Exhibit 10.40


 


EXECUTION VERSION


 


CF Corporation


1701 Village Center Circle


Las Vegas, Nevada 89134


 


November
30, 2017


 


Blackstone Tactical Opportunities Advisors LLC


345 Park Avenue


New York, NY 10154


 


Letter Agreement


 


Ladies and Gentlemen:


 


This letter agreement (the
“Letter Agreement”) sets forth the terms of our agreement with Blackstone Tactical Opportunities Advisors LLC
(“BTO Advisors”) with regard to the following matters related to the completion of the transactions contemplated
by that certain Agreement and Plan of Merger, dated as of May 24, 2017, by and among CF Corporation, FGL US Holdings Inc. (“FGL
US Holdings”), FGL Merger Sub Inc. and Fidelity & Guaranty Life (the “Merger Agreement”). Each
capitalized term used but not defined in this Letter Agreement will have the meaning ascribed to it in the Merger Agreement, except
as otherwise provided below.


 


1.         BTO
Advisors Services. In consideration for BTO Advisors providing to CF Corporation and FGL US Holdings due diligence investigations
and corporate strategy and other advice, that in each case helped enable the Merger Agreement to be entered into and the Merger
to be consummated, CF Corporation will pay to BTO Advisors at the closing of the Merger a non-refundable fee of $23 million.


 


2.         No
Modification; Entire Agreement. This Letter Agreement may not be amended or otherwise modified without the prior written
consent of each party hereto. This Letter Agreement constitutes the sole agreement, and supersedes all prior agreements, understandings
and statements, written or oral, among us and any of our Affiliates, and each of you and any of your Affiliates, with respect to
the matters set forth in Paragraph 1.


 


3.         Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. This Letter Agreement, and all claims or causes of action (whether
in contract, tort or otherwise) that may be based upon, arise out of or relating to this Letter Agreement or the negotiation, execution
or performance of this Letter Agreement (including any claim or cause of action based upon, arising out of or related to any representation
or warranty made in or in connection with this Letter Agreement) shall be governed by and construed in accordance with the Laws
of the State of Delaware, without respect to its applicable principles of conflicts of laws that might require the application
of the laws of another jurisdiction. Each of the parties hereby irrevocably and unconditionally (i) submits, for itself and its
property, to the exclusive jurisdiction and venue of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery
does not have jurisdiction over a particular matter, the Superior Court of the State of Delaware (and the Complex Commercial Litigation
Division thereof if such division has jurisdiction over the particular matter), or if the Superior Court of the State of Delaware
does not have jurisdiction, any federal court of the United States of America sitting in the State of Delaware) (“Delaware
Courts”), and any appellate court from any decision thereof, in any Action arising out of or relating to this Letter
Agreement, including the negotiation, execution or performance of this Letter Agreement and agrees that all claims in respect of
any such Action shall be heard and determined in the Delaware Courts, (ii) waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue of any Action arising out of or relating to this
Letter Agreement or the negotiation, execution or performance of this Letter Agreement in the Delaware Courts, including any objection
based on its place of incorporation or domicile, (iii) waives, to the fullest extent permitted by Law, the defense of an inconvenient
forum to the maintenance of such Action in any such court and (iv) agrees that a final judgment in any such Action shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.


 




     


     


    

 


Blackstone Tactical Opportunities Advisors LLC


 


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


 


4.         Equitable
Relief. Each party hereto shall, without prejudice to any rights to judicial relief it may otherwise have, be entitled
to equitable relief, including injunction and/or specific performance, in the event of any breach or threatened breach of the provisions
of this Letter Agreement. Neither party nor its Representatives will oppose the granting of such relief on the basis that the other
party has an adequate remedy at law and agree to waive any requirement for the securing or posting of a bond in connection with
such party seeking or obtaining such relief.


 


5.         Counterparts.
This Letter Agreement may be executed in any number of counterparts (including by facsimile or electronic transmission in “portable
document format”), and all such counterparts shall together constitute one and the same agreement.


 




     


     


    

 


Blackstone Tactical Opportunities Advisors LLC





 


6.         No
Third Party Beneficiaries. The parties hereby agree that their respective representations, warranties and covenants set
forth herein are solely for the benefit of the other party hereto and its successors and permitted assigns, in accordance with
and subject to the terms of this Letter Agreement, and nothing in this Letter Agreement, express or implied, is intended to, and
does not, confer upon any Person other than the parties hereto and their respective successors and permitted assigns any rights
or remedies hereunder or any rights under this Letter Agreement.


 


7.         Confidentiality.
This Letter Agreement may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent
of the parties hereto; provided, that no such written consent shall be required (a) for any disclosure of the existence
or terms of this Letter Agreement to a party’s Representatives with a need to know in connection with the transactions contemplated
by the Merger Agreement, (b) to the extent required by applicable Law, the applicable rules of any national securities exchange
or if required or requested in connection with any required filing or notice with any Governmental Authority relating to the transactions
contemplated by the Merger Agreement or (c) to enforce the rights and remedies under this Letter Agreement.


 


8.         Headings.
The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Letter Agreement.


 


9.         Waiver.
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 right, power or privilege.


 


10.       Severability.
If any provision of this Letter Agreement (or any portion thereof) or the application of any such provision (or any portion thereof)
to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof)
or the application of such provision to any other Persons or circumstances. Notwithstanding the foregoing, the parties intend that
the remedies and limitations thereon contained in this Letter Agreement be construed as an integral provision of this Letter Agreement
and that such remedies and limitations shall not be severable in any manner that increases liability or obligations hereunder of
either party hereto.


 


11.       Assignment.
Neither this Letter Agreement nor any of the rights, interests or obligations under this Letter Agreement shall be assigned or
delegated, in whole or in part, by operation of Law or otherwise by any of the parties without the prior written consent of the
other party. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable
by, the parties and their respective successors and assigns. Any purported assignment in violation of this Section 12 shall be
null and void.


 


[Signature page follows]


 




     


     


    

  


	 	Sincerely,
	 	 
	 	CF CORPORATION
	 	 	 
	 	By:	/s/ Douglas B. Newton
	 	 	Name:  	Douglas B. Newton
	 	 	Title: 	Chief Financial Officer


 


Agreed to and accepted:


 


BLACKSTONE TACTICAL OPPORTUNITIES
ADVISORS LLC


 





	By:	/s/ Christopher J. James	 
	 	Name:  	Christopher J. James	 
	 	Title:	Authorized Signatory