SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Amendment No. 11
Under the Securities Exchange Act of 1934
Information to be included in statements filed
pursuant to Rule 13D-1(A) and Amendments
thereto filed pursuant to Rule 13D-2(A)
PartnerRe Ltd.
-----------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $1.00 per share
-----------------------------------------------------------------------------
(Title of Class of Securities)
G6852T-105
-----------------------------------------------------------------------------
(CUSIP Number)
Markus U. Diethelm
Chief Legal Officer and Member of Senior Management
Swiss Reinsurance Company
50/60 Mythenquai
CH-8022 Zurich, Switzerland
Tel. No.: 011-41-43-285-2162
-----------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 6, 2003
-----------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g),
check the following box. [ ]
(Continued on following pages)
(Page 1 of 3 pages)
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
SCHEDULE 13D
-------------------------------------------------------------------------------
CUSIP No. G6852T-105 Page 2 of 3 Pages
-------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Swiss Reinsurance Company
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) | X |
(b) | |
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
WC
-------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Switzerland
------------------------------ ------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
0
SHARES ------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
8,340,731
OWNED BY ------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
------------------------------------------------
PERSON
10 SHARED DISPOSITIVE POWER
WITH
8,340,731
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,340,731
-------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions)
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.6%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
-------------------------------------------------------------------------------
SCHEDULE 13D
-------------------------------------------------------------------------------
CUSIP No. G6852T-105 Page 3 of 3 Pages
-------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
SwissRe Capital Management (Bermuda) Ltd.
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) | X |
(b) | |
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
WC, OO
-------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
-------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
0
SHARES ------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
8,340,731
OWNED BY ------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING ------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
8,340,731
WITH
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,340,731
-------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions)
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.6%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
-------------------------------------------------------------------------------
The item numbers and responses thereto below are in accordance with
the requirements of Schedule 13D.
This Amendment No. 11 (the "Amendment") amends and restates in its
entirety the Schedule 13D, dated as of June 13, 1997 (the "Original 13D"), as
amended, filed by Swiss Reinsurance Company and SwissRe Capital Management
(Bermuda) Ltd. ("Capital Management") with respect to the shares of common
stock, par value $1.00 per share (the "Common Stock"), of PartnerRe Ltd., a
Bermuda company (the "Company").
Item 1. Security and Issuer.
This security to which this Schedule 13D relates is the Common Stock
of the Company. The Company's principal executive office is located at 96
Pitts Bay Road, Pembroke HM 08, Bermuda.
Item 2. Identity and Background
The principal business of Swiss Re and its subsidiaries (the "Swiss
Re Group") is engaging in reinsurance and related activities throughout the
world. The reinsurance companies in the Swiss Re Group transact almost all
lines of reinsurance. There is no control person of Swiss Re.
The address of the principal business and the principal office of
Swiss Re is 50/60 Mythenquai, CH-8022 Zurich, Switzerland. The name, business
address, present principal occupation or employment and citizenship of each
director and executive officer of Swiss Re is set forth on Schedule A hereto
("Schedule A"), which is incorporated herein by reference.
The address of the principal business and the principal office of
SwissRe Capital Management (Bermuda) Ltd. is Mintflower Place, 8 Par-la-Ville
Road, Hamilton HM GX, Bermuda. The name, business address, present principal
occupation or employment and citizenship of each director and executive
officer of SwissRe Capital Management (Bermuda) Ltd. is set forth on Schedule
B hereto ("Schedule B"), which is incorporated herein by reference.
During the past five years, neither any reporting person nor any
person controlling any reporting person nor, to the best of the reporting
persons' knowledge, any of the persons listed on Schedule A or Schedule B, has
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
In connection with the initial public offering of the Common Stock
and pursuant to a subscription agreement, dated August 24, 1993 (the "Initial
Subscription Agreement"), between Swiss Re and PartnerRe Holdings, Ltd. (the
predecessor to the Company), Swiss Re purchased 5,277,045 shares of Common
Stock (the "Initial Shares"), 4,353,007 Class A Warrants (the "Initial Class A
Warrants") and 3,389,364 Class B Warrants (the "Class B Warrants"). The
aggregate subscription price for the Initial Shares, the Initial Class A
Warrants and Class B Warrants was $100,000,000. The purchase price was funded
through internally generated funds.
Between 1993 and 2002, an aggregate of 140,000 options to acquire
shares of Common Stock and 7,772 shares of Common Stock (the "Additional
Shares") were granted to directors of the Company who are or were at the time
also executives of Swiss Re. In accordance with the terms of such executives'
employment with Swiss Re, such options and shares were transferred to Swiss
Re. No purchase price was paid in connection with Swiss Re's acquisition of
the Options and the Additional Shares. Between 1998 and 2000, 44,000 Options
were exercised for an aggregate purchase price of $1,025,827 (from internally
generated funds).
Pursuant to a stock purchase agreement, dated as of March 28, 1997
(the "1997 Stock Purchase Agreement"), between the Company and Swiss Re, the
Company agreed to acquire from Swiss Re outstanding shares of Societe Anonyme
Francaise de Reassurances ("SAFR"). The aggregate purchase price for the SAFR
shares paid by the Company to Swiss Re included cash and the delivery of
6,453,007 shares of Common Stock.
Pursuant to a subscription agreement dated August 24, 1993 between
the Company and Head Investors, the Company issued to Head Investors shares of
Common Stock and Class A Warrants on November 10, 1993. The cost per share of
Common Stock was deemed to be $18.34 and, per Class A Warrant, $1.25. European
Reinsurance Company of Zurich ("European Re"), a subsidiary of Swiss Re and a
limited partner in Head Investors, withdrew as a limited partner and, on
August 26, 1997, received, as a final distribution, 405,398 shares of Common
Stock and Class A Warrants to acquire 204,220 shares of Common Stock from Head
Investors (the "Additional Class A Warrants"). The Additional Class A Warrants
were exercised in November 2000, on a cashless basis, for 136,374 shares of
Common Stock.
In November 2000, 50,000 shares of Common Stock were acquired by
Swiss Re from a plan for the benefit of employees and retirees of Swiss Re,
for an aggregate purchase price of $1,870,625 (from internally generated
funds).
Capital Management was formed in December 2000. Swiss Re contributed
677,873 Class B Warrants, and caused its subsidiaries to contribute 4,353,007
shares of Common Stock, to Capital Management.
In September 2001, Swiss Re purchased 1,464,500 shares of Common
Stock for an aggregate price of $52,478,111 (including commissions). SwissRe
used internally generated funds to purchase such Common Stock.
On December 18, 2001, Swiss Re contributed, as surplus, 6,728,369
shares of Common Stock to SwissRe Capital Management (Bermuda) Ltd. Also on
December 18, 2001, Swiss Re sold 2,214,948 shares of Common Stock to SwissRe
Capital Management (Bermuda) Ltd. for an aggregate purchase price of
$109,883,570. The funds used to purchase such Common Stock were obtained from
a capital contribution from Swiss Re.
On November 14, 2002, pursuant to a stock purchase agreement with the
Company, dated as of November 1, 2002, Capital Management and European Re sold
5,458,228 and 541,772 shares of Common Stock, respectively, to the Company for
a price of $46.3995 per share or an aggregate purchase price of $278,397,000.
A copy of the Stock Purchase Agreement is filed herewith as Exhibit 99.1.
On April 30, 2003, SwissRe transferred 96,000 options to acquire
Common Stock to Capital Management. Capital Management completed the exercise
of such 96,000 options and 677,873 warrants on May 2, 2003. The exercise price
was 61,790 shares of Common Stock.
Item 4. Purpose of the Transaction.
(a) All of the securities set forth in Item 5 were initially acquired
by the reporting persons for investment purposes. Notwithstanding the
foregoing, on May 2, 2003, Capital Management acquired 773,873 shares of
Common Stock through the exercise of warrants and options for the purpose of
disposing such shares pursuant to the Registration Statement (as defined
below).
By letter dated April 29, 2003, Swiss Re and Capital Management
requested the Company to effect a registration with the U.S. Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to all common shares of the Company, par
value $1.00 (the "Shares"), owned by the reporting persons. Such registration
was requested so that the Shares may be sold in such transactions (including,
but not limited to, through block trades, transactions pursuant to Rule 144
promulgated under the Securities Act or underwritten offerings) and at such
times that the reporting persons (or any affiliates thereof) deemed
appropriate. A copy of the letter is filed herewith as Exhibit 99.3 and is
incorporated herein by reference.
Pursuant to a request for registration by the reporting persons,
dated April 29, 2003, on April 30, 2003, the Company filed a registration
statement on Form S-3 (the "Registration Statement"). with the SEC covering
the resale by Capital Management of up to 8,340,731 shares of Common Stock.
The Registration Statement was declared effective on May 5, 2003.
Swiss Re, Capital Management, the Company and Citigroup Global
Markets Inc. ("Citigroup") have entered into an agreement, dated May 6, 2003
(the "Underwriting Agreement"), whereby Capital Management will sell to
Citigroup 8,340,731 shares of Common Stock at a price of $52.50 per share
pursuant to the Registration Statement. Such shares constitute all of the
shares of Common Stock held by the reporting persons and, following the
completion of the transactions contemplated by the Underwriting Agreement, the
reporting persons will no longer own any shares of Common Stock. Subject to
the terms and conditions of the Underwriting Agreement, the transaction is
expected to close on May 9, 2003. The transaction will result in aggregate
proceeds to the reporting persons of $437,888,378. The foregoing description
of the Underwriting Agreement is not intended to be complete and is qualified
in its entirety by reference to the Underwriting Agreement filed herewith as
Exhibit 10.1 and incorporated herein by reference.
Given the positive outlook for the reinsurance market, SwissRe
believes it can best capitalize on this opportunity by allocating its capacity
directly to its reinsurance business. This transaction is also in line with
Swiss Re's strategy to reduce its equity exposure.
On May 7, 2003, SwissRe issued a press release in connection with
this transaction, a copy of which is filed herewith as Exhibit 99.4 and
incorporated herein by reference.
(d) Walter B. Kielholz is the Vice Chairman of the Board of Directors
of Swiss Re and is also a director of the Company. Mr. Kielholz's term as a
director of the Company expires at the Company's annual general meeting of
shareholders on May 22, 2003 and he is not standing for re-election.
(b), (c), (e)-(j) inapplicable.
Except as set forth above, the reporting persons do not have any
plans or proposals which would relate to or result in any of the transactions
described in subparagraphs (a) through (j) of Item 4 on Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) As of May 7, 2003, the reporting persons beneficially own
8,340,731 shares of Common Stock held by Capital Management or 15.6% of the
outstanding Common Stock of the Company.
Except as set forth in Item 5(a) and Schedule D hereto, none of the
Reporting Persons nor any other person controlling any of the Reporting
Persons, nor, to the best of the Reporting Persons' knowledge, any persons
named in Schedule A or Schedule B hereto, owns beneficially any Securities.
(b) As of May 7, 2003, the reporting persons have the shared power to
vote and to dispose of 8,340,731 shares of Common Stock, or 15.6% of the
outstanding Common Stock of the Company.
(c) On May 2, 2003 Capital Management completed exercise of 96,000
options and 677,873 Class B warrants. Pursuant to such settlement, the Company
issued 773,873 shares of Common Stock to Capital Management and Capital
Management paid the Company an aggregate exercise price of 271,238 shares of
Common Stock. Following such settlement, Capital Management owns 8,340,731
shares of Common Stock.
Swiss Re, Capital Management, the Company and Citigroup have entered
into the Underwriting Agreement, dated May 6, 2003, whereby Capital Management
will sell to Citigroup 8,340,731 shares of Common Stock at a price of $52.50
per share pursuant to the Registration Statement . Such shares constitute all
of the shares of Common Stock held by the reporting persons and, following the
completion of the transactions contemplated by the Underwriting Agreement, the
reporting persons will no longer own any shares of Common Stock. Subject to
the terms and conditions of the Underwriting Agreement, the transaction is
expected to close on May 9, 2003. The transaction will result in aggregate
proceeds to the reporting persons of $437,888,378. The foregoing description
of the Underwriting Agreement is not intended to be complete and is qualified
in its entirety by reference to the Underwriting Agreement filed herewith as
Exhibit 10.1 and incorporated herein by reference.
Item 6. Contracts, Arrangements, Understandings, or Relationships With
Respect to Securities of the Issuer
Swiss Re and PartnerRe Holdings, Ltd. (the predecessor to the
Company) were parties to the Initial Subscription Agreement with respect to
the Initial Shares, the Initial Class A Warrants and Class B Warrants. A copy
of the Initial Subscription Agreement was filed as Exhibit 1 to the Original
13D and is incorporated herein by reference.
At the closing of the transactions under the 1997 Stock Purchase
Agreement in July 1997, Swiss Re and the Company entered into a standstill
agreement (the "Standstill Agreement") pursuant to which Swiss Re agreed that,
for so long as Swiss Re is a shareholder of the Company and until the seventh
anniversary of the Standstill Agreement, Swiss Re's ownership and voting
rights in the Company are limited to 30%. A copy of the Standstill Agreement
was filed as Exhibit 5 to Amendment No. 1 and is incorporated herein by
reference.
The reporting persons are party to a Stock Purchase Agreement with
the Company, dated as of November 1, 2002 which is filed herewith as Exhibit
99.1 and incorporated herein by reference. Pursuant to such agreement, on
November 14, 2002, Capital Management and European Re sold 5,458,228 and
541,772 shares of Common Stock, respectively, to the Company for a price of
$46.3995 per share or an aggregate purchase price of $278,397,000.
SwissRe, Capital Management, the Company and Citigroup have entered
into the Underwriting Agreement, whereby Capital Management will sell to
Citigroup 8,340,731 shares of Common Stock at a price of $52.50 per share
pursuant to an S-3 registration statement filed by the Company with the SEC on
April 30, 2003, which registration statement was declared effective on May 5,
2003. Such shares constitute all of the shares of Common Stock held by the
reporting persons and, following the completion of the transactions
contemplated by the Underwriting Agreement, the reporting persons will no
longer own any shares of Common Stock. Subject to the terms and conditions of
the Underwriting Agreement, the transaction is expected to close on May 9,
2003. The transaction will result in aggregate proceeds to the reporting
persons of $437,888,378. The foregoing description of the Underwriting
Agreement is not intended to be complete and is qualified in its entirety by
reference to the Underwriting Agreement filed herewith as Exhibit 10.1 and
incorporated herein by reference.
Except as set forth herein, to the best knowledge of Swiss Re, there
are no contracts, arrangements, understandings or relationships (legal or
otherwise) required to be reported by the reporting persons in this Item 6.
Item 7. Material to be Filed as Exhibits.
1. Subscription Agreement (filed as an exhibit to the Original 13D)
2. Form of Class A Warrants (filed as an exhibit to the Original 13D)
3. Form of Class B Warrants (filed as an exhibit to the Original 13D)
4. Stock Purchase Agreement (filed as an exhibit to the Company's Form
8-K dated March 31, 1997)
5. Standstill Agreement (filed as an exhibit to Amendment No. 1 to the
13D).
10.1 Underwriting Agreement, dated May 6, 2003, by and among Swiss
Reinsurance Company, SwissRe Capital Management (Bermuda) Ltd.,
PartnerRe Ltd. and Citigroup Global Markets Inc. (filed herewith)
99.1 Stock Purchase Agreement, dated as of November 1, 2002, by and among
Swiss Reinsurance Company, SwissRe Capital Management (Bermuda) Ltd.,
European Reinsurance Company of Zurich and PartnerRe Ltd. (filed as
an exhibit to Amendment 7 to the 13D)
99.2 Joint Filing Agreement, dated as of November 1, 2002, by and among
Swiss Reinsurance Company, SwissRe Capital Management (Bermuda) Ltd.
and European Reinsurance Company of Zurich. (filed as an exhibit to
Amendment 7 to the 13D)
99.3 Letter, dated April 29, 2003, from Swiss Reinsurance Company and
SwissRe Capital Management (Bermuda) Ltd. to PartnerRe Ltd. (filed as
an exhibit to Amendment 9 to the 13D)
99.4 Press Release issued by Swiss Reinsurance Company on May 7, 2003.
(filed herewith)
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
each person set forth below certifies that the information set forth in this
statement is true, complete and correct.
Dated as of: May 8, 2003
SWISS REINSURANCE COMPANY SWISS REINSURANCE COMPANY
By: /s/ Andre Pfanner By: /s/ Peter Gujer
------------------------------ -------------------------
Name: Andre Pfanner Name: Peter Gujer
Title: Member of Senior Management Title: Managing Director
SWISSRE CAPITAL MANAGEMENT SWISSRE CAPITAL MANAGEMENT
(BERMUDA) LTD. (BERMUDA) LTD.
By: /s/ Stefan Schroeder By: /s/ Thomas V. Coffey
----------------------------- --------------------------
Name: Stefan Schroeder Name: Thomas Coffey
Title: Chief Executive Officer Title: Vice President
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS
OF SWISS REINSURANCE COMPANY
The name, business address, title, present principal occupation or
employment of each of the directors and executive officers of Swiss
Reinsurance Company ("Swiss Re") are set forth below. If no business address
is given, the director's or officer's business address is 50/60 Mythenquai,
CH-8022 Zurich, Switzerland. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Swiss Re. Unless otherwise
indicated below, all of the persons listed are citizens of Switzerland.
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION
INCLUDING NAME AND ADDRESS OF
EMPLOYER
DIRECTORS
Peter Forstmoser Chairman of the Board of
Directors and Partner at Niederer
Kraft & Fray and Professor of Law
at University of Zurich
Walter B. Kielholz Executive Vice Chairman of the
Board of Directors and Chairman of
Credit Suisse Group
Thomas W. Bechtler Managing Director
Hesta AG
George L. Farr Managing Partner of Muirhead Holdings,
LLC
Citizen of United States of America
Rajna Gibson Professor of Financial Economics at
Swiss Banking Institute,
University of Zurich
Benedict G.F. Hentsch Retired
Jorge Paulo Lemann Entrepreneur
Citizen of Switzerland and Brazil
Bob Scott Retired
Citizen of Australia and Great Britain
EXECUTIVE OFFICERS (WHO ARE NOT DIRECTORS)
John Coomber Member of the Executive Board and
Chief Executive Officer
Citizen of Great Britain
Rudolf Kellenberger Member of the Executive Board and
Deputy Chief Executive Officer
Jacques Aigrain Member of the Executive Board and Head
Financial Services Business Group
55 East 52nd Street, New York,
New York 10055 U.S.A.
Citizen of Switzerland and France
John Fitzpatrick Member of the Executive Board and
Head of Life & Health Business Group
Old Broad Street, London EC2N 1HQ
England
Citizen of the United States
Stefan Lippe Member of the Executive Board and
Head of Property & Casualty Business
Group
Citizen of Germany
Martin Albers Member of the Executive Board and
Head of Risk Solutions
Walter Anderau Member of the Executive Board and
Head of Communications & Human
Resources
Andreas Beerli Member of the Executive Board and
Head, Americas Division within
Property & Casualty Group
175 King Street, Armonk,
New York 10055,
U.S.A.
Philip Colebatch Member of the Executive Board and
Head, Capital Markets & Advisory
35 Wilson Street
London EC2M 2UB England
Citizen of Australia
Jacques E. Dubois Member of the Executive Board and
Deputy Head, Life & Health Business
Group 969 High Ridge Road,
Stamford, Connecticut 06905,
U.S.A.
Citizen of the United States
Ann F. Godbehere Member of the Executive Board and
Chief Financial Officer
Citizen of Canada
Michel M. Lies Member of the Executive Board and
Head, Europe Divison within Property &
Casualty Group
Citizen of Luxembourg
Pierre L. Ozendo Member of the Executive Board and
Head, Asia Division within Property
and Casualty Group
Citizen of the United States
Bruno Porro Member of the Executive Board and
Chief Risk Officer and Head of Risk
& Knowledge Division
Chris C. Stroup Member of the Executive Board and
Head, Swiss Re Life & Health America
175 King. St., Armonk, NY 10504 USA
Citizen of the United States
Yury Zaytsev Member of the Executive Board and
Head, Group Information Officer,
Head of Information, Processes &
Technology
Citizen of the United States
SCHEDULE B
DIRECTORS AND EXECUTIVE OFFICERS
OF SWISSRE CAPITAL MANAGEMENT (BERMUDA) LTD.
The name, business address, title, present principal occupation or
employment of each of the directors and executive officers of SwissRe Capital
Management (Bermuda) Ltd. are set forth below. If no business address is
given, the director's or officer's business address is Mintflower Place, 8
Par-la-Ville Road, Hamilton HM GX, Bermuda. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to European
Reinsurance Company of Zurich. Unless otherwise indicated below, all of the
persons listed are citizens of Switzerland.
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION
INCLUDING NAME AND ADDRESS OF
EMPLOYER
DIRECTORS
Peter Huegle Chairman, SwissRe Capital
Management (Bermuda) Ltd.
Seestrasse 7, CH-8802 Kilchberg,
Switzerland
Stefan Schroeder President, Chief Executive
Officer and Compliance Officer,
SwissRe Capital Management
(Bermuda) Ltd.,
Mintflower Place, 8 Par-la-Ville
Road, Hamilton - Bermuda
Citizen of Germany
Helmut Brechot Vice President, SwissRe Capital
Management (Bermuda) Ltd.
Member of Senior Management
Swiss Reinsurance Company
Mythenquai
50/60, CH-8022 Zurich,
Switzerland - Citizen of Germany
Timothy C. Faries Partner, Appleby Spurling &
Kempe,
Secretary, SwissRe Capital
Management (Bermuda) Ltd.
