<PAGE> 1
EXHIBIT 2.2
INVESTMENT AGREEMENT
This Agreement (this "Agreement") is made as of July 3, 2000,
by and among B.H. Acquisition Limited, a company organized under the laws of
Bermuda (the "Company"), and each of the investors listed on the counterpart
signature pages hereto (each, an "Investor" and collectively, the "Investors").
In consideration of the agreement of the Investors to invest
in the Company upon the terms and conditions and in the amounts set forth
herein, the Investors and the Company agree and represent as follows:
A. INVESTMENT
1. On April 3, 2000, the Company was incorporated and
issued an aggregate of 12,000 of its shares (the "Shares") to Pembroke Company
Limited, a company organized under the laws of Bermuda ("Pembroke"), as nominee
of the Investors, in the amounts indicated on the signature pages hereof.
2. Each Investor hereby irrevocably agrees to invest,
subject to satisfaction of the conditions set forth in Section B below, the U.S.
dollar amounts in immediately available funds (individually, an "Investment,"
and collectively, the "Investments") set forth on the signature page of such
Investor hereto. The Investments are to be made on the date hereof (the "Closing
Date"). The Investments shall be deposited to the account of the Company at the
bank designated by the Company at least three business days prior to the Closing
Date.
B. CONDITIONS PRECEDENT TO THE INVESTMENTS ON THE CLOSING DATE
The obligation of each Investor to make its Investment is
subject to the satisfaction of the following conditions prior to the Closing
Date:
(i) the transactions contemplated by (A) the Agreement
dated as of March 31, 2000 by and between PetroFina S.A. and B.H.
Acquisition Limited for the sale and purchase of the whole of the
issued share capital of Compagnie Europeenne d'Assurances Industrielles
S.A.("CEAI") and (B) the Agreement dated as of March 31, 2000 by and
among Brittany Holdings Limited, PetroFina S.A. and B.H. Acquisition
Limited for the sale and purchase of the whole of the issued share
capital of Brittany Insurance Company Limited ("BICL") (together, the
"Acquisitions") shall
<PAGE> 2
-2-
have been consummated simultaneously with the transactions contemplated
by this Agreement;
(ii) all material requisite insurance and regulatory
approvals relating to the Acquisitions and the transactions
contemplated by this Agreement shall have been obtained;
(iii) the Investors shall have received on the Closing Date
legal opinions satisfactory to them from Conyers, Dill & Pearman in
respect of the Company as to (A) the due organization of the Company,
(B) the enforceability of the provisions of its bye-laws and the
shareholders agreement among the Company and the Investors (the
"Shareholders Agreement"), as applicable and (C) the due authorization,
issuance and non-assessability of the Shares;
(iv) the statements, representations and warranties made
by the Company and each other Investor in this Agreement and otherwise
in connection with the transactions contemplated hereby shall be true
and accurate in all material respects as of the Closing Date;
(v) the memorandum of association and bye-laws of the
Company shall be substantially in the forms annexed hereto as Exhibits
A and B, respectively;
(vi) the Management Services Agreements (the "Services
Agreements") (x) between CEAI and Castlewood Limited ("Castlewood") and
(y) between BICL and Castlewood, each substantially in the form annexed
hereto as Exhibit C, shall have been duly authorized, executed and
delivered by the parties thereto.
(vii) The Investment Management Agreements (the "Investment
Management Agreements") (x) between CEAI and The Enstar Group, Inc.
("Enstar") and (y) between BICL and Enstar, each substantially in the
form of Exhibit D hereto, shall have been duly executed, authorized and
delivered by the parties thereto.
(viii) the Shareholders Agreement, substantially in form
annexed hereto as Exhibit E, shall have been duly authorized, executed
and delivered.
(ix) The business plan of the Company attached hereto as
Exhibit F shall have been adopted by the board of directors of the
Company.
<PAGE> 3
-3-
C. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
1. Each Investor understands, acknowledges and hereby
covenants and agrees with the Company as follows:
(a) The offering and sale of the Shares was exempt from
registration under the United States Securities Act of 1933, as amended
(the "Act"), by virtue of Section 4(2) of the Act. Except as provided
in the Shareholders Agreement, the Company is under no obligation to
register the Shares on behalf of such Investor or to assist such
Investor in complying with any exemption from registration.
