EXHIBIT 3.5
TERMINATION AND AMENDMENT AGREEMENT
TERMINATION AND AMENDMENT AGREEMENT (the "AGREEMENT") dated as of January 10,
2005 between Assurant, Inc., a Delaware corporation (D/B/A Assurant Group) (the
"COMPANY") and Fortis Insurance N.V., a company with limited liability
incorporated as naamloze vennootschap under Dutch law ("FORTIS INSURANCE").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Shareholders'
Agreement dated as of February 10, 2004 (the "SHAREHOLDERS' AGREEMENT") and a
Registration Rights Agreement dated as of February 10, 2004 (the "REGISTRATION
RIGHTS AGREEMENT").
WHEREAS, Fortis Insurance owns 50,199,130 shares of common stock, par value
$0.01 per share, of the Company ("COMMON STOCK");
WHEREAS, simultaneously with the execution and delivery of this Agreement,
Fortis Insurance is offering Common Stock to the public in an underwritten
secondary offering (the "OFFERING") registered under the Securities Act of 1933
pursuant to a registration statement on Form S-1, File No. 333-121820; and
WHEREAS, the parties hereto desire to terminate the Shareholders' Agreement
in its entirety and to amend certain provisions of the Registration Rights
Agreement, in each case effective upon the closing of the Offering.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1.01. Termination of the Shareholders Agreement. Pursuant to
Section 4.03 of the Shareholders' Agreement, the parties hereto agree that,
effective upon the closing of the Offering, the Shareholders' Agreement be and
hereby is terminated with no further force or effect; provided however if the
Offering does not close for any reason, the Shareholders' Agreement shall
remain in full force and effect.
Section 1.02. Amendment of the Registration Rights Agreement. Pursuant to
Section 5.02 of the Registration Rights Agreement, the parties hereto agree
that, effective upon the closing of the Offering, the Registration Rights
Agreement be and hereby is amended as follows:
(i) Section 2.01(f) shall be deleted in its entirety and the following
clause inserted in lieu thereof:
"In the event that any registration pursuant to Section 2.01(a) shall
involve, in whole or in part, an underwritten offering, the Company shall
select the lead managing underwriter or underwriters and bookrunner or
bookrunners for such underwritten offering (after consultation with the
Requesting Holder).";
(ii) Section 2.06 shall be deleted in its entirety and the following clause
inserted in lieu thereof:
"With respect to any offering publicly announced by the Company or a holder
of Registrable Securities prior to January 10, 2005, except as otherwise
provided herein, the Company shall pay all Registration Expenses (exclusive of
underwriting discounts and commissions, if any) with respect to any such
offering. Each of the Company and each holder of Registrable Securities shall
pay its own expenses with respect to any subsequent offering (or proposed
offering) hereunder, provided, however, that the relevant holder or holders of
Registrable Securities shall also pay their proportional share of the items set
forth in clauses (ii), (iii), (iv), (v), (viii), (ix) and (xi) of the definition
of "Registration Expenses"."; and
(iii) Section 2.08 shall be terminated and of no further force or effect;
provided however that if the Offering does not close for any reason, the
Registration Rights Agreement shall remain in full force and effect without
giving effect to the foregoing provisions of this Section 1.02.
Section 1.03. 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 1.04. Counterparts. 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.
Section 1.05. Entire Agreement. This Agreement 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.
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:
By: _____________________________
Name:
Title:
