SC 13D/A

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

SOLE VOTING POWER

17,252,013

SHARED VOTING POWER

27,524,562

SOLE DISPOSITIVE POWER

17,352,013

SHARED DISPOSITIVE POWER

27,524,562

0001193125-18-067812.txt : 20180302 0001193125-18-067812.hdr.sgml : 20180302 20180301210733 ACCESSION NUMBER: 0001193125-18-067812 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20180302 DATE AS OF CHANGE: 20180301 GROUP MEMBERS: GEORGE KARFUNKEL GROUP MEMBERS: LEAH KARFUNKEL SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Amtrust Financial Services, Inc. CENTRAL INDEX KEY: 0001365555 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 043106389 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83045 FILM NUMBER: 18659828 BUSINESS ADDRESS: STREET 1: 59 MAIDEN LANE STREET 2: 43RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10038 BUSINESS PHONE: (212) 220-7120 MAIL ADDRESS: STREET 1: 59 MAIDEN LANE STREET 2: 43RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10038 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Zyskind Barry D CENTRAL INDEX KEY: 0001380832 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O AMTRUST FINANCIAL SERVICES, INC. STREET 2: 59 MAIDEN LANE, 6TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10038 SC 13D/A 1 d537102dsc13da.htm SC 13D/A SC 13D/A

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 15)

AmTrust Financial Services, Inc.

(Name of Issuer)

Common Stock, $0.01 par value per share

(Title of Class of Securities)

032359309

(CUSIP Number)

Barry D. Zyskind

AmTrust Financial Services, Inc.

59 Maiden Lane, 43^rd Floor

New York, NY 10038

(212) 220-7120

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

March 1, 2018

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.

(Continued on following pages)

(Page 1 of 10 Pages)


CUSIP No. 032359309		13D		Page 2 of 10 Pages


1	NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY) Barry D. Zyskind
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS PF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America


CUSIP No. 032359309		13D		Page 3 of 10 Pages


1	NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY) George Karfunkel
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS PF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America


CUSIP No. 032359309		13D		Page 4 of 10 Pages


1	NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY) Leah Karfunkel
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS PF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America


CUSIP No. 032359309		13D		Page 5 of 10 Pages

Explanatory Note

This Amendment No. 15 to Schedule 13D (“Amendment No. 15”) amends Amendment No. 14 to Schedule 13D (“Amendment No.14”), which was filed with the Securities and Exchange Commission (the “SEC”) on January 22, 2018 and amended Amendment No. 13 to Schedule 13D (“Amendment No. 13”), which was filed with the SEC on January 10, 2018 and amended Amendment No. 12 to Schedule 13D (“Amendment No. 12”), which was filed with the SEC on December 7, 2017 and amended and restated in its entirety the Schedule 13D and amendments thereto filed by Barry D. Zyskind, George Karfunkel and Leah Karfunkel (collectively, the “Group”), with respect to the common stock, $0.01 par value per share (the “Shares”), of AmTrust Financial Services, Inc., a Delaware corporation (the “Issuer”).

Except as set forth below, all previous Items and disclosure set forth in Amendment No. 12, as amended by Amendment No. 13 and Amendment No. 14, are unchanged.

Item 3.

Source and Amount of Funds or Other Consideration.

Item 3 of Schedule 13D is amended by inserting the following at the end of such Item:

“The Group estimates that, at the price per share set forth in the Merger Agreement (as described in the section entitled “Merger Agreement” in Item 4 below) with respect to the Merger (as described in the section entitled “Merger Agreement” in Item 4 below), approximately $13.50 in cash will be required to pay the aggregate Merger Consideration for the Shares and to pay the cash amounts payable to holders of Options, Restricted Shares, RSUs and PSUs (each as defined below). The Group anticipates that such funds will be obtained from the Equity Financings (as described in the section entitled “Equity Commitment Letters” in Item 4 below).

For a summary of certain provisions of the Merger Agreement, see Item 4 below, which summary is incorporated by reference in its entirety in the response to this Item 3. The Merger Agreement is filed as Exhibit 99.6 hereto and is incorporated herein by reference in its entirety.”

Item 4.

Purpose of Transaction.

Item 4 of Schedule 13D is amended by the deletion of the fifth paragraph and inserting the following at the end of such Item:

“Merger Agreement

On March 1, 2018, Evergreen Parent, L.P. (“Parent”), Evergreen Merger Sub, Inc.(“Merger Sub”) and Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, subject to the terms and conditions thereof, Merger Sub will be merged with and into the Issuer, the separate existence of Merger Sub will cease, and the Issuer will continue as the surviving corporation (the “Merger”).

At the effective time of the Merger (the “Effective Time”), each of the Shares issued and outstanding immediately prior to the Effective Time, other than any Shares (i) held by Merger Sub or Parent (including the Rollover Shares, as defined below), (ii) held by the Issuer in treasury (collectively, the “Excluded Shares”) (iii) held by any wholly owned


CUSIP No. 032359309		13D		Page 6 of 10 Pages

subsidiary of the Issuer or (iv) held by any stockholders who are entitled to and who properly exercise dissenters’ rights under Delaware law, will be canceled and converted into the right to receive $13.50 in cash, without interest (the “Merger Consideration”). Each Share held by any wholly owned subsidiary of the Issuer and each share of preferred stock of the Issuer shall remain outstanding in accordance with its terms.

At the Effective Time, each holder of a then-outstanding option to purchase Shares (an “Option”) (whether vested or unvested) will be entitled to receive an amount in cash, without interest, equal to the product of (i) the excess, if any, of the Merger Consideration over the applicable exercise price per share of such Option multiplied by (ii) the number of Shares underlying such Option; provided that such amount for unvested Shares will be payable within 15 business days after the date such Option would have vested (subject to the vesting conditions of such Option); provided further that any Option outstanding immediately prior to the Effective Time (whether vested or unvested) with an exercise price per Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration.

At the Effective Time, each holder of a then-outstanding restricted share of the Issuer (a “Restricted Share”) that is vested immediately prior to the Effective Time will be entitled to receive an amount in cash, without interest, equal to the Merger Consideration. Each holder of a Restricted Share that is unvested immediately prior to the Effective Time will be entitled to receive an amount in cash, without interest, equal to the Merger Consideration within 15 business days after the date such Restricted Share would have vested (subject to the vesting conditions of such Restricted Share).

At the Effective Time, each holder of a then-outstanding restricted stock unit of the Issuer (a “RSU”) will be entitled to receive an amount in cash, without interest, equal to the product of the Merger Consideration and the number of Shares underlying such RSU within 15 business days after such RSU would have vested (subject to the vesting conditions of such RSU).

At the Effective Time, each holder of a then-outstanding performance share unit of the Issuer (a “PSU”) will be entitled to receive an amount in cash, without interest, equal to the product of (i) the Merger Consideration multiplied by (ii) the greater of (a) the target number of Shares set forth in such PSU and, (b) if the performance period applicable to such PSU has ended on or prior to the closing of the Merger, the number of Shares that would have vested based on actual achievement during the applicable performance period, within 15 business days after such PSU would have vested (subject to the vesting conditions of such PSU).

The Merger Agreement contains customary representations, warranties and covenants of the Issuer, including covenants to conduct its business in the ordinary course during the interim period between the execution of the Merger Agreement and consummation of the Merger and not to engage in certain types of transactions during the interim period. Each of Parent, Merger Sub and the Issuer agree to use such party’s respective reasonable best efforts to take all actions necessary to ensure that the conditions to closing are satisfied and to consummate the transactions contemplated by the Merger Agreement as promptly as practicable.

Stockholders of the Issuer will be asked to vote on the adoption of the Merger Agreement at a special meeting that will be held on a date to be announced. Consummation of the Merger is subject to a number of conditions precedent, including, among others: (i) the


CUSIP No. 032359309		13D		Page 7 of 10 Pages

adoption of the Merger Agreement by (x) the holders of at least a majority of all outstanding Shares, and (y) the holders of at least a majority of all outstanding Shares held by such holders (excluding Parent and its affiliates, the Rollover Stockholders (as defined below) and certain directors and officers of the Company), in each case, entitled to vote on such matter at a meeting of stockholders duly called and held for such purpose; (ii) the absence of any order enjoining the consummation of, or prohibiting, the Merger; and (iii) the termination or expiration of any waiting period applicable to the Merger under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended. Neither the receipt of the Equity Financing (as defined below) nor any debt financing Parent may seek under the Merger Agreement are conditions to any of the obligations of Parent or Merger Sub under the Merger Agreement, nor are they a condition to the closing of the Merger. The Issuer and the Parent are permitted to terminate the Merger Agreement in certain customary circumstances and the Parent is permitted to terminate the Merger Agreement if the Issuer has not filed its Annual Report on 10-K for the fiscal year ended December 31, 2017 by June 30, 2018 or any subsidiary of the Issuer that conducts the business of insurance as listed on a schedule to the Merger Agreement does not have a financial strength rating from A.M. Best of at least “A” and Parent provides written notice of termination no later than the 45^th day following such downgrade, suspension, withdrawal or retraction.

If the Merger is effected, it would result in certain of the events described in paragraphs (a) to (j) of the instructions to Item 4 of Schedule 13D, including, without limitation, the acquisition of additional securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, the delisting of the Shares from the Nasdaq Stock Market, the Shares becoming eligible for termination from registration pursuant to Section 12(b) of the Act and as otherwise described herein.

Equity Commitment Letters

On March 1, 2018, Parent received a binding commitment letter (the “Trident Equity Commitment Letter”) from an investment fund affiliated with Stone Point Capital LLC (the “Trident Fund”), and a binding commitment letter (the “K-Z Equity Commitment Letter” and, together with the Trident Equity Commitment Letter, the “Commitment Letters”) from an entity controlled by the Group (“K-Z LLC”), pursuant to which, and subject to the conditions set forth therein, the Trident Fund and K-Z LLC committed to purchase equity in Parent in an aggregate amount up to $800,000,000 and $400,000,000, respectively (the “Equity Financing”). Each Commitment Letter is subject to customary conditions, including the concurrent funding of the other Commitment Letter and the Rollover Agreement. The net proceeds of the Equity Financing will provide Parent with cash sufficient to (i) pay the Merger Consideration and all other amounts required to be paid or repaid by Parent or its affiliates at the closing of the Merger in connection with the Merger Agreement, (ii) pay any and all fees and expenses required to be paid by Parent in connection with the transactions contemplated by the Merger Agreement and the Equity Financing and (iii) satisfy all of the other payment obligations of Parent and the Issuer contemplated by the Merger Agreement and payable at the closing of the Merger. Under the terms of its respective Equity Commitment Letter, each of Trident Fund and K-Z LLC have also agreed to purchase equity with an aggregate purchase price not to exceed $23,750,000 (the “Maximum Damages Commitment Amount”) in Parent solely to allow Parent or Merger Sub to pay certain damages to the Issuer pursuant to the Merger Agreement in certain circumstances set forth in such Equity Commitment Letter. In the event that such damages become payable, in no


CUSIP No. 032359309		13D		Page 8 of 10 Pages

event shall the Trident Fund or K-Z LLC be obligated to fund or otherwise pay to Parent or any other person any amount in excess of the Maximum Damages Commitment Amount.

The Group and certain funds affiliated with the Trident Fund have provided back-to-back commitment letters to K-Z LLC and the Trident Fund, respectively, in support of the Commitment Letters (the “Back-to-Back Commitment Letters”).

Rollover Agreement

On March 1, 2018, Parent entered into a rollover agreement (the “Rollover Agreement”), with each of the members of the Group, pursuant to which the Group and its affiliates and certain related parties (the “Rollover Stockholders”) have committed, subject to the conditions therein, to transfer, contribute and deliver to the Parent immediately prior to the Effective Time Shares owned by them (the “Rollover Shares”) in exchange for limited partnership interests of Parent. For the purpose of such transfer and exchange, each Share owned by the Group will be valued at the Merger Consideration.

Interim Investors Agreement

On March 1, 2018, Parent entered into an Interim Investors Agreement (the “Interim Investors Agreement”) with Merger Sub, K-Z LLC, the Trident Fund and, for certain limited purposes set forth therein, the Group, which superseded the Joint Bidding Agreement and will govern certain actions of the parties with respect to the Merger Agreement, the Commitment Letters, the Back-to-Back Commitment Letters, the Rollover Agreement and the transactions contemplated by the foregoing. Pursuant to the Interim Investors Agreement, all actions of Parent and Merger Sub shall require the prior approval of K-Z LLC and Trident, and such parties may cause Parent and Merger Sub to take any action or refrain from taking any such actions or decisions, subject to certain exceptions. The Interim Investors Agreement also provides for the sharing of the termination fee that may become payable by the Issuer to Parent.

The foregoing summaries of the Merger Agreement, the Merger, the Commitment Letters, the Back-to-Back Commitment Letters, the Rollover Agreement and the Interim Investors Agreement do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Merger Agreement, the Trident Equity Commitment Letter, the K-Z Equity Commitment Letter, the Back-to-Back Commitment Letters, the Rollover Agreement and the Interim Investors Agreement copies of which are attached hereto as Exhibit 99.6, Exhibit 99.7, Exhibit 99.8, Exhibit 99.9, Exhibit 99.10, Exhibit 99.11 and Exhibit 99.12 respectively, and the terms of which are incorporated herein by reference.

Other than as set forth above, the Group does not have any present plans or proposals that relate to, or that would result in, any of the events described in paragraphs (a) to (j) of the instructions to Item 4 of Schedule 13D. The members of the Group will, however, continue to review their investments in the Issuer and, depending upon market conditions and other factors that the members of the Group deem material, the members of the Group reserve the right to formulate plans or make proposals, and to take any actions with respect to their investments in the Issuer, including any or all of the actions described in paragraphs (a) to (j) of the instructions to Item 4 of Schedule 13D.”


CUSIP No. 032359309		13D		Page 9 of 10 Pages

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

The information in Items 3 and 4 is incorporated by reference in its entirety into this Item 6.

Item 7.

Material to Be Filed as Exhibits.


99.6		Agreement and Plan of Merger, dated as of March 1, 2018, by and among Evergreen Parent, L.P., Evergreen Merger Sub, Inc. and AmTrust Financial Services, Inc. (incorporated by reference to Exhibit 2.1 to the Issuer’s Current Report on Form 8-K filed on March 1, 2018).
99.7		Trident Equity Commitment Letter, dated March 1, 2018, by and among Trident Pine Acquisition LP and Evergreen Parent, L.P.
99.8		K-Z Equity Commitment Letter, dated March 1, 2018, by and among K-Z Evergreen, LLC and Evergreen Parent, L.P.
99.9		Rollover Agreement, dated March 1, 2018, by and between certain stockholders of AmTrust Financial Services, Inc. and Evergreen Parent, L.P.
99.10		Interim Investors Agreement, dated March 1, 2018, by and among Evergreen Parent, L.P., Evergreen Merger Sub, Inc., K-Z Evergreen, LLC, Trident Pine Acquisition LP and, for certain limited purposes set forth therein, the Group.
99.11		Back-to-Back Commitment Letter, dated March 1, 2018, by and among Barry D. Zyskind, George Karfunkel, Leah Karfunkel and K-Z Evergreen, LLC.
99.12		Back-to-Back Commitment Letter, dated March 1, 2018, by and among Trident Pine Acquisition LP, Trident VII, L.P., Trident VII Parallel Fund, L.P., Trident VII DE Parallel Fund, L.P. and Trident VII Professionals Fund, L.P.


CUSIP No. 032359309		13D		Page 10 of 10 Pages

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

March 1, 2018

/s/ Barry D. Zyskind

Barry D. Zyskind

/s/ George Karfunkel

George Karfunkel

/s/ Leah Karfunkel

Leah Karfunkel

EX-99.7 2 d537102dex997.htm EX-99.7 EX-99.7

Exhibit 99.7

Trident Pine Acquisition LP

c/o Stone Point Capital LLC

20 Horseneck Lane

Greenwich, CT 06830

March 1, 2018

Evergreen Parent, L.P.

c/o AmTrust Financial Services, Inc.

59 Maiden Lane, 43rd Floor

New York, NY 10038

Ladies and Gentlemen:

Reference is made to the Agreement and Plan of Merger, dated as of March 1, 2018 (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Merger Agreement”), by and among Evergreen Parent, L.P., a Delaware limited partnership (“Parent”), Evergreen Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and AmTrust Financial Services, Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Merger Agreement.

Concurrently with the execution of this commitment letter, each of Trident VII, L.P., Trident VII Parallel Fund, L.P., Trident VII DE Parallel Fund, L.P. and Trident VII Professionals Fund, L.P. (collectively, the “Trident VII Funds”) have entered into a letter agreement (the “Trident VII Commitment Letter”) committing, subject to the terms and conditions set forth therein, to fund an aggregate amount equal to up to the amount of the Closing Commitment or Damages Commitment, as applicable, to Trident Pine Acquisition LP, ( “Trident Pine”).

Section 1. Commitments.

(a) Closing Commitment. Trident Pine hereby commits, subject to the terms and conditions set forth in Section 3(a) hereof, that, immediately prior to the Closing, it shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price not to exceed $800,000,000 solely to (A) pay a portion of the aggregate Merger Consideration and all other amounts required to be paid or repaid by Parent or its Affiliates on the Closing Date in connection with the transactions contemplated by the Merger Agreement, (B) pay any and all fees and expenses required to be paid by Parent at the Closing in and (B) satisfy all of the other payment obligations of Parent contemplated by the Merger Agreement and payable on the Closing Date (the “Closing Commitment”). Trident Pine may effect the purchase of equity securities of Parent directly or indirectly through one or more affiliated entities. The amount of the Closing Commitment to be funded under this commitment letter immediately prior to the Closing may be reduced by Trident Pine,

upon the prior written consent of the Company (not to be unreasonably, withheld or delayed; provided that it shall be unreasonably to withhold consent where sufficient aggregate funds are committed from one or more other Persons), in an amount specified by Parent solely to the extent that Parent does not require the full amount of the Closing Commitment in order to fund the payment of the obligations referenced in the first sentence of this Section 1(a).

(b) Damages Commitment. Trident Pine hereby commits, subject to the terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and the aggregate amount of such Damages, the “Damage Amount”), Trident Pine hereby commits to Parent that it shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price not to exceed $23,750,000 (the “Maximum Damage Commitment Amount”) solely to fund a portion of the aggregate Damage Amount to be paid by Parent or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, in no event shall Trident Pine be obligated to fund or otherwise pay to Parent or any other Person any amount in excess of the Maximum Damages Commitment Amount. If the Damage Amount is less than the aggregate Damages Commitment hereunder and under the K-Z LLC Equity Commitment Letter, then the Damages Commitment shall be reduced on a pro rata basis with the Damages Commitment under the K-Z LLC Equity Commitment Letter by such difference.

(c) Interaction of Commitments. In no event shall Trident Pine be required to fund both the Closing Commitment and the Damages Commitment.

(d) Covenants of Trident Pine.

(i) In accordance with applicable Law, Trident Pine shall use its reasonable best efforts (i) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this commitment letter and the Merger Agreement as promptly as practicable and (ii) to make or obtain, as applicable (and to cooperate with the other Parties to make or obtain, as applicable), any consents, approvals, authorizations, waivers, permits, filings and notifications of any Governmental Entity necessary, proper or advisable to be made or obtained, as applicable, in connection with the transactions contemplated by this commitment letter and the Merger Agreement. Trident Pine agrees that it shall use its reasonable best efforts cooperate with Parent with respect to the obtaining of all consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this commitment letter. Notwithstanding anything to the contrary in this commitment, with respect to the Required Regulatory Approvals, Trident Pine shall not be obligated to take

or refrain from taking, or to agree to it or its Affiliates taking or refraining from taking, any action, or to permitting or suffering to exist any restriction, condition, limitation or requirement which, individually or together with all other such actions, restrictions, conditions, limitations or requirements imposed by with respect to the Required Regulatory Approvals would or would reasonably be expected to result in a Burdensome Condition.

(ii) Trident Pine agrees to promptly provide to Parent any information about Trident Pine or its Affiliates that Parent or the Company reasonably determines upon the advice of counsel is required to be included in the Proxy Statement, Schedule 13E-3 or any other any other filing or notification with any Governmental Authorities in connection with the Merger and the transactions contemplated by the Merger Agreement, this commitment letter and the Rollover Agreement.

Section 2. Use of Proceeds. The proceeds of the Closing Commitment will be used by Parent solely for the purposes set forth in Section 1(a) hereof. The proceeds of the Damages Commitment will be used by Parent solely for the purpose of paying all or a portion of the Damage Amount to be paid by Parent or Merger Sub.

Section 3. Conditions.

(a) Closing Commitment Conditions. Trident Pine’s obligation to fund the Closing Commitment is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by Company; (B) the continued satisfaction in full or waiver by the Parent of all conditions in Sections 6.01 and 6.03 of the Merger Agreement upon the date the Closing is required to have occurred pursuant to Section 2.03 of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing but provided such conditions are satisfied at the Closing or waived by Parent at the Closing); (C) the substantially concurrent funding or consummation of the transactions contemplated pursuant to (i) the commitment letter from K-Z Evergreen, LLC (“K-Z LLC”) to Parent and back-to-back commitment letters from each of Barry Zyskind, George Karfunkel and Leah Karfunkel to K-Z Evergreen, LLC (collectively, the “K-Z LLC Equity Commitment Letters” and (ii) the Rollover Agreement; provided, that the failure of the condition in this clause (C) to be satisfied shall not limit Parent’s or the Company’s ability to seek to enforce the obligations of Trident Pine hereunder in accordance with the terms hereof if (x) Parent, or the Company, is also concurrently seeking enforcement of the K-Z LLC Equity Commitment Letters to the extent not funded (and the contemporaneous funding thereof) and the Rollover Agreement (and the contemporaneous contribution of Company common stock to Parent thereunder) or (y) each of K-Z LLC and the Rollover Stockholders has satisfied, or is prepared to satisfy, its obligations under the K-Z LLC Equity Commitment Letter or the Rollover Agreement, as applicable; and (D) the contemporaneous consummation of the Closing pursuant to Section 2.03 of the Merger Agreement or a final, non-appealable and binding order or judgement awarding specific performance to cause Parent to consummate the Closing pursuant to Sections 8.06(c) and 8.06(d) of the Merger Agreement.

(b) Damages Commitment Conditions. Trident Pine’s obligation to fund the Damages Commitment is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by the Company and (B) the Damages Amount being (i) judicially determined by a final, non-appealable and binding judgment of a court of competent jurisdiction or (ii) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company.

Section 4. Sponsor Related Parties. The Company’s right to seek specific performance under this commitment letter pursuant to Sections 5 and 11 hereof (subject to the terms hereof) are intended to be the sole and exclusive direct or indirect remedies available to the Company and any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of the Company against (a) Trident Pine, (b) any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of Trident Pine (including the Trident VII Funds (provided, for clarity, nothing herein shall affect the Company’s rights against the Trident VII Funds pursuant to the Trident VII Commitment Letter), other than Parent and Merger Sub, or (c) any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, or Affiliate of any of the persons referred to in clause (b) above, other than Parent and Merger Sub (the persons referred to in clauses (a) through (c) above, each a “Sponsor Related Party”), in respect of any liabilities or obligations arising under, or in connection with, this commitment letter or the Merger Agreement and the transactions contemplated hereby and thereby, including in the event the Parent or the Merger Sub breaches their respective obligations under the Merger Agreement. Under no circumstances shall any Sponsor Related Party be liable for special, incidental, consequential, exemplary or punitive damages under or in connection with the Merger Agreement, this commitment letter or the transactions contemplated or otherwise incidental thereby or hereby. Sponsor Related Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

Section 5. Termination. This commitment letter and the obligation of Trident Pine to fund the Closing Commitment or Damages Commitment will terminate automatically and immediately upon the earliest to occur of (a) the consummation of the Closing, (b) the valid termination of the Merger Agreement in accordance with its terms unless (i) the Company shall have terminated the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement (a “Specified Termination”) and (ii) the Company shall have notified Parent in writing within fifteen (15) Business Days following the effectiveness of the Specified Termination that it intends to initiate legal proceedings for Damages (in which case the obligation of Trident Pine to fund the Closing Commitment shall terminate but the obligation of Trident Pine to fund the Damages Commitment shall continue subject to the proviso below) and (c) except as expressly contemplated by Section 11 hereof, the Company or any of its Affiliates, directly or indirectly, asserting a claim or commencing an Action (in each case, whether in tort, contract or otherwise) against Trident Pine, the Trident VII Funds or any other Sponsor Related Party (each a “Non-Recourse Party”) in each case with respect to this commitment letter, the Merger Agreement or any of the transactions contemplated hereby or thereby (including in respect of any oral representations made or alleged to be made in

connection herewith or therewith); provided, that in the case of clause (ii) this commitment letter will terminate automatically and immediately unless the Company shall have initiated legal proceedings against Parent within sixty (60) days following the effectiveness of the Specified Termination, in which case this commitment letter and the obligation of Trident Pine to fund the Damages Commitment will terminate automatically and immediately upon the earlier of (w) the execution of a binding settlement between Parent and the Company, (x) delivery of final, non-appealable and binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub, (y) delivery of final, non-appealable and binding judgment of a court of competent jurisdiction determining that Parent and Merger Sub have no liability to the Company under the Merger Agreement; and (z) the funding by Trident Pine of an amount to Parent equal to the Maximum Damage Commitment Amount, in the case of each of clauses (w) and (x) subject to the payment by Parent of any Damage Amount contemplated by such settlement or final judgment. Notwithstanding anything that may be expressed or implied in this commitment letter or any document or instrument delivered in connection or contemporaneously herewith, in no event shall Trident Pine have any obligation to make any purchase, payment or contribution hereunder at any time after the full Damage Amount contemplated by clause (w) or (x) above has been paid in full or Trident Pine has fully funded to Parent an amount equal to the Maximum Damage Commitment Amount.

Section 6. Representations and Warranties.

Trident Pine represents and warrants to Parent that:

(a) Trident Pine is a limited partnership duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;

(b) Trident Pine has all requisite power and authority and has taken all action necessary in order to execute and deliver, and perform its obligations under, this commitment letter, and to consummate the transactions contemplated by this commitment letter; and no other approval is required for Trident Pine to fulfill its obligations under the Closing Commitment or the Damages Commitment;

(c) this commitment letter has been duly and validly executed, and assuming the due authorization, execution and delivery of this commitment letter by Parent, constitutes the valid and binding obligation of Trident Pine, enforceable against it in accordance with its terms, except as may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally or by general equitable principles;

(d) other than any filing with the SEC as required by Sections 13(d) or 16(a) of the Exchange Act , no consent, approval, qualification, order or authorization of, or filing with, any Governmental Entity is required in connection with the valid execution, delivery or performance of this commitment letter by Trident Pine;

(e) the execution, delivery and performance by Trident Pine of this commitment letter does not and will not (i) violate the limited partnership agreement and any other organizational documents of Trident Pine, (ii) subject to the receipt of consents and approvals of Governmental Entities contemplated by the Merger Agreement, violate any applicable law or order to which Trident Pine or any of its assets are subject or (iii) require any consent or other action by any Person under, constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in any breach of or give rise to any right of termination, cancellation, amendment or acceleration of, any right or obligation under any Contract or otherwise of Trident Pine;

(f) Trident Pine has, and will have at the Closing, access pursuant to the Trident VII Commitment Letter to the funds necessary to pay and perform its obligations under this commitment letter;

(g) Trident Pine has the financial capacity to pay and perform its obligations under this letter agreement (subject to the terms and conditions hereof) and all funds necessary for Trident Pine to fulfill its obligations under this commitment letter shall be available to Trident Pine for so long as this commitment letter shall remain in effect in accordance with the terms hereof;

(h) there are no conditions to Trident Pine’s Closing Commitment or Damages Commitment except as expressly set forth herein;

(i) the amount that Trident Pine will fund under the Closing Commitment and the Damages Commitment is an amount less than the maximum amount Trident Pine is permitted (by Contract, organizational documents or otherwise) to invest in any single portfolio company investment, or permission to make such investment has been obtained by Trident Pine in accordance with any such Contract, organizational documents or other requirement; and

(j) none of the information to be supplied by or on behalf of Trident Pine for inclusion in the Proxy Statement or the Schedule 13E-3 will (i) in the case of the Schedule 13E-3 (or any amendment thereof or supplement thereto), as of the date of filing and as of the date of the Company Stockholders’ Meeting, and (ii) in the case of the Proxy Statement (or any amendment thereof or supplement thereto), as of the date of filing or mailing to the Company’s stockholders and as of the date of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Section 7. Applicable Law; Jurisdiction.

exclusive jurisdiction of such court (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.

(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY ACTION ARISING OUT OF OR RELATING TO THIS COMMITMENT LETTER 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 WITH RESPECT TO ANY SUCH ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS COMMITMENT LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS COMMITMENT LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 7(b).

Section 8. Amendment; Entire Agreement. This commitment letter may be amended only by an agreement in writing executed by Parent and Trident Pine and with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). This commitment letter, together with the Trident VII Commitment Letter, the K-Z LLC Commitment Letter, the Rollover Agreement and the Merger Agreement, contain the entire understanding of the Parties with respect to the subject matter hereof, and supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, oral or written, respecting such subject matter.

Section 9. Assignment. The Closing Commitment and Damages Commitment evidenced by this commitment letter shall not be assignable by Parent without Trident Pine’s and the Company’s prior written consent, and the granting of such consent in a given instance shall be solely in the discretion of Trident Pine and the Company (with the Company’s consent not to be unreasonably withheld, conditioned or delayed) and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Except as expressly permitted in Section 1 hereof, no transfer of any rights or obligations hereunder by Trident Pine shall be permitted without the consent of Parent and the Company. In addition, the rights of Parent may not be assigned without Trident Pine’s and the Company’s prior written consent (with the Company’s consent not to be unreasonably withheld, conditioned or delayed). Any purported transfer or assignment of any portion of a party’s rights or obligations hereunder in contravention of this Section 9 shall be null and void ab initio.

Section 10. Counterparts. This commitment letter may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which will be considered one and the same agreement.

Section 11. Parties in Interest; Third Party Beneficiaries. This commitment letter is for the sole benefit of and shall be binding upon Parent and Trident Pine and their respective successors and permitted assigns. Nothing in this commitment letter, express or implied, is intended to or shall confer upon any person other than Parent and Trident Pine any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this commitment letter, except as provided in Section 4 hereof with respect to Sponsor Related Parties, in Section 12 hereof with respect to Non-Recourse Parties, and that the Company shall be an express third-party beneficiary of this commitment letter and shall be entitled to seek a decree or order for specific performance to cause Parent to draw down the full proceeds of the Closing Commitment or Damages Commitment, as applicable, and for Trident Pine to fund the Closing Commitment or Damages Commitment, as applicable, and to specifically enforce the other provisions of this commitment letter, in each case, subject to the terms and conditions hereof, but only in the event that the Company would be able to obtain specific performance of the Parent’s obligation to enforce the draw down of the Closing Commitment or Damages Commitment pursuant to, and in accordance with, Section 8.06(d) of the Merger Agreement. For the avoidance of doubt, the Closing Commitment or the Damages Commitment, as applicable, will be funded to Parent and under no circumstances will the Company be entitled to or seek that Trident Pine fund, or cause the funding, of the Closing Commitment or the Damages Commitment, as applicable, directly to the Company. None of Parent’s creditors (other than the Company to the extent that (a) the Company is a creditor of the Parent and (b) the Company is a third party beneficiary of this commitment letter) shall have any right to enforce this commitment letter or to cause Parent to enforce this commitment letter and none of the Company’s equity holders or creditors shall have any right to enforce or cause Parent or Trident Pine to enforce this commitment letter.

exclusive remedy of Parent, Merger Sub and all of their respective Affiliates against Trident Pine, the Trident VII Funds (other than pursuant to the Trident VII Commitment Letter) and the other Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the Transactions. Notwithstanding the Company’s rights as third party beneficiary hereunder as contemplated by Section 11 hereof, the Company is subject to this Section 12 hereof to the same extent as Parent and Merger Sub. Non-Recourse Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

Section 13. Confidentiality. This commitment letter shall be treated as confidential and is being provided to Parent solely in connection with the Transactions. This commitment letter may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of Trident Pine and Parent. The foregoing notwithstanding, this commitment letter shall be provided to the Company, and the Company and the undersigned may disclose the existence of this commitment letter (a) to its Affiliates and representatives, (b) to the extent required by applicable law, requested by a Government Entity or to the extent required in connection with any regulatory filings relating to the Merger Agreement or the transactions contemplated thereby and (c) in connection with any Action relating to the Merger Agreement or the transactions contemplated thereby.

[Remainder of this page left intentionally blank]

Please countersign a copy of this commitment letter and return it to Trident Pine to confirm your agreement with the terms set forth in this commitment letter.


Sincerely,

Trident Pine Acquisition LP
By: Stone Point GP Ltd., its General Partner
20 Horseneck Lane
Greenwich, CT 06830

By:		/s/ David Wermuth
Name:		David Wermuth
Title:		Secretary; Vice President


ACCEPTED:

Evergreen Parent, L.P.
c/o AmTrust Financial Services, Inc.
59 Maiden Lane, 43rd Floor
New York, NY 10038

By:		/s/ Barry D. Zyskind
Name:		Barry D. Zyskind
Title:		Manager

EX-99.8 3 d537102dex998.htm EX-99.8 EX-99.8

Exhibit 99.8

K-Z EVERGREEN, LLC

c/o AmTrust Financial Services, Inc.

59 Maiden Lane, 43rd Floor

New York, NY 10038

March 1, 2018

Evergreen Parent, L.P.

c/o AmTrust Financial Services, Inc.

59 Maiden Lane, 43rd Floor

New York, NY 10038

Ladies and Gentlemen:

Concurrently with the execution of this commitment letter, each of Barry Zyskind, George Karfunkel and Leah Karfunkel (collectively, the “Family Stockholders”) have entered into a letter agreement (the “Family Commitment Letter”) committing, subject to the terms and conditions set forth therein, to fund an aggregate amount equal to up to the amount of the Closing Commitment or Damages Commitment, as applicable, to K-Z Evergreen, LLC, (“K-Z Evergreen”).

Section 1. Commitments. Closing Commitment. K-Z Evergreen hereby commits, subject to the terms and conditions set forth in Section 3(a) hereof, that, immediately prior to the Closing, it shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price not to exceed $400,000,000 solely to (A) pay a portion of the aggregate Merger Consideration and all other amounts required to be paid or repaid by Parent or its Affiliates on the Closing Date in connection with the transactions contemplated by the Merger Agreement, (B) pay any and all fees and expenses required to be paid by Parent at the Closing and (C) satisfy all of the other payment obligations of Parent contemplated by the Merger Agreement and payable on the Closing Date (the “Closing Commitment”). K-Z Evergreen may effect the purchase of equity securities of Parent directly or indirectly through one or more affiliated entities. The amount of the Closing Commitment to be funded under this commitment letter immediately prior to the Closing may be reduced by K-Z Evergreen, upon the prior written consent of the Company (not to be unreasonably, withheld or delayed; provided that it shall be unreasonably to withhold consent where sufficient aggregate funds are committed from

one or more other Persons), in an amount specified by Parent solely to the extent that Parent does not require the full amount of the Closing Commitment in order to fund the payment of the obligations referenced in the first sentence of this Section 1(a).

(b) Damages Commitment. K-Z Evergreen hereby commits, subject to the terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and the aggregate amount of such Damages, the “Damage Amount”), K-Z Evergreen hereby commits to Parent that it shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price not to exceed $23,750,000 (the “Maximum Damage Commitment Amount”) solely to fund a portion of the aggregate Damage Amount to be paid by Parent or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, in no event shall K-Z Evergreen be obligated to fund or otherwise pay to Parent or any other Person any amount in excess of the Maximum Damages Commitment Amount. If the Damage Amount is less than the aggregate Damages Commitment hereunder and under the Trident Equity Commitment Letter, then the Damages Commitment shall be reduced on a pro rata basis with the Damages Commitment under the Trident Equity Commitment Letter by such difference.

(c) Interaction of Commitments. In no event shall K-Z Evergreen be required to fund both the Closing Commitment and the Damages Commitment.

(d) Covenants of K-Z Evergreen.

(i) In accordance with applicable Law, K-Z Evergreen shall use its reasonable best efforts (i) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this commitment letter and the Merger Agreement as promptly as practicable and (ii) to make or obtain, as applicable (and to cooperate with the other Parties to make or obtain, as applicable), any consents, approvals, authorizations, waivers, permits, filings and notifications of any Governmental Entity necessary, proper or advisable to be made or obtained, as applicable, in connection with the transactions contemplated by this commitment letter and the Merger Agreement. K-Z Evergreen agrees that it shall use its reasonable best efforts to cooperate with Parent with respect to the obtaining of all consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this commitment letter. Notwithstanding anything to the contrary in this commitment letter, with respect to the Required Regulatory Approvals, K-Z Evergreen shall not be obligated to take or refrain from taking, or to agree to it or its Affiliates taking or refraining from taking, any action, or to permitting or suffering to exist any restriction, condition, limitation or requirement which, individually or together with all other such

actions, restrictions, conditions, limitations or requirements imposed by with respect to the Required Regulatory Approvals would or would reasonably be expected to result in a Burdensome Condition.

(ii) K-Z Evergreen agrees to promptly provide to Parent any information about K-Z Evergreen or its Affiliates that Parent or the Company reasonably determines upon the advice of counsel is required to be included in the Proxy Statement, Schedule 13E-3 or any other any other filing or notification with any Governmental Authorities in connection with the Merger and the transactions contemplated by the Merger Agreement, this commitment letter and the Rollover Agreement.

Section 3. Conditions.

(a) Closing Commitment Conditions. K-Z Evergreen’s obligation to fund the Closing Commitment is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by Company; (B) the continued satisfaction in full or waiver by the Parent of all conditions in Sections 6.01 and 6.03 of the Merger Agreement upon the date the Closing is required to have occurred pursuant to Section 2.03 of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing but provided such conditions are satisfied at the Closing or waived by Parent at the Closing); (C) the substantially concurrent funding or consummation of the transactions contemplated pursuant to (i) the Trident Equity Commitment Letter and (ii) the Rollover Agreement; provided, that the failure of the condition in this clause (C) to be satisfied shall not limit Parent’s or the Company’s ability to seek to enforce the obligations of K-Z Evergreen hereunder in accordance with the terms hereof if (x) Parent, or the Company, is also concurrently seeking enforcement of the Trident Equity Commitment Letter to the extent not funded (and the contemporaneous funding thereof) and the Rollover Agreement (and the contemporaneous contribution of Company common stock to Parent thereunder) or (y) each of Trident Pine and the Rollover Stockholders has satisfied, or is prepared to satisfy, its obligations under the Trident Equity Commitment Letter or the Rollover Agreement, as applicable; and (D) the contemporaneous consummation of the Closing pursuant to Section 2.03 of the Merger Agreement or a final, non-appealable and binding order or judgement awarding specific performance to cause Parent to consummate the Closing pursuant to Sections 8.06(c) and 8.06(d) of the Merger Agreement.

(b) Damages Commitment Conditions. K-Z Evergreen’s obligation to fund the Damages Commitment is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by the Company and (B) the Damages Amount being (i) judicially determined by a final, non-appealable and binding judgment of a court of competent jurisdiction or (ii) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company.

Section 4. Sponsor Related Parties. The Company’s right to seek specific performance under this commitment letter pursuant to Sections 5 and 11 hereof (subject to the terms hereof) are intended to be the sole and exclusive direct or indirect remedies available to the Company and any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of the Company against (a) K-Z Evergreen, (b) any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of K-Z Evergreen (including the Family Stockholders (provided, for clarity, nothing herein shall affect the Company’s rights against the Family Stockholders pursuant to the Family Commitment Letter), other than Parent and Merger Sub, or (c) any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, or Affiliate of any of the persons referred to in clause (b) above, other than Parent and Merger Sub (the persons referred to in clauses (a) through (c) above, each a “Sponsor Related Party”), in respect of any liabilities or obligations arising under, or in connection with, this commitment letter or the Merger Agreement and the transactions contemplated hereby and thereby, including in the event the Parent or the Merger Sub breaches their respective obligations under the Merger Agreement. Under no circumstances shall any Sponsor Related Party be liable for special, incidental, consequential, exemplary or punitive damages under or in connection with the Merger Agreement, this commitment letter or the transactions contemplated or otherwise incidental thereby or hereby. Sponsor Related Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

Section 5. Termination. This commitment letter and the obligation of K-Z Evergreen to fund the Closing Commitment or Damages Commitment will terminate automatically and immediately upon the earliest to occur of (a) the consummation of the Closing, (b) the valid termination of the Merger Agreement in accordance with its terms unless (i) the Company shall have terminated the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement (a “Specified Termination”) and (ii) the Company shall have notified Parent in writing within fifteen (15) Business Days following the effectiveness of the Specified Termination that it intends to initiate legal proceedings for Damages (in which case the obligation of K-Z Evergreen to fund the Closing Commitment shall terminate but the obligation of K-Z Evergreen to fund the Damages Commitment shall continue subject to the proviso below) and (c) except as expressly contemplated by Section 11 hereof, the Company or any of its Affiliates, directly or indirectly, asserting a claim or commencing an Action (in each case, whether in tort, contract or otherwise) against K-Z Evergreen, the Family Stockholders or any other Sponsor Related Party (each a “Non-Recourse Party”) in each case with respect to this commitment letter, the Merger Agreement or any of the transactions contemplated hereby or thereby (including in respect of any oral representations made or alleged to be made in connection herewith or therewith); provided, that in the case of clause (ii) this commitment letter will terminate automatically and immediately unless the Company shall have initiated legal proceedings against Parent within sixty (60) days following the effectiveness of the Specified Termination, in which case this commitment letter and the obligation of K-Z Evergreen to fund the Damages Commitment will terminate automatically and immediately upon the earlier of (w) the execution of a binding settlement between Parent and the Company, (x) delivery of final, non-appealable and

binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub, (y) delivery of final, non-appealable and binding judgment of a court of competent jurisdiction determining that Parent and Merger Sub have no liability to the Company under the Merger Agreement; and (z) the funding by K-Z Evergreen of an amount to Parent equal to the Maximum Damage Commitment Amount, in the case of each of clauses (w) and (x) subject to the payment by Parent of any Damage Amount contemplated by such settlement or final judgment. Notwithstanding anything that may be expressed or implied in this commitment letter or any document or instrument delivered in connection or contemporaneously herewith, in no event shall K-Z Evergreen have any obligation to make any purchase, payment or contribution hereunder at any time after the full Damage Amount contemplated by clause (w) or (x) above has been paid in full or K-Z Evergreen has fully funded to Parent an amount equal to the Maximum Damage Commitment Amount.

Section 6. Representations and Warranties.

K-Z Evergreen represents and warrants to Parent that:

(a) K-Z Evergreen is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;

(b) K-Z Evergreen has all requisite power and authority and has taken all action necessary in order to execute and deliver, and perform its obligations under, this commitment letter, and to consummate the transactions contemplated by this commitment letter; and no other approval is required for K-Z Evergreen to fulfill its obligations under the Closing Commitment or the Damages Commitment;

(c) this commitment letter has been duly and validly executed, and assuming the due authorization, execution and delivery of this commitment letter by Parent, constitutes the valid and binding obligation of K-Z Evergreen, enforceable against it in accordance with its terms, except as may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally or by general equitable principles;

(d) other than any filing with the SEC as required by Sections 13(d) or 16(a) of the Exchange Act, no consent, approval, qualification, order or authorization of, or filing with, any Governmental Entity is required in connection with the valid execution, delivery or performance of this commitment letter by K-Z Evergreen;

(e) the execution, delivery and performance by K-Z Evergreen of this commitment letter does not and will not (i) violate the limited liability company agreement and any other organizational documents of K-Z Evergreen, (ii) subject to the receipt of consents and approvals of Governmental Entities contemplated by the Merger Agreement, violate any applicable law or order to which K-Z Evergreen or any of its assets are subject or (iii) require any consent or other action by any Person under, constitute a default (or an event that with notice or lapse of time or both would become a

default) under, result in any breach of or give rise to any right of termination, cancellation, amendment or acceleration of, any right or obligation under any Contract or otherwise of K-Z Evergreen;

(f) K-Z Evergreen has, and will have at the Closing, access pursuant to the Family Commitment Letter to the funds necessary to pay and perform its obligations under this commitment letter;

(g) K-Z Evergreen has the financial capacity to pay and perform its obligations under this letter agreement (subject to the terms and conditions hereof) and all funds necessary for K-Z Evergreen to fulfill its obligations under this commitment letter shall be available to K-Z Evergreen for so long as this commitment letter shall remain in effect in accordance with the terms hereof;

(h) there are no conditions to K-Z Evergreen’s Closing Commitment or Damages Commitment except as expressly set forth herein;

(i) none of the information to be supplied by or on behalf of K-Z Evergreen for inclusion in the Proxy Statement or the Schedule 13E-3 will (i) in the case of the Schedule 13E-3 (or any amendment thereof or supplement thereto), as of the date of filing and as of the date of the Company Stockholders’ Meeting, and (ii) in the case of the Proxy Statement (or any amendment thereof or supplement thereto), as of the date of filing or mailing to the Company’s stockholders and as of the date of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Section 7. Applicable Law; Jurisdiction.

(a) This commitment letter will be governed by the Delaware Law without regard to the conflicts of law principles thereof. All actions and proceedings arising out of or relating to this commitment letter shall be heard and determined in the Court of Chancery of the State of Delaware, and the Parties hereby irrevocably submit to the exclusive jurisdiction of such court (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.

REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS COMMITMENT LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 7(b).

Section 8. Amendment; Entire Agreement. This commitment letter may be amended only by an agreement in writing executed by Parent and K-Z Evergreen and with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). This commitment letter, together with the Family Commitment Letter, the Trident Equity Commitment Letter, the Rollover Agreement and the Merger Agreement, contain the entire understanding of the Parties with respect to the subject matter hereof, and supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, oral or written, respecting such subject matter.

Section 9. Assignment. The Closing Commitment and Damages Commitment evidenced by this commitment letter shall not be assignable by Parent without K-Z Evergreen’s and the Company’s prior written consent, and the granting of such consent in a given instance shall be solely in the discretion of K-Z Evergreen and the Company (with the Company’s consent not to be unreasonably withheld, conditioned or delayed) and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Except as expressly permitted in Section 1 hereof, no transfer of any rights or obligations hereunder by K-Z Evergreen shall be permitted without the consent of Parent and the Company. In addition, the rights of Parent may not be assigned without K-Z Evergreen’s and the Company’s prior written consent (with the Company’s consent not to be unreasonably withheld, conditioned or delayed). Any purported transfer or assignment of any portion of a party’s rights or obligations hereunder in contravention of this Section 9 shall be null and void ab initio.

Section 11. Parties in Interest; Third Party Beneficiaries. This commitment letter is for the sole benefit of and shall be binding upon Parent and K-Z Evergreen and their respective successors and permitted assigns. Nothing in this commitment letter, express or implied, is intended to or shall confer upon any person other than Parent and K-Z Evergreen any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this commitment letter, except as provided in Section 4 hereof with respect to Sponsor Related Parties, in Section 12 hereof with respect to Non-Recourse Parties, and that the Company shall be an express third-party beneficiary of this commitment letter and shall be entitled to seek a decree or order for specific performance to cause Parent to draw down the full proceeds of the Closing Commitment or Damages Commitment, as applicable, and for K-Z Evergreen to fund the Closing Commitment or Damages

Commitment, as applicable, and to specifically enforce the other provisions of this commitment letter, in each case, subject to the terms and conditions hereof, but only in the event that the Company would be able to obtain specific performance of the Parent’s obligation to enforce the draw down of the Closing Commitment or Damages Commitment pursuant to, and in accordance with, Section 8.06(d) of the Merger Agreement. For the avoidance of doubt, the Closing Commitment or the Damages Commitment, as applicable, will be funded to Parent and under no circumstances will the Company be entitled to or seek that K-Z Evergreen fund, or cause the funding, of the Closing Commitment or the Damages Commitment, as applicable, directly to the Company. None of Parent’s creditors (other than the Company to the extent that (a) the Company is a creditor of the Parent and (b) the Company is a third party beneficiary of this commitment letter) shall have any right to enforce this commitment letter or to cause Parent to enforce this commitment letter and none of the Company’s equity holders or creditors shall have any right to enforce or cause Parent or K-Z Evergreen to enforce this commitment letter.

Section 12. Non-Recourse. Except to the extent expressly set forth in this commitment letter or any document or instrument delivered in connection herewith, and notwithstanding the fact that K-Z Evergreen is a limited liability company, by its acceptance of the benefits of this commitment letter, Parent acknowledges and agrees that (a) all claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this commitment letter, or the negotiation, execution or performance of this commitment letter (including any representation or warranty made in or in connection with this commitment letter or as an inducement to enter into this commitment letter), may be made only against K-Z Evergreen and (b) no Non-Recourse Party shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this commitment letter or for any claim based on, in respect of, or by reason of this commitment letter or its negotiation or execution, and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Recourse Party. Recourse against K-Z Evergreen pursuant to this commitment letter shall be the sole and exclusive remedy of Parent, Merger Sub and all of their respective Affiliates against K-Z Evergreen, the Family Stockholders (other than pursuant to the Family Commitment Letter) and the other Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the Transactions. Notwithstanding the Company’s rights as third party beneficiary hereunder as contemplated by Section 11 hereof, the Company is subject to this Section 12 hereof to the same extent as Parent and Merger Sub. Non-Recourse Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

the Company, and the Company and the undersigned may disclose the existence of this commitment letter (a) to its Affiliates and representatives, (b) to the extent required by applicable law, requested by a Government Entity or to the extent required in connection with any regulatory filings relating to the Merger Agreement or the transactions contemplated thereby and (c) in connection with any Action relating to the Merger Agreement or the transactions contemplated thereby.

[Remainder of this page left intentionally blank]

Please countersign a copy of this commitment letter and return it to K-Z Evergreen to confirm your agreement with the terms set forth in this commitment letter.


Sincerely,

K-Z Evergreen, LLC
c/o The Corporation Trust Company
Corporation Trust Center 1209 Orange Street
Wilmington, DE 19801



By:		/s/ Barry D. Zyskind


Name:		Barry D. Zyskind
Title:		Manager


ACCEPTED:

Evergreen Parent, L.P.
By: Evergreen Parent GP, LLC, its General Partner c/o The Corporation Trust Company
Corporation Trust Center 1209 Orange Street


Wilmington, DE 19801

By:		/s/ Barry D. Zyskind
Name:		Barry D. Zyskind
Title:		Manager

EX-99.9 4 d537102dex999.htm EX-99.9 EX-99.9

Exhibit 99.9

THE SECURITIES SUBSCRIBED FOR BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD UNLESS REGISTERED THEREUNDER OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. TRANSFER OF SUCH SECURITIES IS ALSO RESTRICTED BY THE TERMS OF THIS AGREEMENT.

ROLLOVER AGREEMENT

This ROLLOVER AGREEMENT (this “Agreement”), dated as of March 1, 2018 by and between Evergreen Parent, L.P., a Delaware limited partnership (“Parent”), and each stockholder of AmTrust Financial Services, Inc., a Delaware corporation (the “Company”), listed on Schedule I hereto, as amended from time to time (each a “Rollover Investor,” and collectively with any additional Investor that becomes a party hereto in accordance with the terms of this Agreement, the “Rollover Investors”). Parent and the Rollover Investors are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”

W I T N E S S E T H:

WHEREAS, concurrently with the execution of this Agreement, Parent, Evergreen Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and the Company are entering into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of the date hereof, pursuant to which Merger Sub will merge with and into the Company and the Company will survive such merger as a wholly owned subsidiary of Parent on the terms and conditions set forth in the Merger Agreement (the “Merger”);

WHEREAS, in connection with the Closing and the Rollover (as defined below), each of Trident Pine Acquisition, LP (“Trident Pine”), K-Z Evergreen, LLC, a Delaware limited liability company (the “K-Z LLC,” and together with Trident, the “Equity Investors”) and the Rollover Investors desire to enter into the limited partnership agreement of Parent (the “Parent LP Agreement”);

WHEREAS, as of the date hereof, each Rollover Investor, either alone or together with another Rollover Investor, has the power to cause the voting and disposition of the shares of common stock of the Company, par value $0.01 per share (the “Common Stock”) set forth opposite such Rollover Investor’s name on Schedule I hereto (the “Rollover Shares”);

WHEREAS, each of the Rollover Investors desires to contribute the number of Rollover Shares set forth opposite such Rollover Investor’s name on Schedule I hereto at a price per Rollover Share equal to the Merger Consideration payable at Closing in exchange for the Class A limited partnership interests and common limited partnership interests of Parent (collectively, “LP Interests”); and

WHEREAS, the exchange of Rollover Shares for LP Interests is intended to qualify as a tax-free exchange pursuant to Section 721 of the Internal Revenue Code of 1986, as amended (the “Code”).

NOW, THEREFORE, as a material inducement of Parent to consummate (and to cause Merger Sub to consummate) the Merger in accordance with the terms and conditions of the Merger Agreement and in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS; INTERPRETATION

Section 1.01 Definitions. Capitalized terms used but not herein defined shall have the meanings ascribed to them in the Merger Agreement.

Section 1.02 Interpretations.

(a) The Parties have participated jointly in the negotiation and drafting of this Agreement; consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

(b) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neutral genders of such term.

(d) References herein to a specific Section or Exhibit shall refer, respectively, to Sections or Exhibits of this Agreement.

(e) Wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation.”

(f) References herein to any Law shall be deemed to refer to such Law as amended, modified, codified, reenacted, supplemented or superseded in whole or in part, and as in effect from time to time, and also to all rules and regulations promulgated thereunder unless such reference is to a Law in existence as of a specified date.

(g) References herein to any Contract mean such Contract as amended, supplemented or modified (including any waiver thereto) in accordance with the terms thereof.

(h) References herein to any Person are also to its permitted successors and assigns.

(i) The sections and headings contained in this Agreement are intended solely for convenience and shall not affect the rights of the Parties.

(j) If the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a Business Day, then the time for the giving of such notice or the performance of such action shall be extended to the next succeeding Business Day.

(k) References herein to “as of the date hereof,” “as of the date of this Agreement” or words of similar import shall be deemed to mean “as of immediately prior to the execution and delivery of this Agreement.”

(l) The terms “or,” “any” and “either” shall not be exclusive.

(m) The words “hereof,” “herein,” “hereto” 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.

(n) The word “will” shall be construed to have the same meaning and effect as the word “shall.”

ARTICLE II

ROLLOVER

Section 2.01 Rollover. Subject to the terms and conditions set forth in Section 3.01, immediately prior to the Closing, each Rollover Investor hereby irrevocably agrees to contribute or cause to be contributed to Parent, free and clear of all Liens (other than any Liens created or expressly permitted by Parent or arising by reason of the Merger Agreement or this Agreement), the Rollover Shares attributable to such Rollover Investor set forth on Schedule I hereto, and, with respect to such Rollover Shares represented by a stock certificate, shall deliver to Parent certificate(s) or other evidence representing such Rollover Shares, endorsed in blank (or together with duly executed stock powers), and with respect to Rollover Shares not represented by a stock certificate, evidence representing transfer of the Rollover Shares to Parent, in each case in form and substance reasonably satisfactory to Parent and any other documents and instruments as reasonably may be necessary or appropriate to vest in Parent good and marketable title in and to such Rollover Shares. In exchange for (and conditioned upon) such Rollover Investor’s contribution of Rollover Shares to Parent, Parent shall issue to such Rollover Investor or such Rollover Investor’s designee, free and clear of all Liens (other than Liens created by such Rollover Investor or pursuant to an agreement between such Rollover Investor and Parent), the LP Interests set forth opposite such Rollover Investor’s name on Schedule I hereto. For purposes hereof, the foregoing contribution and exchange transactions are collectively referred to herein as the “Rollover.”

Section 2.02 Legends, etc. All certificates (if any) representing LP Interests issued by Parent to the Rollover Investors at the Effective Time shall be endorsed with the following legend:

THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES

ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR STATE SECURITIES LAWS AND CANNOT BE OFFERED, SOLD, OR TRANSFERRED IN THE ABSENCE OF REGISTRATION OR EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS AND REGULATIONS PROMULGATED THEREUNDER. THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED BY THE REGISTERED OWNER HEREOF FOR INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT. THE LIMITED PARTNERSHIP INTERESTS MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR IN A TRANSACTION OTHERWISE IN COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS.

THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF A LIMITED PARTNERSHIP AGREEMENT BETWEEN THE PARTNERSHIP AND THE HOLDER.

ARTICLE III

CONDITIONS TO ROLLOVER

Section 3.01 Conditions to Rollover. Each Rollover Investor’s obligation to effect the Rollover is subject to, and conditioned upon (a) the execution and delivery of the Merger Agreement by Company, (b) the continued satisfaction in full or waiver by the Parent of all conditions in Sections 6.01 and 6.03 of the Merger Agreement upon the date the Closing is required to have occurred pursuant to Section 2.03 of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing but provided such conditions are satisfied at the Closing or waived by Parent at the Closing), (c) the substantially concurrent funding or consummation of the transactions contemplated pursuant to (i) the K-Z Equity LLC Commitment Letter and (ii) the Trident Equity Commitment Letter; provided, that the failure of the condition in this clause (c) to be satisfied shall not limit Parent’s or the Company’s ability to seek to enforce the obligations of the Rollover Investors hereunder in accordance with the terms hereof if (x) Parent, or the Company, is also concurrently seeking enforcement of the K-Z LLC Equity Commitment Letter (and the contemporaneous funding thereof) and the Trident Equity Commitment Letter (and the contemporaneous funding thereof) or (y) each of K-Z LLC and Trident Pine has satisfied, or is prepared to satisfy, its obligations under the K-Z LLC Equity Commitment Letter or the Trident Equity Commitment Letter, as applicable, and (d) the contemporaneous consummation of the Closing pursuant to Section 2.03 of the Merger Agreement or a final, non-appealable and binding order or judgment awarding specific performance to cause Parent to consummate the Closing pursuant to Sections 8.06(c) and 8.06(d) of the Merger Agreement.

ARTICLE IV

ADMISSION OF ADDITIONAL ROLLOVER INVESTORS

Section 4.01 Admission of Additional Rollover Investors. Pursuant to and in accordance with this Section 4.01 and Section 5.16 of the Merger Agreement, upon the execution of a joinder agreement in the form attached hereto as Exhibit A, the signatory thereto shall become a Rollover Investor under this Agreement and shall be fully bound by, and subject to, the representations, warranties, covenants and agreements set forth in this Agreement as though it were an original party hereto and shall be deemed a Party for all purposes hereof and entitled to all of the rights incidental herein.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE ROLLOVER INVESTORS

Each Rollover Investor severally hereby represents and warrants to Parent as follows:

Section 5.01 Organization and Qualification. For each such Rollover Investor that is not a natural person, such Rollover Investor is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

Section 5.02 Authorization.

(a) For each such Rollover Investor that is not a natural person, such Rollover Investor has all requisite power and authority and has taken all action necessary in order to execute and deliver, and perform its obligations under, this Agreement, and to consummate the transactions contemplated by this Agreement and no other approval is required by such Rollover Investor to fulfill its obligations under this Agreement.

(b) This Agreement has been duly and validly executed, and assuming the due authorization, execution and delivery of this Agreement by Parent, constitutes the valid and binding obligation of such Rollover Investor, enforceable against it in accordance with its terms, except as may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally or by general equitable principles.

Section 5.03 Consents.

(a) Other than any filing with the SEC as required by Sections 13(d) or 16(a) of the Exchange Act, no consent, approval, qualification, order or authorization of, or filing with, any Governmental Entity is required in connection with the valid execution, delivery or performance of this Agreement by such Rollover Investor.

(b) The execution, delivery and performance by such Rollover Investor of this Agreement does not and will not (i) if such Rollover Investor is not a natural person, violate the organizational documents of such Rollover Investor, (ii) subject to the receipt of consents and approvals of Governmental Entities contemplated by the Merger Agreement, violate any

applicable law or order to which such Rollover Investor or any of its assets are subject or (iii) require any consent or other action by any Person under, constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in any breach of or give rise to any right of termination, cancellation, amendment or acceleration of, any right or obligation under any Contract or otherwise of such Rollover Investor.

Section 5.04 Investment Intention; Securities Laws. Such Rollover Investor (a) understands and has taken cognizance of all the risk factors related to the investment in Parent, (b) has been granted the opportunity to ask questions and receive answers concerning the terms and conditions of the investment in Parent and to obtain any additional information which Parent possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of information furnished, and (c) has relied solely upon (i) the representations set forth in this Agreement and (ii) its own independent investigations or investigations conducted by its own independent advisers in connection with the accuracy or sufficiency of such information or its investment decision. Such Rollover Investor acknowledges that the investment in Parent is intended to be exempt from registration by virtue of Section 4(a)(2) of the Securities Act. Such Rollover Investor has the financial ability to afford a complete loss of its investment in the LP Interests. Such Rollover Investor is acquiring the LP Interests solely for its own account, for investment and not with a view toward resale or other distribution in violation of the Act, and such Rollover Investor understands that such LP Interests may not be disposed of by such Rollover Investor in contravention of the Securities Act, or any applicable state securities laws.

Section 5.05 Accredited Investor. Such Rollover Investor is an “accredited investor,” as such term is defined in Regulation D under the Securities Act, with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the LP Interests.

Section 5.06 No Registration. Such Rollover Investor understands that the LP Interests are being issued without registration under the Securities Act, under the securities laws of any U.S. state (the “State Acts”) or under the securities laws or laws of similar import of any other country or jurisdiction, in reliance upon exemptions provided by the Securities Act, the State Acts and such other securities laws or laws of similar import, and the regulations promulgated thereunder.

Section 5.07 Advisers. Such Rollover Investor has carefully considered and has, to the extent it believes such discussion necessary, discussed with its own legal, tax, accounting and financial advisers the suitability of an investment in Parent in light of such Rollover Investor’s particular tax, financial and other situation, and has determined that the LP Interests being acquired by such Rollover Investor hereunder is a suitable investment for such Rollover Investor.

Section 5.08 Rollover Shares. Such Rollover Investor, either alone or together with another Rollover Investor, has the power to cause the voting and disposition of the Rollover Shares set forth opposite such Rollover Investor’s name on Schedule I hereto. Upon the consummation of the contribution transactions contemplated by this Agreement and subject to the consummation of the Merger, Parent will acquire the Rollover Shares attributable to such Rollover Investor free and clear of all Liens (other than any Liens created or expressly permitted by Parent or arising by reason of the Merger Agreement or this Agreement).

Section 5.09 No Employee/Employer Relationship. None of this Agreement (or any term or provision hereof), the issuance of the LP Interests, or any other transaction comprising the Rollover creates any employee/employer relationship or other similar relationship between Parent, the Company or any of their respective Subsidiaries or any of Parent’s or Parent’s Affiliates, on the one hand, and such Rollover Investor, on the other hand.

Section 5.10 Tax Matters. Such Rollover Investor has not obtained, nor will such Rollover Investor transfer or assign, any of the LP Interests such Rollover Investor receives (or any interest therein), or cause any such LP Interests (or any interest therein) to be marketed, on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, or a “secondary market” or the substantial equivalent thereof, within the meaning of Section 7704(b)(2) of the Code, including an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.

ARTICLE VI

REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PARENT

Parent hereby represents and warrants to each Rollover Investor as follows:

Section 6.01 Organization. Parent is duly organized, validly existing and in good standing under Delaware Law.

Section 6.02 Authorization.

(a) Parent has all requisite corporate power and authority and has taken all corporate action necessary in order to execute and deliver, and perform its obligations under, this Agreement and to consummate the transactions contemplated by this Agreement.

(b) This Agreement has been duly executed and delivered by Parent and, assuming the due authorization, execution and delivery of this Agreement by such Rollover Investor, constitutes the valid and binding obligation of Parent, enforceable by such Rollover Investor against Parent in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally or by general equitable principles.

Section 6.03 Authorization of Limited Partnership Interests. The LP Interests, when issued pursuant to the terms of this Agreement, will be duly authorized, validly issued and outstanding, fully paid, nonassessable and free and clear of all Liens, other than as applicable to the LP Interests or the holders thereof under applicable federal and state securities laws.

Section 6.04 Consideration Per LP Interest. The Rollover Investors will acquire LP Interests pursuant to this Agreement for the same price per LP Interest as the Equity Investors are acquiring LP Interests in connection with the Merger.

ARTICLE VII

CERTAIN COVENANTS AND AGREEMENTS

Section 7.01 Agreement to Vote.

(a) Each Rollover Investor agrees that at the Company Stockholders’ Meeting or at any other meeting of the holders of Common Stock called to consider the adoption of the Merger Agreement and the Merger, and at every adjournment or postpone thereof, and on every action or approval by written consent of the stockholders of the Company with respect to the adoption of the Merger Agreement and Merger, (i) when such meeting of the holders of Common Stock is held, such Rollover Investor shall appear at such meeting or otherwise cause the Rollover Shares set forth opposite such Rollover Investor’s name on Schedule I hereto to be counted as present thereat for the purpose of establishing a quorum and (ii) such Rollover Investor shall vote or cause to be voted (to the extent of its power to do so) at such meeting such Rollover Shares in favor of adopting the Merger Agreement and the transactions contemplated thereby, including the Merger; provided, however, that at any meeting of the stockholders of the Company (whether annual or special), however called, or at any adjournment or postponement thereof, or in any other circumstances (including an action by written consent) upon which a vote or other approval is sought, such Rollover Investor shall vote (or cause to be voted), in person or by proxy (to the extent of its power to do so), all of the Rollover Shares attributable to such Rollover Investor set forth on Schedule I hereto against any other proposal, action or transaction involving the Company or any of the Company Subsidiaries, which other proposal, action or transaction would reasonably be expected to in any manner (A) impede, frustrate, prevent or nullify the Merger or the Merger Agreement, (B) result in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled or (C) result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement.

(b) Each Rollover Investor hereby covenants and agrees that it shall not enter into any agreement or undertaking, and shall not commit or agree to take any action that would restrict or interfere with such Rollover Investor’s obligations pursuant to this Agreement.

Section 7.02 Transfer Restrictions. Other than as contemplated by Section 2.01, each Rollover Investor shall not, directly or indirectly, offer, sell, transfer, pledge, hypothecate assign or otherwise dispose of (collectively, “Transfer”), or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any of the Rollover Shares attributable to such Rollover Investor set forth on Schedule I hereto (or any other equity interests, options, warrants, calls, subscriptions or other rights in any such Rollover Shares) to any Person; provided, that nothing in this Section 7.02 shall prohibit Transfers from any Rollover Investor to any other Rollover Investor.

Section 7.03 Stock Dividends, After-Acquired Shares, etc. If between the date of this Agreement and the Effective Time the issued and outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, the term “Rollover Shares” shall be

appropriately adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction. Any additional shares of Common Stock acquired by the Rollover Investors on or after the date hereof and prior to the Closing shall be deemed “Rollover Shares” for purposes of this Agreement, including such additional shares of capital stock that become beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) by such Rollover Investor, whether upon the exercise of options, conversion of convertible securities or otherwise, after the date hereof.

Section 7.04 Waiver of Appraisal Rights. Each Investor hereby waives, and shall cause to be waived, any rights of appraisal or rights to dissent from the Merger that such Investor may have under Delaware Law.

Section 7.05 Disclosure. Each Rollover Investor hereby acknowledges that Parent may publish and disclose in any announcement or disclosure required by the SEC and filings with any Governmental Entity, including Insurance Regulators, whose consent, approval, authorization or waiver is required to consummate the Merger, such Rollover Investor’s identity and ownership of the Rollover Shares and the nature of such Rollover Investor’s obligations under this Agreement. Parent hereby authorizes each Rollover Investor to disclose, in any disclosure required by any Governmental Entity, this Agreement, Parent’s identity and the nature of Parent’s obligations under this Agreement.

Section 7.06 No Fiduciary Responsibilities. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall apply to each Rollover Investor solely in its capacity as a stockholder of the Company and not in any other capacity, and nothing in this Agreement shall limit, restrict or affect the rights and obligations of any Rollover Investor from taking any action in his or her capacity as a director, officer or employee of the Company, whether in connection with the Merger Agreement or otherwise, and no action or omissions by any such Persons in his or her capacity as a director, officer or employee of the Company shall be deemed to constitute a breach of any provision of this Agreement.

Section 7.07 Effect of Adverse Recommendation Change. Until the termination of this Agreement in accordance with its terms, the obligations of the Rollover Investors shall apply whether or not the Company Board (or any committee thereof) has effected an Adverse Company Recommendation.

Section 7.08 Parent LP Agreement. In connection with the transactions contemplated by this Agreement and the Merger Agreement, concurrently with the Rollover, the Rollover Investors shall enter into the Parent LP Agreement on such terms as are mutually agreed by Trident Pine and K-Z LLC prior to the Closing.

ARTICLE VIII

REASONABLE BEST EFFORTS

Section 8.01 Reasonable Best Efforts.

(a) In accordance with applicable Law, each Rollover Investor shall, and shall cause its Affiliates to, use its reasonable best efforts (i) to take, or cause to be taken, all actions and to

do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement and the Merger Agreement as promptly as practicable and (ii) to make or obtain, as applicable (and to cooperate with the other Parties to make or obtain, as applicable), any consents, approvals, authorizations, waivers, permits, filings and notifications of any Governmental Entity necessary, proper or advisable to be made or obtained, as applicable, in connection with the transactions contemplated by this Agreement and the Merger Agreement.

(b) Each of the Rollover Investors agrees that it shall use its reasonable best efforts cooperate with Parent with respect to the obtaining of all consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this Agreement.

(c) Notwithstanding anything to the contrary in this Agreement, with respect to the matters covered in this Section 8.01(c), the Parties agree that Parent shall make all strategic decisions and lead all discussions, negotiations and other proceedings, and coordinate all activities with respect to any consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including determining the strategy for contesting, litigating or otherwise responding to objections to, or Actions challenging, the consummation of the transactions contemplated by this Agreement. The Rollover Investors shall not permit any of their respective Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity with respect to any proposed settlement, consent decree, commitment or remedy or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, except as specifically requested by or agreed with Parent.

(d) Notwithstanding anything to the contrary in this Agreement, with respect to the Required Regulatory Approvals, no Rollover Investor shall be obligated to take or refrain from taking, or to agree to it or its Affiliates taking or refraining from taking, any action, or to permitting or suffering to exist any restriction, condition, limitation or requirement which, individually or together with all other such actions, restrictions, conditions, limitations or requirements imposed by with respect to the Required Regulatory Approvals would or would reasonably be expected to result in a Burdensome Condition.

ARTICLE IX

TERMINATION, AMENDMENT AND WAIVER

Section 9.01 Termination. This Agreement will terminate automatically and immediately upon the earliest to occur of (a) the Closing and (b) the valid termination of the Merger Agreement in accordance with its terms.

Section 9.02 Effect of Termination. If this Agreement is terminated as provided in Section 9.01, this Agreement will become null and void and of no further force or effect whatsoever without liability on the part of any Party hereto, and all rights and obligations of any Party hereto shall cease (except that the provisions of this Section 9.02 and Article X will survive any termination of this Agreement); provided, that nothing in this Agreement will relieve any Party from any liability resulting from its Willful Breach of this Agreement.

ARTICLE X

MISCELLANEOUS

Section 10.01 Applicable Law; Jurisdiction; Specific Performance.

(a) This Agreement will be governed by the Delaware Law without regard to the conflicts of law principles thereof. All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Court of Chancery of the State of Delaware, and the Parties hereby irrevocably submit to the exclusive jurisdiction of such court (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding and agree that service of process in any such action or proceeding shall be effective if given in accordance with Section 10.02 or any other manner permitted by applicable Law.

(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY ACTION ARISING OUT OF OR RELATING 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 WITH RESPECT TO ANY SUCH ACTION. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS (III) IT MAKES SUCH WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.01(B).

(c) The Parties 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. It is accordingly agreed that each Party shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware, this being in addition to any other remedy to which such Party is entitled at law or in equity.

Section 10.02 Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been duly given or made as follows: (a) if delivered in person, on the day of such delivery; (b) if by facsimile, on the day on which such facsimile was sent; provided, that receipt is personally confirmed by telephone; (c) if by electronic mail, on the day on which such electronic mail was sent; (d) if by certified or registered mail (return receipt requested), on the fifth Business Day after the mailing thereof; or (e) if by reputable overnight delivery service, on the second Business Day after the sending thereof:

If to Parent:

Evergreen Parent, L.P.

c/o AmTrust Financial Services, Inc.

59 Maiden Lane, 43rd Floor

New York, NY 10038

Attention: Barry Zyskind

Email: barry.zyskind@amtrustgroup.com

with a copy (which shall not constitute notice) to:

Trident Pine Acquisition LP

c/o Stone Point GP Ltd.

20 Horseneck Lane

Greenwich, CT 06830

Attention: David Wermuth

Facsimile: (203) 625-8357

Email: dwermuth@stonepoint.com

and

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036

Attention: Todd E. Freed

Jon A. Hlafter

Facsimile: (212) 735-2000

Email: todd.freed@skadden.com

jon.hlafter@skadden.com

and

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019

Attention: Ross A. Fieldston

Adam M. Givertz

Facsimile: (212) 757-3990

Email: rfieldston@paulweiss.com

agivertz@paulweiss.com

If to a Rollover Investor:

At the address of such Rollover Investor set forth on Schedule 1 hereto.

Section 10.03 Amendment; Entire Agreement. This Agreement may be amended with respect to any Rollover Investor only by an agreement in writing executed by the Parent and such Rollover Investor and with the prior written consent of the Company (not to be unreasonably

withheld, conditioned or delayed). This Agreement and the schedules and exhibits thereto, the Equity Commitment Letters, the Back-to-Back Equity Commitment Letters and other documents delivered by the Parties in connection herewith and the Merger Agreement contain the entire understanding of the Parties with respect to the subject matter hereof, and supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, oral or written, respecting such subject matter.

Section 10.04 Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned by any Rollover Investor (whether by operation of law or otherwise) without the prior written consent of Parent and the Company (the Company’s consent not to be unreasonably withheld, conditioned or delayed). In addition, the rights of Parent with respect to a Rollover Investor may not be assigned without such Rollover Investor’s and the Company’s prior written consent (with the Company’s consent not to be unreasonably withheld, conditioned or delayed).

Section 10.05 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which will be considered one and the same agreement.

Section 10.06 Parties in Interest; Third Party Beneficiaries. This Agreement is for the sole benefit of and shall be binding upon Parent and the Rollover Investors and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than Parent and the Rollover Investors any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, except in Section 10.07 hereof with respect to Non-Recourse Parties, and that the Company shall be an express third-party beneficiary of this Agreement and shall be entitled to seek a decree or order for specific performance to cause each Rollover Investor to consummate the Rollover pursuant to, and to specifically enforce the other provisions of, this Agreement, in each case, subject to the terms and conditions hereof, but only in the event that the Company would be able to obtain specific performance of the Parent’s obligation to enforce the Rollover pursuant to, and in accordance with, Section 8.06(d) of the Merger Agreement. The rights of Parent may not be assigned with respect to any Rollover Investor, without the prior written consent of such Rollover Investor and the Company (the Company’s consent not to be unreasonably withheld, conditioned or delayed). None of Parent’s creditors (other than the Company to the extent that (a) the Company is a creditor of the Parent and (b) the Company is a third party beneficiary of this Agreement) shall have any right to enforce this Agreement or to cause Parent to enforce this Agreement and none of the Company’s equity holders or creditors shall have any right to enforce or cause Parent or any Rollover Investor to enforce this Agreement.

Section 10.07 Non-Recourse. Except to the extent expressly set forth in this Agreement, the Equity Commitment Letters, the Back-to-Back Equity Commitment Letters or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Agreement, Parent acknowledges and agrees that (a) all claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in or in connection with this Agreement or as an inducement to

enter into this Agreement), may be made only against the Rollover Investors and (b) no Non-Recourse Party shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of this Agreement or its negotiation or execution, and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Recourse Party. Except as expressly contemplated by any Equity Commitment Letter or Back-to-Back Equity Commitment Letter, recourse against any Rollover Investor pursuant to this Agreement shall be the sole and exclusive remedy of Parent, Merger Sub and all of their respective Affiliates against the Rollover Investors in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the Transactions. Notwithstanding the Company’s rights as third party beneficiary hereunder as contemplated by Section 10.06 hereof, the Company is subject to this Section 10.07 hereof to the same extent as Parent and Merger Sub. For purposes of this Agreement, “Non-Recourse Party” means (i) any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of a Rollover Investor (other than Parent and Merger Sub) or (ii) any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, or Affiliate of any of the persons referred to in clause (i) above (other than Parent and Merger Sub). Non-Recourse Parties are expressly intended as third party beneficiaries of this provision of this Agreement.

[Remainder of this page left intentionally blank]

IN WITNESS WHEREOF, Parent and the Rollover Investors have executed this Agreement as of the day and year first above written.


EVERGREEN PARENT, L.P.
By		Evergreen Parent GP, LLC
		its general partner

By		/s/ Barry D. Zyskind
		Name: Barry D. Zyskind
		Title: Manager

ROLLOVER INVESTOR

/s/ Barry D. Zyskind

Barry D. Zyskind

ROLLOVER INVESTOR

/s/ George Karfunkel

George Karfunkel

ROLLOVER INVESTOR

/s/ Leah Karfunkel

Leah Karfunkel

ROLLOVER INVESTOR

/s/ Barry Karfunkel

Barry Karfunkel

ROLLOVER INVESTOR

/s/ Robert Karfunkel

Robert Karfunkel

ROLLOVER INVESTOR

/s/ Anne Neuberger

Anne Neuberger

ROLLOVER INVESTOR

/s/ Sarah Horowitz

Sarah Horowitz

ROLLOVER INVESTOR

/s/ Bernard Karfunkel

Bernard Karfunkel

ROLLOVER INVESTOR

/s/ Cindy Brecher

Cindy Brecher

SCHEDULE I


Rollover Investor	Rollover Shares	Value of Rollover Shares	LP Interests to be Received	Notice Address

Barry Zyskind	22,101,025.00	$298,363,837.50	Common Partnership Units with a value of $298,363,837.50	54-17 17th Avenue, Brooklyn NY 11204

Leah Karfunkel	29,272,013.00	$395,172,175.50	Common Partnership Units with a value of $395,172,175.50	54-13 17th Avenue, Brooklyn NY 11204

George Karfunkel	32,438,408.00	$437,918,508.00	Common Partnership Units with a value of $437,918,508.00	1671 52nd Street, Brooklyn NY 11204

Barry Karfunkel*	5,354,753*	$72,289,165.50	Class A Partnership Units with a value of $72,289,165.50	41 Martin Lane, Lawrence NY 11559

Robert Karfunkel*	2,945,113*	$39,759,025.50	Class A Partnership Units with a value of $39,759,025.50	2121 Ave J, Brooklyn NY 11210

Cindy Brecher*	2,945,113*	$39,759,025.50	Class A Partnership Units with a value of $39,759,025.50	c/o Barry Zyskind 54-17 17th Avenue, Brooklyn NY 11204

Anne Neuberger*	401,606*	$5,421,681.00	Class A Partnership Units with a value of $5,421,681.00	c/o Barry Zyskind 54-17 17th Avenue, Brooklyn NY 11204

Sarah Horowitz*	6,224,899*	$84,036,136.50	Class A Partnership Units with a value of $84,036,136.50	c/o Barry Zyskind 54-17 17th Avenue, Brooklyn NY 11204

Bernard Karfunkel*	6,224,900*	$84,036,150.00	Class A Partnership Units with a value of $84,036,150.00	c/o Barry Zyskind 54-17 17th Avenue, Brooklyn NY 11204

* The obligations of such Rollover Stockholder set forth in Section 7.01 of this Agreement are subject in all respects to the obligations of such Rollover Stockholder set forth in that certain Common Stock Purchase Agreement, dated May 25, 2017, by and among the Company, such Rollover Stockholder and the other parties thereto.

EXHIBIT A

Joinder Agreement

Reference is hereby made to the Rollover Agreement (the “Agreement”), dated as of March 1, 2018 by and among Evergreen Parent, L.P., a Delaware limited partnership, and the investors listed on Schedule I thereto, as amended from time to time. Pursuant to and in accordance with the terms of Section 3.01 of the Agreement, the undersigned hereby acknowledges that it has received and reviewed a complete copy of the Agreement, including the schedule and exhibit thereto, and agrees that upon the execution of this joinder agreement, the undersigned shall become a Rollover Investor under the Agreement and shall be fully bound by, and subject to, the representations, warranties, covenants and agreements set forth in the Agreement as though it were an original party thereto and shall be deemed a Party thereto for all purposes thereof and entitled to all of the rights incidental therein.

Capitalized terms used but not herein defined shall have the meanings ascribed to them in the Agreement.

IN WITNESS WHEREOF, the undersigned has executed this Agreement as of ________.


[Rollover Investor]

By
		Name:
		Title:

EX-99.10 5 d537102dex9910.htm EX-99.10 EX-99.10

Exhibit 99.10

INTERIM INVESTORS AGREEMENT

This INTERIM INVESTORS AGREEMENT (this “Agreement”), dated as of March 1, 2018, is made and entered by and among (i) Trident Pine Acquisition LP (“Trident”), (ii) K-Z Evergreen, LLC (the “K-Z LLC”), (iii) Evergreen Parent, L.P. (“Parent”), (iv) Evergreen Merger Sub, Inc. (“Merger Sub”), (v) solely for the purposes of Sections 18(a)(i), 18(a)(ii), 18(b)(ii), 18(c), 18(d) and 18(l), Barry D. Zyskind (“BZ”), George Karfunkel and Leah Karfunkel (each, including BZ, a “Stockholder” and, collectively, the “Stockholders”) and (vi) each person who may hereafter execute a counterpart to this Agreement in accordance with the terms of this Agreement (each such person, and each of Trident and K-Z LLC, an “Investor” and collectively, the “Investors”). Each of the foregoing parties is hereinafter referred to individually as a “Party” and, collectively, as the “Parties.”

W I T N E S S E T H:

WHEREAS, on the date hereof, AmTrust Financial Services, Inc., a Delaware corporation (the “Company”), Parent and Merger Sub have executed an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which Merger Sub will be merged with and into the Company (the “Merger”) and the Company shall continue as the surviving corporation in the Merger as a wholly-owned subsidiary of Parent;

WHEREAS, Parent and Merger Sub have been formed by the Investors solely for the purpose of entering into the Merger Agreement, to complete the Merger and the other transactions contemplated by the Merger Agreement and, in the case of Parent, to hold the Investors’ investment in the Company and its subsidiaries;

WHEREAS, each of the Investors has, on the date hereof, executed a letter agreement (each such letter, as amended or modified from time to time in compliance with this Agreement, a “Commitment Letter”) in favor of Parent in which such Investor has agreed, subject to the terms and conditions set forth therein, to contribute or cause to be contributed a cash equity investment to Parent immediately prior to the consummation of the Merger under the Merger Agreement (the “Closing”), as such contribution may be reduced in accordance with certain terms and conditions set forth herein;

WHEREAS, certain stockholders of the Company (the “Rollover Stockholders”) have, on the date hereof, executed a rollover agreement pursuant to which each Rollover Stockholder has agreed, subject to the terms and conditions set forth therein, to contribute shares of common stock of the Company to Parent immediately prior to the Closing; and

WHEREAS, the Parties wish to agree to certain terms and conditions that will govern the actions of Parent and Merger Sub and the relationship among the Parties with respect to the Merger Agreement and the Commitment Letters, and the transactions contemplated by each.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained in this Agreement, the Parties hereby agree as follows:

1.	Definitions. Certain terms are used in this Agreement as specifically defined herein. Capitalized terms used herein but not defined shall have the meanings given to them in the Merger Agreement.

(a)

“Co-Invest Vehicle” shall mean any co-investment or similar vehicle formed by, and controlled by, an Investor or their respective Affiliates primarily for the purpose of investing in Parent or its Affiliates.

(b)

“Commitments” shall mean (i) with respect to Trident or K-Z LLC, the amount of cash equity set forth in such Investor’s Commitment Letter and (ii) with respect to any other Investor, the amount of cash equity set forth in the equity commitment letter delivered by such Investor to Parent pursuant to Section 18(g).

(c)

“Requisite Investors” shall mean Trident and K-Z LLC acting together in unanimity, and each shall be referred to individually as a “Requisite Investor”; provided, that if Trident or K-Z LLC, as the case may be, is a Withdrawing Investor or a Failing Investor, then Trident (if they are the Continuing Investor or Funding Investor) or K-Z LLC (if they are the Continuing Investor or Funding Investor), as the case may be, shall alone be the Requisite Investors for all purposes of this Agreement.

Investment. The Investors agree to, promptly following the execution of this Agreement and in no event later than the satisfaction or waiver of the conditions set forth in Article VI of the Merger Agreement, negotiate in good faith mutually agreed upon terms and conditions of a partnership agreement and other organizational documents governing their joint ownership of Parent in all material respects consistent with the terms set forth in the Term Sheet attached hereto as Exhibit A and such other documents as are necessary or advisable to consummate the transactions described in the Term Sheet attached hereto as Exhibit A.

Actions Under the Merger Agreement. Subject to Sections 4 and 8(a), the consent of the Requisite Investors shall be required to cause Parent and Merger Sub to take any action or refrain from taking any action, including in order for Parent and Merger Sub to comply with their respective obligations, satisfy their closing conditions or exercise their rights under the Merger Agreement. Such actions shall include:

(a)

determining that the conditions to closing specified in Sections 6.01 and 6.03 of the Merger Agreement (the “Closing Conditions”) have been satisfied;

(b)

waiving compliance with any covenants, agreements or Closing Conditions contained in the Merger Agreement; and

(c)

terminating, amending or modifying the Merger Agreement (including any amendment adverse to Parent, Merger Sub or the Investors).

Neither Parent nor Merger Sub shall, and none of the Investors shall permit Parent or Merger Sub to, take any of the actions contemplated by this Section 3 unless such action has been approved in writing in advance by the Requisite Investors.

4.	Specified Actions Under the Merger Agreement. Notwithstanding anything to the contrary in Section 3:

(a)

Trident may individually and in its sole discretion, without the consent of K-Z LLC:

(i)

cause Parent and Merger Sub to terminate the Merger Agreement pursuant to Sections 7.01(c)(i), 7.01(c)(iii) or 7.01(c)(iv) thereof and to take any other necessary actions in connection thereto;

(ii)

solely subsequent to the termination of the Merger Agreement, cause Parent and Merger Sub to initiate litigation or other legal action against the Company in connection with a breach or alleged breach of the Merger Agreement and to take any other necessary actions in connection thereto; and

(b)

K-Z LLC may individually and in its sole discretion, without the consent of Trident:

(i)

cause Parent to consent to any action of the Company and the Company Subsidiaries pursuant to Section 5.01 of the Merger Agreement to the extent that such action of the Company and the Company Subsidiaries would not require the consent of Trident subsequent to Closing pursuant to the consent rights set forth in the Term Sheet attached hereto as Exhibit A.

(c)

Either Trident or K-Z LLC may individually and in its sole discretion, without the consent of the other party:

(i)

cause Parent to terminate the Merger Agreement pursuant to Section 7.01(b)(i) thereof in the event that the Merger Agreement has not been terminated prior to the thirtieth (30^th) day following the Outside Date; and

(ii)

cause Parent to terminate the Merger Agreement pursuant to Section 7.01(b)(iii) thereof in the event that the Merger Agreement has not been terminated prior to the thirtieth (30^th) day following the date of the stockholder meeting of the Company at which the Merger Agreement was voted upon and stockholders failed to approve the Merger Agreement.

Termination of Participation. In the event that (a) the applicable Investor(s) determine(s) that the Closing Conditions are satisfied or validly waived or (b) an award of specific performance to enforce the Investors’ Commitments and the commitments of the Rollover Stockholders is granted pursuant to Section 8.06 of the Merger Agreement, any Requisite Investor (the “Funding Investor”) may terminate the participation in the transaction of any other Investor (the “Failing Investor”) if the Failing Investor does not fulfill its Commitment when required pursuant to such Investor’s Commitment Letter or asserts in writing its unwillingness to fulfill its Commitment when required pursuant to such Investor’s Commitment Letter; provided, that such termination shall not affect the Funding Investor’s rights under this Agreement against such Failing Investor with respect

to such failure to fund, including those set forth in Sections 8(a), 10, 14, 15 and 18(i)(iii) hereof. Notwithstanding any provisions hereof to the contrary, the Requisite Investors may replace or cause to be replaced the Failing Investor’s Commitment in their discretion and the Failing Investor shall cooperate in such reasonable arrangements to permit Parent and the other Investors to proceed with the contemplated transaction, and to terminate any liability or obligation of the Failing Investor under this Agreement (other than with respect to breaches of this Agreement by a Failing Investor prior to the date of the completion of such arrangements) and its Commitment Letter. If an Investor becomes a Failing Investor, such Failing Investor thereafter shall no longer be entitled to any approval or consent rights under this Agreement (other than pursuant to Section 18(e) hereof with respect to any amendments or waivers that are adverse to the Failing Investor in a disproportionate or discriminatory manner (as compared to the Funding Investor)).

Debt Financing. If the Requisite Investors determine to pursue any incurrence of indebtedness or issuance of debt securities by Parent, the Company and/or any of the Subsidiaries of the Company to be provided at the Closing, the Investors shall use their respective reasonable best efforts to cause Parent (and/or one or more direct or indirect Subsidiaries of Parent on the date of Closing) to negotiate, enter into and borrow under definitive agreements relating to such debt financing on such terms as the Requisite Investors may approve.

Management Arrangements. The Investors will cause Parent to establish an equity incentive plan on terms and conditions approved by the managers of the general partner of Parent (the “Board”) and will cause Parent to reserve five percent (5%) of the equity securities of Parent on a fully diluted basis as of Closing, with grants determined by the Board.

8.	Commitments.

(a)

Each Investor hereby affirms and agrees that it is bound by the provisions set forth in its Commitment Letter and Back-to-Back Commitment Letter, if applicable, and that Parent shall enforce the provisions of each of the Commitment Letters and Back-to-Back Commitment Letters in accordance with this Agreement and the terms of the Commitment Letters and Back-to-Back Commitment Letters, respectively, but only if either (i) the applicable Investor(s) determine that the conditions to contributing under the Commitment Letters and Back-to-Back Commitment Letters are satisfied or waived, (ii) the conditions to the damages commitments thereunder have been satisfied or (iii) the Company is permitted to enforce, or cause Parent to enforce, the provisions of the Commitment Letters and Back-to-Back Commitment Letters under the specific circumstances and as specifically set forth therein and in the Merger Agreement and does in fact so enforce, or cause Parent to enforce, such provisions. None of the Investors, Parent or Merger Sub shall attempt to enforce, or cause Parent or Merger Sub to enforce, any of the Commitment Letters or Back-to-Back Commitment Letters until the conditions set forth in this Section 8(a) have been satisfied. Subject to the preceding sentence, Parent and Merger Sub shall have no right to enforce any of the Commitment Letters or Back-to-Back Commitment

Letters unless directed to do so by (x) Trident, if enforcing against K-Z LLC, (y) K-Z LLC, if enforcing against Trident or (z) the Requisite Investors, if enforcing against any Investor other than Trident or K-Z LLC, in accordance with this Section 8(a), and no Investor shall have any right to enforce any of the Commitment Letters or Back-to-Back Commitment Letters except as acting through Parent. Notwithstanding anything to the contrary in this Section 8(a), (A) if the Requisite Investors determine that Parent does not require all of the Commitments in order to fulfill its obligations in full under the Merger Agreement and to consummate the Merger, then the Requisite Investors shall (except as otherwise agreed in writing between the Requisite Investors) reduce the Commitments to such extent, with any such reduction to be applied pro rata among the Investors based on the amount of their respective Commitments prior to giving effect to such reduction, or (B) if the Requisite Investors determine that Parent requires additional Commitments in order to fulfill its obligations in full under the Merger Agreement and to consummate the Merger, then the Requisite Investors may agree to increase their Commitments, with any such increase to be applied pro rata among the Investors based on the amount of their respective Commitments prior to giving effect to such increase (except as otherwise agreed in writing between the Requisite Investors).

(b)

Each Investor agrees to cause Parent and the general partner of Parent (including through the voting of its equity interests in the general partner of Parent) to create such classes of limited partnership units and/or other equity interests and to issue and sell or exchange (as the case may be) such classes of limited partnership units and/or other equity interests to the Investors, Rollover Stockholders and other persons as described in Exhibit A.

(c)

Prior to the Closing and for a period of up to six (6) months after Closing, in each case at a price per share equal to no less than the price paid per share at Closing, each of Trident and K-Z LLC may syndicate a portion of their respective Commitments (a “Permitted Equity Syndication”) to other investors through one or more Co-Invest Vehicles and shall, in the event of any such syndication, offer to the other of Trident or K-Z LLC the opportunity to participate in such syndication on a pro rata basis based on such other Party’s respective Commitments; provided, that (i) following such syndication, the aggregate Commitment of Trident will not be less than $400,000,000, (ii) following such syndication, the aggregate Commitment of K-Z LLC will not be less than $200,000,000, (iii) the Commitments of Trident and K-Z LLC will be reduced by any amounts syndicated pursuant to this Section 8(c), (iv) no Permitted Equity Syndication transferee will receive Board designation rights or consent rights unless approved by the Requisite Investors, (v) any Permitted Equity Syndication will be coordinated between and agreed by the Requisite Investors, (vi) each Co-Invest Vehicle shall be controlled by the Investor whose Commitment has been syndicated to such Co-Invest Vehicle unless agreed to by the Requisite Investors, (vii) each Co-Invest Vehicle will be required to enter into the limited partnership agreement of Parent and other applicable organizational documents and (viii) the syndication of Trident’s Commitment will be pro rata between class A limited

partnership units issued by Parent and class B limited partnership units issued by Parent based on the number of each such limited partnership units issued, or to be issued, to Trident. Any fees received from investors (other than investment vehicles or separately managed accounts (or holding companies for such accounts) for which Trident or an affiliate of Trident serves as the discretionary manager or advisor (excluding Co-Invest Vehicles)) will be split between Trident and K-Z LLC based on the amount of such Investor’s Commitment that is syndicated.

(d)

If the applicable Investor(s) has/have determined that there is a right of Parent to terminate the Merger Agreement pursuant to the terms of the Merger Agreement and if, notwithstanding such right of Parent to terminate the Merger Agreement, any Investor (such Investor, a “Continuing Investor”) wishes to proceed with the contemplated transaction, the Continuing Investor shall notify the other Investor of such wish in writing. If any Investor (such Investor, a “Withdrawing Investor”) does not wish to proceed with the contemplated transaction, then the Continuing Investor shall have the right to assign the Withdrawing Investor’s participation rights to itself or a third party (provided, that upon such assignment, such third party will be deemed an “Investor” for purposes of this Agreement) and the Withdrawing Investor shall cooperate in such reasonable arrangements to permit Parent and the Continuing Investor to proceed with the contemplated transaction, and to terminate any liability or obligation of the Withdrawing Investor under this Agreement (other than with respect to breaches of this Agreement by a Withdrawing Investor prior to the date of the completion of such arrangements) and, its Commitment Letter.

