Merger Agreement, dated as of July 7, 2020, by and among Global Atlantic Financial Group Limited, a Bermuda exempted company, Global Atlantic Financial Life Limited, a Bermuda exempted company, Magnolia Merger Sub Limited, a Bermuda exempted company, Magnolia Parent LLC, a Cayman Islands limited liability company, and solely for Section 2.10(a) thereunder, LAMC LP, a Cayman Island exempted limited partnership, and Goldman Sachs & Co. LLC, solely as the Equity Representative

conducted by them on behalf of the Company and its Subsidiaries are and at all times since January 1, 2018 to the date hereof have been duly approved, licensed or registered in each state or jurisdiction in which and with each Governmental Authority with whom such approval, licensing or registration is so required, except where the failure to be so approved, licensed or registered, individually or in the aggregate, has not had a Material Adverse Effect.

(b)        Except as set forth in Section 4.28(b) of the Company Disclosure Letter and to the extent relating to or affecting the Business, Global Atlantic Distributors, LLC currently maintains, and since January 1, 2018 has maintained, “net capital” (as such term is defined in Rule 15c3-1(c)(2) under the Exchange Act) equal to or in excess of the minimum “net capital” required to be maintained by Global Atlantic Distributors, LLC, and, to the extent relating to or affecting the Business, each of its Subsidiaries, under the Exchange Act and in an amount sufficient to ensure that it is not required to file a notice under Rule 17a-11 under the Exchange Act.

(c)         As of the date hereof, neither Global Atlantic Distributors, LLC nor, to the Knowledge of the Company, any “associated person” (as such term is defined under the rules under FINRA (the “FINRA Rules”) of Global Atlantic Distributors, LLC is ineligible or disqualified pursuant to Section 15(b) of the Exchange Act to act as a broker-dealer or as an associated person of a registered broker-dealer.  As of the date hereof, there is no Litigation

pending or, to the Knowledge of the Company, threatened in writing that would reasonably be expected to result in Global Atlantic Distributors, LLC or, to the Knowledge of the Company, any “associated person” (as such term is defined under the FINRA Rules) thereof becoming ineligible to act in such capacity.

(c)          The Company and its Subsidiaries have established and adhered in all material aspects to an anti-money laundering compliance program that (1) meets the requirements of all applicable Anti-Money Laundering Laws; and (2) includes, at minimum, the following elements: a dedicated anti-money laundering compliance officer, risk-based due diligence procedures, training for relevant personnel, independent testing, a system of internal controls reasonably designed to ensure ongoing compliance, and procedures for detecting and reporting suspicious transactions or activities, each element as required under applicable Anti-Money Laundering Laws.

Section 4.30       Brokers.  No Person is entitled to any brokerage, financial advisory, finder’s or similar fee or commission payable by any party in connection with the transactions

contemplated by this Agreement based upon Contracts made by or on behalf of the Company or any of its Subsidiaries.

Except as otherwise disclosed in the Parent Disclosure Letter (it being understood that any information contained therein will qualify and apply to the representations and warranties in this Article V to which the information is specifically stated as referring to and will qualify and apply to other representations and warranties in this Article V to the extent that it is reasonably

apparent upon reading such information that such disclosure also qualifies or is responsive to such other sections), Parent and Merger Sub jointly and severally represent and warrant to the Company as follows:

Section 5.03        Consents and Approvals; No Violations.

(a)          Assuming that all Approvals of or from, or Filings with, Governmental Authorities described in Section 4.05(b) and Section 5.03(b) have been obtained or made, the execution and delivery of this Agreement by Parent and Merger Sub does not and the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement will not (i) conflict with any provisions of the Constituent Documents of Parent and Merger Sub or any material Subsidiary of Parent or Merger Sub, (ii) violate any Law or Order or (iii) result, after the giving of notice, with lapse of time, or otherwise, in any violation, default or loss of a

benefit under, or permit the acceleration or termination of any obligation under or require any consent under, any Contract, except, in the case of clauses (ii) and (iii) any matters that, individually or in the aggregate, have not had a Parent Material Adverse Effect.

Section 5.07        Equity Financing.

(a)          Parent has delivered to the Company a true, correct and complete copy of the fully executed equity commitment letter from KKR, dated as of the date hereof (including all exhibits, schedules, annexes and amendments thereto as of the date of this Agreement, the “Equity Commitment Letter”) pursuant to which KKR has committed, subject to the terms and conditions therein, to provide equity financing to Parent in the amount set forth therein for purpose of funding the transactions contemplated hereby (the “Equity Financing”).  The Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof entitled to enforce the Equity Commitment Letter in accordance with its terms.

(e)          There are no, and there will not be any, conditions precedent or other contingencies related to the obligation of any party to the Equity Commitment Letter to fund or invest, as applicable, the full amount (or any portion) of the Equity Financing, other than as expressly set forth in the Equity Commitment Letter as in effect on the date hereof (the “Disclosed Conditions”).  Other than the Disclosed Conditions, neither KKR nor any other Person has any right to impose, and none of KKR, Parent, Merger Sub, the Company or any Subsidiary obligor have any obligation to accept, any condition precedent to any funding of the Equity Financing nor any reduction to the aggregate amount available under the Equity

Commitment Letter (nor any term or condition which would have the effect of reducing the aggregate amount available under the Equity Commitment Letter).  There are no side letters and (except for the Equity Commitment Letter) there are no agreements, contracts, arrangements or understandings, whether written or oral, with KKR or any other Person relating to the Equity Financing or the Equity Commitment Letter that, in each case, could permit KKR to reduce its commitments with respect to the Equity Financing.  Other than as set forth in the Equity Commitment Letter, there are no conditions precedent relating to the funding of the full amount of the Equity Financing that would reasonably be likely to, (i) impair the validity of the Equity Commitment Letter, (ii) reduce the aggregate amount of the Equity Financing, (iii) prevent or delay the consummation of the transactions contemplated hereby, (iv) cause the Equity Commitment Letter to be ineffective, or (v) otherwise result in the Equity Financing not being available on a timely basis in order to consummate the transactions contemplated hereby.

