Exhibit 3.3
FORM OF
SHAREHOLDERS' AGREEMENT
dated as of
-, 2004
between
ASSURANT, INC.
and
FORTIS INSURANCE N.V.
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions............................................... 1
ARTICLE 2
CORPORATE GOVERNANCE
Section 2.01. Composition of the Board.................................. 3
Section 2.02. Removal................................................... 4
Section 2.03. Vacancies................................................. 5
Section 2.04. Actions By The Company.................................... 5
Section 2.05. Action by the Board....................................... 5
Section 2.06. Notice of Meeting......................................... 5
Section 2.07. Required Consents......................................... 6
Section 2.08. Conflicting Agreements.................................... 7
ARTICLE 3
REGISTRATION RIGHTS
Section 3.01. Registration Rights Agreement............................. 7
ARTICLE 4
MISCELLANEOUS
Section 4.01. Binding Effect; Assignability; Benefit.................... 8
Section 4.02. Notices................................................... 8
Section 4.03. Waiver; Amendment; Termination............................ 9
Section 4.04. Governing Law............................................. 9
Section 4.05. Specific Enforcement...................................... 9
Section 4.06. Counterparts; Effectiveness............................... 9
Section 4.07. Entire Agreement.......................................... 10
Section 4.08. Captions.................................................. 10
Section 4.09. Severability.............................................. 10
Exhibit A Registration Rights Agreement
ii
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT (the "AGREEMENT") dated as of -, 2004 between
Assurant, Inc., a Delaware corporation (the "COMPANY") and Fortis Insurance
N.V., a company with limited liability incorporated as naamloze vennootschap
under Dutch law ("FORTIS INSURANCE"), as a majority shareholder of the Company.
W I T N E S S E T H :
WHEREAS, Fortis Insurance owns - shares of common stock, par value
$0.01 per share, of the Company (the "COMMON STOCK");
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company and Fortis Insurance are offering Common Stock to the
public in an underwritten secondary offering registered under the Securities Act
pursuant to a registration statement on Form S-1, File No. 333-109984 (the "IPO
REGISTRATION STATEMENT");
WHEREAS, upon completion of such offering, Fortis Insurance will
continue to own -% of the Common Stock outstanding (or -% of the underwriters'
over allotment option is exercised); and
WHEREAS, the parties hereto desire to enter into this Agreement to
govern certain of their rights, duties and obligations relating to the Company
following completion of such offering.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. For the purpose of this definition, the term "CONTROL" (including,
with correlative meanings, the terms "CONTROLLING", "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise provided that the term
Affiliate when
used in the context of calculating the Fortis Group's percentage ownership of
the Common Stock shall exclude officers and directors of the Fortis Group.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City, Belgium or the Netherlands are
authorized or obligated by law or executive order to close.
"BYLAWS" means the Amended and Restated Bylaws of the Company, as the
same may be amended from time to time.
"CAUSE" has the meaning set forth in Section 2.02.
"CHARTER" means the Restated Certificate of Incorporation of the
Company, as the same may be amended from time to time.
"COMMON STOCK" has the meaning set forth in the first recital.
"COMPANY" has the meaning set forth in the preamble.
"FORTIS" means Fortis SA/NV a public company established as a societe
anonyme/naamloze vennootschap under the laws of Belgium and Fortis N.V., a
public company established as a naamloze vennootschap under the laws of the
Netherlands.
"FORTIS DESIGNEE" means a director designated by Fortis Insurance to
serve on the Company's Board as provided for in Article 2 hereof.
"FORTIS GROUP" means Fortis, including Fortis Insurance, and their
respective Affiliates, other than the Company and its Subsidiaries.
"FORTIS INSURANCE" has the meaning set forth in the preamble to this
Agreement.
"INDEPENDENT DIRECTOR" means an independent director within the meaning
given to such term under the rules of the New York Stock Exchange or such other
principal exchange or quotation system on which the Company's Common Stock is
listed or traded and under the Xxxxxxxx-Xxxxx Act of 2002.
"IPO" means the initial public offering of the Company pursuant to the
IPO Registration Statement.
"IPO REGISTRATION STATEMENT" means the registration statement on Form
S-1, (File No. 333-109984) prepared by the Company for the secondary offering by
Fortis Insurance of Common Stock of the Company.
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"OUTSTANDING" means, as of any date of determination, all shares of
Common Stock that have been issued on or prior to such date, other than shares
of Common Stock repurchased or otherwise reacquired by the Company or any of its
Affiliates other than the Fortis Group.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PRINCIPAL SUBSIDIARY" means, any Subsidiary, which from time to time
shall satisfy any of the tests included in the definition of "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
"REGISTRATION RIGHTS AGREEMENT" means the agreement dated as of -, 2004
between the Company and Fortis Insurance attached as Exhibit A hereto.
"SUBSIDIARY" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
ARTICLE 2
CORPORATE GOVERNANCE
Section 2.01. Composition of the Board. (a) The Board shall consist of
(x) no more than fourteen (14) directors for so long as Fortis Group owns at
least 50% of the outstanding Common Stock and (y) no more than twelve (12)
directors for so long as Fortis Group owns less than 50% but at least 10% of the
Outstanding Common Stock, subject to any increase in the Board as a result of
the rights of holders of preferred stock to elect directors. The Board shall
nominate designees of Fortis Group and other directors as follows, unless, based
on the advice of counsel, such nomination would be inconsistent with the
fiduciary duties of the members of the Board:
(i) so long as Fortis Group owns at least 50% of the
Outstanding Common Stock, five Fortis Designees and at most nine other
directors, subject to any increase in the Board as a result of the
rights of holders of preferred stock to elect directors, including at
least five Independent Directors if there are twelve or fewer directors
and at least six Independent Directors at all other times;
(ii) so long as Fortis Group owns less than 50% but at
least 10% of the Outstanding Common Stock, two Fortis Designees and at
most ten other directors, subject to any increase in the Board as a
result of the rights of holders of preferred stock to elect directors,
including at least seven Independent Directors; and
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(iii) so long as Fortis Group owns less than 10% but at
least 5% of the Outstanding Common Stock, the Fortis Group shall
continue to have the right to have one Fortis Designee on the Board.
(b) The Company agrees that (i) for so long as Fortis Group owns
shares entitled to 50% or more of the votes entitled to be cast by the then
Outstanding Common Stock, it shall not, and shall use its best efforts to cause
the Board not to, alter the number of directors that comprise the Board if such
action would result in more than 14 directors and (ii) for so long as Fortis
Group owns shares entitled to less than 50% but at least 10% of the votes
entitled to be cast by the then Outstanding Common Stock it shall not, and shall
use its best efforts to cause the Board not to, alter the number of directors
that comprise the Board if such action would result in more than 12 directors.
(c) As provided for in the Charter and Bylaws, the directors shall
be divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board. It is hereby agreed that at
the time of the IPO three Fortis Designees shall be designated as Class II
directors and two Fortis Designees shall be designated as Class III directors.
The Fortis Designees on the Board as of the date of this Agreement are Xxxxx xxx
Xxxxxx, Xxxx Xxxxxxxx Fakkert, Xxxxxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxxx and Xxxxxx
Xxxxx. The initial Fortis Designees to be designated Class II directors shall be
Xxxxx xxx Xxxxxx, Xxxx Xxxxxxxx Fakkert and Xxxxxxx Xxxxxxxxxxx, and the initial
Fortis Designees to be designated as Class III directors shall be Xxxxxx Xxxxx
and Xxxxxxx Xxxxxxx. If at the end of the respective terms for such Fortis
Designees included in such class, Fortis shall continue to be entitled to have
Fortis Designees represented on the Board, each such position shall be filled at
such time by a Person who shall be nominated by Fortis Insurance.
(d) Fortis Insurance shall cause the appropriate number of Fortis
Designees to resign promptly at any time when the number of Fortis Designees on
the Board exceeds the number of Fortis Designees to which the Fortis Group is
entitled pursuant to Section 2.01(a) above, unless otherwise requested by the
Company.
(e) Fortis Insurance agrees that it will not take any action as a
shareholder, whether through proxy solicitation or otherwise, that would result
in the Fortis Group having Fortis Designees on the Board in numbers which exceed
that provided in Section 2.01(a) above.
Section 2.02. Removal. Any Fortis Designee will resign or retire from
the Board at the written request of Fortis Insurance. Otherwise, no Fortis
Designee may be removed from the Board unless such removal shall be for Cause
and consented to by Fortis Insurance. Removal for "CAUSE" shall mean removal of
a
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director because of such director's (a) willful and continued failure
substantially to perform his or her duties with the Company in his or her
established position, (b) willful conduct that is injurious, monetarily or
otherwise, to the Company or any of its Subsidiaries, (c) conviction for, or
guilty plea to, a felony or a crime involving moral turpitude, (d) abuse of
illegal drugs or other controlled substances or habitual intoxication or (e)
willful breach of this Agreement.
