10-K 1 d10k.htm FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008. Form 10-K For the fiscal year ended December 31, 2008.
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

Form 10-K

 

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

For the fiscal year ended December 31, 2008

Commission file number 000-33047

 

 

MAX CAPITAL GROUP LTD.

(Exact name of registrant as specified in its charter)

 

 

 

Bermuda   98-0584464
(State of or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)

Max House

2 Front Street

Hamilton, HM 11

Bermuda

(441) 295-8800

(Address and telephone number, including area code, of registrant’s principal executive offices)

 

 

Securities Registered Pursuant to Section 12(b) of the Act:

Common Shares, Par Value $1.00 per share

Name of each exchange on which registered

The NASDAQ Stock Market LLC

Securities Registered Pursuant to Section 12(g) of the Act:

None

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.     Yes  x    No  ¨

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  ¨    No  x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  x     No  ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in any definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of “accelerated filer”, “large accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer  x    Accelerated filer  ¨    Non-accelerated filer  ¨    Smaller reporting company  ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act.).    Yes  ¨    No  x

The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant as of June 30, 2008 was $976,932,642, based on the closing price of the registrant’s common shares on June 30, 2008, the last business day of the registrant’s most recently completed second fiscal quarter. Solely for the purpose of this calculation and for no other purpose, the non-affiliates of the registrant are assumed to be all shareholders of the registrant other than (i) directors of the registrant, (ii) executive officers of the registrant who are identified as “named executive officers” pursuant to Item 11 of this Form 10-K, (iii) any shareholder that beneficially owns 10% or more of the registrant’s common shares and (iv) any shareholder that has one or more of its affiliates on the registrant’s board of directors. Such exclusion is not intended, nor shall it be deemed, to be an admission that such persons are affiliates of the registrant.

The number of shares of the registrant’s common shares outstanding as of January 31, 2009 was 55,805,790.

DOCUMENTS INCORPORATED BY REFERENCE:

Portions of the proxy statement for the registrant’s 2009 annual meeting of shareholders, to be filed subsequently with the Securities and Exchange Commission, or SEC, pursuant to Regulation 14A, are incorporated by reference in Part III of this Annual Report on Form 10-K.

 

 

 


Table of Contents

TABLE OF CONTENTS

 

          Page

PART I

   1

ITEM 1.

  

BUSINESS

   1

ITEM 1A

  

RISK FACTORS

   22

ITEM 1B

  

UNRESOLVED STAFF COMMENTS

   50

ITEM 2.

  

PROPERTIES

   52

ITEM 3.

  

LEGAL PROCEEDINGS

   52

ITEM 4.

  

SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

   52

PART II

   53

ITEM 5.

  

MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

   53

ITEM 6.

  

SELECTED FINANCIAL DATA

   55

ITEM 7.

  

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

   56

ITEM 7A.

  

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

   97

ITEM 8.

  

FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

   98

ITEM 9.

  

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

   98

ITEM 9A.

  

CONTROLS AND PROCEDURES

   98

ITEM 9B.

  

OTHER INFORMATION

   99

PART III

   100

ITEM 10.

  

DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT AND CORPORATE GOVERNANCE

   100

ITEM 11.

  

EXECUTIVE COMPENSATION

   100

ITEM 12.

  

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

   100

ITEM 13.

  

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

   100

ITEM 14.

  

PRINCIPAL ACCOUNTANT FEES AND SERVICES

   100

PART IV

   101

ITEM 15.

  

EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

   101


Table of Contents

PART I

ITEM 1.    BUSINESS

Unless otherwise indicated or unless the context otherwise requires, all references in this Annual Report on Form 10-K to the Company “we,” “us,” “our” and similar expressions are references to Max Capital Group Ltd. and its consolidated subsidiaries. Unless otherwise indicated or unless the context otherwise requires, all references in this annual report to entity names are as set forth in the following table:

 

Reference

 

Entity’s legal name

 

Direct parent company

Max Capital

 

Max Capital Group Ltd.

 

Max Bermuda

 

Max Bermuda Ltd.

  Max Capital Group Ltd.

Max Europe

 

Collectively: Max Europe Holdings Limited, Max Re Europe Limited and Max Insurance Europe Limited

 

Max Europe Holdings

 

Max Europe Holdings Limited

  Max Bermuda Ltd.

Max Re Europe

 

Max Re Europe Limited

  Max Europe Holdings Limited

Max Insurance Europe

 

Max Insurance Europe Limited

  Max Europe Holdings Limited

Max Diversified

 

Max Diversified Strategies Ltd.

  Max Bermuda Ltd.

Max Managers

 

Max Managers Ltd.

  Max Capital Group Ltd.

Max USA

 

Max USA Holdings Ltd.

  Max Capital Group Ltd.

Max Specialty

 

Max Specialty Insurance Company

  Max USA Holdings Ltd.

Max America

 

Max America Insurance Company

  Max Specialty Insurance Company

Max Specialty Services

 

Max Specialty Insurance Services Ltd.

  Max USA Holdings Ltd.

Max California

 

Max California Insurance Services Ltd.

  Max Specialty Insurance Services Ltd.

Max Managers USA

 

Max Managers USA Ltd.

  Max USA Holdings Ltd.

Max UK

 

Max UK Holdings Ltd.

  Max Capital Group Ltd.

Max at Lloyd’s

 

Max at Lloyd’s Ltd.

  Max UK Holdings Ltd.

Max at Lloyd’s Services

 

Max at Lloyd’s Services Ltd.

  Max UK Holdings Ltd.

Max at Lloyd’s Denmark

 

Max at Lloyd’s ApS

  Max UK Holdings Ltd.

MCC2L

 

Max Corporate Capital 2 Ltd.

  Max UK Holdings Ltd.

MCC3L

 

Max Corporate Capital 3 Ltd.

  Max UK Holdings Ltd.

MCC4L

 

Max Corporate Capital 4 Ltd.

  Max UK Holdings Ltd.

MCC5L

 

Max Corporate Capital 5 Ltd.

  Max UK Holdings Ltd.

MCC6L

 

Max Corporate Capital 6 Ltd.

  Max UK Holdings Ltd.

Max Corporate Capital Vehicles

 

 

Collectively: MCC2L, MCC3L, MCC4L, MCC5L and MCC6L

 

Danish Re

 

Danish Re Group (UK) Limited

  Max UK Holdings Ltd.

Danre Singapore

 

Danre 1400 Singapore Pte. Ltd.

  Max at Lloyd’s ApS

MCS Ireland

 

Max Capital Services Limited

  Max Capital Group Ltd.

MCS USA

 

Max Capital Services USA LLC

  Max Capital Services Limited

MCS BDA

 

Max Capital Services BDA Ltd.

  Max Capital Services Limited

We consider Max Bermuda, Max Re Europe, Max Insurance Europe, Max Specialty, Max America and Max at Lloyd’s to be the operating subsidiaries of Max Capital.

Certain terms and financial measures used below are in accordance with U.S. generally accepted accounting principles, or GAAP. Certain terms and non-GAAP financial measures used below are defined in the “Glossary of Selected Insurance Industry Terms and non-GAAP financial measures” appearing on page 50 of this Form 10-K. We have included certain non-GAAP financial measures in this Form 10-K within the meaning of Regulation G. We have generally provided these financial measurements in previous filings and we believe that these measurements are important to investors and other interested parties, and that investors and such other persons benefit from having a consistent basis of

 

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comparison with other companies within the insurance industry. These measures may not be comparable to similarly titled measures used by companies outside the insurance industry. Investors are cautioned not to place undue reliance on these non-GAAP measures in assessing our overall financial performance.

Safe Harbor Disclosure

This Form 10-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. We intend that the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995 apply to these forward-looking statements. Forward-looking statements are not statements of historical fact but rather reflect our current expectations, estimates and predictions about future results and events.

These statements may use words such as “anticipate,” “believe,” “estimate,” “expect,” “intend,” “predict,” “project” and similar expressions as they relate to us or our management. When we make forward-looking statements, we are basing them on management’s beliefs and assumptions, using information currently available to us. These forward-looking statements are subject to risks, uncertainties and assumptions. Factors that could cause such forward-looking statements not to be realized (which are described in more detail included or incorporated by reference herein and in documents filed by us with the SEC) include, but are not limited to:

 

   

claims development;

 

   

cyclical trends, general economic conditions and conditions specific to the reinsurance and insurance markets in which we operate;

 

   

pricing competition;

 

   

rating agency policies and practices;

 

   

catastrophic events;

 

   

the amount of underwriting capacity from time to time in the market;

 

   

material fluctuations in interest rates;

 

   

unexpected volatility associated with investments;

 

   

tax and regulatory changes and conditions; and

 

   

loss of key executives.

Other factors such as changes in U.S. and global equity and debt markets resulting from general economic conditions, market disruptions and significant interest rate fluctuations, foreign exchange rate fluctuations and changes in credit spreads may adversely impact our business or impede our access to, or increase the cost of, financing our operations. We caution that the foregoing list of important factors is not intended to be, and is not, exhaustive. We undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise. If one or more risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, actual results may vary materially from what we projected. Any forward-looking statements in this Form 10-K reflect our current view with respect to future events and are subject to these and other risks, uncertainties and assumptions relating to our operations, results of operations, growth strategy and liquidity. All subsequent written and oral forward-looking statements attributable to us or individuals acting on our behalf are expressly qualified in their entirety by this safe harbor disclosure.

Generally, our policy is to communicate events that we believe may have a material adverse impact on the Company’s operations or financial position, including property and casualty catastrophic events and material losses in our investment portfolio, in a timely manner through a public announcement. It is also our policy not to make public

 

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announcements regarding events that we believe have no material impact on the Company’s operations or financial position based on management’s current estimates and available information, other than through regularly scheduled calls, press releases or filings.

General Description

We are a Bermuda headquartered global provider of specialty insurance and reinsurance products for the property and casualty market, with underwriting operations based in Bermuda, Ireland, the United States and the United Kingdom. We underwrite a diversified portfolio of risks and serve clients ranging from Fortune 1000 companies to small owner-operated businesses. We also provide reinsurance for the life and annuity market when opportunities arise.

We have approximately $1,280.3 million in consolidated shareholders’ equity as of December 31, 2008. Our principal operating subsidiary is Max Bermuda. We conduct our non-Lloyd’s European activities through Max Europe Holdings and its operating subsidiaries, Max Re Europe and Max Insurance Europe. We conduct our U.S. operations through Max USA and its operating subsidiaries, Max Specialty and Max America. Our United Kingdom Lloyd’s operations are conducted through Max UK and its operating subsidiary Max at Lloyd’s. We hold all material alternative investments in Max Diversified. We house certain personnel and assets within our global service companies which we believe improves the efficiency of certain corporate services across the group. The global service companies comprise MCS Ireland and its two subsidiaries, MCS USA and MCS BDA.

On November 6, 2008, in continuation of our long-term strategic initiative to build our global operations, we completed the acquisition of Max UK which, through Lloyd’s Syndicates 1400, 2525 and 2526, underwrites a diverse portfolio of specialty risks including property catastrophe, financial institutions, personal accident, employers’ and public liability and professional liability business. On June 2, 2008, we acquired Max America which provides us with an admitted insurance platform in all fifty U.S. states. While having the ability to write business in any admitted line of business by applicable state, Max America is expected to primarily support our U.S. inland and ocean marine operations.

To manage our reinsurance and insurance liability exposure, make our investment decisions and assess our overall enterprise risk, we model our underwriting and investing activities on an integrated basis for all of our non-Lloyd’s operations, and our objective is to extend this integration to our recently acquired Max at Lloyd’s platform. Our integrated risk management, as well as terms and conditions of our products, provides flexibility in making decisions regarding investments. Our investments comprise two high grade fixed maturities securities portfolios (one held for trading, the other held as available for sale) and an alternative investment portfolio. As of December 31, 2008, the alternative investment portfolio employed ten strategies invested in 37 underlying trading entities. Our investment portfolio is designed to provide diversification and to generate positive returns while attempting to reduce the frequency and severity of loss outcomes. Based on fair values at December 31, 2008, the allocation of invested assets was 85.9% in cash and fixed maturities and 14.1% in alternative investments. In 2008, we decided to reduce our target allocation to alternative investments to approximately 10-15% of total invested assets, down from the previous target range of 15-25%.

 

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Business Segments

We operate in five segments: the Bermuda/Dublin reinsurance segment, the Bermuda/Dublin insurance segment, the U.S. specialty segment, the Max at Lloyd’s segment and the life and annuity reinsurance segment. The table below sets forth gross premiums written by type of risk for the years ended December 31, 2008, 2007 and 2006.

 

    2008     2007     2006  
    Gross
Premiums
Written
  Percentage
of Total
Premiums
Written
    Gross
Premiums
Written
  Percentage
of Total
Premiums
Written
    Gross
Premiums
Written
  Percentage
of Total
Premiums
Written
 
    (in thousands)         (in thousands)         (in thousands)      

Bermuda/Dublin Reinsurance:

           

Agriculture

  $ 80,454   6.4 %   $ 985   0.1 %   $ —     0.0 %

Aviation

    31,555   2.5       34,095   3.1       35,374   4.1  

Excess Liability

    10,165   0.8       16,716   1.6       66,876   7.7  

Medical Malpractice

    77,133   6.2       53,138   4.9       53,400   6.2  

Other

    1,934   0.2       6,031   0.6       8,245   1.0  

Professional Liability

    38,718   3.1       33,640   3.1       60,704   7.0  

Property and Property Catastrophe

    99,280   7.9       89,197   8.3       67,497   7.8  

Marine & Energy

    12,769   1.0       47,077   4.4       29,152   3.4  

Whole Account

    12,906   1.0       15,080   1.4       43,548   5.0  

Workers’ Compensation

    54,595   4.4       49,197   4.5       58,759   6.8  
                                   

Total Bermuda/Dublin Reinsurance

    419,509   33.5       345,156   32.0       423,555   49.0  

Bermuda/Dublin Insurance:

           

Aviation

    53,034   4.2       40,934   3.8       21,864   2.5  

Excess Liability

    123,490   9.8       131,515   12.2       162,786   18.8  

Professional Liability

    159,140   12.7       157,450   14.6       150,885   17.4  

Property

    53,704   4.3       53,027   4.9       61,059   7.1  
                                   

Total Bermuda/Dublin Insurance

    389,368   31.0       382,926   35.5       396,594   45.8  

U.S. Specialty:

           

Property

    95,848   7.6       34,721   3.2       —     —    

General Liability

    59,838   4.8       12,302   1.2       —     —    

Marine

    38,667   3.1       1,220   0.1       —     —    
                                   

Total U.S. Specialty

    194,353   15.5       48,243   4.5       —     —    

Max at Lloyd’s (1):

           

Property

    1,446   0.1       —     —         —     —    

Personal Accident

    408   0.0       —     —         —     —    

Financial Institutions

    4,062   0.3       —     —         —     —    

Professional Liability

    2,928   0.3       —     —         —     —    
                                   

Total Max at Lloyd’s

    8,844   0.7       —     —         —     —    
                                   

Aggregate Property and Casualty

  $ 1,012,074   80.7     $ 776,325   72.0     $ 820,149   94.8  
                                   

Life and Annuity Reinsurance:

           

Annuity

  $ 239,555   19.1     $ 299,261   27.8     $ 41,059   4.8  

Health

    —     0.0       29   0.0       340   0.0  

Life

    2,621   0.2       2,671   0.2       3,649   0.4  
                                   

Total L&A Reinsurance

  $ 242,176   19.3     $ 301,961   28.0     $ 45,048   5.2  
                                   

Aggregate Property and Casualty, and Life and Annuity

  $ 1,254,250   100.0 %   $ 1,078,286   100.0 %   $ 865,197   100.0 %
                                   

 

(1) The results of operations for our Max at Lloyd’s segment are consolidated from the November 6, 2008 acquisition date.

Additional information about our business segments is set forth in Item 7—Management’s Discussion and Analysis and Note 18 to our audited consolidated financial statements included herein.

For our property and casualty businesses, the majority of our clients are insurers, reinsurers and companies located in North America. During the years ended December 31, 2008, 2007 and 2006, we derived approximately 81.0%, 75.4% and 67.0%,

 

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respectively, of property and casualty gross premiums written from clients located in North America. We also source business outside North America, predominantly in Europe, which represented approximately 13.8%, 19.1% and 8.7% of gross premiums written for the years ended December 31, 2008, 2007 and 2006, respectively. Gross premiums written associated with the rest of the world represented approximately 5.2%, 5.5% and 24.3% for the years ended December 31, 2008, 2007 and 2006, respectively.

For our life and annuity business, the majority of our clients are insurers, reinsurers and companies located in Europe. During the years ended December 31, 2008, 2007 and 2006, we derived approximately 98.9%, 99.0%, and 91.1% respectively, of life and annuity gross premiums written from clients located in Europe, principally Ireland. The remainder of our life and annuity business comes from North America.

Description of Business

Bermuda/Dublin Reinsurance

We offer excess of loss and quota share, also known as proportional or pro rata, products in the property and casualty reinsurance market. Generally, we participate on reinsurance treaties with a number of other reinsurers, each with an allocated portion of the treaty and whereby the terms and conditions of the treaty are substantially the same for each reinsurer participating. Our balance between long-tail casualty business and short-tail property business can shift based on the opportunities available in those markets. From 2006 to 2008, this balance has shifted from 26.2% to 46.1% short-tail property business overall. Short-tail property business includes property, property catastrophe, agriculture, marine and energy and aviation. Long-tail casualty business includes excess liability, medical malpractice, professional liability, and workers’ compensation. We also write whole account coverage, which provides coverage across a client’s multi-line portfolio of risk and may include both property and casualty business as described above.

We typically write our Bermuda/Dublin reinsurance products in the form of treaty reinsurance contracts, which are contractual arrangements that provide for automatic reinsuring of a type or category of risk underwritten by our clients. With treaty reinsurance contracts, we do not separately evaluate each of the individual risks assumed under the contracts and are largely dependent on the individual underwriting decisions made by the ceding client. Accordingly, we review and analyze the ceding client’s risk management and underwriting practices in deciding whether to provide treaty reinsurance and in our pricing of the treaty reinsurance contract.

With respect to excess of loss reinsurance, we indemnify the ceding client against all or a specified portion of losses and expenses in excess of a specified dollar or percentage amount. With respect to quota share reinsurance, we share the premiums as well as the losses and expenses in an agreed proportion with the ceding client. In both types of contracts, we may provide a ceding commission to the client. Our reinsurance products may include features such as contractual provisions that require our client to share in a portion of losses resulting from its ceded risks, may require payment of additional premium amounts if we incur greater losses than those projected at the time of the execution of the contract, may require reinstatement premium to restore the coverage after there has been a loss occurrence or may provide for refunds if the losses we incur are less than those projected at the time the contract is executed.

During the years ended December 31, 2008, 2007 and 2006, we wrote $257.8 million, $255.9 million and $277.3 million, respectively, or 61.5%, 74.2% and 65.5%, respectively, of Bermuda/Dublin reinsurance gross premiums on an excess of loss basis and $161.7 million, $89.2 million and $146.3 million, respectively, or 38.5%, 25.8% and 34.5%, respectively, of Bermuda/Dublin reinsurance gross premiums on a quota share basis.

 

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Bermuda/Dublin Insurance

We offer professional lines, excess liability, aviation and property insurance products, primarily to Fortune 1000 companies. Our excess liability products include excess umbrella liability insurance, excess product liability insurance, excess medical malpractice insurance and excess product recall insurance. Our professional lines products include errors and omissions insurance, employment practices liability insurance and directors and officers insurance. Our insurance products are underwritten in Bermuda and Ireland. We underwrite our insurance products on an individual risk basis, which, in many cases, includes holding an in-person meeting with the client in Bermuda or Ireland.

U.S. Specialty

We offer property, general liability, inland marine and ocean marine insurance products to small- to medium-sized companies in the United States. We operate in the excess and surplus lines market through Max Specialty, and in the admitted insurance market through Max America. Excess and surplus lines insurance is a segment of the U.S. insurance market that allows consumers to buy property and casualty insurance through non-admitted carriers. Risks placed in the excess and surplus lines insurance market are often insurance programs that cannot be filled in the conventional insurance markets due to a shortage of state-regulated insurance capacity. This market has significant flexibility regarding insurance rate and form, enabling us to utilize our underwriting expertise to develop customized insurance solutions for our clients.

Max Specialty is licensed in Delaware and is approved to write excess and surplus business on a non-admitted basis in all other states. Max America is domiciled in Indiana and licensed to write business on an admitted basis in all 50 states plus the District of Columbia.

Max at Lloyd’s

Our Max at Lloyd’s segment operates through Max at Lloyd’s, which is the managing agent for Syndicates 1400, 2525 and 2526, or the Syndicates. Max at Lloyd’s, through the Syndicates, underwrites a diverse portfolio of specialty risks. Syndicate 1400 offers property reinsurance, personal accident insurance and financial institutions insurance products. Syndicate 2525 offers employers’ and public liability insurance products. Syndicate 2526 specializes in professional liability and medical malpractice insurance products. The Syndicates operate in the Lloyd’s market, the world’s oldest specialty insurance marketplace. We believe the addition of this segment complements our specialty insurance underwriting capabilities and extends our ability to write business in multiple jurisdictions around the world.

Our Max at Lloyd’s segment was created when, on November 6, 2008, Max Capital consummated the acquisition of Imagine Group (UK) Limited, which was subsequently renamed Max UK. The acquisition of Max UK was pursuant to a Share Purchase Agreement with Imagine Insurance Company Limited entered into on July 24, 2008. Max UK is the parent of Max at Lloyd’s. From the date of acquisition, we provide 100%, 2% and 36% of the underwriting capacity for Syndicates 1400, 2525 and 2526, respectively.

Life and Annuity Reinsurance

Our life and annuity reinsurance products focus on existing blocks of business and typically take the form of co-insurance structures, where the risk is generally reinsured on the same basis as that of the original policy. In a co-insurance transaction, we receive a percentage of the gross premium charged to the policyholder by the client, less an expense allowance that we grant to the client, as the primary insurer. By accepting the transfer of liabilities and the related assets from our clients in these co-insurance transactions, we seek to enable these clients to achieve capital relief and improved returns on equity. We seek to

 

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write life and annuity reinsurance agreements with respect to individual and group disability, whole life, universal life, corporate owned life, term life, fixed annuities, annuities in payment and structured settlements. We do not write any variable annuity products.

The life reinsurance risks that we underwrite include mortality and investment risks and, to a lesser extent, early surrender and lapse risks. The annuity products that we underwrite include longevity and investment risks. The disability products that we underwrite include morbidity risk and, to a lesser extent, early surrender and lapse risks. Mortality risk measures the sensitivity of the insurance company’s liability to higher mortality rates than were assumed in setting the premium. Longevity risk measures the sensitivity of the insurance company’s liability to future mortality improvement being greater than expected. Morbidity risk measures the sensitivity of the insurance company’s liability for higher illness, sickness and disease rates than were assumed in setting the premium. Early surrender and lapse risks measure the sensitivity of the insurance company’s liability to early or changing policy surrender distributions.

Pricing of our life and annuity reinsurance products is based on actuarial models that incorporate a number of factors, including assumptions based on industry mortality, longevity and morbidity tables, expenses, demographics, persistency, investment returns, certain macroeconomic factors, such as inflation, and certain regulatory factors, such as taxation and minimum surplus requirements.

Underwriting and Risk Management

We attempt to manage our underwriting exposures in the property and casualty markets by diversifying across many underlying insureds with small policy limits per insured. With respect to our life and annuity reinsurance segment, we seek to reinsure blocks of business that have small underlying policy limits spread across a large population of insureds.

The difference between premium volume and potential ultimate losses is smaller for our long-tail casualty business than for our short-tail property business. Short tail business represents approximately 46.1% of our property and casualty premium volume in the current year. Furthermore, we believe our casualty business is less susceptible to the aggregation of losses from one or two major events. Our short-tail catastrophe exposed business comprises mostly our property, agriculture, aviation and marine and energy products in both insurance and reinsurance, which are susceptible to large catastrophe events that may trigger losses to a number of our cedants. As a result, we believe our short-tail catastrophe exposed business is our largest exposure in terms of potential adverse earnings impact from a single event or series of events. We have established a corporate policy of limiting the maximum impact of a property or aviation catastrophe event or series of property or aviation catastrophe events to 25% of opening shareholders’ equity on an annual basis for a modeled 1 in 250 year event.

We seek to reduce the volatility arising out of the underlying risks assumed through our written business by setting and maintaining contractual features that may include overall aggregate limits on liabilities, sub-limits on liabilities and attachment points for liabilities. Additionally, we seek to manage our property catastrophe reinsurance aggregation risk by utilizing internally developed catastrophe models that are based upon the results of commercially available products such as Risk Management Solutions, Inc. and AIR Worldwide Corporation. Further protection against volatility and aggregation risk is obtained through the purchase of reinsurance as described under “Retrocessional and Balance Sheet Protections.”

We manage the duration and volatility of our asset mix in relation to our liabilities in an attempt to manage our overall risk. We believe that our portfolio of underwriting risks benefits from diversification and we tailor our investment strategy accordingly. Because we now write predominantly traditional property and casualty insurance and reinsurance business, and as we have expanded our short-tail business, in 2008, we decreased our

 

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target alternative investment allocation to represent approximately 10-15% of total invested assets, with the remaining invested assets allocated to cash and fixed maturities investments.

We use a series of proprietary and non-proprietary actuarial and financial models in order to analyze the underlying risk characteristics of our liabilities and assets. We conduct both contract-by-contract modeling as well as portfolio aggregation modeling and then analyze these modeled results on an integrated basis in an effort to determine the aggregation of our underwriting risk and investment risk and the ultimate impact that adverse events might have on our surplus.

We utilize dynamic financial analysis to examine the possible effects of future variables, such as the effect of inflation on the cost of losses, using multiple scenarios to predict the range of outcomes and prices of our products. In addition, we attempt to manage capital adequacy by incorporating value at risk and risk based capital analyses into our modeling. Through the use of dynamic financial analysis, we seek to measure the risk inherent in each underwriting transaction as well as our overall asset and liability risk, and the potential for adverse scenarios producing projected losses and potential adverse cash flow. Additionally, by employing a risk based capital analysis rather than using premium income as a measure of risk, we are able to obtain an estimate of the amount of capital to be allocated to each transaction and our overall asset and liability portfolio. We believe that our actuarial analysis of loss payment patterns enables us to generate meaningful projections of the total and interim cash flows of our overall liability portfolios and use these projections to determine the profile of liquidity and investment returns required of our investment portfolio. We believe that this integrated approach allows us to optimize the use of our capital by providing a dynamic measurement of risk and return to evaluate competing reinsurance, insurance and investment opportunities.

Our underwriting and risk management processes and procedures described in this section and in the sections below will be gradually applied to our recently acquired Max at Lloyd’s segment. We conducted a detailed due diligence process prior to the acquisition of Max UK and believe the existing underwriting and risk management procedures in place at Max UK and its subsidiaries are strong. Max at Lloyd’s and the Syndicates are subject to stringent financial and regulatory oversight by the Financial Services Authority, or FSA, and the Society of Lloyd’s, including a quarterly filing to Lloyd’s by each syndicate. The integration of the Max at Lloyd’s underwriting process with our existing process has started with the January 1, 2009 property business written by our Syndicates and will be gradually phased-in to all other lines of business offered by our Max at Lloyd’s segment.

We perform due diligence as we believe appropriate on transactions that we consider underwriting and perform regular monitoring and periodic due diligence on the transactions that we complete. When we believe appropriate, we complement our internal skills with reputable third party service providers, including actuaries, attorneys, claim adjusters and other professionals. These third parties perform on-site client due diligence on our behalf, assist us in modeling transactions and provide legal advice on contract documentation.

Retrocessional and Balance Sheet Protections

As part of our underwriting process, we reinsure or retrocede portions of certain risks for which we have accepted liability. In these transactions, we cede to another counterparty reinsurer or retrocessionaire all or part of the risk that we have assumed. However, these arrangements do not legally discharge our liability with respect to the obligations that we have insured or reinsured. Like many other insurance and reinsurance companies, we cede risks to reinsurers and retrocessionaires for one or more of the following reasons:

 

   

reduce net liability on individual risks;

 

   

protect against catastrophic losses;

 

   

manage volatility of underwriting ratios;

 

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obtain additional underwriting capacity; and

 

   

enhance underwriting pricing margins.

When we reinsure portions of risk, we utilize reinsurance arrangements, such as quota share reinsurance, excess of loss reinsurance and stop-loss reinsurance contracts that are available in the reinsurance and retrocessional market as a means to manage risk on the products that we write. In quota share reinsurance arrangements, the reinsurer or retrocessionaire shares a proportional part of our premiums and losses associated with the risks being reinsured. Under the terms of excess of loss reinsurance and stop-loss reinsurance, the reinsurer or retrocessionaire agrees to cover losses in excess of the amount of risk that we have retained, subject to negotiated limits. Our reinsurance strategy includes purchasing reinsurance to limit losses on a single risk or transaction and on a whole portfolio basis as the need arises. Generally, we will utilize quota share reinsurance for our casualty business in order to allow us to provide increased capacity to our clients while still meeting our internally governed maximum net exposure thresholds. During the year ended December 31, 2008, the largest component of our ceded reinsurance has been quota share treaty reinsurance, principally related to our insurance and U.S. specialty segments. Our underwriting policy is to retain a maximum net exposure of not more than 5% of our shareholders’ equity for any individual contract we write. For our property and aviation business, we purchase excess of loss reinsurance in order to reduce the volatility of our underwriting results. Our underwriting policy is to limit the maximum impact of a property or aviation catastrophe event or series of property or aviation catastrophe events to 25% of opening shareholders’ equity on an annual basis for a modeled 1 in 250 year event.

Credit Risk

Our reinsurance and retrocessional arrangements do not legally discharge our liability with respect to obligations that we have insured or reinsured. We remain liable with respect to the liabilities that we cede if a counterparty is unable to meet its obligations assumed under a reinsurance or retrocessional agreement. Accordingly, we evaluate and monitor the financial strength of each of our counterparties. Certain reinsurance and retrocessional agreements give us the right to receive additional collateral or to terminate the agreement in the event of deterioration in the financial strength of the counterparty.

At December 31, 2008, 81.2% of our losses recoverable were with reinsurers rated “A” or above by A.M. Best Company and a further 4.6% are rated “A-” The remaining 14.2% of losses recoverable are with “NR—not rated” reinsurers. Grand Central Re, a Bermuda domiciled reinsurance company in which Max Bermuda has a 7.5% equity investment, is our largest “NR—not rated” retrocessionaire and accounted for 12.5% of our losses recoverable at December 31, 2008. As security for outstanding loss obligations, we retain funds from Grand Central Re amounting to 119.8% of its loss recoverable obligations.

Loss and Benefit Reserves

We establish and carry as liabilities an actuarially determined amount of loss reserves. These reserve amounts have been established to meet our estimated future obligations for losses and related expenses that have occurred relating to premiums we have earned. Future loss and benefit payments comprise the majority of our financial obligations. We use our own property and casualty and life and annuity actuaries as part of our loss reserving process, with the exception of our Max at Lloyd’s segment. In addition, we engage outside independent actuaries to perform an annual review of our loss reserve estimates. For our Max at Lloyd’s segment, outside independent actuaries are used by senior management to assist in the establishment of loss reserve estimates. These reserve amounts have been established to meet our estimated future obligations for losses and related expenses that have occurred relating to premiums we have earned. Future loss and benefit payments comprise the majority of our financial obligations.

 

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Loss and benefit reserves do not represent an exact calculation of our liability. The estimation of loss and benefit reserves is a complex process impacted by many external factors that affect the payment of losses and benefits. We apply the assumption that past experience (both industry and our own), adjusted for the effect of current developments and likely future trends, is an appropriate basis for estimating ultimate liabilities. The reserves presented represent our estimate of the expected cost of the ultimate settlement and administration of our claims and are based upon quantitative techniques overlaid with subjective considerations and managerial judgment.

In determining an initial reserve estimate, our actuaries utilize the underwriting information received when a transaction is negotiated. This data, when combined with our own experience on prior period or similar contracts, helps us to select the appropriate actuarial methods and assumptions that we use to create an initial pricing and reserving model. Initial assumptions include estimates of future trends in claims severity and frequency, mortality, judicial theories of liability and other factors. We regularly evaluate and update our initial loss development and trending factor selections using client specific and industry data. We also subscribe to industry publications to enable us to keep current with the latest industry trends. During the underwriting process, the client’s data is analyzed by our underwriting teams to ascertain its quality and credibility. This process may include an underwriting audit and claims audit of a client’s operations as well as inquiry of the insured or ceding company as to the trends and methodologies utilized in arriving at their estimates. In cases where we find the data initially provided by the client is not sufficient, we will utilize industry data that we have collected from either third party sources or from our own historical submission database to enhance the quality of the reserve model that is created.

On a quarterly basis, we perform a detailed review of our contracts and of the actuarial method utilized in arriving at reserve estimates and the related reinsurance recoverables. This review is performed by our corporate actuarial group, which is staffed by a team of qualified actuaries, on a contract by contract basis for our reinsurance segment, and on a portfolio basis for our insurance and U.S. specialty segments. The Max at Lloyd’s segment review is performed by outside independent actuaries. The quarterly review utilizes the initial submission information updated by current premium, loss and claims data reported to us. The newly reported loss information from our clients is the principal contributor to changes in our loss reserve estimates. As part of this process, our actuaries validate that the actuarial method applied continues to be appropriate to allow us to form a sound basis for projection of future liabilities. In addition, our reserve estimates are reviewed annually by outside actuaries in order to corroborate management’s estimates.

Marketing

We believe that diversity in our sources of business reduces the potential adverse effects arising from the termination of any one of our business relationships. Our marketing plan calls for the development of relationships with brokers and potential clients that we or brokers believe have a need for reinsurance or insurance, based on regulatory filings, industry knowledge and market trends. A significant volume of premium for the insurance and reinsurance industry is produced through a small number of large intermediaries and brokerage firms. We have relationships with multiple key personnel in these companies and therefore expect to maintain strong working relationships in the future.

During the years ended December 31, 2008, 2007 and 2006, brokered transactions accounted for the majority of our property and casualty gross premiums written. During the years ended December 31, 2008, 2007 and 2006, the top three independent producing intermediaries and brokerage firms accounted for 18%, 16% and 10%; 22%, 13% and 12%; and 25%, 16% and 12%, respectively, of property and casualty gross premiums written.

 

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Our life and annuity reinsurance segment generally writes a limited number of transactions in a year, with a potentially large variation in premium volume. As a result, the number of possible brokers used in a year is limited to the number of transactions written. During each of the years ended December 31, 2008, 2007 and 2006, the top independent producing intermediary and brokerage firm accounted for 27%, 30% and 100% of life and annuity gross premiums written, respectively.

Potential credit risk associated with brokers and intermediaries is discussed in Item 1A—Risk Factors.

In addition, we attempt to capitalize on existing relationships with reinsurance and insurance companies, large global corporations and financial intermediaries to develop and underwrite business.

Overview of Investments

We seek to earn a superior risk-adjusted total return on our assets by engaging in an investment strategy that combines fixed maturities and alternative investments and employs strategies intended to manage investment risk. We diversify our portfolio in an attempt to limit volatility and maintain adequate liquidity in our fixed maturities and alternative investments to fund operations and losses from unexpected events. We seek to manage our credit risk through industry and issuer diversification and interest rate risk by monitoring the duration and structure of the investment portfolio relative to the duration and structure of the liability portfolio. The finance and investment committee of our board of directors approves and monitors performance of the managers of our fixed maturities investments and alternative investments. The finance and investment committee also periodically reviews our investment guidelines in light of prevailing market conditions and amends them from time to time as it deems appropriate. Based on fair values at December 31, 2008, the allocation of invested assets was 85.9% in cash and fixed maturities and 14.1% in alternative investments.

Aggregate Portfolio Results

The table below shows the annual total rate of return of our cash and fixed maturities portfolio, alternative investment portfolio and aggregate investment portfolio for the years ended December 31, 2008, 2007 and 2006 (1).

 

     Year Ended December 31,  
       2008         2007          2006    

Cash and Fixed Maturities Investments

   4.66 %   5.11 %    3.78 %

Alternative Investments

   (19.27 )%   16.97 %    6.96 %

Aggregate Portfolio

   (0.09 )%   10.38 %    4.73 %

 

(1) Annual total rate of return means the annual total rate of return calculated by compounding the 12 consecutive monthly rates of return that are calculated by dividing monthly net performance by the beginning net asset value of that month. One is then subtracted from the product and the result is multiplied by 100.

This annual total rate of return information for our investment portfolio should not be relied upon as a representation of future results. Future results may vary and these variations may be significant.

Fixed Maturities Investments

Based on fair values at December 31, 2008, approximately 85.9% of our total investment portfolio was invested in cash and fixed maturities. Our fixed maturities portfolio was managed by General Re-New England Asset Management, Inc., Conning Asset Management, Asset Allocation and Management, Deutsche Investment Management

 

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Americas Inc., Credit Agricole Asset Management and Hyperion Brookfield Asset Management, Inc. Our fixed maturities investments comprise liquid, high quality securities. As of December 31, 2008, our fixed maturities investments had a dollar-weighted average rating of “AA2,” an average duration of approximately 4.7 years and an average book yield to maturity of 4.41%.

The investment strategy and guidelines for our fixed maturities investments emphasize diversification and preservation of principal. Under our current fixed maturities investment guidelines, securities in our fixed maturities portfolio, when purchased, must have a minimum rating of BAA3/BBB-, or its equivalent, from at least one internationally recognized statistical rating organization. In addition, a minimum weighted average credit quality rating of AA2/Aa, or its equivalent, must be maintained for our fixed maturities investment portfolio as a whole. Our fixed maturities investment guidelines also provide that we cannot leverage our fixed maturities investments.

Our cash and fixed maturities investments provide liquidity for day-to-day operations. We believe that we will be able to satisfy our foreseeable cash needs from our cash and fixed maturities investments and we maintain significant cash and cash equivalent balances to reduce the likelihood of needing to sell fixed maturities investments before maturity. Accordingly, we believe that our cash and fixed maturities investment guidelines reduce the likelihood of having to liquidate any portion of the alternative investments to meet near term cash flow needs.

Our investments are held by three different custodians. These custodians are all large financial institutions which are highly regulated. These institutions have controls over their investment processes which are certified annually.

Additional information about our fixed maturities investments can be found in Note

3 to our audited consolidated financial statements included herein.

Alternative Investments

Overview. Based on fair values at December 31, 2008, approximately 14.1% (Max Diversified—14.0% and reinsurance private equity—0.1%) of our investment portfolio was invested in alternative investments. Max Diversified holds all of our alternative investments other than a reinsurance private equity investment, which is held by Max Bermuda. Alstra Capital Management, LLC, an affiliate of one of our directors and which we refer to as Alstra, has served as fund advisor for Max Diversified since April 1, 2004. As of December 31, 2008, Max Diversified was invested in 37 underlying trading entities representing the following investment strategies: Convertible Arbitrage, Distressed Securities Investing, Diversified Arbitrage, Emerging Markets, Event Driven Arbitrage, Fixed Income Arbitrage, Global Macro, Long/Short Credit, Long/Short Equities and Opportunistic Investing. These strategies were selected because of their low correlation with the stock market, the bond market and each other. Our alternative investment guidelines also provide that Max Diversified may be invested in Commodities Trading and Merger Arbitrage.

In 2008, to better support our changing and growing underwriting platforms, we decided to reduce our target allocation to alternative investments to approximately 10-15% of total invested assets, down from the previous target range of 15-25%. While our allocation to alternative investments may be reduced, we expect it to remain an important component of our asset mix.

Our alternative investments are invested in accordance with our investment guidelines, which may be amended from time to time by our board of directors. Our investment guidelines currently mandate, among other things, that:

 

   

funds must be invested in a minimum of five distinct alternative investment strategies;

 

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investments in any single strategy may not be made if it would cause the single strategy to exceed 25% of the value of our alternative investment portfolio, with further concentration limits imposed on certain strategies;

 

   

a minimum of 80% of our alternative investment portfolio must be maintained in funds with monthly or quarterly liquidity; and

 

   

investments in any single underlying fund may not be made if it would cause the single underlying fund to exceed 5% of the value of our alternative investment portfolio.

Under the terms of our customer agreement and trading authorization contract with Alstra, Alstra may make discretionary investment determinations so long as those determinations comply with our alternative investment guidelines and are in underlying strategies approved by the finance and investment committee of the board of directors. Prior to October 1, 2008, Max Diversified paid Alstra a management fee of 70 basis points plus an incentive fee of 7.5% of the return in excess of a 10% threshold on the net asset value of the funds in which Max Diversified had invested. In October 2008, this fee was replaced with a flat management fee. For the annual period beginning October 1, 2008, the management fee is $8.0 million.

Since 2004, Alstra has managed the alternative investment portfolio for Max Diversified with oversight by the Company. In consideration of the reduced allocation to alternative investments, we believe it prudent to begin management of Max Diversified’s investments internally. Accordingly, we expect to hire certain key personnel from Alstra and then terminate its services agreement during the first quarter of 2009. The research staff being hired from Alstra will assist in our internal management of both the traditional and alternative investment portfolios.

Alternative Investment Strategies. The following is a summary of the underlying strategies of funds in which we may invest our alternative investments:

Commodities Trading. Commodities trading advisors seek to make returns by trading futures, options and other securities in the over-the-counter market and on the regulated commodities exchanges.

Convertible Arbitrage. This strategy typically entails the simultaneous purchase of a convertible bond and a short sale of the underlying common stock, which results in an offsetting hedged position. This strategy generates returns from equity market volatility in either up or down directions. Income is also earned from the coupon interest payment on the convertible bond and from the short sale rebate, which is effectively interest paid on balances generated from the short sale of the underlying common stock. The principal risk of this strategy is a decline in the price of the convertible bond due to interest rate movements or credit quality changes that are not offset by an increase in the value of the corresponding common stock short position.

Distressed Securities Investing. Funds that pursue a distressed investing strategy purchase securities of companies experiencing financial distress. Typically, these companies are engaged in out-of-court debt restructurings or bankruptcy proceedings.

Diversified Arbitrage. This strategy typically entails simultaneously pursuing a variety of market-neutral strategies such as convertible arbitrage and event-driven arbitrage. By combining multiple skill sets within the same fund, these managers are able to allocate resources from one market neutral strategy to another in an effort to focus opportunistically on the strategies that are perceived as offering the greatest potential for returns in any given environment.

Emerging Markets. Emerging market funds seek to generate returns by employing fundamental analysis of emerging market countries and investing in government and corporate securities of emerging market countries.

 

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Event-Driven Arbitrage. This strategy typically entails the purchase of securities of a company involved in a significant corporate event. Event-driven arbitrage funds will typically employ merger arbitrage techniques along with additional arbitrage techniques for companies that are spinning off divisions, going through reorganizations or undergoing other significant corporate events.

Fixed Income Arbitrage. Fixed income arbitrage funds seek to make returns by arbitraging fixed income securities. Principal trading activities include making arbitrage trades based on aberrations in the yield curve, credit spreads or between sectors in the fixed maturities market, such as between mortgage backed securities and asset backed securities.

Global Macro. Funds that pursue a global macro strategy typically participate in directional trading of bonds, stocks and currencies in an attempt to take advantage of perceived changes in macroeconomic conditions. A global macro fund will typically buy or sell securities such as Treasury bills and government notes and bonds, corporate bonds, foreign currencies and common stocks of individual companies or futures contracts on stock indices such as the S&P 500 Index ®. A global macro fund typically purchases both securities, such as common stock or government bonds, as well as derivatives of these securities, including futures, forward contracts and options. The principal risk of this strategy is that funds pursuing the strategy may incorrectly predict macroeconomic trends.

Long/Short Credit. Funds that pursue a long/short credit strategy seek opportunities to invest primarily in high grade, high yield and distressed fixed maturities based on the identification of imbalance in valuation and capital allocation across credit ratings, industry sectors and geographic regions.

Long/Short Equities. Funds that pursue a long/short strategy typically purchase common stock (go long) of companies in a particular sector with perceived strong fundamentals and sell common stock (go short) of companies in the same sector that are perceived to have deteriorating fundamentals. The strategy attempts to create investment returns through superior stock selection based upon fundamental analysis rather than creating returns based simply upon an upward price direction of the overall stock market. While this strategy can profit from either positive or negative price trends in the overall stock market, investment managers of long/short equity funds generally have a net long position and returns tend to benefit from upward movement in the stock market and be negatively affected by declines in the stock market. Funds that pursue this strategy generally purchase and sell common stock of publicly-traded companies.

Merger Arbitrage. This strategy typically entails the simultaneous purchase of common stock of a company being acquired or merged and a short sale of the common stock of the acquiring company.

Opportunistic Investing. Our principal opportunistic investment focuses on investing in distressed loan portfolios. These loans tend to be collateralized by real estate and are typically purchased for a small fraction of the original loan amount. This strategy involves analysis of the value of the real estate collateral underlying each loan. The fund then attempts to reach an agreement with the debtor under each of the individual loans to satisfy the indebtedness for an amount greater than the purchase price of the loan. Securities purchased pursuant to this strategy are normally private debt obligations for which there is no public market.

 

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Alternative Investment Portfolio. As of December 31, 2008 and 2007, our alternative investment portfolio was allocated as follows:

 

    As of December 31,  
    2008     2007  
    Fair Value   Percentage of
Total
Alternative
Investment
Portfolio
    Fair Value   Percentage of
Total
Alternative
Investment
Portfolio
 
    (in thousands)         (in thousands)      

Convertible Arbitrage

  $ 10,650   1.4 %   $ —     0.0 %

Distressed securities investing

    115,900   15.4       168,050   15.8  

Diversified arbitrage

    46,034   6.1       161,870   15.2  

Emerging markets

    39,683   5.3       98,882   9.3  

Event driven arbitrage

    75,205   9.9       170,563   16.1  

Fixed income arbitrage

    30,881   4.1       32,265   3.0  

Global macro

    87,304   11.6       69,092   6.5  

Long/short credit

    38,581   5.1       51,512   4.9  

Long/short equity(1)

    290,224   38.5       269,959   25.4  

Opportunistic investing

    14,746   2.0       35,600   3.4  
                       

Total Max Diversified

    749,208   99.4       1,057,793   99.6  
                       

Reinsurance private equity

    4,450   0.6       3,941   0.4  
                       

Total alternative investment portfolio

  $ 753,658   100.0 %   $ 1,061,734   100.0 %
                       

 

(1) Under our investment guidelines, no additional investment may be made in any single strategy if it would cause the strategy to exceed 25% of the value of our alternative investment portfolio. Because investment performance has increased the fair value of this strategy to greater than 25% of total alternative investments, this strategy remains in compliance with our investment guidelines.

Cash and cash equivalent balances of $133.4 million and $56.0 million held by Max Diversified, but outside the underlying funds, are excluded from the above table and are presented within cash and cash equivalents in our audited consolidated balance sheets at December 31, 2008 and 2007, respectively. Redemptions receivable of $98.1 million and $112.2 million held within the alternative investment portfolio are excluded from the above table and are presented within trades pending settlement in our consolidated balance sheets at December 31, 2008 and 2007, respectively. The cash and cash equivalent balances held by Max Diversified are included in the calculation of total return on the alternative investment portfolio.

Alternative Investment Portfolio Liquidity.

We are able to redeem the alternative investments held through Max Diversified on the same terms that the underlying funds can be redeemed. In general, the funds in which Max Diversified is invested require at least 30 days notice of redemption, and may be redeemed on a monthly, quarterly, semi-annually, annual, or longer basis, depending on the fund.

Certain funds may have a lock-up period. A lock-up period refers to the initial amount of time an investor is contractually required to invest before having the ability to redeem. Funds that do provide for periodic redemptions may, depending on the funds’ governing documents, have the ability to deny or delay a redemption request, called a gate. The fund may implement this restriction because the aggregate amount of redemption requests as of a particular date exceeds a specified level, generally ranging from 15% to 25% of the fund’s net assets. The gate is a method for executing an orderly redemption process which allows for redemption requests to be executed in a timely manner to reduce the possibility of adversely affecting the remaining investors in the fund. In the current financial market environment, we have experienced an increase in the number of funds which have imposed gates, and we believe it is likely that this trend will continue.

 

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The majority of our alternative investment portfolio remains highly liquid and the imposition of gates by certain funds is not expected to significantly impact our cash flow needs or change our timetable for reducing our allocation to alternative investments. Over 87.0% of the underlying assets held by our alternative investment funds are traded securities or have broker quotes available. Typically, the imposition of a gate delays a portion of the requested redemption, with the remaining portion settled in cash shortly after the redemption date. Of our scheduled December 31, 2008 redemptions of $98.1 million, none of which are gated, $95.4 million were received in cash prior to February 19, 2009. The fair value of our holdings in funds with gates imposed as at December 31, 2008 were $42.7 million, and are included in the table below.

Certain funds may be allowed to invest a portion of their assets in illiquid securities, such as private equity or convertible debt. In such cases, a common mechanism used is a side-pocket, whereby the illiquid security is assigned to a separate memorandum capital account or designated account. Typically, the investor loses its redemption rights to the designated account. Only when the illiquid security is sold, or otherwise deemed liquid by the fund, may investors redeem their interest. As at December 31, 2008, the fair value of our alternative investments held in side-pockets is $113.4 million. Due to the uncertainty surrounding the timing of the sale of the underlying assets within side-pockets, the estimated timing of liquidity presented in the table below is subject to change. Our holdings in side-pockets are included in the greater than 270 days section of the table below.

Had we requested full redemptions for all of our holdings in the funds, the table below indicates our best estimate of the earliest date from December 31, 2008 on which such redemptions might be received. This estimate is based on available information from the funds and is subject to significant change, particularly in the current economic environment.

 

     As at December 31, 2008  
     Fair Value    % of Alternative
Investments
 
     (in thousands)       

Liquidity

     

Within 90 days

   $ 57,297    7.6 %

Between 91 to 120 days

   $ 171,957    23.0 %

Between 121 to 180 days

   $ 253,785    33.9 %

Between 181 to 270 days

   $ 12,264    1.6 %

Greater than 270 days

   $ 253,905    33.9 %
             

Total

   $ 749,208    100.0 %
             

Although we believe that our significant cash balances, fixed maturities investments, and credit facilities provide sufficient liquidity to satisfy the claims of insureds and ceding clients, in the event that we were required to access assets invested in the alternative investments, our ability to do so may be impaired by these liquidity constraints. See “Risk Factors—Unexpected volatility or illiquidity associated with our alternative investment portfolio or in the financial markets could significantly and negatively affect our ability to conduct business.”

Additional information about the alternative investments can be found in Note 3 to our audited consolidated financial statements included herein.

Competition

The reinsurance and insurance industry is highly competitive. Competition in the types of business that we currently underwrite and intend to underwrite in the future is based principally on:

 

   

premium rates;

 

   

ability to obtain terms and conditions appropriate with the risk we are assuming and in accordance with our underwriting guidelines;

 

   

the general reputation and perceived financial strength of the insurer or reinsurer;

 

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relationships with reinsurance and insurance intermediaries;

 

   

ratings assigned by independent rating agencies;

 

   

speed of claims payment and administrative activities; and

 

   

experience in the particular line of insurance or reinsurance to be underwritten.

We compete directly with numerous independent reinsurance companies, captive insurance companies, insurance companies, subsidiaries or affiliates of established insurance companies or newly formed companies, reinsurance departments of primary insurance companies and underwriting syndicates from countries throughout the world in our chosen product lines. Many of these competitors are well established, have significant operating histories and have developed longstanding customer relationships. With the 2008 downturn in the financial markets worldwide having a negative impact on the investment portfolios of most insurers and reinsurers, we expect a decrease in capacity across most lines of business, with the potential for upward pressure on premium rates in the short to medium term.

Ratings

Ratings are an important factor in establishing the competitive position of reinsurance and insurance companies and are important to our ability to market our products. We have a financial strength rating for our non-Lloyd’s reinsurance and insurance subsidiaries from each of A.M. Best Company, or A.M. Best, Fitch, Inc., or Fitch, and Moody’s Investors Service, Inc., or Moody’s (see table below). These ratings reflect each rating agency’s opinion of our financial strength, operating performance and ability to meet obligations. They are not evaluations directed toward the protection of investors in securities issued by Max Capital.

As of December 31, 2008 and 2007, Max USA has outstanding $91.5 million and $100.0 million aggregate principal amount, respectively, of 7.20% senior notes due April 14, 2017. The senior notes are guaranteed by Max Capital. The senior notes were assigned a senior unsecured debt rating by Standard & Poor’s Ratings Services, or S&P, A.M. Best, Fitch, and Moody’s (see table below). The senior unsecured debt ratings assigned by rating agencies to reinsurance and insurance companies are based upon factors and criteria established independently by each rating agency. They are not an evaluation directed to investors in our senior notes, and are not a recommendation to buy, sell or hold our senior notes. These ratings are subject to periodic review by the rating agencies or may be revised downward or revoked at the sole discretion of the rating agencies.

At December 31, 2008, we were rated as follows:

 

   

A.M. Best

 

Fitch

 

Moody’s

 

S&P

Financial strength rating for non-Lloyd’s reinsurance and insurance subsidiaries

 

A-(excellent)(1)

 

A (strong)(2)

 

A3(3)

 

Not applicable

Outlook on financial strength rating

 

Positive(1)

 

Stable(2)

 

Stable(3)

 

Not applicable

Senior notes senior unsecured debt rating(4)

 

bbb-

 

BBB+

 

Baa2

 

BBB-

Outlook on debt rating(4)

 

Stable

 

Stable

 

Stable

 

Positive

Lloyd’s financial strength rating applicable to the Syndicates(5)

 

A (excellent)

 

A+ (strong)

 

Not applicable

 

A+ (strong)

 

(1) Applicable to Max Bermuda, Max Specialty, Max America, Max Re Europe, and Max Insurance Europe.

 

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(2) Applicable to Max Bermuda, Max Specialty, Max Re Europe, and Max Insurance Europe.
(3) Applicable to Max Bermuda.
(4) Applicable to Max USA.
(5) Applicable to Syndicates 1400, 2525 and 2526.

Administration

We provide most of our own management and administrative services and establish and administer our loss reserves and policy benefits. Our underwriters, financial staff, chief operating officer and actuaries assist our claims personnel in performing traditional claims tasks such as monitoring claims and reserving. In addition, when we write highly specialized business, we from time to time hire third-party claims specialists to assist in evaluating loss exposure and establishing reserving practices and claims-paying procedures. Generally, we self-manage and administer the claims activity associated with our insurance and reinsurance operations and utilize both internal resources and external experts in the reserving and settlement of claims.

In connection with the administration of the life and annuity benefit payments of our clients’ primary insureds that are covered on certain reinsurance transactions, our company, together with the client, will select an independent third-party claims administrator. We and our client then enter into a contract with the third-party administrator that will typically contain a provision requiring a significant amount of advance notice in order to terminate the contract. We are responsible for the loss and benefit payment expense charged by the third party administrator.

Regulation

The principal jurisdictions of our operations are Bermuda, Ireland and Switzerland, the United Kingdom and the United States.

Bermuda

The Insurance Act 1978 of Bermuda and its related regulations, which we refer to collectively as the Bermuda Insurance Act, regulates the reinsurance and insurance business of Max Bermuda and the reinsurance and insurance management business of Max Managers. The Bermuda Insurance Act imposes solvency and liquidity standards and auditing and reporting requirements on Max Bermuda and grants to the Bermuda Monetary Authority powers to supervise, investigate and intervene in the affairs of Bermuda reinsurance and insurance companies. Max Bermuda is required to prepare annual statutory financial statements, file an annual statutory financial return and have its statutory reserves actuarially certified. Under the Bermuda Insurance Act, Max Bermuda is subject to risk-based capital requirements in addition to minimum solvency and liquidity requirements. The risk-based capital model determines a control threshold for statutory capital and surplus. If a company falls below the control level, various degrees of regulatory action may be taken by the Bermuda Monetary Authority. In addition, Max Capital, Max Bermuda, Max Managers and Max Diversified are each required to comply with the provisions of the Companies Act 1981 of Bermuda, which we refer to as the Bermuda Companies Act, regulating, among other things, the payment of dividends and making of distributions from contributed surplus.

Pursuant to the Bermuda Insurance Act, any person who becomes a holder of at least 10%, 20%, 33% or 50% of our common shares must notify the Bermuda Monetary Authority in writing within 45 days of becoming such a holder or 30 days from the date they have knowledge of having become such a holder, whichever is later. The Bermuda Monetary Authority has the power to object to a person holding 10% or more of our common shares if it appears to the Authority that the person is not fit and proper to be such a holder. In such a case, the Bermuda Monetary Authority may require the holder to

 

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reduce their shareholding in us and may direct, among other things, that the voting rights attaching to their common shares shall not be exercisable. A person that does not comply with such a direction from the Bermuda Monetary Authority will be guilty of an offense.

Ireland and Switzerland

Our Irish operating subsidiaries, Max Insurance Europe and Max Re Europe, are subject to regulation by the Irish Financial Services Regulatory Authority, or IFSRA. Max Insurance Europe must comply with the Irish Insurance Acts 1909 to 2000, regulations promulgated thereunder, regulations relating to insurance business promulgated under the European Communities Act 1972, the Irish Central Bank Acts 1942 to 1998 as amended, regulations promulgated thereunder and directions and guidelines, and codes of conduct, issued by IFSRA, which we refer to collectively as the Insurance Acts and Regulations.

Max Insurance Europe is required to maintain statutory reserves, particularly in respect of underwriting liabilities and a solvency margin as provided for in the Insurance Acts and Regulations. Assets constituting statutory reserves must comply with admissibility, diversification, localization and currency matching rules. Statutory reserves must be actuarially certified annually.

Max Re Europe must comply with the European Communities (Reinsurance) Regulations, 2006 and rules made thereunder and insofar as relevant to reinsurance the Irish Insurance Acts 1909 to 2000, regulations promulgated thereunder, regulations relating to reinsurance business promulgated under the European Communities Act 1972, the Irish Central Bank Acts 1942 to 1998 as amended, regulations promulgated thereunder and directions, papers and guidelines and codes of conduct issued by IFSRA.

Max Re Europe is required to maintain statutory reserves, particularly in respect of underwriting liabilities and a solvency margin as provided for in the European Communities (Reinsurance) Regulations, 2006. Assets constituting statutory reserves must comply with certain principles including obligations to diversify the assets, to secure sufficiency, liquidity, security, quality, profitability and currency matching of investments. Statutory reserves must be actuarially certified annually.

Max Insurance Europe and Max Re Europe are entitled to do business on a “Freedom of Services” basis throughout the European Economic Area, or EEA. Because Switzerland is not a member country of the EEA, Max Insurance Europe has established an authorized branch in Switzerland. The Swiss branch is subject to regulation by the Swiss Federal Office of Private Insurance, or FOPI, pursuant to the Swiss Insurance Supervision Law, as well as the Supervision Ordinance promulgated thereunder, and guidelines and directives issued by the FOPI. The Swiss branch is required to maintain statutory reserves in Switzerland in regard to business written in Switzerland, and maintain a solvency margin pursuant to the FOPI directives. Assets constituting statutory reserves in Switzerland must comply with FOPI guidelines as to admissibility, diversification, localization and currency matching rules. The statutory reserves must be actuarially certified annually.

United Kingdom and Lloyd’s

The financial services industry in the United Kingdom is regulated by the FSA. The FSA is an independent non-governmental body, given statutory powers by the Financial Services and Markets Act 2000. Although accountable to treasury ministers and through them to Parliament, it is funded entirely by the firms it regulates. The FSA has wide ranging powers in relation to rule-making, investigation and enforcement to enable it to meet its four statutory objectives, which are summarized as one overall aim: “to promote efficient, orderly and fair markets and to help retail consumers achieve a fair deal.”

The Lloyd’s market permits members of Lloyd’s to underwrite insurance and reinsurance risks through Lloyd’s syndicates. Members of Lloyd’s may participate on a

 

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Lloyd’s syndicate for one or more underwriting years by providing capital to support the syndicate’s underwriting activities. All syndicates at Lloyd’s are managed by managing agents that receive fees and profit commissions in respect of the underwriting and administrative services they provide to the syndicates.

We participate in the Lloyd’s market through the Syndicates. Max at Lloyd’s is the managing agent for each of the Syndicates. The Max Corporate Capital Vehicles are corporate members of Lloyd’s and participate in the underwriting years of the Syndicates for which they are a Syndicate member. By entering into a membership agreement with Lloyd’s, the Max Corporate Capital Vehicles have undertaken to comply with all Lloyd’s byelaws and regulations as well as the provisions of the Lloyd’s Acts and the Financial Services and Markets Act 2000. The Syndicates, as well as the Max Corporate Capital Vehicles, Max at Lloyd’s and their directors, are subject to the Lloyd’s regulatory regime.

In relation to insurance business, the FSA regulates insurers, insurance intermediaries and Lloyd’s itself. The FSA and Lloyd’s have common objectives in ensuring that Lloyd’s market is appropriately regulated and, to minimize duplication, the FSA has agreed arrangements with Lloyd’s for co-operation on supervision and enforcement.

Max at Lloyd’s underwriting activities are therefore regulated by the FSA as well as being subject to the Lloyd’s “franchise.” Both the FSA and Lloyd’s have powers to remove their respective authorization to manage Lloyd’s syndicates. Lloyd’s approves annually the business plan of each of the Syndicates along with any subsequent material changes, and the amount of capital required to support those plans. The FSA requires that the managing agent of the Syndicates carries out a capital assessment of the Syndicates in order to determine whether any additional capital should be held by the Syndicates on account of any particular risks arising from its business or operational infrastructure. This assessment (known as an “individual capital assessment”) is reviewed and may be challenged by Lloyd’s.

United States

Max Specialty is domiciled and licensed in Delaware as a property and casualty insurer and does not hold insurance certificates of authority in any other jurisdiction. Nothwithstanding the foregoing, Max Specialty is listed or authorized as an eligible surplus lines insurer in 49 other U.S. states. Although Max Specialty is subject to regulation as an eligible surplus lines insurer by state insurance departments and under applicable state insurance laws in each jurisdiction in which it is listed or authorized, the principal insurance regulatory authority is the Delaware Department of Insurance.

Max America is domiciled in Indiana and is admitted as a licensed insurer in all 50 states. As such, Max America is also subject to regulation by all state insurance departments and under all applicable state insurance laws. The principal insurance regulatory authority, however, is the Indiana Department of Insurance.

As an insurance holding company, we are also subject to regulation under the Delaware and Indiana insurance holding company system laws. Such laws and applicable regulations require periodic disclosure concerning stock ownership and prior approval of certain intercompany transactions within the holding company system. Furthermore, no person, corporation or other entity is permitted to acquire control of Max Capital, Max USA, Max Specialty or Max America unless such person, corporation or entity has obtained the prior approval of the Delaware and/or Indiana Insurance Commissioner. For purposes of the Delaware and Indiana insurance holding company system laws, any person acquiring, directly or indirectly, 10% or more of the voting securities of an insurance company or any of its parent companies is presumed to have acquired “control” of that company.

The laws and regulations of the jurisdictions in which Max Specialty and Max America are domiciled require, among other things, that Max Specialty and Max America maintain minimum levels of statutory capital, surplus and liquidity, meet solvency standards and submit to periodic examinations of its financial condition. Specifically, Max USA and its

 

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subsidiaries are subject to risk-based capital standards and other minimum capital and surplus requirements imposed by state laws, including the laws of their states of domicile (Delaware and Indiana). The risk-based capital standards, or RBC standards, based upon the Risk-Based Capital Model Act adopted by the National Association of Insurance Commissioners, or NAIC, require Max USA and its subsidiaries to report their results of RBC calculations to state insurance departments and the NAIC. These RBC standards provide for different levels of regulatory attention depending upon the ratio of an insurance company’s total adjusted capital, as calculated in accordance with NAIC guidelines, to its authorized control level RBC limits. These laws and regulations also sometimes restrict payments of dividends and reductions of capital. These statutes, regulations and policies may also restrict the ability of Max Specialty or Max America to write insurance policies, to make certain investments and to distribute funds.

We may from time to time be subject to regulation under the insurance and insurance holding company statutes of one or more additional states.

Other Jurisdictions

We do not intend to conduct any activities that may constitute the transaction of the business of insurance in any jurisdiction in which we are not licensed or otherwise authorized to engage in such activities.

In addition to the regulatory requirements imposed by the jurisdictions in which a reinsurer is licensed, a reinsurer’s business operations are affected by regulatory requirements governing credit for reinsurance in other jurisdictions in which its ceding companies are located. In general, a ceding company that obtains reinsurance from a reinsurer that is licensed, accredited or approved by the jurisdiction in which the ceding company files statutory financial statements is permitted to reflect in its statutory financial statements a credit in an aggregate amount equal to the liability for unearned premiums and loss reserves and loss expense reserves ceded to the reinsurer. Many jurisdictions also permit ceding companies to take credit on their statutory financial statements for reinsurance obtained from unlicensed or non-admitted reinsurers if certain prescribed security arrangements are made. Because Max Bermuda is not licensed, accredited or approved in any jurisdiction other than Bermuda, in certain instances our reinsurance customers require Max Bermuda to provide a letter of credit or enter into other security arrangements.

Employees

As of December 31, 2008, we had 336 employees.

Available Information

Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports and the Proxy Statement for our Annual General Meeting of Shareholders are made available, free of charge, on our web site, http://www.maxcapgroup.com, as soon as reasonably practicable after such reports have been filed with or furnished to the SEC. In addition, our Code of Business Conduct and Ethics is available on our web site.

 

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ITEM 1A.    RISK FACTORS

Any of the following risk factors could cause our actual results to differ materially from historical results or anticipated results. These risks and uncertainties are not the only ones we face, but represent the risks that we believe are material. However, there may be additional risks that we currently consider not to be material or of which we are not currently aware, and any of these risks could have the effects set forth above.

Risks Related to Our Business

Our losses and benefits may exceed our loss and benefit reserves, which could significantly increase our liabilities and reduce our net income.

Our success depends on our ability to assess accurately the risks associated with the business that we insure and reinsure. If we fail to assess these risks accurately, or if events or circumstances cause our estimates to be incorrect, we may not establish appropriate premium rates and our reserves may be inadequate to cover our losses. If our actual claims experience is less favorable than our underlying assumptions, we will be required to increase our liabilities, which will reduce our net income.

As of December 31, 2008, we had property and casualty losses and life and annuity benefit reserves of $4,305.1 million. During the year ended December 31, 2008, we incurred net loss and loss expenses and claims and policy benefits of $695.3 million. We periodically review and, where appropriate, adjust our property and casualty losses and life and annuity benefit reserves in the period in which this review occurs.

Reserves are actuarial and statistical projections at a given point in time of what we ultimately expect to pay on claims and benefits, based on facts and circumstances then known, predictions of future events, estimates of future trends in claim frequency and severity, mortality, morbidity and other variable factors such as inflation. Reinsurance has inherently greater uncertainties of property and casualty losses and life and annuity benefit reserves as compared to insurance, primarily due to:

 

   

the necessary reliance on the ceding company or insurer for information regarding losses and benefits; and

 

   

the lapse of time from the occurrence of the event to the reporting of the loss or benefit to the reinsurer and the ultimate resolution or settlement of the loss or benefit.

Our actual property and casualty losses and life and annuity benefit reserves may deviate, perhaps substantially, from the reserve estimates contained in our financial statements. Although we conduct due diligence on the transactions that we underwrite in connection with our reinsurance business, we are dependent on the original underwriting decisions made by ceding companies. Specifically, we are subject to the risk that the ceding companies may not have adequately evaluated the risks reinsured by us and that the premiums ceded may not adequately compensate us for the risks we assume.

As industry practices and legal, judicial and social conditions change, unexpected issues related to claims and coverage may emerge. These issues may adversely affect our business by either extending coverage beyond the period that we intended or by increasing the number or size of claims. In some instances, these changes may not manifest themselves until many years after we issue insurance or reinsurance contracts affected by these changes. As a result, we may not be able to ascertain the full extent of our liabilities under our insurance or reinsurance contracts for many years following the issuance of our contracts.

If we determine that our reserves are inadequate, we will increase our reserves with a corresponding reduction in net income for the period in which the deficiency is identified.

 

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Our ability to write reinsurance and insurance in the property and casualty market may be affected by cyclical trends and in the life and annuity market by global economic conditions and fluctuations in interest rates.

The property and casualty reinsurance and insurance industry has historically been affected by cyclical trends. Demand for property and casualty reinsurance and insurance is influenced significantly by underwriting results and prevailing general economic and market conditions, all of which affect reinsurance and insurance premium rates and liability retention decisions of companies and insurers. The supply of property and casualty reinsurance and insurance is directly related to the levels of surplus available to support assumed business that, in turn, may fluctuate in response to changes in rates of return on investments being realized in the reinsurance and insurance industry, the frequency and severity of losses and prevailing general economic and market conditions. The cyclical trends in the property and casualty reinsurance and insurance industries and the profitability of these industries can also be significantly affected by volatile and unpredictable developments, including what our management believes to be a trend of courts to grant increasingly larger awards for certain damages, natural disasters such as catastrophic hurricanes, windstorms, tornadoes, earthquakes, floods and fires, fluctuations in interest rates, changes in the investment environment that affect market prices of investments and inflationary pressures that may tend to affect the size of losses experienced by insureds and primary insurance companies. We cannot predict with accuracy whether market conditions will remain constant, improve or deteriorate. Adverse market conditions may lead to a significant reduction in property and casualty premium rates, less favorable policy terms and/or less premium volume.

The nature of the life and annuity transactions we consider results in a limited number of transactions actually bound with potentially large variations in annual premium volume. We cannot predict how market conditions will develop or the magnitude of their effect on our life and annuity reinsurance business in the future.

Competitors may make it difficult for us to market our products effectively and offer our products at a profit.

The reinsurance and insurance industry is highly competitive. Competition in the types of business that we currently underwrite and intend to underwrite in the future is based principally on:

 

   

premium rates;

 

   

ability to obtain terms and conditions appropriate with the risk we are assuming and in accordance with our underwriting guidelines;

 

   

the general reputation and perceived financial strength of the insurer or reinsurer;

 

   

relationships with reinsurance and insurance intermediaries;

 

   

ratings assigned by independent rating agencies;

 

   

speed of claims payment and administrative activities; and

 

   

experience in the particular line of reinsurance or insurance to be written.

We compete directly with numerous independent reinsurance companies, captive insurance companies, insurance companies, subsidiaries or affiliates of established insurance companies or newly formed companies, reinsurance departments of primary insurance companies and underwriting syndicates from countries throughout the world in our chosen product lines. Many of these competitors are well established, have significant operating histories, underwriting expertise and extensive capital resources and have developed longstanding customer relationships. Our worldwide insurance and reinsurance competitors include ACE Limited, American International Group, Inc., Berkshire Hathaway, Inc., Swiss Reinsurance Company and XL Capital Ltd., all larger companies, with higher credit ratings and greater credit capacity. Additionally, competitors such as Allied World Assurance

 

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Holdings, Ltd., Arch Capital Group Ltd., Ariel Reinsurance Ltd., AXIS Capital Holdings Limited, Endurance Specialty Insurance Ltd., Flagstone Reinsurance Limited, Platinum Underwriters Reinsurance, Inc. and Validus Reinsurance Ltd. compete in many of our property and casualty markets.

There can be no assurance as to the effect that governmental actions for the purpose of stabilizing the financial markets will have on such markets generally or on us in particular.

In response to the financial crises affecting the banking system and financial markets and going concern threats to investment banks and other financial institutions, world governments have taken unprecendented actions in an attempt to stabilize and provide liquidity to these markets.

In the United States, on October 3, 2008, Former President Bush signed the Emergency Economic Stabilization Act of 2008, or the EESA, into law. Pursuant to the EESA, the U.S. Treasury Department has the authority to, among other things, purchase mortgage-backed and other securities from financial institutions for the purpose of stabilizing the financial markets. In addition, the U.S. Treasury Department announced that it will make up to $250 billion in preferred stock investments in U.S. banks and thrifts and that it is also considering taking equity stakes in insurance companies. The U.S. Federal Government, U.S. Federal Reserve and other U.S. governmental and regulatory bodies have taken or are considering taking other actions to address the financial crisis. European and other non-U.S governments have instituted their own stabilization programs.

It is possible that our competitors, such as companies that engage in both life and property and casualty insurance lines of business, may participate in some or all of these programs. There can be no assurance as to the effect that any such governmental actions will have on the financial markets generally or on our competitive position, business and financial condition, in particular.

The property, property catastrophe, aviation and marine insurance and reinsurance that we offer may make us vulnerable to losses from catastrophes and may cause our results of operations to vary significantly from period to period.

The property, property catastrophe, aviation and marine insurance and reinsurance that we offer may cause us to be vulnerable to losses from catastrophes. Catastrophes can be caused by various unpredictable events, including earthquakes, hurricanes, hailstorms, severe winter weather, floods, fires, tornadoes, volcano eruptions, explosions, airplane crashes and other natural or man-made disasters. The incidence and severity of catastrophes are inherently unpredictable, but the loss experience of property catastrophe insurers and reinsurers has been generally characterized as low frequency and high severity in nature. In addition, because accounting regulations do not permit insurers and reinsurers to reserve for such catastrophic events until they occur, claims from catastrophic events could cause substantial volatility in our financial results for any fiscal quarter or year and could have a significant and negative effect on our financial condition and results of operations. Our ability to write new business also could be significantly and negatively impacted.

A downgrade or withdrawal of any of our ratings may significantly and negatively affect our ability to implement our business strategy successfully.

Companies, insurers and reinsurance and insurance intermediaries use financial ratings as an important means of assessing the financial strength and quality of insurers and reinsurers. An unfavorable rating or the lack of a rating of its reinsurer or insurer may adversely affect the rating of a company purchasing reinsurance or insurance.

 

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Our non-Lloyd’s financial strength ratings as of December 31, 2008 are “A-” (4th out of 14 categories) by A.M. Best, “A” (6th out of 21 categories) by Fitch, and “A3” (7th out of 21 categories) by Moody’s. The ratings assigned by rating agencies to reinsurance and insurance companies are based upon factors relevant to policyholders and are not directed toward the protection of investors or a recommendation to buy, sell or hold securities. To date, none of our ratings issued by an independent rating agency has been downgraded. However, if an independent rating agency downgrades or withdraws any of our ratings, we could be severely limited or prevented from writing any new reinsurance and insurance contracts and certain existing contracts may be terminated, which would significantly and negatively affect our ability to implement our business strategy successfully.

The Lloyd’s market is currently rated “A” (excellent) by A.M. Best, “A+”: (strong) by Fitch, and “A+” (strong) by S&P. In the event that Lloyd’s rating is downgraded below “A-” in the future, the downgrade could have a material adverse effect on our ability to underwrite business through the Syndicates and on our financial condition or results of operations.

A limited number of reinsurance and insurance brokers and broker transactions account for a large portion of our revenues, and a loss of all or a substantial portion of this brokered business could have a significant and negative effect on our business and results of operations.

A substantial portion of our reinsurance and insurance business is placed through brokered transactions, which involve a limited number of reinsurance and insurance brokers. During the years ended December 31, 2008, 2007 and 2006, the top three independent producing intermediaries and brokerage firms accounted for 18%, 16% and 10%; 22%, 13% and 12%; and 25%, 16% and 12%, respectively, of property and casualty gross premiums written. During the years ended December 31, 2008, 2007 and 2006, the top independent producing intermediary and brokerage firm accounted for 27%, 30% and 100%, respectively, of life and annuity gross premiums written. Loss of all or a substantial portion of the brokered business provided through one or more of these brokers could have a significant and negative effect on our business and results of operations.

The involvement of reinsurance brokers subjects us to their credit risk.

In accordance with industry practice, we frequently pay amounts owed on claims under our policies to reinsurance brokers, and these brokers, in turn, pay these amounts over to the ceding insurers that have reinsured a portion of their liabilities with us. Although the law is unsettled and depends upon the facts and circumstances of any particular case, in some jurisdictions, if a broker fails to make such a payment, we might remain liable to the ceding insurer for the deficiency. Conversely, in certain jurisdictions, when the ceding insurer pays premiums for these policies to reinsurance brokers for payment to us, these premiums are considered to have been paid and the ceding insurer will no longer be liable to us for these premiums, whether or not we have actually received them. Consequently, consistent with the industry, we assume a degree of credit risk associated with brokers with whom we do business. However, due to the unsettled and fact-specific nature of the law, we are unable to quantify our exposure to this risk. To date, we have not experienced any material losses related to these credit risks.

Current investigations and proceedings by government agencies relating to insurance practices could adversely affect the industry in which we operate.

Beginning in October 2004, the New York State Attorney General filed a series of suits against certain insurance brokers and insurance companies, not including us or any of our affiliates, challenging the legality of certain practices, including some practices connected with Placement Services Agreements. Attorneys General in several other states have filed similar claims against various brokers and insurance companies. Most of these claims by the New York and other state attorneys general have been settled, but a few remain pending.

 

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In October 2007, the Connecticut Attorney General filed suit against an insurance broker alleging unrelated state antitrust violations. In addition to these actions, other regulatory authorities have launched parallel investigations. We are currently party to two lawsuits alleging broker misconduct, as more fully described in Item 3—Legal Proceedings. While we do not believe that issues facing major producing brokers will have a material adverse effect on our business or financial condition, we cannot assure you that this will be the case.

The failure of any of the loss limitation methods we employ could have a significant and negative effect on our financial condition and results of operations.

We seek to mitigate our loss exposure by writing a number of our insurance and reinsurance contracts on an excess of loss basis. Excess of loss insurance and reinsurance indemnifies the insured against losses in excess of a specified amount. We also seek to limit our loss exposure by geographic diversification. Geographic zone limitations involve significant underwriting judgments, including the determination of the area of the zones and the inclusion of a particular policy within a particular zone’s limits. Various provisions of our policies, such as limitations or exclusions from coverage or choice of forum negotiated to limit our risks may not be enforceable in the manner we intend. As a result of these risks, one or more catastrophic or other events could cause substantial volatility in our financial results and could have a significant and negative effect on our financial condition and results of operations.

In addition, we purchase reinsurance and retrocessional reinsurance for our own account in order to mitigate the effect of large and multiple losses. A reinsurer’s insolvency or inability or refusal to make payments under the terms of its reinsurance or retrocessional agreement with us could have an adverse effect on our Company because we remain liable to our client irrespective of our reinsurance or retrocessional reinsurance. We cannot be sure that any of the loss limitation methods will be effective and mitigate our exposure.

From time to time, market conditions have limited, and in some cases have prevented, insurers and reinsurers from obtaining the types and amounts of reinsurance that they consider adequate for their business needs. Accordingly, as a result of these unfavorable market conditions, we may be unable to obtain desired amounts of reinsurance or retrocessional reinsurance. In addition, even if we are able to obtain such reinsurance or retrocessional reinsurance, we may not be able to negotiate appropriate or acceptable terms or obtain reinsurance or retrocessional reinsurance from entities with satisfactory creditworthiness. If we fail to obtain reinsurance or retrocessional reinsurance at all or on acceptable terms, our capacity to underwrite new business may be limited.

If we fail to write insurance or reinsurance contracts with the provisions that provide loss limitation protection or if we purchase reinsurance or retrocessional reinsurance but are unable to collect, we may have difficulty mitigating the effect of large or multiple losses which, in turn, could have a significant and negative effect on our business.

Operational risks, including human or systems failures are inherent in our business.

Operational risks and losses can result from, among other things, fraud, errors, failure to document transactions properly or to obtain proper internal authorization, failure to comply with regulatory requirements, information technology failures or external events.

We believe that our modeling, underwriting and information technology and application systems are critical to our business. Moreover, our information technology and application systems have been an important part of our underwriting process and our ability to compete successfully. We have also licensed certain systems and data from third parties. We cannot be certain that we will have access to these, or comparable, service providers, or that our information technology or application systems will continue to operate as intended. A major defect or failure in our internal controls or information

 

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technology and application systems could result in management distraction, harm our reputation or increase expenses. We believe appropriate controls and mitigation procedures are in place to prevent significant risk of defect in our internal controls, information technology and application systems, but internal controls provide only a reasonable, not absolute, assurance as to the absence of errors or irregularities and any ineffectiveness of such controls and procedures could have a significant and negative effect on our business.

We may require additional capital in the future, which may not be available to us on satisfactory terms, if at all.

We need liquidity to pay our operating expenses, interest on our debt and dividends, as well as to establish premium rates and reserves at levels sufficient to cover our losses. To the extent that the funds generated by our ongoing operations are insufficient to fund future operating requirements and cover claim payments, we may need to raise additional funds through financings or curtail our growth. Markets in the United States and elsewhere have been experiencing extreme volatility and disruption for more than 12 months, due in part to financial stresses affecting the liquidity of the banking system and the financial markets generally. In recent months, this volatility and disruption has reached unprecedented levels. These circumstances have also exerted downward pressure on stock prices and reduced access to the equity and debt markets.

Although we currently believe we have access to the equity and debt markets, any future equity or debt financing may not be available on terms that are favorable to us, if at all. Any future equity financings could be dilutive to our existing shareholders or could result in the issuance of securities that have rights, preferences and privileges that are senior to those of our other securities. Our access to funds under existing credit facilities is dependent on the ability of the banks that are parties to the facilities to meet their funding commitments. Those banks may not be able to meet their funding commitments if they experience shortages of capital and liquidity or if they experience excessive volumes of borrowing requests within a short period of time, and we might be forced to replace credit sources in a difficult market.

There has also been recent consolidation in the industry, which could lead to increased reliance on and exposure to particular institutions. If we cannot obtain adequate capital or sources of credit on favorable terms, or at all, our business, operating results, and financial condition could be adversely affected. It is possible that, in the future, one or more of the rating agencies may reduce our existing ratings. If one or more of our ratings were downgraded, we could incur higher borrowing costs and our ability to access the capital markets could be impacted. Our inability to obtain adequate capital could have a significant and negative effect on our business, financial condition and results of operations.

A recession and other adverse consequences of the recent U.S. and global economic and financial industry downturns could harm our business, our liquidity and financial condition, and our stock price.

Recent global market and economic conditions have experienced severe disruptions. These conditions, may potentially affect (among other aspects of our business) the demand for and claims made under our products, the ability of customers, counterparties and others to establish or maintain their relationships with us, our ability to access and efficiently use internal and external capital resources and our investment performance. Continued volatility in the U.S. and other securities markets may adversely affect our stock price.

We could incur substantial losses and reduced liquidity if one of the financial institutions we use in our operations, including those institutions that participate in our credit facilities, fails.

We maintain cash balances, including restricted cash held in premium trust accounts, significantly in excess of the U.S. Federal Deposit Insurance Corporation insurance limits at

 

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various U.S. depository institutions. We also maintain cash balances in foreign banks and institutions and rely upon funding commitments from several banks and financial institutions that participate in our credit facilities. As the worldwide fallout from the credit crisis persists, the financial strength of some depository institutions and investment banks has diminished, and this trend may continue. If one or more of these financial institutions were to fail, our ability to access cash balances, draw down on our credit facilities might be temporarily or permanently limited, which could have a significant and negative effect on our results of operations, financial condition or cash flows.

If we lose or are unable to retain our senior management and other key personnel, or if we are unable to renew the Bermudian work permits of any members of our senior management or other key personnel, our ability to implement our business strategy could be delayed or hindered, which, in turn, could significantly and negatively affect our business.

Our future success depends to a significant extent on the efforts of our senior management and other key personnel to implement our business strategy. We do not currently maintain key man life insurance with respect to any of our senior management.

In addition, under Bermuda law, non-Bermudians, other than spouses of Bermudians, may not engage in any gainful occupation in Bermuda without an appropriate governmental work permit. A work permit may be granted or renewed only upon showing that, after proper public advertisement, no Bermudian, spouse of a Bermudian, holder of a permanent resident’s certificate or holder of a working resident’s certificate is available who meets the minimum standards reasonably required by the employer. The Bermuda government limits the term of work permits to six years, subject to certain exemptions for key employees.

The employment permits for our Chief Executive Officer and Chief Operating Officer expire in April 2010 and May 2009, respectively. The loss of the services of one or more of the members of our senior management or other key personnel, including as a result of our inability to renew the Bermudian work permit of such individual, or our inability to hire and retain other senior management and other key personnel, could delay or prevent us from fully implementing our business strategy and, consequently, significantly and negatively affect our business.

Currency fluctuations could result in exchange losses and our failure to manage our multiple currency liabilities effectively could significantly and negatively impact our business.

We maintain a portion of our investments, insurance and reinsurance liabilities, and insurance and reinsurance assets denominated in currencies other than U.S. dollars. Consequently, we and our subsidiaries may experience foreign exchange losses. As of December 31, 2008, approximately 68.6% of our reinsurance and insurance reserves were denominated in U.S. dollars. We purchase fixed maturities denominated in the currencies of the relevant reinsurance and insurance liabilities to manage our multiple currency exposures. We continually monitor those assets and liabilities to reduce our exposure to currency risk. Mismatches in multiple currency assets and liabilities may give rise to currency losses and our business could be significantly and negatively affected.

We publish our consolidated financial statements in U.S. dollars. Therefore, fluctuations in exchange rates used to convert other currencies, particularly other European currencies including the Euro and British pound, into U.S. dollars will impact our reported consolidated financial condition, results of operations and cash flows from year to year.

Our failure to maintain sufficient letter of credit facilities or to increase our letter of credit capacity on commercially acceptable terms as we grow could significantly and negatively affect our ability to implement our business strategy.

Our reinsurance operations are conducted by our companies licensed and operated in Bermuda, the United Kingdom and Ireland. Many jurisdictions do not permit insurance

 

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companies to take statutory credit for reinsurance obtained from unlicensed or non-admitted reinsurers, such as Max Bermuda and Max Re Europe, in their statutory financial statements unless appropriate security measures are implemented. Consequently, the majority of our reinsurance clients typically require us to obtain a letter of credit or provide other collateral through funds withheld or trust arrangements. When we obtain a letter of credit facility, we are required to provide collateral to secure our obligations under the facility.

As of December 31, 2008, we have three letter of credit facilities totaling $695.0 million with an additional $200.0 million available subject to certain conditions. As of December 31, 2008, we had $490.3 million in letters of credit and a $150.0 million unsecured loan outstanding under these facilities. We also have a GBP 90.0 million letter of credit facility supporting our funds at Lloyd’s commitments, of which GBP 63.6 million is utilized as of December 31, 2008. Our failure to maintain our letter of credit facilities or to increase our letter of credit capacity on commercially acceptable terms as we grow could significantly and negatively affect our ability to implement our business strategy.

A significant decrease in our capital or surplus could enable certain clients to terminate reinsurance agreements or to require additional collateral.

Certain of our assumed reinsurance contracts contain provisions that permit our clients to cancel the contract or require additional collateral in the event of a downgrade in our ratings below specified levels or our capital or surplus is reduced (typically by 20% to 50%) since inception or effectiveness of the agreement. Whether a client would exercise such cancellation rights would likely depend, among other things, on the reason the provision is triggered, the prevailing market conditions, the degree of unexpired coverage and the pricing and availability of replacement reinsurance coverage.

If any such provisions were to become exercisable, we cannot predict whether or how many of our clients would actually exercise such rights or the extent to which they would have a significant and negative effect on our financial condition, results of operations or future prospects and could have a significant adverse effect on the market price for our securities.

Our results of operations may fluctuate significantly from period to period and may not be indicative of our long-term prospects.

Our results of operations may fluctuate significantly from period to period. These fluctuations result from a variety of factors, including the seasonality of the reinsurance and insurance business, the volume and mix of reinsurance and insurance products that we write, loss experience on our reinsurance and insurance liabilities, the performance of our investment portfolio and our ability to assess and integrate our risk management strategy effectively. In particular, we seek to underwrite products and make investments to achieve long-term results. As a result, our short-term results of operations may not be indicative of our long-term prospects.

Our financial condition and results of operations could be negatively affected to the extent that we sustain losses from our reinsurance and insurance of terrorist attacks and similar risks.

Worldwide terrorist attacks, threats of future terrorist attacks and the military initiatives and political unrest in certain geographic areas have all adversely affected general economic, market and political conditions, increasing many of the risks associated with the insurance markets worldwide. Although we may attempt to exclude losses from terrorism and certain other similar risks from some coverage that we write, we may not be successful in doing so. In addition, we have written and will continue to write some policies explicitly covering acts of terrorism. These risks are inherently unpredictable and recent events may lead to increased frequency and severity of losses. It is difficult to predict the timing of such

 

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events with statistical certainty or to estimate the amount of loss that any given occurrence will generate. Our financial condition and results of operations could be negatively affected to the extent that we sustain reinsurance and insurance losses from terrorist attacks and similar risks. In addition, because accounting regulations do not permit insurers and reinsurers to reserve for such terrorist events until they occur, claims from terrorist events could cause substantial volatility in our financial results for any fiscal quarter or year and could have a significant and negative effect on our financial condition and results of operations. Our ability to write new business also could be adversely impacted.

We are a holding company that depends on the ability of our subsidiaries to pay dividends.

Max Capital is a holding company and does not have any significant operations or assets other than its ownership of the shares of its subsidiaries. Dividends and other permitted distributions from our subsidiaries are our primary source of funds to meet ongoing cash requirements, including any future debt service payments and other expenses, and to pay dividends to our shareholders. Some of our insurance and reinsurance subsidiaries are subject to significant regulatory restrictions limiting their ability to declare and pay dividends. The inability of our insurance and reinsurance subsidiaries to pay dividends in an amount sufficient to enable us to meet our cash requirements at the holding company level could have an adverse effect on our operations and our ability to pay dividends to our shareholders and/or meet our debt service obligations.

In addition, each of Max Bermuda’s credit facilities prohibits Max Bermuda from paying dividends at any time that there is a default under the particular facility, which will occur if Max Capital’s shareholders’ equity or Max Bermuda’s shareholders’ equity is less than a specified amount, as well as in certain other circumstances. Max Capital is party to one credit facility that imposes parallel restrictions on its ability to pay dividends.

Max Capital, Max Bermuda, Max Managers and Max Diversified. The payment of dividends and making of distributions by Max Capital, Max Bermuda, Max Managers and Max Diversified are limited under Bermuda law and regulations. Under the Bermuda Insurance Act, Max Bermuda must maintain specified minimum solvency levels and is prohibited from declaring or paying dividends that would result in noncompliance. Further, as a long-term insurer, Max Bermuda must maintain long-term business assets of a value at least $0.25 million greater than its long-term business liabilities and is prohibited from declaring or paying dividends if it does not comply or such action would result in noncompliance with the Bermuda Insurance Act. Additionally, under the Bermuda Companies Act, each of Max Capital, Max Bermuda, Max Managers and Max Diversified may only declare or pay a dividend if, among other things, it has reasonable grounds for believing that it is, or would after the payment be, able to pay its respective liabilities as they become due.

Max Re Europe, Max Insurance Europe and Max Europe Holdings. Under Irish company law, each of Max Re Europe, Max Insurance Europe and Max Europe Holdings is permitted only to make distributions out of profits available for distribution. A company’s profits available for distribution are its accumulated, realized profits, so far as not previously utilized by distribution or capitalization, less its accumulated, realized losses, so far as not previously written off in a reduction or reorganization of capital duly made. Further, in general, under applicable insurance regulations, Max Insurance Europe may not enter into a material arrangement with a related company, including, but not limited to, paying a dividend, making a distribution, providing any form of guarantee or entering into a loan agreement, without pre-approving any such arrangement with the Irish Financial Services Regulatory Authority.

Ireland has already adopted regulations implementing the EU Reinsurance Directive and these regulations (the Irish European Communities (Reinsurance) Regulations, 2006) became fully applicable to Max Re Europe on December 10, 2007. These regulations,

 

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which are broadly in line with current European Union life and non-life insurance regulation, mean that Max Re Europe is subject to formal regulation, and prudential and financial supervision by the Irish Financial Services Regulatory Authority in a manner similar to Max Insurance Europe.

Max USA, Max Specialty and Max America. The payment of dividends and distributions by Max USA, Max Specialty and Max America is limited under Delaware and Indiana law and regulation. Neither Max USA nor Max Specialty may declare and pay dividends on its capital if the amount paid exceeds an amount equal to the surplus which represents the excess of Max USA’s or Max Specialty’s, as applicable, net assets over paid-in-capital or, if there is no surplus, Max USA’s or Max Specialty’s, as applicable, net profits for the current and/or immediately preceding fiscal year. In addition, under applicable Delaware case law, dividends may not be paid on Max USA’s or Max Specialty’s capital stock if it becomes insolvent or the payment of the dividend will render it insolvent. To the extent Max USA or Max Specialty were to pay dividends and is deemed to be insolvent or inadequately capitalized, a bankruptcy court could direct the return of any dividends. Max America is prohibited from paying dividends unless (i) it has assets, in the amount of such payment, in excess of its liabilities, including its capital stock, and (ii) the dividend does not reduce its surplus to less than 50% of its capital stock. Moreover, Indiana law prohibits Max America from paying dividends except out of earned surplus, unless approved by the Indiana Insurance Commissioner.

Delaware and Indiana insurance law also limit the ability of Max Specialty and Max America, as applicable, to pay extraordinary dividends. Neither Max Specialty nor Max America may pay an extraordinary dividend until 30 days after such company’s respective insurance commissioner has received notice of the intended dividend and has not objected in such time or has approved the payment of the extraordinary dividend within the 30-day period. An extraordinary dividend is defined as any dividend or distribution that together with any other dividends or distributions made within the preceding 12 consecutive months exceeds the greater of: (i) 10% of the insurance company’s surplus as of the preceding December 31, or (ii) the insurance company’s net income, not including realized capital gains, for the 12-month period ending the preceding December 31 (but does not include pro rata distributions of any class of Max Specialty’s own securities).

The Delaware and Indiana Insurance Commissioner each has broad discretion to limit the payment of dividends by insurance companies.

Max at Lloyd’s. There are also significant restrictions regarding our ability to remove funds deposited to support the underwriting capacity of the Syndicates. Funds which are required by Lloyd’s to be held or retained by the Syndicates may not be paid as dividends.

Underwriting capacity of a member of Lloyd’s must be supported by providing a deposit in the form of cash, securities or letters of credit, which are referred to as Funds at Lloyd’s in an amount determined by Lloyd’s in relation to the member’s underwriting capacity. This amount is determined by Lloyd’s through application of a risk based capital formula. The consent of the Council of Lloyd’s may be required when a syndicate proposes to increase its underwriting capacity for the following year.

The Council of Lloyd’s has wide discretionary powers to regulate members’ underwriting at Lloyd’s. It may, for instance, change the basis on which syndicate expenses are allocated or vary the Funds at Lloyd’s ratio or the investment criteria applicable to the provision of Funds at Lloyd’s. Exercising any of these powers might affect the amount of a corporate member’s overall premium limit (the amount of business which the member is permitted to accept in any underwriting year) and consequently the return on an investment in the corporate member in a given underwriting year. In particular, it should be noted that the annual business plans of a syndicate are subject to the review and approval of the Lloyd’s Franchise Board. The Lloyd’s Franchise Board was formally constituted on January 1, 2003 and has now become the managing agent’s principal interface with the

 

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Council of Lloyd’s. The main goal of the Franchise Board is to seek to create and maintain a commercial environment at Lloyd’s in which underwriting risk is prudently managed while providing maximum long term returns to capital providers.

The Funds at Lloyd’s requirements may increase from year to year, resulting in a greater burden. This may result in the Syndicates having to reduce or even cease new business in future years. The Max Corporate Capital Vehicles currently depend on a letter of credit facility to meet the majority of the Funds at Lloyd’s required. Should it become impossible to maintain this facility or replace it on equivalent terms, the Max Corporate Capital Vehicles would be required to deposit a significant amount of cash and assets as replacement Funds at Lloyd’s. Where an underwriting year makes a loss, that loss may be met by the Funds at Lloyd’s of the members who participated on that underwriting year.

The profits of an underwriting year may not generally be released to members of Lloyd’s until the business written has been fully reinsured into a Lloyd’s syndicate constituted for a future year of account, referred to as reinsurance to close. This reinsurance may not be effected until the third year following the underwriting year during which the relevant business was written.

As with the business plan for any Lloyd’s syndicate, the business plans prepared by Max at Lloyd’s for the Syndicates must be approved by the Lloyd’s Franchise Performance Directorate, or FPD. Business plans contain significant financial data on classes of business, projected premium levels, line sizes, retentions and proposed reinsurance programmes. Business plans are reviewed and analyzed in detail by the FPD. There can be no assurance that changes to the Syndicates’ business plans will not be required in a manner that is unfavorable to shareholders in order to gain the FPD’s approval. Lloyd’s may, where it has a regulatory concern, impose a requirement upon a particular syndicate to obtain Lloyd’s consent before it makes any increase in its stamp capacity. These restrictions could act in such a way as to impact adversely on the Company.

If we do not generate positive cash flows, we may be unable to service our indebtedness.

Our ability to pay principal and interest on the notes and on our other indebtedness depends on our future operating performance. Future operating performance is subject to market conditions and business factors that are often beyond our control. Consequently, we cannot assure you that we will have sufficient cash flows to pay the principal, premium, if any, and interest on our indebtedness. If our cash flows and capital resources are insufficient to allow us to make scheduled payments on our indebtedness, we may have to seek additional capital or restructure or refinance our indebtedness. We cannot assure you that the terms of our indebtedness will allow us to take these measures or that these measures would satisfy our scheduled debt service obligations.

Our failure to comply with restrictive covenants contained in the indenture governing the senior notes or our current or future credit facilities could trigger prepayment obligations, which could adversely affect our business, financial condition and results of operations.

The indenture governing the senior notes contains covenants that impose restrictions on our company and certain of our subsidiaries with respect to, among other things, the incurrence of liens and the disposition of capital stock of these subsidiaries. In addition, each of our credit facilities requires our Company and/or certain of our subsidiaries to comply with certain covenants, including the maintenance of a minimum consolidated net tangible worth and restrictions on the payment of dividends. Our failure to comply with these covenants could result in an event of default under the indenture or any credit facility we may enter into in the future, which, if not cured or waived, could result in us being required to repay the notes or any amounts outstanding under these facilities prior to maturity. As a result, our business, financial condition and results of operations could be adversely affected.

 

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Consolidation in the insurance industry could adversely impact us.

Our ability to compete may be harmed if insurance industry participants consolidate. These consolidated entities may try to use their enhanced market power to negotiate price reductions for our products and services. If competitive pressures reduce our prices, we would expect to write less business. As the insurance industry consolidates, competition for customers will become more intense and the importance of acquiring and properly servicing each customer will become greater. We could incur greater expenses relating to customer acquisition and retention, further reducing our operating margins. In addition, insurance companies that merge may be able to spread their risks across a consolidated, larger capital base so that they require less reinsurance. The number of companies offering retrocessional reinsurance may decline. Reinsurance intermediaries could also consolidate, potentially adversely impacting our ability to access business and distribute our products. We could also experience more robust competition from larger, better capitalized competitors. Any of the foregoing could significantly and negatively affect our business or our results of operation.

The integration of new insurance and reinsurance initiatives into our existing operations may present significant challenges.

We may face significant challenges in integrating new insurance and reinsurance initiatives, including Max at Lloyd’s, into our existing operations in a timely, efficient and effective manner. Successful integration will depend on, among other things, the effective execution of our business plan for the new insurance and reinsurance initiatives, our ability to effectively integrate the operations of new insurance and reinsurance initiatives into our existing risk management techniques, our ability to effectively manage any regulatory issues created by our entry into new markets and geographic locations, our ability to retain key personnel and other operational and economic factors. There can be no assurance that the integration of new insurance and reinsurance initiatives will be successful or that the business derived therefrom will prove to be profitable. The failure to integrate new insurance and reinsurance initiatives successfully or to manage the challenges presented by the integration process may adversely impact our financial results.

Risks Related to Our Investment Strategy

If our calculations with respect to our liabilities are incorrect, or if we do not appropriately structure our investments in relation to our anticipated liabilities, we could be forced to liquidate investments at a significant loss.

Our ability to measure and manage risk and to implement our investment strategy is crucial to our success. We cannot assure investors that we will successfully structure our investments in relation to our anticipated liabilities under our reinsurance and insurance policies. If our calculations with respect to these liabilities are incorrect, or if we do not properly structure our investments to satisfy such liabilities, we could be forced to liquidate investments at a significant loss.

Changes in market interest rates could have a significant and negative effect on our investment portfolio, investment income and results of operations.

Increasing market interest rates reduce the value of our fixed maturities, and we may realize a loss if we sell fixed maturities whose value has fallen below their acquisition cost. Declining market interest rates can have the effect of reducing our investment income, as we invest proceeds from positive cash flows from operations and reinvest proceeds from maturing and called investments in new investments that may yield less than our investment portfolio’s average rate of return. Interest rates are highly sensitive to many factors, including governmental monetary policies, domestic and international economic and political conditions and other factors beyond our control. Our mitigation efforts with respect to interest rate risk are primarily focused towards by monitoring the duration and structure of our investment portfolio relative to the duration and structure of our liability

 

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portfolio. However, our estimates of the duration and structure of our liability portfolio may be inaccurate and we may be forced to liquidate investments prior to maturity at a loss in order to cover the liability. Any measures we take that are intended to manage the risks of operating in a changing interest rate environment may not effectively mitigate such interest rate sensitivity. Accordingly, changes in interest rates could have a material adverse effect on our investment portfolio, investment income and results of operations.

Unexpected volatility or illiquidity associated with our fixed maturities investment portfolio or in the financial markets could significantly and negatively affect our ability to conduct business.

Although our investment strategy for our fixed maturities portfolio requires all fixed maturity investments, when purchased, to have a minimum credit rating of BAA3/BBB-, or its equivalent, from at least one internationally recognized statistical rating organization, unexpected volatility or illiquidity in the financial markets could have significant adverse impact on the credit ratings of the fixed maturities investment we hold. Deterioration of credit ratings on our fixed maturities investments may result in the need to liquidate these securities in the financial markets. If we are required to liquidate these securities during a period of tightening credit in the financial markets, we may realize a significant loss.

Our portfolio of investment grade fixed maturities includes mortgage-backed and asset-backed securities and collateralized mortgage obligations. These types of securities have cash flows that are backed by the principal and interest payments of a group of underlying mortgages or other receivables. During 2008, delinquency and default rates increased on these types of securities, and particularly on securities backed by sub-prime mortgages. Generally, sub-prime mortgages are considered to be those made to borrowers who do not qualify for market interest rates for one or more possible reasons, such as a low credit score, a limited or lack of credit history, or a lack of earnings documentation. As a result of the increasing default rates of sub-prime borrowers, there is a greater risk of defaults on mortgage-backed and asset-backed securities and collateralized mortgage obligations, especially those that are non-investment grade. Therefore, fixed maturities securities backed by sub-prime mortgages have exhibited significant declines in market value. These factors combined with the contraction in liquidity in the principal markets for these securities makes the estimate of fair value increasingly uncertain. The fair values of our holdings in securities exposed to sub-prime borrowers are generally not based on quoted prices for identical securities, but are based on model-derived valuations from independent pricing sources in which all significant inputs and significant value drivers are observable in active markets. Should we need to liquidate these securities within a short period of time, the actual realized proceeds may be significantly different from the fair values estimated at December 31, 2008. We believe our exposure to sub-prime credit risk is limited, although there can be no assurance that events in the sub-prime mortgage sector will not adversely affect the value of our investments.

The determination of the impairments taken on our investments is highly subjective and could materially impact our financial position or results of operations.

The determination of the impairments taken on our investments vary by investment type and is based upon our periodic evaluation and assessment of known and inherent risks associated with the respective asset class. Such evaluations and assessments are revised as conditions change and new information becomes available. Management updates its evaluations regularly and reflects impairments in operations as such evaluations are revised. There can be no assurance that our management has accurately assessed the level of impairments taken in our financial statements. Furthermore, additional impairments may need to be taken in the future, which could materially impact our financial position or results of operations. Historical trends may not be indicative of future impairments.

 

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Our valuation of fixed maturity securities and alternative investments may include methodologies, estimations and assumptions which are subject to differing interpretations and could result in changes to investment valuations that may materially adversely affect our results of operations or financial condition.

Fixed maturity investments and alternative investments, which are reported at fair value on the consolidated balance sheet, represent the majority of our total cash and invested assets.

Fair value prices for all securities in the fixed maturities portfolio are independently provided by both the Company’s investment custodian and its investment managers, which each utilize nationally recognized independent pricing services. The Company records the unadjusted price provided by the investment custodian and the Company’s validation process includes, but is not limited to: (i) comparison to the price provided by the investment manager, with significant differences investigated; (ii) quantitative analysis (e.g., comparing the quarterly return for each managed portfolio to its target benchmark, with significant differences identified and investigated); (iii) evaluation of methodologies used by external parties to calculate fair value; and (iv) comparing the price to its knowledge of the current investment market.

Investments in alternative investments comprise a portfolio of limited partnerships and stock investments in trading entities, or funds, which invest in a wide range of financial products. The units of account that are fair valued are our interest in the funds and not the underlying holdings of such funds. Thus, the inputs we use to value our investment in each of the funds may differ from the inputs used to value the underlying holdings of such funds. These funds are stated at fair value which ordinarily will be the most recently reported net asset value as advised by the fund manager, where the fund’s underlying holdings can be in various quoted and unquoted investments. We believe the reported net asset value represents the fair value market participants would apply to an interest in the fund. The fund managers value their underlying investments in accordance with policies established by each fund, as described in each of their financial statements and offering memoranda.

During periods of market disruption including periods of significantly rising or high interest rates, rapidly widening credit spreads or illiquidity, it may be difficult to value certain of our securities, for example mortgage backed securities, if trading becomes less frequent or market data becomes less observable. In addition, there may be certain asset classes that were in active markets with significant observable data that become illiquid due to the current financial environment. In such cases, more securities may require more subjectivity and management judgment. As such, valuations may include inputs and assumptions that are less observable or require greater estimation as well as valuation methods which are more sophisticated or require greater estimation thereby resulting in values which may be less than the value at which the investments may be ultimately sold. Further, rapidly changing and unprecedented credit and equity market conditions could materially impact the valuation of securities as reported within our consolidated financial statements and the period-to-period changes in value could vary significantly. Decreases in value may have a significant and negative effect on our results of operations or financial condition.

Unexpected volatility or illiquidity associated with our alternative investment portfolio or in the financial markets could significantly and negatively affect our ability to conduct business.

Although we intend to reduce our target allocation to alternative investments to approximately 10-15% of total invested assets, our investment guidelines permit us to invest up to 15% of our investment portfolio in an alternative investment portfolio, which we principally invest through Max Diversified. Max Diversified invests in various investment funds, which follow investment strategies that involve investing in a broad range of investments, some of which may be volatile. We invest the remainder of our alternative investment portfolio through Max Bermuda, which makes strategic investments in

 

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reinsurance companies. Although we believe that our investment portfolio assists us in maintaining low overall volatility, the risks associated with our alternative investment portfolio may be substantially greater than the risks associated with fixed maturities investments. Further, because many of the alternative investment funds in which we invest impose limitations on the timing of withdrawals, or may suspend withdrawals for a period of time, we may be unable to withdraw our investment from a particular alternative investment fund on a timely basis. Unexpected volatility or illiquidity associated with our alternative investment portfolio could significantly and negatively affect our ability to conduct business.

The success of our investment strategy is also affected by general economic conditions, including volatility in interest rates and the price of securities. Unexpected volatility or illiquidity in the financial markets could significantly and negatively affect our ability to conduct business.

Deterioration in the public debt and equity markets could lead to additional investment losses.

The prolonged and severe disruptions in the public debt and equity markets, including among other things, widening of credit spreads, bankruptcies and government intervention in a number of large financial institutions, have resulted in significant realized and unrealized losses in our investment portfolio. For the year ended December 31, 2008, we incurred realized and unrealized investment losses, as described in Management’s Discussion and Analysis of Financial Condition and Results of Operations under Part II, Item 7 of this report. Subsequent to December 31, 2008, through the date of this report, conditions in the public debt and equity markets have continued to deteriorate and pricing levels have continued to decline. We continue to closely monitor current market conditions and evaluate the long term impact of this recent market volatility on all of its investment holdings. Depending on market conditions, we could incur additional realized and unrealized losses in future periods, which could have a significant and negative effect on our results of operations, financial condition and business. In addition, our reinsurers and retrocessionaires may be affected by such developments in the financial markets, which could adversely affect their ability to meet their obligations to us.

Losses due to defaults by others, including issuers of investment securities (which include structured securities such as commercial mortgage-backed securities and residential mortgage backed securities or other high yielding bonds) or reinsurance counterparties, could adversely affect the value of our investments, results of operations, financial condition or cash flows.

Issuers or borrowers whose securities or loans we hold, customers, reinsurers, clearing agents, exchanges, clearing houses and other financial intermediaries and guarantors may default on their obligations to us due to bankruptcy, insolvency, lack of liquidity, adverse economic conditions, operational failure, fraud or other reasons. Such defaults could have a significant and negative effect on our results of operations, financial condition and cash flows. Additionally, the underlying assets supporting our structured securities may deteriorate causing these securities to incur losses.

Our investment portfolio includes investment securities in the financial services sector that have experienced defaults recently. Further defaults could have a significant and negative effect on our results of operations, financial condition or cash flows.

The failure of our investment managers to perform their services in a manner consistent with our expectations and investment objectives, or the termination of our agreements with one or more of these investment managers, could significantly and negatively affect our ability to conduct business.

We have entered into an investment management agreement with General Re New England Asset Management, Inc., Conning Asset Management, Asset Allocation and

 

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Management, Deutsche Investment Management Americas Inc., Credit Agricole Asset Management and Hyperion Brookfield Asset Management, Inc., to manage portions of our aggregate fixed maturities portfolio. We have also entered into a customer agreement and trading authorization contract with Alstra, to act as a fund of funds advisor for our alternative investment portfolio invested through Max Diversified. Additionally, each underlying alternative investment fund manager has discretionary authority over the portion of our underlying alternative investment portfolio that it manages. As a result, the aggregate performance of our investment portfolio depends to a significant extent on the ability of our investment managers, and the investment managers of each underlying alternative investment fund, to select and manage appropriate investments. We cannot assure you that any or all of these investment managers will be successful in meeting our investment objectives, or that these investment managers will not terminate their respective agreements with our company. The failure of these investment managers to perform their services in a manner consistent with our expectations and investment objectives, or the termination of our agreements with one or more of these investment managers, could significantly and negatively affect our ability to conduct our business.

Our investment portfolios are managed by outside managers, therefore we do not directly control individual trading activity.

Our investment managers are contractually obligated to follow our investment guidelines, including requiring consent before selling any fixed maturity securities. However, we cannot assure you as to how our assets will be allocated among different securities or as to our level of risk exposure. Further, while the securities in our fixed maturities portfolio are all investment grade when originally purchased, these securities are still subject to credit risk, interest rate risk and currency risk. The volatility of our loss claims may force us to liquidate securities, which may cause us to incur capital losses. Investment losses could significantly decrease our book value, thereby affecting our ability to conduct business. Our risk of losses is more fully described under “—Deterioration in the public debt and equity markets could lead to additional investment losses.”

The success of our investment strategy is also affected by general economic conditions, including volatility in interest rates and the price of securities. Unexpected volatility or illiquidity in the financial markets could significantly and negatively affect our ability to conduct business.

Our investment portfolio may be subject to political risk.

Our investments, in both our alternative investment and fixed income portfolio, may be exposed to political risk to the extent that our investment advisors and underlying funds, on our behalf and subject to our investment guidelines, trade securities that are listed on various US and non-US exchanges and markets. The government in any of these jurisdictions could impose restrictions, regulations or permanent measures, which may have a significant and negative impact on the ability of our advisors to implement our fixed maturities or alternative investment strategies.

Members of our board of directors may have conflicts of interests.

Mr. Zack Bacon III, a member of our board of directors and its Finance and Investment Committee, is also a principal of Alstra. Given Alstra’s role as the fund advisor of Max Diversified, Mr. Bacon may have interests that are different from, or in addition to, the interests of our shareholders generally.

 

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Risks Related to Regulation of Our Company

The regulatory systems under which we operate, and potential changes thereto, could have a significant and negative effect on our business.

General. Our subsidiaries may not be able to obtain or maintain necessary licenses, permits, authorizations or accreditations in locales where we currently engage or intend to engage in business, or we may only be able to do so at a significant cost. In addition, we may not be able to comply fully with, or obtain appropriate exemptions from, the wide variety of laws and regulations applicable to reinsurance and insurance companies. Failure to comply with or to obtain appropriate authorizations and/or exemptions under any applicable laws could result in loss of revenue, fines or other sanctions to us. In addition, changes in laws or regulations to which our subsidiaries are subject could have a significant and negative effect on our business.

Max Bermuda. Generally, Bermuda insurance statutes and regulations applicable to Max Bermuda are less restrictive than those that would be applicable to Max Bermuda if it was subject to the insurance laws of any state in the United States. In the past, there have been Congressional and other initiatives in the United States regarding proposals to supervise and regulate insurers domiciled outside the United States. If in the future Max Bermuda became subject to any insurance laws of the United States or any state thereof or of any other jurisdiction, we cannot assure you that we would be able to comply with these laws or that complying with these laws would not significantly and negatively affect our business or results of operations.

Max Specialty and Max America. Max Specialty is licensed in Delaware as a property and casualty insurer and is currently listed or authorized as an eligible surplus lines insurer in 49 states which permits it to conduct business in all 50 U.S. states. Max America is licensed as a property and casualty insurer in all 50 U.S. states. Our business is subject to varying degrees of regulation and supervision in each of these jurisdictions. The laws and regulations of the jurisdictions in which Max Specialty and Max America are domiciled require, among other things, that Max Specialty and Max America maintain minimum levels of statutory capital, surplus and liquidity, meet solvency standards and submit to periodic examinations of its financial condition. Specifically, Max USA and its subsidiaries are subject to risk-based capital standards and other minimum capital and surplus requirements imposed by state laws, including the laws of their states of domicile (Delaware and Indiana). The risk-based capital standards, or RBC standards, based upon the Risk-Based Capital Model Act adopted by the National Association of Insurance Commissioners, or NAIC, require Max USA and its subsidiaries to report their results of RBC calculations to state insurance departments and the NAIC. These RBC standards provide for different levels of regulatory attention depending upon the ratio of an insurance company’s total adjusted capital, as calculated in accordance with NAIC guidelines, to its authorized control level RBC limits. These laws and regulations also sometimes restrict payments of dividends and reductions of capital. These statutes, regulations and policies may also restrict the ability of Max Specialty or Max America to write insurance policies, to make certain investments and to distribute funds.

The purpose of insurance laws and regulations generally is to protect insureds, not our creditors or shareholders. Compliance with insurance statutes and regulations or securing appropriate exemptions from these statutes and regulations may present challenges to Max Specialty and Max America. Failure to comply with or to obtain appropriate authorizations and/or exemptions under any applicable laws could result in restrictions on Max Specialty’s and Max America’s ability to do business or undertake activities that are regulated in one or more of the jurisdictions in which Max Specialty or Max America conduct business and could subject us to fines and other sanctions. Any failure to meet applicable RBC requirements or minimum statutory capital requirements could subject Max USA or its subsidiaries to further examination or corrective action by state regulators, including limitations on our writing of additional business or engaging in finance activities, state supervision or liquidation. Any changes in existing RBC requirements or minimum statutory

 

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capital requirements may require us to increase our statutory capital levels, which we might be unable to do. In addition, changes in the laws or regulations to which Max Specialty and Max America are subject could have an adverse effect on their business. Moreover, the NAIC, which is the organization of insurance regulators from the 50 U.S. states, the District of Columbia and the 4 U.S. territories, as well as the state insurance regulators, regularly reexamine existing laws and regulations.

Max at Lloyd’s. The business of the Syndicates is subject to regulation by the FSA, as established by the FSA through its regulation of the managing agent of the Syndicates and its regulation of the Society of Lloyd’s itself. Under the Financial Services and Markets Act 2000, the FSA has broad powers of intervention. The FSA requires that the managing agent of the Syndicates carries out a capital assessment of the Syndicates in order to determine whether any additional capital should be held by the Syndicates on account of any particular risks arising from its business or operational infrastructure. This assessment (known as an “individual capital assessment”) is reviewed and may be challenged by Lloyd’s.

The business of the Syndicates is also subject to regulation by the Council of Lloyd’s, and both the Max Corporate Vehicles and Max at Lloyd’s, are also subject to the rules imposed under regulations and byelaws made, and amended from time to time, by the Council of Lloyd’s under powers conferred on it by Lloyd’s Act 1982. Under these rules, Lloyd’s prescribes, in respect of its managing agents and corporate members, certain minimum standards relating to their management and control, solvency and various other requirements. The FSA monitors the Lloyd’s market to ensure that managing agents’ compliance with the systems and controls prescribed by Lloyd’s enables those managing agents to comply with its relevant requirements. If it appears to the FSA that either Lloyd’s is not fulfilling its regulatory responsibilities, or that managing agents are not complying with the applicable regulatory sections or market requirements prescribed by Lloyd’s, the FSA may exercise broad powers of intervention. Failure to comply with these regulatory requirements or diverging regulatory guidance by the FSA and Lloyd’s could have a significant and negative effect on our business.

Max Europe. Our operating subsidiaries, Max Insurance Europe and Max Re Europe, are subject to regulation by the IFSRA. Max Insurance Europe must comply with the Irish Insurance Acts 1909 to 2000, regulations promulgated thereunder, regulations relating to insurance business promulgated under the European Communities Act 1972, the Irish Central Bank Acts 1942 to 1998 as amended, regulations promulgated thereunder and directions and guidelines, and codes of conduct, issued by IFSRA (the Insurance Acts and Regulations). Max Re Europe must comply with the European Communities (Reinsurance) Regulations, 2006 and rules made thereunder and insofar as relevant to reinsurance the Irish Insurance Acts 1909 to 2000, regulations promulgated thereunder, regulations relating to reinsurance business promulgated under the European Communities Act 1972, the Irish Central Bank Acts 1942 to 1998 as amended, regulations promulgated thereunder and directions, papers and guidelines and codes of conduct issued by IFSRA. Failure to meet with regulations promulgated by the IFSRA could lead to severe regulatory action.

Other. We do not believe we currently, nor do we intend to, maintain an office or solicit, advertise, settle claims or conduct other insurance activities in any jurisdiction other than where we are properly authorized or admitted. However, we cannot assure you that insurance regulators in a jurisdiction in which we are not licensed will not review our activities or, that if there were such a review, that they would not be successful in claiming that we are subject to the licensing requirements of the particular jurisdiction. If we were to become subject to the laws and regulations of any other jurisdiction in the future, we may consider various alternatives to our operations, including:

 

   

modifying or restricting the manner in which we conduct our business in order to avoid being subject to, and the necessity of complying with, the laws and regulations; or

 

   

obtaining licenses to enable us to transact reinsurance or insurance in the particular jurisdiction.

 

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Certain of our subsidiaries are subject to minimum capital and surplus requirements, and our failure to meet these requirements could subject us to regulatory action.

Max USA and its subsidiaries are subject to risk-based capital standards and other minimum capital and surplus requirements imposed by state laws, including the laws of their states of domicile (Delaware and Indiana). The risk-based capital standards, or RBC standards, are based upon the Risk-Based Capital Model Act adopted by the National Association of Insurance Commissioners, or NAIC, require Max USA and its subsidiaries to report their results of RBC calculations to state insurance departments and the NAIC. These RBC standards provide for different levels of regulatory attention depending upon the ratio of an insurance company’s total adjusted capital, as calculated in accordance with NAIC guidelines, to its authorized control level RBC limits. In addition, Max USA and its subsidiaries are subject to minimum capital requirements imposed under the laws of some of the states in which it conducts business.

Max Bermuda is also subject to subject to risk-based capital standards and minimum capital and surplus requirements imposed by the Bermuda Monetary Authority. Generally, reinsurers are required to hold capital determined in part using the Bermuda Solvency Capital Requirement or an alternative model approved by the Bermuda Monetary Authority.

Max Insurance Europe is required to maintain statutory reserves, particularly in respect of underwriting liabilities and a solvency margin as provided for in the Insurance Acts and Regulations. Assets constituting statutory reserves must comply with admissibility, diversification, localization and currency matching rules. Statutory reserves must be actuarially certified annually.

Max Re Europe is required to maintain statutory reserves, particularly in respect of underwriting liabilities and a solvency margin as provided for in the European Communities (Reinsurance) Regulations, 2006. Assets constituting statutory reserves must comply with certain principles including obligations to diversify the assets, to secure sufficiency, liquidity, security, quality, profitability and currency matching of investments. Statutory reserves must be actuarially certified annually.

Max at Lloyd’s underwriting activities are regulated by the FSA as well as being subject to the Lloyd’s “franchise.” Both the FSA and Lloyd’s have powers to remove their respective authorization to manage Lloyd’s syndicates. Lloyd’s approves annually the business plan of each of the Syndicates along with any subsequent material changes, and the amount of capital required to support those plans. The FSA requires that the managing agent of the Syndicates carries out a capital assessment of the Syndicates in order to determine whether any additional capital should be held by the Syndicates on account of any particular risks arising from its business or operational infrastructure. This assessment (known as an “individual capital assessment”) is reviewed and may be challenged by Lloyd’s.

Any failure to meet applicable requirements or minimum statutory capital requirements could subject us to further examination or corrective action by regulators, including limitations on our writing of additional business or engaging in finance activities, supervision or liquidation. Further, any changes in existing risk based capital requirements or minimum statutory capital requirements may require us to increase our statutory capital levels, which we might be unable to do.

Political, regulatory and industry initiatives could adversely affect our business.

The insurance and reinsurance regulatory framework is subject to heavy scrutiny by the U.S. and individual state governments as well as an increasing number of international authorities. Government regulators are generally concerned with the protection of

 

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policyholders to the exclusion of other constituencies, including shareholders. Increasingly, governmental authorities in both the United States and worldwide seem to be interested in the potential risks posed by the insurance and reinsurance industry as a whole, and to commercial and financial systems in general. While we do not believe these inquiries have identified meaningful new risks posed by the insurance and reinsurance industry, and we cannot predict the exact nature, timing or scope of possible governmental initiatives, we believe it is likely there will be increased regulatory intervention in our industry in the future. For example, the U.S. federal government has increased its scrutiny of the insurance regulatory framework in recent years, and some state legislators have considered or enacted laws that will alter and likely increase state regulation of insurance and reinsurance companies and holding companies. Moreover, the NAIC regularly reexamines existing laws and regulations.

For example, we could be adversely affected by proposals to:

 

   

provide insurance and reinsurance capacity in markets and to consumers that we target, such as the legislation enacted in Florida in early 2007;

 

   

require our participation in industry pools and guaranty associations;

 

   

increasingly mandate the terms of insurance and reinsurance policies; or

 

   

disproportionately benefit the companies of one country over those of another.

The growth of our primary insurance business, which is regulated more comprehensively than reinsurance, increases our exposure to adverse political, judicial and legal developments. Moreover, our exposure to potential regulatory initiatives could be heightened by the fact that our principal operating company is domiciled in, and operate exclusively from, Bermuda. For example, Bermuda, a small jurisdiction, may be disadvantaged in participating in global or cross border regulatory matters as compared with larger jurisdictions such as the United States or the leading European Union countries. In addition, Bermuda, which is currently an overseas territory of the United Kingdom, may consider changes to its relationship with the United Kingdom in the future. These changes could significantly and negatively affect Bermuda’s position in respect of future regulatory initiatives, which could adversely impact us commercially.

Changes in current accounting practices and future pronouncements may materially impact our reported financial results.

Unanticipated developments in accounting practices may require us to incur considerable additional expenses to comply with such developments, particularly if it is required to prepare information relating to prior periods for comparative purposes or to apply the new requirements retroactively. The impact of changes in current accounting practices and future pronouncements cannot be predicted but may affect the calculation of net income, net equity, and other relevant financial statement line items. In particular, recent guidance and ongoing projects put in place by standard setters globally have indicated a possible move away from the current insurance accounting models toward more “fair value” based models which could introduce significant volatility in the earnings of insurance industry participants. Furthermore, rules relating to certain accounting practices in the financial guarantee insurance and reinsurance industry are currently being reviewed by applicable regulatory bodies and any changes required by that review could have a material effect on the reported operating results and financial condition of the industry or particular market participants.

The reinsurance to close of an underwriting year at Lloyd’s does not discharge the liability of the members of the reinsured syndicate.

The reinsurance to close of an underwriting year on which a corporate member participates does not legally discharge the member from liability for the insurance

 

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obligations of the underwriting year. Instead, it provides to the member a full indemnity from the reinsuring underwriting year in respect of these obligations. Therefore, even after all the underwriting years on which a member has participated have been reinsured to close, the member is required to stay in existence and to remain a non-underwriting member of Lloyd’s. Accordingly, although Lloyd’s will release the member’s Funds at Lloyd’s, there nevertheless continues to be an administrative and financial burden for corporate members between the time of reinsurance to close of the underwriting years on which they participated and the time their insurance obligations are extinguished.

Continued or increased levies by Lloyd’s for the Lloyd’s Central Fund and cash calls for trust fund deposits would materially and adversely affect us.

We participate in Lloyd’s through the Syndicates. Whenever any member of Lloyd’s is unable to pay its debts to policyholders or to meet certain other obligations, these debts or obligations may be payable by the Lloyd’s Central Fund.

The Lloyd’s Central Fund protects Lloyd’s policyholders against the failure of a member of Lloyd’s to meet its obligations. The Central Fund is a mechanism that, in effect, “mutualizes” unpaid liabilities among all members, whether individual or corporate. The fund is available to back Lloyd’s policies issued after 1992.

Lloyd’s requires members to contribute to the Central Fund in the form of an annual contribution and by making, through the syndicates on which they participate, annual subordinated loans to Lloyd’s whose proceeds are held in the Central Fund. The Council of Lloyd’s has discretion to require members to make further Central Fund contributions of up to 3% of their underwriting capacity in any one year. Policies issued in syndicate years that have not been closed before 1993 have been reinsured by Equitas, an independent insurance company authorized by the FSA. However, if Equitas were to fail or otherwise be unable to meet all of its obligations the Central Fund might be applied to meet liabilities to policyholders (generally following prior approval of members of Lloyd’s in general meeting). In that case, the Council of Lloyd’s may resolve to impose a special or additional levy on the existing members, effectively requiring them to fund the performance of those obligations.

Additionally, Lloyd’s insurance and reinsurance business is subject to local regulation. Regulators in the United States require Lloyd’s to maintain certain minimum deposits in trust funds as protection for policyholders in the United States. These deposits may be used to cover liabilities in the event of a major claim arising in the United States and Lloyd’s may require the MCCs to satisfy cash calls to meet claims payment obligations and to maintain minimum trust fund amounts.

The failure of Lloyd’s to satisfy the FSA’s solvency requirements could result in limitations on our ability to underwrite business.

The FSA requires Lloyd’s to satisfy an annual solvency test and to maintain solvency on a continuous basis. The solvency position of each member, and of Lloyd’s as a whole, is monitored on a regular basis. The solvency requirement in essence measures whether Lloyd’s has sufficient assets in the aggregate to meet all outstanding liabilities of its members, both current and in run-off, plus a margin of solvency. If Lloyd’s fails to satisfy the test in any year, the FSA may require Lloyd’s to cease trading and/or its members to cease or reduce underwriting.

An increase in the charges paid by Max at Lloyd’s and the Max Corporate Capital Vehicles to participate in the Lloyd’s market could adversely affect their financial and operating results.

Lloyd’s imposes a number of charges on businesses operating in the Lloyd’s market, including, for example, annual subscriptions and central fund contributions for members and policy signing charges. The bases and amounts of charges may be varied by Lloyd’s and could adversely affect Max at Lloyd’s and the Max Corporate Capital Vehicles.

 

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Risks Related to Our Common Shares

Our common shares are subject to limitations on ownership and voting rights.

Under our bye-laws, our directors or their designees are authorized to decline to register any transfer of our common shares if they have any reason to believe that such transfer would result in a shareholder owning, directly or indirectly, 9.5% or more of our common shares. Similar restrictions apply to issuances and repurchases of our common shares by us. Our directors or their designees also may, in their absolute discretion, decline to register the transfer of any common shares if they have reason to believe that such transfer may expose us, our subsidiaries, any shareholder or any person ceding insurance to us to adverse tax or regulatory treatment in any jurisdiction. Our board of directors expects to apply these restrictions fully except with respect to the purchase and sale of our common shares on the Nasdaq Global Select Market. Although our board of directors will not decline to register any transfer of our common shares on the Nasdaq Global Select Market, it will require the transferee to surrender the common shares to an agent designated by the board if the transfer results in the transferee owning, directly or indirectly, 9.5% or more of any class of our capital stock or causes our board to have reason to believe that the transfer may expose us, any subsidiary or shareholder or any person insured or reinsured or proposing to be insured or reinsured to adverse tax or regulatory treatment in any jurisdiction. A transferor of our common shares will be deemed to own those shares for dividend, voting and reporting purposes until a transfer of such common shares has been registered on our Register of Members. We are authorized to request information from any holder or prospective acquiror of our common shares as necessary to effect registration of any such transaction and may decline to register any such transaction if complete and accurate information is not received as requested.

In addition, our bye-laws generally provide that any shareholder owning, directly or by attribution, 9.5% or more of our common shares will have the voting rights attached to such common shares reduced so that it may not exercise more than approximately 9.5% or more of the total voting rights. Because of the attribution provisions of the Internal Revenue Code and the rules of the SEC regarding determination of beneficial ownership, this requirement may have the effect of reducing the voting rights of a shareholder whether or not that shareholder directly holds of record 9.5% or more of our common shares. Further, our directors or their designees have the authority to request from any shareholder certain information for the purpose of determining whether that shareholder’s voting rights are to be reduced. Failure to respond to such a notice, or submitting incomplete or inaccurate information, gives the directors or their designees discretion to disregard all votes attached to such shareholder’s common shares.

Furthermore, applicable U.S. state insurance laws prevent any person from acquiring control of us, Max USA, Max Specialty or Max America, unless the person has filed a notification with the specified information with the applicable state insurance commissioner and has obtained his approval. Under the Delaware and Indiana insurance holding company system laws, acquiring 10% or more of the voting stock of an insurance company or any of its parent companies is presumptively considered a change of control, although such presumption may be rebutted. Accordingly, any person who acquires, directly or indirectly, 10% or more of the voting securities of Max Capital without the prior approval of the Delaware or Indiana Insurance Commissioner will be in violation of these laws and may be subject to injunctive action requiring the disposition or seizure of those securities by the applicable state insurance commissioner. In addition, many U.S. state insurance laws require prior notification of state insurance departments of a change in control of a non-domiciliary insurance company doing business in that state. While these pre-notification statutes do not authorize the state insurance departments to disapprove a change of control, they authorize regulatory action in the affected state if particular conditions exist such as undue market concentration. Any future transactions that would constitute a change in control of Max Capital may require prior notification in those that have adopted pre-acquisition notification laws.

 

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U.S. persons who own our common shares may have more difficulty in protecting their interests than U.S. persons who are shareholders of a U.S. corporation.

The Bermuda Companies Act, which applies to us, differs in certain material respects from laws generally applicable to U.S. corporations and their shareholders. Set forth below is a summary of certain significant provisions of the Bermuda Companies Act, including modifications adopted pursuant to our bye-laws, applicable to us which differ in certain respects from provisions of Delaware corporate law. Because the following statements are summaries, they do not discuss all aspects of Bermuda law that may be relevant to us and our shareholders.

Interested Directors. Bermuda law provides that if a director has a personal interest in a transaction to which the company is also a party and if the director discloses the nature of this personal interest at the first opportunity, either at a meeting of directors or in writing to the directors, then the company will not be able to declare the transaction void solely due to the existence of that personal interest and the director will not be liable to the company for any profit realized from the transaction. In addition, Bermuda law and our bye-laws provide that, after a director has made the declaration of interest referred to above, he is allowed to be counted for purposes of determining whether a quorum is present and to vote on a transaction in which he has an interest, unless disqualified from doing so by the chairman of the relevant board meeting. Under Delaware law such transaction would not be voidable if:

 

   

the material facts as to such interested director’s relationship or interests are disclosed or are known to the board of directors and the board in good faith authorizes the transaction by the affirmative vote of a majority of the disinterested directors;

 

   

such material facts are disclosed or are known to the stockholders entitled to vote on such transaction and the transaction is specifically approved in good faith by vote of the majority of shares entitled to vote thereon; or

 

   

the transaction is fair as to the corporation as of the time it is authorized, approved or ratified.

Under Delaware law, such interested director could be held liable for a transaction in which such director derived an improper personal benefit.

Mergers and Similar Arrangements. The amalgamation of a Bermuda company with another company or corporation (other than certain affiliated companies) requires the amalgamation agreement to be approved by the company’s board of directors and by its shareholders. We may, with the approval of a majority of votes cast at a general meeting of our shareholders at which a quorum is present, amalgamate with another Bermuda company or with a body incorporated outside Bermuda. In the case of an amalgamation, a shareholder may apply to a Bermuda court for a proper valuation of such shareholder’s shares if such shareholder is not satisfied that fair value has been paid for such shares. Under Delaware law, with certain exceptions, a merger, consolidation or sale of all or substantially all the assets of a corporation must be approved by the board of directors and a majority of the outstanding shares entitled to vote thereon. Under Delaware law, a stockholder of a corporation participating in certain major corporate transactions may, under certain circumstances, be entitled to appraisal rights pursuant to which such stockholder may receive cash in the amount of the fair value of the shares held by such stockholder (as determined by a court) in lieu of the consideration such stockholder would otherwise receive in the transaction.

Shareholders’ Suit. The rights of shareholders under Bermuda law are not as extensive as the rights of shareholders under legislation or judicial precedent in many United States jurisdictions. Class actions and derivative actions are generally not available to shareholders under the laws of Bermuda. However, the Bermuda courts ordinarily would be expected

 

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to follow English case law precedent, which would permit a shareholder to commence an action in the name of the company to remedy a wrong done to the company where the act complained of is alleged to be beyond the corporate power of the company, is illegal or would result in the violation of our memorandum of association or bye-laws. Furthermore, consideration would be given by the court to acts that are alleged to constitute a fraud against the minority shareholders or where an act requires the approval of a greater percentage of our shareholders than actually approved it. The winning party in such an action generally would be able to recover a portion of attorneys’ fees incurred in connection with such action. Our bye-laws provide that shareholders waive all claims or rights of action that they might have, individually or in the right of the company, against any director or officer for any act or failure to act in the performance of such director’s or officer’s duties, except with respect to any fraud or dishonesty of such director or officer. Class actions and derivative actions generally are available to stockholders under Delaware law for, among other things, breach of fiduciary duty, corporate waste and actions not taken in accordance with applicable law. In such actions, the court has discretion to permit the winning party to recover attorneys’ fees incurred in connection with such action.

Indemnification of Directors. We may indemnify our directors or officers in their capacity as directors or officers of any loss arising or liability attaching to them by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust of which a director or officer may be guilty in relation to us other than in respect of his own fraud or dishonesty. Under Delaware law, a corporation may indemnify a director or officer of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in defense of an action, suit or proceeding by reason of such position if such director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, such director or officer had no reasonable cause to believe his or her conduct was unlawful.

There are anti-takeover provisions contained in our bye-laws that could impede an attempt to replace or remove our management or delay or prevent the sale of our company, which could diminish the value of our common shares.

Our bye-laws contain provisions that could delay or prevent changes in our management or a change of control that a shareholder might consider favorable. For example, they may prevent a shareholder from receiving the benefit from any premium over the market price of our common shares offered by a bidder in a potential takeover. Even in the absence of a takeover attempt, these provisions may adversely affect the prevailing market price of our common shares if they are viewed as discouraging takeover attempts in the future. For example, the board of directors’ authority as expressed in the bye-laws permits the board to issue up to 20,000,000 preferred shares and to fix the price, rights, preferences, privileges and restrictions of the preferred shares without any further vote or action by our shareholders. The issuance of preferred shares may delay or prevent a change in control transaction by making it more difficult for a bidder to acquire enough votes to influence or control our board of directors and the management of our company.

Our bye-laws contain other provisions that could have a similar effect, including:

 

   

election of our directors is staggered, meaning that the members of only one of three classes of our directors are elected each year;

 

   

shareholders have limited ability to remove directors;

 

   

shareholders must give advance notice to nominate directors at shareholder meetings;

 

   

the total voting power of any U.S. shareholder owning 9.5% or more of our common shares is automatically reduced to less than 9.5% of the total voting power of our capital stock, unless the reduction is otherwise waived by the unanimous consent of our board of directors; and

 

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our directors may, in their absolute discretion, decline to register the transfer of any common shares if they believe that the transfer may expose us, any subsidiary, shareholder or client to adverse tax or regulatory treatment or if they believe that registration of the transfer under any federal or state securities law or under the laws of any other jurisdiction is required and the registration has not yet been effected.

A shareholder may be required to sell its shares of Max Capital.

Our bye-laws provide that we have the option, but not the obligation, to require a shareholder to sell its common shares for their fair market value to us, to other shareholders or to third parties if our board of directors determines that ownership of our common shares by such shareholder may result in adverse tax, regulatory or legal consequences to us, any of our subsidiaries or any of our shareholders and that such sale is necessary to avoid or cure such adverse consequences.

You may have difficulty effecting service of process on us or enforcing judgments against us in the United States.

We are incorporated pursuant to the laws of Bermuda and our business is based in Bermuda. In addition, certain of our directors and officers reside outside the United States, and all or a substantial portion of our assets and the assets of such persons are located in jurisdictions outside the United States. Accordingly, we have been advised that there is doubt as to whether:

 

   

a holder of our common shares would be able to enforce, in the courts of Bermuda, judgments of U.S. courts based upon the civil liability provisions of the U.S. federal securities laws;

 

   

a holder of our common shares would be able to bring an original action in the Bermuda courts to enforce liabilities against us or our directors and officers who reside outside the United States, based solely upon U.S. federal securities laws.

We have also been advised that there is no treaty in effect between the United States and Bermuda providing for the enforcement of judgments of U.S. courts, and there are grounds upon which Bermuda courts may not enforce judgments of U.S. courts. Further, certain remedies available under U.S. federal and state laws, including U.S. federal securities laws, may not be available under Bermuda law. Because judgments of U.S. courts are not automatically enforceable in Bermuda, it may be difficult for you to recover against us based upon such judgments.

Risks Related to Taxation

Max Capital and its non-U.S. subsidiaries may be subject to U.S. federal income taxation.

If Max Capital or any of our non-U.S. subsidiaries were treated as engaged in a trade or business in the United States, that entity could be subject to U.S. income and branch profits tax on all or a portion of the income that is effectively connected with such trade or business. We intend to operate in a manner such that neither Max Capital nor any of our non-U.S. subsidiaries, other than the Max Corporate Capital Vehicles (which are considered to have a taxable presence in the United States pursuant to a closing agreement between the IRS and the Corporation of Lloyd’s), MCS Ireland and MCS BDA , will be treated as being engaged in a trade or business in the United States. Accordingly, we do not believe that Max Capital or any of our non-U.S. subsidiaries, other than the Max Corporate Capital Vehicles, MCS Ireland and MCS BDA, are or will be subject to U.S. federal income taxation on net income. However, this determination is essentially factual in nature, and there are no definitive standards provided by the Internal Revenue Code, regulations or court decisions as to what activities constitute being engaged in a trade or

 

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business within the United States. Accordingly, there can be no assurance that the U.S. Internal Revenue Service, or IRS, would not find that Max Capital or any of our non-U.S. subsidiaries, other than the Max Corporate Capital Vehicles, MCS Ireland and MCS BDA, is engaged in a trade or business in the United States. Any such income or branch profits tax could materially adversely affect our results of operations.

Even if Max Capital and our non-U.S. subsidiaries, other than the Max Corporate Capital Vehicles, MCS Ireland and MCS BDA, are not treated as being engaged in a trade or business in the United States, we may be subject to U.S. federal income tax on certain fixed or determinable annual or periodical gains, profits, and income (such as dividends and certain interest on investments) derived from sources within the United States. In addition, we will be subject to a U.S. excise tax that is imposed on reinsurance and insurance premiums received with respect to risks or insureds located in the United States.

Changes in U.S. federal income tax law could materially adversely affect an investment in our common shares.

Legislation is periodically introduced in the U.S. Congress intended to eliminate some perceived tax advantages of companies (including insurance and reinsurance companies) that have legal domiciles outside the United State but have certain U.S. connections. It is possible that legislative proposals could have an adverse impact on us or our shareholders.

Shareholders who are U.S. persons may recognize income for U.S. federal income tax purposes on our undistributed earnings.

Shareholders who are U.S. persons may recognize income for U.S. federal income tax purposes on our undistributed earnings if we are treated as a passive foreign investment company or a controlled foreign corporation or if we have generated more than a permissible amount of related person insurance income. In addition, gain on the disposition of our common shares may be treated as dividend income.

Passive Foreign Investment Company. In order to avoid significant potential adverse U.S. federal income tax consequences for any U.S. person who owns our common shares, we must not constitute a passive foreign investment company in any year in which such U.S. person is a shareholder. Those consequences could include increasing the tax liability of the investor, accelerating the imposition of the tax and causing a loss of the basis step-up on the death of the investor. In general, a non-U.S. corporation is a passive foreign investment company for a taxable year if 75% or more of its income constitutes passive income or 50% or more of its assets produce passive income. Passive income generally includes interest, dividends and other investment income. However, passive income does not include income derived in the active conduct of an insurance business by a company that is predominantly engaged in an insurance business. This exception is intended to ensure that income derived by a bona fide insurance company is not treated as passive income, except to the extent such income is attributable to financial reserves in excess of the reasonable needs of the insurance business. Currently, we do not believe that we maintain financial reserves in excess of the reasonable needs of our insurance business. If, because of a change in the business plan or for any other reason, we maintain excess financial reserves, we may be characterized as a passive foreign investment company. Although Max Capital’s insurance and reinsurance subsidiaries, which we refer to as the Insurance Subsidiaries, expect to engage predominantly in insurance activities that involve significant risk transfer and do not expect to have financial reserves in excess of the reasonable needs of their insurance businesses, we could nonetheless be deemed to be a passive foreign investment company. We may be characterized as a passive foreign investment company if any Insurance Subsidiary engages in certain non-traditional insurance activities that do not involve sufficient transfer of risk or if any company maintains financial reserves in excess of the reasonable needs of its respective insurance business. In addition, there may be other circumstances that may cause us not to satisfy the exception for insurance companies. For example, the IRS may disagree with our interpretation of the current scope of the active

 

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insurance company exception and successfully challenge our position that we qualify for the exception. In addition, the IRS may issue regulatory or other guidance that applies on either a prospective or retroactive basis under which we may fail to qualify for the active insurance company exception. While we do not believe that we are or will be a passive foreign investment company, we cannot assure shareholders that the IRS or a court will concur that we are not a passive foreign investment company with respect to any given year. If we were treated as a passive foreign investment company, the availability of the mark to market election is uncertain for shareholders who are U.S. persons. This election may under certain circumstances mitigate the negative tax consequences of an investment in a passive foreign investment company.

Controlled Foreign Corporation. Each U.S. person who, directly, indirectly, or through attribution rules, owns 10% or more of our common shares should consider the possible application of the controlled foreign corporation rules.

Each U.S. 10% shareholder of a controlled foreign corporation on the last day of the controlled foreign corporation’s taxable year generally must include in its gross income for U.S. federal income tax purposes its pro-rata share of the controlled foreign corporation’s subpart F income, even if the subpart F income has not been distributed. In general, a non-U.S. insurance company is treated as a controlled foreign corporation only if such U.S. 10% shareholders collectively own more than 25% of the total combined voting power or total value of the company’s capital stock for an uninterrupted period of 30 days or more during any year. We believe that, because of the anticipated dispersion of share ownership among holders and because of the restrictions in our bye-laws on transfer, issuance or repurchase of our common shares, shareholders will not be subject to treatment as U.S. 10% shareholders of a controlled foreign corporation. In addition, because under our bye-laws no single shareholder is permitted to exercise 9.5% or more of the total combined voting power, unless such provision is waived by the unanimous consent of the board of directors, we believe that our shareholders should not be viewed as U.S. 10% shareholders of a controlled foreign corporation for purposes of the controlled foreign corporation rules. We cannot assure shareholders, however, that these rules will not apply to our shareholders.

Related Person Insurance Income. If any Insurance Subsidiary’s related person insurance income determined on a gross basis were to equal or exceed 20% of its gross insurance income in any taxable year and direct or indirect insureds and persons related to such insureds were directly or indirectly to own more than 20% of the voting power or value of such Insurance Subsidiary’s capital stock, then a U.S. person who owns our common shares directly or indirectly on the last day of the taxable year most likely would be required to include in income for U.S. federal income tax purposes the U.S. person’s pro-rata share of such Insurance Subsidiary’s related person insurance income for the taxable year, determined as if such related person insurance income were distributed proportionately to such U.S. person at that date. Related person insurance income is generally underwriting profits and related investment income attributable to insurance or reinsurance policies where the direct or indirect insureds are direct or indirect U.S. shareholders or are related to such direct or indirect U.S. shareholders. We do not expect any Insurance Subsidiary will knowingly enter into insurance or reinsurance agreements in which, in the aggregate, the direct or indirect insureds are, or are related to, owners of 20% or more of our common shares. Currently, we do not believe that the 20% gross insurance income threshold has been met. However, we cannot assure shareholders that this is or will continue to be the case. Consequently, we cannot assure shareholders that a person who is a direct or indirect U.S. shareholder will not be required to include amounts in its income in respect of related person insurance income in any taxable year.

If a U.S. shareholder is treated as disposing of shares in a non-U.S. insurance corporation that has related person insurance income and in which U.S. persons own 25% or more of the voting power or value of the company’s capital stock, any gain from the disposition will generally be treated as dividend income to the extent of the U.S.

 

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shareholder’s portion of the corporation’s undistributed earnings and profits that were accumulated during the period that the U.S. shareholder owned the shares. In addition, such a shareholder will be required to comply with certain reporting requirements, regardless of the amount of shares owned by the direct or indirect U.S. shareholder. These rules should not apply to dispositions of our common shares because Max Capital is not itself directly engaged in the insurance business and because proposed U.S. Treasury regulations applicable to this situation appear to apply only in the case of shares of corporations that are directly engaged in the insurance business. We cannot assure shareholders, however, that the IRS will interpret the proposed regulations in this manner or that the proposed regulations will not be promulgated in final form in a manner that would cause these rules to apply to dispositions of our common shares.

U.S. tax-exempt organizations who own our common shares may recognize unrelated business taxable income.

A U.S. tax-exempt organization may recognize unrelated business taxable income if a portion of our subpart F insurance income is allocated to the organization. In general, subpart F insurance income will be allocated to a U.S. tax-exempt organization if either we are a controlled foreign corporation and the tax-exempt shareholder is a U.S. 10% shareholder or there is related person insurance income and certain exceptions do not apply. Although we do not believe that any U.S. persons will be allocated subpart F insurance income, we cannot assure shareholders that this will be the case.

Changes in U.S. tax laws may be retroactive and could subject us and/or U.S. persons who own our common shares to U.S. income taxation on our undistributed earnings.

The tax laws and interpretations regarding whether a company is engaged in a U.S. trade or business, is a passive foreign investment company, is a controlled foreign corporation, or has related party insurance income are subject to change, possibly on a retroactive basis. There are currently no regulations regarding the application of the passive foreign investment company rules to an insurance company but new regulations or pronouncements may be forthcoming. It is possible that the IRS may issue new regulations or pronouncements interpreting or clarifying such rules. We are not able to predict if, when or in what form any such guidance will be provided and whether such guidance will have a retroactive effect.

We may become subject to taxes in Bermuda after March 28, 2016, which would have a significant and negative effect on our business and results of operations.

Under current Bermuda law, there is no income, corporate, profits, withholding, capital gains or capital transfer tax payable by Max Capital, Max Bermuda, Max Managers or Max Diversified. Each of these entities has obtained from the Minister of Finance under The Exempted Undertakings Tax Protection Act 1966, as amended, an assurance that, in the event that Bermuda enacts legislation imposing tax computed on profits, income, any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance, then the imposition of any such tax shall not be applicable to any of these entities, their operations or their shares, debentures or other obligations, until March 28, 2016. Given the limited duration of the Minister of Finance’s assurance we cannot be certain that we will not be subject to any Bermuda taxes after March 28, 2016. Our business and results of operations would be significantly and negatively affected if we were to become subject to taxes in Bermuda.

The impact of Bermuda’s commitment to the Organization for Economic Cooperation and Development to eliminate harmful tax practices is uncertain and could adversely affect our tax status in Bermuda.

The Organization for Economic Cooperation and Development, which is commonly referred to as the OECD, has published reports and launched a global dialogue among

 

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member and non-member countries on measures to limit harmful tax competition. These measures are largely directed at counteracting the effects of tax havens and preferential tax regimes in countries around the world. In the OECD’s report dated April 18, 2002 (as updated periodically), Bermuda was not listed as an uncooperative tax haven jurisdiction because it had previously committed to eliminate harmful tax practices and to embrace international tax standards for transparency, exchange of information and the elimination of any aspects of the regimes for financial and other services that attract business with no substantial domestic activity. We are not able to predict what changes will arise from the commitment or whether such changes will subject us to additional taxes.

U.S. legislative action or other changes in U.S. tax law might adversely affect us.

The tax treatment of non-U.S. insurance companies and their U.S. insurance subsidiaries has been the subject of discussion and legislative proposals in the U.S. Congress and by the U.S tax authorities. We cannot assure you that interpretations or legislative action will not increase the amount of U.S. tax payable by our non-U.S. companies or our U.S. subsidiaries. If this happens, our financial condition and results of operations could be significantly and negatively affected.

ITEM 1B.     UNRESOLVED STAFF COMMENTS

There are no unresolved staff comments regarding our current or periodic reports.

GLOSSARY OF SELECTED INSURANCE INDUSTRY TERMS AND NON-GAAP FINANCIAL MEASURES

 

Annual total rate of return    Annual total rate of return is calculated by compounding the 12 consecutive monthly rates of return that are calculated by dividing monthly net performance by the beginning net asset value of that month. One is then subtracted from the product and the result is multiplied by 100.
Capacity    The percentage of shareholders’ equity, or the dollar amount of exposure, that an insurer or reinsurer is willing or able to place at risk.
Case Reserves    Loss reserves established for individual claims (and as reported by our cedants in the case of reinsurance).
Combined Ratio    The combined ratio is calculated by dividing the sum of losses, acquisition costs and general and administrative expenses by net premiums earned. A combined ratio below 100% indicates profitable underwriting prior to the consideration of investment income.
Contract Binding    A term to describe a distribution channel for writing insurance using a network of appointed wholesale general agents. The agents have binding authority for the insurer which allows them to quote and bind policies on behalf of the insurer.
Excess and surplus lines insurance    Any type of coverage that cannot be placed with an insurer admitted to do business in a certain jurisdiction. Risks placed in excess and surplus lines markets are often unique, unusual or difficult to place in conventional markets due to a shortage of capacity.

 

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Annualized five year return    Annualized five year return is calculated by compounding the 60 consecutive monthly rates of return that are calculated by dividing monthly net performance by the beginning net asset value of that month. One is then subtracted from the product and the result is multiplied by 100 and divided by 5.
Incurred but not reported, or IBNR   

Incurred but not reported reserves, which include reserves for the following:

 

•      Pure incurred but not reported claims;

 

•      Future development on known claims.

Loss ratio    The loss ratio is calculated by dividing losses by net premiums earned.
Loss reserve    For an individual loss, an estimate of the amount the insurer expects to pay for the reported claim. For total losses, estimates of expected payments for reported and unreported claims. These may include amounts for claims expenses.
Monthly net performance    Monthly net performance is the total income generated by an investment in the form of interest or dividends and the change in value of that investment in the form of unrealized or realized gains and losses.
Net operating income    Net income excluding after-tax realized gains or losses on fixed maturities and after-tax foreign exchange gains or losses. We believe this non- GAAP measure provides a better indication of management performance as realized gains and losses on fixed maturities may fluctuate from period to period and foreign exchange gains and losses are typically outside the control of management.

Net operating

return on average

shareholders’ equity

   Net operating return on average shareholders’ equity is calculated by dividing the net operating income by the average of the beginning and ending shareholders’ equity. This non-GAAP measure allows management to assess how the company has performed in terms of wealth generated for our shareholders.

Non-admitted

carrier

   A non-admitted carrier is not licensed by the state, but is allowed to do business in that state. Non-admitted carriers are not bound by most of the rate and form regulations imposed on standard market companies, allowing them the flexibility to change the coverage offered and the rate charged without time constraints and financial costs associated with the filing process.
Rate of return    Rates of return are calculated by dividing monthly net performance by the beginning net asset value of that month. One is then subtracted from the product and the result is multiplied by 100.

Return on average

shareholders’ equity

   Return on average shareholders’ equity is calculated by dividing net income by the average of the beginning and ending shareholders’ equity. This non-GAAP measure allows management to assess how we have performed in terms of wealth generated for our shareholders.
Total return    See Annual total rate of return.

 

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ITEM 2.     PROPERTIES

We lease office space in Hamilton, Bermuda and Dublin, Ireland for use by our property and casualty and life and annuity segments, although the life and annuity segment operates solely from our Bermuda office. Max UK and its subsidiaries lease or license office space in the UK, Denmark and Japan.

Max USA, Max Specialty Services and Max Managers USA, as applicable, have leased office space in the following states for our U.S. specialty activities:

 

   

Richmond, Virginia;

 

   

Atlanta, Georgia;

 

   

San Francisco, California;

 

   

Horsham, Pennsylvania;

 

   

Dallas, Texas;

 

   

New York, New York; and

 

   

Sebastopol, California.

MCS USA leases space in Florham Park, NJ to facilitate the provision of intercompany services.

We lease office space on a long-term basis, which we believe will be adequate for anticipated future operations.

ITEM 3.     LEGAL PROCEEDINGS

Antitrust. Two lawsuits filed in the United States District Court for The Northern District of Georgia name Max Bermuda, along with approximately 100 other insurance companies and brokers. The claims in each case are that the defendants conspired to manipulate bidding practices for insurance policies in certain insurance lines and failed to disclose certain commission arrangements. The first of these cases was filed on April 4, 2006 by New Cingular Wireless Headquarter LLC and 16 other corporations. The complaint asserts statutory claims under the Sherman Antitrust Act, the Racketeer Influenced and Corrupt Organization Act, the antitrust laws of several states, as well as common law claims alleging breach of fiduciary duty and fraud. On October 16, 2006, the Judicial Panel on Multidistrict litigation transferred the case to the U.S. District Court for the District of New Jersey for pretrial proceedings on a consolidated basis with other lawsuits raising smaller claims. The second action was filed October 12, 2007 by Sears, Roebuck & Co. and two affiliated corporations. The complaint in this suit charges Max Bermuda and certain other insurance company defendants as the violators of the antitrust and consumer fraud laws of Georgia and other states and common law claims of inducement of breach of fiduciary duties, tortuous interference with contract, unjust enrichment, and aiding and abetting fraud. The Judicial Panel on Multidistrict Litigation transferred this case to the U.S. District Court for the District of New Jersey for consolidated pretrial proceedings in November 2007. We intend to defend ourselves vigorously in this suit but cannot at this time predict the outcome of the matters described above or estimate the potential costs related to defending the action. No liability has been established in our unaudited interim consolidated financial statements as of December 31, 2008.

While any proceeding contains an element of uncertainty, we currently do not believe that the ultimate outcome of all outstanding litigation, arbitrations and inquiries will have a material adverse effect on our consolidated financial condition, future operating results and/or liquidity, although an adverse resolution of a number of these items could have a material adverse effect on our results of operations in a particular fiscal quarter or year.

ITEM 4.     SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

No matters were submitted to a vote of shareholders during the fourth quarter of the fiscal year ended December 31, 2008.

 

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PART II

ITEM 5.     MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER REPURCHASES OF EQUITY SECURITIES

(A) Market Information

Our common shares began trading on the Nasdaq National Market on August 14, 2001 under the symbol MXRE. Effective May 7, 2007, Max Capital’s symbol was changed to MXGL. Prior to August 14, 2001, there was no trading market for Max Capital common shares. The following table sets forth for the periods indicated the high and low reported sale price of our common shares on the Nasdaq Global Select Market.

 

     2008    2007
     High    Low    High    Low

First Quarter

   $ 30.61    $ 25.72    $ 25.90    $ 23.59

Second Quarter

   $ 26.85    $ 21.30    $ 29.24    $ 25.07

Third Quarter

   $ 31.00    $ 20.70    $ 29.05    $ 23.25

Fourth Quarter

   $ 26.10    $ 9.56    $ 30.14    $ 25.49

(B) Holders

As of January 31, 2009, the number of holders of record of our common shares was 196.

(C) Dividends

We have paid a quarterly cash dividend of $0.09 per common share ($0.36 annually) since the second quarter of 2007. For the first and second quarters of 2007, we paid a quarterly cash dividend of $0.07 per common share ($0.28 annually). For our cash dividends per common share on an annual basis see Item 6—Selected Financial Data. Any determination to pay cash dividends is at the discretion of our board of directors and is dependent upon the results of operations and cash flows, the financial position and capital requirements, general business conditions, legal, tax, regulatory and any contractual restrictions on the payment of dividends and other factors the board of directors deems relevant.

Max Capital’s ability to pay dividends depends, in part, on the ability of its subsidiaries to pay dividends to it. As a result of our structure and history of operations, we have looked principally to Max Bermuda to provide capital in those instances when subsidiary transfers are desirable to fund Max Capital’s dividend. Max Bermuda is subject to Bermuda regulatory constraints that affect its ability to pay dividends to Max Capital. Under the Bermuda Insurance Act, Max Bermuda must maintain a minimum solvency margin and minimum liquidity ratio and is prohibited from declaring or paying dividends if it does not comply or such action would result in noncompliance with the Bermuda Insurance Act. Max Bermuda must maintain a minimum solvency margin and minimum liquidity ratio in relation to its property and casualty business and maintain a further $0.25 million in relation to its long-term business in order to declare or pay dividends under the Bermuda Insurance Act. Additionally, the amounts of any such dividend shall not exceed the aggregate of that excess and other funds properly available for the payment of dividends, being funds arising out of its business, other than its long-term business.

Under the Bermuda Companies Act, Max Capital and Max Bermuda may only declare or pay a dividend if, among other matters, there are reasonable grounds for believing that it is, or would after the payment be, able to pay its respective liabilities as they become due.

In addition, each of Max Bermuda’s three letter of credit facilities prohibits Max Bermuda from paying dividends at any time that it is in default under the respective facility,

 

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which will occur if Max Capital’s shareholders’ equity or Max Bermuda’s shareholders’ equity is less than a specified amount as well as in certain other circumstances. Max Capital is party to one credit facility that imposes parallel restrictions on its ability to pay dividends.

(D) Securities Authorized for Issuance Under Equity Compensation Plans

Information with respect to Item 5(D) is set forth under Item 12.

(E) Performance Graph

Set forth below is a line graph comparing the yearly dollar change in the cumulative total shareholder return on our common shares from December 31, 2002 through December 31, 2008 against the Total Return Index for the S &P 500 Index and the Nasdaq Insurance Index for the same period. The performance graph assumes $100 invested on December 31, 2002 in the stock of Max Capital, the S&P 500 Index and the Nasdaq Insurance Index. It also assumes that all dividends are reinvested.

LOGO

The performance reflected in the graph above is not necessarily indicative of future performance.

 

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ITEM  6.    SELECTED FINANCIAL DATA

The following table of selected financial data should be read in conjunction with our audited consolidated financial statements and the notes thereto and with “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” each contained herein.

 

     Year Ended December 31,  
     2008     2007     2006     2005     2004  
     (dollars in millions, except percentages and per share data)  

Gross premiums written

   $ 1,254.3     $ 1,078.3     $ 865.2     $ 1,246.0     $ 1,043.6  

Net premiums earned

     813.5       817.9       665.0       1,053.5       899.9  

Net investment income

     181.6       188.2       150.0       106.8       82.8  

Net (losses) gains on alternative investments

     (233.0 )     186.7       84.8       39.9       81.6  

Net (loss) income

     (175.3 )     303.2       216.9       9.5       141.8  

Fixed maturities and cash

     4,603.3       4,060.9       3,470.0       2,996.9       2,395.2  

Alternative investments

     753.7       1,061.7       1,065.9       1,230.9       1,119.0  

Total assets

     7,252.0       6,538.5       5,849.0       5,305.2       4,319.4  

Shareholders’ equity

     1,280.3       1,583.9       1,390.1       1,185.7       902.7  

Book value per share

     22.94       27.54       23.06       20.16       19.70  

Diluted earnings per share

     (3.10 )     4.75       3.43       0.18       2.92  

Cash dividends per share

     0.36       0.32       0.24       0.18       0.12  

Return on average shareholders’ equity

     (12.2 )%     20.4 %     16.8 %     0.9 %     17.0 %

 

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ITEM 7.    MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following is a discussion and analysis of our results of operations for the year ended December 31, 2008 compared to the year ended December 31, 2007 and for the year ended December 31, 2007 compared to the year ended December 31, 2006, and also a discussion of our financial condition as of December 31, 2008. This discussion and analysis should be read in conjunction with the audited consolidated financial statements and related notes that are included in this Annual Report on Form 10-K.

Executive Summary

Our results for the year ended December 31, 2008 reflect three major themes: profitable results in our underwriting activities, significant platform expansion and unprecedented investment volatility.

Selected operating results for the year include:

 

   

Gross premiums written of $1,012.1 million on property and casualty business, an increase of 30.4% compared to $776.3 million in 2007;

 

   

Overall property and casualty combined ratio of 91.9%, compared to 88.2% in 2007;

 

   

Net favorable prior year loss reserve development on property and casualty business of $107.0 million;

 

   

Net losses on alternative investments of $233.0 million;

 

   

Net loss of $175.3 million, for a net loss per diluted share of $3.10;

Gross premiums written in our property and casualty businesses totaled $1,012.1 million, an increase of 30.4% over 2007, largely as a result of the expansion in our U.S. specialty segment and diversification into new lines of business. Max Specialty, our U.S. specialty platform, demonstrated the strength of its team’s distribution relationships and produced $194.4 million in gross premiums written at an attractive loss ratio of 69.4% on predominately short-tail business. Our Bermuda/Dublin reinsurance and insurance segments operated at combined ratios of 87.4% and 88.2%, respectively, in markets generally considered to have experienced a soft pricing year.

We believe our diverse underwriting portfolio and balanced business mix helped to limit our net losses from Hurricanes Gustav and Ike to $50.0 million, net of reinstatement premiums, or approximately 3.2% of shareholders’ equity at the start of 2008. Our loss estimates for Hurricanes Gustav and Ike continue to develop within our originally projected range and demonstrates our underwriting risk assessment competency in a year that set some new records for the number and frequency of catastrophe property losses.

We added our fourth key underwriting platform with our fourth quarter acquisition of a Lloyd’s managing agent, Max at Lloyd’s, which manages three syndicates at Lloyd’s. We expect our entry into the world’s oldest insurance marketplace to be a substantial complement to our existing specialty insurance and reinsurance businesses, and to be accretive to our operating results in 2009.

Overshadowing the positive operating fundamentals of our underwriting activities were our net investment losses for the year, which were comprised mostly of net losses on our alternative investments. The return on our alternative investments was negative 19.27% for the year ended December 31, 2008, which compares to the negative 20.97% return on the HFRI Fund of Funds Composite Index, which we believe to be the most comparable benchmark, during the same period. With our alternative investments at approximately 20% of invested assets for most of 2008, this return resulted in a net loss of $233.0 million for the year. While our relative performance was better than our primary benchmark, the

 

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negative return and volatility of our portfolio was significantly worse than previously modeled. Although 2008 was the first year in our history that we had net losses on our alternative investments, in late 2008, we made the decision to reduce our invested assets allocation to alternative investments to between 10% and 15%. At December 31, 2008, 14.1% of our invested assets are in alternative investments, and we expect this to decrease to 12.0% or below by March 31, 2009 based on redemptions already requested.

We believe our fixed maturities investment portfolios weathered the investment storm reasonably well in 2008, with a net improvement during the year of $9.1 million in our net unrealized loss position and a total return of 4.66% including the return on cash. The credit quality of our fixed maturities investments remains high, with 69.9% of our fixed maturities at December 31, 2008 being held in government, agency or AAA-rated securities. We believe our conservative fixed maturities investment strategy has limited our exposure to date to writedowns on our fixed maturities investments. Writedowns for other than temporary impairments were $16.9 million for the year, of which $13.8 million was due to the bankruptcy of one major U.S. financial institution. At December 31, 2008, net unrealized losses on our available for sale securities were 0.4% of our available for sale fixed maturities portfolio. The fixed maturities portfolio in our Max at Lloyd’s segment is treated as a trading portfolio with all unrealized gains and losses recorded through net income.

We expect to continue to adapt our investment strategy going forward to better complement our growing underwriting platforms. Our fixed maturities investment strategy is expected to remain unchanged. We intend to reduce our alternative investment portfolio as a proportion of our invested assets but expect that it will remain an important component of our asset mix. With the relative attractiveness of current investment market conditions for some non-traditional asset classes, we expect to diversify our alternative investments into asset classes beyond hedge funds.

Our outlook for 2009 is influenced by a number of factors. We believe the current financial crisis and the large property catastrophe losses in 2008 have significantly curtailed the capacity of the insurance industry. This, together with the tightening of the credit markets that is likely to limit capital investment in the insurance industry and elsewhere in 2009, points to the development of an improved pricing environment for insurance companies. We believe that pricing improvements will initially occur in the shorter tail lines such as property and aviation, and then as the year progresses, migrate to some of the longer tail casualty lines of business. The changes being made to our investment mix are expected to improve our underwriting capacity. This additional capacity, together with the growth in our underwriting platforms, positions us well to capitalize on this improved pricing environment.

Drivers of Profitability

Revenues

We derive operating revenues from premiums from our reinsurance and insurance businesses. Additionally, we recognize returns from our investment portfolios.

Reinsurance and insurance premiums are a function of the amount and type of contracts written as well as prevailing market prices. Property and casualty premiums are earned over the terms of the underlying coverage. Life and annuity reinsurance premiums are generally earned when the premium is due from policyholders. Each of our reinsurance and insurance contracts contain different pricing, terms and conditions and expected profit margins. Therefore, the amount of premiums is not necessarily an accurate indicator of our anticipated profitability. Premium estimates are based upon information in underlying contracts, data received from clients and from premium audits. Changes in premium estimates are expected and may result in significant adjustments in any period. These estimates change over time as additional information regarding the underlying business

 

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volume of our clients is obtained. There is often a delay in the receipt of updated premium information from clients due to the time lag in preparing and reporting the data to us. After review by our underwriters and finance staff, we increase or decrease premium estimates as updated information from our clients is received.

Our net investment income is a function of the average invested assets and the average yield that we earn on those invested assets. The investment yield on our fixed maturities investments is a function of market interest rates as well as the credit quality and maturity of our fixed maturities portfolio. We recognize realized capital gains or losses on our available for sale and trading fixed maturities investments at the time of sale, and recognize the change in unrealized fair value of our trading investments as a realized gain or loss. The realized capital gains or losses reflect the results of changing market conditions, including changes in market interest rates and changes in the market’s perception of the credit quality of our fixed maturities holdings. Our net gains on alternative investments are a function of the success of the funds in which we are invested, which depends on, among other things, the underlying strategies of the funds, the ability of the fund managers to execute the fund strategies, general economic and investment market conditions.

Expenses

Our principal expenses are losses and benefits, acquisition costs, interest expense and general and administrative expenses. Losses and benefits are based on the amount and type of reinsurance and insurance contracts written by us during the current reporting period and information received during the current reporting period from clients pertaining to contracts written in prior years. We record losses and benefits based on actuarial estimates of the expected losses and benefits to be incurred on each contract written. The ultimate losses and benefits depend on the actual costs to settle these liabilities. We increase or decrease losses and benefits estimates as actual claim reports are received. Our ability to make reasonable estimates of losses and benefits at the time of pricing our contracts is a critical factor in determining profitability.

Acquisition costs consist principally of ceding commissions paid to ceding clients and brokerage expenses. These typically represent a negotiated percentage of the premiums on reinsurance and insurance contracts written. Acquisition costs are stated net of ceding commissions associated with premiums ceded to our quota share partners on our reinsurance and insurance business. These ceding commissions are designed to compensate us for the costs of producing the portfolio of risks ceded to our reinsurers. We defer and amortize these costs over the period in which the related premiums are earned.

Interest expense principally reflects interest on our bank loans at a rate based on LIBOR plus a spread and interest on our senior notes. In addition, interest expense also includes the net interest charge on funds withheld from reinsurers under reinsurance and retrocessional contracts. Interest expense on funds withheld from other reinsurers under reinsurance and retrocessional contracts will vary principally due to changes in the balance of funds withheld. Finally, interest expense also includes interest on deposit contracts.

General and administrative expenses are principally employee salaries, bonuses and related personnel costs, office rent, amortization of leasehold improvements and other operating costs. These costs generally do not vary with the amount of premiums written.

Critical Accounting Policies

Our consolidated financial statements are prepared in accordance with GAAP, which require management to make estimates and assumptions. We believe that the following accounting policies affect the more significant judgments and estimates used in the preparation of our consolidated financial statements.

 

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Revenue recognition

We follow SFAS No. 60, “Accounting and Reporting by Insurance Enterprises,” SFAS No. 97, “Accounting and Reporting by Insurance Enterprises for Certain Long-Duration Contracts and Realized Gains and Losses from the Sale of Investments,” and SFAS No. 113, “Accounting and Reporting for Reinsurance of Short-Duration and Long-Duration Contracts,” in determining the accounting for our reinsurance and insurance products. Assessing whether or not the contracts we write meet the conditions for risk transfer requires judgment. The determination of risk transfer is based, in part, on the use of actuarial and pricing models and assumptions.

Insurance revenue recognition

Our insurance premiums are recorded at the inception of each contract, based upon contract terms. The amount of minimum and/or deposit premium is usually contractually documented at inception, and variances between deposit premium and final premium are generally small. An adjustment is posted to amend the minimum and/or deposit premium if there are changes in underlying exposures insured, based on information received from our clients. Premiums are earned on a pro rata basis over the coverage period.

Reinsurance revenue recognition

Our reinsurance premiums are recorded at the inception of each contract, based upon contract terms and information received from ceding clients and their brokers. For excess of loss contracts, the amount of minimum and/or deposit premium is usually contractually documented at inception, and variances between deposit premium and final premium are generally small. An adjustment is posted to amend the minimum and/or deposit premium, when notified, if there are changes in underlying exposures insured. For quota share or proportional reinsurance contracts, gross premiums written are normally estimated at inception based on information provided by cedants and/or brokers. We generally account for such premiums using the client’s initial estimates, and then adjust them as more current information becomes available, with such adjustments recorded as premiums written in the period they are determined. We believe that the ceding clients’ estimate of the volume of business they expect to cede to us represents the best estimate of gross premium written at the beginning of the contract. As the contract progresses, we monitor actual premium received in conjunction with correspondence from the ceding client in order to refine our estimate. Variances from original premium estimates are normally greater for quota share contracts than excess of loss contracts. Premiums are earned on a pro rata basis over the coverage period. The net adjustments to gross premiums written as a result of changes in premium estimates for the years ended December 31, 2008 and 2007 were $46.0 million and $9.3 million, respectively. Such adjustments are generally the result of changing market conditions experienced by our clients.

Additional premiums

Certain contracts that we write are retrospectively rated and we are entitled to additional premium should losses exceed pre-determined, contractual thresholds. These additional premiums are based upon contractual terms and the only element of management judgment involved is with respect to the estimate of the amount of losses that we expect to be ceded to us. Additional premiums are recognized at the time loss thresholds specified in the contract are exceeded and are earned over the policy period. Changes in estimates of losses recorded on contracts with additional premium features will result in changes in additional premiums based on contractual terms.

 

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Additional premiums assumed and ceded, related additional acquisition costs, related net losses and the net impact on operating results for each of the three years to December 31, 2008 are as follows:

 

     2008     2007     2006  
     (000’s)     (000’s)     (000’s)  

Additional premiums assumed

   $ 9,419     $ (6,404 )   $ 16,707  

Additional premiums ceded

     (1,413 )     960       (2,506 )

Additional acquisition costs

     —         (43 )     (2,838 )

Net losses

     —         13,201       —    

Net operating result

   $ 8,006     $ 7,714     $ 11,363  

For each of the years ended December 31, 2008, 2007 and 2006, additional premiums relate to contracts where the coverage period had expired. Therefore, these additional premiums, representing revisions to our initial estimate of ultimate premiums as a result of changes in the estimate of loss reserves, were fully earned since the exposure period has ended.

Reinstatement premiums

Certain of the contracts we write, particularly the property and property catastrophe reinsurance risks, provide for reinstatements of coverage. Reinstatement premiums are the premiums for the restoration of the insurance or reinsurance limit of a contract to its full amount after a loss occurrence by the insured or reinsured and principally relate to our property catastrophe reinsurance contracts. The purpose of optional and required reinstatements is to permit the insured / reinsured to reinstate the insurance coverage at a pre-determined price level once a loss event has penetrated the insured layer. In addition, required reinstatement premiums permit the insurer / reinsurer to obtain additional premiums to cover the additional loss limits provided.

We accrue for reinstatement premiums resulting from losses recorded. Such accruals are based upon contractual terms and the only element of management judgment involved is with respect to the amount of losses recorded. Changes in estimates of losses recorded on contracts with reinstatement premium features will result in changes in reinstatement premiums based on contractual terms. Reinstatement premiums are recognized at the time we record losses and are earned on a pro-rata basis over the coverage period. Reinstatement premiums assumed and ceded for each of the three years to December 31, 2008 are not material to our financial results.

Life and annuity reinsurance premium

Our life and annuity reinsurance premiums are recorded at the inception of the contract based on actual premiums received and are fully earned at that time. We may periodically receive additional premiums which are recorded and earned when received. Additional premium receipts are generally not material.

Premiums receivable

For quota share or proportional contracts, we are entitled to receive premium as the ceding client collects the premium under contractual reporting and payment terms, which are usually quarterly. Premiums are usually collected over a two year period on our quota share or proportional contracts. For excess of loss contracts, premium is generally paid in contractually stipulated installments with payment terms ranging from payment at the inception of the contract to four quarterly payments. As a result of recognizing the estimated gross premium written at the inception of the policy and collecting that premium over an extended period, we include a premium receivable asset on our balance sheet. We actively monitor our premium receivable asset to consider whether we need an allowance for doubtful accounts. As part of this process, we consider the credit quality of our cedants and monitor premium receipts versus expectations. We also seek to include a right of

 

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offset in the contract terms. Since commencing our operations, premiums receivable written off have not been material and, currently, no material premiums receivable are significantly beyond their due dates or in dispute.

Property and casualty losses

The liability for losses, including loss adjustment expenses, represents estimates of the ultimate cost of all losses incurred but not paid as of the balance sheet date. In estimating reserves, we utilize a variety of standard actuarial methods. Although these actuarial methods have been developed over time, assumptions about anticipated size of loss and loss emergence patterns are subject to fluctuations. Newly reported loss information from clients is the principal contributor to changes in the loss reserve estimates. These estimates, which generally involve actuarial projections, are based upon an assessment of known facts and circumstances, as well as estimates of future trends in claims severity and frequency and judicial theories of liability factors, including the actions of third parties, which are beyond our control.

We rely on data reported by clients when calculating reserves. The quality of the data varies from client to client. On a periodic basis, the clients’ loss data is analyzed by our actuarial and claims management teams to ascertain its quality and credibility. This process may involve comparisons with submission data and industry loss data, claims audits and inquiries about the methods of establishing case reserves associated with large industry events.

When determining reserves, we also consider historical data, industry loss trends, legal developments, changes in social attitudes and economic conditions, including the effects of inflation.

We believe the provision for outstanding losses and benefits will be adequate to cover the ultimate net cost of losses incurred to the balance sheet date but the provision is necessarily an estimate and may ultimately be settled for a significantly greater or lesser amount. These estimates are reviewed regularly and any adjustments to the estimates are recorded in the period they are determined.

In estimating reserves we, consistent with industry practice, utilize a variety of standard actuarial methods together with management judgment. The loss reserve selection from these various methods is based on the loss development characteristics of the specific line of business and specific contracts which take into consideration coverage terms, type of business, maturity of loss data, reported claims and paid claims. We do not necessarily utilize the same actuarial method or group of actuarial methods for all contracts within a line of business or segment, as variations between contracts result in a number of different methods or groups of methods being appropriate. These actuarial methods have been designed to address the lag in loss reporting in the insurance industry as well as the delay in obtaining information that would allow us to more accurately estimate future payments. There is often a time lag between reinsurance clients establishing case reserves and re-estimating their reserves, and notifying us of the new or revised case reserves. Reporting lag is more pronounced in our reinsurance contracts than in our insurance contracts and more pronounced in casualty business, which generally has a longer claims pay-out period (long claim-tail), than property business, which generally has a shorter claims pay-out period (short claim-tail). On casualty reinsurance transactions the reporting lag will generally be 60-90 days after the end of a reporting period, but can be longer than this in some cases. Based on the experience of our actuaries and management, we select loss development factors and trending techniques to mitigate the problems caused by reporting lags and claims tails. We regularly evaluate and update our loss development and trending factor selections using client specific and industry data. The principal actuarial methods we use to perform our quarterly loss reserve analysis may include one or more of the following methods:

Expected Loss Ratio Method. To estimate ultimate losses under the expected loss ratio method, we multiply earned premiums by an expected loss ratio. The expected loss ratio is selected utilizing industry data, historical client data, frequency-severity and rate level forecasts and professional judgment.

 

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Paid Loss Development Method. This method estimates ultimate losses by calculating past paid loss development factors and applying them to exposure periods with further expected paid loss development. The paid loss development method assumes that losses are paid at a rate consistent with the historical rate of payment. It provides an objective test of reported loss projections because paid losses contain no reserve estimates. For many coverages, claim payments are made very slowly and it may take years for claims to be fully reported and settled.

Reported Loss Development Method. This method estimates ultimate losses by calculating past reported loss development factors and applying them to exposure periods with further expected reported loss development. Since reported losses include payments and case reserves, changes in both of these amounts are incorporated in this method. This approach provides a larger volume of data to estimate ultimate losses than paid loss methods. Thus, reported loss patterns may be less varied than paid loss patterns, especially for coverages that have historically been paid out over a long period of time but for which claims are reported relatively early and case loss reserve estimates established.

Bornhuetter-Ferguson Paid Loss Method. The Bornhuetter-Ferguson paid loss method is a combination of the paid loss development method and the expected loss ratio method. The amount of losses yet to be paid is based upon the expected loss ratios. This method avoids some of the distortions that could result from a large development factor being applied to a small base of paid losses to calculate ultimate losses. This method will react slowly if actual paid loss experience develops differently than historical paid loss experience because of major changes in rate levels, retentions or deductibles, the forms and conditions of coverage, the types of risks covered or a variety of other factors.

Bornhuetter-Ferguson Reported Loss Method. The Bornhuetter-Ferguson reported loss method is similar to the Bornhuetter-Ferguson paid loss method with the exception that it uses reported losses and reported loss development factors.

Frequency-Severity Method. This method is based on assumptions about the number of claims that will impact a transaction and the average ultimate size of those claims. On excess of loss contracts, reported claims in lower layers provide insight to the expected number of claims that will likely impact the upper layers.

Although these actuarial methods for establishing reserves have been developed over time, assumptions about anticipated size of loss and loss emergence patterns are subject to fluctuation. Newly reported loss information from our clients or insureds is the principal contributor to changes in our loss reserve estimates. The selection of appropriate actuarial methods to establish reserves may change over time as the underlying loss information becomes more seasoned. Additional discussion of the reserving practices by business segment is included below.

Property and casualty losses, net of related reinsurance recoverables, are charged to income as incurred. Unpaid losses (including loss adjustment expenses) represent the accumulation of:

 

   

case reserves, which are reserves established for individual claims (and as reported by our cedants in the case of reinsurance);

 

   

incurred but not reported reserves (which we refer to as IBNR), which include reserves for the following:

 

   

Pure incurred but not reported claims;

 

   

Future development on known claims.

 

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The table below breaks our reserves as of December 31, 2008 into these components by segment.

 

In millions of U.S. Dollars

  Bermuda /
Dublin
reinsurance
  Bermuda /
Dublin
insurance
  U.S. specialty   Max at
Lloyd’s
  Life and annuity
reinsurance

Case reserves

  $ 496.8   $ 268.2   $ 19.3   $ 133.8   $ 1,367.0

IBNR

    975.7     805.6     98.7     140.1     —  
                             

Total

  $ 1,472.5   $ 1,073.8   $ 118.0   $ 273.9   $ 1,367.0
                             

Our reserving methodologies, as discussed above, uses a loss reserving model that calculates a point estimate for our ultimate losses, as opposed to a methodology that develops a range of estimates. Although we believe that our assumptions and methodologies are reasonable, we cannot be certain that our ultimate payments will not vary, perhaps materially, from the estimates we have made. If we determine that adjustments to an earlier estimate are appropriate, those adjustments are reflected in our net income during the period in which we determine these adjustments. The establishment of new reserves, or the adjustment of reserves for reported claims, could result in significant upward or downward changes to our financial condition or results of operations in any particular period. We regularly review and update these estimates using the most current information available to us.

Development of our prior period incurred losses for each of the three years ended December 31, 2008 is reported in Note 6—“Property and casualty losses and loss adjustment expenses” to our consolidated financial statements on page F-27. After adjusting 2006 prior period incurred losses for contractual additional premiums received related to the recording of losses on two contracts, our development of prior period loss reserves has been less than 6.0% in each of the three years ending December 31, 2008 and an average of 3.7% over the past seven years. Based on this experience, we currently believe it reasonably likely that loss reserves could change 3.5% from currently reported amounts. This change could be higher or lower depending on our client reported data and potential future commutation of reserves. As at December 31, 2008, we estimate that a 3.5% change in loss reserves would impact our net income and shareholders’ equity by $102.8 million. Depending on whether the reasonably likely adjustments to loss reserves are on contracts ceded to one of our various reinsurance arrangements, there may also be a partially offsetting change in the losses recoverable, net income and shareholders’ equity.

Bermuda/Dublin reinsurance loss reserve process

Our Bermuda/Dublin reinsurance loss reserves include case reserves, amounts for IBNR reserves and loss adjustment expenses. The reserves are compiled on a contract-by-contract basis and are computed on an undiscounted basis. The majority of our Bermuda/Dublin reinsurance reserves are related to casualty business. Historically, losses associated with casualty business have had a long claim-tail, the time period between the occurrence of a loss and the time it is settled by the insurer we reinsure. Casualty losses are also more susceptible to litigation and can be significantly affected by changing contract interpretations and a changing legal environment. Due to the long claim-tail nature of casualty business, a high degree of judgment is involved in establishing loss reserves.

Our Bermuda/Dublin property reinsurance loss reserves are established on a contract-by-contract basis, based on expected loss ratios, losses reported by clients and our assessment of potential losses from catastrophe events. After a catastrophe event, our initial estimate is based upon a combination of internal and external catastrophe models, and client- and location-specific assessments and reports, when and as available. Loss estimates are subsequently refined based on broker advices and client notifications.

We establish and review our Bermuda/Dublin reinsurance loss reserves on a quarterly basis. The process for establishing our Bermuda/Dublin reinsurance loss reserves is based

 

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upon actuarial analysis of exposure loss data provided by clients. We use a variety of actuarial techniques and methods in estimating our ultimate liability for Bermuda/Dublin reinsurance losses and loss expenses, together with management judgment. These methods include expected loss ratio, paid loss development, incurred loss development, paid and incurred Bornhuetter-Ferguson methods and frequency-severity methods. This actuarial data is analyzed by product, type of risk, coverage and accident or policy year, as appropriate. Industry loss experience is also used to supplement our own data in selecting development factors in areas where our own data or the clients’ data is limited.

With respect to our reinsurance products, we rely on loss data reported by our clients when calculating our reserves. The quality of the loss data varies from client to client. On a periodic basis, the clients’ loss data is analyzed by our actuarial and claims management teams to ascertain its quality and credibility. This process may involve comparisons with submission data and industry loss data, claim audits and inquiries about the methods of establishing case reserves or reserves associated with large industry events. There is often a time lag between our clients establishing case reserves and re-estimating their reserves, and notifying us of the new or revised case reserves. On casualty reinsurance transactions, the reporting lag will generally be 60-90 days after the end of a reporting period, but can be longer in some cases. Appropriate selection of loss development factors is used to mitigate these problems. We utilize the latest information received from our clients and work to ensure that the loss data is current. However, due to the varying quality of data from our reinsureds and the inherent reporting delays, our Bermuda/Dublin reinsurance reserves will have more uncertainty than our Bermuda/Dublin insurance reserves, where we receive loss information directly from our insureds.

Mitigating the uncertainty inherent in the reserves of our Bermuda/Dublin reinsurance portfolio is the fact that a large portion of our recorded reinsurance reserves are attributable to contracts that are recorded at contractual aggregate limits. As of December 31, 2008 and December 31, 2007, approximately 30% and 33%, respectively, of the total Bermuda/Dublin reinsurance reserves are on contracts that are recorded at contractual aggregate limits.

When determining reserves, we also consider additional historical data, industry loss trends, legal developments, changes in social attitudes and economic conditions, including the effects of inflation. Rapidly changing economic conditions will increase the inherent uncertainty of the reserve estimates. As additional data becomes available and is reviewed, we revise our Bermuda/Dublin reinsurance reserve estimates to reflect this additional data, which may result in increases or decreases to reserves for insured events of prior years. These adjustments are recorded in the period they are determined. The table below breaks our Bermuda/Dublin reinsurance reserves as of December 31, 2008 and 2007 into casualty (long claim-tail) and property (short claim-tail) components.

 

In millions of U.S. Dollars

   December 31,
2008
   December 31,
2007

Casualty

   $ 1,210.0    $ 1,274.1

Property

     262.5      167.9
             

Total

   $ 1,472.5    $ 1,442.0

Bermuda/Dublin insurance loss reserve process

Our Bermuda/Dublin casualty insurance loss reserves, which include case reserves, amounts for IBNR reserves and loss adjustment expenses, are compiled on a portfolio basis and are computed on an undiscounted basis. The majority of the insurance business we have written is casualty business. Historically, losses associated with casualty business have had a long claim-tail, which is the time period between the occurrence of a loss and the time it is settled by the insurer. Casualty losses are also generally more susceptible to litigation and can be significantly affected by changing contract interpretations and a changing legal environment. Due to the long claim-tail nature of casualty business, a high degree of judgment is involved in establishing loss reserves.

 

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Our Bermuda/Dublin property insurance loss reserves, which include case reserves, amounts for IBNR reserves and loss adjustment expenses, are compiled on a portfolio basis and are computed on an undiscounted basis. These reserves are adjusted for losses reported by our clients and for our estimate of losses resulting from catastrophe events, based on a detailed, location specific analysis of our clients’ properties impacted by the events.

In connection with our ongoing analysis of our Bermuda/Dublin insurance loss reserves, we review loss reports received from our clients to confirm that submitted claims are covered under the contract terms and take into account industry loss activity and industry loss trends. We also consider historical data, legal developments, changes in social attitudes and economic conditions, including the effects of inflation. As additional data becomes available and is reviewed, we may revise our Bermuda/Dublin insurance reserve estimates to reflect this additional data, which may result in increases or decreases to reserves for insured events of prior years. These adjustments are recorded in the period they are determined.

We establish and review our Bermuda/Dublin insurance loss reserves on a quarterly basis. The process for adjusting our Bermuda/Dublin insurance loss reserves is based upon loss reports received from clients, which are input into actuarial models. We use a variety of actuarial techniques and methods in estimating our ultimate liability for property and casualty insurance losses and loss expenses, together with management judgment. As noted above, these methods include paid loss development, incurred loss development, paid and incurred Bornhuetter-Ferguson methods and frequency-severity methods. This actuarial data is analyzed by product, type of risk, coverage and accident or policy year. Industry loss experience is also used to supplement our own data in selecting long term trend and development factors and in areas where our own data or the insureds’ data is limited. The table below breaks our insurance reserves as of December 31, 2008 and 2007 into casualty (long claim-tail) and property (short claim-tail) components.

 

In millions of U.S. Dollars

   December 31,
2008
   December 31,
2007

Casualty

   $ 981.5    $ 787.4

Property

     92.3      79.4
             

Total

   $ 1,073.8    $    866.8

U.S. specialty loss reserve process

On a gross of reinsurance basis, the majority of the U.S. specialty business we have written is property business. On a net of reinsurance basis, the earned premium is approximately equally split between property and casualty. Our U.S. specialty property and casualty loss reserves, which include case reserves, amounts for IBNR reserves and loss adjustment expenses, both allocated and unallocated, are compiled on a portfolio basis and are computed on an undiscounted basis.

We determine our IBNR reserves by first projecting the ultimate expected losses by product within each line of business. We then subtract paid losses and reported loss reserves from the ultimate loss reserves. The remainder is our incurred but not reported reserves. The level of IBNR reserves in relation to total reserves depends upon the characteristics of the particular line of business, particularly with respect to the speed by which losses are reported and outstanding loss reserves are adjusted. Lines for which losses are reported quickly will have a lower percentage of IBNR reserves than lines for which losses are reported more slowly, and lines for which reserve volatility is low will have a lower percentage of IBNR reserves than higher volatility lines.

The reserves for reported losses related to our U.S. specialty business are initially set by our claims personnel or independent claims adjusters we retain. The loss reserves are subject to our review, with a goal of setting them at the ultimate expected loss amount as soon as possible when the information becomes available.

 

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We establish and review our U.S. specialty IBNR loss and loss expense reserves on a quarterly basis. We use a variety of actuarial techniques and methods in estimating our ultimate liability for excess and surplus lines insurance losses and loss expenses, together with management judgment. These methods include paid loss development, incurred loss development, paid and incurred Bornhuetter-Ferguson methods. Industry loss experience is also used to supplement our own data in selecting loss reporting and payment patterns and expected loss ratios. The table below breaks our U.S. specialty reserves as of December 31, 2008 and 2007 into casualty (long claim-tail) and property (short claim-tail) components.

 

In millions of U.S. Dollars

   December 31,
2008
   December 31,
2007

Casualty

   $ 72.8    $   18.7

Property

     45.2      6.4
             

Total

   $ 118.0    $ 25.1

Max at Lloyd’s loss reserve process

Our Max at Lloyd’s property and casualty reinsurance loss reserves, which include case reserves, amounts for IBNR reserves and loss adjustment expenses, are compiled on a portfolio basis and are computed on an undiscounted basis. The majority of the reinsurance business written by the Syndicates is property business. These reserves are adjusted for losses reported by our clients and for our estimate of losses resulting from catastrophe events, based on a detailed, location specific analysis of our clients’ properties impacted by the events.

Our Max at Lloyd’s casualty insurance loss reserves, which include case reserves, amounts for IBNR reserves and loss adjustment expenses, are compiled on a portfolio basis and are computed on an undiscounted basis. Historically, losses associated with casualty business have had a long claim-tail, which is the time period between the occurrence of a loss and the time it is settled by the insurer. Casualty losses are also generally more susceptible to litigation and can be significantly affected by changing contract interpretations and a changing legal environment. Due to the long claim-tail nature of casualty business, a high degree of judgment is involved in establishing loss reserves.

The loss reserving process involves the use of external actuarial consultants to assist management in the estimation of IBNR reserves and loss adjustment expenses. Loss reserves are established and reviewed on a quarterly basis. The process for adjusting the loss reserves is based upon loss reports received from clients, which are input into actuarial models. A variety of actuarial techniques and methods are used in estimating our ultimate liability for property and casualty insurance and reinsurance losses and loss expenses, together with management judgment. As noted above, these methods include paid loss development, incurred loss development, paid and incurred Bornhuetter-Ferguson methods and frequency-severity methods. This actuarial data is analyzed by product, type of risk, coverage and accident or policy year. Industry loss experience is also used to supplement our own data in selecting long term trend and development factors and in areas where our own data or the insureds’ data is limited.

In connection with our ongoing analysis of our Max at Lloyd’s loss reserves, we review loss reports received from our clients to confirm that submitted claims are covered under the contract terms and take into account industry loss activity and industry loss trends. We also consider historical data, legal developments, changes in social attitudes and economic conditions, including the effects of inflation. As additional data becomes available and is reviewed, we may revise our Max at Lloyd’s reserve estimates to reflect this additional data, which may result in increases or decreases to reserves for insured events of prior years. These adjustments are recorded in the period they are determined.

 

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The table below breaks our Max at Lloyd’s loss reserves as of December 31, 2008 into casualty (long claim-tail) and property (short claim-tail) components.

 

In millions of U.S. Dollars

   December 31,
2008

Casualty

   $   225.1

Property

     48.8
      

Total

   $ 273.9

Disputes

In connection with our ongoing analysis of our Bermuda/Dublin insurance, Bermuda/Dublin reinsurance, U.S. specialty, and Max at Lloyd’s loss reserves, we review loss notifications and reports received from our clients to confirm that submitted claims are covered under the contract terms. Disputes with clients arise in the ordinary course of business due to coverage issues such as classes of business covered and interpretation of contract wording. We typically resolve any disputes through negotiations that could vary from a simple exchange of email correspondence to arbitration with a panel of experts. Our contracts generally provide for dispute resolution through arbitration. We are not currently involved in any coverage disputes that would, individually or in the aggregate, be material to us.

 

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Property and casualty loss reserve development

The following table presents the development of balance sheet property and casualty loss reserves calculated in accordance with GAAP, as of December 31, 2000 through December 31, 2008. This table does not present accident or policy year development data. The top line of the table shows the gross reserves at the balance sheet date for each of the indicated years and is reconciled to the net reserve by adjusting for reinsurance recoverables. This represents the estimated amount of net claims and claim expenses arising in the current year and all prior years that are unpaid at the balance sheet date, including IBNR reserves. The table also shows the re-estimated amount of the previously recorded reserves as adjusted for new information received as of the end of each succeeding year. The estimate changes as more information becomes known about the frequency and severity of claims for individual years. The “net cumulative redundancy (deficiency)” represents the aggregate change to date from the original estimate on the third line of the table “reserve for property and casualty losses, originally stated, net of reinsurance.” The “gross cumulative redundancy (deficiency)” represents the aggregate change to date from the original gross estimate on the top line of the table. The table also shows the cumulative net paid amounts as of successive years with respect to the net reserve liability.

 

    2000     2001     2002     2003     2004     2005     2006     2007     2008  
          (1)     (1)                             (3)     (4)(5)  

Gross reserve for property and casualty losses

  $ 136,338     $ 456,377     $ 617,404     $ 991,687     $ 1,455,099     $ 2,006,032     $ 2,335,109     $ 2,333,877     $ 2,938,171  

Reinsurance recoverable

    (5,370 )     (51,838 )     (80,407 )     (163,348 )     (293,512 )     (409,229 )     (496,173 )     (537,864 )     (810,113 )(2)

Reserve for property and casualty losses originally stated, net of reinsurance

    130,968       404,539       536,997       828,339       1,161,587       1,596,803       1,838,936       1,796,013       2,128,058  

Cumulative net paid losses

                 

1 year later

    7,752       136,734       106,076       119,269       217,637       169,008       361,702       184,223       —    

2 years later

    117,230       202,134       165,539       257,182       321,533       501,837       504,462       —         —    

3 years later

    141,134       242,681       244,578       333,238       545,653       608,195       —         —         —    

4 years later

    150,212       285,166       309,183       502,167       611,463       —         —         —         —    

5 years later

    158,738       326,529       420,454       553,107       —         —         —         —         —    

6 years later

    162,217       359,823       458,930       —         —         —         —         —         —    

7 years later

    166,002       380,898       —         —         —         —         —         —         —    

8 years later

    168,901       —         —         —         —         —         —         —         —    

Reserves re-estimated as of

                 

1 year later

    150,154       442,101       554,795       826,799       1,296,558       1,585,834       1,774,591       1,689,054    

2 years later

    178,460       439,490       563,469       975,441       1,277,712       1,533,584       1,679,434       —      

3 years later

    175,057       444,348       666,781       977,590       1,229,303       1,475,583       —         —      

4 years later

    175,057       496,631       676,365       945,186       1,205,584       —         —         —      

5 years later

    175,057       497,449       655,532       932,423       —         —         —         —      

6 years later

    175,057       482,046       652,881       —         —         —         —         —      

7 years later

    175,057       481,846       —         —         —         —         —         —      

8 years later

    175,057                  

Net cumulative redundancy (deficiency)

    (44,089 )     (77,307 )     (115,884 )     (104,084 )     (43,997 )     121,220       159,502       106,959    

Gross cumulative redundancy (deficiency)

    (44,089 )     (86,944 )     (136,827 )     (124,738 )     (56,396 )     140,306       165,316       118,042    

 

(1) Adjusted for reclassification of a contract to a deposit liability.
(2) The difference between the reinsurance recoverable included above and that reflected in the reconciliation of losses and loss adjustment expenses in Note 6 to the consolidated financial statements of $785 relates to the remaining net deferred loss on retroactive reinsurance.
(3) Gross and net reserve for property and casualty losses includes, for the first time, Max Specialty, which we acquired in April 2007.
(4) Gross and net reserve for property and casualty losses includes, for the first time, Max America, which we acquired in June 2008.
(5) Gross and net reserve for property and casualty losses includes, for the first time, Max UK, which we acquired in November 2008.

 

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During 2008 our re-estimated balance sheet reserves for 2001 and each subsequent balance sheet decreased as a result of net favorable development on a large number of contracts with varied underwriting years and lines of business. The more significant development included:

 

   

Net favorable development for our Bermuda/Dublin reinsurance segment of $56.4 million, excluding the development associated with changes in reinsurance premium estimates described below. Of the $56.4 million of net favorable development, $47.7 million was recognized on the long tail lines of business on the 2006 and prior years, including $25.8 million from professional liability reinsurance, largely on the 2005 and prior years. In addition, we had favorable development of $15.1 million on whole account, where information from the cedants indicate better than expected results. We recorded net positive development of $22.1 million on property reinsurance, primarily from the 2007 year, offset by adverse development of $13.5 million on the marine and energy lines of business. The adverse development originated primarily from one marine contract which covered a number of separate individual risk losses at the end of 2007.

 

   

The final settlement of prior period reinsurance reserves on a number of contracts resulting in a net favorable development of $11.7 million.

 

   

Favorable development of $17.0 million arising from reductions in reinsurance premium estimates of $46.0 million. Changes in premium estimates occur on prior year contracts each year as we receive additional information on the underlying exposures insured and the associated loss is recorded, at the original loss ratio, concurrently with the premium adjustment. The favorable development is offset by a decrease in earned premium net of acquisition costs of $24.2 million, resulting in a net loss of $7.2 million.

 

   

Net favorable development for our Bermuda/Dublin insurance segment of $22.6 million arising from the re-estimation of liabilities principally on property business.

Our balance sheet reserves for 2001 and each subsequent balance sheet date through 2004 in the above tables continue to show the effects of the development on two specific contracts recorded in 2005. The first contract increased 2001 reserves by $50.2 million, with the recording of such increased losses triggering additional premiums and interest on additional premiums of $49.3 million, which are not reflected in the table above. The second contract increased 2002 reserves by $49.6 million, 2003 reserves by $64.8 million and 2004 reserves by $15.3 million, for a total increase of $129.7 million. The adverse development triggered additional premiums and interest on such additional premiums of $105.3 million, which are not reflected in the table above.

Changes in loss estimates principally arise from changes in underlying reported, incurred and paid claims data on contracts. Other assumptions used in our process, such as inflation, change infrequently in the reserving process and we do not perform a sensitivity analysis of changes in these assumptions. Given the variety of assumptions and judgments involved in establishing reserves for losses and benefits on our insurance and reinsurance and U.S. specialty portfolios, we have not designed and maintained a system to capture and quantify the financial impact of changes in each of our underlying individual assumptions and judgments.

For additional information on our reserves, including a reconciliation of losses and loss adjustment expense reserves for the years ended December 31, 2008, 2007 and 2006, please refer to Note 6 of our audited consolidated financial statements included herein.

Life and annuity reinsurance benefit reserve process

Our life and annuity reinsurance benefit and claim reserves are compiled by our life and annuity actuaries on a contract-by-contract basis and are computed on a discounted

 

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basis using standard actuarial techniques and cash flow models. We establish and review our life and annuity reinsurance reserves regularly based upon cash flow projection models utilizing data provided by clients and actuarial models. We establish and maintain our life and annuity reinsurance reserves at a level that we estimate will, when taken together with future premium payments and investment income expected to be earned on associated premiums, be sufficient to support all future cash flow benefit and third party servicing obligations as they become payable.

Since the development of our life and annuity reinsurance reserves is based upon cash flow projection models, we must make estimates and assumptions based on cedant experience and industry mortality tables, longevity, expense and investment experience, including a provision for adverse deviation. The assumptions used to determine policy benefit reserves are best estimate assumptions that are determined at the inception of the contracts and are locked-in throughout the life of the contract unless a premium deficiency develops. We establish these estimates based upon transaction specific historical experience, information provided by the ceding company and industry experience studies. Actual results could differ materially from these estimates. As the experience on the contracts emerges, the assumptions are reviewed by management. We determine whether actual and anticipated experience indicates that existing policy reserves, together with the present value of future gross premiums, are sufficient to cover the present value of future benefits, settlement and maintenance costs and to recover unamortized acquisition costs. If such a review produces reserves in excess of those currently held then the lock-in assumptions are revised and a life and annuity benefit is recognized at that time.

There have been no material reserve adjustments to our life and annuity reinsurance benefit reserves during the years ended December 31, 2008, 2007 and 2006.

The assumptions used to determine claim reserves are best estimate assumptions and are reviewed no less than annually. The assumptions are un-locked if they result in a material reserve change. We establish these assumptions based upon transaction specific historical experience, information provided by the ceding company and industry experience studies. Actual results could differ materially from these estimates.

Because of the many assumptions and estimates used in establishing reserves and the long-term nature of reinsurance contracts, the reserving process, while based on actuarial science, is inherently uncertain.

Investments

We own a trading portfolio and an available for sale portfolio of fixed maturities securities. The trading portfolio comprises the fixed maturities securities held by our Max at Lloyd’s segment. We record both investment portfolios at fair value on our balance sheet. For our trading portfolio, the unrealized gain or loss associated with the difference between the fair value and the amortized cost of the investments is recorded in net income as a realized gain or loss. For our available for sale portfolio, the unrealized gain or loss is recorded in other comprehensive income in the equity section of our balance sheet. Fixed maturities are subject to fluctuations in fair value due to changes in interest rates, changes in issuer specific circumstances such as credit rating and changes in industry specific circumstances such as movements in credit spreads based on the markets perception of industry risks. As a result of these potential fluctuations, it is possible to have significant unrealized gains or losses on a security. Our strategy for our fixed maturities portfolio is to tailor the maturities of the portfolio to the timing of expected loss and benefit payments. At maturity, fixed maturities’ amortized cost will equal their fair value and no realized gain or loss will be recognized in income. If, due to an unforeseen change in loss payment patterns, we need to sell any available for sale investments before maturity, we could realize significant gains or losses in any period, which could result in a meaningful effect on reported net income for such period.

 

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In order to reduce the likelihood of needing to sell our available for sale investments before maturity, especially given the unpredictable and potentially significant cash flow requirements of our property catastrophe business, we maintain significant cash and cash equivalent balances and can access our credit facility, which is described in Note 17 of our audited consolidated financial statements. We believe we have the ability to hold those available for sale securities in an unrealized loss position until such time as they reach maturity or the fair value increases. The only time we would expect to realize an other than temporary impairment on an available for sale security is if there were concern about receiving the interest payments and the maturity value of the investment. We perform regular reviews of our available for sale fixed maturities portfolio and utilize a process that considers numerous indicators in order to identify investments that are showing signs of potential other than temporary impairments. The indicators include the issuer’s financial condition and ability to make future scheduled interest and principal payments, benchmark yield spreads, the nature of collateral or other credit support and significant economic events that have occurred that affect the industry in which the issuer participates. As a result of this process, we recognized other than temporary impairment charges through net income of $16.9 million, $1.1 million and $nil during the years ended December 31, 2008, 2007 and 2006, respectively.

We utilize dynamic financial analysis to determine our overall asset and liability risk and the potential for adverse scenarios producing projected losses and potential adverse cash flow. This analysis is accomplished through a stochastic simulation of future periods with each asset and liability cash flow individually modeled. This 5000 path stochastic simulation utilizes the expected volatility of each of our individual asset and liability cash flows. We construct our asset portfolio based on the expected cash flows from our liability portfolio. Fixed maturities securities are purchased to meet cash flows along the entire maturity spectrum of the liabilities. In our dynamic financial analysis modeling we assume that alternative investments will liquidate in years five through ten, so fixed maturities securities are purchased to meet liability cash flows in years one through five and for liability cash flows beyond ten years. Our liability cash flows are highly variable. Because of this risk, we maintain a significant cash balance, which has consistently exceeded $250.0 million. We have also generated over $250.0 million of positive operating cash flow in each of the five years ended December 31, 2008.

We adopted Financial Accounting Standard No. 157, “Fair Value Measurements”, or FAS 157, as of January 1, 2008. FAS 157 establishes a framework for measuring fair value, establishes a fair value hierarchy based on the quality of inputs used to measure fair value, and enhances disclosure requirements for fair value measurements. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy under FAS 157 are described below:

Level 1—Quoted prices for identical instruments in active markets.

Level 2—Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations in which all significant inputs and significant value drivers are observable in active markets.

Level 3—Model derived valuations in which one or more significant inputs or significant value drivers are unobservable.

As required by FAS 157, when the inputs used to measure fair value fall within different levels of the hierarchy, the level within which the fair value measurement is categorized is based on the lowest level input that is significant to the fair value measurement in its entirety. Thus, a Level 3 fair value measurement may include inputs that are observable (Level 1 and 2) and unobservable (Level 3).

 

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Fair value prices for all securities in our fixed maturities portfolio are independently provided by both our investment custodian and our investment managers, which each utilize nationally recognized independent pricing services. We record the unadjusted price provided by the investment custodian and our validation process includes, but is not limited to: (i) comparison to the price provided by the investment manager, with significant differences investigated; (ii) quantitative analysis (e.g., comparing the quarterly return for each managed portfolio to its target benchmark, with significant differences identified and investigated); (iii) evaluation of methodologies used by external parties to calculate fair value; and (iv) comparing the price to our knowledge of the current investment market.

The independent pricing services used by our investment custodian and investment managers obtain actual transaction prices for securities that have quoted prices in active markets. Each pricing service has its own proprietary method for determining the fair value of securities that are not actively traded. In general, these methods involve the use of “matrix pricing” in which the independent pricing service uses observable market inputs including, but not limited to, reported trades, benchmark yields, broker/dealer quotes, interest rates, prepayment speeds, default rates and such other inputs as are available from market sources to determine a reasonable fair value. In addition, pricing services use valuation models, such as an Option Adjusted Spread model, to develop prepayment and interest rate scenarios. The Option Adjusted Spread model is commonly used to estimate fair value for securities such as mortgage-backed and asset-backed securities. The ability to obtain quoted market prices is reduced in periods of decreasing liquidity, which generally increases the use of matrix pricing methods and generally increases the uncertainty surrounding the fair value estimates. This could result in the reclassification of a security between levels of the FAS 157 hierarchy.

Our investments in alternative investments comprise a portfolio of limited partnerships and stock investments in trading entities, or funds, which invest in a wide range of financial products. Investments in the funds are carried at fair value. The change in fair value is included in net gains on alternative investments and recognized in net income. The units of account that we fair value are our interests in the funds and not the underlying holdings of such funds. Thus, the inputs we use to value our investments in each of the funds may differ from the inputs used to value the underlying holdings of such funds. These funds are stated at fair value which ordinarily will be the most recently reported net asset value as advised by the fund manager or administrator, where the fund’s underlying holdings can be in various quoted and unquoted investments. We believe the reported net asset value represents the fair value market participants would apply to an interest in the fund. These funds are classified as Level 3 in the FAS 157 hierarchy. The fund managers value their underlying investments at fair value in accordance with policies established by each fund, as described in each of their financial statements and offering memoranda. Based upon information provided by the fund managers, at December 31, 2008, we estimate that over 87.0% of the underlying assets in the funds are publicly traded securities or have broker quotes available.