Section 5.12       Brokers.  No Person is entitled to any brokerage, financial advisory, finder’s or similar fee or commission payable by any Party in connection with the transactions contemplated by this Agreement based upon Contracts made by or on behalf of KKR, Parent, Merger Sub or any of their respective Subsidiaries.

(d)         merge or consolidate with any Person (other than the Company or any of its Subsidiaries) or acquire, directly or indirectly, any assets exceeding in aggregate $50,000,000  (other than reinsurance agreements) or Securities of any other Person (other than any of the Company’s Subsidiaries), other than acquisitions of Investment Assets consistent with the investment policies and guidelines applicable to the Insurance Subsidiaries’ investment activities in effect as of the date of this Agreement;

(e)         make any loans, advances or capital contributions to, or investments in, any other Person other than (1) by the Company or any of its Subsidiaries to or in the Company or any of its Subsidiaries, (2) policy loans under Insurance Contracts in the ordinary course of business

consistent with past practices, (3) pursuant to any Contract or other legal obligation existing at the date of this Agreement, in each case, as set forth on Section 6.01(e) of the Company Disclosure Letter or (4) in respect of acquisitions of Investment Assets consistent with the investment policies and guidelines applicable to the Insurance Subsidiaries’ investment activities in effect as of the date of this Agreement;

(k)         enter into any reinsurance agreement, other than a reinsurance agreement involving capital commitments by the Company and its Subsidiaries that do not exceed $200,000,000; provided, however, that the Company and its Subsidiaries may enter into reinsurance agreements with capital commitments in excess of $200,000,000 with the prior consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned);

(q)         (i) make, revoke or amend any material election relating to Taxes, file any material amended Tax Return or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability, (ii) settle or compromise any Litigation or other Tax proceeding relating to material Taxes or extend or waive the application of any statute of limitations regarding the assessment or collection of any Tax, (iii) make a request for a written ruling of a

Taxing Authority relating to material Taxes, other than any ordinary course request for a determination concerning qualified status of any Benefit Plan intended to be qualified under Section 401(a) of the Code or (iv) change any method of Tax accounting or change the basis for determining any item referred to in Section 807(c) of the Code;

applicable securities Laws, during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement pursuant to its terms, (A) the Company shall cause its applicable employees having primary responsibility for the matters set forth in the foregoing sentence to consult with Representatives of Parent as reasonably requested thereby, not to exceed once per each two (2) week period, with respect to investment matters, including the treatment of impaired or potentially impaired investment assets, and (B) in such meetings with management, Parent may make recommendations to the Company with respect to such matters, and the Company shall consider such recommendations in good faith; provided, that the Company and its applicable employees shall not be required to accept or act upon such recommendations.

any Litigation, (iv) compliance with any applicable Orders or (vi) compliance with applicable Law.

Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement; (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise; or (iv) otherwise impair or delay the ability of Parent and Merger Sub to perform their material obligations under this Agreement.

Agreements, and (y) Registered Fund Board Approval of a new underwriting agreement between Forethought Variable Insurance Trust  and Global Atlantic Distributors, LLC having substantially the same terms as the existing underwriting agreement between Forethought Variable Insurance Trust  and Global Atlantic Distributors, LLC (collectively, the “Registered Fund Approvals”); provided, that only Registered Fund Board Approval shall be required for Registered Fund Sub-Advisory Agreements applicable to any Registered Fund that is eligible to rely upon a “manager of managers” SEC exemptive order in lieu of obtaining Registered Fund Shareholder Approval of the new Registered Fund Sub-Advisory Agreement if (i) the conditions of such “manager of mangers” order are complied with an all respects by the Registered Fund and the parties to the applicable Registered Fund Sub-Advisory Agreement and (ii) an SEC substitution order or applicable Law does not prohibit the Registered Fund or the parties to the Registered Fund Sub-Advisory Agreement from relying on such exemptive relief.  The Company shall use its reasonable best efforts to obtain, and Parent agrees to use its reasonable best efforts to cooperate in obtaining, the Registered Fund Approvals as promptly as practicable (and, in any event, no later than 150 days after the Closing Date).  Parent agrees to provide such information for provision to the board of trustees of the Registered Funds as may be reasonably required to obtain the Registered Fund Board Approvals.  The Company shall request Registered Fund Board Approval, in conformity with Rule 15a-4 under the Investment Company Act, of all interim investment advisory and sub advisory Contracts necessary for the current investment adviser and sub-advisers of each Registered Fund to continue to act as an investment adviser or sub-adviser, as applicable, to the Registered Fund following the Closing, to be effective immediately following the Closing in the event that the Registered Fund Approvals described herein are not obtained prior to Closing, containing terms that are consistent with the applicable requirements of Rule 15a-4 and that are, taken as a whole, substantially similar to the terms of the existing Registered Fund Advisory Agreements with such Registered Fund (except for changes thereto to the extent necessary to comply with Rule 15a-4 under the Investment Company Act).

Merger.  No business other than the Company Required Vote will be proposed at the Company Shareholders Meeting.  Unless this Agreement has been duly terminated in accordance with the terms herein, the Company shall take all lawful action to solicit from the Company Shareholders proxies in favor of the proposal to adopt this Agreement and approve the Merger and shall take all other action reasonably necessary or advisable to secure the vote or consent of the Company Shareholders that are required by the Bermuda Companies Act.  Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, shall adjourn or postpone the Company Shareholders Meeting (but not to a date that is later than five Business Days prior to the Outside Termination Date) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company Shareholders or, if as of the time for which the Company Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement) or the time of any such adjournment or postponement, there are insufficient shares of Company Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Shareholders Meeting or to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Required Vote (but shall not adjourn or postpone the Company Shareholders Meeting for any other purpose).  If at any Company Shareholders Meeting, the Company fails to obtain the Company Required Vote, the Company shall continue to take all such actions described in this Section 6.04(b), including calling and holding additional special general meetings of shareholders to obtain the Company Required Vote.  The Company hereby acknowledges that, pursuant to the Voting Agreements, each of the Company Shareholders party thereto has irrevocably granted to and appointed Parent as such shareholder’s proxy to vote all of the Company Shares held by such shareholder at the Company Shareholders Meeting, solely on the matters and in the manner specified in the Voting Agreements.  The Company further hereby acknowledges and agrees that during the term of the Voting Agreements, it shall recognize the grant of any such proxy and the exercise thereof by Parent in accordance with the terms thereof at the Company Shareholders Meeting.  Voting at the Company Shareholders Meeting on the Company Required Vote will be taken in accordance with the Company’s customary practices for shareholder votes.

