EXHIBIT 1.1
SHARES
ASSURANT, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
, 2005
, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As representative of the several
Underwriters named in Schedule I hereto.
Dear Sirs and Mesdames:
Fortis Insurance N.V., a public company with limited liability
incorporated as naamloze vennootschap under the laws of The Netherlands (the
"SELLING STOCKHOLDER"), as the sole selling stockholder, proposes to sell to the
several Underwriters named in Schedule I hereto (the "UNDERWRITERS") an
aggregate of shares (the "SHARES") of the Common Stock, par value $0.01 per
share, of Assurant, Inc. (d/b/a Assurant Group), a Delaware corporation (the
"COMPANY"). The shares of Common Stock, par value $0.01 per share, of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT;" the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement.
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
Company's knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that (A) the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through Xxxxxx Xxxxxxx & Co. Incorporated, as representative of the
several Underwriters (the "REPRESENTATIVE"), expressly for use therein and
(B) the representations and warranties set forth in clauses (i) and (iii)
do not apply to statements or omissions in the Registration Statement or
the Prospectus based upon Fortis Information (as defined below).
(c) PricewaterhouseCoopers LLP, whose report is included in the
Prospectus, is an independent certified public accountant with respect to
the Company and its consolidated subsidiaries within the meaning of the
Securities Act and the rules and regulations adopted by the Commission
thereunder. Ernst & Young LLP, which firm audited the consolidated
statements of operations for the year ended December 31, 1999 and the
consolidated balance sheet as of December 31, 1999 of Fortis, Inc. and its
subsidiaries, a summary of which is included in the Prospectus under the
heading "Selected Consolidated Financial Information," was, during the
year ended December 31, 1999, an independent certified public accountant
with respect to Fortis, Inc. and its consolidated subsidiaries within the
meaning of the Securities Act and the rules and regulations adopted by the
Commission thereunder.
(d) The financial statements of the Company and its consolidated
subsidiaries (including the related notes and supporting schedules)
included in the Registration Statement and the Prospectus present fairly
in all material respects the financial condition, results of operations
and cash flows of the entities purported to be shown thereby at the dates
and for the periods indicated and have
2
been prepared in accordance with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods indicated and conform in all material respects with the rules
and regulations adopted by the Commission under the Securities Act; and
the supporting schedules included in the Registration Statement present
fairly in all material respects the information required to be stated
therein.
(e) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own, lease and operate its property
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership,
leasing or operating of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(f) Each subsidiary of the Company set forth on Schedule II hereto
(each a "DESIGNATED SUBSIDIARY" and, collectively, the "DESIGNATED
SUBSIDIARIES") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and
operate its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership, leasing or operating of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each Designated Subsidiary have been
duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities, claims, preemptive or similar rights or
restrictions upon voting or transfer, except as described in the
Prospectus; for purposes of this Agreement, Schedule II hereto lists each
subsidiary of the Company that (i) is a "significant subsidiary" (as such
term is defined in Rule 1-02 of Regulation S-X promulgated by the
Commission), (ii) is otherwise material to the condition, financial or
otherwise, or the earnings, business, affairs or operations of the Company
and its subsidiaries, taken as a whole, or (iii) has contingent
liabilities that may be material to the Company and its subsidiaries,
taken as a whole.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
3
(i) The capitalization of the Company as of September 30, 2004
conforms in all material respects to the description thereof in the
Prospectus. The Company has not agreed, orally or in writing, to issue or
sell any shares of its capital stock or any other securities to any person
other than pursuant to this Agreement or as set forth in the Prospectus.
(j) All of the issued shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholder) have been
duly authorized and are validly issued, fully paid and non-assessable.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene, result in a breach or violation of, or constitute a
default under, or will not result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, (i) any provision of
applicable law, (ii) any provision of the certificate of incorporation
or by-laws or other organizational or governing documents of the Company
or any of its Designated Subsidiaries, (iii) any agreement or other
instrument binding upon the Company or any of its Designated
Subsidiaries or to which the Company or any of its Designated
Subsidiaries is a party or to which any of its respective properties are
subject or (iv) any regulation, rule, judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any of its Designated Subsidiaries or any of its respective
properties, except, in the case of clauses (i), (iii) and (iv) above,
where such violations, breaches, defaults, contraventions, liens,
charges, claims or encumbrances that would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. No permit, consent, approval,
authorization or order of, or qualification with, any governmental body
or agency or court is required for the execution and delivery by the
Company of, or the performance by the Company of its obligations under,
this Agreement, or the consummation of the transactions contemplated
hereby, except such as may be required by the securities or Blue Sky
laws or insurance securities laws of the various states in connection
with the offer and sale of the Shares and except for those which have
been obtained or made.
