exv10w1





EXHIBIT 10.1



VOTING AGREEMENT




          THIS VOTING AGREEMENT (this “Agreement”) made and entered into as of June 27, 2008, by and
among Allied World Assurance Company Holdings, Ltd, a Bermuda company (“Parent”), Allied World
Merger Company, a Delaware corporation and a wholly owned subsidiary of Parent (“MergerCo”), and
Alleghany Insurance Holdings, LLC (“Stockholder”), a Delaware limited liability company and wholly
owned subsidiary of Alleghany Corporation, a Delaware corporation (“Stockholder Parent”).




          WHEREAS, Darwin Professional Underwriters, Inc., a Delaware corporation (the “Company”),
Parent and MergerCo are entering into an Agreement and Plan of Merger dated the date hereof (the
“Merger Agreement”), providing for the merger of MergerCo with and into the Company, with the
Company continuing as the surviving corporation (the “Merger”); and




          WHEREAS, Stockholder owns approximately 9,371,096 shares (the “Shares”) of Common Stock, par
value $0.01 per share of the Company (“Company Common Stock”).




          NOW, THEREFORE, in consideration of the execution and delivery by Parent of the Merger
Agreement and the mutual covenants, conditions and agreements contained herein and therein, the
parties agree as follows:




ARTICLE 1 — AGREEMENTS




          1.01 Voting Agreements.




          (A) During the Term (as defined below) at any meeting of stockholders of the Company or at
any adjournment or postponement thereof at which a vote in favor of the Merger Agreement is sought,
Stockholder shall vote (or cause to be voted) a number of shares of Company Common Stock equal to
forty percent (40%) of the shares of Company Common Stock outstanding and entitled to vote as of
the relevant meeting of stockholders in favor of the adoption of the Merger Agreement. On the date
that is three (3) Business Days prior to the date of the applicable meeting of stockholders of the
Company (or the applicable adjournment or postponement thereof), Stockholder shall deliver and
grant a revocable proxy to the proxyholders named in the Company’s proxy card (the “Proxyholders”)
granting the Proxyholders the power and authority to vote the number of Stockholder’s shares of
Company Common Stock that is equal to forty percent (40%) of the shares of Company Common Stock
outstanding and entitled to vote as of the relevant meeting of stockholders in favor of the
adoption of the Merger Agreement as contemplated by this Section 1.01(A) and Stockholder shall not,
during the Term, amend, withdraw, revoke, alter, modify or change such proxy at any time prior to
the date of such meeting of stockholders of the Company (or such adjournment or postponement
thereof); provided, however, that Stockholder may amend, withdraw, revoke, alter, modify or change
such proxy if such meeting (or the applicable adjournment or postponement thereof) is postponed or
adjourned for a date more than three (3) Business Days after such amendment, withdrawal,
revocation, alteration, modification, or change; provided, further, however, that notwithstanding
any such amendment, withdrawal, revocation, alteration, modification, or change, Stockholder’s
obligations pursuant to this Section 1.01(A) (and the exceptions to those obligations) shall apply,
during the Term, with respect to any meeting convened following such a postponement, or




 









 





reconvened following such an adjournment, at which a vote in favor the Merger Agreement is
sought.




          (B) During the Term at any meeting of stockholders of the Company or at any adjournment or
postponement thereof, in any action by written consent of the stockholders of the Company, or in
any other circumstances upon which the vote, consent or other approval of the Stockholder is
sought, Stockholder shall vote (or cause to be voted) the Shares (i) notwithstanding Section 1.03
of this Agreement, against any Company Acquisition Proposal; and (ii) against any other proposal or
action that could reasonably be expected to impede, interfere with, delay or postpone the Merger or
change in any manner the voting rights of any class of shares of the Company (including any
amendments to the Company Charter or Company Bylaws).




          1.02 Transfers. During the Term, Stockholder shall not (i) sell, transfer, pledge,
assign, or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to any
Transfer of, any Shares or any interest therein, except pursuant to the Merger, or (ii) except as
does not prohibit compliance with this Agreement, grant any proxy, power-of-attorney or other
voting authorization in or with respect to the Shares or deposit the Shares into a voting trust or
enter into a voting agreement or voting arrangement with respect to the Shares.




          1.03 No Solicitation. During the Term, Stockholder shall not take any action
prohibited by Section 7.03(a) of the Merger Agreement that would be prohibited if it were a
representative of the Company other than at a time that the Company has informed Stockholder that
the Company or its representative or the Company Board is permitted to take such actions under
Section 7.03(a). Notwithstanding any other provisions of this Agreement (including Section 1.02
and this Section 1.03), Stockholder may enter into any agreement with respect to a Company
Acquisition Proposal concurrently with the Company entering into an agreement with respect to such
Company Acquisition Proposal; provided, however, that the Company has deemed such Company
Acquisition Proposal to be a Company Superior Proposal.




          1.04 Ownership. Neither Parent, MergerCo, nor any of their respective subsidiaries
was, prior to the execution hereof, or will become, nor will Parent or MergerCo, or any of their
respective subsidiaries cause any of such entities’ respective “Affiliates” to become, prior to the
Merger Effective Time, a “10% Stockholder” (as those terms are defined in Article EIGHTH of the
Restated Certificate of Incorporation of Stockholder Parent (“Article EIGHTH”)). Neither Parent,
MergerCo, nor any of their respective subsidiaries was, prior to the execution hereof, or will
become, nor will Parent or MergerCo, or any of their respective subsidiaries cause any of such
entities’ respective “affiliates” or “associates” to become, prior to the Merger Effective Time, an
“interested stockholder” of Stockholder Parent (as those terms are defined in Section 203 of the
DGCL (“Section 203”)). Parent and MergerCo acknowledge that if (i) Parent, MergerCo, any of their
respective subsidiaries, or any of such entities’ Affiliates were, prior to the date hereof, or
become a 10% Stockholder or (ii) Parent, MergerCo, any of their respective subsidiaries, or any of
such entities’ affiliates or associates were, prior to the date hereof, or become an interested
stockholder of Stockholder Parent, in each case prior to the Merger Effective Time, the
restrictions contained in Article EIGHTH or Section 203, respectively, could come into effect such
that the Stockholder Parent could not cause the Stockholder to take the actions contemplated by
Section 1.01(A) without approval by the




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stockholders of Stockholder Parent, in which case it shall not be a breach of this Agreement
if Stockholder does not take the actions contemplated by Section 1.01(A).




ARTICLE
2 — REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER



          2.01 Authority Relative to this Agreement. Stockholder has all necessary limited
liability company power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of this Agreement by Stockholder
have been duly and validly authorized by all necessary limited liability company action on the part
of Stockholder, and no other limited liability company proceedings on the part of Stockholder are
necessary to authorize this Agreement or to perform the obligations hereunder. This Agreement has
been duly executed and delivered by, and (assuming the due authorization, execution and delivery by
Parent and MergerCo) constitutes a legal, valid and binding Agreement of, Stockholder, enforceable
against Stockholder in accordance with these terms, except as such enforcement may be subject to or
limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
Laws, now or hereafter in effect, relating to or affecting creditors’ rights generally and (ii) the
effect of general principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) (collectively, the “Enforceability Exceptions”).




          2.02 No Conflict. Assuming compliance with Section 1.04, neither the execution and
delivery of this Agreement nor the performance by Stockholder of its obligations hereunder will
result in a violation of, or a default under, or conflict with, (A) any provision of its
certificate of incorporation, bylaws or limited liability company agreement or (B) any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such
Stockholder is a party or bound or to which the Shares are subject, except, in the case of clause
(B), as would not prevent, delay or otherwise materially impair such Stockholder’s ability to
perform its obligations hereunder. Assuming compliance with Section 1.04, execution, delivery and
performance of this Agreement by Stockholder will not violate, or require any consent, approval or
notice under, any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to Stockholder or the Shares, except (x) for any reports under Sections 13(d) and 16 of
the Exchange Act as may be required in connection with this Agreement and the transactions
contemplated hereby or (y) as would not reasonably be expected to prevent, delay or otherwise
materially impair Stockholder’s ability to perform its obligations hereunder.