Subsidiaries, or a material portion of the assets, properties or business of the Company or any of its Subsidiaries (other than assets, properties or business sold in the ordinary course of business, and Securities issued or sold by Subsidiaries in accordance with the ordinary course investment activities of such Subsidiaries) or any other transaction that would require the Company to abandon, terminate or fail to consummate the transactions contemplated hereby (any of the foregoing, a “Competing Transaction”).  Each of the Company and the Equity Representative shall (and shall cause their respective Controlled Affiliates and Representatives to) (a) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than Parent, its Affiliates or any of their respective Representatives) conducted on or prior to the date hereof with respect to any Competing Transaction, including by terminating any access to any online or other data sites, (b) not provide information with respect to, or afford access to the books or records of, the Company or any of its Subsidiaries to any Persons (other than Parent, its Affiliates or any of their respective Representatives) in connection with any Competing Transaction, and (c) not enter into any Contract with any Persons (other than Parent or its Affiliates) with respect to any Competing Transaction.

(c)          Parent and Merger Sub acknowledge and agree that the obtaining of the Equity Financing is not a condition to the Closing.

Section 6.06       Financing Cooperation.  Between the date hereof and the Closing Date, the Company agrees to use commercially reasonable efforts to provide, and shall cause its Subsidiaries to use commercially reasonable efforts to provide, and shall use its commercially reasonable efforts to direct its and their respective Representatives (including legal and accounting representatives) to provide all cooperation reasonably requested by Parent (at Parent’s sole expense) in connection with the arrangement of debt or equity financing by KKR, Parent or any of their respective Affiliates, including in connection with obtaining co-investments from the KKR Co-Investors, entering into and consummating Rollover Agreements and/or any other potential capital raising in connection with the Merger and the other transactions contemplated hereby (the “Financings”).  Such cooperation shall include, in each case: (i) (A) furnishing Parent and the arrangers for the Financings (the “Arrangers”) as promptly as practicable with (x) audited consolidated balance sheets of the Company and its Subsidiaries as of the end of the two most recently completed fiscal years ended at least 60 days prior to the Closing Date, statements of income, cash flow and shareholders’ equity of the Company and its Subsidiaries for the two most recently completed fiscal years ended at least 60 days prior to the Closing Date, together with all related notes and schedules thereto (the “Annual Financial Statements”) and (y) unaudited consolidated quarterly balance sheets and related statements of income, cash flow and shareholders’ equity of the Company and its Subsidiaries for any subsequent quarterly interim period ended at least 40 days prior to the Closing Date and for the comparable period of the prior fiscal year, together with all related notes and schedules thereto, which shall have been reviewed by the independent auditors of the Company (the “Interim Financial Statements”) in each case of clauses (x) and (y) prepared in accordance with GAAP (other than segment reporting or disclosure), (B) furnishing Parent and the Arrangers as promptly as practicable with other financial information about the Company and its Subsidiaries reasonably necessary to allow Parent to prepare pro forma financial statements (including for the most recently completed fiscal year ended at least 60 days prior to the Closing Date and any subsequent interim period ended at least 40 days prior to the Closing Date and for the comparable period of the prior fiscal year) prepared in accordance with GAAP; provided that such information shall not include, and Parent shall be solely responsible for, the preparation of pro forma financial information and that the Company and its Affiliates shall not be required to provide any audited, unaudited or other financial statements except for the Annual Financial Statements and the Interim Financial Statements and (C) using commercially reasonable efforts to cause to be furnished (x) to Parent consents of the independent auditors of the Company for use of their unqualified audit reports in any materials relating to the Financings or otherwise required to be filed by Parent with the SEC and (y) to the Arrangers customary comfort letters from the independent auditors of the Company to the extent financial statements or other financial information of the Company and its Subsidiaries audited or reviewed by such auditor are included or incorporated by reference into any prospectus, prospectus supplement, offering memorandum or other disclosure documents prepared by Parent in connection with the Financings, (ii) participation in meetings, presentations and due diligence sessions, (iii) providing other information reasonably available to the Company and assisting with the preparation of a prospectus, prospectus supplement, offering memorandum or other disclosure documents in connection with the Financings, including providing a reasonable summary

description of the Business for use in any such disclosure documents and related marketing materials and (iv) taking all actions reasonably necessary and appropriate to permit the Arrangers and their counsel to complete customary pre-closing due diligence on the Business.  Notwithstanding the foregoing (A) no such cooperation shall be required to the extent that it would (1) require the Company or its Affiliates to take any action that in the good faith judgment of the Company unreasonably interferes with the ongoing business or operations of the Company and its Affiliates, (2) require the Company or its Affiliates to incur any fee, expense or other liability prior to the Closing Date for which they are not promptly reimbursed or indemnified by Parent, (3) cause any representation or warranty of the Company under this Agreement to be breached, (4) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by the Company, (5) be reasonably expected to cause any director, officer or employee of the Company or its Affiliates to incur any personal liability or (6) cause any breach of any applicable Law and (B) the Company and its Affiliates shall not be required to (x) enter into, execute or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that in each case would be effective prior to the Closing or (y) provide any indemnification in connection with any information provided by the Company, its Subsidiaries or its and their respective Representatives (including legal and accounting representatives) in connection with the Financings.  Parent shall (i) upon written request from the Company, promptly reimburse the Company and its Affiliates for all reasonable and documented out-of-pocket fees, costs and expenses (including, to the extent incurred at the request or consent of Parent, reasonable legal fees) incurred by the Company or its Affiliates in connection with the cooperation or assistance contemplated by this Section 6.06 and (ii) indemnify and hold harmless the Company and its Affiliates and Representatives from and against any and all losses, liabilities, damages, claims, costs or expenses suffered or incurred by them in connection with the performance of their obligations under this Section 6.06 in the arrangement of the Financing and any information utilized in connection therewith, except to the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by the Company, as applicable.  Each of Parent and Merger Sub acknowledges and agrees that obtaining Financing is not a condition to its obligations under this Agreement.