4
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business,
properties or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its Designated Subsidiaries is a party or to which any of the properties
of the Company or any of its Designated Subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described, and there are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(n) The statements relating to legal matters, documents or
proceedings included in (A) the Prospectus under the headings "Business --
Legal Proceedings" and "Regulation," and (B) the Registration Statement in
Items 14 and 15, in each case fairly summarize such matters, documents or
proceedings in all material respects.
(o) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(p) The Company is not required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(q) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
5
(r) Other than the Registration Rights Agreement, dated as of
February 10, 2004, by and between the Company and the Selling Stockholder,
or as otherwise disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(s) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company
and its Designated Subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company has
not purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital
stock other than ordinary and customary dividends; and (iii) there has not
been any material change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries, except in each case as
described in the Prospectus.
(t) The Company and its Designated Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is material
to the business of the Company and its subsidiaries, taken as a whole, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company and its Designated
Subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries which are material to the business of the
Company and its subsidiaries, taken as a whole, are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries, in each
case except as described in the Prospectus.
(u) Except as described in the Prospectus, the Company and its
Designated Subsidiaries own or possess, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, technology, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by
them, and neither the Company nor any of its Designated Subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing that, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse affect on the Company and its subsidiaries,
taken as a whole.
6
(v) No material labor dispute with the employees of the Company or
any of its Designated Subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent.
(w) The Company and its Designated Subsidiaries are insured by the
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged; neither the Company nor any of its Designated
Subsidiaries has been refused any material insurance coverage sought or
applied for; and neither the Company nor any of its Designated
Subsidiaries has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus and except that the representations and
warranties set forth in this paragraph do not apply to the conduct of the
business of insurance by the Company and its Designated Subsidiaries.
(x) Each of the Company and its Designated Subsidiaries has (i) all
licenses, certificates, authorizations, permits, approvals, franchises and
other rights from, and has filed all reports, documents and other
information required to be filed with (including, without limitation, all
required filings under applicable insurance company statutes), the
appropriate federal, state or foreign regulatory authorities necessary to
conduct its respective business as currently conducted by it (each, an
"AUTHORIZATION"), except where the failure to have such licenses,
certificates, authorizations, permits, approvals, franchises and other
rights or to file such reports, documents or information would not, singly
or in the aggregate, have or reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, (ii)
fulfilled and performed all obligations necessary to maintain each
Authorization, except where the failure to fulfill or perform such
obligations would not, singly or in the aggregate, have or reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and (iii) no knowledge of any pending or
threatened action, suit, proceeding or investigation that would reasonably
be expected to result in the revocation, termination, suspension,
modification or impairment of any Authorization and which revocation,
termination, suspension, modification or impairment would, singly or in
the aggregate, have or reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, except in
the case of clauses (i), (ii) and (iii) as described in the Prospectus.
All such Authorizations are valid and in full force and effect and the
Company and the Designated Subsidiaries are in compliance in all material
respects with the terms and conditions of all such Authorizations and with
the rules and regulations of the regulatory authorities having
jurisdiction with respect thereto, except where the failure to be in full
force and effect or the failure to comply would not, singly or in the
aggregate, have or reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Except as
described in the Prospectus, the Company has not received any order or
decree from any order or decree from any
7
insurance regulatory agency or body impairing, restricting or prohibiting
the payment of dividends by any Designated Subsidiary to its parent and
has not otherwise agreed to any such impairment, restriction or
prohibition. Without limitation of the foregoing, each Designated
Subsidiary that conducts the business of insurance is duly organized and
licensed as an insurance company in its jurisdiction of incorporation, and
is duly licensed or authorized as an insurer or reinsurer in each other
jurisdiction in which the conduct of its business requires it to be so
licensed or authorized, except where the failure to be so licensed or
authorized would not, singly or in the aggregate, have or reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(y) The Company and each of its Designated Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974
("ERISA") and the regulations thereunder with respect to each "plan" (as
defined in Section 3(3) of ERISA and such regulations) which is sponsored,
maintained or contributed to by the Company and its subsidiaries and in
which the employees of the Company and its subsidiaries participate and
each such plan (other than any multiemployer plan) is in compliance in all
material respects with the presently applicable provisions of ERISA and
such regulations. The Company and its subsidiaries have not incurred any
material unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course).
(aa) The Shares have been listed on the New York Stock Exchange.
(bb) None of the Company's Designated Subsidiaries is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such Designated
Subsidiary's capital stock or from repaying to the Company any loans or
advances to such Designated Subsidiary from the Company, except as
described in the Prospectus.
(cc) Any tax returns required to be filed by the Company or any of
its Designated Subsidiaries in any jurisdiction have been truthfully and
accurately prepared and timely filed and any taxes, including any
withholding taxes, excise taxes, penalties and interest, assessments and
fees and other charges due or
8
claimed to be due from such entities have been paid, other than (i) any of
those being contested in good faith and by appropriate proceedings and for
which adequate reserves have been provided in accordance with GAAP, (ii)
any of those currently payable without penalty or interest or (iii) where
the failure to do so would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. No proposed tax assessment against the Company or any of its
Designated Subsidiaries is pending or, to the best of the Company's
knowledge, threatened, other than such assessments (i) that are being
contested by the Company or such Designated Subsidiary in good faith and
by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP or (ii) that would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. To the best of the Company's knowledge,
there is no tax lien, whether imposed by any federal, state, or other
taxing authority, outstanding against the assets, properties or business
of the Company or any of its Designated Subsidiaries, other than liens for
taxes (i) not yet due and payable, (ii) being contested by the Company or
any of its Designated Subsidiaries in good faith and by appropriate
proceedings and for which adequate reserves have been provided in
accordance with GAAP or (iii) that would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(dd) Except as described in the Prospectus, (i) all reinsurance
treaties, contracts, agreements and arrangements to which the Company or
any Designated Subsidiary is a party and as to which any of them reported
recoverables, premiums due or other amounts in its most recent statutory
financial statements are in full force and effect, except where the
failure of such treaties, contracts, agreements and arrangements to be in
full force and effect would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, and (ii) neither the Company nor any Designated Subsidiary has
received any notice from any other party to any reinsurance treaty,
contract, agreement or arrangement that such other party intends not to
perform such treaty, contract, agreement or arrangement in any material
respect, and the Company has no knowledge that any of the other parties to
such treaties, contracts, agreements or arrangements will be unable to
perform its obligations under such treaty, contract, agreement or
arrangement in any material respect, except where (A) the Company or the
Designated Subsidiary has established reserves in its financial statements
which it deems adequate for potential uncollectible reinsurance or (B)
such nonperformance would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
2. Representations and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to and agrees with each of the Underwriters
that:
(a) The Selling Stockholder has been duly incorporated and is
validly existing as a public company with limited liability as naamloze
vennootschap under the laws of The Netherlands and has the corporate power
and authority to enter into and perform its obligations under this
Agreement.
9
(b) This Agreement has been duly authorized, executed and delivered
by the Selling Stockholder.
(c) The execution and delivery by the Selling Stockholder, and the
performance by the Selling Stockholder of its obligations under, this
Agreement, and the consummation of the transactions contemplated hereby
will not contravene, result in a breach or violation of, or constitute a
default under, or will not result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or assets of the
Selling Stockholder or any of its subsidiaries pursuant to, (i) any
provision of applicable law, (ii) any provision of the certificate of
incorporation or by-laws or other organizational or governing documents
of the Selling Stockholder or any of its subsidiaries, (iii) any
agreement or other instrument binding upon the Selling Stockholder or any
of its subsidiaries or to which the Selling Stockholder or any of its
subsidiaries is a party or to which any of its respective properties are
subject or (iv) any regulation, rule, judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Selling
Stockholder or any of its subsidiaries or any of its respective
properties, except, in the case of clauses (i), (iii) and (iv) above, for
such violations that would not, singly or in the aggregate, have a
material adverse effect on the ability of the Selling Stockholder to
perform its obligations hereunder. No permit, consent, approval,
authorization or order of, or qualification with, any governmental body
or agency or court or financial institution is required for the execution
and delivery by the Selling Stockholder, of, or the performance by the
Selling Stockholder of its obligations under, this Agreement, or the
consummation of the transactions contemplated hereby, except such as may
be required by the securities or Blue Sky laws or insurance securities
laws of the various states in connection with the offer and sale of the
Shares and except for those which have been obtained or made.
(d) The Selling Stockholder has, and on the Closing Date will have,
valid title to, or a valid "security entitlement" within the meaning of
Section 8-501 of the New York Uniform Commercial Code (the "UCC") in
respect of, the Shares to be sold by the Selling Stockholder free and
clear of all security interests, claims, liens, equities or other
encumbrances, and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement and to sell,
transfer and deliver the Shares to be sold by the Selling Stockholder or a
10
security entitlement in respect of such Shares. The Shares to be sold by
the Selling Stockholder are not subject to any preemptive or similar
rights.
