EXHIBIT 99.1
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STOCK PURCHASE AGREEMENT
dated as of November 1, 2002,
by and among
SWISS REINSURANCE COMPANY,
SWISSRE CAPITAL MANAGEMENT (BERMUDA) LTD.,
EUROPEAN REINSURANCE COMPANY OF ZURICH,
and
PARTNERRE LTD.
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as
of the 1st day of November, 2002 by and among PartnerRe Ltd. ("PartnerRe"), a
Bermuda company, SwissRe Capital Management (Bermuda) Ltd. ("Capital
Management"), a Bermuda company, European Reinsurance Company of Zurich
("European Re"), a Swiss company, and Swiss Reinsurance Company ("SwissRe"), a
Swiss company (SwissRe, Capital Management and European Re are referred to
collectively as the "SwissRe Parties").
WHEREAS, SwissRe (i) acquired certain common shares, par
value $1.00 per share, of PartnerRe (the "Common Stock") (a) pursuant to the
Subscription Agreement, dated August 24, 1993, between PartnerRe and SwissRe
(the "Subscription Agreement"), (b) pursuant to the exercise of warrants,
which warrants were acquired pursuant to the Subscription Agreement, (c)
pursuant to a transaction entered into with PartnerRe in 1997, at which time
SwissRe and PartnerRe entered into the Registration Rights Agreement, dated
July 10, 1997 (the "Registration Rights Agreement" and, together with the
Subscription Agreement, the "Share Agreements"), and (ii) transferred such
shares to Capital Management;
WHEREAS, (i) Head Insurance Investors (Bermuda) III L.P.
acquired certain shares of Common Stock and warrants to purchase shares of
Common Stock pursuant to the Subscription Agreement and, in 1997, transferred
some of such shares and warrants to its limited partner, European Re, and (ii)
European Re exercised these warrants;
WHEREAS, the SwissRe Parties desire to sell 6,000,000 (or
6,900,000 shares of Common Stock, if the underwriters exercise their
over-allotment option in full) shares of Common Stock or such other number of
shares as determined in accordance with Section 1.5 of this Agreement (such
number of shares to be sold, the "SwissRe Shares") and have certain
registration rights with respect thereto pursuant to the Share Agreements;
WHEREAS, PartnerRe filed a Registration Statement on Form
S-3 (the "Registration Statement") with the United States Securities and
Exchange Commission (the "SEC") on December 14, 2001, which was declared
effective by the SEC on December 21, 2001 and remains effective as of the date
hereof; and
WHEREAS, in lieu of the SwissRe Parties exercising their
demand registration rights pursuant to the Share Agreements with respect to
the SwissRe Shares, the parties hereto desire that: (i) PartnerRe shall
conduct an underwritten public offering of 8,000,000 shares of Common Stock
(or 9,200,000 shares of Common Stock, if the underwriters exercise their
over-allotment option in full) pursuant to the Registration Statement (the
"Offering"), (ii) PartnerRe shall use the net proceeds from the sale of
6,000,000 of such shares of Common Stock (or net proceeds from the sale of
6,900,000 shares of Common Stock if the underwriters exercise their
over-allotment option in full) in the Offering to purchase the SwissRe Shares,
and (iii) PartnerRe shall retain net proceeds from the sale of 2,000,000 of
such shares of Common Stock (or net proceeds from the sale of 2,300,000 shares
of Common Stock if the underwriters exercise their over-allotment option in
full) in the Offering for its own benefit;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SWISSRE SHARES; OFFERING
1.1 Purchase and Sale. Upon the terms and subject to the conditions
of this Agreement, the SwissRe Parties agree to sell to PartnerRe, and
PartnerRe agrees to purchase from the SwissRe Parties, all of the SwissRe
Shares at the Closing (as defined below) for a purchase price per share (the
"Purchase Price") equal to the price per share of the Common Stock sold in the
Offering, minus underwriting discounts and commissions per share (the "Net
Proceeds"). The Purchase Price shall be paid as provided in Section 1.2.
