sv8
As filed with the Securities and Exchange Commission on March 5, 2008
Registration No. 333-________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ENSTAR GROUP LIMITED
(Exact name of registrant as specified in its charter)
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Bermuda
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N/A |
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification No.) |
P.O. Box HM 2267
Windsor Place, 3rd Floor, 18 Queen Street
Hamilton HM JX
Bermuda
Telephone: (441) 292-3645
(Address, including zip code, telephone number, including area code, of registrants principal executive offices)
Enstar
Group Limited Employee Share Purchase Plan
(Full title of the plan)
Corporation Service Company
80 State Street
Albany, New York 12207-2543
(800) 927-9800
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Richard J. Harris
Chief Financial Officer
Enstar Group Limited
P.O. Box HM 2267
Windsor Place, 3rd Floor, 18 Queen Street
Hamilton HM JX
Bermuda
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Robert C. Juelke, Esq.
Drinker Biddle & Reath LLP
One Logan Square
18th & Cherry Street
Philadelphia, Pennsylvania 19103 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.
See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
þ Accelerated filer
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Non-accelerated filer o
Smaller reporting company o
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
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Proposed |
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Title of Each Class of |
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Maximum |
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Proposed Maximum |
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Securities to be |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Amount of |
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Registered |
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Registered |
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Share |
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Price |
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Registration Fee |
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Ordinary Shares ($1.00 par value) |
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200,000 |
(1)(2) |
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$ |
99.59 |
(3) |
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$ |
19,918,000 |
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$ |
783 |
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(1) |
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Represents maximum number of ordinary shares of Enstar Group Limited, par value $1.00 per
share, issuable pursuant to the Enstar Group Limited Employee Share Purchase Plan (the Plan)
being registered hereon. |
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(2) |
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Pursuant to Rule 416 of the Securities Act of 1933, as amended, this Registration Statement
covers such additional ordinary shares as may become issuable as a result of any share split,
share dividend or other change in the capitalization of the Registrant. |
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(3) |
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Estimated in accordance with Rule 457(c) and (h)(1), the proposed maximum offering price per
share, proposed maximum aggregate offering price and the
amount of the registration fee are based upon the average of the high and low prices of
Enstar Group Limited ordinary shares as reported on the NASDAQ Global Select Market on
February 29, 2008. |
TABLE OF CONTENTS
Select
Market on February 29, 2008
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. |
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Incorporation of Documents by Reference. |
There are hereby incorporated by reference into this Registration Statement the following
documents and information heretofore filed with the Securities and Exchange Commission (the
Commission) by the Registrant:
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1. |
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The Registrants Annual Report on Form 10-K for the fiscal year ended December 31,
2007, filed with the SEC on February 29, 2008; |
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2. |
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The Registrants Current Report on Form 8-K, filed with the SEC on January 31, 2008; and |
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3. |
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The description of the Registrants share capital contained in Exhibit 99.1 of its
Annual Report on Form 10-K for the fiscal year ended December 31, 2006 and any
amendments or reports filed for the purpose of updating any such description. |
In addition, each document filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective
amendment that indicates that all securities offered hereunder have been sold or that deregisters
all securities then remaining unsold under this registration statement, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated herein by reference shall be deemed to
be modified or superseded for purposes hereof to the extent that a statement contained herein or in
any other subsequently filed document incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
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Item 6. |
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Indemnification of Directors and Officers. |
From and after the effective time of our merger with The Enstar Group, Inc., we agreed to
indemnify and hold harmless all past and present directors, officers, employees and agents of The
Enstar Group, Inc. and its subsidiaries before the consummation of the merger for losses in
connection with any action arising out of or pertaining to acts or omissions, or alleged acts or
omissions, by them in their capacities as such at or before the effective time of the merger.
We will indemnify or advance expenses to such persons to the same extent such persons were
indemnified or had the right to advancement of expenses under The Enstar Group, Inc.s articles of
incorporation, bylaws and indemnification agreements, if any, as these documents existed on the
date of the merger, and to the fullest extent permitted by law. We also have agreed that to the
extent permitted by law, and for a period of six years after the effective time of the merger, the
provisions that were contained in the articles of incorporation and bylaws of The Enstar Group,
Inc. at the time of the merger regarding elimination of liability of directors, indemnification of
officers, directors and employees and advancement of expenses will (i) be included and caused to be
maintained in effect in our memorandum of association and amended and restated bye-laws and (ii) be
included and caused to be maintained in effect in Enstar USA, Inc.s articles of incorporation and
bylaws.
In addition, we have agreed that Enstar USA, Inc. will cause to be maintained, for a period of
six years after the consummation of the merger, the policies of directors and officers liability
insurance and fiduciary liability insurance that were maintained by The Enstar Group, Inc. at the
time of the merger with respect to claims arising from facts or events that occurred at or before
the effective time of the merger. We may substitute policies of at least the same coverage and
amounts containing terms and conditions which are, in the aggregate, no less advantageous to the
insured. Such substitute policies must be issued by insurance companies having the same or better
ratings and levels of creditworthiness as the insurance companies that have issued the current
policies.
Under the Bermuda Companies Act, no indemnification may be provided if the individual is
fraudulent or dishonest in the performance of his or her duties to the Registrant (unless a court
determines otherwise).
Our amended and restated bye-laws provide that all of our directors and officers will be
indemnified and held harmless out of the assets of the Registrant from and against all losses
incurred by such persons in connection with the execution of their duties as directors and
officers, except that such indemnity will not extend to any matter in which such person is found,
in a final judgment or decree not subject to appeal, to have committed fraud or dishonesty. In
addition, our amended and restated bye-laws provide that each shareholder waives any claim, whether
individually or on behalf of the Registrant, against any director or officer on account of any
action taken by such director or officer, or the failure of such director or officer to take any
action in the performance of his duties with or for the Registrant or any subsidiary thereof,
provided that such waiver shall not extend to any matter in respect of any fraud or dishonesty
which may attach to such director or officer.
Our bye-laws do not eliminate our directors fiduciary duties. The limitation on liability
and the waiver of claims of our shareholders may, however, discourage or deter shareholders or
management from bringing a lawsuit against directors for a breach of their fiduciary duties, even
though such an action, if successful, might otherwise have benefited us and our shareholders. This
provision should not affect the availability of equitable remedies such as injunction or rescission
based upon a directors breach of his or her fiduciary duties.
We also have entered into indemnification agreements with our directors and certain officers,
which provide, among other things, that the we will, to the extent permitted by applicable law,
indemnify and hold harmless each indemnitee if, by reason of such indemnitees status as one of our
directors or officers, such indemnitee was, is or threatened to be made a party or participant in
any threatened, pending or completed proceeding, whether of a civil, criminal, administrative,
regulatory or investigative nature, against all judgments, fines, penalties, excise taxes, interest
and amounts paid in settlement and incurred by such indemnitee in connection with such proceeding.
In addition, each indemnification agreement provides for the advancement of expenses incurred by
the indemnitee in connection with any proceeding covered by the agreement, subject to certain
exceptions. None of the indemnification agreements precludes any other rights to indemnification
or advancement of expenses to which the indemnitee may be entitled, including but not limited to,
any rights arising under our governing documents, or any other agreement, any vote of our
shareholders or any applicable law.
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Exhibit |
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Number |
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Description of Document |
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4.1
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Memorandum of Association of Castlewood Holdings Limited (incorporated by reference to Exhibit
3.1 to the proxy statement/prospectus that forms a part of the Registration Statement on Form
S-4 of the Registrant, as filed with the Securities and Exchange Commission and declared
effective December 15, 2006). |
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4.2
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Second Amended and Restated Bye-Laws of the Registrant (formerly Castlewood Holdings Limited)
(incorporated by reference to Exhibit 3.1 of the Registrants Form 8-K12B, as filed with the
Securities and Exchange Commission on January 31, 2007). |
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4.3
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Registration Rights Agreement, dated as of January 31, 2007, by and among Castlewood Holdings
Limited, Trident II, L.P., Marsh & McLennan Capital Professionals Fund, L.P., Marsh & McLennan
Employees Securities Company, L.P., J. Christopher Flowers, Dominic F. Silvester and other
parties thereto set forth on the Schedule of Shareholders attached thereto (incorporated by
reference to Exhibit 10.1 of the Registrants Form 8-K12B, as filed with the Securities and
Exchange Commission on January 31, 2007). |
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4.4*
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Enstar Group Limited Amended and Restated Employee Share Purchase Plan, effective March 1, 2008. |
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5.1*
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Opinion of Conyers Dill & Pearman, Bermuda counsel, regarding legality of securities. |
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23.1*
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Consent of Deloitte & Touche. |
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23.2*
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Consent of Conyers Dill & Pearman, Bermuda counsel (included in Exhibit 5.1). |
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24.1*
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Powers of Attorney (included on signature page). |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective Registration
Statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such information in
the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration Statement relating to the
securities offering herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Hamilton, Bermuda, on this 27th day of
February, 2008.
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ENSTAR GROUP LIMITED
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By: |
/s/ Dominic F. Silvester
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Dominic F. Silvester |
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Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Richard J. Harris and Paul J. OShea, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities, to sign, execute and file this
Registration Statement and any amendments (including, without limitation, post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto and all
documents required to be filed with respect therewith, with the Securities and Exchange Commission
or any regulatory authority, granting unto such attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith and about the premises in order to effectuate the same as fully to all intents
and purposes as he or she might or could do if personally present, hereby ratifying and confirming
all that such attorneys-in-fact and agents or his or their substitute or substitutes, may lawfully
do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities indicated on this 27th day of
February, 2008.
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/s/ Dominic F. Silvester
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/s/ Richard J. Harris |
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Dominic F. Silvester
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Richard J. Harris |
Chief Executive Officer and Director
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Chief Financial Officer (signing in his capacity as both
principal financial officer and principal accounting officer) |
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/s/ Paul J. OShea
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/s/ John J. Oros |
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Paul J. OShea
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John J. Oros |
Executive Vice President and Director
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Executive Chairman and Director |
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/s/ J. Christopher Flowers
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/s/ T. Whit Armstrong |
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J. Christopher Flowers
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T. Whit Armstrong |
Director
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Director |
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/s/ T. Wayne Davis
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/s/ Paul J. Collins |
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T. Wayne Davis
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Paul J. Collins |
Director
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Director |
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/s/ Gregory L. Curl
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/s/ Robert J. Campbell |
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Gregory L. Curl
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Robert J. Campbell |
Director
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Director |
S-1
EXHIBIT INDEX
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Exhibit |
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Number |
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Description of Document |
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4.1
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Memorandum of Association of Castlewood Holdings Limited (incorporated by reference to Exhibit
3.1 to the proxy statement/prospectus that forms a part of the Registration Statement on Form
S-4 of the Registrant, as filed with the Securities and Exchange Commission and declared
effective December 15, 2006). |
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4.2
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Second Amended and Restated Bye-Laws of the Registrant (formerly Castlewood Holdings Limited)
(incorporated by reference to Exhibit 3.1 of the Registrants Form 8-K12B, as filed with the
Securities and Exchange Commission on January 31, 2007). |
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4.3
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Registration Rights Agreement, dated as of January 31, 2007, by and among Castlewood Holdings
Limited, Trident II, L.P., Marsh & McLennan Capital Professionals Fund, L.P., Marsh & McLennan
Employees Securities Company, L.P., J. Christopher Flowers, Dominic F. Silvester and other
parties thereto set forth on the Schedule of Shareholders attached thereto (incorporated by
reference to Exhibit 10.1 of the Registrants Form 8-K12B, as filed with the Securities and
Exchange Commission on January 31, 2007). |
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4.4*
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Enstar Group Limited Amended and Restated Employee Share Purchase Plan, effective March 1, 2008. |
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5.1*
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Opinion of Conyers Dill & Pearman, Bermuda counsel, regarding legality of securities. |
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23.1*
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Consent of Deloitte & Touche. |
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23.2*
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Consent of Conyers Dill & Pearman, Bermuda counsel (included in Exhibit 5.1). |
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24.1*
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Powers of Attorney (included on signature page). |
exv4w4
EXHIBIT 4.4
Amended and Restated
Enstar Group Limited
Employee Share Purchase Plan
(Adopted Effective March 1, 2008)
Enstar Group Limited
Employee Share Purchase Plan
(Effective March 1, 2008)
ARTICLE 1 PURPOSE
The Enstar Group Limited Employee Share Purchase Plan is intended to provide a method whereby
Employees of Enstar Group Limited (the Company) will have an opportunity to acquire a proprietary
interest in the Company through the purchase of ordinary shares of the Company (Shares). It is
the intention of the Company to have the Plan qualify as an employee stock purchase plan under
Section 423 of the United States Internal Revenue Code of 1986, as amended (the Code) with
respect to Participants in the Plan who are United States taxpayers, provided the Plan is approved
by the Companys shareholders within 12 months of its adoption.