Rights to Termination Payments. In the event that all or any portion of any termination fee, expense reimbursement or other payment is paid by the Company (including as a result of any obligation by the Company to pay such a fee or make such a payment under the Merger Agreement) to Parent or Merger Sub (such fees and payments, collectively, the “Termination Payment”) then each of Parent or Merger Sub, as applicable, will promptly pay to each of Trident and K-Z LLC, fifty percent (50%) of the Termination Payment. Any Failing Investor or Withdrawing Investor shall not share in any portion of the Termination Payment.

10.

Responsibility for Payments Owed to the Company. In the event that expenses, losses or damages are required to be paid by Parent or Merger Sub to the Company in connection with the transactions contemplated by the Merger Agreement (such fees and payments, collectively, a “Reverse Termination Payment”), then, subject to Section 15, each of Trident and K-Z LLC agrees that it will be responsible for fifty percent (50%) of such Reverse Termination Payment. In the event that Trident or K-Z LLC is required to fund pursuant to its Commitment Letter (including as a result of the Company causing Parent to specifically enforce the damages commitment portion of a Commitment Letter) more than fifty percent (50%) of any Reverse Termination Payment, then the contribution provisions of Section 14 shall apply.

11.

Expenses. Except as otherwise provided in this Agreement, each Investor shall bear its own costs and expenses incurred in connection with the transactions contemplated hereby and by the Merger Agreement, and no Investor shall be liable for costs incurred or other obligations undertaken by any other Investor in connection with the transactions contemplated hereby and by the Merger Agreement; provided, that any insurance regulatory antitrust or other filing fee payable by Parent shall be not be subject to this Section 11 and shall be governed by Section 12 even if the amount of any such filing fee is funded solely by Trident or K-Z LLC.

12.	Parent Expenses. Each of Trident and K-Z LLC agrees that it will be responsible for fifty percent (50%) of any insurance regulatory antitrust or other filing fee payable by Parent.

13.	Regulatory Matters; Defense of Litigation.

(a)

Each Investor shall, and shall cause its Affiliates to, use its reasonable best efforts (i) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions set forth in Article VI of the Merger Agreement are satisfied and to consummate the transactions contemplated by the Merger Agreement as promptly as practicable and (ii) to make or obtain, as applicable (and to cooperate with the other Parties to make or obtain, as applicable), any consents, approvals, authorizations, waivers, permits, filings and notifications of Governmental Entities (including the SEC) necessary, proper or advisable to consummate the transactions contemplated by the Merger Agreement.

(b)

Unless required as a matter of law, the Investors shall not, and shall not permit any of their respective Representatives to, (i) initiate any communication with any Governmental Entity regarding the transactions contemplated by the Merger Agreement or (ii) make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity (including the SEC in connection with the Schedule 13E-3) with respect to any proposed settlement, consent decree, commitment or remedy or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, without the prior written approval or request of (A) Trident, in the case of K-Z LLC, (B) K-Z LLC, in the case of Trident and (C) the Requisite Investors, in the case of any other Investor (in the case of clauses (A) and (B), such written approval or request not to be unreasonably withheld, conditioned or delayed).

(c)

Each Investor shall promptly (i) notify the other Investors of any regulatory-related communication or request for information received by any such Investor from any Governmental Entity with respect to the transactions contemplated by the Merger Agreement and (ii) permit Trident and K-Z LLC to review the original communication or request.

(d)

Each Investor will use its reasonable best efforts to cooperate with the Company, Parent and Merger Sub in resisting any effort to restrain, enjoin, prohibit or otherwise oppose the transactions contemplated by the Merger Agreement.

Notwithstanding anything to the contrary in this Agreement, with respect to the Required Regulatory Approvals, no Investor shall be obligated to take or refrain from taking, or to agree to it or its Affiliates taking or refraining from taking, any action, or to permitting or suffering to exist any restriction, condition, limitation or requirement which, individually or together with all other such actions, restrictions, conditions, limitations or requirements imposed by with respect to the Required Regulatory Approvals would or would reasonably be expected to result in a Burdensome Condition.

14.

Contribution With Respect to Commitment Letters. None of the Investors shall take any action to terminate or amend any of the Commitment Letters without the prior written consent of the Requisite Investors. Each of the Investors shall cooperate in defending any claim with respect to which the Investors are or any of them is, or is alleged to be, liable to make payments under the Commitment Letters. Subject to Section 15, each Investor agrees to contribute to the amount paid or payable by the other Investors in respect of the damages commitment provisions of any Commitment Letters or payments made pursuant to Section 12 so that each of Trident and K-Z LLC will have paid an amount equal to fifty percent (50%) of the aggregate amount paid with respect thereto.

15.

Indemnification. In the event that any Investor breaches its obligations under its Commitment Letter or this Agreement or refuses to provide a consent or approval under this Agreement that is necessary to cause or permit Parent to take an action that is required by the terms of the Merger Agreement or, without the consent of the Requisite Investors, causes Parent to either take an action or fail to take an action which, in either case, gives rise to a breach of the terms of the Merger Agreement and in any such case such breach or refusal results in (a) the termination of the Merger Agreement and such termination of the Merger Agreement has given rise to an obligation to pay a Reverse Termination Payment or to other expenses, losses or damages by any other Investor or (b) other expenses, losses or damages determined by a final, non-appealable judgment payable to the Company pursuant to the Merger Agreement (such breaching Investor, an “Indemnifying Investor”), the Indemnifying Investor shall indemnify and hold harmless each other Investor that is not an Indemnifying Investor from and against all expenses, losses and damages incurred under each such Investor’s Commitment Letter or other losses or damages and any out-of-pocket costs or expenses attributable to such termination of the Merger Agreement or such other losses or damages, whether suffered pursuant to a Commitment Letter or otherwise, including all of any Investor’s reasonable, documented out-of-pocket costs and expenses (including fees, costs and expenses of outside counsel incurred in connection with the transactions contemplated by this Agreement (the “Indemnifiable Losses”), but in no event shall Indemnifiable Losses include lost profits or punitive damages except to the extent recovered by the Company or any third party. If there is more than one Indemnifying Investor, the obligations of the Indemnifying Investors shall be several and not joint, with each responsible for its pro rata share of the Indemnifiable Losses based on their respective Commitments. For purposes of this Section 15, a Funding Investor shall not be deemed to be in breach of its obligations under its Commitment Letter if (i) the conditions set forth in Section 8(a) have been satisfied and (ii) the Funding Investor certifies in writing to the Failing Investor that it is prepared and willing to contribute or cause to be contributed the cash

equity investment under its Commitment Letter but the Funding Investor has not contributed or caused to be contributed the cash equity investment under its Commitment Letter because the Failing Investor has refused to contribute or cause to be contributed the cash equity investment in breach of such Failing Investor’s Commitment Letter.

16.	No Transfers; Pre-Closing Governance and Other Matters.

(a)

Prior to the Closing, without the consent of the Requisite Investors, no Investor shall, directly or indirectly, transfer, or cause to be transferred any equity interests it directly or indirectly holds in Parent, except in each case to any Co-Invest Vehicle in a Permitted Equity Syndication, in each case in connection with an assignment in compliance with Section 8(d).

(b)

Prior to and until the Closing, unless the Requisite Investors otherwise agree, each Requisite Investor will be entitled to nominate one manager to the Board and such Board shall operate on the basis of unanimity and shall require the consent of all managers to take any action. Any Investor whose participation in the transaction has been terminated shall (i) cause any person that it has nominated as a manager to the Board to resign from such position, (ii) sell any equity interests it holds in Parent to such entity for nominal consideration, and (iii) automatically cease to have any control or governance rights, or any decision making authority, with respect to Parent or Merger Sub. The Investors agree that the actions contemplated by Section 4 may be taken without further authorization of the Board.

17.

Transaction Fee. If the Closing occurs, in addition to any other payment or reimbursement contemplated by this Agreement or the Merger Agreement, Parent shall cause the Company to pay to Stone Point Capital LLC a transaction fee in the amount of $15,000,000 million, payable in two installments by wire transfer in immediately available funds to the account or accounts designated by Stone Point Capital LLC in writing: (i) $7,500,000 no later than two (2) Business Days following the Closing Date; and (ii) $7,500,000 no later than the one year anniversary of the Closing Date. Stone Point Capital LLC is expressly intended as a third-party beneficiary of this provision of this Agreement.

18.	Miscellaneous.

(a)

Confidentiality; Public Statements.

(i)

Each of the Parties acknowledges that it has had or may have access to certain information provided by or on behalf of the other Parties concerning or relating to the Merger and the other transactions contemplated hereby which is either confidential or proprietary in nature (collectively, the “Confidential Information”). Each Party agrees that it shall, and shall cause its directors, officers, employees, Affiliates and representatives to, maintain the confidentiality of the Confidential Information and refrain from disclosing any Confidential Information to

any third person or entity, except (A) as required by law, regulation or legal or regulatory process, (B) its directors, officers, employees, Affiliates, representatives and third-party advisors who need to know such Confidential Information in connection with advising such Party with respect to the Merger and the other transactions contemplated thereby, (C) as disclosed in the ordinary course to partners in funds affiliated with Trident and related co-investors (provided, that such partners and co-investors shall be subject to this Section 18(a) to the same extent as Trident and Trident shall be responsible for any breaches of this Section 18(a) by such partners and co-investors), (D) as authorized by writing by the Requisite Investors or (E) in any proceeding arising from a dispute between the Parties alleging a breach of the terms of this Agreement. In the event that a Party receives a request to disclose all or any part of the Confidential Information from a court or governmental or regulatory authority or agency or is obligated to disclose any portion of the Confidential Information as described in clause (A) of the preceding sentence, it shall, to the extent permitted by law, (x) notify as promptly as possible the Requisite Investors of the existence, terms and circumstances surrounding such obligation, (y) consult with the Requisite Investors on the advisability of taking legally available steps to resist or defend against such obligation or to protect the confidentiality of such Confidential Information following such disclosure, and (z) if disclosure of such Confidential Information shall be required, furnish only that portion of the Confidential Information that such Party is requested or legally compelled to disclose. For purposes of this Agreement, “Confidential Information” shall not include information that is or becomes available to the public generally (including if disclosed by the Company), other than as a result of disclosure by a Party or its directors, officers, employees, Affiliates or representatives in breach of the terms of this Agreement.

(ii)

Except as expressly contemplated by this Agreement, no Party shall issue any press release or otherwise make any public statement (including, in the case of any of the Stockholders, any amendment to any of the Stockholders’ statement on Schedule 13D filed in respect of the Company) with respect to the Merger and the other transactions contemplated hereby involving any other Party without the prior consent of the Requisite Investors unless such press release or public statement is (A) required by law, regulation or legal or regulatory process or (B) in the case of BZ, in the ordinary course of business in his capacity as Chief Executive Officer of the Company. In the event that a Party becomes obligated to issue a press release or otherwise make a public statement as described in clause (A) of the preceding sentence, it shall, to the extent permitted by law, (x) notify as promptly as possible the Requisite Investors of the existence, terms and circumstances surrounding such obligation; (y) to the extent time permits, consult with the Requisite Investors on the content of such press release or other public statement; and (z) if requested to do so,

include the name of any of the other Parties in such press release or other public statement only if legally compelled to do so.

(b)

Termination.

(i)

This Agreement shall terminate automatically upon the earlier of (A) consummation of the Merger or (B) the termination of the Merger Agreement in accordance with its terms and the payment of all amounts, if any, owed thereunder.

(ii)

If this Agreement is terminated pursuant to this Section 18(b), subject to the following proviso, such termination shall be without liability or continuing obligation of either Party to the other Party or Parties; provided, however, that (A) the provisions of Sections 4(b)(i), 9, 10, 11, 12, 13(a), 14, 15 and 17 shall survive and apply in accordance with their respective terms, (B) the provisions of Section 18(a) shall survive such termination for a period of twelve (12) months and (C) 18(b), 18(c), 18(d), 18(e), 18(f), 18(g), 18(h), 18(i), 18(j) and 18(k) shall survive the termination of this Agreement, and all other rights and obligations of the Parties under this Agreement shall terminate upon the termination of this Agreement.

(iii)

If within the earlier of (A) twelve (12) months following any termination of this Agreement, (B) the date that Trident becomes a Withdrawing Investor and (C) if K-Z LLC is a Failing Investor or Withdrawing Investor, the date Trident sends written notice to K-Z LLC that it has determined not to replace or cause to be replaced K-Z LLC, any person acquires, commences a tender offer for, or enters into an agreement to acquire, in each case with the agreement, consent or approval of the Stockholders or the board of directors of the Company, (1) twenty percent (20%) or more of the outstanding common stock of the Company or (2) all or substantially all of the assets of the Company (including the equity securities of the Company’s Subsidiaries), then the Stockholders shall, on a joint and several basis, pay to Trident, contingent upon, and within fifteen (15) business days of the consummation of such transaction (whether or not within such twelve (12) month period), an amount determined by BZ in good faith, which amount shall not be less than $10,000,000 and shall not be greater than $30,000,000, and shall be reduced by any funds received by Trident pursuant to Section 9.

(c)

Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been duly given or made as follows: (a) if delivered in person, on the day of such delivery, (b) if by facsimile, on the day on which such facsimile was sent; provided, that receipt is personally confirmed by telephone, (c) if by electronic mail, on the day on which such electronic mail was sent, (d) if by certified or registered mail (return receipt requested), on the fifth

(5^th) Business Day after the mailing thereof, or (e) if by reputable overnight delivery service, on the second Business Day after the sending thereof:

if to K-Z LLC or any Stockholder, to it at:


c/o AmTrust Financial Services, Inc. 59 Maiden Lane, 43rd Floor
New York, NY 10038
Attention:		Barry Zyskind
Email:		barry.zyskind@amtrustgroup.com

with a copy (which shall not constitute notice) to:


Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas
New York, New York 10019
Attention:		Ross A. Fieldston
		Adam M. Givertz
Facsimile:		(212) 757-3990
Email:		rfieldston@paulweiss.com
		agivertz@paulweiss.com

if to Trident, to:


Trident Pine Acquisition LP
c/o Stone Point GP Ltd.
20 Horseneck Lane
Greenwich, CT 06830
Attention:		David Wermuth
Facsimile:		(203) 625-8357
Email:		dwermuth@stonepoint.com

with copies (which shall not constitute notice) to:


Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention:		Todd E. Freed
		Jon A. Hlafter
Facsimile:		(212) 735-2000
Email:		todd.freed@skadden.com
		jon.hlafter@skadden.com

if to Parent or Merger Sub, to:


Evergreen Parent, L.P. c/o AmTrust Financial Services, Inc. 59 Maiden Lane, 43rd Floor
New York, NY 10038
Attention:		Barry Zyskind
Email:		barry.zyskind@amtrustgroup.com

with copies (which shall not constitute notice) to:


Trident Pine Acquisition LP
c/o Stone Point GP Ltd.
20 Horseneck Lane
Greenwich, CT 06830
Attention:		David Wermuth
Facsimile:		(203) 625-8357
Email:		dwermuth@stonepoint.com

and


Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention:		Todd E. Freed
		Jon A. Hlafter
Facsimile:		(212) 735-2000
Email:		todd.freed@skadden.com
		jon.hlafter@skadden.com

and


Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas
New York, New York 10019
Attention:		Ross A. Fieldston
		Adam M. Givertz
Facsimile:		(212) 757-3990
Email:		rfieldston@paulweiss.com
		agivertz@paulweiss.com

Any notices or correspondence received by Parent or Merger Sub under, in connection with, or related to this Agreement or the Merger Agreement shall be promptly provided to each Party at the address set forth in this Section 18(c), or any other address designated by such Party in writing to Parent.

(d)

Entire Agreement. This Agreement, the Merger Agreement, the Commitment Letters, the limited partnership agreement of Parent and such other agreements as are referenced herein contain the entire understanding of the Parties with respect to the subject matter hereof, and supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, oral or written, respecting such subject matter, including the Joint Bidding Agreement, dated as of January 9, 2018 made and entered by and among Trident and the Stockholders.

(e)

Amendment; Modification and Waiver. Any provision of this Agreement may be amended, modified or waived if, and only if, such amendment, modification or waiver is in writing and signed, in the case of an amendment, by each of the Parties, or in the case of a waiver, by each of the Parties against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

(f)

Non-Recourse. Each Party agrees, both for itself and its Affiliates, that all claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), may be made only against the Parties hereto, and no Person who is not a party to this Agreement, including without limitation any past, present or future director, officer, employee, incorporator, member, manager, partner, equityholder, Affiliate, agent, attorney or representative of any Party (“Non-Party Entities”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of any Party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of this Agreement or its negotiation or execution, and each Party waives and releases all such liabilities, claims and obligations against any such Non-Party Entities. Non-Party Entities are expressly intended as third-party beneficiaries of this provision of this Agreement.

(g)

Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned by any Party (whether by operation of law or otherwise) without the prior written consent of the other Parties. Upon any transfer pursuant to any Permitted Equity Syndication made in accordance with Section 8(d) or as otherwise provided herein, unless otherwise agreed by the Requisite Investors, such transferee shall, upon the consummation of, and as a condition to, such transfer execute and deliver (i) a counterpart to this Agreement pursuant to which such transferee agrees to be bound by the terms of this Agreement and (ii) an equity commitment letter substantially in the form entered into by the Investors, and such transferee shall thereafter be deemed to be an Investor for all purposes hereof and such transferee’s equity commitment letter

delivered pursuant to clause (ii) above shall be deemed to be a Commitment Letter for all purposes hereof.

(h)

No Third Party Beneficiaries. Except as provided in Section 17 with respect to Stone Point Capital LLC and Section 18(f) with respect to Non-Party Entities, nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the Parties to this Agreement or their respective spouses, successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.

(i)

Applicable Law; Jurisdiction; Specific Performance.

(i)

This Agreement will be governed by Delaware Law without regard to the conflicts of law principles thereof. All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Court of Chancery of the State of Delaware, and the Parties hereby irrevocably submit to the exclusive jurisdiction of such court (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding and agree that service of process in any such action or proceeding shall be effective if given in accordance with Section 18(c) or any other manner permitted by applicable Law.

(ii)

EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY ACTION ARISING OUT OF OR RELATING 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 IN RESPECT OF ANY SUCH ACTION. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18(i)(ii).

(iii)

The Parties 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. It is accordingly agreed that each Party shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms

and provisions of this Agreement in the Court of Chancery of the State of Delaware, this being in addition to any other remedy to which such Party is entitled at law or in equity.

(j)

Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which will be considered one and the same agreement.

(k)

No Partnership. Except as expressly contemplated herein, nothing in this Agreement is intended to, and this Agreement shall not, create a partnership between the Parties and the rights and obligations of the parties in respect of their status as limited partners of Parent shall be governed by the limited partnership agreement of Parent. Accordingly (i) the rights, obligations and duties of each Party in relation to the other Parties with respect to the subject matter of this Agreement shall be only those contractual rights, obligations and duties that are created by the express terms of this Agreement and shall not include any fiduciary or other implied rights, obligations or duties of any kind, (ii) no Party shall be authorized to act on behalf of the other Parties except as otherwise expressly provided by the terms of this Agreement and (iii) no Party shall be obligated to any third party for the obligations or liabilities of the other Party.

(l)

Individual Capacity. Each of the Stockholders is entering into this Agreement solely in its capacity as a stockholder of the Company and not in any other capacity and any action taken by any Stockholder in connection with this Agreement is not being taken on behalf of the Company or its Subsidiaries.

