EXHIBIT 99.1
PartnerRe Ltd.
8,000,000 Common Shares*
($1.00 par value)
Underwriting Agreement
New York, New York
November 7, 2002
Salomon Smith Barney Inc.
Goldman, Sachs & Co.
UBS Warburg LLC Fox-Pitt, Kelton Inc.
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
PartnerRe Ltd., a company organized under the laws of Bermuda (the
"Company"), proposes to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, 8,000,000 Common Shares, $1.00 par value ("Common Stock") of
the Company (said shares to be issued and sold by the Company being hereinafter
called the "Underwritten Securities"). The Company also proposes to grant to
the Underwriters an option to purchase up to 1,200,000 additional shares of
Common Stock to cover over-allotments (the "Option Securities;" the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities"). To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
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 or the issue date of the Basic Prospectus, any
Preliminary Final 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, any Preliminary
Final 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,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be,
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* Plus an option to purchase from PartnerRe Ltd., up to 1,200,000 additional
Common Shares to cover over-allotments.
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deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 18 hereof.
The Company has entered into a Purchase Agreement (the "Purchase
Agreement"), dated as of November 1, 2002, with Swiss Reinsurance Company
("Swiss Re") and certain affiliates of Swiss Re, providing for the sale by
Swiss Re or such affiliates to the Company of 6,000,000 shares of Common Stock
held by Swiss Re, plus an additional number of shares of Common Stock equal to
75% of the number of Options Securities sold to cover over-allotments, in each
case subject to adjustment as provided in the Purchase Agreement.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter 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 Securities Act. The
Registration Statement (registration No. 333-75196) 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 Securities 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 any Underwriter furnished to the Company in writing by such
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
Preliminary 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
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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, 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 Securities 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
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 duly authorized, and, when the
Securities are issued and delivered pursuant to this Agreement, such
Securities will have been validly issued, fully paid and nonassessable.
(h) The Securities have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance; and the Securities
have been registered under the Exchange Act.
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(i) The issuance of the Securities will not be subject to any
preemptive rights other than those that have been waived.
(j) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(k) 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).
(l) Neither the execution and delivery by the Company of, or the
performance by it of its obligations under, this Agreement, the Purchase
Agreement and the Securities, 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).
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(m) 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 or the Purchase
Agreement, except such as may be required (1) for registrations and
filings under the Securities 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.
(n) 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 Securities 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.
(o) 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).
(p) 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.
(q) 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
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other jurisdictions which are applicable to any of them, except where the
failure to comply would not have a Material Adverse Effect.
(r) 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.
(s) Each Preliminary Final prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission thereunder.
(t) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(u) 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 Securities Act with respect to any securities of the
Company, in each case, other than such rights as have been waived.
(v) 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 or an insurance holding company, as applicable, in
each jurisdiction where it is required to be
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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.
(w) None of the Underwriters or 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.
(x) 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.
(y) 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.
(z) 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, 2001
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.
(aa) 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.
(bb) 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 Securities Act.
(cc) 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
8
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.
(dd) 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.
(ee) 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.
(ff) 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
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $46.3995 per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to 1,200,000 Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised
in whole or in part at any time on or before the 30th day after the date
of the Final Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten Securities,
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subject to such adjustments as you in your absolute discretion shall make
to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section
2(b) hereof shall have been exercised on or before the Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on November
14, 2002, or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (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 Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at
388 Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to
the Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Option Securities and other matters related to the issuance of the
Option Securities.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) 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 of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
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,
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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
Representatives of such timely filing. The Company will promptly advise
the Representatives (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.
(b) 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 Representatives of
such event, (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, 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.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives 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.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, conformed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
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(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives 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.
(f) The Company will not, without the prior written consent of
Salomon Smith Barney Inc., 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 90
days after the date of the Underwriting 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 90-day period referred to herein.
(g) 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.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as
of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its 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
12
applicable time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with Section 5(a)
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
Underwriters.
(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 Underwriters 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 6(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 Underwriters 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 Underwriters, 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 Prospectus;
13
(ii) assuming the due authorization, execution and delivery of
the Purchase Agreement, the Purchase Agreement is a valid and binding
obligation of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, (regardless of whether enforcement is
sought in a proceeding at law or in equity), and except as rights to
indemnity and contribution thereunder may be limited under applicable
law;
(iii) neither the issuance, sale or delivery of the Securities
by the Company, nor the execution, delivery and performance by the
Company of its obligations under this Agreement or the Purchase
Agreement, nor the compliance by the Company with the provisions
hereof or thereof, as the case may be, nor the consummation by the
Company of any of the transactions contemplated hereby or thereby
will (A) conflict with or contravene any provision of (i) any
applicable statute, law, regulation, ruling or filing (assuming
compliance by the Underwriters with all applicable securities and
Blue Sky laws) of any United States 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 on a list of material agreements and instruments
appended to such counsel's opinion, 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 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, 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 on a list of
material agreements and instruments appended to such counsel's
opinion;
(iv) no consent, approval, authorization or order of,
qualification with, or registration or filing with any United States
or New York 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;
14
(v) 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);
(vi) 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 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 Prospectus or any statutes, regulations
or orders that have been enacted, adopted or issued by any U.S. or
New York Regulatory Authority (excluding any insurance regulatory
authority) or Orders by a U.S. 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
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.