          2.03 Title to Shares. Stockholder is the beneficial owner and record owner of the
Shares. Stockholder does not beneficially own any securities convertible into or exercisable for
any shares of Company Common Stock or any other securities of the Company having voting rights
other than the Shares. Stockholder has the sole right and power to vote such shares, and no other
Person has the right and power to vote such shares on all matters submitted to holders of shares of
Company Common Stock. The Shares are held by Stockholder, or by a nominee or custodian for the
benefit of Stockholder, free and clear of all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other encumbrances or limitations of
voting rights whatsoever, except for any such encumbrances arising hereunder or as would not
reasonably be expected to prevent, delay or otherwise materially impair Stockholder’s ability to
perform its obligations hereunder.




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ARTICLE 3 — REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGERCO




          3.01 Authority Relevant to this Agreement. Each of Parent and MergerCo has all
necessary corporate power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of this Agreement by Parent and
MergerCo have been duly and validly authorized by all necessary corporate action on the part of
Parent and MergerCo, and no other corporate proceedings on the part of either of Parent or MergerCo
are necessary to authorize this Agreement or to perform the obligations hereunder. This Agreement
has been duly executed and delivered by, and (assuming the due authorization, execution and
delivery by Stockholder) constitutes a legal, valid and binding Agreement of, Parent and MergerCo,
enforceable against Parent and MergerCo in accordance with these terms, except as such enforcement
may be subject to or limited by the Enforceability Exceptions.




          3.02 No Conflict. Neither the execution and delivery of this Agreement nor the
performance by Parent and MergerCo of their obligations hereunder will result in a violation of, or
default under, or conflict with (A) any provision of either such parties’ memorandum of
association, certificate of incorporation, bylaws or byelaws or (B) any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind to which Parent or
MergerCo is a party or bound except, in the case of clause (B), as would not prevent, delay or
otherwise materially impair the ability of Parent or MergerCo to perform its obligations hereunder.
Execution, delivery and performance of this Agreement by Parent and MergerCo will not violate, or
require any consent, approval or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to Parent or MergerCo except (x) for any reports under
Sections 13(d) and 16 of the Exchange Act as may be required in connection with this Agreement and
the transactions contemplated hereby or (y) as would not reasonably be expected to prevent, delay
or otherwise materially impair such party’s ability to perform its obligations hereunder.




ARTICLE 4 — MISCELLANEOUS




          4.01 Capacity. Stockholder is entering into this Agreement solely in its capacity as
the record holder or beneficial owner of the Shares and nothing herein shall limit or affect any
actions taken by Stockholder or any of its Affiliates or associates in the capacity of director or
officer of the Company, and no such person who is or becomes during the term hereof a director or
officer of the Company shall be deemed to make any agreement or understanding in this Agreement in
such person’s capacity as a director or officer.




          4.02 Termination. This Agreement, and all rights and obligations of the parties
hereunder, shall terminate upon (and shall only be effective from the date hereof until) the first
to occur of (a) the Merger Effective Time, (b) the date upon which the Merger Agreement is
terminated in accordance with its terms, (c) the date of an Adverse Recommendation Change, (d)
unless consented to by Stockholder, the date of any amendment to the Merger Agreement that is
materially adverse to the Company, its stockholders or Stockholder (including, without limitation,
any decrease in or change in the form of the consideration to be paid to stockholders or



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the addition of any material obligation or liability on the part of the Company or its
stockholders) (such period from the date hereof until such termination is referred to herein as the
“Term”); provided, however, that notwithstanding the foregoing, this Article IV shall survive any
termination of this Agreement.




          4.03 Notices. All notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by prepaid overnight courier (providing proof of delivery), by
facsimile or by registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses or facsimile numbers (or at such other address for a
party as shall be specified by like notice):



if to Parent or MergerCo:



Allied World Assurance Company Holdings, Ltd

27 Richmond Road

Pembroke HM 08, Bermuda

Facsimile No.: 441-295-5117

Attention: Wesley D. Dupont, General Counsel



with a copy to:



Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY 10019

Facsimile No: 212-728-9763

Attention: Steven A. Seidman, Esq.



if to Stockholder:



Alleghany Insurance Holdings, LLC

7 Times Square Tower

New York, NY 10036

Facsimile No: 212-759-8149

Attention: Robert M. Hart, Senior Vice President, Secretary & General Counsel



with a copy to:



Morris, Nichols, Arsht & Tunnell LLP

1201 N. Market Street

P.O. Box 1347

Wilmington, DE 19899-1347

Facsimile No.: (302) 658-3989

Attention: Frederick H. Alexander, Esq.