Cedar House, Cedar Avenue,
Hamilton, Bermuda Citizen of
Bermuda
Alan Bossin Counsel, Appleby Spurling &
Kempe, Cedar House, Cedar Avenue,
Hamilton, Bermuda - Citizen of
Canada
Michael J. Burns (Alternate Director) Partner, Appleby Spurling &
Kempe, Cedar House, Cedar Avenue,
Hamilton, Bermuda Citizen of
Bermuda
C. Marc Wetherhill (Alternate Director) Associate, Appleby Spurling &
Kempe, Cedar House, Cedar Avenue,
Hamilton, Bermuda - Citizen of
Bermuda
EXECUTIVE OFFICERS (WHO ARE NOT DIRECTORS)
Ulrich Ackermann Vice President and Chief
Financial Officer, SwissRe
Capital Management (Bermuda)
Ltd.,
Member of Senior Management Swiss
Reinsurance Company Mythenquai
50/60, CH-8022 Zurich,
Switzerland
Scott Bradley Vice President, SwissRe Capital
Management (Bermuda) Ltd.,
Mintflower Place, 8 Par-la-Ville
Road, Hamilton, Bermuda Citizen
of Canada and the United Kingdom
Helmut Brechot Vice President, SwissRe Capital
Management (Bermuda) Ltd.
Member of Senior Management Swiss
Reinsurance Company Mythenquai
50/60, CH-8022 Zurich,
Switzerland - Citizen of Germany
Jurg Hess Vice President, SwissRe Capital
Management (Bermuda) Ltd.
Member of Senior Management Swiss
Reinsurance Company Mythenquai
50/60, CH-8022 Zurich,
Switzerland
Bruno H. Letsch Vice President, SwissRe Capital
Management (Bermuda) Ltd.
Member of Senior Management Swiss
Reinsurance Company Mythenquai
50/60, CH-8022 Zurich,
Switzerland
David Whiting Vice President, SwissRe Capital
Management (Bermuda) Ltd.
Mintflower Place, 8 Par-la-Ville
Road, Hamilton, Bermuda -
Citizen of Bermuda, Canada and
the United Kingdom
Thomas V Coffey Vice President, SwissRe Capital
Management (Bermuda) Ltd.
Mintflower Place, 8 Par-la-Ville
Road, Hamilton, Bermuda -
Citizen of Canada
Paul Konyecsni Assistant Vice President,
SwissRe Capital Management
(Bermuda) Ltd.
Mintflower Place, 8 Par-la-Ville
Road, Hamilton, Bermuda -
Citizen of Canada
Maria Pacheco Deputy Corporate Group Manager,
A. S. & K. Services Ltd.
Assistant Secretary, SwissRe
Capital Management (Bermuda) Ltd.
Cedar House, Cedar Avenue,
Hamilton, Bermuda - Citizen of
Bermuda
SCHEDULE C
DIRECTORS AND EXECUTIVE OFFICERS
OF REPORTING PERSONS
BENEFICIAL OWNERSHIP OF PARTNERRE SECURITIES
NAME AFFILIATION NUMBER OF SHARES OF
COMMON STOCK
BENEFICIALLY OWNED
Rudolf Kellenberger Executive Officer, 1,000
Swiss Reinsurance Company
Exhibit 10.1
PartnerRe Ltd.
8,340,731 Common Shares
($1.00 par value)
Underwriting Agreement
New York, New York
May 6, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
SwissRe Capital Management (Bermuda) Ltd., a company organized under
the laws of Bermuda (the "Selling Shareholder") and a wholly-owned subsidiary
of Swiss Reinsurance Company, a company organized under the laws of
Switzerland ("Swiss Re"), proposes to sell to Citigroup Global Markets Inc.
(the "Underwriter") 8,340,731 common shares, par value $1.00 per share
("Common Stock"), of PartnerRe Ltd., a company organized under the laws of
Bermuda (the "Company") (said shares to be sold by the Selling Shareholder
being hereinafter called the "Securities"). Any reference herein to the
Registration Statement, the Basic Prospectus, or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement (other than the
Company's current report on Form 8-K dated January 17, 2003, which has been
superceded by the Company's Annual Report on Form 10-K) or the issue date of
the Basic Prospectus, or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms
used herein are defined in Section 19 hereof.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter, Swiss Re and the
Selling Shareholder as set forth below in this Section 1.
(a) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
Registration Statement (registration No. 333-104876) has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
contemplated by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement and the Final
Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Act and the applicable
rules and regulations of the Commission thereunder and (iii) the
Final Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties
set forth in this paragraph 1(b) do not apply to statements or
omissions in the Registration Statement or the Final Prospectus made
in reliance upon and in conformity with information relating to the
Underwriter furnished to the Company in writing by the Underwriter
through you expressly for use therein. Each document filed or to be
filed pursuant to the Exchange Act, and incorporated by reference in
the Final Prospectus, did not contain or will not contain when so
filed any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and complied or will comply when
so filed in all material respects with the Exchange Act and the rules
and regulations of the Commission thereunder. No order preventing or
suspending the use of any Final Prospectus has been issued by the
Commission and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, threatened or
contemplated by the Commission.
(c) The Company has been duly organized, is validly existing as
a company in good standing (including as an exempted company) under
the laws of Bermuda, has the power and authority to own, lease and
operate its property and to conduct its business as described in the
Registration Statement and the Final Prospectus and is duly
registered, qualified and authorized to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership, leasing or operation of property requires
such registration, qualification or authorization, except to the
extent that the failure to be so registered, qualified or authorized
or be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
or operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(d) Partner Reinsurance Company Ltd., a Bermuda company
("Partner Reinsurance"), PartnerRe Reinsurance Company of the U.S.
("PartnerRe U.S.") and PartnerRe S.A., a French societe anonyme (and,
collectively with Partner Reinsurance and PartnerRe U.S., the
"Subsidiaries"), are each wholly owned, directly or indirectly, by
the Company, except in the case of PartnerRe S.A. for director's
qualifying shares, and are the only "significant subsidiaries" of the
Company within the meaning of Rule 405 under the Act. Each of the
Subsidiaries has been duly organized, is validly existing as a
company, corporation or other legal entity, as the case may be, in
good standing (including, in the case of Partner Reinsurance, as an
exempted company) under the laws of the jurisdiction of its
organization, has the power and authority to own, lease and operate
its property and to conduct its business as described in the
Registration Statement and the Final Prospectus and is duly
registered, qualified and authorized to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership, leasing or operation of property requires
such registration, qualification or authorization, except to the
extent that the failure to be so registered, qualified or authorized
or be in good standing would not have a Material Adverse Effect; and
all of the issued and outstanding shares of capital stock of each
Subsidiary have been duly authorized and are validly issued, fully
paid and non-assessable and are, except in the case of PartnerRe S.A.
for director's qualifying shares, owned directly or indirectly by the
Company, free and clear of all security interests, liens,
encumbrances, equities or claims.
(e) All of the outstanding shares of capital stock of the
Company (including the Securities) have been duly authorized and are
validly issued, fully paid and non-assessable, conform to the
descriptions thereof contained in the Final Prospectus and are not
and will not be subject to any preemptive or similar rights.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Securities have been approved for listing on the New
York Stock Exchange; and the Securities have been registered under
the Exchange Act.
(h) None of the Company nor any of the Subsidiaries is (i) in
violation of its certificate of incorporation, memorandum of
association or bye-laws or other organizational documents, (ii) in
violation of any law, ordinance, administrative or governmental rule
or regulation applicable to any of them or any of their respective
properties (except where any such violation or violations
individually or in the aggregate would not have a Material Adverse
Effect), (iii) in violation of any judgment, injunction, restraining
order, decree or order of any nature (collectively, any "Order") of
any court, tribunal, regulatory body, administrative agency or other
governmental body, commission, agency, or official, or any arbitrator
or self-regulatory organization (including, without limitation, any
insurance regulatory agency or body) (collectively, a "Regulatory
Authority") having jurisdiction over any of them (except where any
such violation or violations individually or in the aggregate would
not have a Material Adverse Effect), or (iv) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any contract, agreement, indenture,
lease or other instrument to which any of the Company or the
Subsidiaries is a party or by which any of them is bound or to which
any of their respective properties or assets is subject, and no
condition or state of facts exists which, with the passage of time or
the giving of notice or both, would constitute such a default (except
where any such default or defaults individually or in the aggregate
would not have a Material Adverse Effect).
(i) Neither the execution and delivery by the Company of, or
the performance by it of its obligations under this Agreement, nor
the consummation of the transactions contemplated hereby will (A)
conflict with or contravene any provision of (i) any applicable
statute, law, regulation, ruling or filing, (ii) the memorandum of
association, certificate of incorporation, bye-laws or other
organizational documents of any of the Company or the Subsidiaries,
(iii) any bond, debenture, note or other evidence of indebtedness or
any agreement, indenture, lease or other instrument to which any of
the Company or the Subsidiaries is a party or by which any of them is
or may be bound or to which any of their respective properties or
assets is or may be subject, or (iv) any Order of any Regulatory
Authority that is applicable to any of the Company or the
Subsidiaries or any of their respective properties, except, with
respect to the foregoing clauses (i), (iii), and (iv), to the extent
such conflict or contravention would not have a Material Adverse
Effect, or (B) result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of any of the
Company or the Subsidiaries pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them is
bound or to which any of the property or assets of any of them is
subject (except where any such lien, charge or encumbrance would not
have a Material Adverse Effect).
(j) No consent, approval, authorization or order of,
qualification with, or registration or filing with any Regulatory
Authority applicable to the Company or any of its properties is
required for the performance by the Company of its obligations under
this Agreement, except such as may be required (1) for registrations
and filings under the Act or the Exchange Act, (2) under the
Insurance Laws (as defined below) or under the Investment Business
Act 1998 of Bermuda, (3) under the securities or Blue Sky or
insurance securities laws of the various states in connection with
the offer and sale of the Securities and (4) Bermuda Monetary
Authority approval, all of which have been or will be effected on or
prior to the Closing Date.
(k) The consolidated financial statements of the Company
(together with related schedules and notes) included in the
Registration Statement and Final Prospectus comply as to form in all
material respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and present fairly
the consolidated financial position of the Company as at the dates
indicated and the results of its operations and its cash flows for
the periods specified; such financial statements and related
schedules and notes have been prepared in conformity with United
States generally accepted accounting principles applied on a
consistent basis during the periods involved.
(l) There has not occurred any material adverse change or any
development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business,
operations of the Company and the Subsidiaries, taken as a whole,
from that set forth in the Registration Statement and the Final
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings pending or,
to the knowledge of any of the Company or the Subsidiaries,
threatened to which any of them is a party or to which any of their
respective properties is subject that are required to be described in
the Registration Statement or the Final Prospectus and are not so
described or any statutes, regulations, agreements, contracts,
indentures, leases, or other instruments or documents that are
required to be described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration Statement
or to any documents incorporated by reference therein that are not
described or filed as required.
