LIMITED WAIVER AGREEMENT
Exhibit 2.2
EXECUTION COPY
This
LIMITED WAIVER AGREEMENT, dated as of August 26, 2008 (this “Agreement”), is made
and entered into by and among Tower Group, Inc., a Delaware corporation (“Parent”), Ocean I
Corporation, a Delaware corporation and an indirect, wholly-owned subsidiary of Parent (“Merger
Sub”), and CastlePoint Holdings, Ltd., a Bermuda exempted company (“Company”).
Reference is hereby made to the Agreement and Plan of Merger, dated as of August 4, 2008 (the
“Merger Agreement”), among Parent, Merger Sub, and Company. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Merger Agreement.
1. Waivers. In accordance with the provisions of Section 7.4 of the Merger Agreement:
(a) Parent Waiver. Parent hereby waives the applicability of the terms and conditions
of Section 4.1 of the Merger Agreement to (i) entry into a stock purchase agreement between
CastlePoint Reinsurance Company, Ltd. (“CPRe”), HIG, Inc. (“HIG”) and Brookfield US
Corporation (“BUSC”), pursuant to which CPRe will acquire 100% of the issued and
outstanding shares of the common stock of HIG (the “Stock Purchase Agreement”), and the
consummation of the transactions contemplated by the Stock Purchase Agreement on the terms and
conditions set forth therein, without waiver or amendment thereof, unless Parent and Merger Sub
have consented to such waiver or amendment in writing, (ii) entry into an asset purchase
agreement between CPRe and certain wholly-owned subsidiaries of Parent, pursuant to which,
following the consummation of the transactions contemplated by the Stock Purchase Agreement, such
wholly-owned subsidiaries of Parent will purchase certain properties, assets and rights of HIG and
its subsidiaries (the “Asset Purchase Agreement”), and the consummation of the transactions
contemplated by the Asset Purchase Agreement on the terms and conditions set forth therein and
(iii) provision of a guarantee by Company in favor of the wholly-owned subsidiaries of
Parent party to the Asset Purchase Agreement (the “Company Guarantee”), pursuant to which,
in connection with the consummation of the transactions contemplated by the Asset Purchase
Agreement, Company will guarantee the payment of all amounts due and payable under the Asset
Purchase Agreement by CPRe, in each case, as previously made available to the independent directors
of the Board of Directors of Parent. Parent hereby acknowledges and agrees that no action or
omission to act required to be taken or omitted by Company or any of its subsidiaries pursuant to
the terms of the Stock Purchase Agreement, the Asset Purchase Agreement or the Company Guarantee
shall constitute or give rise to a breach of the representations and warranties of Company in
Section 3.1 of the Merger Agreement.
(b) Company Waiver. Company hereby waives the applicability of the terms and
conditions of Section 4.2 of the Merger Agreement to (i) entry into the Asset Purchase
Agreement and the consummation of the transactions contemplated by the Asset
Purchase Agreement on the terms and conditions set forth therein and (ii) provision of
a guarantee by Parent in favor of CPRe (the “Parent Guarantee”), pursuant to which Parent
will
guarantee the payment of all amounts due and payable under the Asset Purchase Agreement by
Parent’s wholly-owned subsidiaries party thereto, in each case, as previously made available to the
independent directors of the Board of Directors of Company. Company hereby acknowledges and agrees
that no action or omission to act required to be taken or omitted by Parent or any of its
subsidiaries pursuant to the terms of the Stock Purchase Agreement, the Asset Purchase Agreement or
the Parent Guarantee shall constitute or give rise to a breach of the representations and
warranties of Parent in Section 3.2 of the Merger Agreement.
2. Miscellaneous. Except as expressly provided hereby, the Merger Agreement shall
remain in full force and effect in accordance with its terms. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, regardless of the law that
might be applied under principles or rules of conflict of laws to the extent such principles or
rules would permit or require the application of the laws of another jurisdiction, except to the
extent that, in the case of Company, Bermuda law is applicable. If any provision or provisions of
this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be affected or impaired
thereby. This Agreement may be executed in separate counterparts (including via facsimile or other
electronic means), each such counterpart shall be deemed an original, and all such counterparts
shall together constitute the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their authorized
representatives as of the date first above written.
By: |
/s/ Xxxxxxx X. Xxxxxxxxx | |||
| Title: Chief Financial Officer and Treasurer | ||||
| OCEAN I CORPORATION | ||||
By: |
/s/ Xxxxxxx X. Xxxxxxxxx | |||
| Title: Treasurer | ||||
| CASTLEPOINT HOLDINGS, LTD. | ||||
By: |
/s/ Xxx X. Xxx Xxxxxx | |||
| Title: Chairman of Special Committee | ||||
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