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          4.04 Forum. Except as set out below, each of the Parent, MergerCo and Stockholder
hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of
the courts of the State of Delaware or any court of the United States located in the State of
Delaware (the “Delaware Courts”) for any litigation arising out of or relating to this
Agreement, or the negotiation, validity or performance of this Agreement (and agrees not to
commence any litigation relating thereto except in such courts), waives any objection to the laying
of venue of any such litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any inconvenient forum.
Each of the parties hereto agrees, (i) to the extent such party is not otherwise subject to service
of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as
such party’s agent for acceptance of legal process, and (ii) that service of process may also be
made on such party by prepaid certified mail with a proof of mailing receipt validated by the
United States Postal Service constituting evidence of valid service. Service made pursuant to (i)
or (ii) above shall have the same legal force and effect as if served upon such party personally
within the State of Delaware.




          4.05 Interpretation. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. Capitalized terms used but not defined herein shall have the
meaning set forth in the Merger Agreement.




          4.06 Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in two or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.




          4.07 Entire Agreement. This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement among the parties with respect to the subject
matter hereof, and supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.




          4.08 Governing Law. All disputes, claims or controversies arising out of or relating
to this Agreement, or the negotiation, validity or performance of this Agreement, shall be governed
by and construed in accordance with the laws of the State of Delaware without regard to its rules
of conflict of laws.




          4.09 Amendment. No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by such party.




          4.10 Parties in Interest. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to
or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.




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          4.11 Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties without the prior written consent of the other parties. Any
assignment in violation of the foregoing shall be void.




          4.12 Further Assurances. Stockholder shall, without further consideration, and at its
own expense, from time to time, perform such further acts and execute and deliver, or cause to be
executed and delivered, such additional or further consents, documents and other instruments as
Parent may request for the purpose of effectuating the matters covered by this Agreement or that
are necessary to vest in Parent the power to carry out and give effect to the provisions of this
Agreement; provided, however, that in no event shall the Stockholder be required to incur expenses
in excess of $50,000 pursuant to this Section 4.12.




          4.13 Certain Events. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the Company affecting
the Company Common Stock or other voting securities of the Company, the number of Shares shall be
deemed adjusted appropriately and this Agreement and the obligations hereunder shall attach to any
additional shares of Company Common Stock or other securities of the Company issued to or acquired
by Stockholder.




          4.14 Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs and expenses.




          4.15 Specific Performance. The parties hereto agree that, in the event any provision
of this Agreement is not performed in accordance with the terms hereof, (a) the non-breaching party
will sustain irreparable damages for which there is not an adequate remedy at law for money damages
and (b) the parties shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity, including an injunction restraining such breach or threatened
breach.




          4.16 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.




[SIGNATURE PAGE FOLLOWS]




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     IN WITNESS WHEREOF, Parent, MergerCo and Stockholder have caused this Agreement to be duly
executed and delivered as of the date first written above.



	 	 	 	 	 	 	 
	 	 	ALLIED WORLD ASSURANCE COMPANY HOLDINGS, LTD	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Scott A. Carmilani	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Scott A. Carmilani	 	 
	 	 	Title: President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Wesley D. Dupont	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Wesley D. Dupont	 	 
	 	 	Title: Senior Vice President, General Counsel
& Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	ALLIED WORLD MERGER COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Scott A. Carmilani	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Scott A. Carmilani	 	 
	 	 	Title: President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Wesley D. Dupont	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Wesley D. Dupont	 	 
	 	 	Title: Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	ALLEGHANY INSURANCE HOLDINGS, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Weston Hicks	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Weston Hicks	 	 
	 	 	Title: Chief Executive Officer	 	 







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