(n) Each of the Company and the Subsidiaries (i) is in
compliance with the applicable requirements of the insurance
statutes, including the statutes relating to companies which control
insurance companies, and the rules, regulations and interpretations
of the insurance regulatory authorities thereunder ("Insurance Laws")
of its jurisdiction of incorporation, and (ii) has filed all reports,
information statements, documents, and other information required to
be filed thereunder, except in the case of the foregoing clauses (i)
and (ii) where the failure to comply would not have a Material
Adverse Effect; each of the Company and its Subsidiaries (as
applicable) maintains its books and records in accordance with and is
in compliance with the Insurance Laws of other jurisdictions which
are applicable to any of them, except where the failure to comply
would not have a Material Adverse Effect.
(o) Each of the Company and the Subsidiaries possesses such
consents, authorizations, approvals, orders, franchises, licenses,
certificates (including certificates of authority), or permits issued
by any regulatory agencies or bodies (collectively, "Permits") of and
from, and has made all declarations and filings with, all Regulatory
Authorities which are necessary to conduct the business as described
in the Registration Statement and the Final Prospectus, except where
the failure to possess such Permits or to make such declarations or
filings would not have a Material Adverse Effect; all of such Permits
are in full force and effect, and neither the Company nor the
Subsidiaries has received any notification from any Regulatory
Authority, in the United States, its jurisdiction of organization or
elsewhere concerning any alleged violation of the terms of, or
proposed proceeding to revoke or that could reasonably be expected to
lead to the revocation, modification, termination, suspension or any
other material impairment of the rights of the holder of any Permit
or to the effect that any additional Permit from such authority,
commission or body is needed to be obtained by any of them or that
any of them is not in compliance with any applicable Insurance Laws;
and no insurance regulatory agency or body has issued any order or
decree impairing, restricting or prohibiting the payment of any
dividends by either of the Company or the Subsidiaries or the
continuation of the business of any of them as currently conducted.
(p) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(q) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities of the Company with the
Securities registered pursuant to the Registration Statement or,
except as described in the Final Prospectus and Registration
Statement, to file a registration statement under the Act with
respect to any securities of the Company, in each case, other than
such rights as have been waived.
(r) Each of the Subsidiaries is duly registered as an insurer
or reinsurer where it is required to be so registered to conduct its
business as described in the Registration Statement and the Final
Prospectus (except where the failure to be so registered would not
have a Material Adverse Effect) and is subject to regulation and
supervision in its jurisdiction of organization, and the Company is
not required to be so registered. Each of the Company and the
Subsidiaries is duly licensed or admitted as an insurer, reinsurer or
an insurance holding company, as applicable, in each jurisdiction
where it is required to be so licensed or admitted to conduct its
business as described in the Registration Statement and the Final
Prospectus, except for where the failure to be so licensed or
admitted would not have a Material Adverse Effect.
(s) Any tax returns required to be filed by either the Company
or any of the Subsidiaries in any jurisdiction have been filed, and
any material taxes, including franchise taxes and similar fees and
any withholding taxes, penalties and interest, assessments and fees
and other charges due or claimed to be due from such entities have
been paid, other than any of those being contested in good faith and
for which adequate reserves have been provided or any of those
currently payable without penalty or interest.
(t) The statements in the Final Prospectus under the headings
"Material Bermuda and United States Federal Income Tax Consequences"
and "Enforcement of Civil Liabilities Under United States Federal
Securities Laws" insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or
proceedings.
(u) The Company and Partner Reinsurance have each received from
the Bermuda Minister of Finance an assurance under The Exempted
Undertakings Tax Protection Act, 1966 of Bermuda to the effect set
forth in the Company's Annual Report on Form 10-K for the year ended
December 31, 2002 under the caption "Business--Taxation of the
Company and its Subsidiaries--Bermuda," and neither the Company nor
Partner Reinsurance has received any notification to the effect (or
is otherwise aware) that such assurance may be revoked or otherwise
not honored by the Bermuda government.
(v) There are no currency exchange control laws or withholding
taxes of Bermuda that would be applicable to the payment of dividends
(i) on the Securities by the Company, or (ii) by Partner Reinsurance
to the Company.
(w) Deloitte & Touche, who reported on the consolidated
financial statements and supporting schedules of the Company included
or to be included in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto), is an
independent public accountant with respect to the Company as required
by the Act.
(x) The Company maintains, and each of the Subsidiaries
maintain, a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with United States generally
accepted accounting principles and with statutory accounting
principles, as the case may be, and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(y) The Company has duly, validly and irrevocably appointed
PartnerRe U.S. Corporation as its agent for the purposes described in
Section 15 of this Agreement and to receive service of process in
actions against it arising out of or in connection with violations of
the U.S. Federal securities laws in any Federal court or state court
in the United States relating to the transactions covered by the
Final Prospectus.
(z) None of the Company nor the Subsidiaries or any employee or
agent thereof has made any payment of funds or received or retained
any funds in violation of any law, rule or regulation, which payment,
receipt or retention of funds is of a character required to be
disclosed in the Final Prospectus, except where such payment, receipt
or retention of funds would not have a Material Adverse Effect.
(aa) Consummation of the transactions contemplated by this
Agreement, including but not limited to any actions taken pursuant to
the indemnification and contribution provisions set forth herein,
will not constitute unlawful financial assistance under Bermuda law.
Any certificate signed by any officer of the Company and delivered to
the Underwriter or counsel for the Underwriter in connection with the offering
of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to the Underwriter.
2. Representations and Warranties of the Selling Shareholder and
Swiss Re. The Selling Shareholder and Swiss Re jointly and severally represent
and warrant to, and agree with, the Underwriter and the Company as set forth
below in this Section 2.
(a) The Selling Shareholder is the record and beneficial owner
of the Securities to be sold by it hereunder free and clear of all
liens, encumbrances, equities and claims and has duly endorsed such
Securities in blank or will deliver such Securities with stock powers
duly executed in blank, and, assuming that the Underwriter has no
notice of any adverse claims within the meaning of Section 8-105 of
the Uniform Commercial Code as in effect on the Closing Date in the
State of New York (the "New York UCC") with respect to the
certificates representing the Securities, then, upon delivery to the
Underwriter of such certificates endorsed in blank by an effective
endorsement or stock powers duly executed in blank, the Underwriter
will acquire such certificates (and the shares represented thereby)
free of any adverse claims under Section 8-303 of the New York UCC.
(b) Neither Swiss Re nor the Selling Shareholder has taken,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(c) No consent, approval, authorization or order of
qualification with, or registration or filing with any Regulatory
Authority applicable to the Selling Shareholder or Swiss Re is
required for the performance by the Selling Shareholder or Swiss Re
of its obligations under this Agreement, except such as may have been
obtained under the Act or the Exchange Act and such as may be
required under the Blue Sky laws of any jurisdiction in connection
with the offer and sale of the Securities by the Underwriter and such
other approvals as have been obtained.
(d) Neither the sale of the Securities being sold by the
Selling Shareholder nor the consummation of any other of the
transactions herein contemplated by the Selling Shareholder or Swiss
Re or the performance of its obligations hereunder by the Selling
Shareholder or Swiss Re will conflict with, result in a breach or
violation of, or constitute a default under (i) any applicable law,
(ii) the charter or bye-laws (or similar charter documents) of the
Selling Shareholder or Swiss Re, (iii) the terms of any indenture or
other agreement or instrument to which the Selling Shareholder or
Swiss Re or any of its subsidiaries is a party or bound, or (iv) any
Order of any Regulatory Authority having jurisdiction over the
Selling Shareholder or Swiss Re or any of its subsidiaries, except
with respect to the foregoing clauses (i), (iii) and (iv), to the
extent that such conflict, breach, violation or default would not
have a material adverse effect on the ability of the Selling
Shareholder or Swiss Re to perform its obligations hereunder.
(e) The information contained in the Schedule 13D of Swiss Re
and the Selling Shareholder with respect to the shares of Common
Stock of the Company is true and correct in all material respects as
of the date hereof, as modified by Amendment No. 11 thereto, which
amendment shall be substantially in the form provided to the
Underwriter and which shall be filed with the Commission on or before
May 8, 2003.
(f) This Agreement has been duly authorized, executed and
delivered by each of the Selling Shareholder and Swiss Re.
(g) Neither the Underwriter nor any subsequent purchasers of
the Securities (other than purchasers resident in Bermuda for Bermuda
exchange control purposes) is subject to any stamp duty, excise or
similar tax imposed in Bermuda in connection with the offering, sale
or purchase of the Securities.
(h) In respect of any statements in or omissions from the
Registration Statement or the Final Prospectus or any supplements
thereto made in reliance upon and in conformity with information
furnished in writing to the Company by the Selling Shareholder
specifically for use in connection with the preparation thereof, the
Selling Shareholder and Swiss Re hereby jointly and severally make
the same representations and warranties to the Underwriter as the
Company makes to the Underwriter under Section 1(b). The Company and
the Underwriter acknowledge that the only written information
furnished to the Company by the Selling Shareholder expressly for use
in the Registration Statement and the Final Prospectus is the
information set forth in the table found under the caption "The
Selling Shareholder" therein (but not the percentages set forth
therein).
Any certificate signed by any officer of the Selling Shareholder or
Swiss Re and delivered to the Underwriter or counsel for the Underwriter in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Selling Shareholder or Swiss Re, as the
case may be, as to matters covered thereby, to the Underwriter.
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Selling
Shareholder agrees to sell to the Underwriter, and the Underwriter agrees to
purchase the Securities from the Selling Shareholder at a purchase price of
$52.50 per share.
4. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 AM, New York City time, on May 9, 2003, or at such time
on such later date not more than three Business Days after the foregoing date
as the Underwriter shall designate, which date and time may be postponed by
agreement between the Underwriter, the Selling Shareholder and Swiss Re (such
date and time of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of the Securities shall be made to the
Underwriter for the account of the Underwriter against payment by the
Underwriter of the purchase price thereof to or upon the order of the Selling
Shareholder by wire transfer payable in same-day funds to an account specified
by the Selling Shareholder. Delivery of the Securities shall be made through
the facilities of The Depository Trust Company unless the Underwriter shall
otherwise instruct.
The Selling Shareholder shall pay all applicable state or Bermuda
transfer taxes, if any, involved in the transfer to the Underwriter of the
Securities purchased by it from the Selling Shareholder and the Underwriter
shall pay any additional stock transfer taxes involved in further transfers.
5. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Securities for sale to the public as set forth in the
Final Prospectus.
6. Agreements.
(a) The Company agrees with the Underwriter that:
(i) The Company will use its best efforts to cause
any amendment to the Registration Statement, if any, if not
effective at the Execution Time, to become effective. Prior to
the termination of the offering of the Securities, the Company
will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Final
Prospectus is otherwise required under Rule 424(b), the Company
will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Underwriter of such timely filing. The Company will promptly
advise the Underwriter (1) when any amendment to the
Registration Statement, if any, if not effective at the
Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (3) when, prior to termination of
the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (5) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain
as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to
the Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (1)
notify the Underwriter of such event, (2) prepare and file with
the Commission, subject to the second sentence of paragraph
(a)(i) of this Section 6, an amendment or supplement which will
correct such statement or omission or effect such compliance
and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the
Underwriter an earnings statement or statements of the Company
and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(iv) The Company will furnish to the Underwriter
and counsel for the Underwriter, without charge, conformed
copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by the
Underwriter or dealer may be required by the Act, as many
copies of the Final Prospectus and any supplement thereto as
the Underwriter may reasonably request. The Company will pay
the expenses of printing or other production of all documents
relating to the offering.
