SECOND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit 4.1
THIS SECOND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT (this “AMENDMENT”), dated as of
May 6, 2007, to the Amended and Restated Rights Agreement dated as of February 19, 1998, between
Ohio Casualty Corporation and Computershare Trust Company, N.A. (f/k/a EquiServe Trust Company,
N.A.), as successor to First Chicago Trust Company of New York (the “RIGHTS AGENT”), as amended on
November 8, 2001 (the “RIGHTS AGREEMENT”).
WITNESSETH
WHEREAS, the Company and the Rights Agent have heretofore executed and entered into the Rights
Agreement;
WHEREAS, Liberty Mutual Insurance Company, a Massachusetts stock insurance company (“Parent”),
Waterfall Merger Corp., an Ohio corporation and a wholly-owned subsidiary of Parent (“Merger Sub”)
and Ohio Casualty Corporation, an Ohio corporation (the “Company”), propose to enter into an
Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which Merger Sub will merge with
and into the Company, with the Company as the surviving corporation and whereby all the Company’s
issued common shares will be converted into the right to receive cash;
WHEREAS, the Board of Directors of the Company has approved the Merger Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may from time to time
supplement or amend the Rights Agreement; and
WHEREAS, the Board of Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable in connection with the foregoing and has
approved this Amendment, and the Company and the Rights Agent desire to evidence such amendment in
writing.
NOW, THEREFORE, the Company and the Rights Agent hereby amend the Rights Agreement as follows:
1. AMENDMENT OF SECTION 1.
Section 1 of the Rights Agreement is hereby amended and supplemented to add the following
definitions in the appropriate alphabetical locations:
“MERGER SUB” shall mean Waterfall Merger Corp., an Ohio corporation and a wholly owned direct
subsidiary of Parent.
“MERGER” shall mean the “Merger” as such term is defined in the Merger Agreement.
“MERGER AGREEMENT” shall mean the Agreement and Plan of Merger, dated as of May 6, 2007, by
and among Parent, Merger Sub and the Company, as it may be amended from time to time.
“PARENT” shall mean Liberty Mutual Insurance Company.
2. AMENDMENT OF DEFINITION OF “ACQUIRING PERSON”. The definition of “Acquiring Person” in
Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding the following
sentence at the end thereof:
“Notwithstanding anything in this Rights Agreement to the contrary, neither Parent, Merger
Sub, nor any of their Affiliates or Associates shall be deemed to be an Acquiring Person as
a result, directly or indirectly, of (i) the approval, execution, delivery or performance
of the Merger Agreement, (ii) the consummation of the Merger or any other transaction
contemplated by the Merger Agreement or (iii) the public announcement of any of the
foregoing.”
3. AMENDMENT OF DEFINITION OF “DISTRIBUTION DATE”. Section 3(a) of the Rights Agreement is
hereby amended and supplemented by adding the following sentence at the end of said Section 3(a):
“Notwithstanding anything in this Rights Agreement to the contrary, a Distribution Date
shall not be deemed to have occurred solely as the result, directly or indirectly, of (i)
the approval, execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger or any other transaction contemplated by the Merger Agreement or
(iii) the public announcement of any of the foregoing.”
4. AMENDMENT OF DEFINITION OF “STOCK ACQUISITION DATE”. The definition of “Stock Acquisition
Date” in Section 1(h) of the Rights Agreement is hereby amended and supplemented by adding the
following sentence at the end thereof:
“Notwithstanding anything in this Rights Agreement to the contrary, a “Stock Acquisition
Date” shall not be deemed to have occurred solely as the result, directly or indirectly, of
(i) the approval, execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger or any other transaction contemplated by the Merger Agreement or
(iii) the public announcement of any of the foregoing.”
5. AMENDMENT OF SECTION 3. Section 3 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof as a new Section 3(d):
“Nothing in this Rights Agreement shall be construed to give any holder of Rights or any
other Person any legal or equitable rights, remedies or claims under this Rights Agreement
by virtue of (i) the approval, execution, delivery or performance of the Merger Agreement,
(ii) the consummation of the Merger or any other transaction contemplated by the Merger
Agreement or (iii) the public announcement of any of the foregoing.”
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6. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights Agreement is hereby amended and
supplemented by deleting “(i) the Close of Business on December 15, 2009 (the “Final Expiration
Date”)” and replacing it with the following:
“(i) the earlier of (x) the Close of Business on December 15, 2009 and (y) immediately
prior to the Effective Time (as defined in the Merger Agreement) (such earlier date, the
“Final Expiration Date”)...”
7. AMENDMENT OF SECTION 11(a)(ii). Section 11(a)(ii) of the Rights Agreement is hereby amended
and supplemented by adding the following sentence to the end of that section:
“Notwithstanding anything else set forth in this Agreement, no event requiring an
adjustment under this Section 11(a)(ii) shall be deemed to have occurred by reason of (i)
the approval, execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger or any other transaction contemplated by the Merger Agreement or
(iii) the public announcement of any of the foregoing.”
8. AMENDMENT TO SECTION 13. Section 13 of the Rights Agreement is hereby amended and restated
to read as follows:
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earnings Power.
