Exhibit 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT dated as of November 16, 2003 (this "Amendment"), to the
Rights Agreement dated as of March 21, 2002 (as amended, the "Rights
Agreement"), between Travelers Property Casualty Corp. (the "Company") and
EquiServe Trust Company, N.A., as Rights Agent (the "Rights Agent"). Terms used
but not defined herein shall have the meanings assigned to them in the Rights
Agreement.
WHEREAS, the Company proposes to enter into an Agreement and Plan of
Merger, dated as of November 16, 2003 (as amended from time to time, the "Merger
Agreement"), among The St. Xxxx Companies, Inc., a Minnesota corporation
("Parent"), Xxxxx Acquisition Corp., a Connecticut corporation and a
wholly-owned subsidiary of Parent, and the Company.
WHEREAS, the Board of Directors of the Company has deemed it
advisable and in the best interests of the Company and its shareholders that the
Company enter into the Merger Agreement;
WHEREAS, the Board of Directors of the Company made the foregoing
determination regarding the advisability of the transactions contemplated by the
Merger Agreement after consideration of (1) the long-term as well as the
short-term best interest of the Company, (2) the interests of the shareholders,
long-term as well as short-term, including the possibility that those interests
may be best served by the continued independence of the Company, (3) the
interests of the Company's employees, customers, creditors and suppliers and (4)
the interests of the community and society, including those of any community in
which any office or other facility of the Company is located;
WHEREAS, the Board of Directors of the Company has determined, in
connection with the execution of the Merger Agreement, that it is desirable to
amend the Rights Agreement to exempt the Merger Agreement, the execution thereof
and the transactions contemplated thereby, including, without limitation, the
Merger, from the application of the Rights Agreement as set forth in this
Amendment;
WHEREAS, Section 27 of the Rights Agreement provides that, for so
long as the Rights are redeemable, the Company may in its sole and absolute
discretion, and the Rights Agent shall if the Company so directs, supplement or
amend the Rights Agreement without the approval of any holders of the Rights
(subject to exceptions relating to certain rights held by Citigroup);
WHEREAS, Section 23 of the Rights Agreement provides that the Rights
are redeemable by the Board of Directors of the Company prior to the earlier of
(i) such time as any Person first becomes an Acquiring Person or (ii) the Final
Expiration Date;
WHEREAS, no Person has as of the time immediately prior to this
Amendment become an Acquiring Person and the Final Expiration Date has not
occurred; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
has obtained the prior written consent of Citigroup Inc. to supplement or amend
the definition of "Acquiring Person" set forth in Section 1(a) of the Rights
Agreement;
WHEREAS, pursuant to the terms of the Rights Agreement and in
accordance with Section 27 thereof, the Company has directed that the Rights
Agreement should be amended as set forth in this Amendment prior to the
execution of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendments to Rights Agreement. The Rights Agreement is
hereby amended as follows:
(a) The definition of "Acquiring Person" in Section 1(a) of the
Rights Agreement is amended to replace the word "or" at the end of clause (v) of
such definition with ",", insert prior to the period " or" at the end of clause
(vi) of such definition and add the following new clause at the end of such
definition:
"(vii) any of The St. Xxxx Companies, Inc., Xxxxx Acquisition Corp.
or any Affiliate or Associate of either who, notwithstanding anything in
this Agreement to the contrary, shall be deemed not to be an Acquiring
Person, a Beneficial Owner of Common Stock or an Affiliate or Associate of
any Acquiring Person, either individually or collectively, solely as a
result of (A) the execution and delivery of that certain Agreement and
Plan of Merger, dated as of November 16, 2003 (as amended from time to
time, the "Merger Agreement"), among The St. Xxxx Companies, Inc., a
Minnesota corporation ("Parent"), Xxxxx Acquisition Corp., a Connecticut
corporation and a wholly-owned subsidiary of Parent, and the Company or
(B) the consummation of the Merger or any of the other transactions
contemplated by the Merger Agreement".
(b) The definition of "Stock Acquisition Date" in current Section
1(al) of the Rights Agreement is amended to add the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall be deemed not to have occurred solely as a result
of (A) the execution and delivery of the Merger Agreement or (B) the
consummation of the Merger or any of the other transactions contemplated
in the Merger Agreement.".
(c) The following definition is added to Section 1 of the Rights
Agreement and the definitions following such added definition shall be deemed to
be reordered accordingly:
"(z) "Merger" shall mean the merger of Xxxxx Acquisition Corp., a
wholly-owned Subsidiary of Parent, with and into the Company, or the
merger of the Company with and into Xxxxx Acquisition Corp., in accordance
with the terms and conditions of the Merger Agreement."
(d) Section 3(a) of the Rights Agreement is amended to add the
following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall be deemed not to have occurred solely as the
result of (1) the execution and delivery of the Merger Agreement or (2)
the consummation of the Merger or any of the other transactions
contemplated in the Merger Agreement.".
(e) Section 7(a) of the Rights Agreement is modified, amended and
restated as follows:
"Subject to Section 7(e) hereof, at any time after the Distribution
Date the registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein including,
without limitation, the restrictions on exercisability set forth in
Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part upon
surrender of the Right Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly executed, to the
Rights Agent at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one one-thousandth of a
share (or other securities, cash or other assets, as the case may be) as
to which such surrendered Rights are then exercised, at or prior to the
earliest of (i) the time immediately prior to the Effective Time (as such
term is defined in the Merger Agreement), (ii) 5:00 P.M., New York City
time, on January 26, 2010 (such date, as it may be extended by the Board
of Directors of the Company, the "Final Expiration Date"), or (iii) the
time at which the Rights are redeemed as provided in Section 23 and
Section 24 hereof (the earliest of (i), (ii) and (iii) being herein
referred to as the "Expiration Date"). If at any time after the Rights
become exercisable hereunder but prior to the Expiration Date the Company
is prohibited by its certificate of incorporation from issuing Preferred
Stock upon exercise of all of the outstanding Rights, the Company may
issue upon the exercise of the Rights shares of stock or other securities
of the Company of equivalent value to the Preferred Stock ("Equivalent
Stock"), as determined by the Board of Directors."
(f) Section 11(a)(ii) of the Rights Agreement is amended to add the
following at the end thereof immediately prior to the period:
"; provided, however, that, notwithstanding anything in this
Agreement to the contrary, a Section 11(a)(ii) Event shall not be deemed
to have occurred solely as a result of (1) the execution and delivery of
the Merger Agreement or (2) the consummation of the Merger or any of the
other transactions contemplated in the Merger Agreement."
(g) Section 13(a) of the Rights Agreement is amended to add the
following at the end thereof immediately prior to the period:
"; provided, however, that, notwithstanding anything in this
Agreement to the contrary, a Section 13 Event shall be deemed not to have
occurred solely as a result of (1) the execution and delivery of the
Merger Agreement or (2) the consummation of the Merger or any of the other
transactions contemplated in the Merger Agreement."
(h) Section 25 of the Rights Agreement is amended to add the
following new section at the end thereof:
"(c) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be required to give any notice hereunder to any holder
of a Right Certificate solely as a result of (i) the execution and
delivery of the Merger Agreement or (ii) the consummation of the Merger or
any of the other transactions contemplated in the Merger Agreement."
Section 2. Interpretation. The term "Agreement" as used in the
Rights Agreement shall be deemed to refer to the Rights Agreement as amended
hereby.
Section 3. No Other Effect. The Rights Agreement shall not otherwise
be supplemented or amended by virtue of this Amendment, but shall remain in full
force and effect as amended hereby.
Section 4. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Connecticut and for all purposes
shall be governed by and construed and enforced in accordance with the laws of
such State applicable to contracts to be made and performed entirely within such
State.
Section 5. Counterparts. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Company and the Rights Agent have caused
this Amendment to be duly executed as of the day and year first above written.
TRAVELERS PROPERTY CASUALTY CORP.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: General Counsel
EQUISERVE TRUST COMPANY, N.A., as Rights Agent
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Director