(v) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Underwriter may designate, will maintain
such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall
the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to material taxation or service of
process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not
now so subject.
(vi) The Company will not, without the prior
written consent of the Underwriter, offer, sell, contract to
sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any Subsidiary)
directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other
shares of Common Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock, or
publicly announce an intention to effect any such transaction,
for a period of 45 days after the date of this Agreement;
provided, however, that the Company may issue and sell Common
Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time and the Company may issue Common
Stock issuable upon the conversion of securities, the exercise
of warrants outstanding at the Execution Time or the early
settlement of the stock purchase contracts related to the
Company's PEPS Units. Notwithstanding the foregoing, the
Company shall be permitted to file a universal shelf
registration statement for securities to be issued by the
Company from time to time thereunder, provided that no shares
of capital stock of the Company or any securities convertible
into, or exercisable or exchangeable for such capital stock
shall be offered or sold under such universal shelf
registration statement during the 45-day period referred to
herein.
(vii) The Company will not take, directly or
indirectly, any action designed to or that would constitute or
that might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale
or resale of the Securities.
(b) The Selling Shareholder and Swiss Re jointly and severally
agree with the Underwriter that:
(i) Swiss Re will not, without the prior written
consent of the Underwriter, offer, sell, contract to sell,
pledge or otherwise dispose of, or enter into any transaction
which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or
otherwise) by Swiss Re or any subsidiary of Swiss Re, directly
or indirectly, including the filing (or participation in the
filing), or the exercise by or on behalf of Swiss Re of any
registration rights to effect the filing of, a registration
statement with the Securities and Exchange Commission in
respect of, or establish or increase a put equivalent position
or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any
shares of capital stock of the Company or any securities
convertible into, or exercisable or exchangeable for such
capital stock, or publicly announce an intention to effect any
such transaction, for a period of 45 days after the date of
this Agreement; provided, however, that (x) such consent shall
not be required with respect to transactions by subsidiaries of
Swiss Re on behalf of their third-party customers in the
ordinary course of their business and (y) Swiss Re and its
affiliates may dispose of shares of Series A Preferred Stock in
connection with any redemption of Series A Preferred Stock by
the Company.
(ii) The Selling Shareholder and Swiss Re will not
take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(c) The Selling Shareholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as a
delivery of a prospectus relating to the Securities by an underwriter
or dealer may be required under the Act, of any change in information
in the Registration Statement or the Final Prospectus relating to the
Selling Shareholder. The Company and the Underwriter acknowledge that
the only written information furnished to the Company by the Selling
Shareholder expressly for use in the Registration Statement and the
Final Prospectus is the information set forth in the table found
under the caption "The Selling Shareholder" therein (but not the
percentages set forth therein).
7. Conditions to the Obligations of the Underwriter. The obligations
of the Underwriter to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company, Swiss Re and
the Selling Shareholder contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company, Swiss Re and
the Selling Shareholder made in any certificates pursuant to the provisions
hereof, to the performance by the Company, Swiss Re and the Selling
Shareholder of their obligations hereunder and to the following additional
conditions:
(a) The Final Prospectus as amended or supplemented in relation
to the Securities shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 6(a)(i) hereof; no stop order suspending the
effectiveness of the Registration Statement shall have been
instituted or shall be pending or, to the knowledge of the Company,
shall be contemplated by the Commission, and any request on the part
of the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Underwriter.
(b) Subsequent to the Execution Time and prior to the Closing
Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded the Company's securities which are rated as
of the date of this Agreement by A.M. Best & Co., Standard &
Poor's Rating Services or Moody's Investor Services, Inc.; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business
or operations of the Company and its Subsidiaries, taken as a
whole, from that set forth in the Final Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner
contemplated in the Final Prospectus.
(c) The Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 7(b)(i)
above and to the effect that (A) the representations and warranties
of the Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date; and
(B) there shall not have occurred any change, or any development
involving a prospective change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Final Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(d) The Underwriter shall have received on the Closing Date a
certificate dated the Closing Date signed by an executive officer of
each of the Selling Shareholder and Swiss Re to the effect that the
representations and warranties of the Selling Shareholder or Swiss
Re, as the case may be, in this Agreement are true and correct in all
material respects on and as of the Closing Date to the same effect as
if made on the Closing Date and that the Selling Shareholder or Swiss
Re, as the case may be, has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
(e) The Underwriter shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, United States counsel for the
Company, dated the Closing Date and addressed to you in form and
substance reasonably satisfactory to counsel for the Underwriter, to
the effect that:
(i) PartnerRe U.S. is a company validly existing in
good standing under the laws of its jurisdiction of
organization and has full power and authority to own or lease
its property and to conduct its business as described in the
Final Prospectus;
(ii) neither the execution, delivery and
performance by the Company of its obligations under this
Agreement, nor the compliance by the Company with the
provisions hereof, nor the consummation by the Company of any
of the transactions contemplated hereby will (A) conflict with
or contravene any provision of (i) any applicable statute, law,
regulation, ruling or filing (assuming compliance by the
Underwriter with all applicable securities and Blue Sky laws)
of any United States Federal or New York Regulatory Authority
(excluding insurance statutes, laws and regulations and any
rulings or filings of, by or with any insurance regulatory
authority), except to the extent that such conflict or
contravention would not have a Material Adverse Effect, (ii) to
the best of such counsel's knowledge, any agreement, indenture,
lease or instrument to which any of the Company or the
Subsidiaries is a party or by which any of them is bound or to
which any of their respective properties or assets is subject,
which agreement, indenture, lease or instrument is, in each
case, included as an exhibit to the Company's Annual Report on
Form 10-K for the year ended December 31, 2002, or (iii) to
such counsel's knowledge (and based solely on review and
discussion with the Company's general counsel), any Order of
any United States or New York Regulatory Authority (excluding
any rulings or filings of, by or with any insurance regulatory
authority) that is applicable to the Company or any of the
Subsidiaries or any of their respective properties except to
the extent such conflict or contravention would not have a
Material Adverse Effect, or (B) to the best of such counsel's
knowledge, result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of any of the
Company or the Subsidiaries pursuant to the terms of any
agreement or instrument to which any of them is a party or by
which any of them is bound or to which any of the property or
assets of any of them is subject, which agreement or instrument
is, in each case, included as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31,
2002;
(iii) no consent, approval, authorization or order
of, qualification with, or registration or filing with any
United States Federal or New York Regulatory Authority
(excluding any rulings or filings of, by or with any insurance
regulatory authority), is required for the performance by the
Company of its obligations under this Agreement, except for
such consent, approvals, authorizations and orders (1) as have
been obtained and (2) as may be required under state
securities, Blue Sky or insurance laws of the various states in
connection with the offer and sale of the Securities;
(iv) the discussion of United States tax matters
set forth under the heading "Material Bermuda and United States
Federal Income Tax Consequences" in the Final Prospectus
accurately reflects such counsel's opinion as to such tax laws
(subject to the qualifications and assumptions set forth in
such discussion);
(v) to such counsel's knowledge (and based solely
on review and discussion with the Company's general counsel),
there are no legal or governmental proceedings before or by any
U.S. or New York Regulatory Authority (excluding any insurance
regulatory authority), now pending, contemplated or threatened
to which the Company or any of the Subsidiaries is a party or
to which any of their respective properties is subject that is
required to be described in the Registration Statement or the
Final Prospectus or any statutes, regulations or orders that
have been enacted, adopted or issued by any U.S. Federal or New
York Regulatory Authority (excluding any insurance regulatory
authority) or Orders by a U.S. Federal or New York court of
competent jurisdiction that have been issued, or any contracts,
agreements, indentures, leases or other documents or
instruments, any of which are required to be described in the
Registration Statement or the Final Prospectus or to be filed
as exhibits to the Registration Statement or to any document
incorporated by reference therein that are not described or
filed as required;
(vi) such counsel have not themselves checked the
accuracy, completeness or fairness of, or otherwise verified,
the information furnished with respect to matters addressed in
documents incorporated by reference in the Registration
Statement or the Final Prospectus. Such counsel have generally
reviewed and discussed with certain officers and employees of,
and counsel and independent public accountants for, the Company
the information furnished, whether or not subject to such
counsel's check and verification. On the basis of such
consideration, review and discussion, but without independent
check or verification, nothing has come to such counsel's
attention that causes them to believe that any document
incorporated by reference in the Registration Statement and the
Final Prospectus (except for financial statements and the notes
thereto and schedules and other financial and statistical data
included therein, as to which such counsel need express no
belief) did not comply as to form in all material respects with
the Exchange Act and the applicable rules and regulations of
the Commission thereunder when filed with the Commission;
(vii) to the extent that the laws of the State of
New York are applicable, the Company has validly and
irrevocably submitted to the non-exclusive jurisdiction of any
United States Federal or New York State court sitting in the
Borough of Manhattan, the City of New York, New York, over any
suit, action or proceeding arising out of or relating to this
Agreement or the Securities, has validly and irrevocably waived
and agreed not to assert, to the fullest extent, it may
effectively do so under applicable law, by way of motion, as a
defense or otherwise, any claim that it is not subject to the
jurisdiction of any such court, any objection that it may now
or hereafter have to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum;
(viii) the Company, as provided in the Registration
Statement, has duly and irrevocably appointed PartnerRe U.S.
Corporation, as its agent for the purposes described in Section
15 of this Agreement and to receive service of process in
actions against it arising out of or in connection with
violations of the U.S. Federal securities laws in any Federal
court or state court in the United States relating to
transactions covered by the Final Prospectus; and
(ix) the Company is not required to register as an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
In addition, such counsel shall state that, although they have not
checked the accuracy, completeness or fairness of, or otherwise
verified, the information furnished with respect to other matters in
the Registration Statement or the Final Prospectus, such counsel has
participated in a general review and discussion with your
representatives, and with certain officers and employees of, and
counsel and independent public accountants for, the Company of the
information furnished, whether or not subject to such counsel's check
and verification, and on the basis of such consideration, review and
discussion, but without independent check or verification except as
stated above, nothing has come to such counsel's attention that
causes them to believe that (i) the Registration Statement or the
Final Prospectus (except for the financial statements and financial
schedules and other financial and statistical data included therein,
as to which such counsel need express no belief) do not comply as to
form in all material respects with the requirements of the Act and
the applicable rules and regulations of the Commission thereunder,
(ii) the Registration Statement or the Basic Prospectus included
therein (except for the financial statements and financial schedules
and other financial and statistical data included therein, as to
which such counsel need express no belief ) as of the date of the
Final Prospectus contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) the
Final Prospectus (except as stated) as of its date or as of the
Closing Date contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering their opinion as aforesaid, counsel may, as to factual
matters, rely upon written certificates of officers of the Company
and, as to matters of Bermuda law, may rely upon the opinion of
Christine Patton, the Company's general counsel, referred to below
and upon any other opinion or opinions, each dated the Closing Date,
of other counsel retained by the Company as to laws of any
jurisdiction other than the United States or the State of New York,
provided that (i) you are notified in advance of such counsel's
intention to rely on local counsel and each such counsel is
acceptable to you, (ii) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is delivered
to you and is, in form and substance reasonably satisfactory to you
and to counsel for the Underwriter, and (iii) counsel shall state in
their opinion that they believe that they and the Underwriter are
justified in relying on such local counsel opinion. Such counsel may
also make such assumptions, and express their opinion to be subject
to such reservations, as shall be reasonably satisfactory to your
counsel.