ARTICLE 2 DEFINITIONS
2.1 |
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Administrator shall mean the person or committee appointed by the Company to administer the
Plan in accordance with Article 7. |
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Base Pay shall mean regular straight-time earnings and shall exclude all other forms of
compensation. |
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2.3 |
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Employee shall mean any regular employee of the Company. |
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2.4 |
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Enrollment Period shall mean the period prior to the beginning of an Offering Period during
which an Employee may enroll in the Plan. |
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2.5 |
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Fair Market Value shall mean, as of any date with respect to a Share, the closing price of
a Share as reported on the NASDAQ Global Select Market or such other securities exchange on
which such Shares may be primarily traded in the future. |
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2.6 |
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Offering Period shall mean the annual offering of the Companys Shares which shall be the
period beginning each January 1 and ending the following December 31; provided, however, the
first Offering Period shall begin April 1, 2008 and end December 31, 2008. |
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2.7 |
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Plan shall mean the Enstar Group Limited Employee Share Purchase Plan, as from time to time
amended. |
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2.8 |
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Purchase Date shall mean the last business day of each calendar month during each Offering
Period. |
2.9 |
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Purchase Price shall mean 85% of the Fair Market Value of a Share on the Purchase Date. |
ARTICLE 3 ELIGIBILITY AND PARTICIPATION
3.1 |
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Initial Eligibility. Any individual who becomes an Employee of the Company shall be
eligible to participate in the Plan with respect to Offering Periods which commence after such
Employees hire date, provided the Employee makes an election to participate during the
Enrollment Period for such Offering Period; provided further that the Administrator, in its
discretion, may establish a one or more special Enrollment Periods during an Offering Period
for newly-hired Employees. Notwithstanding the foregoing, any highly compensated employee of
the Company (within the meaning of Code Section 414(q)) who is
subject to the reporting requirements of section 16(a) of the Securities Exchange Act of 1934
with respect to the Company shall not be eligible to participate in the Plan. |
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Commencement of Participation. An Employee may become a Participant in the Plan by
authorizing the Company to make payroll deductions in the form and manner specified by the
Administrator during the Enrollment Period for an Offering Period, in accordance with Article
4. |
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3.3 |
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Restrictions on Participation. Notwithstanding any provision of the Plan to the
contrary, no Employee shall be granted the right to participate in the Plan: |
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if, immediately after the such right is granted, such Employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company (for purposes of
this paragraph, the rules of Section 424(d) of the Code shall apply in determining stock
ownership of any Employee); or |
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which permits his or her rights to purchase stock in any calendar year under all
employee stock purchase plans of the Company to accrue at a rate which exceeds $25,000
in fair market value of the stock (determined at the time such right is granted). |
ARTICLE 4 PAYROLL DEDUCTIONS
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Amount of Deduction. An Employee may participate in the Plan by authorizing up to
15%, or such other percentage determined by the Administrator with respect to an Offering
Period, to be deducted from his or her Base Pay during each payroll period in the Offering
Period and used to purchase Shares under the Plan. Such payroll authorization shall be made
in accordance with rules established by the Administrator. All payroll authorizations shall
be made in whole percentages, and deductions shall be rounded to the nearest dollar. |
4.2. |
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Participants Account. All payroll deductions made on behalf of a Participant shall
be credited to an account established in the Participants name under the Plan. A Participant
may not make any separate cash payment into such account or make any withdrawals from such
account. |
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Changes in Payroll Deductions. A Participant may discontinue participation in the
Plan during any Offering Period by withdrawing his or her payroll authorization, but no other
change can be made during an Offering Period. A Participant may not alter the amount of his
or her payroll deductions for an Offering Period, except to zero. |
ARTICLE 5 PURCHASE OF SHARES
5.1 |
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Monthly Purchase Dates. As of the last business day of each month during the
Offering Period, the accumulated payroll deductions in the Participants account will be used
to purchase Shares. The number of Shares to be purchased will be equal to the dollar amount
in the Participants account divided by the Purchase Price. No fractional Shares will be
purchased. Any amount remaining in the Participants account after the Purchase Date will be
used to purchase Shares on the next Purchase Date in the Offering Period. Any amount
remaining in the Participants account at the end of the Offering Period will be returned to
the Participant. |
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5.2 |
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Effect of Termination of Employment. Upon termination of the Participants
employment, the payroll deductions credited to the Participants account will be applied to
the purchase of Shares as of the next
Purchase Date. Any amount remaining in the Participants account after such Purchase Date
will be returned to the Participant (or his or her estate, in the case of death). |
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5.3 |
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Interest. No interest will be paid or allowed on any money paid into the Plan or
credited to the account of any Participant. |
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5.4 |
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Currency Conversion. In the event a Participants Base Pay is not payable in United
States dollars, then the payroll deductions in the Participants account shall be converted to
United States dollars at the spot exchange rate at the close of business on the Purchase Date,
in accordance with procedures established by the Administrator. |
ARTICLE 6 SHARES
6.1 |
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Maximum Shares. The maximum number of Shares which shall be issued under the Plan
shall be 200,000 Shares. Such Shares may be either authorized and unissued Shares or issued
Shares reacquired by the Company and held as Treasury Shares, as the Administrator may from
time to time determine. In the event that there is an increase or decrease in the number of
issued Shares by reason of any cause such as a stock split, reorganization, recapitalization,
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combination or exchange of shares, merger, consolidation, or any other change in corporate
structure without receipt or payment of consideration by the Company, the number of Shares
then remaining for issue under the Plan shall in each such event be adjusted by the
Administrator in proportion to the change in issued Shares resulting from such cause. |
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6.2 |
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Participants Interest in Shares. As promptly as practicable after each Purchase
Date, the Company will transfer the acquired Shares to the Participant or will hold the Shares
in account in uncertified form, as appropriate. A Participant will have no ownership interest
in Shares covered by his or her payroll deductions until such deductions are used to acquire
Shares and the Shares are registered in the Participants name. |
ARTICLE 7 ADMINISTRATION
7.1 |
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Appointment of Administrator. The Board of Directors may appoint an Administrator to
administer the Plan, which may be an individual or committee, as determined by the Board. In
the event that an Administrator has not been appointed, the Board of Directors shall act as
the Administrator. |
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7.2 |
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Authority of Administrator. Subject to the express provisions of the Plan, the
Administrator shall have the discretionary authority to interpret and construe any and all
provisions of the Plan, to adopt rules and regulations for administering the Plan, and to make
all other determinations deemed necessary or advisable for administering the Plan. The
Administrators determination on the foregoing matters shall be conclusive, final and binding
on all parties. |
ARTICLE 8 MISCELLANEOUS
8.1 |
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Transferability. Neither payroll deductions credited to a Participants account nor
any rights to acquire Shares under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the Participant other than by will or the laws of descent
and distribution. Any such attempted assignment, transfer, pledge or other disposition shall
be without effect. |
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8.2 |
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Use of Funds. All payroll deductions received or held by the Company under this Plan
may be used by the Company for any corporate purpose and the Company shall not be obligated to
segregate such payroll deductions. |
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8.3 |
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Amendment and Termination. The Board of Directors shall have complete power and
authority to terminate or amend the Plan; provided, however, that the Board of Directors shall
not, without the approval of the shareholders of the Company (i) increase the maximum number
of shares which may be issued under the Plan, except pursuant to Section 6.1, or (ii) amend
the class of Employees to whom the Plan is extended. Upon termination of the Plan, the
Administrator, in its |
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discretion, shall either use any cash remaining in Participant accounts
to purchase Shares under the Plan, or return such cash to the Participant. |
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8.4 |
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No Employment Rights. The Plan does not, directly or indirectly, create in any
Employee or class of Employees any right with respect to continuation of employment by the
Company, and it shall not be deemed to interfere in any way with the Companys right to
terminate, or otherwise modify, an Employees employment at any time. |
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8.5 |
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Effect of Plan. The provisions of the Plan shall, in accordance with its terms, be
binding upon and inure to the benefit of all successors of each Employee participating in the
Plan, including, without limitation, such Employees estate and the executors, administrators
or trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy or
representative of creditors of such Employee. |
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8.6 |
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Governing Law. The law of the State of Delaware will govern all matters relating to
this Plan except to the extent it is superseded by the laws of the United States. |
exv5w1
EXHIBIT 5.1
[CONYERS DILL & PEARMAN LETTERHEAD]
5 March 2008
Enstar Group Limited
Clarendon House
2 Church Street
Hamilton HM11
Bermuda
Dear Sirs
Enstar Group Limited (the Company)
Amended and Restated Enstar Group Limited Employee Share Purchase Plan
We have acted as special legal counsel in Bermuda to the Company in connection with a registration
statement on form S-8 filed with the Securities and Exchange Commission (the Commission) on 5
March 2008 (the Registration Statement, which term does not include any other document or
agreement whether or not specifically referred to therein or attached as an exhibit or schedule
thereto) relating to the registration under the United States Securities Act of 1933, as amended,
(the Securities Act) of 200,000 ordinary shares of par value US$1.00 each (the Ordinary
Shares), issuable pursuant to the Amended and Restated Enstar Group Limited Employee Share
Purchase Plan (the Plan, which term does not include any other document or agreement whether or
not specifically referred to therein or attached as an exhibit or schedule thereto).
