SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT, dated as of October 13, 1998 (the
"Agreement"), by and among American Bankers Insurance Group, Inc., a Florida
corporation ("ABIG"), Cendant Corporation, a Delaware corporation ("Cendant"),
and Season Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Cendant ("Season").
WHEREAS, ABIG, Cendant and Season have entered into the
Agreement and Plan of Merger, dated as of March 23, 1998 (the "Merger
Agreement"), pursuant to which, among other things, Season has offered to
purchase (the "Tender Offer") 23,501,260 shares of Common Stock, par value
$1.00 per share, of ABIG ("ABIG Common Share") at a price of $67.00 per ABIG
Common Share, and following consummation of the Tender Offer, ABIG will be
merged (the "Merger") into Season and each ABIG Common Share issued and
outstanding immediately prior to the effective time of the Merger (other than
ABIG Common Shares held by Cendant or Season) will be converted into, and
become exchangeable for, that number of shares of Common Stock, par value $.01
per share, of Cendant with a value of $67.00;
WHEREAS, requests have been made by certain regulators whose
approval is required prior to consummation of the Tender Offer and the Merger
for commitments from Cendant regarding ABIG that exceed statutory requirements
and any commitment made by Cendant in the Merger Agreement, which requests have
created uncertainty with respect to Cendant's possible acquisition of ABIG; and
WHEREAS, ABIG and Cendant believe it is in their respective
best interests, and in the best interests of their respective stockholders,
that the uncertainty with respect to Cendant's possible acquisition of ABIG be
resolved as promptly as possible.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Each of the parties hereto expressly agrees that (i) the
Merger Agreement shall be terminated pursuant to Section 8.1 thereof
immediately upon the execution and delivery of this Agreement and the receipt
by ABIG of the Termination Fee (as hereinafter defined) and (ii) as a result of
such termination, the Merger Agreement shall be null and void and of no further
effect, and no obligations or provisions thereunder shall survive such
termination. In addition, each of the parties hereto agrees that,
notwithstand-
ing Section 8.5(a) of the Merger Agreement, none of the parties thereto shall
have any liabilities or damages to the other parties thereto for any breach or
alleged breach of the Merger Agreement, including any willful breach. As
promptly as practicable after the execution hereof, as a result of the
termination of the Merger Agreement Cendant and Season agree to either
terminate the Tender Offer or permit the Tender Offer to expire by its terms
without any ABIG Common Shares being purchased pursuant thereto.
2. Simultaneously with the execution of this Agreement,
Cendant shall pay to ABIG $400 million (the "Termination Fee") by wire transfer
of same day funds to an account designated by ABIG.
3. Cendant agrees that upon execution of this Agreement, it
will take all necessary steps to withdraw any Form A applications that it has
pending with insurance regulatory authorities in order to obtain approval to
acquire control of ABIG and to withdraw from any proceedings or hearings in
connection therewith. Cendant further agrees that neither it nor any of its
officers, directors, employees, affiliates, agents or other representatives or
advisors, including, without limitation, legal, investment banking and
accounting advisors (all such persons, collectively, "Representatives") shall
take, directly or indirectly, any actions or make any statements intended to
frustrate or delay any merger or other business combination between ABIG and
any other party or to object to the acceptability of any other party as a
controlling person of ABIG.
4. Each of the parties hereto absolutely, fully and forever
releases the other parties and their respective affiliates, their respective
Representatives and stockholders, and their respective successors and assigns
(the "Released Parties") from any and all claims relating to the proposed
acquisition of ABIG by Cendant that any party hereto ever had, now has or
hereafter can, shall or may have against the Released Parties, from the
beginning of the world to the day of the date of this release, including,
without limitation, any claims asserted or that could have been asserted in
connection with the Merger Agreement, any Company Report or Parent Report (as
such terms are defined in the Merger Agreement) or any accounting issues at
former CUC International Inc. businesses; provided, however, that this Section
4 shall not include a release or discharge from any claim to enforce the
provisions of this Agreement.
