nahmad, Nicholas J. St. George, Robert C. Strauss, and George E.
Williamson, II are directors of the Company (collectively with Landon and Gaston
said Defendants will be referred to as the "Individual Defendants").
6. Defendant American International Group, Inc. ("AIG") is a Delaware
corporation with its principal executive offices in New York, New York. AIG is a
holding company engaged primarily in the general and life insurance businesses
both in the United States and abroad. AIG is controlled by its Chairman, Maurice
R. Greenberg.
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7. Defendant AIGF, Inc. ("AIGF") is a Florida corporation wholly owned
by AIG. Pursuant to a merger agreement signed by American Bankers, AIG and AIGF
in December 1997 (the "AIG Merger Agreement"), AIG is to acquire American
Bankers through a merger of American Bankers into AIGF, with AIGF to be the
surviving corporation in the merger.
JURISDICTION AND VENUE
8. The claims asserted herein arise under Sections 14(a) and 14(e) of
the Exchange Act, 15 U.S.C. Section 78n, and the rules and regulations
promulgated thereunder by the Securities and Exchange Commission (the "SEC"),
and the laws of the State of Florida. This Court has jurisdiction over this
action pursuant to Section 27 of the Exchange Act, 15 U.S.C. Section 78aa; 28
U.S.C. Section 1331 (federal question); and 28 U.S.C. Section 1367 (supplemental
jurisdiction).
9. This Court has jurisdiction over this action. American Bankers is
located and does business in Florida; moreover, many of the acts described
herein occurred in this District.
10. Venue is proper in this District pursuant to Section 27 of the
Exchange Act and 28 U.S.C. Section 1391(b). The claims asserted herein arose in
this District, and the acts and transactions complained of have occurred, are
occurring, and unless enjoined, will continue to occur in this District.
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CLASS REPRESENTATION ALLEGATIONS
11. Plaintiffs bring this action pursuant to Rule 23(a) and Rule
23(b)(3) of the Federal Rules of Civil Procedure on their own behalf, and on
behalf of all other shareholders of American Bankers as of January 27, 1998, and
their successors in interest. Excluded from the Class are Defendants, and any
person or other entity related to or affiliated with Defendants.
12. The Class satisfies the requirements of Rule 23(a) -- numerosity,
commonality, typicality, and adequacy -- and Rule 23(b)(3) -- predominance and
superiority -- for the reasons set forth below.
13. This action is properly maintainable as a class action for the
following reasons:
(a) The Class is so numerous that joinder of all members is
impracticable. As of December 31, 1997, there were approximately 1,532 holders
of record of American Bankers common stock, which stock trades on the New York
Stock Exchange.
(b) Members of the Class are scattered throughout the United
States and are so numerous that it is impracticable to bring them all before
this Court.
(c) There are questions of law and fact which are common to
the Class and which predominate over questions affecting any individual class
member. The common questions include, inter alia, the following:
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(i) Whether defendants have engaged and are
continuing to engage in a plan and scheme to benefit themselves at the expense
of the members of the Class;
(ii) Whether defendants violated the federal
securities laws;
(iii) Whether the Individual Defendants, as officers
and/or directors of the Company have fulfilled, and are capable of fulfilling,
their fiduciary duties to plaintiffs and the other members of the Class,
including their duties of loyalty, due care and candor;
(iv) Whether the defendants have disclosed all
material facts in connection with the challenged transaction; and
(v) Whether plaintiffs and the other members of the
Class would be irreparably damaged were defendants not enjoined from the conduct
described herein;
(d) The claims of plaintiffs are typical of the claims of the
other members of the Class in that all members of the Class will be damaged by
defendants' actions.
(e) Plaintiffs are committed to prosecuting this action and
have retained competent counsel experienced in litigation of this nature.
Plaintiffs are adequate representatives of the Class.
(f) A class action is superior to any other method available
for the fair and efficient adjudication of this controversy since it would be
impractical and
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undesirable for each of the members of the Class, who has suffered or will
suffer damages, to bring separate actions.
14. Moreover, defendants have acted and will continue to act
on grounds generally applicable to the Class, thereby making appropriate final
injunctive or corresponding declaratory relief with respect to the Class as a
whole.
SUBSTANTIVE ALLEGATIONS
15. American Bankers is a specialty insurer providing primarily
credit-related insurance products in the U.S. and Canada as well as in Latin
America, the Caribbean and the United Kingdom. The majority of the Company's
gross collected premiums are derived from credit-related insurance products sold
through financial institutions and other entities which provide consumer
financing as a regular part of their businesses.
16. On December 22, 1997, American Bankers and AIG jointly announced
that American Bankers was to be purchased by AIG for $2.2 billion in stock and
cash, equivalent to $47 a share ("the AIG Merger Agreement") with AIGF to be the
surviving corporation in the merger.
17. This offer represented a 6.2% premium over American Bankers' share
price the prior trading day.
18. As part of the AIG Merger Agreement, American Bankers shareholders
would receive cash only in certain
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circumstances and cash would be paid only to those shareholders requesting it.
19. Also as part of the AIG Merger Agreement, the Individual Defendants
agreed to be barred from talking to other bidders for 120 days after the
agreement (the "120-day provision").
20. Undisclosed in the AIG Merger Agreement was the fact that American
Bankers had received repeated overtures over the past several years from Cendant
Corporation ("Cendant"), formed by the merger of CUC International and HFS.
21. John H. Fullmer, Cendant's Executive Vice President and Chief
Marketing Officer, and representatives of the Company, including Gerald N.
Gaston, the Company's Vice Chairman, President and Chief Executive Officer, met
on various occasions to discuss possible strategic marketing alliances.
22. At a meeting held in May 1997, Mr. Fullmer and Mr. Gaston met and
discussed Cendant's interest in acquiring the Company and the existence of
certain financial issues relating to a possible combination.
23. In the summer of 1997, a merger was pending between CUC and HFS,
now Cendant. Representatives of HFS separately identified the Company as a
possible acquisition candidate. Their mutual interest in the Company was
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scheduled to be pursued following completion of the CUC-HFS merger.
24. Throughout much of 1997, American Bankers held negotiations for a
possible transaction with AIG.
25. On December 3, 1997, a significant shareholder of the Company
indicated to a Senior Vice President of what is now Cendant that it believed
American Bankers was considering a sale transaction. This information was
conveyed to Mr. Fullmer, who attempted on several occasions to contact Mr.
Gaston to inquire as to its validity.
26. Mr. Fullmer ultimately spoke with Mr. Gaston in mid-December 1997
and described the merger of CUC and HFS which created Cendant and emphasized
that the resulting size and scale of Cendant had eliminated the financial issues
relating to an acquisition of the Company which they had previously discussed.
Mr. Fullmer inquired whether the Company was actively engaged in discussions
relating to an acquisition, and indicated that, if the Company was so engaged,
representatives of his company would like to meet immediately with the Company's
representatives to discuss its strong interest in exploring such a transaction.
27. In response to Mr. Gaston's assurances that the Company was not
actively engaged in acquisition discussions, Mr. Fullmer agreed to forward to
Mr. Gaston information regarding Cendant and to contact Mr. Gaston to
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schedule a meeting in early January, 1998 to discuss a possible acquisition
transaction.
28. However, on December 22, 1997, the Company and AIG announced that
they had entered into the AIG Merger Agreement and that certain stockholders of
the Company had entered into the Voting Agreement with AIG. It was then
contemplated by the parties that the AIG Merger would be finalized prior to
April, 1998.
