AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT
Exhibit 4.3
Execution Version
AMENDMENT NO. 1
TO SHAREHOLDERS
AGREEMENT
This AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT, dated as of March 25, 2010 (this “Amendment”), amends the Shareholders Agreement, dated as of February 6, 2009 (the “Shareholders Agreement”) by and among Essent Group Ltd., a limited liability company organized under the laws of Bermuda (the “Company”) and each of the holders of Company Securities set forth on Exhibit A thereto. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Shareholders Agreement.
RECITALS
WHEREAS, the Company and certain of the Shareholders are parties to an Amended and Restated Class A Common Share Subscription Agreement dated as of the date hereof (the “Restated Subscription Agreement”), pursuant to which the Company will issue Class A Common Shares of the Company to the Investors (as defined therein) as of the date hereof and from time to time thereafter on the terms and conditions set forth therein;
WHEREAS, the execution and delivery of this Amendment is a condition precedent to the obligations of the parties under the Restated Subscription Agreement; and
WHEREAS, the Company and the Shareholders desire to amend the Shareholders Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Amendments. Each of the Company and the Shareholders hereby consents and agrees to the amendment of the Shareholders Agreement as set forth below:
(a) Section 1.1 is amended to insert “or other specified Person (including, for purposes of Section 3, in the case of any Investor, any investment fund or account under common investment management)” in place of “(or other specified Person)”.
(b) Section 1.17 is amended to insert “, Wellington” immediately following “HSBC”.
(c) Section 1.22 is amended to insert “Substitute Investor” in place of “New Investor”.
(d) Section 1 is amended to insert the following as a new Section 1.36:
““Wellington” means Ithan Creek Master Investment Partnership (Cayman) II, L.P. and Ithan Creek Master Investors (Cayman) L.P., together with any Affiliates to which they Transfer Company Securities from time to time in accordance with Section 3.”
(e) Section 3(a) is amended to insert “Substitute Investor” in place of “New Investor” in clause (iii) thereof.
(f) Section 9.1(f) is amended to insert “eight and four tenths percent (8.4%)” in place of “eight and seven-tenths percent (8.7%)”.
(g) Section 9.4 is amended to (i) insert “and each committee thereof” immediately following “the Board” in the first sentence thereof and (ii) insert “or any committee thereof” immediately following “the Board” in the second sentence thereof.
(h) Section 9.9 is amended to (i) insert “9.9(a)” in place of “9.8(a)” and (ii) insert the following as new subsections (c) and (d) thereof:
“(c) If at any General Meeting or in respect of any written resolution of Shareholders, Wellington is entitled under Bermuda law to vote on any matter (such as an amalgamation) as the holder of a separate class or series of Company Securities from the other Investors, Wellington shall vote together with the other Investors as a single class and shall cast the votes corresponding to all Company Securities held by it that are entitled by law to vote as a separate class or series in proportion to the votes cast by all Investors at such meeting (or by such written resolution) for, against or abstaining from any resolution on such matter (subject to any adjustments of voting power pursuant to the Bye-laws and except in connection with any exercise by Wellington of its rights as a Member pursuant to Bye-law 86 of the Bye-laws).
(d) WELLINGTON HEREBY EXPRESSLY AND IRREVOCABLY APPOINTS THE COMPANY SECRETARY AS SUCH SHAREHOLDER’S PROXY AND ATTORNEY-IN-FACT TO VOTE SUCH SHAREHOLDER’S COMPANY SECURITIES IN THE MANNER PROVIDED IN SECTION 9.9(c). THIS PROXY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE.”
(i) Section 10.8 is amended to insert “9.10(b)” in place of “8.10(b)”.
(j) Exhibit A to the Shareholders Agreement is deleted in its entirety, and Exhibit A to this Amendment is inserted in its place.
2. Preemptive Rights. Each of the undersigned Investors hereby (a) consents to the issuance of Class A Common Shares of the Company to the Joinder Parties (as defined below) pursuant to, and on the terms and conditions set forth in, the Restated Subscription Agreement and (b) irrevocably waives and releases the Company from compliance with any and all preemptive rights, rights to notice and other rights to which such Investor is entitled in connection with such issuance pursuant to Section 11 of the Shareholders Agreement.
3. Joinder. Each of the undersigned Ithan Creek Master Investment Partnership (Cayman) II, L.P. and Ithan Creek Master Investors (Cayman) L.P. (collectively, the “Joinder Parties”) (a) agrees to join in, become a party to, be bound by, and comply with the provisions of the Shareholders
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Agreement as an Investor, subject to all of the obligations of an Investor set forth therein, in the same manner as if the undersigned were an original signatory to the Shareholders Agreement, (b) makes all of the representations and warranties of the Shareholders set forth in the Shareholders Agreement as of the date hereof and (c) acknowledges that all Class A Common Shares, Class B-1 Common Shares and other equity securities of the Company now or hereafter held by them shall be subject to all applicable restrictions on transfer, rights of first offer and other provisions of the Shareholders Agreement.
4. Miscellaneous.
(a) Effect of Amendment. Except as expressly set forth herein, this Amendment shall not alter, modify, amend or in any way affect any of the terms, conditions, covenants, obligations or agreements contained in the Shareholders Agreement, all of which are ratified and affirmed in all respects and shall continue to be in full force and effect. Whenever the Shareholders Agreement is referred to in the Shareholders Agreement, the Restated Subscription Agreement or in any other agreements, documents or instruments, such reference shall be to the Shareholders Agreement as amended hereby.
(b) Counterparts; Facsimile Signatures. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same document. This Amendment may be executed by facsimile or .pdf signatures.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
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| COMPANY: | |||
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| ESSENT GROUP LTD. | ||
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| By: | /s/ Mark A. Casale | |
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| Name: | Mark Casale | |
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| Title:. | President | |
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| Address: | Clarendon House | |
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| 2 Church Street | ||
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| Hamilton, HM 11 | ||
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| Bermuda | ||
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT]
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| INVESTORS: | |||
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| ESSENT INTERMEDIATE, L.P. | ||
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| By: | /s/ Joseph Gantz | |
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| Name: | Joseph Gantz | |
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| Title: | Director, PBRA (Cayman) Company | |
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| PINE BROOK ESSENT CO-INVEST, L.P. | ||
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| By: | /s/ Joseph Gantz | |
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| Name: | Joseph Gantz | |
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| Title: | Director, PBRA (Cayman) Company | |
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| THE GOLDMAN SACHS GROUP, INC. | ||
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| By: | /s/ | |
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| Name: | ||
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| Title: | ||
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| ALDERMANBURY INVESTMENTS LIMITED | ||
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| By: | /s/ Ian Lyall | |
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| Name: | Ian Lyall | |
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| Title: | Managing Director | |
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| VALORINA LLC | ||
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| By: | Pine Brook Road Associates (Cayman), L.P. | |
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| Its Manager | ||
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| By: | /s/ Joseph Gantz | |
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| Name: | Joseph Gantz | |
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| Title: | Director, PBRA (Cayman) Company | |
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| It’s General Partner | |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT]
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| RENAISSANCERE VENTURES LTD. | ||
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| By: | /s/ John D. Nichols, Jr. | |
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| Name: | John D. Nichols, Jr. |
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| Title: | EVP |
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| PPF HOLDINGS II LTD. | ||
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| By: | PartnerRc Principal Finance Inc. | |
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| Its Investment Advisor | |
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| By: | /s/ Steven Palmer | |
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| Name: | Steven Palmer |
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| Title: | Managing Director |
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| HSBC EQUITY PARTNERS USA, L.P. | ||
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| By: | HSBC Equity Investors USA, L.P., | |
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| Its General Partner | |
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| By: | HSBC Equity GP, LLC, | |
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| Its General Partner | |
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| By: | HSBC Capital (USA) 1nc., | |
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| Its Managing Partner | |
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| By: | /s/ Andrew Trigg | |
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| Name: | Andrew Trigg |
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| Title: | Director |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT]
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| HSBC PRIVATE EQUITY PARTNERS II USA LP | ||
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| By: | HSBC Private Equity Investors II, L.P., | |
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| as General Partner | |
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| By: | HSBC PEP II GP, LLC, | |
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| as General Partner | |
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| By: | HSBC Capital (USA) Inc., | |
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| Its Sole Member | |
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| By: | /s/ Andrew Trigg | |
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| Name: | Andrew Trigg |
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| Title: | Director |
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| ITHAN CREEK MASTER INVESTMENT PARTNERSHIP (CAYMAN) II, L.P. | ||
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| By: | Wellington Management Company, LLP | |
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| as investment advisor | |
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| By: | /s/ Steven M. Hoffman | |
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| Name: | Steven M. Hoffman |
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| Title: | Vice President and Counsel |
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| ITHAN CREEK MASTER INVESTORS (CAYMAN) L.P. | ||
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| By: | Wellington Management Company, LLP | |
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| as investment advisor | |
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| By: | /s/ Steven M. Hoffman | |
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| Name: | Steven M. Hoffman |
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| Title: | Vice President and Counsel |
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| By: | /s/ Mark Casale | |
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| Name: | Mark Casale |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT]
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| By: | /s/ Paul Wollmann | |
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| Name: | Paul Wollmann |
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| By: | /s/ Peter Simon | |
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| Name: | Peter Simon |
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| By: | /s/ David Weinstock | |
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| Name: | David Weinstock |
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| By: | /s/ Wayne Throgmorten | |
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| Name: | Wayne Throgmorten |
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| By: | /s/ Susan Meserva | |
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| Name: | Susan Meserva |
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| By: | /s/ Guy DiSimplico | |
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| Name: | Guy DiSimplico |
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| By: | /s/ Becky Moore | |
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| Name: | Becky Moore |
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| By: | /s/ Antonia Pollick | |
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| Name: | Antonia Pollick |
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| By: | /s/ Ellen Rottiers | |
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| Name: | Ellen Rottiers |
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| By: | /s/ Malia Young Shelton | |
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| Name: | Malia Young |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT]
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| By: | /s/ Vijay Bhasin | |
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| Name: | Vijay Bhasin |
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| By: | /s/ Jeffrey Cashmer | |
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| Name: | Jeffrey Cashmer |
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| By: | /s/ Wei Ding | |
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| Name: | Wei Ding |
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| By: | /s/ Mary Gibbons | |
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| Name: | Mary Gibbons |
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| By: | /s/ Theodore Gray | |
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| Name: | Theodore Gray |
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| By: | /s/ William Kaiser | |
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| Name: | William Kaiser |
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| By: | /s/ Adolfo Marzol | |
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| Name: | Adolfo Marzol |
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| By: | /s/ Lawrence McAlee | |
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| Name: | Lawrence McAlee |
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| By: | /s/ George Nebel | |
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| Name: | George Nebel |
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| By: | /s/ Anthony Shore | |
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| Name: | Anthony Shore |
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| By: | /s/ Andrew Widman | |
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| Name: | Andrew Widman |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT]