(b) There is no existing public or other market for the
Shares and it is not expected that any such market will develop. There
can be no assurance that such Investor will be able to sell or dispose
of its Shares. Without limiting the generality of the foregoing, in
order not to jeopardize the offering's exempt status under the Act, a
transferee of such Shares may, among other things, be required to
fulfill the investor suitability requirements thereunder.
(c) All certificates for such Investor's Shares shall
bear the following legend:
"THIS SECURITY IS SUBJECT TO RESTRICTIONS
ON TRANSFER AS SET FORTH IN THE SHAREHOLDERS
AGREEMENT DATED AS OF JULY 3, 2000 AND THE COMPANY'S
BYE-LAWS, COPIES OF WHICH MAY BE OBTAINED UPON
REQUEST FROM B.H. ACQUISITION LIMITED OR ANY
SUCCESSOR THERETO."
(d) Such Investor has held and shall hold the Shares
subject to, and shall have voting rights with respect thereto as
specified in, respective organizational documents attached hereto as
Exhibits A, B and E from time to time in effect and shall not assign,
sell, hypothecate or otherwise transfer the Shares, other than in
accordance with applicable law and the provisions with respect thereto
in such documents.
(e) Such Investor covenants and agrees to make all
necessary information concerning such Investor available to the Company
and the appropriate insurance regulatory governmental authorities and
further covenants and agrees to make all necessary filings and acquire
all necessary consents required by the Company or the appropriate
governmental authorities.
<PAGE> 4
-4-
2. Each Investor hereby represents and warrants to the
Company as follows:
(a) Such Investor's Shares were being purchased for such
Investor's own account, and not with a view to distribution, assignment
or resale to others or to fractionalization in whole or in part. No
other person has or will have a direct or indirect beneficial interest
in such Investor's Shares or any component thereof (other than through
the ownership of such Investors). Such Investor has not been formed for
the specific purpose of acquiring Shares.
(b) The financial situation of such Investor is such that
it can afford to bear the economic risk of holding the Shares for an
indefinite period, and such Investor can afford to suffer the complete
loss of its Investment. Such Investor has (i) knowledge and experience
in financial and business matters such that it is capable of evaluating
the risks of the investment in the Shares and (ii) carefully reviewed
the terms and provisions of this Agreement, the Shareholders Agreement
and the Bye-laws, and has evaluated the restrictions and obligations
contained herein and therein.
(c) Each of this Agreement, the Shareholders Agreement,
the Services Agreement (to the extent a party thereto) and the
Investment Management Agreement (to the extent a party thereto) has
been duly authorized, executed and delivered by such Investor and
constitutes a valid and binding obligation of such Investor,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting enforcement of creditors' rights
generally, and no consent, waiver, authorization or approval is
required by any person in connection with the execution and delivery of
this Agreement, the Shareholders Agreement, the Services Agreement (to
the extent a party thereto) and the Investment Management Agreement (to
the extent a party thereto) and such Investor's performance hereunder
and thereunder, except for any such consents, waivers, authorizations
or approvals, the failure of which to obtain would not materially
affect such Investor or the Company.
(d) The execution, delivery and performance of this
Agreement, the Shareholders Agreement, the Services Agreement (to the
extent a party thereto) and the Investment Management Agreement (to the
extent a party thereto), and the consummation of the transactions
contemplated hereby and thereby will not conflict with or violate any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to such Investor, except for any such
conflict or violation that would not be material to such Investor or
the Company.
<PAGE> 5
-5-
3. The Company hereby represents and warrants as
follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of Bermuda. The Company
has full corporate power and authority to execute and deliver this
Agreement, the Shareholders Agreement, the Services Agreement and the
Investment Management Agreement and to perform its obligations
hereunder and thereunder. Each of this Agreement, the Shareholders
Agreement, the Services Agreement and the Investment Management
Agreement is a valid and binding obligation of the Company and is
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting enforcement of creditors' rights
generally.
(b) All of the Shares are duly authorized, validly issued
fully paid and nonassessable, and entitled to the benefits of, and have
the terms and conditions set forth in, this Agreement and the
organizational documents of the Company. At the Closing Date, no
further approval or authority of the shareholders or of the Board of
Directors of the Company will be required for the consummation of the
Acquisitions or the transactions contemplated by this Agreement, except
such as will have been obtained or made and are then in full force and
effect.