29. In connection with the execution of the AIG Merger Agreement, the
Company and AIG entered into an option agreement (the "AIG Lockup Option
Agreement") pursuant to which the Company granted to AIG an option (the "AIG
Lockup Option"), exercisable in certain events, to purchase up to approximately
8,265,626 common shares (which represented 19.9% of the outstanding number of
common shares at the time the AIG Lockup Option Agreement was entered into) at
an exercise price of $47.00 per common share, subject to adjustment as set forth
therein.
30. Also as part of the AIG Merger Agreement, the Company agreed to a
provision which provides that the Company and its subsidiaries, officers,
directors, employees, agents and representatives will not, directly or
indirectly, (i) initiate, solicit, encourage, or otherwise facilitate any
inquiries or the making of any proposal or offer with respect to a merger,
reorganization, share exchange, consolidation or similar transaction involving,
or
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any purchase of 15% or more of the assets or any equity securities of, the
Company or any of its subsidiaries (an "Acquisition Proposal"), or (ii) engage
in any negotiations concerning, provide any confidential information or data to,
or have any discussions with, any person relating to an Acquisition Proposal, or
otherwise facilitate any effort or attempt to make or implement an Acquisition
Proposal, until after 120 days have elapsed since the date of the AIG Merger
Agreement (the "120-day provision").
31. The AIG Merger Agreement provides that under certain circumstances
in which the AIG Merger Agreement is terminated, the Company will have an
obligation to pay a cash fee of $66 million to AIG (the "AIG Termination Fee").
However, pursuant to the terms of the AIG Lockup Option Agreement, AIG's total
profit under the AIG Lockup Option Agreement (including the amount of the AIG
Termination Fee) is limited to $66 million.
32. In connection with the execution of the AIG Merger Agreement, AIG
entered into a Voting Agreement (the "AIG Voting Agreement") with R. Kirk
Landon, Chairman of the Board of the Company, and Gerald N. Gaston, Vice
Chairman, President and Chief Executive Officer of the Company, pursuant to
which Messrs. Landon and Gaston agreed (i) to vote the approximately 8.25% of
the outstanding Company shares beneficially owned by them (A) in favor of
adopting the AIG Merger Agreement and approving the proposed AIG
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Merger and (B) against any action or proposal that would compete with or could
serve to materially interfere with, delay, discourage, adverse affect or inhibit
the timely consummation of the proposed AIG Merger, and (ii) upon request, to
grant to AIG an irrevocable proxy with respect to such common shares.
33. American Bankers has a shareholder rights plan, commonly known as a
"poison pill" to deter unsolicited bids for the Company. Pursuant to the poison
pill, each share of American Bankers common stock also has a detachable right,
which is triggered upon the announcement of an acquisition proposal such as the
Cendant offer, described herein, and distributed and non-redeemable 10 days
thereafter. Thus, if the rights are not redeemed by American Bankers' Board of
Directors, all rightsholders would receive additional shares of the Company's
stock at a 50% discount, making any unwelcome takeover of American Bankers
prohibitively more expensive.
34. In the AIG Merger Agreement, American Bankers has agreed to extend
the poison pill (scheduled to expire on March 10, 1998) or adopt a new poison
pill at AIG's request. However, in connection with the Cendant offer, American
Bankers did not initially agree to take action to prevent the poison pill from
impeding the Cendant offer. Absent an amendment to the redemption of the poison
pill, the rights would have become non-redeemable on or about February 17,
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1998, or prior to the American Bankers' shareholder meetings scheduled in early
March, 1998. On February 5, 1998, Company's Board of Directors amended the
poison pill to extend the distribution date of the rights so that it will not
occur until such date as the Individual Defendants may determine.
35. On January 27, 1998, Cendant Corporation commenced a tender offer
of $2.41 billion for American Bankers or $58 a share ("Cendant offer").
36. The Cendant offer represents a premium of $11 (in excess of 23%)
over the value of the AIG Merger, and is demonstrably superior to the AIG
Merger.
37. Cendant indicated it was making the tender offer because the AIG
Merger Agreement entered by defendants barred defendants from talking to other
bidders for 120 days after the agreement.
38. Cendant indicated that the "120 days" provision raised questions
about whether the AIG Merger Agreement was in the best interests of American
Bankers shareholders.
39. In response to whether Cendant might raise its offer, Henry
Silverman, Chief Executive Officer of Cendant, responded that Cendant's offer is
"flexible."
40. On the day that Cendant launched its tender offer, January 27,
1998, AIG issued a press release announcing that it had given American Bankers
notice of its
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intention to exercise the Lock-Up Option to acquire 19.9% of the outstanding
shares of American Bankers at $47 per share (the "Lock Up Press Release"). The
consummation of AIG's purchase of these shares pursuant to the Lock-Up Option is
subject to applicable regulatory approvals.
41. On February 5, 1998, the Company's Board met to consider the
Cendant offer and what position the Company should take with respect to that
offer. As acknowledged in the Company's schedule 14D-9
solicitation/recommendation statement filed on or about February 6, 1998
("14D-9"), the Individual Defendants failed to obtain information necessary to
enable them to make an informed decision on whether or not to recommend that
Company shareholders accept the Cendant offer. The Individual Defendants blamed
their inability to obtain material information on the "120 days" provision
contained in the AIG merger Agreement.
Specifically, the 14D-9 states as follows;
. . . because of the provisions of the AIG Merger Agreement which
prohibit the Company from engaging in negotiations with or having
discussions with Cendant concerning the Cendant Offer, as well as the
lack of certain information which the Company expects will be disclosed
in the regulatory process, the Board of Directors has been unable to
assess several aspects of the Cendant offer.
These "aspects" included Cendant's allegedly high level of financial leverage;
its proposed business plans for the Company; its experience in owning and
operating insurance companies; its ability to provide license facilities outside
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of the United States to permit international distribution of the company's
products; its ability to realize certain synergies; whether increased revenues
projected by Cendant require additional capital infusions, its plans with
respect to intercompany transactions with the Company's insurance subsidiaries
involving intercompany royalties and fees; the potential reaction of the
Company's producers and reinsurers to Cendant; and the alleged potential
volatility of the Cendant common stock.
42. Thus, in the 14D-9, the Individual Defendants, directors of
American Bankers, admit that they lack material information necessary for them
to fulfill their legal obligation to advise company shareholders as to what
position they should take regarding the Cendant offer, and that this failure to
make an informed decision is caused in material part by their agreeing to the
120 day provision in the AIG Merger Agreement.
43. Despite making no recommendation with respect to the Cendant offer,
the Individual Defendants persist in promoting the AIG Merger Agreement in the
14D-9. As noted therein, the Board of Directors "continue[d] to believe that the
transaction contemplated . . . by the [AIG Merger] Agreement . . . represents a
more attractive alternative than operating on a stand-alone basis . . . . "
44. Prior to the dissemination of the 14D-9, on January 30, 1998, the
SEC declared effective defendants'
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joint proxy statement and prospectus to, inter alia, solicit proxies to be voted
in favor of the AIG Merger Agreement at Special Meetings of the Company's
preferred and common shareholders, scheduled to be held March 4 and March 6,
1998, respectively (the "Proxy Statement").
45. The Proxy Statement is replete with materially false and misleading
information, including;
(a) The Proxy Statement states that it expects the AIG Merger
to close in March, 1998. Even if this is considered an opinion, such a statement
of opinion would be required to have a reasonable basis. In fact, defendants
have no such reasonable basis, given that AIG has not completed various state -
required regulatory processes.
(b) In the Proxy Statement, defendants laud the "expense
savings" that would enure in the AIG Merger, which savings are not detailed nor
do defendants disclose that it is likely American Bankers personnel will be
terminated.
(c) The fairness opinion rendered by American Bankers'
investment advisor, Salomon Smith Barney, speaks as of December 21, 1997, prior
to the commencement of the Cendant offer. That opinion must be reevaluated in
light of the substantially higher offer, a fact not disclosed in the Proxy
Statement.
(d) The Proxy Statement indicates that American Bankers
management prepared "revised" internal
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projections that contained lower estimates of revenue and income which were
provided to Salomon Smith Barney but fails to disclose i) the extent to which
Salomon Smith Barney relied on the lower "revised" projections in its analyses;
ii) the effect on the ranges of values attributed to the valuation methodologies
employed by Salomon Smith Barney; and iii) whether the $47 per share AIG Merger
price would fall within or outside those ranges of values and the effect on the
fairness opinion had the original and higher projections been used.
(e) The Proxy Statement also fails to include information admitted by
the Individual Defendants in the 14D-9 to be material. As noted above, the Board
of Directors on February 5, 1998 decided to make no recommendation regarding the
Cendant offer because they lacked information regarding Cendant, which
information is clearly material and necessary to be disclosed to Company
shareholders in order for them to determine whether or not to vote in favor of
the AIG Merger Agreement. This includes information relating to Cendant alleged
relatively high level of financial leverage; its proposed business plans for the
Company; its experience in owning and operating insurance companies; its ability
to provide license facilities outside the United States to permit international
distribution of the Company's products; its ability to realize certain
synergies; whether increased revenue levels
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projected by Cendant require additional capital infusions; its plan with respect
to intercompany transactions with the Company's insurance subsidiaries involving
intercompany royalties and fees; the potential reaction of the Company's
producers and reinsurers to Cendant; and the alleged volatility of Cendant's
stock.
46. Defendants have not disclosed the reasons for the preferential
treatment afforded AIG, nor do they disclose why they failed to continue their
discussions with Cendant.
FIRST CLAIM FOR RELIEF
(BREACH OF FIDUCIARY DUTY)
47. Plaintiffs repeat and reallege the preceding paragraphs as if fully
set forth herein.
48. Having decided to seek a transaction in which all of American
Bankers shares would be acquired, the director defendants' fiduciary
responsibilities require them to take all steps reasonably calculated to achieve
the highest value obtainable for American Bankers shares.
49. By failing to conduct discussions with Cendant after being advised
of its desire to negotiate, by negotiating solely with AIG, without attempting
to determine the true value of American Bankers, and entering the AIG Merger
Agreement, Lock-up Option, the 120-day provision, the Termination Fee, the
poison pill, and the Voting Agreement, by failing to take steps to utilize the
poison pill in an effort to maximize shareholders' value, by failing to obtain
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an updated fairness opinion, and by failing to act in an informed manner in
responding to the Cendant offer and in issuing the 14D-9, defendants' breached
their fiduciary obligations and violated their duty to act with due care and in
a disinterested manner, and in maximize shareholder value.
SECOND CLAIM FOR RELIEF
(BREACH OF FIDUCIARY DUTY OF CANDOR)
50. Plaintiffs repeat and reallege the preceding paragraphs as if fully
set forth herein.
51. Defendants have failed to disclose the reasons for failing to
consider, solicit, and/or entertain Cendant's offer, and have failed to disclose
the matters referred to in paragraph 45 above.
52. Defendants' aforesaid conduct is a breach of their fiduciary duties
as such information is material and/or necessary for Class members to have in
order to make an informed decision on the AIG Merger Agreement.
53. By reason of their positions, Defendants were in possession of
material inside information not disclosed to the investing public concerning
American Bankers, and the process by which Cendant was spurned and AIG welcomed,
which facts were misrepresented, in violation of defendants' fiduciary
obligations.
54. As a result of the foregoing, the defendants have breached and/or
aided and abetted breaches of fiduciary duties owed to American Bankers and its
stockholders.
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THIRD CLAIM FOR RELIEF
(FOR VIOLATIONS OF SECTION 14(a) OF
THE EXCHANGE ACT AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER AGAINST ALL DEFENDANTS)
55. Plaintiffs repeat and reallege the preceding paragraphs as if fully
set forth hereof.
56. Section 14(a) of the Exchange Act provides that no person may make
a solicitation of any proxies in contravention of such rules and regulations as
the SEC may prescribe for the protection of shareholders.
57. Rule 14a-9 promulgated pursuant to Section 14(a) of the Exchange
Act prohibits any person making a solicitation by means of a written or oral
communication containing a false or misleading statement with respect to any
material fact, or which omits to state any material fact necessary to make the
statements made not false or misleading.
58. The Proxy Statement is materially false and misleading the manner
referred to in paragraph 45 above, all in violation of Section 14(a) and Rule
14a-9 promulgated thereunder.
59. Plaintiffs have no adequate remedy at law.
FOURTH CLAIM FOR RELIEF
(FOR VIOLATIONS OF SECTION 14(e) OF
THE EXCHANGE ACT AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER AGAINST ALL DEFENDANTS)
60. Plaintiffs repeat and reallege the preceding paragraphs as if fully
set forth herein.
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61. Section 14 (e) of the Exchange Act prohibits any person from making
any untrue statement of material fact or omitting to state any material fact
necessary to make the statements made not misleading, or from engaging in any
fraudulent, deceptive or manipulative acts in connection with any tender offer
or any solicitation of shareholders in opposition to a tender offer.
62. The Proxy Statement is materially misleading, as alleged above, in
violation of Section 14(e) of the Exchange Act.
63. The misrepresentations in the Proxy Statement were made by American
Bankers and AIG with knowledge of their false and misleading nature in order to
dissuade American Bankers shareholders from accepting the Cendant proposal and
to coerce them into voting in favor of the AIG Merger.
64. Plaintiffs have no adequate remedy at law.
WHEREFORE, plaintiffs demand judgment as follows:
l. Declaring this to be a proper class action and;
2. Ordering defendants to carry out their fiduciary duties to
plaintiffs and the other members of the Class, including the duties of care,
loyalty, and candor by among other things: (i) ordering defendants to conduct a
market check; (ii) consider all bona fide third party
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offers; and (iii) ordering defendants to act in an informed manner in responding
to the Cendant offer.
3. Granting preliminary and permanent injunctive relief against the
consummation of the AIG Merger as described herein;
4. in the event the AIG Merger is consummated, rescinding the
transaction effected by defendants and awarding rescissionary damages;
5. Ordering defendants, jointly and severally, to pay to plaintiffs and
to other members of the Class all damages suffered and to be suffered by them as
the result of the acts and transactions alleged herein;
6. Declaring null and void the AIG Merger Agreement, the 120-day
provision, the Lockup Option, the Termination Fee and the AIG Voting Agreement
each as described herein;
7. Ordering defendants to redeem the poison pill in favor of the
Cendant proposal, or taking such other steps with respect to the poison pill to
maximize shareholder value;
8. Ordering defendants to obtain an updated fairness opinion;
9. Compelling defendants to make full disclosure of all material
information;
l0. Awarding plaintiffs the costs and disbursements of the action,
including a reasonable
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allowance for plaintiffs' attorney's fees and experts' fees; and
11. Granting such other and further relief as this Court may deem to be
just and proper.
JURY DEMAND
Plaintiffs demand a trial by jury on all issues so triable as a matter
of right.
Dated: February 9, 1998
Respectfully submitted,
Counsel for Plaintiffs
GOODKIND LABATON RUDOFF & SUCHAROW LLP
200 South Biscayne Blvd.
Suite 2100
Miami, Florida 33131
Telephone: (305) 579-1260
Facsimile: (305) 579-1229
BY: /s/ Emily C. Komlossy
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Emily C. Komlossy
Florida Bar No. 007714
Peter H. Rachman
Florida Bar No. 977756
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