<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 10, 1998
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[ ] Preliminary Proxy Statement [ ] Confidential, for use of the Commission
[ ] Definitive Proxy Statement Only (as permitted by Rule 14A-6(e)(2))
[x] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 248.14a-11(c) or Section 240.14a-12
AMERICAN BANKERS INSURANCE GROUP, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in Its Charter)
AMERICAN INTERNATIONAL GROUP, INC.
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[x] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11:
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
------------------------------------------------------------------------
(3) Filing Party:
------------------------------------------------------------------------
(4) Date Filed:
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On March 9, 1998, American International Group, Inc. and AIGF, Inc.
filed the following Reply Memorandum of Law In Support of Their Motion for
Preliminary Injunction in the U.S. District Court for the Southern District of
Florida.
<PAGE> 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
AMERICAN INTERNATIONAL GROUP, INC.; Case No. 98-0247-CIV-MOORE
AND AIGF, INC., Magistrate Judge Johnson
Plaintiffs,
v.
CENDANT CORPORATION; and
SEASON ACQUISITION CORP.,
Defendants.
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REPLY MEMORANDUM OF LAW OF PLAINTIFFS
AMERICAN INTERNATIONAL GROUP, INC. AND AIGF, INC.
IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION
A. AIG HAS DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS.
1. By Holding Proxies Representing 10% or More of American Bankers'
Shares Without Approval, Cendant Presumptively Violates State Law. Cendant
continues to ignore the plain reading of the state insurance statutes, which
presume that "control" exists if a person holds proxies representing 10% or more
of the voting securities of any other person. (See AIG's Moving Brief at p. 10 &
Exhibits B & C to Klapper Affidavit for text of statutes.) This omission is
material because a reasonable shareholder would obviously find it important to
know that he is being asked to give a proxy to an entity that cannot hold or
vote the shares because it has not obtained the regulatory approvals required
under state law. See Onbancorp, Inc. v. Holtzman, 956 F. Supp. 250, 254
(N.D.N.Y. 1997) ("In the proxy solicitation context, '[i]rreparable injury
results from the use of false and misleading proxies when the free exercise of
shareholders' voting rights will be frustrated.") (citing Krauth v. Executive
Telecard, Ltd., 890 F. Supp. 269, 287 (S.D.N.Y. 1995) (citations omitted)).
Cendant attempts to avoid the clear meaning of these state statutes by
arguing that its solicitation of proxies against the AIG Merger will not result
in a change of control of American Bankers and is "only for the limited purpose
of voting for or against the AIG Merger Proposal --
<PAGE> 4
not in favor of any transaction with Cendant." (Def. Mem. at 12.) Cendant's
argument is disingenuous and absurd.
First, nothing in the state statutes creates an exception for holding
or voting proxies "for a limited purpose." If Cendant truly believed that
influencing the decision whether American Bankers should merge with AIG was a
"limited purpose," it could have sought a waiver from the State Insurance
Departments, which it has not done.
Second, Cendant does not seek proxies "for a limited purpose."
Cendant's proxy materials in effect state that it seeks to hold proxies to vote
down the AIG Merger so that, immediately thereafter, Cendant can direct American
Bankers' Management to sell the Company to Cendant:
WE BELIEVE YOU SHOULD VOTE AGAINST THE PROPOSED AIG MERGER BECAUSE:
- The Cendant transaction offers a significantly higher value
per American Bankers' common share than the Proposed AIG
Merger by giving you cash and/or stock with a combined per
common share value of $58.00, representing a premium of $11.00
(in excess of 23%) over the Proposed AIG Merger.
- American Bankers' shareholders should send a strong message to
American Bankers' board of directors that you want to preserve
your opportunity to accept the superior value provided by the
Cendant Offer.
(Proxy Statement, at Letter to American Bankers Shareholders dated February 12,
1998.) (Exhibit A hereto.)
Third, Cendant attempts to mislead the Court by arguing that in holding
proxies, it is performing only a ministerial function and can only vote the
proxy in accordance with the instructions of the shareholder who gives the
proxy. (Def. Mem. at 12-13.) In fact, Cendant can exercise total discretion in
voting proxies where the shareholder does not give any instructions on voting
the shares. Moreover, Cendant's own proxy card makes clear that "IN THEIR
DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER BUSINESS AS MAY
PROPERLY COME BEFORE THE SPECIAL MEETING OR ANY ADJOURNMENTS POSTPONEMENTS OR
RESCHEDULING THEREOF ON BEHALF OF
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THE UNDERSIGNED." The "other business" that may arise at the shareholders
meeting includes substantive issues and important procedural matters such as
adjournments or postponements.
Fourth, in arguing that because the proxies it receives are revocable,
the presumption of control does not exist, Cendant in effect seeks to read the
presumption of control out of the statutes. (Def. Mem. at 13.) VIRTUALLY ALL
PROXIES ARE REVOCABLE; if the statutes referred only to holding or voting
IRREVOCABLE proxies, they would be virtually meaningless. Not surprisingly, the
statutes say nothing about proxies having to be irrevocable. If a shareholder
revokes a proxy it has previously given to Cendant, then Cendant no longer holds
it or can vote it. But if shareholders do not revoke their proxies, then Cendant
can exercise control by influencing the decision whether American Bankers should
merge with AIG. Cendant is more than just an agent; it is actively seeking to
control the vote.(1)
Finally, AIG's reading of the plain language of state insurance
statutes has recently received the support of the Office of the Attorney General
of the State of Arizona, which has stated its position that Cendant's
acquisition or voting of proxies representing more than 10% of American Bankers'
common shares will violate Arizona law unless Cendant has prior regulatory
approval. (See Exhibit B hereto.) On February 23, 1998, the Office of the
Arizona Attorney General restated its position that there was a statutory
presumption of control if Cendant held proxies representing more than 10% of
American Bankers' shares. (See Exhibit C hereto.) While the Arizona Attorney
General has made no final "judgment" on these issues, it is abundantly clear
that his interpretation of the plain language of the statute is correct. The
Arizona Attorney General's position is also consistent with the New York
Insurance Department's determination in 1990 that the acquisition by Torchmark
Corporation of proxies representing more than 10% of the outstanding shares of
- --------
(1) Cendant's argument that American Bankers' officers -- R. Kirk Landon, Gerald
N. Gaston and Arthur W. Heggen -- who are also holding proxies -- have not
received regulatory approval to hold such proxies (Def. Mem. at 10-11) ignores
the fact that those officers are acting on behalf of American Bankers. American
Bankers is obviously not seeking to take control of itself. Similarly, Cendant's
arguments that AIG is in control of American Bankers by virtue of the
contractual provisions in the Merger Agreement (Def. Mem. at 11) is not only
absurd on its face, it is completely irrelevant to the issue of whether
Cendant's solicitation of proxies violates state insurance laws.
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American General Corporation would violate New York law unless Torchmark had
prior regulatory approval. (See Exhibits D & E hereto.)
2. Federal Law Does Not Preempt the State Insurance Holding Company
Statutes. Cendant's heavy reliance on the two-page unreported memorandum opinion
granting a temporary restraining order to a bidder for a Tennessee insurance
company in Liberty Nat'l Life Ins. Co. v. Huddleston, No. 3:90-0368 (E.D. Tenn.
May 1, 1990) is misplaced. In Liberty Nat'l, the court issued a temporary
restraining order preventing the Tennessee insurance commissioner from enforcing
a cease and desist order against solicitation of proxies by Torchmark
Corporation to get representation on the board of directors of American General
Corporation. The Liberty Nat'l court did not have the benefit of a full record,
did not analyze Tennessee law and did not specify how the Williams Act was
inconsistent with Tennessee law. The court merely stated the conclusion that the
Tennessee insurance commissioner did not "possess the right to tell shareholders
how they may vote, or whether they may vote their shares, in person or by
proxy."