5. Cendant hereby agrees to continue to be bound by the
confidentiality undertakings and agreements of the Confidentiality Agreement
(as such term is defined in the Merger Agreement) in accordance with the terms
thereof. ABIG hereby agrees to be bound by the confidentiality undertakings and
agreements of the Confidentiality Agreement with respect to information
furnished to ABIG by Cendant and, for this purpose, references in the
Confidentiality Agreement to the "Company" shall also be deemed to be
ref-
erences to Cendant and references in the Confidentiality Agreement to
"Evaluation Material" shall also be deemed to be references to any information
concerning Cendant (whether prepared by Cendant, its advisors or otherwise)
which has been furnished to ABIG by or on behalf of Cendant in connection with
the Merger.
6. Each of the parties hereto agrees that it shall not (i)
make or publish any statement which is, or may reasonably be considered to be,
disparaging of the other parties or their respective subsidiaries, affiliates,
directors, employees, products or services or (ii) take any action or encourage
the taking of any action by others which is, or may reasonably be considered to
be, adverse to the interests of the other parties in respect of the subject
matter of this Agreement.
7. Each of the parties hereby represents and warrants to the
others that (i) it is a corporation duly organized, validly existing and in
good standing under the laws of its state of organization and has the requisite
corporate power and authority to enter into and perform this Agreement; (ii)
the execution and delivery of this Agreement by it and the consummation by it
of the transactions contemplated hereby have been duly executed and delivered
by its duly authorized officer and constitutes a valid and binding obligation
of it; and (iii) the execution and delivery of this Agreement by it and the
consummation by it of the transactions contemplated hereby do not require the
consent, waiver, approval or authorization of or any filing with any
governmental or regulatory authority, agency, commission, body, court or other
governmental entity or any other person and will not violate, result in a
breach of or the acceleration of any obligation under, or constitute a default
under, any provision of such party's charter or by-laws, or any material
indenture, mortgage, lien, lease, agreement, contract, instrument, order, law,
rule, regulation, ordinance, judgment, decree or restriction by which it or any
of its subsidiaries or any of their respective properties or assets is bound.
8. This Agreement, together with the Merger Agreement and the
other documents referred to therein, contains the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings, oral or written, with
respect to such transactions. This Agreement may not be changed, amended or
modified orally, but may be changed only by an agreement in writing signed by
each of the parties hereto. This Agreement, and all of the parties' respective
rights and obligations hereunder, shall survive indefinitely and shall not be
affected, altered, abridged or terminated by virtue of the termination of the
Merger Agreement.
9. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together
shall constitute one and the same document, provided that this Agreement shall
not become effective until executed by all of the parties hereto.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (regardless of the laws that
might otherwise govern under applicable Delaware principles of conflicts of
law).
EACH PARTY HERETO AGREES THAT, IN CONNECTION WITH ANY LEGAL
SUIT OR PROCEEDING ARISING WITH RESPECT TO THIS AGREEMENT, IT SHALL SUBMIT TO
THE JURISDICTION OF THE CHANCERY COURT OF DELAWARE AND AGREES TO VENUE IN SUCH
COURT. EACH PARTY HEREBY APPOINTS THE SECRETARY OF SUCH PARTY AS ITS AGENT FOR
SERVICE OF PROCESS FOR PURPOSES OF THE FOREGOING SENTENCE ONLY.
11. Each party hereto will consult with the other parties
hereto before issuing any press release with respect to the transactions
contemplated by this Agreement; and no party shall issue any such press release
prior to such consultation except as may be required by law or the applicable
rules and regulations of the New York Stock Exchange.
12. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
13. The parties hereto agree that any breach of the
provisions of this Agreement would irreparably injure the other parties hereto
and that money damages would be an inadequate remedy therefor. Accordingly,
each party hereto shall be entitled to one or more injunctions enjoining any
such breach and requiring specific performance of this Agreement and consent to
the entry thereof, in addition to any other remedy to which that party is
entitled at law or in equity.
14. This Agreement is for settlement purposes only and will
not be used by the parties hereto in any litigation as an admission of any
liability or wrongdoing on the part of any party hereto or its Representatives,
other than litigation arising out of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
AMERICAN BANKERS INSURANCE GROUP, INC.
By: _______________________________________
Name:
Title:
CENDANT CORPORATION
By: _______________________________________
Name:
Title:
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
SEASON ACQUISITION CORP.
By: _______________________________________
Name:
Title:
