UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
FORM
8-K
_____________________
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): August 29, 2008
EMPLOYERS
HOLDINGS, INC.
(Exact
Name of Registrant as Specified in its Charter)
_____________________
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NEVADA
(State
or Other Jurisdiction of
Incorporation)
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001-33245
(Commission
File Number)
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04-3850065
(I.R.S.
Employer Identification No.)
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10375
Professional Circle
Reno,
Nevada
(Address
of Principal Executive Offices)
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89521
(Zip
Code)
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Registrant's
telephone number including area code: (888)
682-6671
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No
change since last report
(Former
Name or Address, if Changed Since Last
Report)
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_____________________
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Section
1 – Registrant's Business and Operations
Item
1.01. Entry into a Material Definitive Agreement.
On August 29, 2008, Employers Holdings, Inc. (the "Company") entered into an
amendment (the "Amendment") to the Agreement and Plan of Merger, dated
January 10, 2008 and
amended on April 28, 2008 (as amended, the "Merger Agreement"), by and among
the Company, AmCOMP Incorporated ("AmCOMP") and Sapphire
Acquisition Corp.
("Sapphire").
The Amendment modifies the Merger Agreement as
follows:
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·
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the
price per share to be paid by the Company to AmCOMP stockholders at the
closing of the merger (the "Merger") will be reduced to $12.15 per share
in cash;
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·
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subject
to the satisfaction or, if permissible, waiver by the party to the Merger
Agreement entitled to the benefit thereof, of the conditions set forth in
the Merger Agreement, the closing of the Merger will occur on October 31,
2008;
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·
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permits
AmCOMP to comply with the terms of a Consent Order, dated August 29,
2008, among the Office of Insurance Regulation of the State of Florida
("FOIR"), AmCOMP Assurance Corporation and AmCOMP Preferred Insurance
Company; and
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·
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eliminates
the requirement that AmCOMP terminate its 401(k) plan effective with the
closing of the Merger.
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In
addition, on August 29, 2008, the Company and Sapphire received an executed
Consent Order on Form A from FOIR approving the acquisition of AmCOMP by the
Company.
The
foregoing description of the Amendment does not purport to be a complete
description and is qualified in its entirety by reference to the full text of
the Amendment, which is filed as Exhibit 2.1 hereto and is incorporated herein
by reference.
Section
8 – Other Information
On August 29, 2008, the Company issued a press release
announcing the Amendment. Attached as Exhibit 99.1 hereto and incorporated herein by reference is the press
release issued by the Company.
Section
9 – Financial Statements and Exhibits
Item
9.01. Financial Statements and Exhibits.
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2.1
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Amendment
No. 2 to the Agreement and Plan of Merger, dated August 29, 2008, by and
among AmCOMP Incorporated, Employers Holdings, Inc. and Sapphire
Acquisition Corp.
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| 99.1 | Employers Holdings, Inc. press release, dated August 29, 2008. |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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EMPLOYERS
HOLDINGS, INC.
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By:
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/s/ Lenard T. Ormsby |
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Name:
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Lenard
T. Ormsby
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Title:
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Executive
Vice President, Chief
Legal
Officer and General Counsel
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Dated: August
29, 2008
Exhibit
Index
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Exhibit
No.
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Exhibit
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2.1
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Amendment
No. 2 to the Agreement and Plan of Merger, dated August 29, 2008, by and
among AmCOMP Incorporated, Employers Holdings, Inc. and Sapphire
Acquisition Corp.
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99.1
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Employers
Holdings, Inc. press release, dated August 29,
2008.
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Exhibit 2.1
AMENDMENT
NO. 2
TO
THE
AGREEMENT
AND PLAN OF MERGER
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."
WHEREAS,
Section 7.4 of the Merger Agreement provides for the amendment of the Merger
Agreement in accordance with the terms set forth therein;
WHEREAS,
the Parties desire to amend the Merger Agreement as set forth below;
and
WHEREAS,
the Board of Directors of the Company has (i) determined that it is in the best
interests of the Company and its stockholders, and declared it advisable, to
enter into this Amendment, (ii) approved the execution, delivery and performance
of this Amendment and the consummation of the transactions contemplated hereby,
and (iii) resolved to recommend the approval and adoption of the Merger
Agreement, as amended by this Amendment, by the stockholders of the
Company.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto do hereby agree as follows:
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 Olshan Grundman Frome Rosenzweig & Wolosky LLP, Park Avenue
Tower, 65 East 55th Street, New York, New York 10022, 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;"
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:
"4.8 FOIR Excessive Profits
Consent Order.
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."
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.
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.]
IN
WITNESS WHEREOF, the Parties have signed or caused this Amendment to be signed
by their respective officers thereunto duly authorized all as of the date first
written above.
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AMCOMP
INCORPORATED
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By:
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/s/ Kumar Gursahaney | ||
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Name:
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Kumar
Gursahaney
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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/ Lenard T. Ormsby | ||
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Name:
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Lenard
T. Ormsby
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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/ Lenard T. Ormsby | ||
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Name:
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Lenard
T. Ormsby
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Title:
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Secretary
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Exhibit 99.1
news release
| August 29, 2008 |
For
Immediate
Release
|
EMPLOYERS
Holdings Announces Amendment to Merger Agreement with AmCOMP, Approval of Merger
by Florida Office of Insurance Regulation
Reno, NV – August 29, 2008 –
Employers
Holdings, Inc. (“EMPLOYERS”) (NYSE: EIG) announced today
that it has entered into an amendment to its merger agreement with AmCOMP
Incorporated (“AmCOMP”) (Nasdaq: AMCP) providing for
the pending acquisition of AmCOMP by EMPLOYERS.
Under the amended merger agreement, which has been approved by the boards of
directors of both companies, holders of AmCOMP's approximately 15 million common
shares outstanding will receive consideration of $12.15 per share in cash. In
connection with the amendment to the merger agreement, AmCOMP settled
outstanding excessive profits matters with the Florida Office of Insurance
Regulation (the "Florida OIR") through entry into a consent order providing that
AmCOMP's insurance subsidiaries realized Florida excessive profits in the amount
of approximately $2.8 million for accident years 2003, 2004 and 2005 and Florida
excessive profits in the amount of approximately $5.6 million for accident years
2004, 2005 and 2006. In accordance with the terms of the consent order and
applicable Florida law, AmCOMP intends to provide refunds to affected
policyholders.
EMPLOYERS
also announced that the Florida OIR has approved EMPLOYERS' acquisition of
AmCOMP pursuant to the terms of the amended merger agreement. The transaction,
which is subject to approval of AmCOMP's stockholders and other customary
closing conditions, is now expected to be completed on October 31, 2008.
EMPLOYERS expects to finance the purchase price through a combination of cash
and debt.
Douglas
D. Dirks, President and Chief Executive Officer of Employers Holdings, Inc.,
said, "We are very pleased that the issues associated with the AmCOMP excessive
profit filings have been resolved and that the Florida OIR has approved our Form
A Application. Now, all parties can proceed with the actions necessary to
complete this transaction."
Employers
Holdings, Inc. is a holding company with subsidiaries that are specialty
providers of workers' compensation insurance and services focused on select,
small businesses engaged in low-to-medium hazard industries. The company,
through its subsidiaries, operates in 12 states from 11 office locations. The
company's insurance subsidiaries, Employers Insurance Company of Nevada and
Employers Compensation Insurance Company are rated A- (Excellent) by the A.M.
Best Company. Additional information can be found at:
www.employers.com.
Cautionary Statement
Regarding Forward-Looking Statements:
All forward-looking statements made in this press release, related
to the anticipated acquisition of AmCOMP, Inc. or otherwise, reflect EMPLOYERS
current views with respect to future events, business transactions and business
performance and are made pursuant to the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Such statements involve
risks and uncertainties, which may cause actual results to differ materially
from those set forth in these statements. The following factors,
among others, could cause or contribute to such material differences: failure to
satisfy any of the conditions of closing, including the failure to
obtain
AmCOMP stockholder approval or any required regulatory approvals; the risks that
the businesses of EMPLOYERS and AmCOMP will not be integrated successfully; the
risk that EMPLOYERS and AmCOMP will not realize estimated cost savings and
synergies; costs relating to the proposed transaction; disruption from the
transaction making it more difficult to maintain relationships with customers,
employees, agents or producers. More generally, the businesses of
EMPLOYERS and AmCOMP could be affected by competition, pricing and policy term
trends, the levels of new and renewal business achieved, market acceptance,
changes in demand, the frequency and severity of catastrophic events, actual
loss experience, uncertainties in the loss reserving and claims settlement
process, new theories of liability, judicial, legislative, regulatory and other
governmental developments, litigation tactics and developments, investigation
developments, the amount and timing of reinsurance recoverables, credit
developments among reinsurers, changes in the cost or availability of
reinsurance, market developments, rating agency action, possible terrorism or
the outbreak and effects of war and economic, political, regulatory, insurance
and reinsurance business conditions, relations with and performance of employee
agents, as well as management's response to these factors, and other factors
identified in EMPLOYERS filings with the Securities and Exchange
Commission. Readers are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of the dates on which they
are made. EMPLOYERS undertakes no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
EMPLOYERS,
AmCOMP and their respective directors and executive officers and other persons
may be deemed to be participants in the solicitation of proxies in respect of
the proposed transaction. Information regarding EMPLOYERS
directors and executive officers is available in EMPLOYERS' proxy statement
for its 2008 annual meeting of stockholders and EMPLOYERS' 2007 Annual Report on
Form 10-K, which were filed with the SEC on April 14, 2008 and March 14, 2008,
respectively. Information regarding AmCOMP's directors and executive
officers is available in AmCOMP's 2007 Annual Report on Form 10-K, which was
filed with the SEC on March 6, 2008 and April 29, 2008. Other
information regarding the participants in the proxy solicitation and a
description of their direct and indirect interests, by security holdings or
otherwise, will be contained in the proxy statement and other relevant materials
to be filed with the Securities and Exchange Commission when they become
available.
CONTACT:
Media:
Trish White, Director, Corporate Communications, (775) 327-2636
Analysts:
Vicki Erickson, Vice President, Investor Relations, (775) 327-2794
Copyright
© 2008 EMPLOYERS. All rights reserved. EMPLOYERS® and
America’s small business
insurance specialist.® are
registered trademarks of Employers Insurance Company of Nevada. Workers’
compensation insurance and services are offered through Employers Compensation
Insurance Company and Employers Insurance Company of Nevada. Insurance coverage
not available in all jurisdictions.