1.2 Closing. The closing of the purchase and sale of the SwissRe
Shares hereunder (the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the date of the
closing of the Offering (or the earliest date thereafter permitted by
Applicable Law (as defined below)), after satisfaction or waiver of the
conditions set forth in Article V, or at such other time or place as SwissRe
and PartnerRe may agree (the "Closing Date"). The terms "Closing" and "Closing
Date" shall also be deemed to refer to any additional closing or additional
closing date relating to the sale of Common Stock pursuant to any exercise of
the over-allotment option to be granted to the underwriters. At each Closing:
(a) PartnerRe shall deliver to the SwissRe Parties the aggregate
Purchase Price in immediately available funds in an amount equal to the
Purchase Price multiplied by the number of SwissRe Shares sold by the SwissRe
Parties by wire transfer to an account or accounts designated by SwissRe by
notice to PartnerRe, which notice shall be delivered not later than two
Business Days prior to the Closing Date (or, if not so designated, then by
certified or official bank check or checks payable in immediately available
funds to the order of SwissRe or its designee in such amount). For purposes of
this Agreement, "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(b) The SwissRe Parties shall deliver to PartnerRe one or more
certificates representing the SwissRe Shares, duly endorsed or accompanied by
an instrument of transfer or stock powers duly endorsed in blank, with any
required transfer stamps affixed thereto.
1.3 The Offering. PartnerRe shall use its best efforts to file a
preliminary prospectus supplement with the SEC no later than November 4, 2002
and, subject to Section 1.9 below, in cooperation with the underwriters and
SwissRe, price the Offering as soon as practicable after such date. In
connection with the Offering, PartnerRe shall as expeditiously as possible:
(a) prepare and file with the SEC such amendments and supplements to
the Registration Statement and the prospectus included therein (the prospectus
and such amendments and supplements thereto are collectively referred to
herein as the "Prospectus") as may be necessary to keep such Registration
Statement effective for such period as is necessary to complete the
distribution of the Common Stock and comply with the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
disposition of the Common Stock as contemplated herein;
(b) give SwissRe, the lead book-running manager and their respective
counsel the opportunity to review and comment on the preliminary and final
prospectus supplements, and each amendment or supplement to the Prospectus or
to the Registration Statement, and, before filing any such prospectus
supplement or any such amendment or supplement, PartnerRe will make all
changes reasonably requested by SwissRe, such manager or such counsel relating
to the SwissRe Parties or to this Agreement or any other changes that SwissRe
believes are required so that any such prospectus supplement shall not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make any statement
therein, in light of the circumstances under which it was made, not
misleading. PartnerRe will furnish to SwissRe and the underwriters copies of
each such prospectus supplement and all such documents incorporated by
reference in such prospectus supplement, in such quantities as they may
reasonably request; and
(c) use its reasonable best efforts to register or qualify the Common
Stock under such securities or blue sky laws as may be reasonably necessary or
advisable to consummate the Offering.
In addition, PartnerRe shall promptly notify SwissRe and the
underwriters: (i) when each prospectus supplement and any amendment or
supplement to the Prospectus or to the Registration Statement has been filed;
(ii) of any written request by the SEC for amendments or supplements to any
prospectus supplement, to the Prospectus or to the Registration Statement;
(iii) of the notification to PartnerRe by the SEC of its initiation of any
proceeding with respect to the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement; and (iv) of the
receipt by PartnerRe of any notification with respect to the suspension of the
qualification of any Common Stock for sale under the applicable securities or
blue sky laws of any jurisdiction.
1.4 Underwriting.
(a) PartnerRe shall, at or prior to the pricing of the Offering,
enter into an underwriting agreement in customary form with the
representatives of the underwriters. Such agreement shall include, without
limitation, representations and warranties and covenants of PartnerRe,
indemnification and contribution agreements in favor of the underwriters, and
customary closing conditions.
(b) The Offering is to be managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, as the
sole lead book-running manager, ▇▇▇▇▇▇▇ Sachs and UBS Warburg, as co-lead
managers, and ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc., as co-manager. Notwithstanding the above,
if the inclusion of any such underwriter will force the parties to delay the
pricing of the Offering, then, subject to the prior approval of each of
PartnerRe and SwissRe, such underwriter shall not participate in the
syndicate. All other underwriters to be selected to participate in the
underwriting syndicate for the Offering are subject to the prior approval of
each of PartnerRe and SwissRe.
(c) All of the representations and warranties and covenants made by
PartnerRe to and for the benefit of such underwriters in the underwriting
agreement shall also be made to and for the benefit of SwissRe, and PartnerRe
shall name SwissRe as a third party beneficiary of such representations,
warranties and covenants. All of the conditions precedent to the obligations
of such underwriters under such underwriting agreement shall also be
conditions precedent to the obligations of SwissRe hereunder. PartnerRe may
not waive any such conditions precedent without the express prior written
permission of SwissRe.
(d) PartnerRe shall cause to be delivered to the underwriters
opinions of counsel in customary form, covering such matters as are
customarily covered by opinions for an underwritten public offering, as the
representatives of the underwriters request.
(e) PartnerRe shall cause to be delivered to the underwriters such
other closing documents and certificates, including officers' certificates of
PartnerRe and lock-up letters, as the representatives of the underwriters
request.
(f) PartnerRe will, not later than November 4, 2002, cause its
accountants to begin preparing a comfort letter to be delivered to the
underwriters at the time of pricing and a bring-down comfort letter to be
delivered at the closing of the Offering (collectively, the "Comfort Letters")
and will give SwissRe, the underwriters and their respective counsel the
opportunity to review and comment on the Comfort Letters.
1.5 Priority.
(a) If the lead book-running manager of the Offering advises
PartnerRe that marketing or other factors (including, but not limited to, a
decline in the market value of the Common Stock) require a limitation on the
number of shares to be offered and sold in the Offering, PartnerRe shall
immediately so notify SwissRe in writing of that fact, and, subject to
SwissRe's prior approval, the number of shares included in the Offering shall
be reduced by such minimum number of shares as is necessary to comply with the
manager's advice. Any such reduction in the number of shares of Common Stock
to be offered in the Offering shall be borne by each of PartnerRe and SwissRe
on a pro rata basis, based on the proportionate amount of Common Stock
initially proposed to be sold for the "benefit" of each of PartnerRe and the
SwissRe Parties.
(b) Either party may at any time prior to the pricing of the
Offering, by notice to the other party, reduce or eliminate the number of
shares of Common Stock to be offered for the "benefit" of such party.
(c) PartnerRe may not increase the number of shares to be included in
the Offering, including the number of shares to be offered for its "benefit",
unless the lead book-running manager advises SwissRe and PartnerRe that such
increase will not negatively impact the marketing of the Offering. In the
event that the lead book-running manager determines that marketing or other
factors (including, but not limited to, an increase in the market value of the
Common Stock) will allow an increase in the number of shares to be included in
the Offering, then, subject to the prior approval of both SwissRe and
PartnerRe (which approval shall not be unreasonably withheld), PartnerRe shall
so increase the Offering and shall apply the Net Proceeds realized from the
sale of such increased shares on a pro rata basis between PartnerRe and
SwissRe to (i) the purchase of such additional SwissRe Shares then owned by
any of the SwissRe Parties (such selling party or parties to be chosen by
SwissRe in its sole discretion) and (ii) for PartnerRe's general corporate or
other purposes, such proportion to be based on the amount of Common Stock
initially proposed to be sold for the "benefit" of each of PartnerRe and the
SwissRe Parties. Notwithstanding the foregoing, in the event of such an
increased Offering in which PartnerRe determines not to include its full pro
rata portion of Common Stock, PartnerRe may specify such lower number, if any,
of additional shares of Common Stock PartnerRe elects to include for its
"benefit".
(d) If the underwriters determine to exercise an over allotment
option in the Offering (commonly referred to as the "green shoe"), then
PartnerRe shall immediately so notify SwissRe in writing of that fact. In such
event, PartnerRe shall, unless otherwise mutually agreed at the time of
pricing, apply the Net Proceeds realized from the sale of such increased
shares on a pro rata basis between PartnerRe and SwissRe to (i) the purchase
of such additional SwissRe Shares then owned by any of the SwissRe Parties
(such selling party or parties to be chosen by SwissRe in its sole discretion)
and (ii) for PartnerRe's general corporate or other purposes, such proportion
to be based on the amount of Common Stock initially sold for the "benefit" of
each of PartnerRe and the SwissRe Parties.
(e) If PartnerRe decides not to offer any shares of Common Stock for
its own "benefit" or to reduce the number of shares of Common Stock to be sold
for PartnerRe's "benefit", unless SwissRe otherwise agrees in writing, then
PartnerRe shall still be obligated to consummate the Offering for the purpose
of raising sufficient proceeds to purchase such number of SwissRe Shares as
SwissRe may request. If SwissRe instructs PartnerRe that SwissRe no longer
wishes to have PartnerRe offer any shares of Common Stock for the SwissRe
Parties' "benefit", then PartnerRe may still consummate the Offering for its
own "benefit" and will not have any obligation to repurchase any SwissRe
Shares or any right to require any of the SwissRe Parties to sell any SwissRe
Shares unless the parties may otherwise agree.
(f) At any time prior to pricing SwissRe shall have the right to
require PartnerRe to offer for SwissRe's "benefit" any shares of Common Stock
that PartnerRe would otherwise be entitled to include in the Offering for its
own "benefit" pursuant to this Agreement, but determines not to do so.
1.6 Due Diligence. PartnerRe will make available, for inspection by
SwissRe and by any underwriter participating in the Offering and any attorney,
accountant or other agent retained by SwissRe or any such underwriter, all
financial and other records, pertinent corporate documents and properties of
PartnerRe, and such opportunities to discuss the business of PartnerRe with
its officers and the independent public accountants who have certified its
financial statements, and cause PartnerRe's officers, directors, employees and
independent accountants to supply all information reasonably requested by
SwissRe or any such underwriter, attorney, accountant or agent in connection
with the Offering as shall be necessary, in the opinion of SwissRe, the lead
book-running manager and their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act; provided however, that
such information shall be kept in strict confidence and shall not be used by
the parties except in connection with the Offering, the consummation of the
transactions contemplated by this Agreement or any future dispute, claim or
litigation relating thereto or if such information becomes otherwise publicly
available.
1.7 Roadshow.
(a) PartnerRe shall take all such other actions as SwissRe and the
underwriters reasonably request in order to expedite or facilitate the
Offering (including, without limitation, making members of senior management
of PartnerRe available to participate in, and causing them to cooperate with
the underwriters in connection with, "roadshow" and other customary marketing
activities (including one-on-one meetings with prospective purchasers of the
Common Stock)). PartnerRe and SwissRe intend that the roadshow take place
during the week of November 4, 2002.
(b) PartnerRe shall give SwissRe the opportunity to review and
comment on any roadshow and other marketing materials.
(c) PartnerRe has no objection to SwissRe attending as an observer,
all group roadshow meetings, lunches and presentations.
1.8 Lock-up. SwissRe and PartnerRe shall not later than the pricing
of the Offering enter into, and PartnerRe shall cause its directors and
officers to enter into, customary lock-up agreements, as may be requested by
the underwriters, to be effective for 90 days commencing with the pricing or
closing of the Offering, or such other shorter period as may be agreed with
the underwriters.
1.9 Pricing. The offering price for the Common Stock being sold in
the Offering shall be determined in consultation among PartnerRe, SwissRe and
the lead book-running manager, and a representative of SwissRe and of the lead
book-running manager shall be present at all times during pricing discussions.
1.10 Offering Expenses. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to the
Agreement shall be borne by PartnerRe. "Registration Expenses" shall mean all
expenses incurred by PartnerRe in compliance with its obligations under this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for PartnerRe, blue sky
fees and expenses, fees and expenses of accountants for PartnerRe, including
those incurred in connection with any special audits incident to or required
by any such registration, the compensation of regular employees of PartnerRe
and all underwriting discounts and selling commissions applicable to the sale
of Common Stock. All fees and disbursements of counsel for SwissRe and all
fees and expenses related to any review of the terms of the Offering by the
National Association of Securities Dealers, Inc. shall be borne by SwissRe.