(f) The Underwriter shall have received on the Closing Date an
opinion of Stroock & Stroock & Lavan, LLP, special insurance
regulatory counsel to the Company, dated the Closing Date and
addressed to you in form and substance reasonably satisfactory to
counsel for the Underwriter, to the effect that:
(i) neither the execution, delivery and performance
by the Company of its obligations under this Agreement, nor the
compliance by the Company with the provisions hereof, nor the
consummation by the Company of any of the transactions
contemplated hereby will conflict with or contravene any
provision of any applicable insurance statute, law or
regulation, or any ruling or filing of or with any United
States federal or New York State insurance regulatory
authority, except to the extent that such conflict or
contravention would not have a Material Adverse Effect;
(ii) no consent, approval, authorization or order
of, qualification with, or registration or filing with any
United States federal or New York State insurance regulatory
authority is required for the performance by the Company of its
obligations under this Agreement, except for such consent,
approvals, authorizations and orders as have been obtained;
(iii) to such counsel's knowledge (and based solely
on review and discussion with the Company's general counsel),
there are no legal or governmental proceedings before or by any
United States federal or New York insurance regulatory
authority now pending, contemplated or threatened to which any
of the Company or the Subsidiaries is a party or to which any
of their respective properties is subject that is required to
be described in the Registration Statement or the Final
Prospectus; and
(iv) to the best of such counsel's knowledge, there
are no United States federal or New York insurance statutes or
regulations or orders that have been enacted, adopted or issued
by any U.S. or New York insurance regulatory authority that are
required to be described in the Registration Statement or the
Final Prospectus that are not described as required.
(g) The Underwriter shall have received on the Closing Date an
opinion of Bredin Prat, French counsel for the Company, dated the
Closing Date and addressed to you in form and substance reasonably
satisfactory to counsel for the Underwriter, to the effect that:
(i) PartnerRe S.A. is a societe anonyme duly
organized and validly existing under the laws of the Republic
of France and has full power and authority to own or lease its
property and to conduct its business as described in the Final
Prospectus;
(ii) neither the execution, delivery and
performance by the Company of its obligations under this
Agreement, nor the compliance by the Company with the
provisions hereof, nor the consummation by the Company of any
of the transactions contemplated hereby will conflict with or
contravene any provision of (A) any applicable statute, law,
regulation, ruling or filing (assuming compliance by the
Underwriter with all applicable securities laws) of any French
Regulatory Authority, except to the extent that such conflict
or contravention would not have a Material Adverse Effect or
(B) to such counsel's knowledge (based solely on review and
discussion with the Company's general counsel), any Order of
any French Regulatory Authority that is applicable to any of
the Company or the Subsidiaries or any of their respective
properties except to the extent such conflict or contravention
would not have a Material Adverse Effect;
In rendering their opinion as aforesaid, counsel may, as to factual
matters, rely upon written certificates of officers of the Company
and, as to matters of law, may rely upon the opinion of Christine
Patton, the Company's general counsel, referred to below and upon any
other opinion or opinions, each dated the Closing Date, of other
counsel retained by the Company as to laws of any jurisdiction other
than the Republic of France, provided that (i) you are notified in
advance of such counsel's intention to rely on local counsel and each
such counsel is acceptable to you, (ii) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such
opinion is delivered to you and is, in form and substance reasonably
satisfactory to you and to counsel for the Underwriter, and (iii)
counsel shall state in their opinion that they believe that they and
the Underwriter are justified in relying on such local counsel
opinion. Such counsel may also make such assumptions, and express
their opinion to be subject to such reservations, as shall be
reasonably satisfactory to your counsel.
(h) The Underwriter shall have received on the Closing Date an
opinion of Christine Patton, general counsel to the Company, dated
the Closing Date, and addressed to you in form and substance
reasonably satisfactory to counsel for the Underwriter, to the effect
that:
(i) each of the Company and Partner Reinsurance is
a company duly organized and validly existing in good standing
(including as an exempted company) under the laws of Bermuda,
has requisite power and authority and such Permits of any
Regulatory Authority in Bermuda (a "Bermuda Regulatory
Authority") necessary to own, lease and operate its property
and to conduct its business as described in the Registration
Statement and the Final Prospectus, which remain in full force
and effect, except to the extent that the failure to be in good
standing would not have a Material Adverse Effect;
(ii) the Company has the power and authority to
enter into this Agreement; the execution, delivery and
performance of its obligations under this Agreement by the
Company have been duly and validly authorized by the Company;
this Agreement has been duly executed and delivered by the
Company;
(iii) the authorized shares of capital stock of the
Company is as set forth under the caption "Capitalization" in
the Final Prospectus and conforms in all material respects as
to Bermuda legal matters to the description thereof contained
in the Final Prospectus; and the shares of capital stock of the
Company (including the Securities) have been duly authorized
and validly issued, are fully paid and non-assessable (meaning
that no further sums are required to be paid by the holders
thereof in connection with the issue of such shares) and all
such shares of the Subsidiaries are registered in the name of
the Company or a wholly-owned subsidiary of the Company, except
in the case of PartnerRe S.A. for director's qualifying shares;
based solely on a search of the Register of Charges maintained
by the Registrar of Companies pursuant to Sections 55 and 61 of
the Companies Act 1981 of Bermuda, as amended (the "Companies
Act"), there are no registered liens, encumbrances, equities or
claims in the Register of Charges in respect of the issued
shares of the Company or Partner Reinsurance;
(iv) neither the execution, delivery and
performance by the Company of its obligations under this
Agreement nor the compliance by the Company with the provisions
hereof, nor the consummation by the Company of any of the
transactions contemplated hereby will (A) conflict with or
contravene any provision of (i) any applicable statute, law,
regulation or published ruling or Order of any Bermuda
Regulatory Authority in any material respect that is applicable
to the Company or Partner Reinsurance or any of their
respective properties or (ii) the memorandum of association,
certificate of incorporation, bye-laws or other organizational
documents of the Company or Partner Reinsurance or (B) result
in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or Partner Reinsurance in
Bermuda;
(v) no consent, approval, authorization or order
of, qualification with, or registration or filing with any
Bermuda Regulatory Authority is required for the performance by
the Company of its obligations under this Agreement that has
not been obtained or effected;
(vi) Partner Reinsurance is duly registered as a
Class 4 insurer under the Bermuda Insurance Act 1978, as
amended, and any applicable rules and regulations thereunder
(the "Bermuda Insurance Act"), and is subject to regulation and
supervision in Bermuda and the Company is not required to be
registered as an insurance company under the Bermuda Insurance
Act;
(vii) the consummation of the transactions
contemplated by this Agreement (including but not limited to
any actions taken pursuant to the indemnification and
contribution provisions contained herein) will not, subject to
Section 39A(2A) of the Companies Act, constitute unlawful
financial assistance by the Company or Partner Reinsurance
under Bermuda law;
(viii) all statements made (A) in the Registration
Statement and the Final Prospectus (including the documents
incorporated therein by reference) with respect to (1) the
Securities (insofar as such statements relate to matters of
Bermuda law), (2) the memorandum of association, bye-laws or
other organizational documents of the Company or Partner
Reinsurance, (3) statutes, regulations, rules, treaties and
other laws of Bermuda (including, but not limited to,
statements made with respect to insurance, regulatory and tax
matters and to the Bermuda Insurance Act), (4) enforcement of
judgments in Bermuda and (5) the statements related to Bermuda
or the documents governed by Bermuda law made under the
headings "Description of our Capital Shares," and "Material
Bermuda and United States Federal Income Tax Consequences" (B)
in the Registration Statement in Item 15 with respect to the
Company and (C) in the descriptions of the Common Stock
incorporated by reference into the Final Prospectus, in each
case insofar as such statements constitute summaries of
documents referred to therein, fairly and accurately present
the information set forth therein and such counsel's opinion as
to such matter;
(ix) the Company and Partner Reinsurance have each
received from the Bermuda Minister of Finance an assurance of
tax exemption under The Exempted Undertakings Tax Protection
Act 1966 of Bermuda to the effect set forth in the Company's
Annual Report on Form 10-K for the year ended December 31, 2002
under the caption "Business--Regulation--Taxation of the
Company and its Subsidiaries--Bermuda;"
(x) there are no currency exchange control laws or
withholding taxes of Bermuda that would be applicable to the
payment of dividends on the Securities by the Company or by
Partner Reinsurance to the Company;
(xi) the Company, as provided in the Registration
Statement, has duly and irrevocably appointed PartnerRe U.S.
Corporation as its agent for the purposes described in Section
15 of this Agreement and to receive service of process in
actions against it arising out of or in connection with
violations of the U.S. Federal securities laws in any Federal
court or state court in the United States relating to
transactions covered by the Final Prospectus and such
appointment is valid under Bermuda law;
(xii) under the laws of Bermuda, the submission by
the Company to the non-exclusive jurisdiction of any United
States Federal or New York State court sitting in the Borough
of Manhattan, The City of New York, New York, over any suit,
action or proceeding arising out of or relating to this
Agreement or the Securities, its waiver and agreement not to
assert by way of motion, as a defense or otherwise, any claim
that it is not subject to the jurisdiction of any such court,
any objection that it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an
inconvenient forum and the appointment of PartnerRe U.S.
Corporation as its authorized agent for the purposes described
in Section 15 of this Agreement are valid and binding; and
service of process effected in the manner set forth in Section
15 of this Agreement will be effective under the laws of
Bermuda to confer personal jurisdiction over each of the
Company and the Subsidiaries, assuming this to be the case
under the laws of the State of New York;
(xiii) the choice of the laws of New York as the
governing law of this Agreement is a valid and effective choice
of law; the Underwriter would be permitted to commence
proceeding in a court of competent jurisdiction in Bermuda
based on or arising under this Agreement; and the laws of New
York would be recognized and applied by such court as the laws
governing this Agreement;
(xiv) in order to ensure the legality, validity,
enforceability or admissibility in evidence of the Final
Prospectus and this Agreement, it is not necessary that any
document be filed, recorded or enrolled with any Bermuda
Regulatory Authority or that any stamp duties, registration or
similar tax or charge be paid in Bermuda;
(xv) a final and conclusive judgment of a New York
State or a Federal Court against the Company or any Subsidiary
based upon this Agreement, under which a sum of money is
payable (not being a sum payable in respect of taxes or other
charges of a like nature or in respect of a fine or other
penalty or in respect of multiple damages as defined in the
Protection of Trading Interest Act, 1981) may be the subject of
enforcement proceedings in the Supreme Court of Bermuda under
the common law doctrine of Obligation and by action for the
debt evidenced by the foreign Court's judgment. A final opinion
as to the availability of this remedy should be sought when the
facts surrounding the United States court 's judgment are
known, but, on general principles such counsel would expect
such proceedings to be successful provided that:
(1) the court that gave the judgment was
competent to hear the action in accordance with
private international law principles as applied by
the courts in Bermuda (and, as at the date hereof,
we believe that a Court in Bermuda would determine
that any New York State or Federal Court sitting
in the City of New York is so competent); and
(2) the judgment is not contrary to public
policy in Bermuda and was not obtained by fraud or
in proceedings contrary to the rules of natural
justice of Bermuda. Such counsel does not believe
that any provisions of this Agreement would be so
contrary;
(xvi) there are no legal or governmental
proceedings of any Bermuda Regulatory Authority pending or, to
the best of such counsel's knowledge, threatened against any of
the Company or Partner Reinsurance or to which any of them or
any of their respective properties is subject, based solely on
(i) a certificate given by a director of the Company and (ii) a
search of the public records of the Company and Partner
Reinsurance, maintained by the Registrar of Companies and the
Registrar of the Supreme Court of Bermuda; and
(xvii) except as disclosed in the Final Prospectus,
there are no preemptive or other rights to subscribe for or to
purchase or any restriction upon the voting or transfer of, any
shares of capital stock of the Company or Partner Reinsurance
pursuant to the Company's or Partner Reinsurance's memorandum
of association, certificate of incorporation, bye-laws or other
organizational documents, respectively.
In rendering her opinion as aforesaid, counsel may, as to factual
matters, rely upon written certificates of officers of the Company or
the Subsidiaries and, as to matters of law, may rely upon an opinion
or opinions, each dated the Closing Date, of other counsel retained
by the Company as to laws of any jurisdiction other than Bermuda,
provided that (i) you are notified in advance of such counsel's
intention to rely on local counsel and each such local counsel is
acceptable to you, (ii) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is delivered
to you and is, in form and substance reasonably satisfactory to you
and to counsel for the Underwriter, and (iii) counsel shall state in
her opinion that she believes that she and the Underwriter are
justified in relying on such local counsel opinion. Such counsel may
also make such assumptions, and express her opinion to be subject to
such reservations, as shall be reasonably satisfactory to your
counsel. In her opinion, counsel shall expressly authorize Davis Polk
& Wardwell and Willkie Farr & Gallagher to rely on said opinion.
(i) The Underwriter shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, United States
counsel for the Selling Shareholder, dated the Closing Date, and
addressed to you in form and substance reasonably satisfactory to
counsel for the Underwriter, to the effect that:
(i) assuming that the Underwriter has no notice of
any adverse claims with respect to the certificates set forth
on an annex to such opinion, each registered in the name of the
Selling Shareholder and evidencing an aggregate of 8,340,731
common shares of the Company, then, upon delivery to the
Underwriter of such certificates indorsed in blank by an
effective indorsement, the Underwriter will acquire such
certificates (and the shares represented thereby) free of any
adverse claims under Section 8-303 of the New York UCC. As used
in such opinion, "notice of adverse claim" shall have the
meaning set forth in Section 8-105 of the New York UCC, and
includes, without limitation, any claim which the Underwriter
would discover upon any investigation which such person has a
duty, imposed by statute or regulation, to investigate;
(ii) no Governmental Approval which has not been
obtained or made, and is not in full force and effect, is
required for the sale of the Securities by the Selling
Shareholder pursuant to this Agreement; and
(iii) the execution and delivery by the Selling
Shareholder of this Agreement, and the consummation by the
Selling Shareholder of the transactions contemplated hereby,
including the sale and delivery of the Securities being sold by
the Selling Shareholder, will not violate or conflict with, or
result in any contravention of, any Applicable Law or any
Applicable Order. As used in such opinion, (i) "Applicable
Laws" shall mean those laws, rules and regulations of the State
of New York and the federal laws of the United States of
America, in each case, which, in such counsel's experience, are
normally applicable to transactions of the type contemplated by
this Agreement (other than the United States state and foreign
securities or blue sky laws and the rules and regulations of
the National Association of Securities Dealers, Inc.), without
such counsel having made any special investigation as to the
applicability of any specific law, rule or regulation; (ii)
"Governmental Authorities" means any court, regulatory body,
administrative agency or governmental body of the State of New
York or the United States of America having jurisdiction over
the Selling Shareholder under Applicable Laws; (iii)
"Governmental Approval" means any consent, approval, license,
authorization or validation of, or filing, qualification or
registration with, any Governmental Authority required to be
made or obtained by the Selling Shareholder pursuant to
Applicable Laws, other than any consent, approval, license,
authorization, validation, filing, qualification or
registration which may have become applicable as a result of
the involvement of any other party (other than the Selling
Shareholder) in the transactions contemplated by this Agreement
or because of such parties' legal or regulatory status or
because of any other facts specifically pertaining to such
parties; and (iv) "Applicable Orders" means those judgments,
orders or decrees, if any, to be identified on a schedule to
such counsel's opinion.
In rendering their opinion as aforesaid, counsel may, as to factual
matters, rely upon written certificates of officers of the Selling Shareholder
and, as to matters of Bermuda law, may rely upon the opinion of Appleby
Spurling & Kempe referred to below and upon any other opinion or opinions,
each dated the Closing Date, of other counsel retained by the Selling
Shareholder as to laws of any jurisdiction other than the United States or the
State of New York, provided that (i) you are notified in advance of such
counsel's intention to rely on local counsel and each such counsel is
acceptable to you, (ii) such reliance is expressly authorized by each opinion
so relied upon and a copy of each such opinion is delivered to you and is, in
form and substance reasonably satisfactory to you and to counsel for the
Underwriter, and (iii) counsel shall state in their opinion that they believe
that they and the Underwriter are justified in relying on such local counsel
opinion. Such counsel may also make such assumptions, and express their
opinion to be subject to such reservations, as shall be reasonably
satisfactory to your counsel.
(j) The Underwriter shall have received on the Closing Date an
opinion of Appleby Spurling & Kempe, Bermuda counsel for the Selling
Shareholder, dated the Closing Date, and addressed to you in form and
substance reasonably satisfactory to counsel for the Underwriter, to
the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by the Selling Shareholder and the
Selling Shareholder has full legal right and authority to sell,
transfer and deliver in the manner provided in this Agreement
the Securities being sold by the Selling Shareholder hereunder;
(ii) no consent, approval, authorization or order
of qualification with, or registration or filing with any
Bermuda Regulatory Authority applicable to the Selling
Shareholder is required for the performance by the Selling
Shareholder of its obligations under this Agreement, except
such approvals as have been obtained;
(iii) neither the sale of the Securities being sold
by the Selling Shareholder nor the consummation of any other of
the transactions herein contemplated by the Selling Shareholder
or the fulfillment of the terms hereof by the Selling
Shareholder will conflict with or contravene any provisions of
(A) any applicable statute, law, regulation or published ruling
or Order of any Bermuda Regulatory Authority in any material
respect that is applicable to the Company or (B) the charter or
bye-laws of the Selling Shareholder; and
(iv) neither the Underwriter nor any subsequent
purchasers of the Securities are subject to any stamp duty,
excise or similar tax imposed in Bermuda in connection with the
offering, sale or purchase of the Securities.
In rendering their opinion as aforesaid, counsel may, as to factual
matters, rely upon written certificates of officers of the Selling Shareholder
and, as to matters of U.S. Federal of New York law, may rely upon the opinion
of Skadden, Arps, Slate, Meagher & Flom LLP, referred to above and upon any
other opinion or opinions, each dated the Closing Date, of other counsel
retained by the Selling Shareholder as to laws of any jurisdiction other than
Bermuda, provided that (i) you are notified in advance of such counsel's
intention to rely on local counsel and each such counsel is acceptable to you,
(ii) such reliance is expressly authorized by each opinion so relied upon and
a copy of each such opinion is delivered to you and is, in form and substance
reasonably satisfactory to you and to counsel for the Underwriter, and (iii)
counsel shall state in their opinion that they believe that they and the
Underwriter are justified in relying on such local counsel opinion. Such
counsel may also make such assumptions, and express their opinion to be
subject to such reservations, as shall be reasonably satisfactory to your
counsel.
(k) The Underwriter shall have received on the Closing Date an
opinion of Markus U. Diethelm, Chief Legal Officer of Swiss Re, dated
the Closing Date, and addressed to you in form and substance
reasonably satisfactory to counsel for the Underwriter, to the effect
that:
(i) Swiss Re has the power and authority to enter
into this Agreement, and this Agreement has been duly executed
and delivered by Swiss Re; and
(ii) To the best of his knowledge, neither the sale
of the Securities being sold by the Selling Shareholder, nor
the consummation of any other of the transactions herein
contemplated by Swiss Re or the Selling Shareholder, will in
any material respect conflict with, result in a breach or
violation of, or constitute a default under (A) any material
Swiss statute, law, regulation, published ruling or Order of
any Regulatory Authority in Switzerland (assuming compliance by
the Underwriter with all applicable securities law) that is
applicable to Swiss Re; (B) the articles of association of
Swiss Re; or (C) the terms of any material indenture or other
agreement or instrument known to such counsel and to which
Swiss Re or the Selling Shareholder is a party or bound, except
to the extent that any such conflict, breach, violation or
default as set forth in clause (A) or (C) would not have a
material adverse effect on the ability of Swiss Re to perform
its obligations hereunder.
(l) The Underwriter shall have received on the Closing Date an
opinion of Willkie Farr & Gallagher, counsel for the Underwriter,
dated the Closing Date in form and substance reasonably satisfactory
to the Underwriter.
The opinions of Davis Polk & Wardwell described in paragraph 7(e), of
Stroock & Stroock & Lavan, LLP described in paragraph 7(f), of Bredin Prat
described in paragraph 7(g), and of Christine Patton described in paragraph
7(h) above shall be rendered to the Underwriter at the request of the Company
and shall so state therein. The opinions of Skadden, Arps, Slate, Meagher &
Flom LLP described in paragraph 7(i), Appleby Spurling & Kempe described in
paragraph 7(j) above and Markus U. Diethelm described in paragraph 7(k), shall
be rendered to the Underwriter at the request of Swiss Re and the Selling
Shareholder and shall so state therein.
(m) The Underwriter shall have received, on each of the date
hereof and on the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriter, from Deloitte & Touche, independent chartered
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statement and certain financial
information contained in the Registration Statement and the Final
Prospectus.
(n) The Securities shall have been approved for listing on the
New York Stock Exchange.