D. ADDITIONAL PROVISIONS
1. Modification. This Agreement may not be modified,
amended or supplemented except in writing and signed by the party against whom
any modification, amendment or supplement is sought. No term or condition of
this Agreement may be, or will be deemed to have been, waived except in writing
by the party charged with the waiver. A waiver shall operate only as to the
specific term or condition waived and will not constitute a waiver for the
future or act on anything other than that which is specifically waived.
2. Notices. Any notice or other communications required
or permitted to be given pursuant to this Agreement shall be in writing and
shall be sent (i) by registered or certified mail, return receipt requested,
postage prepaid, (ii) by hand delivery (including courier services), (iii) by
overnight mail or (iv) by telecopier, as follows:
<PAGE> 6
-6-
if to the Company to:
B.H. Acquisition Limited
c/o Conyers Dill & Pearman
Clarendon House
Church Street
Hamilton HM 11, Bermuda
Attention: Graham Collis
Telephone: (441) 295-1422
Telecopier: (441) 292-4720
with a copy to:
Michael A. Becker, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Telephone: (212) 701-3000
Telecopier: (212) 269-5420
and to:
Wolcott B. Dunham, Esq.
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Telecopier: (212) 909-6836
and to:
Castlewood Limited
Windsor Place, 3rd Floor
18 Queen Street
Hamilton, Bermuda HM11
Attention: President
Telecopier: (441) 296-9895
and if to an Investor, at the address of such Investor as set forth in the
Shareholders Agreement or, with respect to the Company and an Investor, to such
other person or address as either party shall specify by like notice to the
other party. Any notice or commu-
<PAGE> 7
-7-
nication shall be deemed given or made (i) when sent by registered or certified
mail, three business days after being sent, return receipt requested, in the
case of a domestic delivery, and 10 business days after being sent, return
receipt requested, in the case of an international delivery; (ii) when delivered
by hand, on the date of delivery; (iii) when sent by overnight mail, on the next
business day, in the case of a domestic delivery, and three business days after
being sent, in the case of an international delivery; and (iv) when telecopied,
transmission confirmed.
3. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be considered an original and all of
which together shall be deemed to be one and the same instrument.
4. Expenses. In the event the Acquisitions are
consummated, the Company shall reimburse each of the Investors for their
reasonable out-of-pocket expenses in connection therewith, in amounts mutually
agreed by the Investors. If the Acquisitions are not consummated, each of
Investors shall bear its own expenses.
5. Successors; Assignability. This Agreement and all of
the terms and provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, provided that
this Agreement is not transferable or assignable by any Investor of such
Investor except to a Permitted Transferree (as defined in the Shareholders
Agreement).
6. Governing Law. The validity and effects of this
Agreement shall be governed by and construed and enforced in accordance with the
laws of Bermuda without giving effect to its principles of conflicts of laws, to
the extent such principles would require the application of the laws of another
jurisdiction.
7. Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto relating to the subject matter hereof
and supersedes all prior agreements, understandings and arrangements, oral or
written, among the parties hereto with respect to the subject matter hereof.
8. Severability. If any one or more of the provisions
contained in this Agreement shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
will not affect any other provision hereof.
9. Currencies. Unless otherwise specifically indicated,
all payments and currency amounts indicated herein refer to and shall be
denominated in United States Dollars. "Dollars" and "$" shall denote United
States Dollars.
<PAGE> 8
IN WITNESS WHEREOF, each Investor has executed this Agreement
as of the date first above-written
CASTLEWOOD LIMITED
By: /s/ Michael Smellie
----------------------------------
Name: Michael Smellie
Title: Director
Amount of Investment: US $13,113,855
Shares Held: 5,400 Class A Shares
THE ENSTAR GROUP, INC.
By: /S/
----------------------------------
Name:
Title: Chairman, President & CEO
Amount of Investment: US $9,616,827
Shares Held: 3,960 Class B Shares
MARTINE LTD.
By: /S/ Rory Gorman
----------------------------------
Name: Rory Gorman
Title: Director
Amount of Investment: US $6,411,218
Shares Held: 2,640 Class C Shares
S-1
<PAGE> 9
IN WITNESS WHEREOF, the Company has executed this Agreement as
of the date first above-written
B.H. ACQUISITION LIMITED
By: /S/ John J. Oros
----------------------------------
Name: John J. Oros
Title: President
S-2