(a) Subject to Section 24, in the event that, following the Stock Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with and into, any
other Person, (y) any Person shall consolidate with the Company, or merge with or into the
Company, and the Company shall be the continuing or surviving corporation of such merger
(other than, in the case of either transaction described in (x) or (y), a merger or
consolidation which would result in all of the Voting Power represented by the securities
of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into securities of the surviving entity) all of
the Voting Power represented by the securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation and the holders of such
securities not having changed as a result of such merger or consolidation, or (z) the
Company shall sell or otherwise transfer (or one or more of its subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its subsidiaries (taken as a
whole) to any other Person (other than, in the case of any transaction described in (x),
(y) or (z) above, the Merger), then, and in each such case, proper provision shall be made
so that (i) following the Distribution Date, each holder of a Right, subject to Section
7(e), shall have the right to receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, such number of shares of
freely tradable Common Stock of the Principal Party (as hereinafter defined), free and
clear of liens, rights of call or first refusal, encumbrances or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then current
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Purchase Price by the number of shares of Common Stock for which a Right is then
exercisable (or, if an event under Section 11(a)(ii) has occurred previously, multiplying
the number of shares of Common Stock for which a Right was exercisable immediately prior to
such Section 11(a)(ii) event by the Purchase Price in effect immediately prior to such
event) and dividing that product by (2) 50% of the current market price per share of the
Common Stock of such Principal Party (determined pursuant to Section 11(d) hereof) on the
date of consummation of such consolidation, merger, sale or transfer; (ii) such Principal
Party shall thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term “Company” shall thereafter be deemed to refer to such Principal
Party, it being specifically intended that the provisions of Section 11 hereof shall apply
to such Principal Party; and (iv) such Principal Party shall take such steps (including,
but not limited to, the reservation of a sufficient number of shares of its Common Stock)
in connection with such consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to its
shares of Common Stock thereafter deliverable upon the exercise of the Rights.
(b) “Principal Party” shall mean
(i) in the case of any transaction described in (x) or (y) of the first sentence of this
Section 13, the Person that is the issuer of any securities into which shares of Common
Stock of the Company are converted in such merger or consolidation, and if no securities
are so issued, the Person that is the other party to such merger or consolidation
(including, if applicable, the Company, if it is the surviving corporation); and
(ii) in the case of any transaction described in clause (z) of the first sentence of
Section 13(a), the Person that is the party receiving the greatest portion of the assets or
earning power transferred pursuant to such transaction or transactions; provided,
however, that in any such case, (1) if the Common Stock of such Person is not at
such time and has not been continuously over the preceding 12 month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect subsidiary or
Affiliate of another Person, “Principal Party” shall refer to such other Person; (2) in
case such Person is a subsidiary, directly or indirectly, or Affiliate of more than one
Person, the Common Stock of two or more of which are and have been so registered,
“Principal Party” shall refer to whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value; and (3) in case such Person is owned,
directly or indirectly, by a joint venture formed by two or more Persons that are not
owned, directly or indirectly, by the same Person, the rules set forth in (1) and (2) above
shall apply to each of the chains of ownership having an interest in such joint venture as
if such party were a “subsidiary” of both or all of such joint ventures and the Principal
Parties in each such chain shall bear the obligations set forth in this Section
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13 in the same ratio as their direct or indirect interests in such Person bear to the total
of such interests.
(c) The Company shall not consummate any such consolidation, merger, sale or transfer (other
than the Merger) unless prior thereto the Company and each Principal Party and each other Person
who may become a Principal Party as a result of such consolidation, merger, sale or transfer shall
have executed and delivered to the Rights Agent a supplemental agreement providing for the terms
set forth in paragraphs (a) and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger, sale or transfer of assets mentioned in
paragraph (a) of this Section 13, the Principal Party at its own expense will:
(i) prepare and file a registration statement under the Act with respect to the Rights and the
securities purchasable upon exercise of the Rights on an appropriate form, will use its best
efforts to cause such registration statement to (A) become effective as soon as practicable after
such filing and (B)to remain effective (with a prospectus at all times meeting the requirements of
the Act) until the Expiration Date;
(ii) use its best efforts to qualify or register the Rights and the securities purchasable
upon exercise of the Rights under the blue sky laws of such jurisdictions as may be necessary or
appropriate; and
(iii) deliver to holders of the Rights historical financial statements for the Principal Party
and each of its Affiliates which comply in all material respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers (other than the Merger). The rights under this Section
13 shall be in addition to the rights to exercise Rights and adjustments under Section 11(a)(ii)
and shall survive any exercise thereunder.
9. EFFECTIVENESS. This Amendment shall be effective as of the date first written above, as if
executed on such date. Except as specifically amended by this Amendment, all other terms and
conditions of the Rights Agreement shall remain in full force and effect and are hereby ratified
and confirmed.
10. MISCELLANEOUS. This Amendment shall be deemed to be a contract made under the laws of the
State of Ohio and for all purposes shall be governed by and construed in accordance with the laws
of such State applicable to contracts made and to be performed entirely within such State. This
Amendment may be executed in any number of counterparts and by facsimile and electronic
transmission and each of such counterparts shall for all purposes be deemed to be an original, and
all of such counterparts shall together constitute one and the same instrument. If any term,
provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated. Except as otherwise expressly provided herein,
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or unless the context otherwise requires, all terms used herein have the meanings assigned to
them in the Rights Agreement. The Rights Agent and the Company hereby waive any notice requirement
under the Rights Agreement in connection with the entering into and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
attested, all as of the day and year first above written.
| Attest: | OHIO CASUALTY CORPORATION | |||||
/s/ Xxxxx Xxxxxx
|
BY: | /s/ Xxxxx X. Xxxxx | ||||
Name: Xxxxx Xxxxxx
|
Name: | Xxxxx X. Xxxxx | ||||
Title: Attorney
|
Title: | Senior Vice President, | ||||
| General Counsel and Secretary | ||||||
| Attest: | COMPUTERSHARE TRUST COMPANY, N.A. | |||||
/s/ Xxxx Xxxxxx
|
BY: | /s/ Xxxxxxx Xxxxx | ||||
Name: Xxxx Xxxxxx
|
Name: | Xxxxxxx Xxxxx | ||||
Title: Security Officer Apollo Security |
Title: | General Counsel/Secretary | ||||
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