VOTING AND SUPPORT AGREEMENT
Exhibit 10.2
Execution Version
VOTING AND SUPPORT AGREEMENT, dated as of February 16, 2021 (this “Agreement”), is made and entered into by and between WATFORD HOLDINGS LTD., a Bermuda exempted company (the “Company”),
and THE UNDERSIGNED SHAREHOLDER (the “Shareholder”) of the Company. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, the Company, Arch Capital Group Ltd., a Bermuda exempted company limited by shares (“Parent”), and Greysbridge Ltd., a Bermuda exempted company limited by shares and a wholly owned subsidiary of Parent (“Merger Sub”), have entered into that certain Agreement and Plan of Merger (as it may be amended from time to time, the “Merger Agreement”), pursuant to which, among other things, Merger Sub will be merged with and into the Company (the “Merger”),
with the Company continuing as the surviving company as a wholly owned subsidiary of Parent;
WHEREAS, as a condition and inducement to the Company’s willingness to enter into the Merger Agreement and to proceed with the
transactions contemplated thereby, including the Merger, the Company and Arch Reinsurance Ltd. (“Arch”) entered into a Voting and Support
Agreement, dated as of October 9, 2020 (the “Arch Voting and Support Agreement”), pursuant to which Arch agreed to vote the common shares of the
Company owned by Arch in favor of the Merger, as set forth therein;
WHEREAS, subsequent to entering into the Merger Agreement and the Arch Voting and Support Agreement, and pursuant to that certain
Purchase Agreement, dated as of February 16, 2021 (the “Purchase Agreement”), by and between the Shareholder and Arch, Arch sold to the
Shareholder, and the Shareholder purchased from Arch, the Shares (the “Sale”);
WHEREAS, in connection with the Sale and pursuant to the terms of the Purchase Agreement, the Shareholder agreed to enter into this
Agreement and vote the Shares in favor of the Merger;
WHEREAS, as of the date hereof, the Shareholder is the record or beneficial owner of the number and type of equity interests of the
Company (“Shares”) set forth on Schedule A hereto (the shares listed on Schedule A (as it may be amended pursuant to Section 5 of this
Agreement), together with any additional Shares or other voting securities of the Company which the Shareholder owns of record or beneficially as of the date hereof or of which the Shareholder acquires after the date hereof record or beneficial
ownership, including by purchase, as a result of a share dividend, share split, recapitalization, combination, reclassification, redesignation or exchange, upon exercise or conversion of any options, warrants or other securities, or otherwise, “Covered Shares”);
WHEREAS, as a condition and inducement to the Company’s willingness to waive Arch’s compliance with the transfer restrictions related
to the Shares under the Arch Voting and Support Agreement in connection with the Sale, the Company and the Shareholder are entering into this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained and for other good and
valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound hereby, the Company and the Shareholder hereby agree as follows:
AGREEMENT
1. Agreement to Vote. From the date hereof until the earlier of the Termination Date (as defined below) or the receipt of the Company Shareholder Approval, the
Shareholder irrevocably and unconditionally agrees that it shall at any meeting of the shareholders of the Company (whether annual, special or otherwise and whether or not an adjourned or postponed meeting), however called, or in connection with
any written consent of shareholders of the Company, however proposed: (a) when a meeting is held, appear at such meeting or otherwise cause its Covered Shares that are owned by the Shareholder as of the date of such meeting to be counted as
present thereat for the purpose of establishing a quorum, and when a written consent is proposed, respond to each request by the Company for written consent, and (b) vote or consent, or cause to be voted at such meeting or cause such consent to
be granted with respect to, all Covered Shares that are owned by the Shareholder as of the date of such meeting or consent (i) in favor of the Merger and the adoption of the Merger Agreement and the Statutory Merger Agreement (each as they may be
amended from time to time), and in favor of each of the other transactions contemplated by the Merger Agreement and the Statutory Merger Agreement of which approval of the Company’s shareholders is solicited, and (ii) against (A) any proposal for
any recapitalization, reorganization, liquidation, dissolution, amalgamation, merger, sale of assets or other business combination between or involving the Company and any other Person that would reasonably be expected to impede, interfere with,
delay or postpone or adversely affect in any material respect the Merger or any other transactions contemplated by the Merger Agreement, the Statutory Merger Agreement or this Agreement, (B) any other action that would be reasonably likely to
result in any conditions to the consummation of the Merger under the Merger Agreement not being fulfilled, (C) any amendment or other change to the Company Memorandum of Association or Company Bye-laws that would reasonably be expected to impede,
interfere with, delay, postpone or adversely affect in any material respect the Merger or any of the other transactions contemplated by the Merger Agreement, the Statutory Merger Agreement or this Agreement, and (D) any other material change in
the Company’s corporate structure or business that would reasonably be expected to impede, interfere with, delay or postpone or adversely affect in any material respect the Merger or any of the other transactions contemplated by the Merger
Agreement or the Statutory Merger Agreement.
2. No Inconsistent Agreements. The Shareholder hereby represents, covenants and agrees that, except as contemplated by this Agreement, the Shareholder (a) has not
entered into, and shall not enter into at any time prior to the Termination Date, any voting agreement, voting trust or other agreement that directly or indirectly addresses voting with respect to any Covered Shares and (b) has not granted, and
shall not grant at any time prior to the Termination Date, a proxy or power of attorney with respect to any Covered Shares, in either case, which is inconsistent with the Shareholder’s obligations pursuant to this Agreement.
3. Termination. This Agreement shall terminate upon the earliest of (a) the Closing, (b) the date that the Merger Agreement is terminated, (c) an Adverse
Recommendation Change and (d) the delivery of written notice of termination of this Agreement by the Company to the Shareholder (such earliest date, the “Termination Date”); provided, that
the provisions set forth in Sections 10 and 12 through 24 shall survive the termination of this Agreement; provided further, that any liability incurred by any party hereto as a result of a breach of a term or condition of this Agreement prior to such termination shall
survive the termination of this Agreement.
4. Representations and Warranties of the Shareholder. The Shareholder hereby represents and warrants to the Company as follows:
(a) Schedule A lists all
shares and other equity interests owned of record or beneficially by the Shareholder in the Company as of the date hereof. Schedule A lists all options, warrants and other securities convertible into or exercisable or exchangeable for shares and
other equity interests in the Company owned of record or beneficially by the Shareholder as of the date hereof. Except as set forth on Schedule A, as of the date hereof, the Shareholder does not own of record or beneficially any voting
securities or other equity securities in the Company or any securities convertible into or exercisable or exchangeable for any such voting securities or other equity securities. the Shareholder does not own of record any shares which are
beneficially owned by a third Person.
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(b) The Shareholder is the
record or beneficial owner of, and has good and valid title to, all Covered Shares as of the date hereof, free and clear of all liens, pledges, restrictions and other encumbrances (a “Lien”), other than (i) as created by this Agreement, (ii) as created by any applicable securities Laws, (iii) under the Company Memorandum of Association or Company Bye-Laws or (iv) as would not impair
the Shareholder’s ability to perform its obligations under this Agreement. The Shareholder has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to
all of such Covered Shares, with no limitations, qualifications or restrictions on such rights. Such Covered Shares are not subject to any voting trust agreement or other contract, in each case that is inconsistent with this Agreement, to which
the Shareholder is a party restricting or otherwise relating to the voting or sale (constructive or otherwise), transfer, pledge, hypothecation, grant, gift, encumbrance, assignment or other disposal (collectively, “Transfer”) of such Covered Shares. The Shareholder has not appointed or granted any proxy or power of attorney that is still in effect with respect to such Covered
Shares, except as contemplated by this Agreement.
(c) The Shareholder has
full legal power and capacity to execute and deliver this Agreement and to perform the Shareholders’ obligations hereunder. This Agreement has been duly and validly executed and delivered by the Shareholder and, assuming due authorization,
execution and delivery by the Company, constitutes a legal, valid and binding obligation of the Shareholder, enforceable against the Shareholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(d) Except for the
applicable requirements of the Exchange Act, (i) no filing with, and no permit, authorization, consent or approval of, any governmental entity is necessary on the part of the Shareholder for the execution, delivery and performance of this
Agreement by the Shareholder or the consummation by the Shareholder of the transactions contemplated hereby and (ii) none of the execution, delivery or performance of this Agreement by the Shareholder or the consummation by the Shareholder of the
transactions contemplated hereby or compliance by the Shareholder with any of the provisions hereof shall (A) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of the Shareholder pursuant to, any contract to which the Shareholder is a party
or by which the Shareholder or any property or asset of the Shareholder is bound or affected or (B) violate any order, writ, injunction, decree, statute, law, rule or regulation applicable to the Shareholder or any of the Shareholder’s properties
or assets except, in the case of clause (A) or (B), for breaches, violations or defaults that would not, individually or in the aggregate, materially impair the ability of the Shareholder to perform its obligations hereunder on a timely basis.
(e) There is no action,
suit, claim, arbitration, investigation, complaint, inquiry or other proceeding pending against the Shareholder or, to the actual knowledge of the Shareholder, any other Person or, to the actual knowledge of the Shareholder, threatened against
the Shareholder that restricts or prohibits (or, if successful, would restrict or prohibit) the exercise by the Company of its rights under this Agreement or the performance by the Shareholder of its obligations under this Agreement on a timely
basis.
(f) The Shareholder
understands and acknowledges that the Company is waiving Arch’s compliance with the transfer restrictions related to the Shares under the Arch Voting and Support Agreement in connection with the Sale in reliance upon the Shareholder’s execution
and delivery of this Agreement and the representations and warranties and covenants of the Shareholder contained herein and would not consent to the Sale if the Shareholder did not enter into this Agreement.
5. Certain Covenants of the Shareholder. The Shareholder hereby covenants and agrees as follows:
(a) Except as contemplated
hereby and until the earliest of the Termination Date or the receipt of the Company Shareholder Approval, the Shareholder shall not (i) tender any Covered Shares into any tender or exchange offer, (ii) Transfer or enter into any contract with
respect to the Transfer of any of the Covered Shares or beneficial ownership or voting power thereof or therein (including by operation of law), (iii) grant any proxies or powers of attorney, deposit any Covered Shares into a voting trust or
enter into a voting agreement with respect to any Covered Shares that is inconsistent with this Agreement or (iv) take any action that would make any representation or warranty of the Shareholder contained herein untrue or incorrect in any
material respect or have the effect of preventing or disabling the Shareholder from performing its obligations under this Agreement in any material respect. Any Transfer in violation of this Section 5(a) shall be void.
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(b) In the event that the
Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional Shares or other voting interests with respect to the Company, such Shares or voting interests shall, without further action of
the parties, be deemed Covered Shares and subject to the provisions of this Agreement, and the number of Shares held by the Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such Shares or voting interests shall
automatically become subject to the terms of this Agreement. The Shareholder shall promptly notify the Company of any such event.
6. [Reserved].
7. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company any direct or indirect ownership or incidence of ownership of or
with respect to any Covered Shares. All ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Shareholder, and, except as otherwise provided herein, the Company shall have no authority to
direct the Shareholder in the voting or disposition of any Covered Shares.
8. Disclosure. Each party hereto hereby authorizes the Company to publish and disclose in any announcement or disclosure the Shareholder’s identity and ownership of
the Covered Shares and the nature of the Shareholder’s obligations under this Agreement, and to disclose a copy of this Agreement, in each case, to the extent required by applicable Law.
9. Merger Agreement. The Shareholder hereby acknowledges receipt of, and has had an opportunity to read and understand, the Merger Agreement (including any exhibits
and schedules thereto).
10. Expenses. Except as otherwise expressly provided herein, the Shareholder, on the one hand, and the Company, on the other hand, shall pay all of their own expenses
(including attorneys’ and accountants’ fees and expenses) in connection with the negotiation of this Agreement, the performance of their respective obligations hereunder and the consummation of the transactions contemplated by this Agreement.
11. Further Assurances. From time to time, at the request of the other parties hereto and without further consideration, each party hereto shall take such further
action as may reasonably be deemed by any of the other parties hereto to be necessary or desirable to consummate and make effective the transactions contemplated by this Agreement.
12. Amendment or Supplement. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an
instrument in writing specifically designated as an amendment hereto, signed on behalf of each party hereto.
13. Waiver. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies
of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument
executed and delivered by such party or by a duly authorized officer on behalf of such party.
14. Interpretation. When a reference is made in this Agreement to an Article, a Section or an Exhibit, such reference shall be to an Article, a Section or an Exhibit of
or to this Agreement unless otherwise indicated. The table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement. Any capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning assigned to such term in this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall
be deemed to be followed by the words “without limitation.” The words “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” The definitions
contained in this Agreement are applicable to the singular as well as the plural forms of such terms. All pronouns and any variations thereof refer to the masculine, feminine or neuter as the context may require. Any agreement, instrument or
Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated. References to a Person are also to its permitted successors and assigns.
Unless otherwise specifically indicated, all references to “$” will be deemed references to the lawful money of the United States of America. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring by virtue of the
authorship of any provisions of this Agreement.
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15. Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (a) on the date of
delivery if delivered personally; (b) on the date sent if sent by facsimile or electronic mail (provided, however, that notice given by facsimile or email shall not be
effective unless either (i) a duplicate copy of such facsimile or email notice is promptly given by one of the other methods described in this Section 15 or (ii) the receiving party delivers a written confirmation of receipt of such notice either
by facsimile or email or any other method described in this Section 15; (c) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next- day courier; or (d) on the earlier of confirmed
receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to
such other instructions as may be designated in writing by the party to receive such notice:
(i) If to the Shareholder:
c/o Warburg Pincus LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxx.xxx
with copies to (which shall not constitute notice):
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
E-mail: XXXxxxxx@xxxx.xxx
(ii) If to the Company:
Xxxxxxxx Xxxxx, 0xx Xxxxx
100 Xxxxx Bay Road
Pembroke HM 08, Bermuda
| Email: |
xxx@xxxxxxxxxxxxxxx.xxx
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| Attention: |
Xxxxxxxx Xxxxxxxxxx
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with copies to (which shall not constitute notice):
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
| Email: |
xxxx.xxxx@xxxxxxxxxxxxxx.xxx
xxxx.xxxxx@xxxxxxxxxxxxxx.xxx |
| Attention: |
Xxxx Boss
Xxxx X. Xxxxx |
16. Entire Agreement. This Agreement constitutes the entire agreement, and supersede all prior written agreements, arrangements, communications and understandings and
all prior and contemporaneous oral agreements, arrangements, communications and understandings between the parties with respect to the subject matter hereof.
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17. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their
respective successors and permitted assigns any legal or equitable right, benefit, claim or remedy of any nature under or by reason of this Agreement.
18. Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of or related to this Agreement may only be
brought against, the Persons that are expressly named as parties to this Agreement. Except to the extent named as a party to this Agreement, and then only to the extent of the specific obligations of such parties set forth in this Agreement, no
past, present or future shareholder, member, partner, manager, director, officer, employee, Affiliate, agent or representative of any party to this Agreement will have any Liability (whether in contract, tort, equity or otherwise) for any of the
representations, warranties, covenants, agreements or other obligations or Liabilities of any of the parties to this Agreement or for any claim based upon, arising out of or related to this Agreement.
19. Governing Law. THIS AGREEMENT, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF, SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER ANY APPLICABLE PRINCIPLES OF CHOICE OR CONFLICTS OF LAWS OF THE STATE OF DELAWARE, EXCEPT TO THE EXTENT THE PROVISIONS
OF THE LAWS OF BERMUDA ARE MANDATORILY APPLICABLE TO THE MERGER.
20. Specific Enforcement; Jurisdiction; Venue. The parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement, including failing to take such actions as are required of them
hereunder to consummate the transactions contemplated hereby. It is agreed that the parties are entitled to enforce specifically the performance of terms and provisions of this Agreement in any court referred to below, without proof of actual
damages (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are entitled at law or in equity. The parties further agree
not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy for any such breach. In addition, each
of the parties hereto irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by any party or its Affiliates against any other party or its Affiliates shall be brought and determined in the
Court of Chancery of the State of Delaware; provided, that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then any such legal action or proceeding may be brought in any federal court located in the State of Delaware or any other
Delaware state court, in each case, except to the extent that any such proceeding mandatorily must be brought in Bermuda. Each of the parties hereby irrevocably submits to the jurisdiction of the aforesaid courts for itself and with respect to
its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or
proceeding relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of
the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally
waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not
personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether
through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
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21. Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise, by either party without the prior written consent of the other party, and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
22. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law, or public policy, (a) such
term or other provision shall be fully separable, (b) this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision had never comprised a part hereof, and (c) all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as either the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party or such party waives its rights
under this Section 22 with respect thereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
23. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 23.
24. Counterparts. This Agreement may be executed in one or more counterparts, including by facsimile or by email with .pdf attachments, 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.
25. Affiliates. The Shareholder hereby covenants and agrees that it shall cause each of its Affiliates to comply with this Agreement as if each such Affiliate was
itself a party to this Agreement. For purposes of this Agreement, “Affiliate” means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under common control with, such first Person, except, in the case of the Shareholder, any portfolio company of any investment fund affiliated with the Shareholder. For purposes of this
definition, “control” (including, the terms “controlling,” “controlled by,” and “under common control with”), as applied to any person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by Contract, or otherwise.
[The remainder of this page is intentionally left blank;
signature page follows.]
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IN WITNESS WHEREOF, the Company and the Shareholder have caused to be executed or executed this Agreement as of the date first written
above.
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By:
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/s/ Xxxxxxxx X. Xxxxxxxxxx
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Name:
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Xxxxxxxx X. Xxxxxxxxxx
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Title:
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COO
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WP WINDSTAR INVESTMENTS LTD
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By:
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/s/ Xxxxx Xxxxxx
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Name:
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Xxxxx Xxxxxx
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Title:
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Director
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SCHEDULE A
The Shareholder owns 230,400 common shares, par value $0.01 per share.
Sch. A-1