Section 2.03. Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without Cause) or otherwise, there
shall exist or occur any vacancy on the Board with respect to a Fortis Designee,
or for any other reason there are at any time fewer Fortis Designees serving on
the Board than are entitled to be designated by Fortis Insurance as provided for
in Section 2.01, the resulting vacancy on the Board shall be filled at any time
by a Person who shall be nominated by Fortis Insurance unless, based on the
advice of counsel, such nomination would be inconsistent with the fiduciary
duties of the members of the Board.
Section 2.04. Actions By The Company. The Company agrees to use its
best efforts to cause each individual designated pursuant to Section 2.01 or
2.03 to be nominated to serve as a director on the Board, unless, based on the
advice of counsel, such nomination would be inconsistent with the fiduciary
duties of the members of the Board, and to take all other necessary actions so
long as such actions are consistent with the Charter and Bylaws (including
calling a special meeting of the Board and/or shareholders) to ensure that the
composition of the Board is as set forth in Sections 2.01 and 2.03.
Section 2.05. Action by the Board. (a) Subject to Section 2.07, all
actions of the Board shall require (i) the affirmative vote of at least a
majority of the directors present at a duly-convened meeting of the Board at
which a quorum is present or (ii) the unanimous written consent of the Board,
provided that if there is a vacancy on the Board and an individual has been
nominated to fill such vacancy, the first order of business shall be to fill
such vacancy.
(b) At any time that the Company proposes to register any of its
securities that would require it to notify Fortis Insurance of its right to
"piggy-back" on such offering in accordance with Section 2.02 of the
Registration Rights Agreement and it creates a pricing committee authorized by
the Board to determine, among other things, the syndicate structure, if any, and
the size and offer price for the offering, it shall include on such pricing
committee a Fortis Designee, which Fortis Designee shall be chosen by Fortis
Insurance.
Section 2.06. Notice of Meeting. The Company agrees to give each
director notice and the agenda for each meeting of the Board or any committee
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thereof (even if such director is not a member of such committee) at least five
Business Days prior to such meeting.
Section 2.07. Required Consents. (a) For so long as the Fortis Group
owns at least 50% of the outstanding Common Stock, the Company shall not take
any action (including any action by the Board or any committee of the Board)
after the date hereof with respect to any of the following matters without the
affirmative approval of at least 75% (rounded to the nearest whole number of
directors with 0.5 rounded upwards) of the then members of the Board:
- any recapitalization, reclassification, spin-off or
combination of any securities of the Company or any of
its Principal Subsidiaries, except for any such
reorganization, recapitalization or reclassification
of any securities of any direct or indirect wholly-owned
Principal Subsidiary or any merger of any direct or indirect
wholly-owned Principal Subsidiary with each other,
- any liquidation, dissolution, winding up or commencement of
voluntary bankruptcy, insolvency, liquidation or similar
proceedings with respect to the Company or any of its
Principal Subsidiaries,
- any acquisition by the Company or any of its Subsidiaries (in
a single transaction or a series of related transactions) of
any assets, business or operations in the aggregate with a
value of more than $500 million,
- any sale, transfer, lease, pledge or other disposition by the
Company or any of its Subsidiaries (in a single transaction or
a series of related transactions) of any assets, business or
operations in the aggregate with a value of more than $500
million,
- the creation, incurrence, or assumption of any indebtedness of
the Company or any of its Subsidiaries resulting in total
indebtedness (including short and long term debt) in excess of
$1,500 million on a consolidated basis; or
- any offer or sale, whether privately or to the public, of
Common Shares or other equity securities or securities
convertible or exchangeable into equity securities of the
Company in excess of 10% of the Common Stock outstanding or
such amounts which, on completion of any such sale, would
reduce Fortis Group's ownership to below 50% of the
outstanding Common Stock.
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The Company shall include a provision in its Bylaws to the foregoing
effect which Bylaw provision by its terms shall terminate when the conditions
described above are no longer applicable to the Fortis Group.