(e) Upon payment for the Shares to be sold by the Selling
Stockholder pursuant to this Agreement, delivery of such Shares, as
directed by the Underwriters, to Cede & Co. ("CEDE") or such other nominee
as may be designated by the Depository Trust Company ("DTC"), registration
of such Shares in the name of Cede or such other nominee and the crediting
of such Shares on the books of DTC to securities accounts of the
Underwriters (assuming that neither DTC nor any such Underwriter has
notice of any adverse claim (within the meaning of Section 8-105 of the
UCC) to such Shares), (A) DTC shall be a "protected purchaser" of such
Shares within the meaning of Section 8-303 of the UCC, (B) under Section
8-501 of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Shares and (C) no action based on any
"adverse claim," within the meaning of Section 8-102 of the UCC, to such
Shares may be asserted against the Underwriters with respect to such
security entitlement; for purposes of this representation, the Selling
Stockholder may assume that when such payment, delivery and crediting
occur, (x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, bylaws and
applicable law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC and (z) appropriate entries
to the accounts of the several Underwriters on the records of DTC will
have been made pursuant to the UCC.
(f) The Selling Stockholder (i) is familiar with the Registration
Statement and Prospectus and (ii) has no actual knowledge of any material
fact, condition or information not disclosed in the Prospectus that has
had, or may have, a material adverse effect on the Company and its
subsidiaries, taken as a whole. The Selling Stockholder is not prompted by
any information concerning the Company or its subsidiaries which is not
set forth in the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
the representations and warranties set forth in this paragraph 2(g) are
limited to statements or omissions based upon information furnished to the
Company in writing by the Selling Stockholder expressly for use in the
Registration Statement, the Prospectus or any amendments or supplements
thereto (such information collectively, the "FORTIS INFORMATION"), which
Fortis Information is identified in Schedule III hereto.
11
(h) Neither the Selling Stockholder nor any of its subsidiaries has
taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares.
3. Agreements to Sell and Purchase. The Selling Stockholder hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Selling Stockholder at $ a share (the "PURCHASE PRICE") the number of Shares
(subject to such adjustments to eliminate fractional shares as the
Representative may determine) that bears the same proportion to the number of
Shares to be sold by the Selling Stockholder as the number of Shares set forth
in Schedule I hereto opposite the name of such Underwriter bears to the total
number of Shares.
To induce the Underwriters that may participate in the public offering of
the Shares (the "PUBLIC OFFERING") to continue their efforts in connection with
the Public Offering, each of the Company and the Selling Stockholder agrees
that, without the prior written consent of the Representative on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, (ii) file (in the case of the Company) or cause the Company to
file (in the case of the Selling Stockholder) any registration statement with
the Commission relating to the offering of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(iii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of Common Stock,
whether any such transaction described in clause (i), (ii) or (iii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
The restrictions contained in the preceding paragraph shall not apply to
(A) the sale of any Shares by the Selling Stockholder to the Underwriters
pursuant to this Agreement; (B) the issuance by the Company of shares of Common
Stock upon the exercise of an option or a warrant or the conversion of a
security outstanding on the date of the Prospectus of which the Underwriters
have been advised in writing; (C) grants by the Company of options to purchase
shares of Common Stock or stock appreciation rights based on the value of Common
Stock or grants by the Company of restricted stock or director stock grants
pursuant to the Company's benefit plans; (D) the issuance by the Company of
shares of Common Stock or securities convertible into or exercisable or
exchangeable for shares of Common Stock in connection with one or more mergers
or acquisitions in which the Company is the surviving entity or acquirer, so
long as the aggregate value of the securities so issued does not exceed a
certain amount agreed upon by the Representative and the Company and so long as
the holder of such securities
12
agrees in writing to be bound by the transfer restrictions described in the
preceding paragraph; (E) the issuance, offer or sale by the Company of shares of
Common Stock or rights based on the value of Common Stock pursuant to the
Company's 2004 Employee Stock Purchase Plan, 401(k) Plan, or Executive Pension
and 401(k) Plan; (F) transfers of shares of Common Stock by the Selling
Stockholder to an affiliate of the Selling Stockholder; provided that in the
case of any transfer or distribution pursuant to this clause (F), (i) any
transferee shall sign and deliver a lock-up letter substantially in the form of
this and the preceding paragraph and (ii) the Selling Stockholder shall not be
required to, and shall not voluntarily, file a report under Section 16(a) of the
Securities Exchange Act of 1934 reporting a reduction in beneficial ownership of
shares of Common Stock during the restricted period referred to in the preceding
paragraph; and (G) the issuance of the exchangeable bonds by the Selling
Stockholder concurrently with the closing of the Public Offering. In addition,
the Selling Stockholder agrees that, without the prior written consent of the
Representative on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The Selling Stockholder also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the Selling
Stockholder's shares of Common Stock except in compliance with the foregoing
restrictions. Notwithstanding the foregoing, if (1) during the last 17 days of
the 90-day restricted period the Company issues an earnings release or material
news or a material event relating to the Company occurs, or (2) prior to the
expiration of the 90-day restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the 90-day period, the restrictions imposed by this section shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event.
4. Terms of Public Offering. The Selling Stockholder and the Company are
advised by the Representative that the Underwriters propose to make a public
offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in the
Representative's judgment is advisable. The Selling Stockholder and the Company
are further advised by the Representative that the Shares are to be offered to
the public initially at $ a share (the "PUBLIC OFFERING PRICE") and to
certain dealers selected by the Representative at a price that represents a
concession not in excess of $ a share under the Public Offering Price.
13
5. Payment and Delivery. Payment for the Shares shall be made to the
Selling Stockholder in Federal or other funds immediately available in New York
City against delivery of such Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on , 2005, or at such other
time on the same or such other date, not later than , 2005, as shall be
designated in writing by the Representative. The time and date of such payment
are hereinafter referred to as the "CLOSING DATE."
The Shares shall be registered in such names and in such denominations as
the Representative shall request in writing not later than one full business day
prior to the Closing Date. The Shares shall be delivered to the Representative
on the Closing Date for the respective accounts of the several Underwriters,
with any transfer taxes payable in connection with the transfer of the Shares to
the Underwriters duly paid, against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Selling Stockholder to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 4:00 p.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded to any of
the Company's securities or in the financial strength or
claims-paying ability rating of any of the Company's Designated
Subsidiaries by A.M. Best Company, Inc. or by Xxxxx'x Investor
Services, Inc., Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or any other "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
Representative's judgment, is material and adverse and that makes
it, in the Representative's judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the
Prospectus.
14
(b) The Underwriters shall have received on the Closing Date (i) a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date and (ii) a certificate, dated the Closing Date and signed
by the Selling Stockholder, to the effect that the representations and
warranties of the Selling Stockholder contained in this Agreement are true
and correct as of the Closing Date and that the Selling Stockholder has
complied with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters and the Selling Stockholder shall have received
on the Closing Date an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, outside
counsel for the Company, dated the Closing Date, substantially to the
effect set forth in Exhibit A-1 hereto and a letter from Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, dated the Closing Date, substantially to the effect set
forth in Exhibit A-2 hereto.
(d) The Underwriters and the Selling Stockholder shall have received
on the Closing Date an opinion of Xxxxxxxxx Xxxxxxxxx, Senior Vice
President, General Counsel and Secretary of the Company, dated the Closing
Date, substantially to the effect set forth in Exhibit B.
(e) The Underwriters shall have received on the Closing Date an
opinion of (i) Xxxxxx X. Xxxxxxxx, General Counsel of Assurant Solutions,
substantially to the effect set forth in Exhibit C-1, (ii) Xxxxx Xxxxx
Xxxxxx, General Counsel of Assurant Health, substantially to the effect
set forth in Exhibit C-2, (iii) Xxx Xxxxx, Vice President and General
Counsel of Assurant Employee Benefits, substantially to the effect set
forth in Exhibit C-3, and (iv) Xxxxxxx X. XxXxxxx, Senior Vice President
and Chief Legal Officer of Assurant PreNeed, substantially to the effect
set forth in Exhibit C-4, in each case dated the Closing Date.
(f) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, special U.S. counsel for the Selling
Stockholder, dated the Closing Date, substantially to the effect set forth
in Exhibit D hereto.
(g) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxxx Quaetaert, in-house Dutch counsel for the Selling
Stockholder, dated the Closing Date, substantially to the effect set forth
in Exhibit E hereto.
15
(h) The Underwriters shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, outside counsel for
the Underwriters, dated the Closing Date, substantially to the extent set
forth in Exhibit F-1 hereto and a letter from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, dated the Closing Date, substantially to the effect
set forth in Exhibit F-2 hereto.
The opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Xxxxxxxxx
Xxxxxxxxx, Esq., in-house counsels for the Company's business
segments, Xxxxx Xxxx & Xxxxxxxx and Xxxxxxxx Quaetaert described in
Sections 6(c), (d), (e), (f), (g) and (h) above shall be rendered to
the Underwriters at the request of the Company or the Selling
Stockholder, as the case may be, and shall so state therein.
(i) The Underwriters and the Selling Stockholder shall have
received, on each of the date hereof and the Closing Date, a letter dated
the date hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from PricewaterhouseCoopers
LLP, independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(j) The Underwriters and the Selling Stockholder shall have
received, on each of the date hereof and the Closing Date, a letter dated
the date hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from Ernst & Young LLP,
independent public accountants.
(k) The "lock-up" agreements, each substantially in the form of
Exhibit H hereto, between the Underwriters and certain officers and
directors of the Company, relating to sales and certain other dispositions
of shares of Common Stock or certain other securities, delivered to the
Representative on or before the date hereof, shall be in full force and
effect on the Closing Date.
7. Covenants of the Company and the Selling Stockholder. In further
consideration of the agreements of the Underwriters herein contained, each of
the Company and the Selling Stockholder covenants with each Underwriter as
follows:
(a) The Company agrees to furnish to the Representative, without
charge, four signed copies of the Registration Statement (including
exhibits thereto) and for delivery to each other Underwriter a conformed
copy of the Registration Statement (without exhibits thereto) and to
furnish to the Underwriters in New York City, without charge, prior to
10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period
16
mentioned in Section 7(c) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as the
Representative may reasonably request.
(b) The Company agrees, before amending or supplementing the
Registration Statement or the Prospectus, to furnish to the Representative
a copy of each such proposed amendment or supplement and not to file any
such proposed amendment or supplement to which the Representative
reasonably objects, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) Each of the Company and the Selling Stockholder agrees that if,
during such period after the first date of the public offering of the
Shares as in the opinion of counsel for the Underwriters the Prospectus is
required by law to be delivered in connection with sales by an Underwriter
or dealer, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at the Company's own expense, to the
Underwriters and to the dealers (whose names and addresses the
Representative will furnish to the Company) to which Shares may have been
sold by the Representative on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with law.
(d) The Company agrees to endeavor to qualify the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Representative shall reasonably request, provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to material taxation or service of process in any
jurisdiction where it is not now so subject.
(e) The Company agrees to make generally available to the Company's
security holders and to the Representative as soon as practicable an
earning statement covering the twelve-month period ending March 31, 2006
that satisfies the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Selling
Stockholder, the Company and the Underwriters agree that (a) the Company shall
pay or cause to be paid all
17
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) except as provided in clause (b) below,
all costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, (iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the Shares under
state securities laws and all expenses in connection with the qualification of
the Shares for offer and sale under state securities laws as provided in Section
7(d) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or Legal Investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., provided that
such fees and disbursements of such counsel in clause (iii) and (iv) shall not
exceed $20,000, (v) the cost of printing certificates representing the Shares,
(vi) the costs and charges of any transfer agent, registrar or depositary, (vii)
the costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of the
Company, and travel and lodging expenses of the representatives and officers of
the Company and any such consultants, provided, however, that the cost of any
aircraft chartered in connection with the road show shall be split evenly
between the Company on the one hand and the Underwriters on the other hand,
(viii) the document production charges and expenses associated with printing
this Agreement, and (ix) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section and (b) the Selling Stockholder will bear its
own costs and expenses, including any fees and expenses of counsel for such
Selling Stockholder and including any transfer or other taxes payable on the
transfer and delivery of the Shares to the Underwriters. It is understood,
however, that except as provided in this Section, Section 9 entitled "Indemnity
and Contribution," the last paragraph of Section 11 below and Section 15(d), the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they
may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Selling Stockholder and the Company may otherwise have for
the allocation of such expenses among themselves.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the
18
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities
Act, and the Selling Stockholder, each person who controls the Selling
Stockholder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of the Selling Stockholder
within the meaning of Rule 405 under the Securities Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein or upon Fortis Information; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, or any such affiliate of
such Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) The Selling Stockholder agrees to indemnify and hold harmless
each Underwriter and the Company, each person, if any, who controls such
Underwriter or the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each affiliate of
any Underwriter or the Company within the meaning of Rule 405 under the
Securities Act, the directors of the Company and each officer of the
Company who signs the Registration Statement from and against any and all
losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but only with reference to the Fortis Information; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus
19
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof. The liability of
the Selling Stockholder under the indemnity agreement contained in this
paragraph shall be limited to an amount equal to the aggregate Public
Offering Price of the Shares sold by the Selling Stockholder under this
Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholder, the directors of
the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or the Selling
Stockholder within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the
20
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for (i) the fees and expenses of more
than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act or who are affiliates of any Underwriter within the
meaning of Rule 405 under the Securities Act, (ii) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the
Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of
either such Section and (iii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Selling
Stockholder and all persons, if any, who control the Selling Stockholder
within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons and affiliates
of any Underwriters, such firm shall be designated in writing by the
Representative. In the case of any such separate firm for the Company, and
such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Stockholder and such control persons of the
Selling Stockholder, such firm shall be designated in writing by the
Selling Stockholder. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement
or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause
9(e)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 9(e)(i) above but also the relative fault of the indemnifying party
or parties on the one hand and of the
21
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Selling Stockholder and the Company on
the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Selling Stockholder and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate Public Offering Price of the Shares. The relative fault
of the Selling Stockholder and the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholder or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant
to this Section 9 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint.
(f) The Selling Stockholder, the Company and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity. The liability of the Selling Stockholder under the
contribution agreement contained in this paragraph shall be limited to an
amount equal to the net proceeds received by the Selling Stockholder in
respect of Shares sold under this Agreement.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Stockholder contained in this Agreement shall
remain operative and in full
22
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter, the
Selling Stockholder or any person controlling the Selling Stockholder, or
the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
10. Termination. The Underwriters may terminate this Agreement by notice
given by the Representative to the Selling Stockholder and the Company if, after
the execution and delivery of this Agreement and prior to the Closing Date, (i)
trading generally shall have been suspended or materially limited on, or by, as
the case may be, any of the New York Stock Exchange or the Nasdaq National
Market, (ii) trading of any securities of the Company shall have been suspended
on any exchange or in any over-the-counter market, (iii) a material disruption
in securities settlement, payment or clearance services in the United States
shall have occurred, (iv) any moratorium on commercial banking activities shall
have been declared by Federal or New York State authorities, or (v) there shall
have occurred any outbreak or escalation of hostilities, or any change in
financial markets or any calamity or crisis that, in the Representative's
judgment, is material and adverse and that, singly or together with any other
event specified in this clause (v), makes it, in the Representative's judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Shares that it has or they have agreed to purchase hereunder
on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Shares set forth opposite their respective names in Schedule
I bears to the aggregate number of Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 11 by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Shares and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares to be purchased, and
arrangements satisfactory to the Representative, the Company and the Selling
Stockholder for the purchase of such Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling Stockholder. In any
such case either the Representative or the Selling Stockholder and the Company
shall have the right to
23
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Selling Stockholder or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Selling Stockholder or the Company shall be
unable to perform its obligations under this Agreement, the Selling Stockholder
or the Company, as the case may be, will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
jointly and severally, for all out-of-pocket expenses (including the reasonable
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Notices. All communications hereunder shall be in writing and, if to
the Underwriters, shall be mailed, delivered or faxed and confirmed to the
Representative, c/o Morgan Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx,
XX 00000, Attention: Global Capital Markets Syndicate Desk (fax: (212)
000-0000), or, if to the Company, shall be mailed, delivered or faxed and
confirmed to the Company at Assurant, Inc., Xxx Xxxxx Xxxxxxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx Xxxxxxxxx, Esq. (fax: (212)
000-0000), or, if to the Selling Stockholder, shall be mailed, delivered or
faxed and confirmed to the Selling Stockholder at Fortis Insurance N.V.,
Xxxxxxxxxxxxxx 0, X.X. Xxx 0000, 3500 GA Utrecht, The Netherlands, Attention:
Xxxxxx Xxxxxxx (fax: + 00 00 000 0000), with a copy to each of Fortis, Xxx
Xxxxxx 00, 0000 Xxxxxxxx, Xxxxxxx, Attention: Xxxxxxx Xxxxxxx (fax: + 322 510
5621) and Xxxxx Xxxx & Xxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Attention:
Xxxxxxx X. Xxxxx (fax: 00 00 000 000 0000); provided, however, that any notice
to an Underwriter pursuant to Section 9 shall be mailed, delivered or faxed and
confirmed to such Underwriter in accordance with the relevant notice details set
forth in Schedule IV hereto.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9, and no other
person will have any right or obligation hereunder.
14. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
15. Applicable Law; Submission to Jurisdiction. (a) This Agreement shall
be governed by and construed in accordance with the internal laws of the State
of New York.
(b) The Selling Stockholder hereby submits to the non-exclusive
jurisdiction of any New York State or United States Federal court sitting
in the
00
Xxxxxxx xx Xxxxxxxxx in the City of New York in any suit, action or
proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Selling Stockholder irrevocably
waives and agrees not to assert, to the fullest extent permitted by law,
as a defense or otherwise, any claim that it is not subject to the
jurisdiction of any such court, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an
inconvenient forum. To the extent the Selling Stockholder has or hereafter
may acquire any immunity from the jurisdiction of any court or from any
legal process with respect to itself or its property, it irrevocably
waives, to the fullest extent permitted by law, such immunity in respect
of any such suit, action or proceeding.
