EIGHTH WAIVER AND AGREEMENT
This EIGHTH WAIVER AND AGREEMENT, dated as of January 30, 2019 (this Waiver), is by and among Genworth Financial, Inc., a Delaware corporation (the Company), Asia Pacific Global Capital Co., Ltd., a limited liability company incorporated in the Peoples Republic of China (Parent), and Asia Pacific Global Capital USA Corporation, a Delaware corporation (Merger Sub) (each of the Company, Parent and Merger Sub, a Party and collectively , the Parties). Any capitalized term used but not defined herein shall have the meaning ascribed to such term in the Merger Agreement (as defined below).
WHEREAS, the Company, Parent and Merger Sub have entered into that certain (i) Agreement and Plan of Merger, dated as of October 21, 2016 (the Merger Agreement), (ii) Waiver and Agreement, dated as of August 21, 2017, (iii) Second Waiver and Agreement, dated as of November 29, 2017, (iv) Third Waiver and Agreement, dated as of February 23, 2018, (v) Fourth Waiver and Agreement, dated as of March 27, 2018, (vi) Fifth Waiver and Agreement , dated as of July 28, 2018, (vii) Sixth Waiver and Agreement, dated as of August 14, 2018, and (viii) Seventh Waiver and Agreement, dated as of November 30, 2018 (the Seventh Waiver);
WHEREAS, pursuant to Section 7.l(b) of the Merger Agreement, it is a condition to the obligations of each of the Parties to effect the merger that, prior to the Effective Time, the Parties shall have obtained the required non-PRC Regulatory Approvals including the Parent Approvals referred to in Section 7.l(b) of the Parent Disclosure Letter, the Company Approvals referred to in Section 7. l(b) of the Company Disclosure Letter and any other approvals from any Government Entity with competent jurisdiction for which the failure to obtain such approval would subject the Company, Parent, or their respective Affiliates, or any of their respective directors, officers, other employees or Representatives to any criminal liability;
WHEREAS, Section 8.2(a) of the Merger Agreement provides that the Merger Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time by action of the board of directors of either Parent or the Company if the Merger shall not have been consummated by August 31, 2017 (the End Date), whether such date is before or after the date of adoption of the Merger Agreement by the stockholders of the Company referred to in Section 7.l(a) of the Merger Agreement; provided, that the right to terminate the Merger Agreement under Section 8.2(a) of the Merger Agreement shall not be available to any Party if such failure of the Closing to occur on or prior to the End Date is principally caused by or is the result of a material breach of the Merger Agreement by such Party;
WHEREAS, pursuant to Section 1 of the Seventh Waiver, each of the Parties waived its right to terminate the Merger Agreement and abandon the Merger pursuant to Section 8.2(a) of the Merger Agreement prior to January 31, 2019;