AMENDMENT NO. 2 TO THE AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT
NO. 2
TO
THE
AMENDMENT
NO. 2 (this “Amendment”), dated August 29,
2008, to the Agreement and Plan of Merger, dated as of January 10, 2008, as
amended on April 28, 2008 (the “Merger Agreement”), by and
among AmCOMP Incorporated, a Delaware corporation (the “Company”), Employers Holdings,
Inc., a Nevada corporation (“Parent”), and Sapphire
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent
(“Merger
Sub”). Parent, Merger Sub and the Company are sometimes
referred to herein as a “Party” and collectively as the
“Parties.”
Section
1. Defined
Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger
Agreement.
Section
2. Deletion of Reference to
Company 401(k) Plan. The reference to the term “Company 401(k)
Plan” contained in the Index is deleted in its entirety.
Section
3. Amendment to Section
1.2(a). Section 1.2(a) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
“(a) Subject
to the satisfaction or, if permissible, waiver by the Party entitled to the
benefit thereof, of the conditions set forth in Article VI hereof (other than
those conditions that by their nature are to be satisfied at the Closing, but
subject to the fulfillment or waiver of those conditions at the Closing), the
closing of the Merger (the “Closing”) shall take place at
the offices of Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP, Park Avenue
Tower, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. local time
on October 31, 2008, unless another time, date or place is agreed upon in
writing by the Parties hereto. The date on which the Closing occurs
is herein referred to as the “Closing Date.””
Section
4. Amendment to Section
1.3. Section 1.3 of the Merger Agreement is hereby deleted and
replaced in its entirety with the following:
“1.3 Conversion of
Securities.
At the Effective Time, by virtue of the
Merger and without any action on the part of the Company, Merger Sub or the
holders of any securities of Merger Sub or the Company:
(a) Each
Share that is owned by Parent, Merger Sub or any direct or indirect wholly owned
subsidiary of Parent, or that is owned by the Company as treasury stock, in each
case immediately before the Effective Time, shall automatically be canceled and
retired and shall cease to exist, and no consideration or payment shall be
delivered in exchange therefor.
(b) Each
Share issued and outstanding immediately prior to the Effective Time (other than
Shares to be canceled in accordance with Section 1.3(a) hereof and Dissenting
Shares (as defined in Section 1.6)) shall automatically be converted into the
right to receive $12.15 in cash (the “Merger Consideration”),
payable, without interest, to the holder of such Share upon surrender, in the
manner provided in Section 1.4 hereof, of the certificate that formerly
evidenced such Share. All such Shares shall, by virtue of the Merger
and without any action on the part of the holders thereof, be automatically
cancelled and shall cease to exist, and each holder of a certificate
representing any such Shares shall cease to have any rights with respect
thereto, except the right to receive the Merger Consideration, without interest
thereon, upon the surrender of such certificate in accordance with Section 1.4
hereof.
(c) Each
issued and outstanding share of common stock, par value $0.01 per share, of
Merger Sub shall be converted into one validly issued, fully paid and
non-assessable share of common stock, par value $0.01 per share, of the
Surviving Corporation, and all such shares shall constitute the only outstanding
shares of capital stock of the Surviving Corporation following the Effective
Time. From and after the Effective Time, any certificate representing
the common stock of Merger Sub shall be deemed for all purposes to represent
that number of shares of common stock of the Surviving Corporation into which
such shares of common stock of Merger Sub represented thereby were converted in
accordance with the immediately preceding sentence.”
Section
5. Amendment to Section
4.1(b)(M). Section 4.1(b)(M) of the Merger Agreement is hereby
deleted and replaced with the following:
“other than in connection with (i) the
adjustment, negotiation or settlement of workers’ compensation insurance claims
in the ordinary course of business consistent with past practice and (ii) the
settlement with FOIR concerning the matters contained in (a) the Consent Order,
dated the date of Amendment No. 2 to this Agreement, between the Office of
Insurance Regulation of the State of Florida (the “FOIR”), AmCOMP Assurance
Corporation and AmCOMP Preferred Insurance Company in substantially the form
attached as Exhibit A to Amendment No. 2 to this Agreement (the “FOIR Excessive Profits Consent
Order”) and (b) the Consent Order, dated the date of Amendment No. 2 to
this Agreement, between the FOIR, Parent and Merger Sub in substantially the
form attached as Exhibit B to Amendment No. 2 to this Agreement (the “FOIR Form A Consent Order” and
together with the FOIR Excessive Profits Consent Order, the “FOIR Consent Orders”), waive,
release, assign, settle or compromise any claim, action or proceeding (including
any suit, action, claim, proceeding or investigation relating to this Agreement
or the transactions contemplated hereby, including the Merger), other than
waivers, releases, assignments, settlements or compromises that involve only the
payment of monetary damages (and not the imposition of equitable relief on, or
the admission of wrongdoing by, the Company or any of the Company Subsidiaries)
not in excess of $100,000 individually or in the aggregate, or otherwise pay,
discharge or satisfy any claims, liabilities or obligations other than in the
ordinary course of business consistent with past practice;”
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Section
6. Amendment to Section
4.1(b)(X). Section 4.1(b)(X) of the Merger Agreement is hereby
deleted and replaced with the following:
“(X) other
than as necessary in connection with the matters set forth in Section 4.8, alter
or amend in any material respect any existing underwriting, claims handling,
loss control, investment, actuarial, financial reporting or accounting
practices, guidelines or policies (including compliance policies) or any
material assumption underlying an actuarial practice or policy, except as may be
required by GAAP, applicable SAP, any Governmental Authority or applicable Law;
or”
Section
7. New Section
4.8. The Merger Agreement is hereby amended to add a new
Section 4.8 as follows:
The
Company shall comply, and shall cause the Company Subsidiaries to comply, in all
respects with all terms, provisions and requirements of the FOIR Excessive
Profits Consent Order; provided, however, that Parent
and the Company agree that the Company Subsidiaries shall satisfy their
obligations under the FOIR Excessive Profits Consent Order to return excessive
profits to policyholders exclusively through providing policy refunds (and not
through policy credits or any other means), but neither the Company nor any of
the Company Subsidiaries shall make any policy refunds pursuant to the FOIR
Excessive Profits Consent Order unless and until Parent has approved the
methodology for such refunds (such approval not to be unreasonably withheld,
delayed or conditioned); provided further, that the
Company and each of the Company Subsidiaries shall make all such refunds
pursuant to the terms of the FOIR Excessive Profits Consent Order as soon as
practicable following approval of the methodology for such refunds by Parent and
in any event no later than the earlier of (a) 60 days following the execution of
the FOIR Excessive Profits Consent Order and (b) October 31, 2008.”