Cendant and the Liberty Nat'l court base their arguments on the false
premise that the State Insurance Holding Company Statutes regulate proxies. They
do not. The fundamental purpose of these statutes is to regulate the control of
insurance companies. See Centra, Inc. v. Chandler Ins. Co, Ltd., 540 N.W.2d 318,
331 (Neb. 1995) ("[T]he Act concerns itself solely with the acquisition of
domestic insurance companies. . . . The Act affects entities outside the
insurance industry only insofar as those entities choose to enter this rightly
regulated arena."), cert. denied, 116 S. Ct. 1681 (1996). Because the aim of the
state statutes is the protection of policyholders and the regulation of
insurance company-policyholder relations, they regulate the business of
insurance. See SEC v. National Sec., Inc., 393 U.S. 453, 459-60 (1969). See also
United States Dept. of the Treasury v. Fabe, 508 U.S. 491, 505 (1993) ("The
broad category of laws enacted 'for the purpose of regulating the business of
insurance' consists of laws that possess the 'end intention, or aim' of
adjusting, managing, or controlling the business of insurance. . . . This
category necessarily encompasses more than just the 'business of
insurance.'"(citations omitted)). As such, the insurance holding company
statutes fall squarely under the protection of the McCarran-Ferguson
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<PAGE> 7
Act, 15 U.S.C. Section 1011 et seq. MOREOVER, CONGRESS HAS EXPLICITLY RECOGNIZED
THAT THE WILLIAMS ACT DOES NOT PREEMPT THESE CHANGE OF CONTROL PROVISIONS:
Nothing contained in the Williams Act . . . invalidates, impairs or
supersedes current state insurance holding company laws. . . which
provide, for the protection of policyholders, a comprehensive scheme of
state regulation over the acquisition of control of the insurance
companies. These laws are protected from Federal preemption by the
McCarran-Ferguson Act.
S. Rep. No. 100-265, 100th Cong., 1st Sess. 53 (1987) (emphasis added). See also
John Alden Life Ins. Co. v. Woods, 1981 U.S. Dist. LEXIS 17438, at * 15 (D.
Idaho Dec. 19, 1981) ("The Williams Act deals with the regulation of securities;
as such, it certainly does not relate to the business of insurance."). Here,
nobody is telling American Bankers' shareholders how or whether they may vote;
rather, AIG seeks an order enjoining Cendant from collecting proxies until it
makes full corrective disclosure and it has prior regulatory approval. Contrary
to Cendant's assertion (Def. Mem. at 15), American Bankers' shareholders can
vote against the AIG Merger by tendering their proxies to American Bankers with
that instruction.
3. The State Insurance Statutes Do Not Violate the Commerce Clause.
Cendant's Commerce Clause argument is meritless, because the Supreme Court has
held that "Congress removed all Commerce Clause limitations on the authority of
the States to regulate . . . the business of insurance when it passed the
McCarran-Ferguson Act." Western & Southern L.I. Co. v. Bd. of Equalization, 451
U.S. 648, 652 (1982). Therefore, "any action taken by a State within the scope
of the congressional authorization is rendered invulnerable to Commerce Clause
challenge." Id.
Moreover, the overwhelming weight of authority holds that, "even if the
[state insurance holding company statutes] were not afforded the protection
under McCarran-Ferguson," they would not "impermissibly burden interstate
commerce." Hoylake Invs. Ltd. v. Gallinger, 722 F. Supp. 573, 578 (D. Ariz.
1989). See also Hoylake Invs. Ltd. v. Bell, 723 F. Supp. 576, 579 (D. Kan. 1989)
("the state's interests in the Kansas Act outweighs the indirect effect that act
has on interstate commerce, and thus is not an unconstitutional interference of
interstate commerce"); John Alden Life Ins. Co. 1981 U.S. Dist. LEXIS 17438 at *
17; Centra, 540 N.W.2d at 332 ("The Act . . . poses no threat of inconsistent
regulations, since it regulates only the internal affairs of
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<PAGE> 8
insurers registered in Nebraska."). Cendant's reliance on National City Lines,
Inc. v. LLC Corp., 1981 WL 1712 (W.D. Mo. Dec. 2, 1981), is misplaced, because,
the Eighth Circuit held, on appeal, that the Missouri Insurance Act did not even
apply. National City Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1134-35 (8th Cir.
1982). Therefore, the district court's holding has no precedential value.(2)
4. Cendant Will Continue to Violate Section 14(a) Until It Circulates a
Prospectus to American Bankers' Shareholders. On February 19, 1998, Cendant
conceded the validity of AIG's claims and filed a preliminary registration
statement with the SEC. Cendant, however, has not filed a final registration
statement or circulated a prospectus to American Bankers' shareholders.
Furthermore, Cendant's preliminary registration statement does not contain
essential information. (3)
In arguing that "Cendant is under no obligation at this stage, while
its all-cash tender offer is pending, to file or disseminate to American Bankers
shareholders any registration statement or prospectus" (Def. Mem. at 6), Cendant
completely ignores the release issued by the Division of Corporation Finance of
the SEC that requires a competing bidder for a target company to file a
registration statement and deliver a prospectus to shareholders when it -- like
Cendant -- solicits the target's shareholders to vote against a merger by
touting its competing offer as superior. See SEC Release Current Issues and
Rulemaking Projects (Nov. 7, 1997). (See Exhibit F hereto.)
- --------
(2) Cendant has not even begun to demonstrate how the state insurance holding
company statutes violate the Full Faith and Credit Clause. American Bankers'
shareholders are free to return the proxy card circulated by American Bankers
and check the "no" box to vote against the AIG Merger. That Cendant may be
restricted from soliciting proxies because it refuses to comply with the state
laws which legitimately regulate domestic insurance corporations does not
violate the Full Faith and Credit Clause.
(3)At a bare minimum, a registration statement that complied with the Securities
Act of 1933 would contain a detailed analysis of the risks of holding Cendant
shares, Cendant's plans for American Bankers if it becomes part of Cendant, pro
forma financial statements for the merged entity, detailed information about
Cendant's lush compensation arrangements with its officers and directors
(including Silverman's recent exercise of stock options and immediate sale of
$62 million worth of Cendant stock) and other financial information that
shareholders need to make a proper and informed decision whether to vote for or
against the AIG Merger. See 17 C.F.R. Sections 229.101, 229.301, 229.303,
229.305, 229.402, and 229.503; Instructions to Form S-4 Items 3(e), 3(f), 4 and
5.
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Cendant suggests that the Court can infer from the fact the SEC cleared
Cendant's proxy materials for distribution that the SEC concluded that Cendant
was not required to file a registration statement or to distribute a prospectus
to American Bankers' shareholders. (Def. Mem. at 7.) (4) That is simply not
true. Cendant submits the Affidavit of Eric J. Friedman, its outside counsel,
which selectively recounts various communications Mr. Friedman had with the SEC
on the issue of whether Cendant was required file a Registration Statement. Mr.
Friedman concedes that the SEC was concerned enough about the issue to request
that Cendant submit a letter setting forth its position. (Friedman Aff. P. 2.)
Although Mr. Friedman refers to a February 10, 1998 letter that he sent to the
SEC responding to its request, Mr. Friedman does not attach a copy of that
letter. Mr. Friedman's concession that Cendant filed a preliminary registration
statement with the SEC on February 13, 1998 -- only three days after it
submitted a letter stating its position that it was not required to file a
registration statement -- underscores the merit of AIG's claim. That Cendant
filed a registration statement before the SEC ruled on the issue, does not
permit an inference that the SEC determined that Cendant was not required to
file a Registration Statement.
Moreover, Cendant concedes that the SEC never requested that "Cendant
address whether the securities laws compel dissemination of a registration
statement or prospectus to American Bankers' shareholders." (Def. Mem. at 7,
emphasis in original.) Because the SEC did not consider that issue at all, its
clearance of the proxy materials has no bearing on Cendant's obligation to
disseminate a prospectus to the shareholders.
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(4) Cendant's assertion that the SEC's clearance of proxy materials "is entitled
to substantial weight" on a preliminary injunction motion" not only misstates
the law, it misses the point. (Def. Mem. at 7, emphasis added.) In Pabst Brewing
Co. v. Jacobs, 549 F.Supp. 1068 (D. Del. 1982), the court stated that courts
generally "refuse[ ] to accord weight to a clearance of proxy materials by the
SEC staff. . . . . A limited exception exists, however, where the precise
factual or legal question has been brought to the attention of the SEC prior to
the issue of the form, and the SEC has subsequently allowed the form to be sent
to the shareholders without modification. In that situation, the SEC's inaction
may be accorded some weight. . . . This does not mean, however, that this Court
is relieved of its obligation to exercise its independent judgment as to whether
the [filing] complied with [SEC rules]." Id. at 1076 (emphasis added). No weight
should be given to SEC clearance here, however, because the SEC cleared
Cendant's proxy materials, not its registration statement.
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Cendant's assertion that AIG has no "standing" to assert a claim under
Section 5 of the Securities Act of 1933 completely misses the point. (Def. Mem.
at 6.) AIG has not asserted a claim based on a violation of Section 5 "standing
alone." (See cases cited at Def. Mem. at 6.) Rather, AIG has stated a claim
under Section 14(a) of the Exchange Act because American Bankers' shareholders
are being deprived of critical important and material financial information that
they would receive if Cendant were to circulate a prospectus as it is required
to do. For the reasons discussed below, AIG has standing to bring a Section
14(a) claim.
5. AIG Has Standing to Assert the Section 14(a) Claim. AIG has standing
under Section 14(a) of the Securities Exchange Act of 1934 because "a
participant in a proxy contest may sue for injunctive relief for alleged
violations of the antifraud provision of the proxy rules." Capital Real Estate
Investors Tax Exempt Fund Ltd. Partnership v. Schwartzberg, 929 F. Supp. 105,
110 (S.D.N.Y. 1996). Because a proxy contestant has "an economic interest" in
the target corporation similar to that of the shareholders, it "will suffer real
injury if the [competing bidders] are permitted to solicit proxies on the basis
of false and misleading information. [The proxy contestant] is a genuine
participant in the proxy solicitation process" and is often the only person
"expected to have the information, motivation and financing to vindicate the
shareholders' . . . interests in fair and accurate disclosure." Id. at 108, 110.
Under these circumstances, a proxy contestant's "standing, in the constitutional
sense, cannot seriously be questioned." Id.
In addition, as part of the Merger Agreement, AIG entered into a Voting
Agreement with Gerald N. Gaston, the President and CEO of American Bankers, and
R. Kirk Landon, Chairman of the Board of American Bankers, which requires
Messrs. Gaston and Landon to vote all of the shares of American Bankers which
they beneficially own (approximately 8.2% of the outstanding shares) "in favor
of adoption and approval of the Merger Agreement and the Merger . . . and
against any action or proposal that would compete with" the AIG Merger. (See
Voting Agreement P. 2, attached hereto as Exhibit G.) Even the case cited by
Cendant recognizes that the hallmark for standing under Section 14(a) is "voting
rights." See 7547 Corp. v. Parker & Parsley Dev. Partners, L. P., 38 F.3d 211,
229-30 (5th Cir. 1994). Because AIG has contractual voting power over 8.2% of
the outstanding shares of American Bankers, AIG has standing pursuant to Section
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14(a). Finally, as a holder of an option to acquire 19.9% of American Bankers'
common shares, AIG has a further interest supporting its standing.
B. AIG HAS DEMONSTRATED IRREPARABLE HARM.
Contrary to Cendant's assertions that post-election relief is
sufficient, the Supreme Court has stated that the appropriate time for judicial
intervention in contests for corporate control is at the preliminary injunction
stage because this "'is the time when relief can best be given.'" Piper v.
Chris-Craft Indus., Inc., 430 U.S. 1, 41-42 (1977) (citations omitted). See also
Chambers v. Briggs & Stratton Corp., 863 F. Supp. 900, 906 (E.D. Wisc. 1994)
("That the court could later undo the damage caused by an illegal proxy -- by
voiding the results of the election -- is not an adequate alternative where, as
here, the court can prevent in advance a shareholder vote to be taken on
potentially misleading and incomplete information."). Cendant does not even
address the cases cited by AIG holding that shareholders will be irreparably
harmed if they are forced to vote on the basis of false and misleading
information. See Chambers, 863 F. Supp. at 905; Lewis v. General Employment
Enterprises, Inc., 1991 WL 11383 at * 3 (N.D. Ill. Jan. 21, 1991).
Cendant cites only one case involving a motion for a preliminary
injunction to enjoin a shareholder vote on a merger, and that court found no
irreparable harm because the parties agreed that the merger would not be
consummated for at least 18 months, which would allow the court sufficient time
to decide the case on the merits. See Union Pac. Corp. v. Santa Fe Pac. Corp.,
1994 WL 586924, at * 1 (Del. Ch. Oct. 18, 1994). AIG will have no such delay in
consummating its merger, because the insurance department hearings on approval
of the AIG Merger have been scheduled for March 17 and 18 in Florida (the week
before the shareholder vote on the merger) and for March 26 and 27 in Arizona
(concurrently with the shareholder vote).
C. THE BALANCE OF THE HARMS SUPPORTS INJUNCTIVE RELIEF.
Enjoining Cendant from soliciting proxies in violation of state
insurance laws and federal securities laws would not, as Cendant contends,
"restrai[n] . . . the exercise of shareholders' rights." (Def. Mem. at 19.)
American Bankers' shareholders would still be free to vote against the AIG
Merger either in person at the shareholders' meeting or by checking the "no" box
on the
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<PAGE> 12
proxies circulated by American Bankers. Although American Bankers' shareholders
will suffer irreparable injury if they are forced to vote on the basis of false
and misleading information or disenfranchised if they tender proxies that
Cendant cannot legally vote, Cendant will suffer no harm if it is enjoined from
violating the law.
CONCLUSION
For all the foregoing reasons, the Court should grant AIG's motion for
preliminary injunction.
Dated: March 9, 1998
STEEL HECTOR & DAVIS LLP
200 South Biscayne
Boulevard, Suite 4000
Miami, Florida 33131-2398
Of Counsel: (305) 577-7000
(305) 577-7001 Facsimile
Richard H. Klapper
Tariq Mundiya
Stephanie G. Wheeler
SULLIVAN & CROMWELL By: /s/ Alvin B. Davis
125 Broad Street Lewis F. Murphy, P.A.
New York, New York Florida Bar No. 308455
(212) 558-4000 Alvin B. Davis
(212) 558-3588 Facsimile Fla. Bar No. 218073
Alison S. Bieler
Fla. Bar No. 0933262
Attorneys for Plaintiffs American
International Group, Inc. and AIGF, Inc.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document
was served on the 9th day of March 1998 by hand on the following:
Robert T. Wright
Shutts & Bowen LLP
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131
and by facsimile and first-class mail on the following:
Jonathan J. Lerner
Skadden, Arps, Slate
Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
/s/ Alvin B. Davis
--------------------------
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