Section 6.07       Public Announcements.  The Company and Parent shall agree on a press release announcing the entering into of this Agreement and the transactions contemplated hereby.  Thereafter, the Company and Parent shall consult with each other before issuing any press release or otherwise making any public statements (including scheduling of a press conference or conference call with investors or analysts) with respect to this Agreement or any of the transactions contemplated hereby and shall not issue any such press release or make any such public statement without the prior consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that a party may, without the prior consent of the other party, issue such press release or make such public statement as may be required by Law or Order, the applicable rules of the New York Stock Exchange or any listing agreement with the New York Stock Exchange.

(b)         Parent shall provide each Company Employee who incurs a termination of employment during the twenty-four (24)-month period following the Closing Date with severance payments and severance benefits that are no less favorable than the severance payments and severance benefits to which such Company Employee would have been entitled with respect to such termination under the applicable severance policies of the Company and its Subsidiaries as in effect immediately prior to the Closing Date, as set forth on Section 6.08(b) of the Company Disclosure Letter.

(c)          From and after the Closing Date, Parent shall cause the Surviving Company and its Subsidiaries to honor all obligations under the Benefit Plans in accordance with their terms as in effect immediately prior to the Closing Date.

(d)        Parent shall, or shall cause the Surviving Company or Parent’s or the Surviving Company’s Subsidiaries, as applicable, to give Company Employees full credit for Company Employees’ service with the Company and its Subsidiaries for purposes of eligibility, vesting and determination of the level of benefits (including, for purposes of vacation and severance), but not for purposes of benefit accruals under a defined benefit pension plan, under any benefit plans made generally available to officers or employees or any class or level of officers or employees maintained by Parent, the Surviving Company or any of their respective Subsidiaries in which a Company Employee participates to the same extent recognized by the Company immediately prior to the Closing Date; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits with respect to the same period of service.

(e)          Parent shall use reasonable best efforts, or shall use reasonable best efforts to cause the Surviving Company or Parent’s or the Surviving Company’s Subsidiaries, as

applicable, to (i) waive any preexisting condition limitations otherwise applicable to Company Employees and their eligible dependents under any plan of Parent or any Subsidiary of Parent that provides health benefits in which Company Employees participate following the Closing Date (a “Parent Plan”), other than any limitations that were in effect with respect to such employees under the analogous Benefit Plan immediately prior to such commencement of participation, (ii) if applicable, honor, for the balance of the plan year of the Parent Plan, any deductible, co-payment and out-of-pocket maximums incurred by the Company Employees and their eligible dependents under the analogous Benefit Plan during the elapsed portion of the plan year of such Benefit Plan in satisfying any deductibles, co-payments or out-of-pocket maximums under the Parent Plan and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Company Employee and his or her eligible dependents under a Parent Plan to the extent such Company Employee or eligible dependent had satisfied any similar limitation or requirement under an analogous Parent Plan immediately prior to such commencement of participation.

(f)          This Section 6.08 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement and nothing in this Section 6.08 or any other provision of this Agreement or any other related Contract, express or implied:  (i) shall be construed to establish, amend, or modify any Benefit Plan or any other benefit plan, program, agreement or arrangement; (ii) except as expressly provided by Section 6.08(b), shall alter or limit the ability of the Company, the Surviving Company or any of their Subsidiaries, or Parent or any of its Subsidiaries to amend, modify or terminate any benefit plan, program, agreement or arrangement; or (iii) is intended to or shall confer upon any current or former employee of the Company or its Subsidiaries or any other person any right to employment or continued employment or service for any period of time by reason of this Agreement or any other related agreement, or any right to a particular term or condition of employment.

Section 6.09        Directors’ and Officers’ Indemnification and Insurance.

(a)          From and after the Effective Time, the Surviving Company shall indemnify, defend and hold harmless all past and present directors and officers of the Company and its Subsidiaries (the “Indemnified Parties”) for acts or omissions occurring at or prior to the Effective Time to the fullest extent permitted by the Bermuda Companies Act or provided under the Company Constituent Documents in effect on the date hereof.  Parent shall cause the Surviving Company to perform its obligations under this Section 6.09.

(b)         From the Effective Time and for a period of six (6) years thereafter, Parent and the Surviving Company shall use reasonable best efforts to maintain in effect directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy (a copy of which has been made available or delivered to Parent) with terms, conditions, retentions and levels of coverage at least as favorable as those of such current insurance coverage; provided, however, that in no event will Parent or the Surviving Company be required to expend in any one year an amount in excess of 400 % of the annual premiums currently paid by the Company for such insurance (the “Maximum Premium”), which Maximum Premium is set forth in Section 6.09(b) of the Company Disclosure Letter; and 

provided, further, that, if the annual premiums for such insurance coverage exceed the Maximum Premium, Parent and the Surviving Company will be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; and provided, further, however, that at Parent’s option in lieu of the foregoing insurance coverage, Parent may direct the Company to purchase, prior to the Effective Time, six (6) year “tail” insurance coverage that provides coverage identical in all material respects to the coverage described above; provided, that the Company does not pay more than the Maximum Premium.

(c)          Parent, Merger Sub and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company and its Subsidiaries as provided in their respective Constituent Documents and any indemnification or other agreements of the Company and its Subsidiaries as in effect on the date of this Agreement shall be assumed by the Surviving Company in the Merger, without further action, at the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms.  Further, the Constituent Documents of the Surviving Company shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company Constituent Documents, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the Bermuda Companies Act during such period.