(c) The Selling Stockholder hereby irrevocably appoints Xxx X.
Xxxxxxxx, Executive Vice President, General Counsel and Secretary of
Fortis Financial Services LLC, with offices at 000 Xxxxxxx Xxx., Xxx Xxxx,
XX 00000, as its agent for service of process in any suit, action or
proceeding described in the preceding paragraph. The Selling Stockholder
agrees that service of process in any such suit, action or proceeding may
be made upon it at the office of its agent. The Selling Stockholder
waives, to the fullest extent permitted by law, any other requirements of
or objections to personal jurisdiction with respect thereto. The Selling
Stockholder represents and warrants that its agent has agreed to act as
agent for service of process, and each agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect.
(d) In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in currency (the "JUDGMENT
CURRENCY") other than United States dollars, the party against whom such
judgment or order has been given or made will indemnify each party in
whose favor such judgment or order has been given or made (the
"INDEMNITEE") against any loss incurred by the Indemnitee as a result of
any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange at which
the Indemnitee is able to purchase United States dollars with the amount
of the judgment currency actually received by such Indemnitee. The
foregoing indemnity shall constitute a separate and independent obligation
of the Selling Stockholder, the Company and the Underwriters and shall
continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "RATE OF EXCHANGE" shall include any
reasonable premiums and costs of exchange payable in connection with the
purchase of or conversion into United States dollars.
25
16. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
ASSURANT, INC. (d/b/a Assurant Group)
By: __________________________________
Name:
Title:
FORTIS INSURANCE N.V.
By: __________________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Acting on behalf of itself and
the several Underwriters named in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: __________________________________
Name:
Title:
SCHEDULE I
NUMBER OF
SHARES TO BE
UNDERWRITER PURCHASED
--------------------------------------------------------------------------------- ------------
Xxxxxx Xxxxxxx & Co. Incorporated................................................
[names of other underwriters to come]............................................
------------
Total................................................................. ============
I-1
SCHEDULE II
LIST OF DESIGNATED SUBSIDIARIES
American Bankers Insurance Company of Florida
American Bankers Insurance Group, Inc.
American Bankers Life Assurance Company of Florida
American Memorial Life Insurance Company
American Reliable Insurance Company
American Security Insurance Company
First Fortis Life Insurance Company
Fortis Benefits Insurance Company
Fortis Insurance Company
Interfinancial Inc.
Xxxx Xxxxx Life Insurance Company
Standard Guaranty Insurance Company
Union Security Life Insurance Company
United Family Life Insurance Company
II-1
SCHEDULE III
[FORTIS INFORMATION]
III-1
SCHEDULE IV
NOTICE DETAILS FOR UNDERWRITERS
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
[Names and addresses of other underwriters to come]
IV-1
EXHIBIT A-1
[FORM OF OPINION TO BE PROVIDED BY
XXXXXXX XXXXXXX & XXXXXXXX LLP]
X-0-0
XXXXXXX X-0
[FORM OF LETTER TO BE PROVIDED BY
XXXXXXX XXXXXXX & XXXXXXXX LLP]
A-2-1
EXHIBIT B
[FORM OF OPINION TO BE PROVIDED BY
XXXXXXXXX XXXXXXXXX]
B-1
EXHIBIT C-1
[FORM OF OPINION TO BE PROVIDED BY
XXXXXX X. XXXXXXXX]
C-1-1
EXHIBIT C-2
[FORM OF OPINION TO BE PROVIDED BY
XXXXX XXXXX XXXXXX]
C-2-1
EXHIBIT C-3
[FORM OF OPINION TO BE PROVIDED BY
XXX XXXXX]
C-3-1
EXHIBIT C-4
[FORM OF OPINION TO BE PROVIDED BY
XXXXXXX X. XXXXXXX]
C-4-1
EXHIBIT D
[FORM OF OPINION TO BE PROVIDED BY
XXXXX XXXX & XXXXXXXX LLP]
D-1
EXHIBIT E
[FORM OF OPINION TO BE PROVIDED BY
XXXXXXXX QUAETAERT]
E-1
EXHIBIT F
[FORM OF OPINION TO BE PROVIDED BY
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP]
F-1-1
EXHIBIT F-2
[FORM OF LETTER TO BE PROVIDED BY
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP]
F-2-1
EXHIBIT G
[FORM OF DIRECTOR & OFFICER
LOCK UP LETTER]
G-1