(m)

Severability; Enforcement. Any term or provision of this Agreement that is held invalid or unenforceable in any jurisdiction by a court of competent jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or unenforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be held unenforceable by a court of competent jurisdiction, such provision shall be interpreted to be only so broad as is enforceable.

[Remainder of this page left intentionally blank]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above.


TRIDENT PINE ACQUISITION LP

by	Stone Point GP Ltd., its general partner

by	/s/ David Wermuth
	Name:	David Wermuth
	Title:	Secretary; Vice President


K-Z EVERGREEN, LLC

By:		/s/ Barry D. Zyskind
Name: Barry D. Zyskind
Title: Manager


EVERGREEN PARENT, L.P.
By:		Evergreen Parent GP, LLC
		its general partner

By:		/s/ Barry D. Zyskind
Name: Barry D. Zyskind
Title: Manager


EVERGREEN MERGER SUB, INC.

By:		/s/ Barry D. Zyskind
Name: Barry D. Zyskind
Title: Co-President and Co-Secretary

/s/ Barry D. Zyskind

Barry D. Zyskind

/s/ George Karfunkel

George Karfunkel

/s/ Leah Karfunkel

Leah Karfunkel

EX-99.11 6 d537102dex9911.htm EX-99.11 EX-99.11

Exhibit 99.11

March 1, 2018

K-Z Evergreen, LLC

c/o AmTrust Financial Services, Inc.

59 Maiden Lane, 43rd Floor

New York, NY 10038

Ladies and Gentlemen:

Concurrently with the execution of this commitment letter, K-Z Evergreen, LLC, (“K-Z Evergreen”) has entered into a letter agreement (the “K-Z LLC Equity Commitment Letter”) committing, subject to the terms and conditions set forth therein, to fund an aggregate amount equal to up to the amount of the Closing Commitment or Damages Commitment, as applicable, to Parent.

Section 1. Commitments. Closing Commitment. Barry Zyskind, George Karfunkel and Leah Karfunkel (each, a “Family Stockholder” and collectively, the “Family Stockholders”) hereby jointly and severally commit, subject to the terms and conditions set forth in Section 3(a) hereof, that, immediately prior to the Closing, each shall agree to fund an amount not to exceed $400,000,000 to K-Z Evergreen solely to allow K-Z Evergreen to purchase, or cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price not to exceed $400,000,000 solely to allow Parent to (A) pay a portion of the aggregate Merger Consideration and all other amounts required to be paid or repaid by Parent or its Affiliates on the Closing Date in connection with the transactions contemplated by the Merger Agreement, (B) pay any and all fees and expenses required to be paid by Parent at the Closing and (C) satisfy all of the other payment obligations of Parent contemplated by the Merger Agreement and payable on the Closing Date (the “Closing Commitment”). The amount of the Closing Commitment to be funded under this commitment letter immediately prior to the Closing may be reduced on a dollar for dollar basis along with any reduction to the Closing Commitment under the K-Z LLC Commitment Letter pursuant to the terms thereof.

(b) Damages Commitment. The Family Stockholders hereby jointly and severally commit, subject to the terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and the aggregate amount of such Damages, the “Damage Amount”), the Family Stockholders hereby jointly and severally commit to K-Z Evergreen that they agree to fund an aggregate amount not to exceed $23,750,000 to K-Z Evergreen (the “Maximum Damage Commitment Amount”) solely to allow K-Z Evergreen to purchase, or cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price not to exceed the Maximum Damage Commitment Amount solely to allow Parent to fund a portion of the aggregate Damage Amount to be paid by Parent or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, in no event shall the Family Stockholders be obligated to fund or otherwise pay to K-Z Evergreen or any other Person any amount in excess of the Maximum Damages Commitment Amount. If the Damage Amount under the K-Z LLC Commitment Letter is reduced pursuant to the terms thereof, then the Damages Commitment hereunder shall be reduced on a dollar for dollar basis along with any reduction to the Damages Commitment under the K-Z LLC Commitment Letter pursuant to the terms thereof.

(c) Interaction of Commitments. In no event shall the Family Stockholders be required to fund both the Closing Commitment and the Damages Commitment.

(d) Covenants of the Family Stockholders.

(i) In accordance with applicable Law, each of the Family Stockholders shall use its reasonable best efforts (i) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this commitment letter and the Merger Agreement as promptly as practicable and (ii) to make or obtain, as applicable (and to cooperate with the other Parties to make or obtain, as applicable), any consents, approvals, authorizations, waivers, permits, filings and notifications of any Governmental Entity necessary, proper or advisable to be made or obtained, as applicable, in connection with the transactions contemplated by this commitment letter and the Merger Agreement. K-Z Evergreen agrees that it shall use its reasonable best efforts to cooperate with Parent with respect to the obtaining of all consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this commitment letter.

(ii) Notwithstanding anything to the contrary in this commitment letter, with respect to the Required Regulatory Approvals, none of the Family Stockholders shall be obligated to take or refrain from taking, or to agree to it or its Affiliates taking or refraining from taking, any action, or to permitting or suffering to

exist any restriction, condition, limitation or requirement which, individually or together with all other such actions, restrictions, conditions, limitations or requirements imposed by with respect to the Required Regulatory Approvals would or would reasonably be expected to result in a Burdensome Condition.

(iii) The Family Stockholders agree to promptly provide to Parent any information about the Family Stockholders or their Affiliates that Parent or the Company reasonably determines upon the advice of counsel is required to be included in the Proxy Statement, Schedule 13E-3 or any other any other filing or notification with any Governmental Authorities in connection with the Merger and the transactions contemplated by the Merger Agreement, this commitment letter and the Rollover Agreement.

Section 2. Use of Proceeds. The proceeds of the Closing Commitment and Damages Commitment will be used by K-Z Evergreen solely for the purposes set forth in Section 1(a) and Section 1(b) hereof, respectively.

Section 3. Conditions.

(a) Closing Commitment Conditions. The Family Stockholders’ obligation to fund the Closing Commitment is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by Company; (B) the continued satisfaction in full or waiver by the Parent of all conditions in Sections 6.01 and 6.03 of the Merger Agreement upon the date the Closing is required to have occurred pursuant to Section 2.03 of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing but provided such conditions are satisfied at the Closing or waived by Parent at the Closing); (C) the substantially concurrent funding or consummation of the transactions contemplated pursuant to (i) the Trident Equity Commitment Letter and (ii) the Rollover Agreement; provided, that the failure of the condition in this clause (C) to be satisfied shall not limit K-Z Evergreen’s, Parent’s or the Company’s ability to seek to enforce the obligations of the Family Stockholders hereunder in accordance with the terms hereof if (x) K-Z Evergreen, Parent, or the Company, is also concurrently seeking enforcement of the Trident Equity Commitment Letter to the extent not funded (and the contemporaneous funding thereof) and the Rollover Agreement (and the contemporaneous contribution of Company common stock to Parent thereunder) or (y) each of Trident Pine and the Rollover Stockholders has satisfied, or is prepared to satisfy, its obligations under the Trident Equity Commitment Letter or the Rollover Agreement, as applicable; and (D) the contemporaneous consummation of the Closing pursuant to Section 2.03 of the Merger Agreement or a final, non-appealable and binding order or judgement awarding specific performance to cause Parent to consummate the Closing pursuant to Sections 8.06(c) and 8.06(d) of the Merger Agreement.

(b) Damages Commitment Conditions. The Family Stockholders’ obligation to fund the Damages Commitment is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by the Company and (B) the Damages Amount being (i) judicially determined by a final, non-appealable and binding judgment of a court

of competent jurisdiction or (ii) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company.

Section 4. Sponsor Related Parties. The Company’s right to seek specific performance under this commitment letter pursuant to Sections 5 and 11 hereof (subject to the terms hereof) are intended to be the sole and exclusive direct or indirect remedies available to the Company and any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of the Company against (a) the Family Stockholders, (b) any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of the Family Stockholders (including K-Z Evergreen (provided, for clarity, nothing herein shall affect the Company’s rights against K-Z Evergreen pursuant to the K-Z LLC Equity Commitment Letter), other than Parent and Merger Sub, or (c) any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, or Affiliate of any of the persons referred to in clause (b) above, other than Parent and Merger Sub (the persons referred to in clauses (a) through (c) above, each a “Sponsor Related Party”), in respect of any liabilities or obligations arising under, or in connection with, this commitment letter or the Merger Agreement and the transactions contemplated hereby and thereby, including in the event the Parent or the Merger Sub breaches their respective obligations under the Merger Agreement. Under no circumstances shall any Sponsor Related Party be liable for special, incidental, consequential, exemplary or punitive damages under or in connection with the Merger Agreement, this commitment letter or the transactions contemplated or otherwise incidental thereby or hereby. Sponsor Related Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

Section 5. Termination. This commitment letter and the obligation of the Family Stockholders to fund the Closing Commitment or Damages Commitment will terminate automatically and immediately upon the earliest to occur of (a) the consummation of the Closing, (b) the valid termination of the Merger Agreement in accordance with its terms unless (i) the Company shall have terminated the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement (a “Specified Termination”) and (ii) the Company shall have notified Parent in writing within fifteen (15) Business Days following the effectiveness of the Specified Termination that it intends to initiate legal proceedings for Damages (in which case the obligation of the Family Stockholders to fund the Closing Commitment shall terminate but the obligation of the Family Stockholders to fund the Damages Commitment shall continue subject to the proviso below) and (c) except as expressly contemplated by Section 11 hereof, the Company or any of its Affiliates, directly or indirectly, asserting a claim or commencing an Action (in each case, whether in tort, contract or otherwise) against K-Z Evergreen, the Family Stockholders or any other Sponsor Related Party (each a “Non-Recourse Party”) in each case with respect to this commitment letter, the Merger Agreement or any of the transactions contemplated hereby or thereby (including in respect of any oral representations made or alleged to be made in connection herewith or therewith); provided, that in the case of clause (ii) this commitment letter will terminate automatically and immediately unless the Company shall have initiated legal proceedings against Parent within sixty (60) days following the effectiveness of the Specified

Termination, in which case this commitment letter and the obligation of the Family Stockholders to fund the Damages Commitment will terminate automatically and immediately upon the earlier of (w) the execution of a binding settlement between Parent and the Company, (x) delivery of final, non-appealable and binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub, (y) delivery of final, non-appealable and binding judgment of a court of competent jurisdiction determining that Parent and Merger Sub have no liability to the Company under the Merger Agreement; and (z) the funding by the Family Stockholders of an amount to K-Z Evergreen equal to the Maximum Damage Commitment Amount, in the case of each of clauses (w) and (x) subject to the payment by Parent of any Damage Amount contemplated by such settlement or final judgment. Notwithstanding anything that may be expressed or implied in this commitment letter or any document or instrument delivered in connection or contemporaneously herewith, in no event shall the Family Stockholders have any obligation to make any purchase, payment or contribution hereunder at any time after the full Damage Amount contemplated by clause (w) or (x) above has been paid in full or the Family Stockholders have fully funded to K-Z Evergreen an amount equal to the Maximum Damage Commitment Amount.

Section 6. Representations and Warranties.

The Family Stockholders represent and warrant, jointly and severally, to K-Z Evergreen that:

(a) this commitment letter has been duly and validly executed, and assuming the due authorization, execution and delivery of this commitment letter by K-Z Evergreen, constitutes the valid and binding obligation of the Family Stockholders, enforceable against the Family Stockholders in accordance with its terms, except as may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally or by general equitable principles;

(b) other than any filing with the SEC as required by Sections 13(d) or 16(a) of the Exchange Act, no consent, approval, qualification, order or authorization of, or filing with, any Governmental Entity is required in connection with the valid execution, delivery or performance of this commitment letter by the Family Stockholders;

(c) the execution, delivery and performance by the Family Stockholders of this commitment letter does not and will not (i) subject to the receipt of consents and approvals of Governmental Entities contemplated by the Merger Agreement, violate any applicable law or order to which the Family Stockholders or any of their assets are subject or (iii) require any consent or other action by any Person under, constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in any breach of or give rise to any right of termination, cancellation, amendment or acceleration of, any right or obligation under any Contract or otherwise of the Family Stockholders;

(d) the Family Stockholders have, and will have at the Closing, access to the funds necessary to pay and perform its obligations under this commitment letter;

(e) the Family Stockholders have the financial capacity to pay and perform their obligations under this letter agreement (subject to the terms and conditions hereof) and all funds necessary for the Family Stockholders to fulfill their obligations under this commitment letter shall be available to the Family Stockholders for so long as this commitment letter shall remain in effect in accordance with the terms hereof;

(f) there are no conditions to the Family Stockholders’ Closing Commitment or Damages Commitment except as expressly set forth herein;

(g) none of the information to be supplied by or on behalf of the Family Stockholders for inclusion in the Proxy Statement or the Schedule 13E-3 will (i) in the case of the Schedule 13E-3 (or any amendment thereof or supplement thereto), as of the date of filing and as of the date of the Company Stockholders’ Meeting, and (ii) in the case of the Proxy Statement (or any amendment thereof or supplement thereto), as of the date of filing or mailing to the Company’s stockholders and as of the date of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Section 7. Applicable Law; Jurisdiction.

VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS COMMITMENT LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 7(b).

Section 8. Amendment; Entire Agreement. This commitment letter may be amended only by an agreement in writing executed by K-Z Evergreen and each Family Stockholder and with the prior written consent of Parent and the Company (not to be unreasonably withheld, conditioned or delayed). This commitment letter, together with the K-Z LLC Equity Commitment Letter, the Trident Equity Commitment Letter, the Rollover Agreement and the Merger Agreement, contain the entire understanding of the Parties with respect to the subject matter hereof, and supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, oral or written, respecting such subject matter.

Section 9. Assignment. The Closing Commitment and Damages Commitment evidenced by this commitment letter shall not be assignable by K-Z Evergreen without the Family Stockholders’, the Parent’s and the Company’s prior written consent, and the granting of such consent in a given instance shall be solely in the discretion of the Family Stockholders, Parent and the Company (with the Company’s consent not to be unreasonably withheld, conditioned or delayed) and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Except as expressly permitted in Section 1 hereof, no transfer of any rights or obligations hereunder by the Family Stockholders shall be permitted without the consent of K-Z Evergreen, Parent and the Company. In addition, the rights of K-Z Evergreen may not be assigned without the Family Stockholders’, Parent’s and the Company’s prior written consent (with the Company’s consent not to be unreasonably withheld, conditioned or delayed). Any purported transfer or assignment of any portion of a party’s rights or obligations hereunder in contravention of this Section 9 shall be null and void ab initio.

Section 11. Parties in Interest; Third Party Beneficiaries. This commitment letter is for the sole benefit of and shall be binding upon K-Z Evergreen and the Family Stockholders and their respective successors and permitted assigns. Nothing in this commitment letter, express or implied, is intended to or shall confer upon any person other than K-Z Evergreen and the Family Stockholders any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this commitment letter, except as provided in Section 4 hereof with respect to Sponsor Related Parties, in Section 12 hereof with respect to Non-Recourse Parties, and that each of the Parent and the Company shall be an express third-party beneficiary of this commitment letter and shall be entitled to seek a decree or order for specific performance to cause K-Z Evergreen to draw down the full proceeds of the Closing Commitment or Damages Commitment, as applicable, and for the Family Stockholders to fund the Closing Commitment or Damages Commitment, as applicable, and to specifically enforce the other provisions of this commitment letter, in each case, subject to the terms and conditions hereof, but only

in the event that the Company would be able to obtain specific performance of the Parent’s obligation to enforce the draw down of the Closing Commitment under the K-Z LLC Equity Commitment Letter or Damages Commitment under the K-Z LLC Equity Commitment Letter pursuant to, and in accordance with, Section 8.06(d) of the Merger Agreement. For the avoidance of doubt, the Closing Commitment or the Damages Commitment, as applicable, will be funded to K-Z Evergreen and under no circumstances will the Parent or the Company be entitled to or seek that the Family Stockholders fund, or cause the funding, of the Closing Commitment or the Damages Commitment, as applicable, directly to the Parent or the Company. None of K-Z Evergreen’s or the Parent’s creditors (other than the Company to the extent that (a) the Company is a creditor of K-Z Evergreen or the Parent and (b) the Company is a third party beneficiary of this commitment letter) shall have any right to enforce this commitment letter or to cause K-Z Evergreen to enforce this commitment letter and none of the Parent’s or the Company’s equity holders or creditors shall have any right to enforce or cause K-Z Evergreen to enforce this commitment letter.

Section 12. Non-Recourse. Except to the extent expressly set forth in this commitment letter or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this commitment letter, K-Z Evergreen acknowledges and agrees that (a) all claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this commitment letter, or the negotiation, execution or performance of this commitment letter (including any representation or warranty made in or in connection with this commitment letter or as an inducement to enter into this commitment letter), may be made only against the Family Stockholders and (b) no Non-Recourse Party shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this commitment letter or for any claim based on, in respect of, or by reason of this commitment letter or its negotiation or execution, and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Recourse Party. Recourse against the Family Stockholders pursuant to this commitment letter shall be the sole and exclusive remedy of K-Z Evergreen, Parent, Merger Sub and all of their respective Affiliates against the Family Stockholders and the other Non-Recourse Parties (other than K-Z Evergreen pursuant to the K-Z LLC Equity Commitment Letter) in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the Transactions. Notwithstanding Parent’s and the Company’s rights as third party beneficiary hereunder as contemplated by Section 11 hereof, each of Parent and the Company is subject to this Section 12 hereof to the same extent as K-Z Evergreen. Non-Recourse Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

Section 13. Confidentiality. This commitment letter shall be treated as confidential and is being provided to K-Z Evergreen solely in connection with the Transactions. This commitment letter may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of K-Z Evergreen and the Family Stockholders. The foregoing notwithstanding, this commitment letter shall be provided to Parent and the Company, and Parent, the Company and the undersigned may

disclose the existence of this commitment letter (a) to its Affiliates and representatives, (b) to the extent required by applicable law, requested by a Government Entity or to the extent required in connection with any regulatory filings relating to the Merger Agreement or the transactions contemplated thereby and (c) in connection with any Action relating to the Merger Agreement or the transactions contemplated thereby.

[Remainder of this page left intentionally blank]

Please countersign a copy of this commitment letter and return it to confirm your agreement with the terms set forth in this commitment letter.

Sincerely,

/s/ Barry D. Zyskind

Barry D. Zyskind

/s/ George Karfunkel

George Karfunkel

/s/ Leah Karfunkel

Leah Karfunkel


ACCEPTED:

K-Z Evergreen, LLC
c/o The Corporation Trust Company
Corporation Trust Center 1209 Orange Street
Wilmington, DE 19801

By:		/s/ Barry D. Zyskind
Name:		Barry D. Zyskind
Title:		Manager

EX-99.12 7 d537102dex9912.htm EX-99.12 EX-99.12

Exhibit 99.12

Trident VII, L.P.

Trident VII Parallel Fund, L.P.

Trident VII DE Parallel Fund, L.P.