(d)         This Section 6.09 shall survive the consummation of the Merger, is intended to benefit, and shall be enforceable by each Indemnified Party and their respective successors, heirs and representatives, shall be binding on all successors and assigns of Parent and the Surviving Company and shall not be amended without the prior written consent of the applicable Indemnified Party (including his or her successors, heirs and representatives).

(e)         In the event that the Surviving Company or its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company shall succeed to the obligations set forth in this Section 6.09.  In addition, the Surviving Company shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Surviving Company unable to satisfy its obligations under this Section 6.09.

(f)          The rights of the Indemnified Parties under this Section 6.09 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Constituent Documents of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws, and Parent shall, and shall cause the Surviving Company to, honor and perform under all indemnification agreements entered into by the Company or any of its Subsidiaries.

Section 6.10      Section 280G.    With respect to each employee, shareholder, director and/or individual independent contractor of the Company or any of its Subsidiaries who is, or would reasonably be expected to be as of the Closing Date, a “disqualified individual” (as defined in Section 280G(c) of the Code and the regulations promulgated thereunder), the Company and its Subsidiaries shall use their commercially reasonable best efforts to (a) ensure that any payments that would otherwise constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code and the regulations promulgated thereunder) shall be exempt from the definition of “parachute payment” by reason of the exemption provided under Section 280G(b)(5)(A)(ii) of the Code and the regulations promulgated thereunder, and (b) take all actions reasonably necessary to exempt such payments (including obtaining any necessary waivers from such “disqualified individuals” and soliciting the consent of the Company’s stockholders) as soon as reasonably practicable following the date of this Agreement, but in no event later than seven (7) Business Days prior to the Closing.  Prior to obtaining such waivers and soliciting such consent, the Company shall provide drafts of such waivers and stockholder consent materials to Parent for its review and approval (such approval not to be unreasonably withheld or delayed).  If any of the benefits or payments fail to be approved by the stockholders of the Company, such benefits or payments shall not be provided or made.  No later than three (3) Business Days prior to the Closing, the Company shall deliver to Parent satisfactory evidence that a vote of the Company’s stockholders was solicited in accordance with the foregoing provisions of this Section 6.10 and that either (A) the requisite number of stockholder votes consenting to such benefits and payments was obtained with respect to such benefits and payments (the “280G Approval”) or (B) that the 280G Approval was not obtained.

Section 6.11        No Control of the Other Party’s Business.  Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s, Merger Sub’s or their respective Subsidiaries’ operations prior to the Effective Time.  Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

Section 6.12       Shareholder Litigation.  The Company shall promptly advise Parent orally and in writing of any Litigation brought by any shareholder of the Company against the Company or its directors or officers relating to this Agreement or the transactions contemplated by this Agreement and shall keep Parent reasonably informed regarding any such litigation.  The Company shall give Parent the opportunity to participate in, subject to a customary joint defense agreement, but not control the defense of any such litigation, shall give due consideration to Parent’s advice with respect to such litigation and shall not settle any such litigation or permit any derivative claim by shareholders without the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned).  Parent shall promptly advise the Company orally and in writing of any Litigation brought by any stockholder of Parent against Parent or its directors or officers relating to this Agreement or the transactions contemplated by this Agreement and shall keep the Company reasonably informed regarding any such litigation.

(b)          The Company shall prepare, or cause to be prepared, and timely file, or cause to be timely filed, all Tax Returns for the Company and its Subsidiaries that are required to be filed on or before the Closing Date.  All such Tax Returns shall be prepared in accordance with the most recent past practice of the Company and its Subsidiaries (except as otherwise required by Law).  The Surviving Company shall prepare, or cause to be prepared, and timely file, or cause to be timely filed, all other Tax Returns.

(c)          Any U.S. income Tax Return of any Flow-Through Entity that is in respect of a Tax period that includes any Tax period or portion thereof ending on or prior to the Closing Date but is due after the Closing Date shall be prepared in accordance with the most recent past practice of such Flow-Through Entity (except as otherwise required by Law); provided, that, (i) any Tax Return for any Tax period that also includes any period or portion thereof that ends after the Closing Date shall be prepared in a manner consistent with the closing of the books method set forth in Section 706(d) of the Code and the Treasury Regulations thereunder, and (ii) to the extent permitted by the Law, any deductions recognized by any Flow-Through Entity that are economically borne by the Company Shareholders or the LAMC Partners, as applicable, pursuant to this Agreement, shall be allocated to the Tax period or portion thereof ending on or prior to the Closing Date.  All Tax Returns described in the immediately preceding sentence shall be delivered to the Equity Representative for the Equity Representative’s review no later than thirty (30) Business Days before the filing date thereof and the Equity Representative shall

provide comments, if any, on such Tax Returns no later than five (5) Business Days before the filing thereof.  The Surviving Company shall cause any revision reasonably requested in writing by the Equity Representative with respect to any such Tax Return to be incorporated in such Tax Return, to the extent such revision is consistent with past practices (if any) and applicable Law.

(e)         The parties and the Equity Representative shall reasonably cooperate in connection with the filing of any Tax Return and in connection with any Tax Proceeding.  Such cooperation shall include signing any Tax Returns, amended Tax Returns, claims or other documents necessary to settle any Tax Proceeding, the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such Tax Proceeding or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided in accordance with this Agreement; provided, that such cooperation shall not obligate any party to take any actions that would violate any applicable Law.

(f)          Without the Equity Representative’s consent (such consent not to be unreasonably withheld), Parent shall not, and shall cause its Affiliates (including, after the Closing, the Surviving Company) not to, (i) other than as specified in Section 5.14, cause or permit either Surviving Company or any of its Subsidiaries to make any election pursuant to Treasury Regulations Section ###-###-####-3 that is effective on or before the day after the Closing Date, (ii) make any Tax election under Section 336 or Section 338 of the Code with respect to the transactions contemplated by this Agreement, (iii) agree to any waiver or extension of the statute of limitations relating to any U.S. income Taxes of

(h)         The Surviving Company agrees to reimburse the Equity Representative for its reasonable out-of-pocket expenses incurred in connection with serving as the Equity Representative solely with respect to the matters contemplated by this Section 6.13, in an aggregate amount of up to $100,000; provided, that the Surviving Company shall consider in good faith increasing the foregoing $100,000 limit upon request by the Equity Representative if such reasonable out-of-pocket expenses exceed $100,000.

Section 6.14        Termination of Related Party Arrangements.  Other than with respect to the agreements set forth on Section 6.14 of the Company Disclosure Letter (which will not be terminated pursuant to this Section 6.14), on or prior to the Closing Date, the Company will cause the termination, effective no later than the Effective Time, of all Related Party Agreements without any further cost or liability to the Company or any of its Subsidiaries (or, after the Effective Time, Parent, the Surviving Company and their respective Affiliates).

Section 6.15       Annual Assumption Review.  The Company shall consult with Parent in connection with its annual assumption review, including by providing Parent reasonable access to information, employees and actuaries engaged in such review, providing periodic updates regarding the progress and conclusions of such assumption review and considering in good faith comments provided by Parent in connection thereto.

Section 6.16        Rollover Offer.

(a)          Prior to the Closing Date, for a period of at least twenty (20) Business Days following the delivery by Parent of Rollover Offer Documentation, Parent shall make an offer (the “Rollover Offer”) to each Company Stakeholder (other than the holders of Company SARs) and, if determined by Parent, other than Company Shareholders who own less than one percent of the Equity Securities (as defined in the Shareholders Agreement) on a fully-diluted basis, providing such Company Stakeholder at its sole discretion, with the option to exchange an amount offered by Parent of Company Shares, Founder Incentive Interests, L&A Incentive Interests and/or GAFLL Class B Ordinary Shares held by such holder for the issuance of a portion of Parent’s equity (which may be non-voting equity) determined in accordance with the terms of the applicable Rollover Agreement, the terms and conditions of which shall be established by Parent, in lieu of the right to receive the cash consideration to be otherwise paid for such Company Shares, the Founder Incentive Interests, L&A Incentive Interests and/or GAFLL Class B Ordinary Shares pursuant to this Agreement; provided that, if (x) any such Company Stakeholder is not an “accredited investor” as defined in Rule 501(d) promulgated under the Securities Act or (y) the consummation of the rollover by such Company Stakeholder

would require the registration or qualification of any securities or class of securities or sale thereof under any applicable securities Laws (including, without limitation, registration of the sale of Parent securities to such Company Stakeholder pursuant to the Securities Act or registration of any class of Parent securities under the Securities Exchange Act of 1934, as amended) or would require the registration or qualification of Parent or any other Person as a broker or dealer or agent with respect to such securities or sale, then Parent shall have the right, but not the obligation, to not make or, if made, to revoke the Rollover Offer to such Company Stakeholder and in lieu thereof to cause to be paid to such holder the cash consideration to be paid for such holder’s Company Shares, the Founder Incentive Interests,  L&A Incentive Interests and GAFLL Class B Ordinary Shares pursuant to this Agreement. The terms and conditions of the Rollover Offer to each applicable Company Stakeholder, including the form of such Company Stakeholder’s Rollover Agreement and the other documents necessary or appropriate to accept such offer and instructions with respect thereto and other necessary or appropriate disclosure, in each case, which shall be determined by Parent in its sole discretion, will be set forth in a private placement memorandum and accompanying documents and materials (collectively, the “Rollover Offer Documentation”), which will be prepared by Parent and its advisors and will contain customary representations and warranties for an offering conducted under Regulation D under the Securities Act to be made by each Company Stakeholder participating in the Rollover Offer.  Any applicable Company Stakeholder that does not execute and deliver an executed Rollover Agreement and other documents necessary or appropriate, as determined by Parent, to accept the Rollover Offer in accordance with the instructions set forth in the Rollover Offer (including the deadline for such delivery) shall be deemed to have rejected the Rollover Offer and shall have no rights in respect thereof, and shall only have the right to receive the cash consideration to be paid for such Company Stakeholder’s Company Shares, the Founder Incentive Interests, L&A Incentive Interests and/or GAFLL Class B Ordinary Shares pursuant to this Agreement.  The Parent securities acquired pursuant to a Rollover Offer will not be subject to ongoing management fees or carried interest allocations.

(b)         Promptly after the date of this Agreement, the Company and Parent shall reasonably cooperate with each other in connection with the preparation of the Rollover Offer Documentation and reasonable assistance with answering questions that any Company Stakeholder (other than the holder of Company SARs) may have with respect to the Rollover Offer, including the Rollover Offer Documentation or other documents contemplated by the Rollover Agreement.

Section 7.01        Conditions to Each Party’s Obligation to Effect the Merger.  The obligations of the parties to effect the Merger on the Closing Date are subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

(a)          Company Shareholder Approval.  The Company Required Vote shall have been obtained.

(a)          Representations and Warranties.

(i)          The Company Fundamental Representations shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and

(ii)        the representations and warranties of the Company contained in Article IV (other than the Company Fundamental Representations) shall be true and correct as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect; provided, however, that for purposes of determining the satisfaction of this condition, no effect shall be given to any exception or qualification in such representations and warranties relating to “material,” “materiality” or “Material Adverse Effect” (other than with respect to Section 4.08).

(iii)       Parent shall have received a certificate signed by an officer of the Company on its behalf with respect to the foregoing clauses (i) and (ii).

(b)         Agreements and Covenants.  The Company shall have performed or complied in all material respects with the agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time.  Parent shall have received a certificate signed by an officer of the Company on its behalf to the foregoing effect.

(c)          No Material Adverse Effect.  Since the date hereof until the Closing Date, no Material Adverse Effect shall have occurred.