(b) For so long as Fortis Group owns less than 50% but at least
10% of the outstanding Common Stock, the Company shall not take any action
(including any action by the Board or any committee of the Board) after the date
hereof with respect to any of the following matters without the affirmative
approval of Fortis Insurance, as shareholder:
- any recapitalization, reclassification, spin-off or
combination of any securities of the Company or any of
its Principal Subsidiaries, or
- any liquidation, dissolution, winding up or commencement of
voluntary bankruptcy, insolvency, liquidation or similar
proceedings with respect to the Company or any of its
Subsidiaries.
In the case of any vote of shareholders with respect to any of the events
described above, if the Board, including any Fortis Designee, votes in favor of
such action at any Board meeting at which a quorum is present or by written
consent, Fortis Insurance shall vote its shares of Common Stock in favor of such
action and Fortis Insurance hereby grants to the Company an irrevocable proxy
coupled with an interest to effect such vote.
Section 2.08. Conflicting Agreements. Each party represents and agrees
that it shall not (a) grant any proxy or enter into or agree to be bound by any
voting trust or agreement with respect to the securities of the Company other
than this Agreement or any amendment or supplement hereto, (b) enter into any
agreement or arrangement of any kind with any Person with respect to the
securities of the Company inconsistent with the provisions of this Agreement or
(c) act, for any reason, as a member of a group or in concert with any other
Person in connection with the voting of the securities of the Company in any
manner that is inconsistent with the provisions of this Agreement.
ARTICLE 3
REGISTRATION RIGHTS
Section 3.01. Registration Rights Agreement. The Company agrees to
provide Fortis Insurance with registration rights with respect to Common Stock
owned by it or other members of the Fortis Group as set forth in the
Registration Rights Agreement attached hereto as Exhibit A.
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ARTICLE 4
MISCELLANEOUS
Section 4.01. Binding Effect; Assignability; Benefit. (a) This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors, legal representatives and permitted
assigns. Neither this Agreement nor any right, remedy, obligation or liability
arising hereunder or by reason hereof shall be assignable by any party hereto
pursuant to any transfer of the securities of the Company.
(b) Nothing in this Agreement, expressed or implied, is intended
to confer on any Person other than the parties hereto, and their respective
heirs, successors, legal representatives and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
Section 4.02. Notices. All notices, requests and other communications
to any party shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by facsimile
transmission,
if to the Company, to:
Assurant, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxxxx, Esq.
Senior Vice President, General Counsel and Secretary
Fax: (000) 000-0000
if to Fortis Insurance, to:
Fortis Insurance N.V.
Archimedeslaan 6
P.O. Box 2049
3500 GA Utrecht
The Netherlands
Attention: Xxxxxx Xxxxxxx
Phone: x00 00 000 0000
Fax: x00 00 000 0000
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with a copy to:
Fortis
Xxx Xxxxxx, 00
0000 Xxxxxxxx
Xxxxxxx
Attention: Xxxxxxx Xxxxxxx
Phone: x00 0 000 0000
Fax: x00 0 000 0000
All notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5:00 p.m.
in the place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
Any notice, request or other written communication sent by facsimile
transmission shall be confirmed by certified or registered mail, return receipt
requested, posted within one Business Day, or by personal delivery, whether
courier or otherwise, made within two Business Days after the date of such
facsimile transmissions.
Section 4.03. Waiver; Amendment; Termination. No provision of this
Agreement may be amended, supplemented or modified, and waivers or consents to
depart from the provisions hereof may not be given, except by an instrument in
writing executed by the parties hereto. This Agreement shall terminate upon, and
be of no further force and effect once Fortis Group owns less than 5% of the
outstanding Common Stock.
Section 4.04. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts to be performed entirely within such state.
Section 4.05. Specific Enforcement. Each party hereto acknowledges that
the remedies at law of the other parties for a breach or threatened breach of
this Agreement would be inadequate and, in recognition of this fact, any party
to this Agreement, without posting any bond, and in addition to all other
remedies that may be available, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy that may then be available.
Section 4.06. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto.
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Section 4.07. Entire Agreement. This Agreement, including any exhibit
hereto, constitutes the entire agreement among the parties hereto and supersedes
all prior and contemporaneous agreements and understandings, both oral and
written, among the parties hereto with respect to the subject matter hereof and
thereof.
Section 4.08. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 4.09. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority 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
unless such a construction would be unreasonable or materially impair the rights
of any party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ASSURANT, INC.
By:___________________________________________
Name:
Title:
FORTIS INSURANCE N.V.
By:___________________________________________
Name:
Title:
