<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 26, 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:
<TABLE>
<S> <C>
[ ] Preliminary Proxy Statement [ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14A-6(e)(2))
[ ] Definitive Proxy Statement
[X] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
</TABLE>
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 the 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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<PAGE> 2
On February 25, 1998, American International Group, Inc. ("AIG") filed the
following Reply Memorandum in Support of Its Motion to Dismiss the Amended
Complaint as to AIG in the U.S. District Court for the Southern District of
Florida.
<PAGE> 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CENDANT CORPORATION; and
SEASONS ACQUISITION CORP., Case No. 98-0159 CIV-MOORE
Magistrate Judge Johnson
Plaintiffs,
v.
AMERICAN BANKERS INSURANCE GROUP,
INC.; GERALD N. GASTON; R. KIRK
LANDON; EUGENE M. MATALENE, JR.;
ARMANDO CODINA; PETER J. DOLARA;
JAMES F. JORDEN; BERNARD P. KNOTH;
ALBERT H. NAHMAD; NICHOLAS J. ST.
GEORGE; ROBERT C. STRAUSS; GEORGE
E. WILLIAMSON II; DARYL L. JONES;
NICHOLAS A. BUONICONTI; JACK F.
KEMP; AMERICAN INTERNATIONAL GROUP,
INC.; and AIGF, INC.,
Defendants.
- ----------------------------------/
REPLY MEMORANDUM OF LAW OF DEFENDANT AMERICAN
INTERNATIONAL GROUP, INC. IN SUPPORT OF ITS
MOTION TO DISMISS THE AMENDED COMPLAINT AS TO AIG
PRELIMINARY STATEMENT
Plaintiffs have not cited any authority to support their argument that
AIG was required to disclose in its Schedule 13D that Mr. Greenberg is a
"controlling person" of AIG, because the law requires no such disclosure. AIG
has disclosed all the required background information for Mr. Greenberg in its
Schedule 13D. Accordingly, Plaintiffs' Section 13(d) claim and their related
Section 14(a) and (e) claims should be dismissed.
<PAGE> 4
Case No. 98-0159 CIV-MOORE
In opposing AIG's motion to dismiss their various disclosure claims,
Plaintiffs have done nothing more than merely repeat the allegations in their
Amended Complaint, which AIG adequately addressed in its moving memorandum. To
the extent Plaintiffs raise any new arguments in their opposition brief, those
arguments directly contradict the arguments they made in support of their motion
to dismiss AIG's Amended Complaint against Cendant and Season in a related
action (Case No. 98-0247-CIV-MOORE). Plaintiffs cannot have it both ways.
Because there is no merit to Plaintiffs' securities claims against AIG, and
there is no diversity jurisdiction between AIG and Cendant, the Court should
dismiss the Amended Complaint against AIG in its entirety.
ARGUMENT
I. AIG Is Not Required to Disclose in its Schedule 13D
That Mr. Greenberg is a "Controlling Person."
Plaintiffs have failed to cite any authority to support their assertion
that AIG is required to label Mr. Greenberg as a "controlling person" in its
Schedule 13D. Tellingly, Plaintiffs' brief does not quote the text of Section
13(d) of the Exchange Act, 15 U.S.C. Section 78m(d), the SEC rules promulgated
thereunder, 17 C.F.R. Sections 240.13d-1 - 240.13d-7, or the Instructions
to Schedule 13D, because none of them requires a corporation to label a natural
person as a "controlling person." Thus, as a matter of law, Plaintiffs have
failed to state a claim under Section 13(d) of the Exchange Act.
Plaintiffs concede that "Instruction C to Schedule 13D requires
disclosures regarding `each person controlling such corporation.'" (Pla. Mem. at
5.) The disclosures required by Instruction C consist of background information
required in Item 2 (a) - (f). (See AIG's Motion
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Case No. 98-0159 CIV-MOORE
and Memorandum in Support of Its Motion to Dismiss the Amended Complaint as to
AIG (hereafter "AIG Moving Br.") at 11.) That disclosure is also required for
any person who is an officer, director or controlling person of a
corporation.(1/) Because Mr. Greenberg is an officer and director of AIG, AIG's
Schedule 13D discloses the information required by Item 2(a) - (f) for Mr.
Greenberg. That is all the law requires.
Plaintiffs have not cited a single case where a violation of Section
13(d) was based on a failure to label somebody a "controlling person."
Plaintiffs cite Gillette Co. v. RB Partners, 693 F. Supp. 1266 (D. Mass. 1988),
for the proposition that the failure to disclose information about who controls
a corporation is a violation of Section 13(d). (See Pla. Mem. at 6.) However,
the court in Gillette explicitly declined to address that issue, stating that it
was "not ripe yet for resolution." Id. at 1268. Nor have Plaintiffs cited any
authority to support their argument that a corporation is required to label its
Chief Executive Officer or President as a "controlling person" when the
corporation has disclosed on the Schedule 13D the officer's name, title, and all
of the background information required by Item 2(a) - (f) of the Schedule
13D.(2/)
- --------
1/ Instruction C to the Schedule 13D provides in relevant part:
If the statement is filed by a corporation. . . the
information called for [by Items 2-6] shall be given
with respect to: (a) each executive officer and
director of such corporation; (b) each person
controlling such corporation; and (c) each executive
officer and director of any corporation or other
person ultimately in control of such corporation.
(See Exhibit D to AIG's Moving Brief.)
2/ The other Section 13(d) cases cited by Plaintiffs are
inapplicable. Several of the cases involved allegations that
the defendants made false or misleading statements
(continued...)
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Case No. 98-0159 CIV-MOORE
II. Plaintiffs Have Failed to State a Claim Under Sections 14(a) and (e)
Because Even if Disclosure Were Required, AIG Has Disclosed Facts
Sufficient to Evaluate Mr. Greenberg's Possible Control of AIG.
In arguing that "disclosure of the fact of Greenberg's control is
nowhere to be found in the Schedule 13D or Proxy Statement" (Pla. Mem. at 7),
Plaintiffs simply ignore SEC Rule 12- 22, which requires disclosure only of "the
material facts pertinent to the possible existence of control," where, as here,
"the existence of control is open to reasonable doubt." 17 C.F.R. Section
240.12b-22. Thus, there is simply no legal basis for Plaintiffs' argument that
AIG was required to disclose that Mr. Greenberg is a controlling person of AIG.
Plaintiffs do not dispute that AIG's Schedule 13D discloses that Mr.
Greenberg is the Chairman, Chief Executive Officer and a Director of AIG, that
he is also an officer or director of the various Starr entities, that the Starr
entities collectively own 22.1% of the outstanding shares
- --------
2/(continued...)
in their Schedule 13(d) about their intent in acquiring more
than 5% of the outstanding shares of the corporation whose
stock they had purchased (Item 4 of the Schedule 13D). See Dan
River, Inc. v. Unitex Ltd., 624 F.2d 1216, 1228 (4th Cir.
1980) ("The key issue in this case is the defendants' motive
and intent in buying Dan River stock."), cert. denied, 449
U.S. 1101 (1981); Arvin Indus. v. Wanandi, 722 F. Supp. 532,
534 (S.D. Ind. 1989) (complaint alleged that defendant had
"fail[ed] to disclose his actual purpose in buying Arvin
stock"); Chromalloy American Corp. v. Sun Chem. Corp., 474 F.
Supp. 1341, 1347 (E.D. Mo.) ("issue presented at this time is
whether plaintiff has demonstrated a substantial likelihood
that it will ultimately prove defendants' intent to take
control"), aff'd, 611 F.2d 240 (8th Cir. 1979). Plaintiffs'
Amended Complaint does not challenge AIG's disclosure with
respect to its intention in acquiring more than 5% of the
outstanding shares of American Bankers. The other case cited
by Plaintiffs addresses a failure to disclose that persons
were acting as a group pursuant to Section 13(d)(3). See
Warner Communications, Inc. v. Murdoch, 581 F. Supp. 1482,
1499 (D. Del. 1984) (complaint alleges that "Warner and its
directors have violated Section 13(d) of the Exchange Act by
failing to disclose the existence of this group in a 13D
Statement").
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<PAGE> 7
Case No. 98-0159 CIV-MOORE
of AIG, and that many of the officers and directors of AIG are also officers or
directors of the Starr entities. Those disclosures are sufficient to alert a
reasonable shareholder that Mr. Greenberg exercises a degree of influence over
AIG. See TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 452 (1976)
(disclosure that National held 34% of the outstanding shares of TSC and that
there were interlocking directors "clearly revealed the nature of National's
relationship with TSC and alerted the reasonable shareholder to the fact that
National exercised a degree of influence over TSC").(3/)
Plaintiffs cite only one case in which a court found a violation of
Section 14(e) of the Exchange Act based on a corporation's failure to disclose
that a former executive controlled the corporation. See General Steel Indus.,
Inc. v. Walco Nat'l Corp.,1981 WL 17552 (E.D. Mo. Nov. 24, 1981). Walco is
clearly distinguishable, however, because Mr. Richmond no longer "served as
Walco's Chairman of the Board and President." Id. at *2. Thus, unlike Mr.
Greenberg, whose positions as Chief Executive Officer and Chairman of the Board
of AIG were disclosed in the Schedule 13D, Mr. Richmond's existence was not
disclosed anywhere in Walco's Schedule 14D-1. Despite having relinquished his
positions, Mr. Richmond continued to
- --------
3/ Plaintiffs' argument that the disclosures AIG made in its
April 4, 1997 Proxy Statement that AIG filed with the SEC are
insufficient to put the American Bankers shareholders on
notice of the possibility of Mr. Greenberg's control, because
the Proxy Statement was "never sent to, or even intended for
the benefit of, the American Bankers stockholders" (Pla. Mem.
at 9) is inconsistent with Cendant's and Seasons' assertion
that they mooted AIG's disclosure claims against them by
attaching a copy of AIG's Amended Complaint as an exhibit to
an amendment to its Schedule 14d-1 which was never sent to
American Bankers shareholders. (See Defendants' Memorandum of
Law In Support of Their Motion to Dismiss (Case No.
98-0247-CIV-MOORE) at 15-16.) This is discussed in more detail
infra at Section IV.
-5-
<PAGE> 8
Case No. 98-0159 CIV-MOORE
serve as chairman at the Board meetings and made all major business decisions
for the company. Id. It is reasonable for a shareholder to assume that Mr.
Greenberg as Chief Executive Officer and Chairman of the Board "exercised a
degree of influence over" AIG. See TSC, 426 U.S. at 452. In contrast, unless Mr.
Richmond's control were disclosed to shareholders, they would have no reason to
believe that, having resigned as President and Chairman of the Board, he would
continue to exercise any control over the corporation.
III. Plaintiffs Have Not Alleged That They Have Suffered
Any Injury As a Result of AIG's Failure to Label Mr.
Greenberg As A Controlling Person.
Although their Amended Complaint seeks preliminary and permanent
injunctive relief with respect to AIG's alleged Section 13(d) violation,
Plaintiffs have neither alleged nor demonstrated how AIG's failure to label Mr.
Greenberg as a controlling person has caused Plaintiffs any injury at all, let
alone the irreparable harm necessary for injunctive relief under Section 13(d).
See Wellman v. Dickinson, 497 F. Supp. 824, 836 (S.D.N.Y. 1980) ("[I]njunctive
relief cannot be secured without establishment of the basic requirement that
irreparable harm has resulted from the 13(d) violation."), aff'd, 682 F.2d 355
(2d Cir. 1982), cert. denied, 460 U.S. 1069 (1983). The Supreme Court has held
that Plaintiffs are "by no means . . . relieved of the burden of establishing
the traditional prerequisites of [injunctive] relief" for a Section 13(d)
violation. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 63 (1975). Because the
Amended Complaint does not even allege that AIG's alleged violation of Section
13(d) has caused Plaintiffs any harm -- let alone irreparable harm -- "no
actionable wrong has occurred." Wellman, 497 F. Supp. at 836.
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<PAGE> 9
Case No. 98-0159 CIV-MOORE
IV. Under Cendant's Theory of Corrective Disclosure,
AIG's Disclosure to American Bankers Shareholders
Renders Cendant's Claims Moot.
Although AIG believes that no corrective disclosure is required in this
case, it notes that in opposing AIG's motion to dismiss the complaint in the
related action American International Group, Inc., et al. v. Cendant Corp., et
al., 98-0247-CIV-MOORE, Cendant has argued that AIG's disclosure claims against
Cendant have been rendered moot, because Cendant has attached a copy of AIG's
Amended Complaint as an exhibit to an amendment to the Schedule 14d-1 that
Cendant filed with the SEC but did not send to American Bankers' shareholders.
(See Defendants' Memorandum in Support of their Motion to Dismiss at 15-16.)
Cendant's argument is without merit, because "corrective" disclosure that is not
sent to American Bankers' shareholders is not effective to correct false and
misleading statements made to shareholders. See United Paperworkers Int'l Union
v. Int'l Paper Co., 985 F.2d 1190, 1199 (2d Cir. 1993) ("Corporate documents
that have not been distributed to shareholders entitled to vote on the proposal
should rarely be considered part of the total mix of information reasonably
available to those shareholders"). Nonetheless, if the Court is inclined to
accept Cendant's position, then the same reasoning should render moot Cendant's
Section 13(d) claim against AIG. In a Joint Proxy Statement dated January 30,
1998 that was mailed to American Bankers' shareholders, AIG and American Bankers
disclosed the basis of Cendant's complaint against AIG. (See Joint Proxy
Statement at 37, attached hereto as Exhibit A.) Such corrective disclosure --
because it went directly to the American Bankers' shareholders -- renders moot
Cendant's Section 13(d) claim against AIG.
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Case No. 98-0159 CIV-MOORE
V. Plaintiffs Fail to State a Claim Under
Sections 14(a) and 14(e) of the Exchange Act.
In their opposition brief, Plaintiffs discuss seven allegedly false or
misleading statements in the Joint Proxy Statement. (See Pla. Mem. at 10-20.)
However, Plaintiffs for the most part merely repeat the allegations contained in
their Amended Complaint without adding anything new. Because AIG addressed each
of the seven allegations at length in its opening brief, AIG will limit its
response to the new arguments raised in Plaintiffs' opposition brief or those
that contradict the arguments Plaintiffs asserted in the related action (Case
No. 98-0247-CIV-MOORE).
A. AIG's Opinion that It Expects to Complete the Merger During March
1998
Plaintiffs' apparent disagreement with AIG's opinion that the AIG
Merger can be completed in March 1998 does not give rise to a cause of action
for securities fraud. It is well-established that AIG's statement of opinion is
not actionable unless there was no basis for that opinion. In re Time Warner
Sec. Litig., 9 F.3d 259, 266 (2d Cir. 1993), cert. denied, 511 U.S. 1017 (1994).
The Proxy Statement discloses that AIG had already made all of the applicable
regulatory filings. The insurance commissioners of the States of Arizona and
Florida have already scheduled hearings on the approval of the AIG merger for
March 6 and 17, respectively. Moreover, the Proxy Statement clearly disclosed
the fact that "[t]here can be no assurance that the required regulatory
approvals described above will be received or, if received, the timing and the
terms and conditions thereof." (Joint Proxy Statement at 34, attached hereto as
Exhibit A)
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Case No. 98-0159 CIV-MOORE
(emphasis added).(4/)
Moreover, Plaintiffs' argument here directly contradicts the one they
made in their Memorandum of Law in Support of Their Motion to Dismiss the
Amended Complaint filed on February 13, 1997 in the related action (Case No.
98-0247-CIV-MOORE). In response to AIG's arguments that Mr. Silverman's
statements about the expected timing of regulatory approval for the Cendant
Proposal were false and misleading, Cendant and Season argued that AIG had
failed to state a claim because such statements of opinion are not actionable.
(See Defendants' Memorandum of Law in Support of Their Motion to Dismiss
Plaintiffs' Amended Complaint at 16.) Plaintiffs cannot have it both ways.
B. The Expense Savings
Plaintiffs contradict themselves again with respect to expense savings
and synergies that result from the proposed mergers. In opposing AIG's motion to
dismiss, Plaintiffs argue that the Joint Proxy Statement is materially false and
misleading because it "conceals" the source of the expense savings to be
achieved through the AIG merger. (Pla. Mem. at 17; Am. Compl. Paragraph 59.)
Although Mr. Silverman clearly "conceal[ed] the source of the [$140 million] in
expense savings" that he claimed would be achieved by a merger of Cendant and
American Bankers, Cendant and Season argued that his statement of opinion was
not actionable because "AIG
- --------
4/ Plaintiffs urge the Court to consider matters outside of the pleadings
in deciding AIG's motion to dismiss. (See Pla. Mem. at 16.) Even if the
Court were to consider the Salomon Smith Barney document relied on by
Plaintiffs, the fact that Salomon Smith Barney's opinion as to the
expected timing of the AIG merger differed slightly from AIG's opinion
provides no support for the argument that AIG had no basis for its
opinion.
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Case No. 98-0159 CIV-MOORE
pleads no facts which suggest that Cendant does not believe those savings can be
achieved." (Defendants' Memorandum of Law in Support of Their Motion to Dismiss,
Case No. 98-0247-CIV-MOORE, at 13.) Because Plaintiffs have not alleged that AIG
does not believe that it can achieve expense savings, AIG's statements about
expense savings are not actionable.
CONCLUSION
For the foregoing reasons and those set forth in AIG's Memorandum of
Law in Support of Its Motion to Dismiss the Complaint as to AIG, defendant AIG
respectfully requests that the Court grant its motion to dismiss the Amended
Complaint against AIG.
Dated: February 25, 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/ Lewis F. Murphy
125 Broad Street -----------------------------
New York, New York Lewis F. Murphy
(212) 558-4000 Florida Bar No. 308455
(212) 558-3588 Facsimile
Attorneys for Defendants
American International Group, Inc.
and AIGF, Inc.
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Case No. 98-0159 CIV-MOORE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this document was
served on the 25th day of February, 1998 via facsimile and U.S. Mail on the
following:
Jill S. Abrams
Abbey Gardy & Squitieri
212 East 39th Street
New York, New York 10016
Robert C. Myers
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
Johnathan J. Lerner
Skadden, Arps, Slate,
Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Michael J. Pucillo
Wendy Zoberman
Burt & Pucillo, L.L.P.
222 Lakeview Avenue
Suite 300 East
West Palm Beach, Florida 33401
Jules Brody
Stull, Stull & Brody
6 East 45th Street
Suite 500
New York, New York 10017
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Case No. 98-0159 CIV-MOORE
Robert C. Susser
Robert C. Susser, P.C.
6 East 43rd Street
Suite 1900
New York, New York 10017-4609
and via hand delivery on the following:
Josephine Cicchetti
Franklin G. Burt
Jorden Burt Berenson & Johnson LLP
777 Brickell Avenue
Suite 500
Miami, Florida 33131
Robert T. Wright, Jr.
Schutts & Bowen LLP
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131
Robert Boyers
Leesfield, Leighton, Rubio
& Mahfood, P.A.
2350 South Dixie Highway
Miami, Florida 33133
Peter H. Rachman
Emily C. Komlossy
Goodkind Labaton Rudoff & Sucharow LLP
200 South Biscayne Boulevard
Suite 2100
Miami, Florida 33131
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