Exhibit 10.1
FORM OF
COOPERATION AGREEMENT
by and among
ASSURANT, INC.
(formerly named FORTIS, INC.),
FORTIS INSURANCE N.V.
and
FORTIS SA/NV and FORTIS N.V.
Dated as of -, 2004.
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Certain Definitions..................................... 2
ARTICLE 2
USE OF NAME, TRADEMARKS AND DOMAIN NAMES
Section 2.01. Grant of License........................................ 4
Section 2.02. Trademark Guidelines and Standards...................... 6
Section 2.03. Retention of Trademark Ownership........................ 6
Section 2.04. Termination of Trademark Licenses....................... 7
Section 2.05. Representations and Warranties.......................... 7
Section 2.06. Disclaimer.............................................. 7
ARTICLE 3
FINANCIAL AND OTHER INFORMATION
Section 3.01. Fifty Percent Threshold.................................. 7
Section 3.02. Twenty Percent Threshold................................. 9
Section 3.03. Coordination, Cooperation and Access..................... 10
Section 3.04. Ten Percent Threshold.................................... 13
ARTICLE 4
RELEASE AND INDEMNIFICATION
Section 4.01. General Cross Indemnification........................... 13
Section 4.02. Procedure............................................... 14
Section 4.03. Other Matters........................................... 15
ARTICLE 5
OTHER PROVISIONS
Section 5.01. Insurance Maintained by Fortis.......................... 15
Section 5.02. Vendor Purchasing Arrangements.......................... 15
Section 5.03. Services Provided Prior to Trigger Date................. 16
Section 5.04. Access to Historical Records............................ 16
Section 5.05. Cosmos.................................................. 16
Section 5.06. Miscellaneous........................................... 17
ARTICLE 6
ALLOCATION AND EXPENSES
Section 6.01. Allocation of Costs and Expenses........................ 17
Section 6.02. Expense Reimbursement................................... 18
ARTICLE 7
MISCELLANEOUS
Section 7.01. Notices................................................. 18
Section 7.02. Binding Nature of Agreement............................. 19
Section 7.03. Descriptive Headings.................................... 19
Section 7.04. Remedies................................................ 19
Section 7.05. Governing Law........................................... 20
Section 7.06. Counterparts............................................ 20
Section 7.07. Severability............................................ 20
Section 7.08. Confidential Information................................ 20
Section 7.09. Amendment and Modification.............................. 21
Section 7.10. Entire Agreement........................................ 21
Section 7.11. No Assignment........................................... 21
Section 7.12. No Third Party Beneficiaries............................ 21
Section 7.13. Termination............................................. 21
SCHEDULES
Schedule 2 Fortis Marks
Schedule 3(a) Financial Information to be provided by Assurant
Schedule 3(b) Risk Information to be provided by Assurant
Schedule 3(c) Compliance Information to be provided by Assurant
Schedule 5 Vendor Purchasing Arrangements
COOPERATION AGREEMENT
COOPERATION AGREEMENT, dated as of -, 2004, by and among ASSURANT, Inc.
(formerly named Fortis, Inc.), a Delaware corporation ("ASSURANT"), FORTIS
INSURANCE N.V. ("FORTIS INSURANCE"), a naamloze vennootschap established under
the laws of the Netherlands, and 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 SA/NV and Fortis N.V., together referred to as "FORTIS")
WHEREAS, Fortis is the indirect owner of all of the issued and
outstanding common stock of Assurant;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Assurant is registering Common Shares owned by Fortis Insurance for
sale 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 Shares outstanding (or -% if the underwriters'
over allotment option is exercised);
WHEREAS, Fortis and Assurant will each be publicly held listed
companies subject to applicable listing standards and disclosure obligations;
WHEREAS, Fortis will continue to account for its investment in Assurant
on a consolidated basis or under the equity method of accounting which will
require sharing of financial and other information between Fortis and Assurant;
and
WHEREAS, in addition, Assurant and the Fortis Group (defined below)
have agreed to continue to provide certain services and/or information to each
other following the Initial Public Offering.
NOW, THEREFORE, in contemplation of Assurant ceasing to be wholly owned
by Fortis and for good and valuable consideration, the receipt and adequacy of
which is acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Definitions. In addition to the terms defined
elsewhere in this Agreement, the following terms shall have the following
meanings:
"ACTIONS" has the meaning set forth in Section 4.01(a) hereof.
"AGREEMENT" and "HEREOF" and "HEREIN" means this Cooperation Agreement,
including all amendments, modifications and supplements and any exhibits or
schedules to any of the foregoing, and shall refer to the Agreement as the same
may be in effect at the time such reference becomes operative.
"ASSURANT AUDITORS" has the meaning set forth in Section 3.03(c).
"ASSURANT FINANCIAL STATEMENTS" has the meaning set forth in Section
3.03(c).
"ASSURANT PUBLIC DOCUMENTS" has the meaning set forth in Section
3.03(a).
"BUSINESS DAY" or "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.
"CAPITAL SECURITIES" means the $150,000,000 8.40% capital securities
issued by Fortis Capital Trust I and the $50,000,000 7.94% capital securities
issued by Fortis Capital Trust II on July 31, 1997.
"COMMON STOCK" means the common stock, par value $.01 per share, of
Assurant.
"DESIGNATED ASSURANT SUBLICENSEE" has the meaning set forth in Section
2.01(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FAP" means generally accepted accounting principles in Belgium as in
effect from time to time.
"FORTIS FINANCIAL STATEMENTS" has the meaning set forth in Section
3.03.
"FORTIS AUDITORS" has the meaning set forth in Section 3.03(c).
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"FORTIS DESIGNEE" means a member of the board of directors of Assurant
designated by Fortis Insurance and nominated in accordance with the terms of the
Shareholders' Agreement dated as of the date hereof between Assurant and Fortis
Insurance.
"FORTIS GROUP" means, collectively, Fortis SA/NV and Fortis N.V. and
all of their direct and indirect subsidiaries now or hereafter existing, other
than Assurant and its Subsidiaries (all determinations hereunder to be made
after giving effect to the IPO).
"FORTIS LICENSE" has the meaning set forth in Section 2.01(a).
"FORTIS MARKS" has the meaning set forth in Section 2.01(a).
"FORTIS US" means Fortis, Inc., a Nevada corporation and predecessor
company to Assurant.
"GAAP" means United States generally accepted accounting principles.
"IAS" means International Auditing Standards/International Financial
Reporting Standards, as in effect from time to time.
"IAS REQUIRED INFORMATION" has the meaning set forth in Section
3.03(g).
"INITIAL PUBLIC OFFERING" or "IPO" means the proposed initial public
offering of the Common Stock as contemplated by the IPO Registration Statement.
"LOSSES" has the meaning set forth in Section 4.01(a).
"PERSON" means any individual, corporation, partnership, joint venture,
limited liability company, association or other business entity and any trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PRIVILEGE" has the meaning set forth in Section 3.03(f).
"PROSPECTUS" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
and by all other amendments and supplements to such prospectus, including
post-effective amendments and all material incorporated by reference in such
prospectus or prospectuses.
"REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement
dated -, 2004 between Assurant and Fortis Insurance
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"REGULATION S-K" means Regulation S-K of the General Rules and
Regulations under the Securities Act.
"REGULATION S-X" means Regulation S-X of the General Rules and
Regulations under the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" or "SUBSIDIARY" of Assurant shall include all
corporations, partnerships, joint ventures, limited liability companies,
associations and other entities (a) in which Assurant owns (directly or
indirectly) 50% or more of the outstanding voting stock, voting power,
partnership interests or similar ownership interests, (b) of which Assurant
otherwise directly or indirectly controls or directs the policies or operations
and (c) which would be considered subsidiaries of Assurant within the meaning of
Regulation S-K or Regulation S-X.
"TENDER OFFER" means the tender with exit consent offered to holders of
the $150 million trust capital securities issued by Fortis (US) RegCaPS Funding
Trust I and $400 million trust capital securities issued by Fortis (US) RegCaPS
Funding Trust II on March 1, 2000.
"TRIGGER DATE" means the last day in the fiscal quarter in which Fortis
ceases to beneficially own (excluding for such purposes shares of Common Stock
beneficially owned by any member of the Fortis Group but not for its own
account) shares entitled to fifty percent (50%) or more of the votes entitled to
be cast by the then outstanding Common Stock.
ARTICLE 2
USE OF NAME, TRADEMARKS AND DOMAIN NAMES
Section 2.01. Grant of License. (a) Fortis hereby grants to Assurant,
or to the extent another member of the Fortis Group owns the Fortis Marks (as
defined below) Fortis hereby causes such member to grant to Assurant, for the
term set forth in Section 2.04(a) hereof, a non-exclusive worldwide royalty-free
license (the "FORTIS LICENSE") to use the trademarks, company names, trade or
commercial names, domain names and product names set forth in Schedule 2 hereto
(hereinafter collectively referred to as the "FORTIS MARKS"), but only in the
manner identified in Schedule 2 hereto or as otherwise approved in advance in
writing by Fortis, in each case, solely to the extent required for the purpose
of transitioning Assurant's business, products, and services
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and activities related thereto to the Assurant name as set forth on Schedule 2
hereto. Assurant shall only use the Fortis Marks in connection with its
business, products, and services and activities related thereto in the manner
consistent with and of a nature and quality equal to that used by Assurant and
its Subsidiaries in connection with the Fortis Marks as of the date of this
Agreement, and in conformity with past practices regarding quality control and
usage of such marks, including compliance with the Fortis Brand Manual. Assurant
shall have no right to sublicense the Fortis Marks; provided, however, that
Assurant may sublicense the Fortis Marks to any Subsidiary of Assurant (for so
long as such Subsidiary remains a Subsidiary of Assurant) to the extent required
for the purpose of transitioning products and services bearing Fortis Marks to
the Assurant name in accordance with the terms of this Article 2 (a "DESIGNATED
ASSURANT SUBLICENSEE"). A breach by any Assurant Subsidiary or any Designated
Assurant Sublicensee of any of the provisions of this Article 2 shall be deemed
a breach by Assurant of this Article 2. Assurant shall not register or use any
▇▇▇▇▇▇ ▇▇▇▇ for any new business, and shall not use the term "Fortis" in the
name of any new product, service, domain name or corporate entity; provided
that, by way of sole exception and subject to Section 2.01(b), Assurant may
continue to use the Fortis name in connection with new products or extensions of
existing products being sold by Assurant subsidiaries permitted to use the
Fortis Marks. Assurant will notify Fortis promptly in writing of any use of the
Fortis name in any new product.
(b) Assurant agrees that the Fortis License is a "phase-out"
license and agrees that during the term of the Fortis License its use of the
Fortis Marks shall be consistent with the purposes of such "phase-out" licenses.
Assurant agrees to use its best efforts to cause the change of all of the
company, commercial and trade names to eliminate the Fortis name and/or ▇▇▇▇ and
always replace it with the Assurant name and/or ▇▇▇▇ (or such other name or ▇▇▇▇
that bears no resemblance to the Fortis name and/or ▇▇▇▇) as soon as practicable
and in any case, within the respective terms stipulated in Section 2.04.
Assurant further agrees promptly upon any such name change to cause the
cessation of all use of the Fortis Marks by Assurant subsidiaries concerned,
including but not limited to the cessation of the use of the Fortis name in any
new product or extension of any existing product; provided that Assurant may use
the Fortis Marks in conjunction with a phrase substantially similar to "formerly
known as" for the duration of the term of the license set forth in Schedule 2.
(c) Assurant and each Assurant Subsidiary shall have no rights
with respect to the Fortis Marks other than those expressly set forth in this
Agreement. This Agreement supersedes all prior agreements (whether written, oral
or implied) between any member of the Fortis Group and Assurant or any
Subsidiary of Assurant, with respect to the use of the Fortis Marks.
(d) Assurant, each Assurant Subsidiary and each Designated
Assurant Sublicensee shall execute any additional documents which Fortis may
reasonably request (at Fortis' expense), both prior and subsequent to the
expiration or earlier termination of the Fortis License, in order to perfect,
maintain, defend or
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terminate any right of any party in the Fortis Marks in any jurisdiction of the
world.
Section 2.02. Trademark Guidelines and Standards. Assurant agrees that,
in the conduct of the business and activities of Assurant and its Designated
Assurant Sublicensees under the Fortis License, it shall, and shall cause each
Designated Assurant Sublicensee to, (i) adhere to the appropriate ethical
standards pertaining to Assurant's and its Designated Assurant Sublicensees'
businesses and operations, (ii) comply with the requirements of the Fortis Brand
Manual, (iii) do nothing to bring disrepute to or damage the goodwill symbolized
by the Fortis Marks and (iv) Assurant will and will cause its Designated
Assurant Sublicensees' to inform Fortis of any possible infringement of any
▇▇▇▇▇▇ ▇▇▇▇.
Section 2.03. Retention of Trademark Ownership. Assurant acknowledges
and agrees that Fortis, and/or such other member of the Fortis Group referred to
in the first sentence of Section 2.01(a) hereof, as the case may be, is the
owner of all of the right, title, and interest in and to the Fortis Marks and
all goodwill associated therewith throughout the world and acknowledges the
validity of the Fortis Marks and of all trademark and service ▇▇▇▇ registrations
and applications of each member of the Fortis Group pertaining thereto. Assurant
agrees that it shall, and shall cause each Assurant Subsidiary and each
Designated Assurant Sublicensee to, uphold the goodwill inherent in the Fortis
Marks and to assist Fortis (at Fortis' expense) to protect the rights of Fortis
and the other members of the Fortis Group therein. All use of the Fortis Marks
by Assurant, any Assurant Subsidiary and any Designated Assurant Sublicensees
(including all past, present and future use), and the goodwill generated
thereby, shall inure to the benefit of Fortis and shall not vest in Assurant,
any Assurant Subsidiary or in any Designated Assurant Sublicensee. Assurant
shall not, directly or indirectly, contest or challenge the validity or
enforceability of the Fortis Marks and/or Fortis' ownership thereof. To the
extent that Assurant, any Assurant Subsidiary or any Designated Assurant
Sublicensee is deemed to have any ownership rights in the Fortis Marks, Assurant
shall, and shall cause each such Subsidiary or Designated Assurant Sublicensee
to, assign such rights to Fortis or to a member of the Fortis Group designated
by Fortis. To the extent it has not already done so prior to the date of this
Agreement, Assurant together with its Subsidiaries hereby transfers and assigns
any rights in the Fortis Marks that it may have to Fortis and agrees to take all
actions and make any filings required to effect such assignment and transfer
within 10 days of the date of this Agreement. After the date of this Agreement,
if Assurant or Fortis identifies additional marks that were in use as of the
date of this Agreement and should have been included in Schedule 2 hereto, then
the parties agree to amend Schedule 2 to include such marks in the Fortis
License and such marks shall be deemed to be Fortis Marks for all purposes under
this Agreement.
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Section 2.04. Termination of Trademark Licenses. (a) The Fortis License
granted pursuant to this Article 2 shall automatically expire (subject to
earlier termination in accordance with this Section 2.04) upon the earlier to
occur of (i) the date on which Assurant, Assurant subsidiaries and the
Designated Assurant Sublicensees cease use of all the Fortis Marks with no
intent to resume use (for which Assurant shall notify Fortis in writing as soon
as reasonably practicable thereafter) and (ii) the respective dates set forth in
Schedule 2.
(b) Fortis shall have the right to terminate the Fortis License at
any time if Assurant, any Assurant Subsidiary or any Designated Assurant
Sublicensee has breached any term or provision of this Article 2.
(c) Upon the applicable expiration or earlier termination date of
the Fortis License, Assurant shall, and shall cause each of the Designated
Assurant Sublicensees to, discontinue all applicable uses of the Fortis Marks.
(d) Fortis shall have the right in its sole discretion to continue
to maintain or terminate use of the Fortis Marks.
Section 2.05. Representations and Warranties. Assurant represents and
warrants that the performance by it of its obligations under this Article 2 will
not conflict with any other agreement or obligation to which it is bound.
Section 2.06. Disclaimer. FORTIS, ON ITS OWN BEHALF AND ON BEHALF OF
THE FORTIS GROUP, HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY,
REGISTRABILITY, OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALING OR COURSE OF PERFORMANCE), REGARDING THE FORTIS MARKS. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, ASSURANT ACKNOWLEDGES THAT THE
LICENSES GRANTED IN THIS AGREEMENT AND THE FORTIS MARKS ARE PROVIDED "AS IS."
ARTICLE 3
FINANCIAL AND OTHER INFORMATION
Section 3.01. Fifty Percent Threshold. Assurant agrees that during any
period in which the members of the Fortis Group beneficially own, in the
aggregate (excluding for such purposes shares of Common Stock beneficially owned
by the Fortis Group but not for its own account) shares entitled to fifty
percent (50%) or more of the votes entitled to be cast by the then outstanding
Common Stock (or in which, notwithstanding such percentage, any member of
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the Fortis Group is required, in accordance with IAS 27, to fully consolidate
Assurant's financial statements with its financial statements):
(a) Financial Information. Assurant shall deliver to Fortis the
financial information listed on Part 1 of Schedule 3(a) hereto by such dates as
are indicated thereon. Assurant agrees to provide in a timely manner all
information required by Fortis for the transition from FAP to IAS.
(b) Risk Reporting. Assurant shall deliver to Fortis the risk
information listed on Part 1 of Schedule 3(b) hereto by such dates as are
indicated thereon.
(c) Compliance Reporting. Assurant shall deliver to Fortis the
compliance information listed on Schedule 3(c) hereto by such dates as are
indicated thereon. In addition, Assurant shall deliver to Fortis incident
reports relating to material events consistent with past practice.
(d) Other Information. Assurant shall provide to Fortis such other
supplemental information and analyses as Fortis may reasonably request on behalf
of any member of the Fortis Group in order to analyze the financial information,
risk management and such other information with respect to Assurant and its
subsidiaries provided in accordance with clauses (a), (b) and (c) above, and
shall permit the Fortis Designees (or members of their staff acting on their
behalf) an opportunity to meet with management of Assurant in connection
therewith.
(e) Maintenance of Books and Records. Assurant shall, and shall
cause each of its consolidated subsidiaries to devise and maintain a system of
internal controls sufficient to provide reasonable assurances that permit
preparation of financial statements in conformity with FAP and any other
criteria applicable to such statements.
(f) General Financial Statement Requirements. All information
provided by Assurant or any of its subsidiaries to Fortis pursuant to Sections
3.01(a) (with the exception of the last sentence of Section 3.01(a)), (b), (c)
and (d) shall be consistent in terms of format and detail with the practices in
effect on the date hereof with respect to the provision of such financial and
other information by Assurant and its subsidiaries to Fortis (and where
appropriate, as presently presented in financial and other reports delivered to
the Board of Directors of Fortis), with such changes therein as may be agreed to
by Fortis and Assurant from time to time, such agreement not to be unreasonably
withheld.
(g) Change in Accounting Estimates and Principles. Assurant will
give Fortis reasonable notice of any significant change in any accounting
estimate or accounting principle that would impact the FAP reporting to Fortis.
Assurant will not implement any such change with respect to FAP reporting to
Fortis without Fortis' prior written consent. Notwithstanding the foregoing,
Assurant may make
8
such changes in accounting estimates or principles under GAAP as it deems
necessary or advisable in its sole discretion.
(h) Internal Auditors. Assurant shall provide Fortis' internal
auditors and, as necessary, actuaries working in conjunction with internal audit
at Fortis, upon reasonable notice access to Assurant's and its subsidiaries'
books and records so that Fortis may conduct reasonable audits relating to the
financial statements provided by Assurant pursuant to this Article 3, as well as
to the internal controls and operations of Assurant and its subsidiaries.
Section 3.02. Twenty Percent Threshold. Assurant agrees that, during
any period in which the members of the Fortis Group beneficially own, in the
aggregate (excluding for such purposes shares of Common Stock beneficially owned
by the Fortis Group but not for its own account), shares entitled to twenty
percent (20%) or more of the votes entitled to be cast by the then outstanding
Common Stock, or during any period in which any member of the Fortis Group is
required to account for its investment in Assurant under the equity method of
accounting (determined in accordance with IAS 28):
(a) Financial Information. Assurant shall deliver to Fortis the
financial information listed on Part 2 of Schedule 3(a) hereto by such dates as
are indicated thereon.
(b) Risk Reporting. Assurant shall deliver to Fortis the risk
information listed on Part 2 of Schedule 3(b) hereto by such dates as are
indicated thereon.
(c) Compliance Reporting. Assurant shall deliver to Fortis
incident reports relating to material events consistent with past practice.
(d) Other Information. Assurant shall provide to Fortis such other
supplemental information and analyses as Fortis may reasonably request on behalf
of any member of the Fortis Group in order to analyze the financial information,
risk management and such other information with respect to Assurant and its
subsidiaries, provided in accordance with clauses (a), (b) or (c) above, but
only to the extent such information or analysis has otherwise been prepared by
or on behalf of Assurant, and shall permit the Fortis Designees (or members of
their staff) an opportunity to meet with management of Assurant and its
accountants in connection therewith.
(e) General Financial Statement Requirements. All information
provided by Assurant or any of its subsidiaries to Fortis pursuant to Sections
3.02(a), (b) and (d), shall be in the format and with the level of detail
consistent with the procedures and practices utilized by Assurant and its
subsidiaries in connection with the preparation of such financial and other
information at the time the information is provided to Fortis, with such changes
9
therein as may be agreed to by Fortis and Assurant from time to time, such
agreement not to be unreasonably withheld.
Section 3.03. Coordination, Cooperation and Access. In connection with
any Fortis Group member's preparation of its quarterly earnings releases and
quarterly financial statements, audited annual financial statements and its
Annual Reports to Shareholders (collectively the "FORTIS FINANCIAL STATEMENTS"),
during any period in which the provisions of Sections 3.01 or 3.02 apply,
Assurant agrees as follows:
(a) Public Information and SEC Reports. (i) Assurant and each of
its subsidiaries which files information with the SEC shall send to Fortis no
later than at the time the same are delivered to the Assurant board of directors
or any committee thereof, drafts of all reports, earnings releases, notices and
proxy and information statements to be sent or made available by Assurant or any
of its subsidiaries to their security holders and all regular, periodic and
other reports filed under Sections 13, 14 and 15 of the Exchange Act (including
Reports on Forms 10-K, 10-Q and 8-K and Annual Reports to Shareholders), and,
subject to any additional obligations pursuant to the Registration Rights
Agreement, all registration statements and prospectuses to be filed by Assurant
or any of its subsidiaries with the SEC or any securities exchange pursuant to
the listed company manual (or similar requirements) of such exchange
(collectively, "ASSURANT PUBLIC DOCUMENTS") and shall use its reasonable best
efforts to send drafts of such Assurant Public Documents to Fortis at least
three (3) business days prior to filing with the SEC. In addition, Assurant and
each of its relevant subsidiaries agree to send final copies of all Assurant
Public Documents no later than the date the same are available to Assurant.
(ii) To the extent practicable and except as otherwise
provided by clause (i) above, prior to issuance, Assurant shall send to
Fortis, during normal business hours in Belgium and the Netherlands,
copies of all press releases and other statements to be made available
by Assurant or any of its subsidiaries to the public with respect to
material adverse developments in the business of Assurant or any of its
subsidiaries. Except as provided in clause (i) above and this clause
(ii) and below, all other press releases shall be sent to Fortis
concurrently with their public release.
(iii) No release, report, registration, information or
proxy statement, prospectus or other document which refers, or contains
information with respect, to any member of the Fortis Group shall be
filed with the SEC or otherwise made public by Assurant or any of its
subsidiaries without the prior written consent of Fortis, which consent
shall not be unreasonably withheld, with respect to those portions of
such document which contain information with respect to any member of
the Fortis Group, except as may be required by law, rule or regulation
(in such
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cases Assurant shall notify the relevant member of the Fortis Group and
obtain such member's consent before making such a filing with the SEC
or otherwise making any such information public).
(b) Release of Information. Fortis agrees that, unless required by
law, rule or regulation or unless Assurant shall have consented thereto, no
member of the Fortis Group will publicly release any information included in the
Assurant Public Documents sent to Fortis pursuant to this Article 3 prior to the
time that Fortis publicly releases financial information of Fortis for the
relevant period. Assurant and Fortis will consult on the timing of their annual
and quarterly earnings releases and, to the extent practicable, Fortis will give
Assurant an opportunity to review the information therein relating to Assurant
and its subsidiaries and to comment thereon. In the event that any member of the
Fortis Group is required by law to publicly release information included in the
Assurant Public Documents prior to the public release of Fortis' financial
information, Fortis will give Assurant notice of such release of such
information as soon as practicable but no later than two days prior to such
release of such information.
(c) Coordination of Auditors' Opinions. Assurant will use its
reasonable best efforts to enable its independent certified public accountants
(the "ASSURANT AUDITORS") to complete their quarterly review and annual audit
such that they will date their report on such quarterly review or opinion on
Assurant's audited annual financial statements prepared in accordance with GAAP
(the "ASSURANT FINANCIAL STATEMENTS") on or before the date that Fortis'
independent certified public accountants (the "FORTIS AUDITORS") date their
report or opinion on the Fortis Financial Statements, and to enable Fortis to
meet its timetable for the printing, filing and public dissemination of the
Fortis Financial Statements. Assurant will instruct the Assurant Auditors to
perform the work requested by the Fortis Auditors pursuant to this Agreement and
Assurant will use its reasonable best effort to enable the Assurant Auditors to
comply with the instruction received.
(d) Cooperation Relating to Regulatory Filings. Each of Fortis and
Assurant will cooperate with each other in connection with the preparation,
printing, filing, and public dissemination of their respective annual and
quarterly statutory statements, their respective audited annual financial
statements, their respective Annual Reports to Shareholders, their respective
annual, quarterly and current reports under the Exchange Act, any registration
statements, prospectuses and other filings made with the SEC, Euronext
Amsterdam, Euronext Brussels, the Commission Bancaire et Financiere, the Federal
Reserve Bank, state insurance requirements or any other required regulatory
filings.
(e) Access to Personnel and Working Papers. Upon reasonable
notice, Assurant will authorize the Assurant Auditors to make available to the
Fortis Auditors both the personnel who performed or are performing the quarterly
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review or annual audit of Assurant and, consistent with customary professional
practice and courtesy of such auditors with respect to the furnishing of work
papers, work papers related to the quarterly review or annual audit of Assurant,
in all cases within a reasonable time after the Assurant Auditor's opinion date,
so that the Fortis Auditors are able to perform the procedures they consider
necessary to take responsibility for the work of the Assurant Auditors as it
relates to the Fortis Auditors' report on the Fortis Financial Statements, all
within sufficient time to enable Fortis to meet its timetable for the printing,
filing and public dissemination of the Fortis Financial Statements.
(f) Information provided to the Assurant board of directors.
Assurant agrees to deliver to Fortis, subject to Section 7.08, any information,
data or reports prepared for or provided to the Assurant board of directors or
any committee thereof; provided that any information or document provided to the
Assurant board of directors or any committee thereof protected by the
attorney-client privilege (a "PRIVILEGE") and so marked shall not be so
delivered.
(g) IAS Reporting Obligations. In connection with providing the
required IAS information as set forth in Schedules 3(a) Part I and 3(a) Part II
(the "Required IAS Information"), each of Assurant and Fortis agrees as follows:
(i) Assurant hereby covenants and agrees to provide
Fortis with all information that Assurant currently has with respect to
IAS as a result of Assurant having been a part of the IAS project
developed for the Fortis Group in anticipation of the required
implementation of IAS by Fortis beginning in 2005;
(ii) Fortis understands and agrees that Assurant may hire
up to three consultants to prepare the Required IAS Information and
Fortis hereby agrees to reimburse Assurant for the costs incurred in
utilizing such consultants; provided that Fortis shall reimburse such
expense only after approving the engagement letter for such
consultants, such approval not to be unreasonably withheld;
(iii) The required IAS Information prepared by Assurant (or
prepared by the consultants referred to in Clause (ii) above on behalf
of Assurant) must be audited (in connection with any annual financial
statements or related financial information) or reviewed (in connection
with any interim financial statements or related financial information)
by Assurant's then independent auditors. In addition, Assurant hereby
understands and agrees that the Required IAS Information is the
responsibility of the management of Assurant and Assurant shall cause
its management (including its Chief Financial Officer and Chief
Accounting Officer) to provide its independent auditors and Fortis with
such representation letters or other undertakings as may be required by
Fortis in
12
connection with the preparation of its annual (audited) and interim
(unaudited) consolidated financial statements; and
(iv) Fortis hereby confirms that there will be no
requirement on the part of Assurant that it implement or become
familiar with the new consolidation system to be rolled out by the
Fortis Group for the purpose of preparing IAS consolidated financial
statements and that the reporting of the Required IAS Information by
Assurant may be made in paper format so long as such information shall
be in a form that will permit Fortis to input the IAS Required
Information onto the Fortis Group's consolidation system.
Section 3.04. Ten Percent Threshold. Assurant agrees that, during any
period in which the members of the Fortis Group beneficially own, in the
aggregate, (excluding for such purposes shares of Common Stock beneficially
owned by Fortis but not for its own account) shares entitled to ten percent
(10%) but less than twenty percent (20%) of the votes entitled to be cast by the
then outstanding Common Stock, Assurant shall:
(a) furnish to Fortis as soon as publicly available, copies of all
financial statements, reports, notices and proxy statements sent by Assurant in
a general mailing to all its shareholders; reports on Forms 10-K, 10-Q and 8-K;
final prospectuses filed pursuant to Rule 424 under the Securities Act; and
(b) upon reasonable notice, permit representatives of Fortis
internal audit, upon request by any Fortis Designee, to visit and inspect any of
the properties, corporate books, and financial and other records of Assurant and
its subsidiaries, and to discuss the affairs, finances and accounts of any such
corporations with the officers of Assurant and the Assurant Auditors, at such
reasonable times as Fortis may reasonably request.
ARTICLE 4
RELEASE AND INDEMNIFICATION
Section 4.01. General Cross Indemnification. (a) Fortis agrees to
indemnify and hold harmless Assurant and its Subsidiaries and each of the
officers, directors, employees and agents of Assurant and its Subsidiaries
against any and all costs and expenses arising out of third party claims
(including, without limitation, attorneys' fees, interest, penalties and costs
of investigation or preparation for defense), judgments, fines, losses, claims,
damages, liabilities, demands, assessments and amounts paid in settlement
(collectively, "LOSSES"), in each case, based on, arising out of, resulting from
or in connection with any claim, action, cause of action, suit, proceeding or
investigation, whether civil, criminal, administrative, investigative or other
(collectively, "ACTIONS"), based
13
on, arising out of, pertaining to or in connection with any breach by Fortis of
this Agreement.
(b) Assurant agrees to indemnify and hold harmless each member of
the Fortis Group and each of the officers, directors, employees and agents of
each member of the Fortis Group against any and all Losses, in each case, based
on, arising out of, resulting from or in connection with any Actions, based on,
arising out of, pertaining to or in connection with (i) any breach by Assurant
or any of its Subsidiaries of this Agreement and (ii) any untrue statement or
alleged untrue statement of a material fact contained in any Filing of any
member of the Fortis Group, or 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 respect to information, if any,
provided by Assurant or any of its Subsidiaries in writing to any member of the
Fortis Group expressly for use in such Filing and which is, or would be required
to be, included in any Filing of Assurant or any of its Subsidiaries.
(c) The indemnity agreement contained in Sections 4.01(a) and (b)
shall be applicable whether or not any Action or the facts or transactions
giving rise to such Action arose prior to, on or subsequent to the date of this
Agreement.
Section 4.02. Procedure. If any Action shall be brought against any
person entitled to indemnification pursuant to this Article 4 (the
"INDEMNITEES") in respect of which indemnity may be sought against Assurant,
such Indemnitee shall promptly notify Assurant, and Assurant shall assume the
defense thereof, including the employment of counsel and payment of all fees and
expenses. Such Indemnitee shall have the right to employ separate counsel in any
such action, suit or proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such person
unless (i) Assurant has agreed in writing to pay such fees and expenses, (ii)
Assurant has failed to assume the defense and employ counsel, or (iii) the named
parties to an Action (including any impleaded parties) include both an
Indemnitee and Assurant and such Indemnitee shall have been advised by its
outside counsel that representation of such indemnified party and Assurant by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case Assurant shall not have the right to assume the defense of such
Action on behalf of such Indemnitee). It is understood, however, that Assurant
shall, in connection with any one such Action or separate but substantially
similar or related Actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such indemnified persons not having actual or
potential differing interests among themselves, and that all such fees and
expenses shall be reimbursed as they are incurred. Assurant shall not be liable
for
14
any settlement of any such Action effected without its written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such Action, Assurant agrees to indemnify and hold harmless
each Indemnitee, to the extent provided in the preceding paragraph, from and
against any Losses by reason of such settlement or judgment.
Section 4.03. Other Matters. (a) No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Action 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 Action.
(b) Any Losses for which an indemnified party is entitled to
indemnification or contribution under this Article 4 shall be paid by the
indemnifying party to the indemnified party as such Losses are incurred. The
indemnity and contribution agreements contained in this Article 4 shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Indemnitee, Assurant, its directors or officers, or any
person controlling Assurant, and (ii) any termination of this Agreement.
ARTICLE 5
OTHER PROVISIONS
Section 5.01. Insurance Maintained by Fortis. Prior to the date of
effectiveness of the IPO Registration Statement, Fortis shall use its best
efforts to continue to maintain the directors' and officers' insurance coverage
for itself and on behalf of Assurant and its Subsidiaries to the extent that
Fortis obtains and maintains such coverage on a company-wide basis and for the
benefit of the members of the Fortis Group generally. Fortis shall have no
obligation to maintain such directors' and officers' insurance coverage on
behalf of Assurant or its Subsidiaries on or after the date of effectiveness of
the IPO Registration Statement provided that it shall use its best efforts to
maintain such insurance coverage subsequent to the IPO Registration Statement
for events which have occurred prior to the date of effectiveness of the IPO
Registration Statement. Assurant shall use its best efforts to obtain directors'
and officers' insurance coverage for itself and its Subsidiaries, such coverage
to be effective on or prior to the date of effectiveness of the IPO Registration
Statement.
Section 5.02. Vendor Purchasing Arrangements. The parties hereto agree
that all arrangements in existence as of the date hereof pursuant to which
Assurant purchases products and services (e.g., computers, telephones and
certain other services,) that are also used by members of the Fortis Group in
the United States
15
(such services and products set forth in Schedule 5 hereto) shall, to the extent
permitted by the underlying vendor or supplier contract continue for their
existing term; provided, that the cost associated with such arrangements are
properly allocated (upon the mutual agreement of the parties) between Assurant
and Fortis.
Section 5.03. Services Provided Prior to Trigger Date. Until the
Trigger Date (i) Fortis may, or may cause another member of the Fortis Group to,
continue to provide to Assurant and any Subsidiary of Assurant and (ii) Assurant
may, or may cause one or more of its Subsidiaries to, continue to provide to the
members of the Fortis Group, any and all administrative and other services
(unless otherwise specifically agreed by the parties) which have been,
consistent with past practices, provided by any member of the Fortis Group to
Assurant and/or any Subsidiary of Assurant and vice-versa, as requested by the
other party. If such services are so provided, the entity providing such
services shall be reimbursed by the user of such services for all costs, fees
and expenses incurred by such provider, on a basis that is consistent with the
past cost allocation practices of the members of the Fortis Group.
Section 5.04. Access to Historical Records. For a period of one year
following the Trigger Date, subject to an extension of up to ten years upon the
demonstration of a legal or regulatory requirement for such extension by the
requesting party, Fortis and Assurant will retain the right to access such other
records which exist resulting from Fortis' and Assurant's relationship as
affiliates. Upon reasonable notice and at each party's own expense, Fortis (and
its authorized representatives) and Assurant (and its authorized
representatives) will be afforded access to such records at reasonable times and
during normal business hours and each party (and its authorized representatives)
will be permitted, at its own expense, to make abstracts from, or copies of, any
such records; provided, access to such records may be denied if (i) Fortis or
Assurant, as the case may be, cannot demonstrate a legitimate business need, for
the one year period following the Trigger Date, or a legal or regulatory
requirement, for the extension period described above, for such access to the
records, (ii) the information contained in the records is subject to any
applicable confidentiality commitment to a third party, (iii) a bona fide
competitive reason exists to deny such access, (iv) the records are to be used
for the initiation of, or as part of, a suit or claim against the other party,
(v) such access would serve as a waiver of any Privilege afforded to such
record, and (vi) such access will unreasonably disrupt the normal operations of
Fortis or Assurant, as the case may be.
Section 5.05. Cosmos. For a period of one year from the Trigger Date,
(a) Assurant shall continue to update the COSMOS data base in a manner
consistent with past practice and (b) Fortis shall provide Assurant with access
to such portions of the COSMOS database relating to Assurant.
16
Section 5.06. Miscellaneous. Fortis and Assurant each agree that, to
the extent that other services provided by Fortis and Assurant to each other, or
other arrangements and practices between Fortis and Assurant, are not otherwise
specifically covered by this Agreement, Fortis and Assurant will cooperate with
each other to mutually agree on how such service, arrangement or practice shall
be discontinued and each of Fortis and Assurant agree to negotiate in good faith
to reach such mutual agreement.
ARTICLE 6
ALLOCATION AND EXPENSES
Section 6.01. Allocation of Costs and Expenses. (a) Assurant shall pay
(or, to the extent paid for by any member of the Fortis Group, will promptly
reimburse such member of the Fortis Group for any and all amounts so paid) all
fees, costs and expenses (including fees and expenses of counsel for Assurant,
Fortis US and any Subsidiary of Assurant) incurred by Assurant, Fortis US or any
Subsidiary of Assurant in connection with the IPO and the redemption of the
Capital Securities, including, but not limited to, any and all fees, costs and
expenses related to (i) the preparation and negotiation of this Agreement and of
all of the documentation related to the IPO and the redemption of the Capital
Securities, (ii) the preparation and execution or filing of any and all further
documents, agreements, forms, applications, contracts or consents associated
with the IPO and the redemption of the Capital Securities, (iii) Assurant's
organizational documents, (iv) the preparation, printing and filing of the IPO
Registration Statement and any other offering document or solicitation materials
relating to the IPO, including all fees and expenses of complying with
applicable federal, state or foreign securities laws and domestic or foreign
securities exchange rules and regulations, together with fees and expenses of
counsel retained to effect such compliance, (v) the preparation, printing and
distribution of the prospectuses for the Initial Public Offering, (vi) the
redemption of any intercompany indebtedness between Assurant and the Fortis
Group, (vii) change of company names, commercial or trade names, domain names
and product names and assignment of the rights in any trademarks and such names
(viii) the listing of the Common Stock and any other securities of Assurant on
any domestic or foreign securities exchange and (ix) the preparation (including,
but not limited to, the printing of documents) related to implementing
Assurant's employee benefit plans, retirement plans and equity-based plans as a
result of the Initial Public Offering.
(b) Fortis shall pay for all fees, costs and expenses incurred by
it or any member of the Fortis Group in connection with the Tender Offer,
including, but not limited to, (i) any and all fees, costs and expenses related
to the preparation and execution or filing of all documents, agreements, forms,
applications,
17
contracts or consents associated with the Tender Offer, (ii) the preparation,
printing and filing of the Tender Offer, (iii) the preparation, printing and
distribution of any offering documents or solicitation materials for the Tender
Offer, and (iv) the fees and expenses of counsel in connection therewith.
Section 6.02. Expense Reimbursement. (a) Fortis agrees to reimburse
Assurant for all costs and expenses it incurs in connection with the preparation
and filing of any reports or other documents required by the Federal Reserve
Bank in connection with Fortis Group's status as a financial holding company.
Such costs and expenses will be reimbursed upon receipt of a reasonably detailed
invoice from Assurant which itemizes the costs and expenses so incurred.
(b) Except as otherwise provided in this Agreement and in Section
6.01, the parties hereto shall bear any costs and expenses incurred by such
party in connection with compliance with this Agreement.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Notices. All notices and other communications provided
for hereunder (except for any information and documents to be sent to Fortis by
Assurant pursuant to Article 3 hereof) shall be dated and in writing and shall
be deemed to have been given (a) when delivered, if delivered personally, sent
by confirmed telecopy or sent by registered or certified mail, return receipt
requested, postage prepaid, (b) on the next business day if sent by overnight
courier and (c) when received if delivered otherwise. Such notices shall be
delivered to the address set forth below, or to such other address as a party
shall have furnished to the other party in accordance with this Section.
If to Fortis or any other member of the Fortis Group, to:
Fortis Fortis Insurance N.V.
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ GA Utrecht
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and The Netherlands
Phone: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇ Phone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
18
If to Assurant, Inc.:
Assurant, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President,
General Counsel and Secretary
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All information or documents required to be delivered or sent by
Assurant to Fortis in accordance with Article 3 hereof shall be sent by Email or
facsimile as follows, with a hard copy to be sent promptly to:
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Rue Royal 20 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ GA Utrecht
▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ The Netherlands
Phone: ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Phone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Section 7.02. Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto or their successors in interest, except as expressly otherwise provided
herein.
Section 7.03. Descriptive Headings. The descriptive headings of the
several articles and sections of this Agreement are inserted for reference only
and shall not limit or otherwise affect the meaning hereof.
Section 7.04. Remedies. Without limiting the rights of each party
hereto to pursue any and all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
Without limiting the generality of the foregoing, Assurant acknowledges
and agrees that: (a) its covenants and obligations hereunder are special, unique
and relate to matters of extraordinary importance to Fortis, that in the event
Assurant fails to perform, observe or discharge any of its obligations under
this agreement Fortis will be irreparably harmed and that no remedy at law will
provide adequate relief to Fortis; and
(b) Fortis shall be entitled to a temporary restraining order and
temporary and permanent injunctive and other equitable relief in case of any
failure by Assurant to perform, observe or discharge any of its covenants or
obligations hereunder and without the necessity of proving actual damages. The
remedies provided herein shall be cumulative and shall not preclude assertion by
19
any party hereto of any other rights or the seeking of any other remedies,
either legal or equitable, against any other party hereto.
Section 7.05. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts to be performed entirely within such State.
Section 7.06. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
Section 7.07. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law. To
the extent that any such provision is so held to be invalid, illegal or
unenforceable, Fortis and Assurant shall in good faith use their best efforts to
find and effect an alternative means to achieve the same or substantially the
same result as that contemplated by such provision.
Section 7.08. Confidential Information. All information provided by
either party shall, except if the purpose for which such information is
furnished pursuant to this Agreement contemplates such disclosure or is for
disclosure in public documents of Assurant or the Fortis Group and except for
disclosure to the other members of the Fortis Group by Fortis, be kept strictly
confidential and, unless otherwise required by law, rule or regulation, neither
party will disclose such information in any manner whatsoever until such
information otherwise becomes generally available to the public; provided,
however, this Section 7.08 shall not apply to information relating to or
disclosed in the IPO Registration Statement filed in connection with the Initial
Public Offering or in connection with the Exchange Offer or Tender Offer or any
Registration Statement filed in accordance with the terms of the Registration
Rights Agreement. Information shared or provided pursuant to this Agreement
shall be used solely for reporting and risk assessment purposes. In no event
shall either party use material non-public information of the other to acquire
common stock or other publicly traded securities of the other. In addition, each
party agrees that it shall not make public any information received by it
(unless required to do so by law) except to the extent such information is
published or otherwise publicly disclosed by the party providing such
information.
20
Section 7.09. Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written agreement executed by the
parties hereto.
Section 7.10. Entire Agreement. This Agreement, including any schedules
or exhibits annexed hereto, embodies the entire agreement and understanding of
the parties hereto in respect of the transactions contemplated by this
Agreement. There are no restrictions, promises, representations, warranties,
covenants or undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
Section 7.11. No Assignment. Except as otherwise provided for in this
Agreement, neither this Agreement nor any of the rights, interests or
obligations of any party hereto may be assigned by such party without the prior
written consent of the other parties; provided, however, that Fortis may assign
all or part of its rights or obligations hereunder to one or more other members
of the Fortis Group without the prior consent of Assurant.
Section 7.12. No Third Party Beneficiaries. Nothing in this Agreement
shall convey any rights upon any person or entity which is not a party or a
permitted assignee of a party to this Agreement.
Section 7.13. Termination. This Agreement shall terminate upon the
later of (x) the date on which the members of the Fortis Group no longer
beneficially own, in the aggregate (excluding for such purposes shares of Common
Stock beneficially owned by Fortis but not for its own account) shares entitled
to at least ten percent (10%) of the votes entitled to be cast by the then
outstanding Common Stock and (y) the termination of the Fortis License.
21
IN WITNESS HEREOF, the parties have caused this Cooperation Agreement
to be executed and delivered as of the date first above written.
ASSURANT, INC.
By:________________________________________
Name:
Title:
FORTIS INSURANCE N.V.
By:________________________________________
Name:
Title:
FORTIS SA/NV
By:________________________________________
Name:
Title:
FORTIS N.V.
By:________________________________________
Name:
Title:
22
SCHEDULE 2 FORTIS ▇▇▇▇▇
▇▇▇▇ PERMITTED USE DURATION OF LICENSE
------------------------------------------------------------------------------------------------------------------------------------
1. TRADEMARKS Assurant may continue to use Fortis License expires with respect to
trademarks for the purpose of trademarks used by an Assurant
FORTIS BENEFITS ONLINE ADVANTAGE transitioning to use of the subsidiary with "Fortis" as part
FORTIS BENEFITS DENTALCARE Assurant name of its company, commercial or trade
FORTISWORKS name 24 (twenty-four) months from
FORTIS BENEFITS SERVICE SOLUTIONS the date of this Agreement, subject
FORTIS BENEFITS SECURE INCOME to Section 2.01(b) and Section 2.04.
SOLUTIONS/PLANS
FORTIS BENEFITS ULTIMATE SECURE
INCOME SOLUTIONS/PLANS License expires with respect to
FORTIS BENEFITS ESSENTIAL INCOME trademarks used by an Assurant
SOLUTIONS/PLANS subsidiary NOT having "Fortis" as part
devicemark (coloured dots) of its company, commercial or trade
FORTIS (wordmark) name 12 (twelve) months from the date
FORTIS (wordmark) of this Agreement, subject to Section
FORTIS NEWSPOINTE 2.01(b) and Section 2.04.
FORTIS ADVANTAGE ONLINE SERVICES
FORTIS ADVANTAGE
FORTIS BENEFITS PLUS PLAN
FORTIS BENEFITS EXECU PLAN
FORTIS BENEFITS PRO PLAN
THE FORTIS BENEFITS ADVANTAGE
FORTIS BENEFITS INSURANCE COMPANY
SOLID PARTNERS, FLEXIBLE SOLUTIONS
FORTIS INSURANCE COMPANY
23
▇▇▇▇ PERMITTED USE DURATION OF LICENSE
------------------------------------------------------------------------------------------------------------------------------------
FORTIS HEALTH
FORTIS HEALTH FOUNDATION
FORTIS/ FORTIS HEALTH FOUNDATION
FORTISFAMILYLINK
FORTIS BENEFITS-THE BROKER'S
INSURANCE SOLUTION COMPANY*
FORTIS BENEFITS-THE EMPLOYER'S
INSURANCE SOLUTION COMPANY*
FORTIS GUARANTEED PAYOUTPLAN*
FORTIS INCOME PREFERRED*
FORTIS REWARDS PREFERRED VARIABLE
ANNUITY*
FORTIS VALUE PREFERRED VARIABLE
ANNUITY*
FORTIS ULTIMATE ANNUITY*
THE FORTIS BENEFITS EDGE*
THE FORTIS BENEFITS SOLUTIONS
PORTFOLIO*
FORTIS CUSTOM ALLOCATION* * *
* indicates trademarks that are listed as "dead" in the register of the U.S.
Patent and Trademark Office
2. COMPANY NAMES Assurant may continue to use Fortis License expires with respect to
as part of company names to the extent company names used by an Assurant
Fortis, Inc. and in the form that such company name subsidiary with "Fortis" as part of
First Fortis Life Insurance Company includes "Fortis" in the charter its company, commercial or trade name
Fortis Family Inc. documents of the relevant company and 24 (twenty-four) months from the date
Fortis Legacy Place, Int. to the extent necessary for the purpose of this Agreement, subject
Fortis Insurance Company of transitioning to use of the Assurant to Section 2.01(b) and Section 2.04.
Fortis Benefits Insurance Company name
License expires with respect to company
names used by an Assurant subsidiary
NOT having "Fortis" as part of its
company, commercial or trade name 12
(twelve) months from the date of this
Agreement, subject to Section 2.01(b)
and Section 2.04
24
▇▇▇▇ PERMITTED USE DURATION OF LICENSE
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3. COMMERCIAL/TRADE NAMES Assurant may continue to use License expires with respect to
Fortis as part of commercial commercial or trade names used by
Fortis Preneed or trade names to the extent an Assurant subsidiary with "Fortis"
Fortis Family necessary for the purpose of as part of its company, commercial
Fortis Health transitioning to use of the or trade name 24 (twenty-four) months
First Fortis Assurant name from the date of this Agreement,
Fortis Benefits subject to Section 2.01(b) and
Fortis Inc. Shared Services Section 2.04.
Fortis Asset Management
License expires with respect to
commercial or trade names used by
an Assurant subsidiary NOT having
"Fortis" as part of its company,
commercial or trade name 12 (twelve)
months from the date of this Agreement,
subject to Section 2.01(b) and
Section 2.04
4. DOMAIN NAMES Assurant may continue to use License expires with respect to
Fortis domain names for the domain names used by an Assurant
▇▇▇.▇▇.▇▇▇▇▇▇.▇▇▇ purpose of transitioning to subsidiary with "Fortis" as part of
Assurant domain names its company, commercial or trade
▇▇▇.▇▇.▇▇▇▇▇▇.▇▇▇ name 24 (twenty-four) months from
the date of this Agreement, subject
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to Section 2.01(b) and Section 2.04.
▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ License expires with respect to
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ domain names used by an Assurant
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ subsidiary NOT having "Fortis"
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as part of its company, commercial
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or trade name 12 (twelve) months
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ from the date of this Agreement,
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ subject to Section 2.01(b) and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Section 2.04
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5. PRODUCT NAMES Assurant may offer and sell products containing License expires with respect to product names
the Fortis name to the extent necessary for the used by an Assurant subsidiary with "Fortis"
Same as part 1. purpose of transitioning to use of the Assurant as part of its company, commercial or trade
Trademarks name. name 24 (twenty-four) months from the date of
this Agreement, subject to Section 2.01(b)
and Section 2.04.
30
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License expires with respect to product names
used by an Assurant subsidiary NOT having
"Fortis" as part of its company, commercial or
trade name 12 (twelve) months from the date of
this Agreement, Section 2.01(b) and subject to
Section 2.04
31
SCHEDULE 3(a) FINANCIAL INFORMATION
PART 1: 50% OR FULL CONSOLIDATION THRESHOLD
INFORMATION TO BE PROVIDED: CONTENT: DEADLINE:
--------------------------- -------- ---------
2004 FAP REPORTING
REQUIREMENTS
- quarterly internal GAAP - as prepared for Assurant's internal - within 20 Business Days of the
accounts and management purposes end of each quarter
commentary
- FAP quarterly reporting - as currently provided including - within 20 Business Days of the
quarterly updates of forecast end of each of the first three quarters
and within 25 Business Days after the
end of the fourth quarter
IAS REPORTING REQUIREMENTS
BEGINNING IN 2004
- IAS information - 2004 opening balance sheet - April 23, ▇▇▇▇
- ▇▇▇▇▇▇▇▇▇ ▇&▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ - ▇▇: July 23, 2004
cash flow information, level of - Q2: October 10, 2004
detail to be provided is the same - Q3: December 11, 2004
as under FAP and reconciliation - Q4: February 6, 2005
of results, equity, the main - 2005: tbd
balance sheet and P&L items
from FAP to IAS per quarter for
2004
BUDGET INFORMATION
- Budget - Based on Assurant models, - By the last Business Day in the
including reconciliation to FAP first full week of November each
year (each week beginning on a Monday)
32
SCHEDULE 3(a) FINANCIAL INFORMATION
PART 2: 20% OR EQUITY ACCOUNTING THRESHOLD
INFORMATION TO BE PROVIDED: CONTENT: DEADLINE:
--------------------------- -------- ---------
REPORTING REQUIREMENTS
- quarterly internal GAAP - as prepared for Assurant's internal - within 20 Business Days of the
accounts and management purposes end of each quarter
commentary
- Reconciliation from GAAP - only required until end of 2004 - within 20 Business Days of the
to FAP of shareholders end of each of the first three
equity, net income and quarters and within 25 Business
equity roll forward and Days after the end of the fourth
forecast result for quarter
whole year through 2004
- Reconciliation from GAAP - required quarterly for 2004 and - within 20 Business Days of the
to IFRS/IAS of shareholders thereafter end of each quarter
equity, net income and
equity roll forward in
IAS/IFRS and forecast for
results for whole year
BUDGET INFORMATION
- Budget - Based on Assurant models, - By the last Business Day in the first
including reconciliation to FAP full week of November each year (each
of shareholders equity, net income week beginning on a Monday)
and equity roll forward through
2004 and to IAS thereafter
33
SCHEDULE 3(b) RISK INFORMATION
PART 1: 50% OR FULL CONSOLIDATION THRESHOLD
INFORMATION TO BE PROVIDED: DEADLINE:
--------------------------- ---------
- Fair Value Reporting - within 5 weeks of the end of each quarter
- Annual Risk Based Capital (RBC) data - within 2 months of year end
- Quarterly Asset Reporting - within 1 month of the end of each quarter
- Bi-weekly Report on Capital Gains - Report through the last Business Day of
every other week due within 2 Business Days
later (each week beginning on a Monday)
PART 2: 20% OR EQUITY ACCOUNTING THRESHOLD
INFORMATION TO BE PROVIDED: DEADLINE:
--------------------------- ---------
- Risk management and investment policy - Promptly after preparation thereof
reports prepared for the Assurant Board
of Directors or any Committee of the
Board of Directors
34
SCHEDULE 3(c) COMPLIANCE INFORMATION
50% OR FULL CONSOLIDATION THRESHOLD
INFORMATION TO BE PROVIDED: CONTENT: DEADLINE:
--------------------------- -------- ---------
- Compliance Reports - As currently provided to - No later than the
covering period from Fortis Compliance last Business Day
April 1 - March 31 each Department in the first full
year week of May (each week
beginning on a Monday),
unless otherwise agreed
between the parties
35
SCHEDULE 5
U.S. INFORMATION TECHNOLOGY ENROLLMENTS UNDER EUROPE-HELD CONTRACTS
CONTRACT NAME: TYPE: TERMINATION DATE:
-------------- ---- ----------------
IBM Passport Advantage Software Evergreen
Citrix PLP Software July 31, 2004
Hewlett-Packard Hardware August 31, 2004
EUROPEAN ENROLLMENTS UNDER U.S.-HELD CONTRACTS
CONTRACT NAME: TYPE: TERMINATION DATE:
------------- ---- ----------------
Microsoft Select 5.1 Software - European companies that June 30, 2004
enrolled under the U.S. Microsoft select
5.1 agreement are:
Beta Capital, S.V.B. (Spain)
Fortis AG (Belgium)
MeesPierson (CI) Ltd (Channel Islands)
Fortis Financial Services, LLC (NYC -
part of Fortis Bank)
Corporate Express Strategic Sourcing Group ("SSG") for May 1, 2005
office supplies - Fortis Clearing House
and Fortis Capital
Boise SSG for paper Fortis Clearing House April 31, 2004
and Fortis Capital
UPS SSG - for overnight delivery - Fortis September, 2006
Clearing House and Fortis Capital
FedEx SSG - for overnight delivery - Fortis Evergreen
Clearing House and Fortis Capital
National Car Rental SSG - car rental (to be implemented September 1, 2004
soon) Fortis Clearing House and Fortis
Capital
AT&T Voice services - Fortis Financial August 31, 2005
Services
Guardian Travel SSG - travel services - Fortis Capital Approval for Travel
(to be implemented soon) policy & permission to
move travel to Guardian
Travel is in NY -
timeline to be determined
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