For the purposes of giving this opinion, we have examined copies of the Registration Statement and
the Plan. We have also reviewed the memorandum of association and the bye-laws of the Company,
each certified by the Secretary of the Company on 5 March 2008, copies of minutes of meetings of
the board of directors of the Company held on 8 August 2007 and 27 February 2008 (together the
Minutes) and such other documents and made such enquires as to questions of law as we have deemed
necessary in order to render the opinion set forth below.
We have assumed (a) the genuineness and authenticity of all signatures and the conformity to the
originals of all copies (whether or not certified) of all documents examined by us and the
authenticity and completeness of the originals from which such copies were taken, (b) that where a
document has been examined by us in draft form, it will be or has been executed and/or filed in the
form of that draft, and where a number of drafts of a document have been examined by us all changes
thereto have been marked or otherwise drawn to our attention, (c) the accuracy and completeness of
all factual representations made in the Registration Statement, the Plan and other documents
reviewed by us, (d) that the resolutions contained in the Minutes were passed at one or more duly
convened, constituted and quorate meetings, or by unanimous written resolutions, remain in full
force and effect and have not been rescinded or amended, (e) that there is no provision of the law
of any jurisdiction, other than Bermuda, which would have any implication in relation to the
opinions expressed herein, (f) the validity and binding effect under the laws of the State of
Delaware of the Plan in accordance with its terms; (g) that, upon the issue of any Ordinary Shares,
the Company will receive consideration for the full issue price thereof which shall be equal to at
least the par value thereof, (h) that on the date of issuance of any of the Ordinary Shares the
Company will have sufficient authorised but unissued Ordinary Shares, (i) that on the date of
issuance of any Ordinary Shares under the Plan, the Company will be able to pay its liabilities as
they become due, (j) that the Companys shares will be listed on an appointed stock exchange, as
defined in the Companies Act 1981, as amended, and the general permission issued by the Bermuda
Monetary Authority on 1 June 2005 will not have been revoked or amended at the time of issuance of
any Ordinary Shares.
We express no opinion with respect to the issuance of shares pursuant to any provision of the Plan
that purports to obligate the Company to issue shares following the commencement of a winding up or
liquidation. We have made no investigation of and express no opinion in relation to the laws of
any jurisdiction other than Bermuda. This opinion is to be governed by and construed in accordance
with the laws of Bermuda and is limited to and is given on the basis of the current law and
practice in Bermuda. This opinion is issued solely for the purposes of the filing of the
Registration Statement and the issuance of the Ordinary Shares by the Company pursuant to the Plan
and is not to be relied upon in respect of any other matter.
On the basis of, and subject to, the foregoing, we are of the opinion that:
1. |
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The Company is duly incorporated and existing under the laws of Bermuda in good standing
(meaning solely that it has not failed to make any filing with any Bermuda government
authority or to pay any Bermuda government fees or tax which would make it liable to be struck
off the Register of Companies and thereby cease to exist under the laws of Bermuda). |
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2. |
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When issued and paid for in accordance with the terms of the Plan, the Ordinary Shares will
be validly issued, fully paid and non-assessable (which term means when used herein that no
further sums are required to be paid by the holders thereof in connection with the issue of
such shares). |
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving
such consent, we do not hereby admit that we are experts within the meaning of Section 11 of the
Securities Act or that we are in the category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.
Yours faithfully
/s/ CONYERS DILL & PEARMAN
exv23w1
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our
reports dated February 29, 2008, relating to the financial statements and financial statement
schedules of Enstar Group Limited, and the effectiveness of Enstar Group Limiteds internal control
over financial reporting, appearing in the Annual Report on Form 10-K of Enstar Group Limited for
the year ended December 31, 2007.
/s/ Deloitte & Touche
Hamilton, Bermuda
March 4, 2008