AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
THIS
AMENDMENT to the Merger Agreement (as defined below) is made this
30th day
of December, 2010 among Fairfax Financial Holdings Limited, a Canadian corporation
(“Parent”), Fairfax Investments III USA Corp., a Delaware corporation and a wholly owned
subsidiary of Parent (“Merger Sub”), and First Mercury Financial Corporation, a Delaware
corporation (the “Company”).
WHEREAS, Parent, Merger Sub and the Company are parties to that certain Agreement and Plan of
Merger, dated as of October 28, 2010 (the “Merger Agreement”) (capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the Merger Agreement); and
WHEREAS, in accordance with Section 8.04 of the Merger Agreement, Parent, Merger Sub and the
Company desire to make certain amendments to the Merger Agreement, as set forth herein.
NOW, THEREFORE, in order to carry out their intent as expressed above and in consideration of
the premises and the mutual representations, warranties and agreements contained herein, and
intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree to amend the
Merger Agreement as follows:
1. Section 8.03(b)(i) of the Merger Agreement shall be deleted and replaced in its entirety
with the following:
“(i) if Parent shall terminate this Agreement pursuant to Section
8.01(c)(ii), then the Company shall pay to Parent promptly (but in any event no later
than two business days after such termination shall have occurred) a fee of $8,500,000 in
immediately available funds (the “Termination Fee”); or”
2. References to the Merger Agreement. All references to the Merger Agreement in any
agreement or document entered into or delivered in connection with the Merger Agreement shall be
deemed to refer to the Merger Agreement as amended hereby.
3. Ratification of the Merger Agreement. Notwithstanding anything to the contrary
herein contained or any claims of the parties to the contrary, the parties hereto agree that the
Merger Agreement is in full force and effect and shall remain in full force and effect, as amended
by this Amendment, and each of the parties thereto, hereby ratifies and confirms its obligations
thereunder.
4. References; No Waiver. All references in the Merger Agreement to “this Agreement,”
“hereof,” “hereto” and “hereunder” shall be deemed to be references to the Merger Agreement as
amended hereby.
5. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware applicable to contracts executed in and to be performed in
that State. Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the jurisdiction of the Court of Chancery of the
State of Delaware and any appellate court thereof, in any action or proceeding arising out of or
relating to this Amendment or the agreements delivered in connection herewith or the transactions
contemplated hereby or for recognition or enforcement of any judgment relating thereto, and each of
the parties hereby irrevocably and unconditionally (i) agrees not to commence any such action
except in such court, (ii) agrees that any claim in respect of any such action or proceeding may be
heard and determined in such court, (iii) waives, to the fullest extent it may legally and
effectively do so any objection which it may now or hereafter have to venue of any such action or
proceeding in such court, and (iv) waives, to the fullest extent permitted by law, the defense of
any inconvenient forum to the maintenance of such action or proceeding in such court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by Law. Each of the parties to this Amendment irrevocably consents to service of process in any
such action or proceeding in the manner provided for notices in Section 9.01 of
the Merger Agreement; provided, however, that nothing in this Amendment shall
affect the right of any party to this Amendment to serve process in any other manner permitted by
Law.
6. Counterparts. This Amendment may be executed and delivered (including by facsimile
and other means of electronic transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same agreement.
[Signature page follows]
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment to be
executed as of the date first written above.
| FAIRFAX FINANCIAL HOLDINGS LIMITED |
||||
| By | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President, Corporate Affairs | |||
| FAIRFAX INVESTMENTS III USA CORP. |
||||
| By | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| FIRST MERCURY FINANCIAL CORPORATION |
||||
| By | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chairman, President and Chief | |||
[Signature Page to Amendment]