(vii) each document incorporated by reference in the
Registration Statement and the 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
not express any opinion) complied as to form when filed with the
Commission in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder;
(viii) 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;
(ix) 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
15
U.S. Federal securities laws in any Federal court or state court in
the United States relating to transactions covered by the Prospectus;
and
(x) the Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus will not be, 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 Securities Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement or the Final 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 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 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
Underwriters, and (iii) counsel shall state in their opinion that they
believe that they and the Underwriters 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.
(e) The Underwriters shall have received on the Closing Date an
opinion of Stroock & Stroock & Lavan, LLP, special insurance regulatory
counsel to the Company,
16
dated the Closing Date and addressed to you in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
(i) neither the issuance, sale or delivery of the Securities by
the Company, nor the execution, delivery and performance by the
Company of its obligations under this Agreement or the Purchase
Agreement, nor the compliance by the Company with the provisions
hereof or thereof, as the case may be, nor the consummation by the
Company of any of the transactions contemplated hereby or thereby
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 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 Prospectus that are
not described as required.
(f) The Underwriters 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 Underwriters, 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 Prospectus;
(ii) neither the issuance, sale or delivery of the Securities by
the Company, nor the execution, delivery and performance by the
Company of its obligations under this Agreement or the Purchase
Agreement, nor the compliance by the Company with the provisions
hereof or thereof, as the case may be, nor the
17
consummation by the Company of any of the transactions contemplated
hereby or thereby will conflict with or contravene any provision of
(A) any applicable statute, law, regulation, ruling or filing
(assuming compliance by the Underwriters 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 Appleby, Spurling & Kempe
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 Underwriters, and (iii) counsel
shall state in their opinion that they believe that they and the
Underwriters 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.
(g) The Underwriters shall have received on the Closing Date an
opinion of Appleby, Spurling & Kempe, Bermuda counsel to the Company,
dated the Closing Date, and addressed to you in form and substance
reasonably satisfactory to counsel for the Underwriters, 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 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 and the Purchase Agreement; the execution, delivery and
performance of its obligations under this Agreement and the Purchase
Agreement by the Company have been duly and validly authorized by the
Company; and each of this Agreement and the Purchase Agreement has
been duly executed and delivered by the Company;
18
(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 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) the Securities have been duly authorized, executed and
delivered by the Company, and when issued and delivered in accordance
with this Agreement, will be validly issued, fully paid and
nonassessable, and the issuance of the Securities is not subject to
any preemptive rights other than such rights as have been waived;
(v) neither the execution, delivery and performance by the
Company of its obligations under this Agreement or the Purchase
Agreement nor the compliance by the Company with the provisions
hereof or thereof, as the case may be, 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;
(vi) 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 or the Purchase Agreement
that has not been obtained or effected;
(vii) 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;
(viii) the consummation of the transactions contemplated by the
Agreement (including but not limited to any actions taken pursuant to
the
18
indemnification and contribution provisions contained herein) or the
Purchase Agreement will not, subject to Section 39A(2A) of the
Companies Act, constitute unlawful financial assistance by the
Company or Partner Reinsurance under Bermuda law;
(ix) all statements made (A) in the Registration Statement and
the 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 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;
(x) none of the Underwriters or 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;
(xi) 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, 2001 under the caption
"Business--Regulation--Taxation of the Company and its
Subsidiaries--Bermuda;"
(xii) 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;
(xiii) 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 Prospectus and such appointment is valid
under Bermuda law;
(xiv) 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
20
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;
(xv) the choice of the laws of New York as the governing law of
this Agreement is a valid and effective choice of law; the several
Underwriters 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;
(xvi) in order to ensure the legality, validity, enforceability
or admissibility in evidence of the Prospectus, this Agreement and
the Purchase 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;
(xvii) a final and conclusive judgment of a New York State or a
Federal Court against the Company or any Subsidiary based upon this
Agreement and the Purchase 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
21
of natural justice of Bermuda. We do not believe that any
provisions of the Agreement or the Purchase Agreement would be
so contrary;
(xviii) 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
(xix) except as disclosed in the 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, and the issuance of the Securities will not be subject
to any preemptive or similar rights.
In rendering their 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 Underwriters, and
(iii) counsel shall state in their opinion that they believe that they and
the Underwriters 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. In their opinion, counsel shall expressly authorize Davis
Polk & Wardwell and Willkie Farr & Gallagher to rely on said opinion.
(h) The Underwriters shall have received on the Closing Date an
opinion of Willkie Farr & Gallagher, counsel for the Underwriters, dated
the Closing Date in form and substance satisfactory to the Underwriters.
The opinions of Davis Polk & Wardwell described in paragraph 6(d), of
Stroock & Stroock & Lavan, LLP described in paragraph 6(e), of Bredin Prat
described in paragraph 6(f), and of Appleby, Spurling & Kempe described in
paragraph 6(g) above shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
(i) The Underwriters 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
Underwriters, from Deloitte & Touche, independent chartered accountants,
containing statements and information of the type
22
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.
(j) The Securities shall have been approved for listing, subject only
to official notice of issuance, on the New York Stock Exchange.
(k) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and Swiss Re 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.
(l) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably
requested.
The several obligations of the Underwriters to purchase Option Securities
hereunder are subject to the delivery to the Underwriters on the Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Option
Securities and other matters related to the issuance of the Option Securities.
If any of the conditions specified in this Section 6 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 Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled on
the Closing Date by the Representatives (or any date subsequent to the last
date designated as a Closing Date in Section 3 hereof). Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Willkie Farr & Gallagher, counsel for the
Underwriters, at 787 Seventh Avenue, New York, New York, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 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 to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
Salomon Smith Barney Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel to the Underwriters) 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.
23
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any 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, any Preliminary Final 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
any Underwriter through the Representatives specifically for inclusion therein;
provided, further, that the foregoing indemnity agreement with respect to any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, 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 such 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) Each Underwriter severally and not jointly 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, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any 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," (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances, (iii) the paragraphs related to
stabilization, syndicate covering transactions and penalty bids, (iv) the
paragraph relating to online offers and sales, (v) the sentences regarding
the conduct of the offering in accordance with the rules of the National
Association of Securities Dealers, Inc. and (vi) the sentence indicating
that the
24
Underwriters will not confirm sales to accounts over which they have
discretionary authority without consent of such accounts, in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 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 8, 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) or (b)
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) or (b)
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
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.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally 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 and one or more of the Underwriters may be subject in
such
25
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and by the Underwriters on the other from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount
in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of
the Underwriters 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 shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters 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 on the one hand or the Underwriters 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 and the Underwriters 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 (d), 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 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
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 (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting
26
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
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 Representatives, 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 or
its officers and of the Underwriters 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 any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 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 Representatives, will be mailed, delivered
or telefaxed to the Salomon Smith Barney Inc. General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, Salomon Smith Barney Inc., at
388 Greenwich Street, New York, New York, 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.
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 8
hereof, and no other person will have any right or obligation hereunder;
provided that Swiss Re shall be a third party beneficiary of the
representations and warranties made by the Company in Section 1 hereof and the
agreements made by the Company in Section 5 hereof.
27
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) The Company 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, the Company 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) The Company 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 the Company, 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 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 address of the
Company specified in Section 12. The Company 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 the Company. 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 any
Underwriter to serve process in any manner permitted by law, or limit any
right to bring proceedings against the Company in the courts of any
jurisdiction or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
16. 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.
17. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
28
"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.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, 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.
29
"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.
30
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 and the several Underwriters.
Very truly yours,
PARTNERRE LTD.
By: /s/ Albert A. Benchimol
----------------------------------
Name: Albert A. Benchimol
Title: Executive Vice-President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Smith Barney Inc.
Goldman, Sachs & Co.
UBS Warburg LLC Fox-Pitt, Kelton Inc.
By: Salomon Smith Barney Inc.
By: /s/ Richard G. Spiro
----------------------------
Name: Richard G. Spiro
Title: Managing Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement
SCHEDULE I
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
Salomon Smith Barney Inc........................ 2,340,000
Goldman, Sachs & Co............................. 2,340,000
UBS Warburg LLC................................. 1,980,001
Fox-Pitt, Kelton Inc............................ 540,000
Morgan Stanley & Co. Incorporated............... 133,333
Neuberger Berman, LLC........................... 133,333
Wachovia Securities, Inc........................ 133,333
Bank Am Bellevue................................ 50,000
Blaylock & Partners, L.P........................ 50,000
Cochran, Caronia Securities L.L.C............... 50,000
Dowling & Partners Securities, LLC.............. 50,000
Ferris, Baker Watts, Incorporated............... 50,000
Friedman, Billings, Ramsey & Co., Inc........... 50,000
Janney Montgomery Scott LLC..................... 50,000
Keefe, Bruyette & Woods, Inc.................... 50,000
=========
Total.................................. 8,000,000