Section 7.03        Additional Conditions to Obligation of the Company.  The obligation of the Company to effect the Merger on the Closing Date is also subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

(a)          Representations and Warranties.

(iii)       The Company shall have received a certificate signed by an officer of Parent on its behalf with respect to the foregoing clauses (i) and (ii).

(b)         Agreements and Covenants.  Parent and Merger Sub shall have performed or complied in all material respects with the agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Effective Time.  The Company shall have received a certificate signed by an officer of Parent on its behalf to the foregoing effect.

Section 8.01        Termination.  This Agreement may be terminated and the Merger (and the other transactions contemplated hereby) may be abandoned at any time prior to the Effective Time (notwithstanding if the Company Required Vote has been obtained):

(a)          by the mutual written consent of the Company and Parent, which consent shall have been approved by the action of their respective boards of directors;

(b)          by Parent or the Company, if any Governmental Authority shall have issued an Order, or there exists any Law, in each case, permanently preventing or prohibiting the Merger, and such Order shall have become final and nonappealable or such Law is in effect; provided, however, that the party seeking to terminate this Agreement pursuant to this clause (b) shall have complied with its obligations under this Agreement to use reasonable best efforts to remove such Order;

(c)          by Parent or the Company, if the Merger shall not have been consummated prior to May 7, 2021 (as such date may be extended pursuant to the proviso below or pursuant to Section 9.09, the “Outside Termination Date”); provided, that the right to terminate this Agreement under this Section 8.01(c) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or results in, the failure of the Merger to occur on or before such date; provided, further, that, if on a date that would have been the Outside Termination Date the conditions set forth in Section 7.01(c) are the only conditions in 

ARTICLE VII (other than those conditions that by their nature are to be satisfied at the Closing) that shall not have been satisfied or waived on or before such date, then the Outside Termination Date will be automatically extended to August 7, 2021; provided, further, that if the notice referenced in paragraph 5 of Section 4.05(b) of the Company Disclosure Letter is received at any time that is less than six (6) months prior to the Outside Termination Date, then the Outside Termination Date will be automatically extended to the first Business Day of the calendar month following the calendar month that is the sixth (6) month anniversary of the receipt of such notice.

(e)          by the Company, if (i) there has been a breach by Parent or Merger Sub of any representation, warranty, covenant or agreement contained in this Agreement that would, individually or in the aggregate, result in a failure of a condition set forth in Section 7.03(a) or Section 7.03(b) if continuing on the Closing Date and (ii) such breach shall not have been cured (or is not capable of being cured) before the Outside Termination Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.01(e) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; or

(f)          by the Company, if (i) all of the conditions set forth in Section 7.01 and Section 7.02 have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing) and (ii) the Closing shall not have occurred on the date set forth in Section 2.06 (other than by reason of the failure of the Company to fulfill any material obligation under this Agreement).

The party desiring to terminate this Agreement pursuant to this Section 8.01 (other than clause (a) hereof) shall give written notice of such termination to the other party in accordance with Section 9.02, specifying the provision or provisions hereof pursuant to which such termination is effected.

Section 8.02        Expense Allocation.  Except as otherwise specified in Section 6.03, all costs and expenses (including fees and expenses payable to Representatives) incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby shall be paid by the party incurring such cost or expense, whether or not the Merger is consummated.

Section 8.03        Effect of Termination.  In the event of termination of this Agreement by either the Company or Parent as provided in Section 8.01, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Parent and Merger Sub or the Company, except that (a) the provisions of Section 6.02(c), Section 8.02, this

Section 8.03 and Article IX shall survive termination and (b) nothing herein shall relieve any party from liability for any intentional and material breach of this Agreement (it being acknowledged and agreed by the parties hereto that the failure to close the Merger by any party that was otherwise obligated to do so under the terms of this Agreement shall be deemed to be an intentional and material breach of this Agreement) or for fraud.

Section 8.05      Extension; Waiver.  At any time prior to the Effective Time, each of the Company, Parent and Merger Sub may (a) extend the time for the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) subject to the provisions of Section 8.04, waive compliance with any of the agreements or conditions of the other parties contained in this Agreement.  Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.  The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights.

Section 9.01       Nonsurvival of Representations, Warranties, Covenants and Agreements.  None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants and agreements, shall survive the Effective Time, except for (a) those covenants or agreements contained herein that by their terms apply to or are to be performed in whole or in part after the Effective Time and (b) this Article IX.

Section 9.02        Notices.  All notices, requests, claims, demands and other communications under this Agreement shall be in writing (and made orally if so required pursuant to any Section of this Agreement) and shall be deemed given (and duly received) if delivered personally, sent by overnight courier (providing proof of delivery and confirmation of receipt by email notice to the applicable contact person) to the parties or the Equity Representative, as applicable, or sent by facsimile or email (providing proof of transmission and, in the case of a facsimile, confirmation of transmission by email notice to the applicable contact person) at the following

Section 9.03       Counterparts.  This Agreement may be executed in one or more counterparts, 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 (including by facsimile or other electronic transmission) to the other parties.

Section 9.04      Entire Agreement; No Third-Party Beneficiaries.  This Agreement, the Confidentiality Agreement, the Equity Commitment Letter, the Parent Limited Guaranty and the Voting Agreements (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter of this Agreement and (b) are not intended to and do not confer upon any Person other than the parties hereto any rights or remedies hereunder, other than (i) the Persons intended to benefit from the provisions of Section 6.09, each of whom shall have the right to enforce such provisions directly, (ii) the right of the Company on behalf of its security holders to pursue damages in the event of Parent’s or Merger Sub’s breach of this Agreement (a claim with respect to which shall be enforceable only by the Company, in its sole and absolute discretion, on behalf of the Company Stakeholders) and (iii) the right of the Company Stakeholders to receive the Aggregate Merger Consideration after the Closing (a claim with respect to which may not be made unless and until the Effective Time shall have occurred).  The representations, warranties, covenants and agreements in this Agreement are the product of negotiations among the parties and are for the sole benefit of the parties and may, in certain instances, be qualified, limited or changed by confidential disclosure letters.  Any inaccuracies in such representations or warranties or failure to perform or breach of such covenants or agreements are subject to waiver

by the parties in accordance with Section 8.05 without notice or liability to any other Person.  In some instances, the representations, warranties, covenants and agreements in this Agreement may represent an allocation among the parties of risk associated with particular matters regardless of the knowledge of any of the parties.  Consequently, Persons other than the parties may not rely upon the representations, warranties, covenants and agreements in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

Section 9.05       Assignment.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned or delegated, in whole or in part, by operation of Law or otherwise by any of the parties without the prior written consent of the other parties.  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.

