AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
AMENDMENT
NO. 1 (this " Amendment "),
dated April 28, 2008, to the Agreement and Plan of Merger,
dated as of January 10, 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.
Amendment to
Section 7.3(b) . Section 7.3(b) of the
Merger Agreement is hereby deleted and replaced in its
entirety with the following:
"(b) If
(i) (x)
at any time on or after the date of this Agreement, a Company
Takeover Proposal is made to the Board or the Company or is
publicly proposed or publicly disclosed or any Person or group
shall have publicly announced or disclosed an intention to
make a Company Takeover Proposal, (y) thereafter, this
Agreement is terminated by Parent or the Company pursuant to
Section 7.1(b) or Section 7.1(g), or by Parent pursuant
to Section 7.1(d), and (z) on or within 12 months after the
date of such termination, any definitive agreement providing
for a Qualifying Transaction shall have been executed or a
Qualifying Transaction shall have been consummated with any
Person (any such event described in this clause (z), a "
Triggering
Event ");
(ii)
this Agreement is terminated by Parent pursuant to Section
7.1(f); or
(iii) this
Agreement is terminated by the Company or Parent pursuant to
Section 7.1(g) and prior to such termination, the Company
shall have made a Change of Recommendation or a Withdrawal of
Recommendation,
then
in any such event the Company shall pay to Parent a fee of
$8,000,000 in cash (subject to the proviso in the following
clause (1)) (the " Termination Fee
"), such payment to be made (1) in the case of
ter