1.11 Use of Demand. If the Offering is consummated and the Net
Proceeds are used to purchase SwissRe Shares pursuant to this Article I,
PartnerRe shall be deemed to have effected a registration on behalf of SwissRe
with respect to such SwissRe Shares for the purposes of the Share Agreements.
If the Offering is not consummated or does not generate the aggregate Net
Proceeds for the purchase of any SwissRe Shares pursuant to Section 1.1, for
the purposes of the Share Agreements, (i) PartnerRe shall be deemed not to
have effected any registration on behalf of the SwissRe Parties and (ii) the
SwissRe Parties shall be deemed not to have made any request for, or any
withdrawal of any request for, registration pursuant to the Share Agreements.
Except as expressly set forth in this Agreement, any and all rights of the
SwissRe Parties and their affiliates under the Share Agreements, including,
but not limited to the right to request registration, shall continue in effect
as they existed prior to the execution hereof.
1.12 Waiver. SwissRe waives all rights of it and its affiliates
arising in connection with the Offering pursuant to Section 6(a) of the
Standstill Agreement between PartnerRe and SwissRe, dated as of July 10, 1997
(the "Standstill Agreement"), to subscribe for any shares of Common Stock in
the Offering.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARTNERRE
PartnerRe hereby represents and warrants to each of the SwissRe
Parties as follows:
2.1 Organization and Qualification. PartnerRe is a corporation duly
organized and validly existing in good standing under the laws of Bermuda.
Each of PartnerRe and its subsidiaries is duly qualified as a foreign
corporation to do business and is in good standing (to the extent such
concepts are applicable) in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have or reasonably be expected to
result in any material adverse effect on the business, properties, assets,
operations, results of operations or condition of it and its subsidiaries,
taken as a whole, or on the transactions contemplated hereby or on the
agreements and instruments to be entered into in connection herewith, or on
the authority or ability of such entity to timely perform its obligations
under this Agreement (a "Material Adverse Effect").
2.2 Authorization, Enforcement and Validity. PartnerRe has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement, including, but not limited to, the Offering
and the purchase of the SwissRe Shares in accordance with the terms hereof.
PartnerRe has taken all necessary action (corporate or other) to authorize the
execution and delivery of this Agreement and the consummation by it of the
transactions contemplated hereby and no further consent or authorization is
required of PartnerRe's Board of Directors or its stockholders. Upon the
execution and delivery of this Agreement, this Agreement will constitute the
valid and binding obligation of PartnerRe enforceable against PartnerRe in
accordance with its terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors' rights and remedies.
2.3 No Conflicts. The execution, delivery and performance of this
Agreement by PartnerRe and the consummation by PartnerRe of the transactions
contemplated hereby will not (i) result in a violation of PartnerRe's
memorandum of association, bye-laws or other organizational documents; (ii)
conflict with, constitute a default under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument to which PartnerRe or any of its
subsidiaries is a party, including, but not limited to, any loan, credit, or
other similar agreement related to the indebtedness of PartnerRe or any
subsidiary thereof (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect); or (iii)
result in a violation of any applicable law, statute, rule, regulation,
ordinance or other pronouncement having the effect of law ("Applicable Law")
of any court, tribunal, arbitrator, agency, commission, official or other
instrumentality of any United States or foreign federal, national, state,
local, county, city or other political subdivision ("Governmental Authority").
PartnerRe is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any Governmental Authority, in order for
it to execute, deliver or perform any of its obligations under or contemplated
by this Agreement, other than any required filings with, or approvals of, the
SEC, Bermuda regulatory authorities and the New York Stock Exchange, which
filings or approvals will be made or obtained prior to the pricing of the
Offering or the Closing, as applicable.
2.4 Registration Statement. The Registration Statement was declared
effective by the SEC on December 21, 2001 and has remained effective since
such date. The Common Stock has been duly authorized and a sufficient number
of shares of authorized but unissued Common Stock has been reserved for sale
and registered under the Registration Statement to generate the Net Proceeds
for the purchase of the SwissRe Shares pursuant to Section 1.1.
2.5 No False or Misleading Statements. The information provided by
PartnerRe in the Registration Statement, and the information provided or to be
provided by PartnerRe in the Prospectus and any prospectus supplement, on the
date upon which such information was or is filed with the SEC, did not and
shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make any
statement therein, in light of the circumstances under which it was made, not
misleading.
2.6 No Piggyback Registration Rights. No holders of shares of Common
Stock or other securities of PartnerRe have piggyback registration rights or
any similar rights to request that PartnerRe shall include such holders'
shares or other securities or any portion of such holders' shares or other
securities in the Offering.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SWISSRE PARTIES
Each of the SwissRe Parties hereby represents and warrants to
PartnerRe as follows:
3.1 Organization and Qualification. Each of the SwissRe Parties is a
corporation duly organized and validly existing in good standing under the
laws of its jurisdiction of formation.
3.2 Authorization, Enforcement, and Validity. Each of the SwissRe
Parties has the requisite corporate power and authority to enter into and to
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. Each of the SwissRe Parties has taken all
necessary action (corporate or other) to authorize the execution and delivery
of this Agreement and the consummation by it of the transactions contemplated
hereby and no further consent or authorization is required of SwissRe's Board
of Directors or its stockholders. Upon the execution and delivery of this
Agreement, this Agreement will constitute the valid and binding obligation of
each of the SwissRe Parties enforceable against it in accordance with its
terms, except as such enforceability may be limited by general principles of
equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the
enforcement of creditors' rights and remedies.
3.3 No Conflicts. The execution, delivery and performance of this
Agreement by each of the SwissRe Parties and the consummation by each of the
SwissRe Parties of the transactions contemplated hereby will not (i) result in
a violation of any of the SwissRe Parties' certificate of incorporation,
memorandum of association, bye-laws or other organizational documents; (ii)
conflict with, constitute a default under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument to which any of the SwissRe Parties is a
party, including, but not limited to, any loan, credit, or other similar
agreement related to the indebtedness of any of the SwissRe Parties (except
for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect); or (iii) result in a violation of Applicable
Law. Except as specifically contemplated by this Agreement, the SwissRe
Parties are not required to obtain any consent, authorization or order of, or
make any filing or registration with, any Governmental Authority in order for
them to execute, deliver or perform any of their obligations under or
contemplated by this Agreement.
3.4 Valid Title to SwissRe Shares.
(a) Each SwissRe Party has, and on each relevant Closing Date will
have, valid title to, or a valid "security entitlement" within the meaning of
Section 8-102 of the New York Uniform Commercial Code ("UCC") in respect of,
the SwissRe Shares to be sold by such SwissRe Party free and clear of all
security interests, claims, liens, equities or other encumbrances and the
legal right and power, and all authorization and approval required by law, to
sell, transfer and deliver the SwissRe Shares to be sold by such SwissRe Party
or a security entitlement in respect of such SwissRe Shares.
(b) The SwissRe Parties will deliver the SwissRe Shares to be
purchased by PartnerRe in certificated form. Upon delivery of SwissRe Shares
to PartnerRe in certificated form and upon payment therefore pursuant to this
Agreement, such delivery will pass valid title to such SwissRe Shares, free
and clear of any adverse claim within the meaning of Section 8-102 of the UCC,
to PartnerRe, provided that PartnerRe has purchased such SwissRe Shares
without notice of an adverse claim.
ARTICLE IV
COVENANTS
4.1 Offering. Promptly following the date of this Agreement,
PartnerRe shall prepare the preliminary prospectus supplement and conduct the
Offering pursuant to Article I.
4.2 Correction of Any False or Misleading Statements. PartnerRe
agrees to correct as promptly as practicable any information provided by it
that shall have become false or misleading in any material respect and to take
all steps necessary to file with the SEC and have cleared by the SEC, if
necessary, any amendment or supplement to the Prospectus and any prospectus
supplement so as to correct the same and to cause such Prospectus and such
prospectus supplement as so corrected to be disseminated to the underwriters.
4.3 Press Release. Except as required by Applicable Law, neither
PartnerRe nor SwissRe nor any of their affiliates shall make any public
statement or issue or cause the publication of any press release or other
announcement with respect to this Agreement, the Offering or the transactions
contemplated hereby without prior consultation with the other party hereto.
Notwithstanding the foregoing, PartnerRe, SwissRe and their respective
affiliates may make such statement or issue such press release or other
announcement if any of them determine, upon the advice of counsel, that such
action is required by Applicable Law. In such case, PartnerRe, SwissRe and
their respective affiliates shall cooperate to reach mutual agreement
regarding the content of such statement, release or announcement. Any such
statement, press release or other announcement shall be made in accordance
with Applicable Law, including, but not limited to, Rule 134 under the
Securities Act.
4.4 New York Stock Exchange Filing Requirements. PartnerRe shall use
its reasonable best efforts to cause all shares of Common Stock to be offered
and sold in the Offering to be listed on the New York Stock Exchange, subject
to official notice of issuance, prior to the pricing of the Offering.
ARTICLE V
CONDITIONS TO CLOSING
5.1 Conditions to Obligations of PartnerRe. The obligations of
PartnerRe to effect the transactions contemplated hereby shall be subject to
the satisfaction or waiver, where permissible, prior to each Closing Date of
the following conditions:
(a) no temporary restraining order, preliminary or permanent
injunction or other judgment, decision or order issued by any Governmental
Authority shall be in effect preventing the consummation of the transactions
consummated hereby;
(b) the representations and warranties of the SwissRe Parties set
forth in this Agreement shall be true and accurate as of each Closing Date as
though made at or as of such time, except as would not have a Material Adverse
Effect on the SwissRe Parties' ability to consummate the transactions
contemplated by this Agreement;
(c) the SwissRe Parties shall have performed in all material respects
all obligations required to be performed by them at or prior to each Closing
Date; and
(d) the completion of the Offering in accordance with Article I.
5.2 Conditions to Obligations of the SwissRe Parties. The obligations
of the SwissRe Parties to effect the transactions contemplated hereby shall be
subject to the satisfaction or waiver, where permissible, prior to each
Closing Date of the following conditions:
(a) no temporary restraining order, preliminary or permanent
injunction or other judgment, decision or order issued by any Governmental
Authority shall be in effect preventing the consummation of the transactions
consummated hereby;
(b) the representations and warranties of PartnerRe set forth in this
Agreement shall be true and accurate as of each Closing Date as though made at
or as of such time, except as would not have a Material Adverse Effect on
PartnerRe's ability to consummate the transactions contemplated by this
Agreement; and
(c) PartnerRe shall have performed in all material respects all
obligations required to be performed by it at or prior to each Closing Date,
including, but not limited to, the completion of the Offering in accordance
with Article I.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1 Indemnification.
(a) PartnerRe agrees to indemnify the SwissRe Parties, each of their
officers and directors, and each person controlling the SwissRe Parties within
the meaning of Section 15 under the Securities Act or Section 20 under the
Securities Exchange Act of 1934 (the "Exchange Act"), against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in the Registration Statement or in any prospectus used in
connection with the Offering (including any documents incorporated by
reference therein), or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by PartnerRe of the
Securities Act, the Exchange Act or any rule or regulation thereunder
applicable to PartnerRe in connection with the Offering, and will reimburse
the SwissRe Parties, each of their officers and directors, and each person
controlling the SwissRe Parties, for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, provided that PartnerRe will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to PartnerRe by SwissRe with
respect to the SwissRe Parties and stated to be specifically for use in any
prospectus used in connection with the Offering.