Section
8. Amendment to Section
5.2. Section 5.2 of the Merger Agreement is hereby amended to
include the following Section 5.2(h):
“(h) Notwithstanding
anything to the contrary in this Agreement, Parent acknowledges and agrees that
neither of the FOIR Consent Orders nor any provision, requirement, agreement or
covenant contained therein shall constitute a Burdensome Condition or Company
Material Adverse Effect for any purpose under this Agreement or otherwise (and
the Company acknowledges that nothing in this Section 5.2(h) shall constitute a
waiver or release by Parent under any provision of this Agreement with respect
to any violation by the Company or any Company Subsidiary on or after the date
of Amendment No. 2 to this Agreement of any of the terms or provisions of the
FOIR Excessive Profits Consent Order or any provision or requirement of Section
627.215 of the Florida Statutes). In addition, the Company, Parent
and Merger Sub each affirms that, to its knowledge, (i) no Company Material
Adverse Effect or Parent Material Adverse Effect has occurred as of the date of
Amendment No. 2 to this Agreement and (ii) as of the date of Amendment No. 2 to
this Agreement, no breach of any of the respective representations and
warranties of any Party has occurred that, individually or in the aggregate,
would have a Company Material Adverse Effect or a Parent Material Adverse
Effect, as the case may be.”
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Section
9. Deletion of Section
5.4(f). Section 5.4(f) of the Merger Agreement is hereby
deleted in its entirety.
Section
10. No Other Amendments to the
Merger Agreement.
10.1 On
and after the date hereof, each reference in the Merger Agreement to “this
Agreement,” “herein,” “hereof,” “hereunder” or words of similar import shall
mean and be a reference to the Merger Agreement as amended
hereby. Notwithstanding the foregoing, references to the date of the
Merger Agreement, as amended hereby, shall in all instances continue to refer to
January 10, 2008, references to “the date hereof” and “the date of this
Agreement” shall continue to refer to January 10, 2008, and references to the
date of the Amendment and “as of the date of the Amendment” shall refer to
August 29, 2008.
10.2 Except
as otherwise expressly provided herein, all of the terms and conditions of the
Merger Agreement remain unchanged and continue in full force and
effect. This Amendment is limited precisely as written and shall not
be deemed to be an amendment to any other term or condition of the Merger
Agreement or any of the documents referred to therein.
Section
11. Effect of
Amendment. This Amendment shall form a part of the Merger
Agreement for all purposes, and each party hereto and thereto shall be bound
hereby. From and after the execution of this Amendment by the
Parties, any reference to the Merger Agreement shall be deemed a reference to
the Merger Agreement as amended hereby. This Amendment shall be
deemed to be in full force and effect from and after the execution of this
Amendment by the Parties.
Section
12. Governing
Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
Section
13. Counterparts. This
Amendment may be executed in counterparts (including by facsimile and .pdf
file), all of which shall be considered one and the same agreement, and shall
become effective when one or more counterparts have been signed by each of the
Parties and delivered to the other Parties, it being understood that all Parties
need not sign the same counterpart.
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Section
14. Headings. The
descriptive headings of the several Sections of this Amendment were formulated,
used and inserted in this Amendment for convenience only and shall not be deemed
to affect the meaning or construction of any of the provisions
hereof.
[Execution page
follows.]
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AMCOMP
INCORPORATED
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By:
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/s/
Kumar Xxxxxxxxxx
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Name:
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Kumar
Xxxxxxxxxx
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Title:
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Senior
Vice President, Chief Financial Officer
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EMPLOYERS
HOLDINGS, INC.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Executive
Vice President, Chief Legal Officer and General Counsel
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SAPPHIRE
ACQUISITION CORP.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Secretary
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[Signature
Page to Amendment]