Section 9.06        Governing Law.  This Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relating to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement) shall be governed by and construed in accordance with the Laws of the State of Delaware, without respect to its applicable principles of conflicts of laws that might require the application of the laws of another jurisdiction, except to the extent that the authorization, effectiveness or effect of the Merger (including regarding the filing of the Merger Application with, and issue of the Certificate of Merger by, the Registrar) are required by statute or public policy to be governed by the Laws of Bermuda, in which case the internal Laws of Bermuda shall govern and apply, but only as to such matters and to the limited extent necessary to comply with and cause the Merger to be effective under the Laws of Bermuda.

Section 9.07       Consent to Jurisdiction.  Each of the parties hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction and venue of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery does not have jurisdiction over a particular matter, the Superior Court of the State of Delaware (and the Complex Commercial Litigation Division thereof if such division has jurisdiction over the particular matter) or if the Superior Court of the State of Delaware does not have jurisdiction, any federal court of the United States of America sitting in the State of Delaware) (“Delaware Courts”), and any appellate court from any decision thereof, in any Litigation arising out of or relating to this Agreement, including the negotiation, execution or performance of this Agreement and agrees that all claims in respect of any such Litigation shall be heard and determined in the Delaware Courts, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any Litigation arising out of or relating to this Agreement or the negotiation, execution or performance of this Agreement in the Delaware Courts, including any objection based on its place of incorporation or domicile, (c) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Litigation in any such court and (d) agrees that a final judgment in any such Litigation shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each of the parties consents and agrees that service of process, summons, notice or document for any action permitted

hereunder may be delivered by registered mail addressed to it at the applicable address set forth in Section 9.02 or in any other manner permitted by applicable Law.  Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses set forth above shall be effective service of process against such party for any suit, action or proceeding brought in any such court.

Section 9.08       Waiver of Jury Trial.  EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY BE BASED UPON, ARISE OUT OF OR RELATED TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY FOR ANY DISPUTE BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION OR VALIDITY HEREOF OR ANY TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH OF THE PARTIES CERTIFIES AND ACKNOWLEDGES THAT (A) NEITHER THE OTHER PARTIES NOR THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAVE REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH OF THE PARTIES UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH OF THE PARTIES MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OF THE PARTIES HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS OF THIS SECTION 9.08.  ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 9.09       Specific Performance.  The parties hereto agree that irreparable damage would occur and that the parties hereto would not have any adequate remedy at law in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such failure to perform or breach.  It is accordingly agreed that, without posting a bond or other undertaking, the parties hereto shall be entitled to injunctive or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Delaware Courts, this being in addition to any other remedy to which they are entitled at law or in equity.  In the event that any such action is brought in equity to enforce the provisions of this Agreement, no party hereto will allege, and each party hereto hereby waives the defense or counterclaim, that there is an adequate remedy at law.  The parties hereto further agree that (a) by seeking any remedy provided for in this Section 9.09, a party hereto shall not in any respect waive its right to seek any other form of relief that may be available to such party hereto under this Agreement and (b) nothing contained in this Section 9.09 shall require any party hereto to institute any Litigation for (or limit such party’s right to institute any Litigation for) specific performance under this Section 9.09 before exercising any other right under this Agreement.  If, prior to the Outside Termination Date, any party hereto brings any Litigation in accordance with this Agreement to enforce specifically the performance of the terms and provisions hereof against any other party, the Outside Termination Date shall be

automatically extended (i) for the period during which such Litigation is pending, plus ten (10) Business Days or (ii) by such other time period established by the court presiding over such Litigation on good cause shown, as the case may be.

Section 9.10        Exclusions from Representations and Warranties.  Except as expressly set forth in Article IV, notwithstanding anything to the contrary in this Agreement or any other agreement, document or instrument delivered or to be delivered in connection herewith, each of Parent and Merger Sub acknowledges and agrees that the Company and its Subsidiaries make no representations or warranties with respect to, and nothing contained in this Agreement or in any other agreement, document or instrument to be delivered in connection herewith is intended or shall be construed to be a representation or warranty, express or implied, of the Company or any of its Subsidiaries, for any purposes of this Agreement or any other agreement, document or instrument to be delivered in connection herewith or therewith, in respect of (a) the adequacy or sufficiency of reserves, (b) the effect of the adequacy or sufficiency of reserves on any line item, asset, liability or equity amount in any financial statement, (c) whether or not reserves were determined in accordance with any actuarial, statutory, regulatory or other standard or (d) the collectability of any amounts under any Reinsurance Contract taken into account in calculating reserves.  Furthermore, each of Parent and Merger Sub acknowledges, understands and agrees that, without limiting Section 4.33, no fact, condition, development or issue relating to the adequacy or sufficiency of reserves may be used, directly or indirectly, to demonstrate or support the breach or violation of any representation, warranty, covenant or agreement of or by the Company or its Subsidiaries contained in this Agreement or any other agreement, document or instrument delivered or to be delivered in connection herewith.

Section 9.11       Severability.  If any term, provision, covenant or restriction of this Agreement is held by the Delaware Courts or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties 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 in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 9.12       Parent Undertaking.  Parent hereby fully, irrevocably and unconditionally guarantees the full, complete and timely performance of all agreements, covenants and obligations of its Subsidiaries, when performance of the same shall be required in accordance with the terms of this Agreement.