Trident VII Professionals Fund, L.P.

c/o Stone Point Capital LLC

20 Horseneck Lane

Greenwich, CT 06830

March 1, 2018

Trident Pine Acquisition LP

c/o Stone Point Capital LLC

20 Horseneck Lane

Greenwich, CT 06830

Ladies and Gentlemen:

Concurrently with the execution of this commitment letter, Trident Pine Acquisition LP has entered into a letter agreement (“Trident Pine Equity Commitment Letter”) committing, subject to the terms and conditions set forth therein, to fund an aggregate amount equal to up to the amount of the Closing Commitment or Damages Commitment, as applicable, to Parent.

Section 1. Commitments.

(a) Closing Commitment. Trident VII, L.P., Trident VII Parallel Fund, L.P., Trident VII DE Parallel Fund, L.P. and Trident VII Professionals Fund, L.P. (collectively, the “Trident VII Funds”) hereby commit, severally but not jointly, and subject to the terms and conditions set forth in Section 3(a) hereof, that, immediately prior to the Closing, each shall agree to fund the amounts set forth opposite their names on Schedule 1 (each, the applicable “Closing Commitment”) to Trident Pine solely to allow Trident Pine to (A) pay a portion of the aggregate Merger Consideration and all other amounts required to be paid or repaid by Parent or its Affiliates on the Closing Date in connection with the transactions contemplated by the Merger Agreement, (B) pay any and all fees and expenses required to be paid by Parent at the Closing in and (C) satisfy all of the other payment obligations of Parent contemplated by the Merger Agreement and payable on the Closing Date. The amount of the Closing Commitments to be funded under this commitment letter immediately prior to the Closing may be reduced dollar for dollar on a

pro rata basis along with any reduction to the Closing Commitment under the Trident Pine Equity Commitment Letter pursuant to the terms thereof.

(b) Damages Commitment. The Trident VII Funds hereby commit, severally but not jointly, and subject to the terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and the aggregate amount of such Damages, the “Damage Amount”), the Trident VII Funds hereby commit to Trident Pine that they shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Trident Pine with an aggregate purchase price not to exceed the amounts set forth opposite their names on Schedule 1 (each, the applicable “Maximum Damage Commitment Amount”) solely to allow Trident Pine to fund a portion of the aggregate Damage Amount to be paid by Parent or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, in no event shall the Trident VII Funds be obligated to fund or otherwise pay to Trident Pine or any other Person any amount in excess of the Maximum Damages Commitment Amount applicable to them. If the Damage Amount under the Trident Pine Equity Commitment Letter is reduced pursuant to the terms thereof, then the Damages Commitment hereunder shall be reduced dollar for dollar on a pro rata basis along with any reduction to the Damages Commitment under the Trident Pine Equity Commitment Letter pursuant to the terms thereof.

(c) Interaction of Commitments. In no event shall the Trident VII Funds be required to fund both the Closing Commitment and the Damages Commitment.

(d) Covenants of the Trident VII Funds.

(i) In accordance with applicable Law, each of the Trident VII Funds shall use its reasonable best efforts (i) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this commitment letter and the Merger Agreement as promptly as practicable and (ii) to make or obtain, as applicable (and to cooperate with the other Parties to make or obtain, as applicable), any consents, approvals, authorizations, waivers, permits, filings and notifications of any Governmental Entity necessary, proper or advisable to be made or obtained, as applicable, in connection with the transactions contemplated by this commitment letter and the Merger Agreement. Trident Pine agrees that it shall use its reasonable best efforts to cooperate with Parent with respect to the obtaining of all consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this commitment letter.

(ii) Notwithstanding anything to the contrary in this commitment letter, with respect to the Required Regulatory Approvals, none of the Trident VII Funds shall be obligated to take or refrain from taking, or to agree to it or its Affiliates taking or refraining from taking, any action, or to permitting or suffering to exist any restriction, condition, limitation or requirement which, individually or together with all other such actions, restrictions, conditions, limitations or requirements imposed by with respect to the Required Regulatory Approvals would or would reasonably be expected to result in a Burdensome Condition.

(iii) The Trident VII Funds agree to promptly provide to Parent any information about the Trident VII Funds or their Affiliates that Parent or the Company reasonably determines upon the advice of counsel is required to be included in the Proxy Statement, Schedule 13E-3 or any other any other filing or notification with any Governmental Authorities in connection with the Merger and the transactions contemplated by the Merger Agreement, this commitment letter and the Rollover Agreement.

Section 2. Use of Proceeds. The proceeds of the Closing Commitment and Damages Commitment will be used by Trident Pine solely for the purposes set forth in Section 1(a) and Section 1(b) hereof, respectively.

Section 3. Conditions.

(a) Closing Commitment Conditions. The Trident VII Funds’ obligation to fund the portion of the Closing Commitment applicable to them is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by Company; (B) the continued satisfaction in full or waiver by the Parent of all conditions in Sections 6.01 and 6.03 of the Merger Agreement upon the date the Closing is required to have occurred pursuant to Section 2.03 of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing but provided such conditions are satisfied at the Closing or waived by Parent at the Closing); (C) the substantially concurrent funding or consummation of the transactions contemplated pursuant to (i) the commitment letter from K-Z Evergreen, LLC (“K-Z LLC”) to Parent and back-to-back commitment letters from each of Barry Zyskind, George Karfunkel and Leah Karfunkel to K-Z Evergreen, LLC (collectively, the “K-Z LLC Equity Commitment Letters”) and (ii) the Rollover Agreement; provided, that the failure of the condition in this clause (C) to be satisfied shall not limit Trident Pine’s, Parent’s or the Company’s ability to seek to enforce the obligations of the Trident VII Funds hereunder in accordance with the terms hereof if (x) Trident Pine, Parent, or the Company, is also concurrently seeking enforcement of the K-Z LLC Equity Commitment Letters to the extent not funded (and the contemporaneous funding thereof) and the Rollover Agreement (and the contemporaneous contribution of Company common stock to Parent thereunder) or (y) each of K-Z LLC, Barry Zyskind, George Karfunkel, Leah Karfunkel and the Rollover Stockholders has satisfied, or is prepared to satisfy, its obligations under the K-Z LLC Equity Commitment Letters or the Rollover Agreement, as applicable; and (D) the contemporaneous consummation of the Closing pursuant to Section 2.03 of the Merger Agreement or a final, non-appealable and binding order or judgement awarding specific performance to cause Parent to

consummate the Closing pursuant to Sections 8.06(c) and 8.06(d) of the Merger Agreement.

(b) Damages Commitment Conditions. Each of the Trident VII Funds’ obligation to fund the Damages Commitment is subject to, and conditioned upon: (A) the execution and delivery of the Merger Agreement by the Company and (B) the Damages Amount being (i) judicially determined by a final, non-appealable and binding judgment of a court of competent jurisdiction or (ii) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company.

Section 4. Sponsor Related Parties. The Company’s right to seek specific performance under this commitment letter pursuant to Sections 5 and 11 hereof (subject to the terms hereof) are intended to be the sole and exclusive direct or indirect remedies available to the Company and any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of the Company against (a) the Trident VII Funds, (b) any former, current or future director, officer, employee, agent, general or limited partner, manager, “principal”, member, stockholder or Affiliate of the Trident VII Funds (including Trident Pine (provided, for clarity, nothing herein shall affect the Company’s rights against Trident Pine pursuant to the Trident Pine Equity Commitment Letter), other than Parent and Merger Sub, or (c) any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, or Affiliate of any of the persons referred to in clause (b) above, other than Parent and Merger Sub (the persons referred to in clauses (a) through (c) above, each a “Sponsor Related Party”), in respect of any liabilities or obligations arising under, or in connection with, this commitment letter or the Merger Agreement and the transactions contemplated hereby and thereby, including in the event the Parent or the Merger Sub breaches their respective obligations under the Merger Agreement. Under no circumstances shall any Sponsor Related Party be liable for special, incidental, consequential, exemplary or punitive damages under or in connection with the Merger Agreement, this commitment letter or the transactions contemplated or otherwise incidental thereby or hereby. Sponsor Related Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

Section 5. Termination. This commitment letter and the obligation of the Trident VII Funds to fund the portion of the Closing Commitment or Damages Commitment applicable to them will terminate automatically and immediately upon the earliest to occur of (a) the consummation of the Closing, (b) the valid termination of the Merger Agreement in accordance with its terms unless (i) the Company shall have terminated the Merger Agreement pursuant to Section 7.01(d) of the Merger Agreement (a “Specified Termination”) and (ii) the Company shall have notified Parent in writing within fifteen (15) Business Days following the effectiveness of the Specified Termination that it intends to initiate legal proceedings for Damages (in which case the obligation of the Trident VII Funds to fund the portion of the Closing Commitment applicable to them shall terminate but the obligation of Trident VII Funds to fund their applicable Damages Commitment shall continue subject to the proviso below) and (c) except as expressly contemplated by Section 11 hereof, the Company or any of its Affiliates, directly or indirectly, asserting a claim or commencing an Action (in each case,

whether in tort, contract or otherwise) against Trident Pine, the Trident VII Funds or any other Sponsor Related Party (each a “Non-Recourse Party”) in each case with respect to this commitment letter, the Merger Agreement or any of the transactions contemplated hereby or thereby (including in respect of any oral representations made or alleged to be made in connection herewith or therewith); provided, that in the case of clause (ii) this commitment letter will terminate automatically and immediately unless the Company shall have initiated legal proceedings against Parent within sixty (60) days following the effectiveness of the Specified Termination, in which case this commitment letter and the obligation of the Trident VII Funds to fund their applicable Damages Commitment will terminate automatically and immediately upon the earlier of (w) the execution of a binding settlement between Parent and the Company, (x) delivery of final, non-appealable and binding judgment of a court of competent jurisdiction rendered against Parent or Merger Sub in favor of the Company in respect of a breach of the Merger Agreement by Parent or Merger Sub, (y) delivery of final, non-appealable and binding judgment of a court of competent jurisdiction determining that Parent and Merger Sub have no liability to the Company under the Merger Agreement; and (z) the funding by each the Trident VII Funds of an amount to Parent equal to their applicable Maximum Damage Commitment Amount, in the case of each of clauses (w) and (x) subject to the payment by Parent of any Damage Amount contemplated by such settlement or final judgment. Notwithstanding anything that may be expressed or implied in this commitment letter or any document or instrument delivered in connection or contemporaneously herewith, in no event shall any Trident VII Fund have any obligation to make any purchase, payment or contribution hereunder at any time after the full Damage Amount contemplated by clause (w) or (x) above has been paid in full or the applicable Trident VII Fund has fully funded to Trident Pine an amount equal to its applicable Maximum Damage Commitment Amount.

Section 6. Representations and Warranties.

Each of the Trident VII Funds represents and warrants to Trident Pine that:

(a) Each of the Trident VII Funds is a limited partnership duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;

(b) The Trident VII Funds have all requisite power and authority and have taken all action necessary in order to execute and deliver, and perform their obligations under, this commitment letter, and to consummate the transactions contemplated by this commitment letter; and no other approval is required for the Trident VII Funds to fulfill their obligations under the Closing Commitment or the Damages Commitment;

(c) this commitment letter has been duly and validly executed, and assuming the due authorization, execution and delivery of this commitment letter by Trident Pine, constitutes the valid and binding obligation of the Trident VII Funds, enforceable against the Trident VII Funds in accordance with its terms, except as may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally or by general equitable principles;

(e) the execution, delivery and performance by the Trident VII Funds of this commitment letter does not and will not (i) violate the limited partnership agreements and any other organizational documents of the Trident VII Funds, (ii) subject to the receipt of consents and approvals of Governmental Entities contemplated by the Merger Agreement, violate any applicable law or order to which the Trident VII Funds or any of their assets are subject or (iii) require any consent or other action by any Person under, constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in any breach of or give rise to any right of termination, cancellation, amendment or acceleration of, any right or obligation under any Contract or otherwise of the Trident VII Funds;

(f) Each of the Trident VII Funds have, and will have at the Closing, access to the funds necessary to pay and perform its obligations under this commitment letter;

(g) Each of the Trident VII Funds have the financial capacity to pay and perform their obligations under this letter agreement (subject to the terms and conditions hereof) and all funds necessary for such Trident VII Funds to fulfill their obligations under this commitment letter shall be available to such Trident VII Funds for so long as this commitment letter shall remain in effect in accordance with the terms hereof;

(h) there are no conditions to the each of the applicable Trident VII Funds applicable Closing Commitment or Damages Commitment except as expressly set forth herein;

(i) the amount that the Trident VII Funds will fund under their applicable Closing Commitment and Damages Commitment is an amount less than the maximum amount each such Trident VII Funds is permitted (by Contract, organizational documents or otherwise) to invest in any single portfolio company investment, or permission to make such investment has been obtained by such Trident VII Funds in accordance with any such Contract, organizational documents or other requirement; and

(j) none of the information to be supplied by or on behalf of the Trident VII Funds for inclusion in the Proxy Statement or the Schedule 13E-3 will (i) in the case of the Schedule 13E-3 (or any amendment thereof or supplement thereto), as of the date of filing and as of the date of the Company Stockholders’ Meeting, and (ii) in the case of the Proxy Statement (or any amendment thereof or supplement thereto), as of the date of filing or mailing to the Company’s stockholders and as of the date of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Section 7. Applicable Law; Jurisdiction.

Section 8. Amendment; Entire Agreement. This commitment letter may be amended only by an agreement in writing executed by Trident Pine and each Trident VII Fund and with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). This commitment letter, together with the Trident Pine Equity Commitment Letter, the K-Z LLC Commitment Letters, the Rollover Agreement and the Merger Agreement, contain the entire understanding of the Parties with respect to the subject matter hereof, and supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, oral or written, respecting such subject matter.

Section 9. Assignment. The Closing Commitment and Damages Commitment evidenced by this commitment letter shall not be assignable by Trident Pine without the Trident VII Funds’, the Parent’s and the Company’s prior written consent, and the granting of such consent in a given instance shall be solely in the discretion of the Trident VII Funds and the Company (with the Company’s consent not to be unreasonably withheld, conditioned or delayed) and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Except as expressly permitted in Section 1 hereof, no transfer of any rights or obligations hereunder by the Trident VII Funds shall be permitted without the consent of Trident Pine, Parent and the Company. In addition,

the rights of Trident Pine may not be assigned without the Trident VII Funds’ and the Company’s prior written consent (with the Company’s consent not to be unreasonably withheld, conditioned or delayed). Any purported transfer or assignment of any portion of a party’s rights or obligations hereunder in contravention of this Section 9 shall be null and void ab initio.

Section 11. Parties in Interest; Third Party Beneficiaries. This commitment letter is for the sole benefit of and shall be binding upon Trident Pine and the Trident VII Funds and their respective successors and permitted assigns. Nothing in this commitment letter, express or implied, is intended to or shall confer upon any person other than Trident Pine and the Trident VII Funds any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this commitment letter, except as provided in Section 4 hereof with respect to Sponsor Related Parties, in Section 12 hereof with respect to Non-Recourse Parties, and that each of the Parent and the Company shall be an express third-party beneficiary of this commitment letter and shall be entitled to seek a decree or order for specific performance to cause Trident Pine to draw down the full proceeds of the Closing Commitment or Damages Commitment, as applicable, and for the Trident VII Funds to fund the Closing Commitment or Damages Commitment, as applicable, and to specifically enforce the other provisions of this commitment letter, in each case, subject to the terms and conditions hereof, but only in the event that the Company would be able to obtain specific performance of the Parent’s obligation to enforce the draw down of the Closing Commitment under the Trident Pine Equity Commitment Letter or Damages Commitment under the Trident Pine Equity Commitment Letter pursuant to, and in accordance with, Section 8.06(d) of the Merger Agreement. For the avoidance of doubt, the Closing Commitment or the Damages Commitment, as applicable, will be funded to Trident Pine and under no circumstances will the Parent or the Company be entitled to or seek that the Trident VII Funds fund, or cause the funding, of the Closing Commitment or the Damages Commitment, as applicable, directly to Parent or the Company. None of Trident Pine’s or the Parent’s creditors (other than the Company to the extent that (a) the Company is a creditor of Trident Pine or the Parent and (b) the Company is a third party beneficiary of this commitment letter) shall have any right to enforce this commitment letter or to cause Trident Pine to enforce this commitment letter and none of the Parent’s or the Company’s equity holders or creditors shall have any right to enforce or cause Trident Pine to enforce this commitment letter.

representation or warranty made in or in connection with this commitment letter or as an inducement to enter into this commitment letter), may be made only against the Trident VII Funds and (b) no Non-Recourse Party shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this commitment letter or for any claim based on, in respect of, or by reason of this commitment letter or its negotiation or execution, and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Recourse Party. Recourse against the Trident VII Funds pursuant to this commitment letter shall be the sole and exclusive remedy of Trident Pine, Parent, Merger Sub and all of their respective Affiliates against the Trident VII Funds and the other Non-Recourse Parties (other than Trident Pine pursuant to the Trident Pine Equity Commitment Letter) in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the Transactions. Notwithstanding the Parent’s and the Company’s rights as third party beneficiary hereunder as contemplated by Section 11 hereof, each of Parent and the Company is subject to this Section 12 hereof to the same extent as Trident Pine. Non-Recourse Parties are expressly intended as third party beneficiaries of this provision of this commitment letter.

Section 13. Confidentiality. This commitment letter shall be treated as confidential and is being provided to Trident Pine solely in connection with the Transactions. This commitment letter may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of Trident Pine and the Trident VII Funds. The foregoing notwithstanding, this commitment letter shall be provided to Parent and the Company, and Parent, the Company and the undersigned may disclose the existence of this commitment letter (a) to its Affiliates and representatives, (b) to the extent required by applicable law, requested by a Government Entity or to the extent required in connection with any regulatory filings relating to the Merger Agreement or the transactions contemplated thereby and (c) in connection with any Action relating to the Merger Agreement or the transactions contemplated thereby.

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Please countersign a copy of this commitment letter and return it to Trident Pine to confirm your agreement with the terms set forth in this commitment letter.


Sincerely,

TRIDENT VII, L.P.

By: Stone Point Capital LLC, its manager

By:		/s/ David Wermuth
Name: David Wermuth
Title: Senior Principal

TRIDENT VII PARALLEL FUND, L.P.

By: Stone Point Capital LLC, its manager

By:		/s/ David Wermuth
Name: David Wermuth
Title: Senior Principal

TRIDENT VII DE PARALLEL FUND, L.P.

By: Stone Point Capital LLC, its manager

By:		/s/ David Wermuth
Name: David Wermuth
Title: Senior Principal

TRIDENT VII PROFESSIONALS FUND, L.P.

By: Stone Point Capital LLC, its manager

By:		/s/ David Wermuth
Name: David Wermuth
Title: Senior Principal


ACCEPTED:

TRIDENT PINE ACQUISITION L.P.

By: Stone Point GP Ltd, its General Partner

By:		/s/ David Wermuth
Name: David Wermuth
Title: Senior Principal

SCHEDULE 1


Trident Fund		Closing Commitment

Trident VII, L.P.		$518,172,544

Trident VII Parallel Fund, L.P.		$251,924,808

Trident VII DE Parallel Fund, L.P.		$4,335,800

Trident VII Professionals Fund, L.P.		$25,566,848

SCHEDULE 2


Trident Fund		Maximum Damages Commitment Amount

Trident VII, L.P.		$15,383,248

Trident VII Parallel Fund, L.P.		$7,479,018

Trident VII DE Parallel Fund, L.P.		$128,719

Trident VII Professionals Fund, L.P.		$759,015