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Exhibit 1.1
ASSURANT, INC.
$500,000,000 5.625% Senior Notes due 2014
$475,000,000 6.750% Senior Notes due 2034
Purchase Agreement
February 10, 2004
Citigroup Global Markets Inc.
Morgan Stanley & Co. Incorporated
Banc One Capital Markets, Inc.
As Representatives of the Initial
Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Assurant, Inc. (d/b/a Assurant Group), a corporation organized
under
the laws of Delaware (the "Company"),
proposes to issue and sell to the several
parties named in Schedule I hereto (the
"Initial Purchasers"), for whom you (the
"Representatives") are acting as
representatives, $500,000,000 principal amount
of its 5.625% Senior Notes due 2014 (the
"2014 Notes") and $475,000,000
principal amount of its 6.750% Senior Notes
due 2034 (the "2034 Notes" and,
together with the 2014 Notes, the
"Securities"). The Securities are to be issued
under an indenture (the "Indenture"), to be
dated as of the Closing Date (as
defined herein), between the Company and
SunTrust Bank, as trustee (the
"Trustee"). The Securities will have the
benefit of a registration rights
agreement (the "Registration Rights
Agreement"), to be dated as of the Closing
Date, between the Company and the Initial
Purchasers, pursuant to which the
Company will agree to register the
Securities under the Act subject to the terms
and conditions therein specified. To the
extent there are no additional parties
listed on Schedule I other than you, the
term Representatives as used herein
shall mean you as the Initial Purchasers,
and the terms Representatives and
Initial Purchasers shall mean either the
singular or plural as the context
requires. The use of the neuter in this
Agreement shall include the feminine and
masculine wherever appropriate. Certain
terms used herein are defined in Section
18 hereof.
The sale of the Securities to the Initial Purchasers will be
made
without registration of the Securities
under the Act in reliance upon exemptions
from the registration requirements of the
Act.
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In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum,
dated February 5, 2004 (as amended
or supplemented at the date thereof,
including any and all exhibits thereto and
any information incorporated by reference
therein, the "Preliminary
Memorandum"), and a final offering
memorandum, dated February 10, 2004 (as
amended or supplemented at the Execution
Time, including any and all exhibits
thereto and any information incorporated by
reference therein, the "Final
Memorandum"). Each of the Preliminary
Memorandum and the Final Memorandum sets
forth certain information concerning the
Company and the Securities. The Company
hereby confirms that it has authorized the
use of the Preliminary Memorandum and
the Final Memorandum, and any amendment or
supplement thereto, in connection
with the offer and sale of the Securities
by the Initial Purchasers. Unless
stated to the contrary, any references
herein to the terms "amend," "amendment"
or "supplement" with respect to the Final
Memorandum shall be deemed to refer to
and include any information filed under the
Exchange Act subsequent to the
Execution Time that is incorporated by
reference therein.
1. Representations and Warranties. The Company represents and
warrants to each Initial Purchaser as set
forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not
contain
any untrue statement of a material fact or
omit to state any material fact
necessary to make the statements therein,
in the light of the circumstances
under which they were made, not misleading.
At the Execution Time and on the
Closing Date, the Final Memorandum did not
and will not (and any amendment or
supplement thereto, at the date thereof and
at the Closing Date will not)
contain any untrue statement of a material
fact or omit to state any material
fact necessary to make the statements
therein, in the light of the circumstances
under which they were made, not misleading;
provided, however, that the Company
makes no representation or warranty as to
the information contained in or
omitted from the Preliminary Memorandum or
the Final Memorandum, or any
amendment or supplement thereto, in
reliance upon and in conformity with
information furnished in writing to the
Company by or on behalf of the Initial
Purchasers through the Representatives
specifically for inclusion therein.
(b) None of the Company, its Affiliates, or any person acting on
its
or their behalf has, directly or
indirectly, made offers or sales of any
security, or solicited offers to buy, any
security under circumstances that
would require the registration of the
Securities under the Act; provided,
however, that no such representation is
made as to the Initial Purchasers or any
person acting on their behalf.
(c) None of the Company, its Affiliates, or any person acting on
its
or their behalf has: (i) engaged in any
form of general solicitation or general
advertising (within the meaning of
Regulation D) in connection with any offer or
sale of the Securities or (ii) engaged in
any directed selling efforts (within
the meaning of Regulation S) with respect
to the Securities in the United
States, and each of the Company, its
Affiliates and each person acting on its or
their behalf has complied with the offering
restrictions requirement of
Regulation S; provided, however, that no
such representation is made as to the
Initial Purchasers or any person acting on
their behalf.
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(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(e) Assuming the accuracy of the representations and warranties
of
the Initial Purchasers in Section 4, no
registration under the Act of the
Securities is required for the offer and
sale of the Securities to or by the
Initial Purchasers in the manner
contemplated herein and in the Final
Memorandum.
(f) 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.
(g) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or
Section 15(d) of the Exchange Act.
(h) The capitalization of the Company as of September 30, 2003
conforms in all material respects to the
description thereof in the Final
Memorandum and the capitalization of the
Company as of September 30, 2003, as
adjusted, conforms in all material respects
to the description thereof in the
Final Memorandum; 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 Final Memorandum.
(i) The Company has not taken, directly or indirectly, any
action
designed to or that has constituted or that
might reasonably be expected to
cause or result, under the Exchange Act or
otherwise, in stabilization or
manipulation of the price of any security
of the Company to facilitate the sale
or resale of the Securities.
(j) 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
Final Memorandum 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.
(k) 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
Final Memorandum 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
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capital stock of each Designated Subsidiary
owned directly or indirectly by the
Company 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 Final
Memorandum; 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.
(l) The statements relating to legal matters, documents or
proceedings included in the Final
Memorandum under the headings "Business -
Legal Proceedings," "Regulation," "Exchange
Offer; Registration Rights," and
"Certain ERISA Considerations" fairly
summarize such matters, documents or
proceedings therein described.
(m) 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 Final Memorandum (exclusive of any
amendments or supplements thereto
subsequent to the date of this
Agreement).
(n) All of the issued shares of capital stock of the Company
have
been duly authorized and are validly
issued, fully paid and non-assessable.
(o) This Agreement has been duly authorized, executed and
delivered
by the Company.
(p) The Indenture has been duly authorized and, assuming due
authorization, execution and delivery
thereof by the Trustee, when executed and
delivered by the Company, will constitute a
legal, valid, binding instrument
enforceable against the Company in
accordance with its terms, except as such
enforceability may be limited by applicable
bankruptcy, insolvency,
reorganization, moratorium or other similar
laws affecting creditors' rights
generally and by general principles of
equity (regardless of whether such
enforceability is considered in a
proceeding in equity or at law).
(q) The Securities have been duly authorized, and, when executed
and
authenticated in accordance with the
provisions of the Indenture and delivered
to and paid for by the Initial Purchasers
in accordance with the terms hereof,
will have been duly executed and delivered
by the Company and will constitute
the legal, valid and binding obligations of
the Company entitled to the benefits
of the Indenture, except as such
enforceability may be limited by applicable
bankruptcy, insolvency, reorganization,
moratorium or other similar laws
affecting creditors' rights generally and
by general principles of equity
(regardless of whether such enforceability
is considered in a proceeding in
equity or at law).
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(r) The Registration Rights Agreement has been duly authorized
by
the Company and, when executed and
delivered by the Company, will constitute the
legal, valid, binding and enforceable
instrument of the Company, except as such
enforceability may be limited by applicable
bankruptcy, insolvency,
reorganization, moratorium or other similar
laws affecting creditors' rights
generally and by general principles of
equity(regardless of whether such
enforceability is considered in a
proceeding in equity or at law), provided that
no representation is made with respect to
Section 6 thereof.
(s) No consent, approval, authorization, filing with or order of
any
court or governmental agency or body is
required in connection with the
transactions contemplated herein, in the
Indenture or in the Registration Rights
Agreement, except such as may be required
under the blue sky laws or insurance
securities laws of any jurisdiction in
which the Securities are offered and sold
and, in the case of the Registration Rights
Agreement, such as will be obtained
under the Act and the Trust Indenture
Act.
(t) The execution and delivery by the Company of, and the
performance by the Company of its
obligations under this Agreement, the
Indenture and the Registration Rights
Agreement, the issuance and sale of the
Securities, and the consummation of any
other of the transactions herein or
therein contemplated, and the fulfillment
of the terms hereof and thereof 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.
(u) The financial statements of the Company and its
consolidated
subsidiaries (including the related notes
and supporting schedules) included in
the Final Memorandum 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 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 Act.
(v) No action, suit or proceeding by or before any court or
governmental agency, authority or body or
any arbitrator involving the Company
or any of its Designated Subsidiaries or
its or their property is pending or, to
the best knowledge
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of the Company, threatened that (i) could
reasonably be expected to have a
material adverse effect on the performance
of this Agreement, the Indenture or
the Registration Rights Agreement, or the
consummation of any of the
transactions contemplated hereby or thereby
or (ii) could reasonably be expected
to have a 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, whether or
not arising from transactions in the
ordinary course of business, except as set
forth in or contemplated in the Final
Memorandum (exclusive of any amendment or
supplement thereto).
(w) PricewaterhouseCoopers LLP, whose report is included in the
Final Memorandum, is an independent
certified public accountant with respect to
the Company and its consolidated
subsidiaries within the meaning of the Act and
the rules and regulations adopted by the
Commission thereunder. Ernst & Young
LLP, which firm audited the consolidated
statements of operations for the years
ended December 31, 1998 and 1999 and the
consolidated balance sheets as of
December 31, 1998 and 1999 of Fortis, Inc.
(the predecessor company) and its
subsidiaries, a summary of which is
included in the Final Memorandum under the
heading "Selected Consolidated Financial
Information," was, during the years
ended December 31, 1998 and 1999, an
independent certified public accountant
with respect to Fortis, Inc. and its
consolidated subsidiaries within the
meaning of the Act and the rules and
regulations adopted by the Commission
thereunder.
(x) 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 Final Memorandum.
(y) Any tax returns required to be filed by the Company or any
of
its Designated Subsidiaries in any
jurisdiction have been 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 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.
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
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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.
(z) No material labor dispute with the employees of the Company
or
any of its Designated Subsidiaries exists,
except as described in the Final
Memorandum (exclusive of any amendment or
supplement thereto), or, to the
knowledge of the Company, is imminent.
(aa) 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 Final Memorandum
(exclusive of any amendment or supplement
thereto) 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.
(bb) 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 Final Memorandum.
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
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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 Final
Memorandum, the Company has not received any
order or decree from any 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.
(cc) 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.
(dd) 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.
(ee) Other than the Registration Rights Agreement or as
otherwise
disclosed in the Final Memorandum, 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 Act with
respect to any securities of the
Company.
(ff) Subsequent to the respective date as of which information
is
given in the Final Memorandum, (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
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dividend or distribution of any kind on its
capital stock; 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 Final Memorandum.
(gg) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum
funding standards of Section 302 of the
United States 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 unpaid
liability to the Pension Benefit
Guaranty Corporation (other than for the
payment of premiums in the ordinary
course).
(hh) Except as described in the Final Memorandum, 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 effect on the Company and its
subsidiaries, taken as a whole.
(ii) 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
Final Memorandum 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 Final Memorandum.
(jj) Except as described in the Final Memorandum, (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
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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 dee