(b) SwissRe agrees to indemnify PartnerRe, each of its directors and
officers, and each person who controls PartnerRe within the meaning of Section
15 under the Securities Act or Section 20 under the Exchange Act against all
claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact with respect to the SwissRe Parties contained in any
prospectus used in connection with the Offering, or any omission (or alleged
omission) to state therein a material fact with respect to the SwissRe Parties
required to be stated therein or necessary to make the statements by the
SwissRe Parties not misleading, and will reimburse PartnerRe, each of its
officers and directors, and each person controlling PartnerRe, for any legal
or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such prospectus
in reliance upon and in conformity with written information furnished to
PartnerRe by SwissRe with respect to the SwissRe Parties and stated to be
specifically for use therein; provided, however, that the obligations of
SwissRe shall be limited to the Net Proceeds paid to the SwissRe Parties by
PartnerRe for the purchase of the SwissRe Shares as contemplated in this
Agreement.
(c) Each party entitled to indemnification under this Article VI (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a conflict
of interest between the Indemnifying Party and the Indemnified Party in such
action, in which case the fees and expenses of counsel shall be at the expense
of the Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article VI unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
6.2 Contribution.
To the extent that the indemnification provided for in this Article
VI is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or omissions
which resulted in such loss, liability, claim, damage or expense, as well as
any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact related
to information supplied by the Indemnifying Party or by the Indemnified Party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
6.3 Payments as Incurred. Any payments required to be made to an
Indemnified Party under this Article VI shall be made as the related claims,
losses, damages, liabilities or expenses are incurred.
ARTICLE VII
MISCELLANEOUS
7.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
initial Closing Date:
(a) By the mutual written consent of PartnerRe and SwissRe;
(b) By either PartnerRe or SwissRe by written notice to the other
party, if the initial Closing shall not have occurred on or prior to December
20, 2002; provided, however, that such right shall not be available to any
party whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of such Closing to occur on or prior
to such date; or
(c) By either PartnerRe or SwissRe if there shall be a material
breach by the other party of any of its representations, warranties, covenants
or agreements contained in this Agreement.
7.2 Amendments. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively) only by the
written agreement of PartnerRe and SwissRe.
7.3 Headings. The headings of the various sections of this Agreement
are for convenience of reference only and shall not be deemed to be part of
this Agreement.
7.4 Severability. In the event that any provision in this Agreement
is held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
7.5 Governing Law And Forum. The internal laws, and not the laws of
conflicts (other than Section 5-1401 of the General Obligations Law of the
State of New York), of New York shall govern the enforceability and validity
of this Agreement, the construction of its terms and the interpretation of the
rights and duties of the parties. The parties hereto agree to submit to the
exclusive jurisdiction of the federal and state courts of the State of New
York with respect to the interpretation of this Agreement or for the purposes
of any action arising out of or related to this Agreement.
7.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument. In the event that any
signature is delivered via facsimile transmission, such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original hereof.
7.7 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the matters covered herein,
supersedes all prior agreements and understandings with respect to such
matters executed by and among PartnerRe and SwissRe (and their respective
affiliates), and, except as specifically set forth herein or therein, neither
PartnerRe nor SwissRe (nor any of their respective affiliates) makes any
representation, warranty, covenant or undertaking with respect to such
matters. Notwithstanding the foregoing, except as otherwise explicitly stated
herein, the Subscription Agreement, the Registration Rights Agreement and the
Standstill Agreement are not affected hereby and remain in full force and
effect.
7.8 Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized international
express courier postage prepaid, and shall be as addressed as follows:
If to PartnerRe: with copies to:
PartnerRe Ltd. ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ House ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Pembroke, Bermuda
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to any of the SwissRe Parties: with copies to:
Swiss Reinsurance Company Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
50/60 Mythenquai Four Times Square
CH-8022 Zurich ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Switzerland
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Such notices or other communications shall be deemed delivered upon
receipt, in the case of overnight delivery, personal delivery, facsimile
transmission (as evidenced by the confirmation thereof), or mail.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized representatives as of the
date first above written.
PARTNERRE LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: ExecutiveVice President
and Chief Financial Officer
SWISS REINSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Legal Officer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Member of Senior Management
SWISSRE CAPITAL MANAGEMENT (BERMUDA) LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Counsel
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Member of Senior Management
EUROPEAN REINSURANCE COMPANY OF ZURICH
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Member of Senior Management
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member of Senior Management