(o) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain executive officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
(p) The Company, the Selling Shareholder and Swiss Re shall
have furnished or caused to be furnished to you such further
certificates and documents as you shall have reasonably requested.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Agreement and all obligations of the Underwriter hereunder
may be canceled on the Closing Date by the Underwriter (or any date subsequent
to the last date designated as a Closing Date in Section 4 hereof). Notice of
such cancellation shall be given to the Company, Swiss Re and the Selling
Shareholder in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be
delivered at the office of Willkie Farr & Gallagher, counsel for the
Underwriter, at 787 Seventh Avenue, New York, New York, on the Closing Date.
8. Reimbursement of Underwriter's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company, Swiss Re or the
Selling Shareholder to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the Underwriter,
the Company will reimburse the Underwriter on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel to the
Underwriter) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities; provided, however, that all fees
and expenses related to the review of the offering by the National Association
of Securities Dealers, Inc. will be for the account of Swiss Re and the
Selling Shareholder.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Underwriter, the directors, officers,
employees and agents of the Underwriter and each person who controls the
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities at the time it became
effective or in any amendment thereof, or in the Basic Prospectus, or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for inclusion therein;
provided, further, that the foregoing indemnity agreement with respect to the
Basic Prospectus shall not inure to the benefit of the Underwriter, or any
person controlling such Underwriter, if a copy of the Final Prospectus (as
then amended or supplemented if the Company shall have furnished any amendment
or supplement thereto) was not sent or given by or on behalf of the
Underwriter to such person, if required by law to have been so delivered, at
or prior to the written confirmation of the sale of the Securities sold by the
Company to such person, and if the Final Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) The Selling Shareholder agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, the Underwriter, the directors,
officers, employees and agents of the Underwriter and each person who
controls the Company or the Underwriter within the meaning of either
the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with
reference to the information set forth in the table found under the
caption "The Selling Shareholder" therein (but not the percentages
set forth therein). This indemnity agreement will be in addition to
any liability which the Selling Shareholder may otherwise have.
(c) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act and the
Selling Shareholder and Swiss Re, each of their directors and
officers and each person, if any, who controls either the Selling
Shareholder or Swiss Re within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only with reference to written
information relating to the Underwriter furnished to the Company by
or on behalf of the Underwriter specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which the Underwriter
may otherwise have. The Company acknowledges that the statements set
forth in the last paragraph of the cover page regarding delivery of
the Securities and, under the heading "Underwriting," the paragraphs
related to stabilization, and syndicate covering transactions in the
Final Prospectus constitute the only information furnished in writing
by or on behalf of the Underwriter for inclusion in the Final
Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a), (b) or (c) above unless and to
the extent it did not otherwise learn of such action and such failure
materially prejudices substantial rights or defenses of the
indemnifying party and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a),
(b) or (c) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified party or parties, settle or
compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a)
(b) or (c) of this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company, the
Selling Shareholder and the Underwriter agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating
or defending same) (collectively "Losses") to which the Company, the
Selling Shareholder and the Underwriter may be subject in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Shareholder on the one hand
and by the Underwriter on the other from the offering of the
Securities; provided, however, that in no case shall the Underwriter
be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by the
Underwriter under this Agreement. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company, the Selling Shareholder and the Underwriter shall contribute
in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the
Selling Shareholder on the one hand and of the Underwriter on the
other in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and by the Selling
Shareholder shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by them, and
benefits received by the Underwriter shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall
be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
provided by the Company and the Selling Shareholder on the one hand
or the Underwriter on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company, the
Selling Shareholder and the Underwriter agree that it would not be
just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 9, each person who controls the Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of the Underwriter shall have the same
rights to contribution as the Underwriter, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (e).
(f) The liability of the Selling Shareholder and Swiss Re under
the representations and warranties of the Selling Shareholder and
Swiss Re contained in Section 2 hereof and under the indemnity and
contribution agreements contained in this Section 9 shall be limited
to an amount equal to the net proceeds received by the Selling
Shareholder from the sale of the Securities to the Underwriter. The
Company and the Selling Shareholder may agree, as among themselves
and without limiting the rights of the Underwriter under this
Agreement, as to the respective amounts of such liability for which
they each shall be responsible.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriter, by notice given to the Company,
the Selling Shareholder and Swiss Re prior to delivery of and payment for the
Securities, if at any time prior to such time (i) trading in the Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak
or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Underwriter,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company, Swiss Re and the Selling Shareholder or their officers and of the
Underwriter set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter, Swiss Re, the Selling Shareholder or the Company or any of
the officers, directors, employees, agents or controlling persons referred to
in Section 9 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 8 and 9 hereof shall survive the
termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to the General Counsel (fax no.: (212) 816-7912) and
confirmed to it at Citigroup Global Markets Inc., 388 Greenwich Street, New
York, NY 10013, Attention: General Counsel; or, if sent to the Company, will
be mailed, delivered or telefaxed to the General Counsel (441-292-7010) and
confirmed to it at PartnerRe Ltd., 96 Pitts Bay Road, Pembroke HM 08, Bermuda,
Attention: General Counsel; or if sent to the Selling Shareholder, will be
mailed, delivered or telefaxed and confirmed to it at SwissRe Capital
Management (Bermuda) Ltd., (fax no.: 441-295-1757) , Mint Flower Place 8,
Par-la-Ville Road, Hamilton HM GX, Bermuda, Attention: Compliance Officer; or
if sent to Swiss Re, will be mailed, delivered or telefaxed and confirmed to
it at Swiss Reinsurance Company, (fax no.: 41-43-282-2162), 50/60 Mythenquai,
CH-8022 Zurich, Switzerland, Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Judicial Proceedings. (a) Each of the Company, the Selling
Shareholder and Swiss Re expressly accepts and irrevocably submits to the
non-exclusive jurisdiction of the United States Federal or New York State
court sitting in the Borough of Manhattan, the City of New York, New York,
over any suit, action or proceeding arising out of or relating to this
Agreement or the Securities. To the fullest extent it may effectively do so
under applicable law, each of the Company, the Selling Shareholder and Swiss
Re irrevocably waives and agrees not to assert, by way of motion, as a defense
or otherwise, any claim that it is not subject to the jurisdiction of any such
court, any objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in any such court and any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
(b) Each of the Company, the Selling Shareholder and Swiss Re
agrees, to the fullest extent that it may effectively do so under
applicable law, that a judgment in any suit, action or proceeding of
the nature referred to in Section 15(a) brought in any such court
shall be conclusive and binding upon it, subject to rights of appeal
and may be enforced in the courts of the United States of America or
the State of New York (or any other court the jurisdiction to which
the Company is or may be subject) by a suit upon such judgment.
(c) The Company irrevocably designates and appoints PartnerRe
U.S. Corporation, and each of the Selling Shareholder and Swiss Re
irrevocably designates and appoints Swiss Re Financial Services
Corporation (55 East 52nd Street, 44th Floor, New York, New York
10055, (fax no.: 212-317-5350), Attn: General Counsel), as its
authorized agent, upon whom process may be served in any suit, action
or proceeding of the nature referred to in Section 15(a) by mailing a
copy thereof by registered or certified mail, postage prepaid, return
receipt requested, to the agent at the addresses specified herein or
in Section 12. Each of the Company, the Selling Shareholder and Swiss
Re agrees that such service (i) shall be deemed in every respect
effective service of process upon it in every suit, action or
proceeding and (ii) shall, to the fullest extent permitted by law, be
taken and held to be valid personal service upon and personal
delivery to it. Notices hereunder shall be conclusively presumed
received as evidenced by a delivery receipt furnished by the United
States Postal Service or any commercial delivery service.
(d) Nothing in this Section 15 shall affect the right of the
Underwriter to serve process in any manner permitted by law, or limit
any right to bring proceedings against any of the Company, the
Selling Shareholder or Swiss Re in the courts of any jurisdiction or
to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
16. Undertaking by Swiss Re. Swiss Re shall cause the Selling
Shareholder to perform when due all of its obligations under this Agreement.
17. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
18. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided by
Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Selling Shareholder, Swiss Re and the Underwriter.
Very truly yours,
PARTNERRE LTD.
By: /s/ Albert Benchimol
--------------------------------
Name: Albert Benchimol
Title: Executive Vice President
& Chief Financial Officer
SWISSRE CAPITAL MANAGEMENT
(BERMUDA) LTD.
By: /s/ Helmut Brechot
--------------------------------
Name: Helmut Brechot
Title: Member of the Board of
Directors
By: /s/ Ulrich Ackermann
--------------------------------
Name: Ulrich Ackermann
Title: CFO & Vice President
SWISS REINSURANCE COMPANY
By: /s/ Peter Gujer
--------------------------------
Name: Peter Gujer
Title: Managing Director
By: /s/ Andre Pfanner
-------------------------------
Name: Andre Pfanner
Title: Member of Senior Management
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Gautam Chawla
-----------------------------
Name: Gautam Chawla
Title: Director
Exhibit 99.4
Swiss Re to sell its stake in PartnerRe and to make a CHF 230 million capital
gain
Zurich, 7 May 2003 - Swiss Re has agreed to sell its remaining shareholding in
PartnerRe, comprising about 16% of PartnerRe's shares. As a result of the
sale, Swiss Re's capital gain is expected to be CHF 230 million.
On 29 April 2003, Swiss Re requested that PartnerRe file a registration
statement with respect to Swiss Re's 8.3 million shares in Partner Re with the
United States Securities and Exchange Commission (SEC). The registration
statement was declared effective by the SEC on 5 May 2003.
The sale is in line with Swiss Re's strategy to actively allocate capital to
its core reinsurance business, where conditions are currently positive. Swiss
Re's capital gain from the sale is expected to be CHF 230 million.
Swiss Re was the sponsoring investor in PartnerRe's formation in 1993. With
the hardened conditions in the reinsurance market, Swiss Re sold shares to
PartnerRe in November 2002, reducing its holding from about 29% to 16%.
The transaction is expected to close on Friday 9 May.
Swiss Re is a leading reinsurer and the world's largest life and
health reinsurer. The company is global, operating from 70 offices in 30
countries. Since its foundation in 1863, Swiss Re has been in the reinsurance
business. Swiss Re has three business groups: Property & Casualty, Life &
Health and Financial Services. Swiss Re offers a wide range of traditional
reinsurance products and related services, which are complemented by
insurance-based corporate finance solutions and supplementary services. Swiss
Re is rated "AA+" by Standard & Poor's, "Aa1" by Moody's and "A++" by A.M.
Best.
This press release does not constitute an offer to sell or the
solicitation of an offer to buy common stock or any other securities of
PartnerRe, nor will there be any offer, solicitation or sale of common stock
or any other securities in any state or jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of such state or jurisdiction. A prospectus relating
to the proposed common stock offering may be obtained by contacting the
underwriter in connection with the transaction: Citigroup Global Markets Inc.,
Brooklyn Army Terminal, 140 58th Street, 8th Floor Brooklyn, New York 11220.