We, together with Alstra, have designed ongoing due diligence processes with respect to funds and their managers, which processes are designed to assist us in assessing the quality of information provided by, or on behalf of, each fund and in determining whether such information continues to be reliable or whether further review is necessary. Certain funds do not provide full transparency of their underlying holdings; however, we obtain the audited financial statements for every fund annually, and regularly review and discuss the fund performance with the fund managers to corroborate the reasonableness of the reported net asset values. While reported net asset value is the primary input to the review, when the net asset value is deemed not to be indicative of fair value, we may incorporate adjustments to the reported net asset value. Such adjustments may involve significant management judgment.

Certain of our funds have either imposed a gate on redemptions, or have segregated a portion of the underlying assets into a side-pocket. Based on the review process applied

 

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by management, a reduction of $2.0 million was made to the net asset values reported by the fund managers as at December 31, 2008 to adjust the carrying value of the funds to our best estimate of fair value.

A review of fair value hierarchy classifications is conducted on a quarterly basis. Changes in the observability of valuation inputs may result in a reclassification for certain financial assets and liabilities. Reclassifications impacting Level 3 of the fair value hierarchy are reported as transfers in/out of the Level 3 category as of the beginning of the quarter in which the reclassifications occur. During the year ended December 31, 2008, we reclassified all of our alternative investments from Level 2 to Level 3. The increase in the use of gates, side-pockets, and a decline in the level of observable activity resulted in an increase in the use of unobservable inputs and management judgment in estimating fair value.

Alternative investments classified as Level 3 total $749.2 million, or 99.4% of our total alternative investments, and 13.4% of total invested assets as of December 31, 2008.

Additional information about the fair values of alternative investments can be found in Note 3 to our audited consolidated financial statements included herein.

As at December 31, 2008, our Max Diversified alternative investment portfolio contained 37 underlying investments in 10 different strategies. We focus on risk, as opposed to return, in the selection of each of our alternative investments. This causes us to select individual alternative investments that have exhibited attractive risk/reward characteristics and low correlation to other investments in the portfolio, as opposed to individual investments that have shown the highest return, but also higher volatility of return. We then combine the selected individual alternative investments into a portfolio of alternative investments. By combining investments with moderate volatility and low correlations, we aim to achieve an alternative investment portfolio within Max Diversified that has overall lower volatility relative to investing in a common stock portfolio or a typical fund of hedge funds portfolio.

We have attempted to construct our alternative investment portfolio to have less risk, as measured by standard deviation of return, than a common stock portfolio, which is the equity investment choice of many insurance organizations. For the five years ended December 31, 2008, our Max Diversified alternative investment portfolio has produced an annual standard deviation of return of 6.81% compared to the annual standard deviation of return of 11.86% for the HFRI Fund of Funds Composite Index and 12.81% for the S&P 500 Index. The annualized five year return on our Max Diversified alternative investment portfolio of 3.08% compares to the HFRI Fund of Funds Composite Index return of 2.02% and the S&P 500 Index return of negative 2.80% for the same period, and with lower volatility as measured by standard deviation. There is significant risk in all our investment activities, and the results of our alternative investment portfolio will vary over time with the investment markets. With the exception of 2008, our Max Diversified alternative investments have produced positive results for every annual period since inception and have shown approximately one-half the volatility of the S&P 500 Index.

 

     Annual Return  

Year

   Max Diversified     HFRI Fund of Funds
Composite Index
    S&P 500 Index  

2008

   (19.38 )%   (20.97 )%   (37.00 )%

2007

   16.78 %   10.25 %   5.49 %

2006

   6.30 %   10.39 %   11.85 %

2005

   5.88 %   7.49 %   3.00 %

2004

   9.81 %   6.86 %   10.87 %

Despite the lower volatility of the alternative investment portfolio there is potential for losses, as there is for any investment portfolio. We approach our investment strategies

 

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based on long term performance and believe the annualized five year return of our Max Diversified portfolio of 3.08% demonstrates a superior return profile compared to other alternative investment vehicles.

Investments in reinsurance private equities, where we have a meaningful ownership position and the ability to exercise significant influence over operating and financial policies of the investee, are carried under the equity method of accounting. Under this method, we initially record the investments at cost and periodically adjust the carrying values to recognize our proportionate share of income or loss and dividends from these investments. Future adverse changes in general market, global and economic conditions, changes to the interest and currency rate environment or poor operating results by our investments carried under the equity method of accounting could result in losses. At December 31, 2008, our total investment in reinsurance private equity was an interest in Grand Central Re of $4.5 million.

See Note 2 to our audited consolidated financial statements included herein for our significant accounting policies.

Results of Operations

We monitor the performance of our underwriting operations in five segments:

 

   

Bermuda/Dublin reinsurance—This segment generally offers property and casualty quota share and excess of loss capacity from our Bermuda and Dublin offices, providing coverage for underlying risks written by our clients.

 

   

Bermuda/Dublin insurance—This segment generally offers property and casualty excess of loss capacity from our Bermuda and Dublin offices on specific risks related to individual insureds.

 

   

U.S. specialty—This segment generally offers property and casualty coverage from offices in the United States on specific risks related to individual insureds.

 

   

Max at Lloyd’s—This segment generally offers property, personal accident, financial institutions, and professional liability coverage through the Syndicates. This segment comprises our proportionate share of the underwriting results of those Lloyd’s syndicates and the results of our managing agent, Max at Lloyd’s.

 

   

Life and annuity reinsurance—This segment operates out of Bermuda only and generally offers reinsurance products focusing on existing blocks of business, which take the form of co-insurance transactions. In co-insurance transactions, risks are reinsured on the same basis as the original policies.

We also have a corporate function that manages our investment, financing and other administrative activities.

The U.S. specialty and the Max at Lloyd’s segments each have their own portfolio of fixed maturities investments. The investment income earned by each of these segments is reported in the respective segment.

Invested assets relating to the Bermuda/Dublin reinsurance, Bermuda/Dublin insurance and life and annuity segments are managed on a consolidated basis. Consequently, investment income on this consolidated portfolio and gains on the alternative investment portfolio are not directly captured in any one of these segments. However, because of the longer duration of liabilities on casualty insurance and reinsurance business (as compared to property), and life and annuity reinsurance business, investment returns are important in evaluating the profitability of these segments. Accordingly, we allocate investment returns from the consolidated portfolio to each of these three segments. This is based on a notional allocation of invested assets from the consolidated portfolio using durations that are determined based on estimated cash flows into and out of each segment. The balance

 

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of investment returns from this consolidated portfolio are allocated to our corporate function for the purposes of segment reporting. The investment returns for our strategic private equity reinsurance investment are allocated entirely to the corporate function.

Results of Underwriting Operations

Bermuda/Dublin Reinsurance Segment

 

     2008     % change     2007     % change     2006  
     In millions of U.S. Dollars  

Gross premiums written

   $ 419.5     21.5 %   $ 345.2     (18.5 )%   $ 423.6  

Reinsurance premiums ceded

     (92.4 )   107.2 %     (44.6 )   26.3 %     (35.3 )
                            

Net premiums written

     327.1     8.8 %     300.6     (22.6 )%     388.3  
                            

Net premiums earned(a)

     341.8     9.2 %     312.9     (26.0 )%     422.8  
                            

Net investment income

     36.1     (12.2 )%     41.1     6.5 %     38.6  

Net (losses) gains on alternative investments

     (51.1 )   (196.4 )%     53.0     162.4 %     20.2  
                            

Total revenues

     326.8     19.7 %     407.0     (15.5 )%     481.6  
                            

Net losses and loss expenses(b)(c)

     218.8     26.3 %     173.3     (41.5 )%     296.0  

Acquisition costs(c)

     51.3     (15.8 )%     60.9     (21.2 )%     77.3  

Interest expense

     7.5     (37.0 )%     11.9     N/A       (3.8 )

General and administrative expenses(c)

     28.6     0.7 %     28.4     20.9 %     23.5  
                            

Total losses and expenses

     306.2     11.5 %     274.5     (30.2 )%     393.0  
                            

Income before taxes

   $ 20.6     (84.5 )%   $ 132.5     49.5 %   $ 88.6  
                            

Loss ratio(b)/(a)

     64.0 %       55.4 %       70.0 %

Combined ratio(c)/(a)

     87.4 %       83.9 %       93.9 %

 

The loss ratio is calculated by dividing losses (shown as (b)) by net premium earned (shown as (a)). The combined ratio is calculated by dividing the sum of losses, acquisition costs and general and administrative expenses (shown as (c)) by net premiums earned (shown as (a)).

 

    Year Ended
December 31,
2008
  % of
Premium
Written
    Year Ended
December 31,
2007
  % of
Premium
Written
    Year Ended
December 31,
2006
  % of
Premium
Written
 
    In millions of U.S. Dollars  

Gross Premiums Written by Type of Risk:

           

Agriculture

  $ 80.5   19.2 %   $ 1.0   0.3 %   $ —     0.0 %

Aviation

    31.5   7.5 %     34.1   9.9 %     35.4   8.4 %

Excess liability

    10.2   2.4 %     16.7   4.8 %     66.9   15.8 %

Medical malpractice

    77.1   18.4 %     53.1   15.4 %     53.4   12.6 %

Other

    1.9   0.5 %     6.0   1.7 %     8.2   2.0 %

Professional liability

    38.7   9.2 %     33.7   9.8 %     60.7   14.3 %

Property and property catastrophe

    99.3   23.7 %     89.2   25.8 %     67.5   15.9 %

Marine and energy

    12.8   3.0 %     47.1   13.6 %     29.2   6.9 %

Whole account

    12.9   3.1 %     15.1   4.4 %     43.5   10.3 %

Workers compensation

    54.6   13.0 %     49.2   14.3 %     58.8   13.8 %
                       
  $ 419.5   100.0 %   $ 345.2   100.0 %   $ 423.6   100.0 %
                       

 

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Gross premiums written. Gross premiums written for the year ended December 31, 2008 were in line with our plan for the year. We believe our diversified product line provides us with flexibility to take advantage of the opportunities available in the market. In 2008, we saw attractive opportunities in the agriculture, medical malpractice and property and property catastrophe lines. The $79.5 million increase in agriculture business written was the result of a combination of attractive opportunities and strong agriculture market conditions, which may not continue in future periods. The decrease in excess liability and marine and energy premiums were consistent with our plan and is principally a consequence of maintaining our underwriting discipline in a softer market. We believe market conditions for 2009 are pointing towards improvements in pricing for short tail lines of business and then as the year progresses, improvements in longer tail casualty lines of business.

Gross premiums written for the year ended December 31, 2008 include premium estimate adjustments on prior year contracts, which decreased gross premiums written by $46.0 million, compared to a decrease of $9.3 million in 2007. The largest adjustments were due to cedants writing less business than originally expected due to a change in market conditions. For quota share or proportional property and casualty reinsurance contracts, gross premiums written are normally estimated at inception based on information provided by cedants and/or brokers. We believe that the ceding clients’ estimate of the volume of business they expect to cede to us represents the best estimate of gross premium written at the beginning of the contract. As the contract progresses, we continue to monitor actual premium received in conjunction with correspondence from the ceding client and we obtain further client estimates. Gross premiums written also include reinstatement premiums of $10.8 million principally triggered by property catastrophe losses incurred during the year ended December 31, 2008.

For the year ended December 31, 2007, gross premiums written decreased by 18.5% compared to the same period in 2006. Gross premiums written for excess liability, professional liability, whole account and workers compensation lines decreased in total by $115.1 million largely as a result of the non-renewal of four contracts and the restructuring of two reinsurance contracts at renewal. In addition, there was a reduction of $9.3 million in premium estimates on contracts written in prior periods. This reduction included a $15.2 million adjustment to previously recognized additional premiums on one contract where we are entitled to additional premiums should losses exceed pre-determined, contractual thresholds. Based on updated information received from the client in 2007, our estimate of losses was adjusted downwards, resulting in a corresponding adjustment to premiums. These decreases were partially offset by growth in property and property catastrophe and marine and energy business where pricing remained at levels satisfactory to us.

We continue to monitor pricing and market trends closely and changes to our premium mix reflect the risk types where we believe our price requirements and terms and conditions are being met. As a result, our gross reinsurance premium volume and mix may vary from period to period. In addition, changes in client appetite for risk retentions will vary with reinsurance market conditions and general economic conditions, and may also cause fluctuations in our premium volume and mix.

Reinsurance premiums ceded. The increase in reinsurance premiums ceded for the year ended December 31, 2008 compared to the year ended December 31, 2007 was principally attributable to increases of $13.1 million, $9.2 million and $8.1 million of quota share premiums ceded for our workers compensation, medical malpractice, and agriculture product lines, respectively, corresponding to the associated growth in gross premiums written for those product lines. Reinsurance premiums ceded generally relate to the purchase of specific reinsurance to manage risks associated with our reinsurance underwriting and to manage the exposure retained by us on certain transactions. Reinstatement premiums ceded triggered by property catastrophe losses during the year ended December 31, 2008 were $1.7 million, compared to $nil for the year ended December 31, 2007.

 

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The increase in premiums ceded for the year ended December 31, 2007 compared to the same period in 2006 was principally attributable to a reinsurance quota share treaty that is utilized to manage our retained exposure on our property business. We also purchased additional excess of loss protection for our property and aviation reinsurance business in the year ended December 31, 2007.

Net investment income and gains on alternative investments. The overall performance of our fixed maturities portfolio and alternative investment portfolio is discussed within the corporate function results of operations as we manage investments for this segment on a consolidated basis with the Bermuda/Dublin insurance and life and annuity reinsurance segments.

Net losses and loss expenses. The increase in both net losses and the loss ratio in 2008 is principally attributable to higher property catastrophe losses, partly offset by a greater amount of favorable prior year loss reserve development compared to 2007. The principle components of the net loss for 2008 were the following:

 

   

Hurricane-related losses, net of reinsurance, of $47.0 million, which contributed 13.8 percentage points to the loss ratio;

 

   

Net favorable loss reserve development of $68.1 million arising from the re-estimation of liabilities from our quarterly and annual actuarial review process and the final settlement of prior period reinsurance reserves. Favorable development reflects the lower than expected claims emergence on prior year contracts. The majority of the favorable development occurred on 2005 and prior years. Lines of business with the largest favorable development were professional liability ($25.8 million), whole account ($15.1 million), property and property catastrophe ($22.1 million), and general liability ($9.5 million). The only line of business with adverse development was marine and energy, with $13.5 million;

 

   

Favorable development of $17.0 million arising from changes in reinsurance premium estimates of $46.0 million. This favorable development was more than offset by decreases in earned premium net of acquisition costs of $24.2 million, and resulted in a $7.2 million reduction in net income; and

 

   

An increase of approximately 5.0 percentage points to the current year accident year loss ratio due to the soft market conditions and higher than expected agriculture losses.

The decrease in both net losses and the loss ratio in 2007 compared to 2006 was principally attributable to no property catastrophe losses, partly offset by a greater amount of favorable prior year loss reserve development compared to 2006. Net losses were $173.3 million for the year ended December 31, 2007 compared to $296.0 million for the year ended December 31, 2006, a decrease of 41.5%. The principal components of the net loss for 2007 were the following:

 

   

A decrease in net premiums earned of $109.9 million resulting in a corresponding decrease in net losses of $76.9 million at a 70.0% loss ratio;

 

   

Net favorable development of $13.0 million stemming from one contract where updated information received from the client indicated reported losses lower than previously expected;

 

   

An agreement to settle a large block of prior period reserves resulting in a net $15.2 million release in reserves;

 

   

Net favorable development of $36.0 million arising from the re-estimation of liabilities from our quarterly and annual actuarial review process. There were no individual contracts or lines of business with significant development. Marine, medical malpractice, professional liability and workers’ compensation all had between $5.0 million and $10.0 million in favorable development, with most other lines of business having between $nil and $5.0 million in favorable development;

 

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Adverse development of $20.0 million on a marine reinsurance quota share contract that had losses in relation to the 2005 hurricanes. As a result of this development, the contract has reached the aggregate limit; and

 

   

During the year ended December 31, 2007, we received information on a number of contracts that indicated lower than expected losses. As a result, we recognized $5.0 million in favorable development of prior year reserves. These contracts contained provisions for the adjustment of ceding commissions within a range based on losses incurred on the contract. As a result, the favorable development was largely offset by additional acquisition costs.

For 2007, the increase in our property and property catastrophe business as a percentage of total net earned premiums in a year with lower than expected large loss events resulted in a decline in our average loss ratio for the segment, partially offset by the purchase of additional excess of loss reinsurance in 2007.

Net losses and loss expenses for the year ended December 31, 2006 included net favorable development on prior year reserves of $10.2 million. This included $4.3 million arising from changes in premium estimates and $6.7 million from the re-estimation of liabilities. The $6.7 million net favorable development principally related to our 2003 excess liability insurance products, which developed more favorably than originally estimated. Accordingly, we reduced gross reserves by $35.5 million and losses recoverable from reinsurers by $15.0 million, to reflect the change in estimates. In addition, there was partially offsetting adverse development on the property and casualty reinsurance business, including $8.6 million in relation to 2005 hurricane losses.

Acquisition costs. The decrease in acquisition costs for the year ended December 31, 2008 compared to the year ended December 31, 2007, is principally attributable to changes in our business mix, with the largest impact resulting from lower acquisition costs in our agriculture product line. Acquisition costs vary from contract to contract depending on characteristics such as the type of business, the clients’ cost to administer the underlying contracts and the involvement of a broker. These factors may result in differences in the ratio of acquisition costs to net premiums earned from period to period.

Acquisition costs decreased by 21.2% for the year ended December 31, 2007 compared to the same period in 2006. The percentage decrease in acquisition costs is lower than the percentage decrease in net premiums earned due to the adjustment of the ceding commission on a number of contracts as described in the losses section above.

Interest expense. Interest expense for the year ended December 31, 2008 includes $4.9 million on the funds withheld on the variable quota share retrocession agreement with Grand Central Re compared to $9.3 million of expense for the year ended December 31, 2007. The interest expense on the Grand Central Re funds withheld is based on the average of two total return fixed maturity indices.

Interest expense for the year ended December 31, 2007 includes $9.3 million of interest expense pertaining to the funds withheld on the variable quota share retrocession agreement with Grand Central Re for the year ended December 31, 2007 compared to $7.0 million for the year ended December 31, 2006. Offsetting the interest expense for the year ended December 31, 2006 was a reduction of $12.0 million in interest expense related to a non risk-bearing contract for which the ultimate loss estimate was reduced.

General and administrative expenses. General and administrative expenses for the year ended December 31, 2008 remained stable compared to the 2007 year, contributing to the decline in our combined ratio as net premiums earned increased.

General and administrative expenses increased 20.9% for the year ended December 31, 2007 compared to the 2006 year. The increase partially reflected an increasingly mature book of business and the additional claims and underwriting staff hired

 

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since December 31, 2006, in order to service a larger client base. The increase also reflected higher incentive based compensation stemming from the net income generated by this segment for the year ended December 31, 2007.

Income before taxes. The $111.9 million decrease in income before taxes between the year ended December 31, 2008 and the year ended December 31, 2007 is principally attributable to the year-over-year decrease in gains on alternative investments of $104.1 million and the 3.5 percentage point increase in the segment’s combined ratio.

Income before taxes increased $43.9 million for the year ended December 31, 2007 compared to the same period in 2006. Major components of the increase were $15.2 million release of net loss reserves related to an agreement to settle a large block of prior period reserves and the net favorable development of $16.0 million on various lines of business. Additionally, the 16.97% return on alternative investments for the year ended December 31, 2007 compared to a 6.96% return in the year ended December 31, 2006, accounted for $32.8 million of the increase. Partially offsetting these increases was the increase in interest expense of $15.7 million compared to the prior year.

Bermuda/Dublin Insurance Segment

 

     2008     % change     2007     % change     2006  
     In millions of U.S. Dollars  

Gross premiums written

   $ 389.4     1.7 %   $ 382.9     (3.5 )%   $ 396.6  

Reinsurance premiums ceded

     (198.1 )   (1.9 )%     (202.0 )   3.9 %     (194.5 )
                            

Net premiums written

     191.3     5.7 %     180.9     (10.5 )%     202.1  
                            

Net premiums earned(a)

     182.0     (8.8 )%     199.6     0.9 %     197.9  
                            

Net investment income

     18.4     14.3 %     16.1     8.1 %     14.9  

Net (losses) gains on alternative investments

     (23.5 )   (264.3 )%     14.3     180.4 %     5.1  

Other income

     1.1     N/A       —       N/A       —    
                            

Total revenues

     178.0     (22.6 )%     230.0     5.6 %     217.9  
                            

Net losses and loss expenses(b)

     142.1     (7.6 )%     153.8     23.8 %     124.2  

Acquisition costs

     (2.8 )   (133.3 )%     (1.2 )   N/A       (0.1 )

General and administrative expenses

     21.1     8.8 %     19.4     24.4 %     15.6  
                            

Total losses and expenses(c)

     160.4     (6.7 )%     172.0     23.1 %     139.7  
                            

Income before taxes

   $ 17.6     (69.7 )%   $ 58.0     (25.8 )%   $ 78.2  
                            

Loss ratio(b)/(a)

     78.1 %       77.1 %       62.8 %

Combined ratio(c)/(a)

     88.2 %       86.2 %       70.6 %

 

The loss ratio is calculated by dividing losses (shown as (b)) by net premium earned (shown as (a)). The combined ratio is calculated by dividing losses and expenses (shown as (c)) by net premiums earned (shown as (a)).

 

    Year Ended
December 31,
2008
  % of
Premium
Written
    Year Ended
December 31,
2007
  % of
Premium
Written
    Year Ended
December 31,
2006
  % of
Premium
Written
 
    In millions of U.S. Dollars  

Gross Premiums Written by Type of Risk:

           

Aviation

  $ 53.1   13.6 %   $ 40.9   10.7 %   $ 21.9   5.6 %

Excess liability

    123.5   31.7 %     131.5   34.3 %     162.8   41.0 %

Professional liability

    159.1   40.9 %     157.5   41.1 %     150.9   38.0 %

Property

    53.7   13.8 %     53.0   13.9 %     61.0   15.4 %
                       
  $ 389.4   100.0 %   $ 382.9   100.0 %   $ 396.6   100.0 %

 

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Gross premiums written. Premium volume in this segment for the year ended December 31, 2008 was consistent with our plan and has remained stable compared to the years ended December 31, 2007 and 2006. As a result of increased competition on our excess liability business, we did not renew a number of our excess liability contracts where pricing fell below our risk/return requirements, resulting in the downwards trend of excess liability since 2006. This trend has been partly offset by growth in our aviation and professional liability business in each of 2007 and 2008. Typically, insurance business is written on an individual risk excess of loss basis with contractually defined premiums rather than estimates, which results in no material premium adjustments.

Reinsurance premiums ceded. Reinsurance premiums ceded were principally related to quota share treaties that we utilize to manage our retained exposure, and, therefore, will tend to fluctuate in line with gross premiums written. The ratio of reinsurance premiums ceded to gross premiums written for the year ended December 31, 2008 was 50.9% compared to 52.8% for the year ended December 31, 2007. The decreased ratio is principally related to the decrease in the percentage ceded under several of our reinsurance quota share treaties and the decrease in the cost of excess of loss reinsurance.

The ratio of reinsurance premiums ceded to gross premiums written for the year ended December 31, 2007 was 52.8% compared to 49.0% for the year ended December 31, 2006. The increase in premiums ceded, despite the decrease in gross premiums written, were principally related to increasing the percentage ceded to our property quota share treaty and to reinstatement premiums recognized in relation to our aviation excess of loss reinsurance contracts that were triggered by aviation losses, including a Brazilian airline crash, in 2007.

Net investment income and net (losses) gains on alternative investments. The overall performance of our fixed maturities portfolio and alternative investment portfolio is discussed within the corporate function results of operations as we manage investments for this segment on a consolidated basis with the Bermuda/Dublin reinsurance and life and annuity reinsurance segments.

Net losses and loss expenses. The increase in the loss ratio in 2008 is principally attributable to higher property catastrophe and per-risk losses, partly offset by a greater amount of favorable prior year loss reserve development compared to 2007. Hurricanes in the United States resulted in net losses of $5.4 million and $nil for the years ended December 31, 2008 and 2007, respectively. For the year ended December 31, 2008, net favorable loss reserve development on prior year reserves was $22.6 million, compared to $8.8 million in 2007. The lines of business with the largest favorable development in 2008 were property ($18.3 million) and aviation ($2.0 million). In 2007 the lines of business with the largest favorable development were property ($5.7 million) and excess liability ($1.7 million). The greater proportion of aviation business written in 2008 has also resulted in an increase in our current accident year loss ratio for this segment.

Losses were $153.8 million for the year ended December 31, 2007 compared to $124.2 million for the year ended December 31, 2006, an increase of 23.8%. During the year ended December 31, 2007, we recorded $8.8 million net favorable development on reserves compared to net favorable development of $20.5 million on reserves for the year ended December 31, 2006. The favorable development in 2007 was partially offset by a net loss of $5.6 million stemming from aviation losses in 2007.

Acquisition costs. Acquisition costs are net of ceding commissions associated with premiums ceded to our quota share partners. These ceding commissions are designed to compensate us for the costs of producing the portfolio of risks ceded to our reinsurers.

General and administrative expenses. The increase in general and administrative expenses in each of 2008 and 2007 compared to the preceding year, resulted principally from additional claims and underwriting staff added over the course of 2008 and 2007 in order to service a growing base of clients and higher expense associated with the vesting of long-term stock-based compensation.

 

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Income before taxes. The decrease in income before taxes for the year ended December 31, 2008 compared to the year ended December 31, 2007 is principally attributable to the year-over-year decrease in gains on alternative investments of $37.8 million, together with the 2.0 percentage point increase in the combined ratio resulting principally from the increase in general and administrative expenses.

The decrease in income before income taxes for the year ended December 31, 2007 compared to the year ended December 31, 2006 is principally attributable to the 15.6% percentage point increase in the combined ratio resulting principally from increased net losses and loss expenses and general and administrative expenses, partially offset by the year-over-year increase in gains on alternative investments of $9.2 million.

U.S. Specialty Segment

Our U.S. specialty segment, which comprises the underwriting operations of our U.S.-based business, commenced underwriting activities in April 2007, with 2008 being the first full year of operations. Comparisons between periods are difficult due to the start-up nature of this segment, may not be meaningful and are not necessarily representative of future trends.

 

     2008     % change     2007  
     (In millions of U.S. Dollars)  

Gross premiums written

   $ 194.3     303.1 %   $ 48.2  

Reinsurance premiums ceded

     (118.7 )   243.1 %     (34.6 )
                  

Net premiums written

     75.6     455.9 %     13.6  
                  

Net premiums earned(a)

     43.8     N/A       4.0  

Net investment income

     7.2     20.0 %     6.0  

Net realized losses on fixed maturities

     (0.5 )   N/A       —    

Other income

     0.3     N/A       —    
                  

Total revenues

     50.8     408.0 %     10.0  
                  

Net losses and loss expenses(b)(c)

     30.4     N/A       3.3  

Acquisition costs(c)

     3.0     N/A       0.4  

General and administrative expenses(c)

     27.2     56.3 %     17.4  
                  

Total losses and expenses

     60.6     187.2 %     21.1  
                  

Loss before taxes

   $ (9.8 )   (11.7 )%   $ (11.1 )
                  

Loss ratio(b)/(a)

     69.4 %       82.0 %

Combined ratio(c)/(a)

     138.5 %       N/A  

 

The loss ratio is calculated by dividing losses (shown as (b)) by net premium earned (shown as (a)). The combined ratio is calculated by dividing total losses and expenses (shown as (c)) by net premiums earned (shown as (a)). For the 2007 year, due to the start-up nature of the segment, the calculated combined ratio does not provide a meaningful result and is therefore shown as N/A.

 

     Year Ended
December 31,
2008
   % of
Premium
Written
    Year Ended
December 31,
2007
   % of
Premium
Written
 
     In millions of U.S. Dollars  

Gross Premiums Written by Type of Risk:

          

Property

   $ 95.8    49.3 %   $ 34.7    72.0 %

General casualty

     59.8    30.8 %     12.3    25.5 %

Marine

     38.7    19.9 %     1.2    2.5 %
                  
   $ 194.3    100.0 %   $ 48.2    100.0 %
          

Gross and net premiums written and earned. Gross premiums written and ceded increased substantially in 2008 compared to 2007 and reflect the growth of this segment in

 

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its first full year of operations. Our gross premiums written exceeded our plan for the year ended December 31, 2008, with strong growth in the last quarter of the year as we continue to expand and diversify our client base. The mix of business written by type of risk in 2008 was in line with our expectations. Reinsurance premiums ceded for the U.S. specialty segment reflect the purchase of quota share and excess of loss reinsurance coverage to manage our retained exposure for risks underwritten. We continue to purchase substantial reinsurance protection while we build out this operation. However, assuming gross premiums written are in line with our plan, we anticipate that the ratio of premiums ceded to gross premiums written will continue on a downwards trend for the next several years.

Net investment income. Net investment income relating to the U.S. specialty segment, which excludes realized and unrealized gains and losses, is comprised principally of interest on cash and fixed maturities investments held by Max Specialty and Max America. The average annualized investment yield on cash and fixed maturities for the year ended December 31, 2008 was 4.59% compared to 5.08% for the year ended December 31, 2007.

Net losses and loss expenses. The absolute increase in net losses and loss expenses of $27.1 million is consistent with the increase in net premiums earned, while the loss ratio of 69.4% has improved by 12.6 percentage points, compared to the year ended December 31, 2007. As our U.S. specialty segment has grown, we have purchased substantial reinsurance coverage in order to protect our capital base. Accordingly, our reinsurance premiums ceded have been a significant proportion of gross premiums written, which has the effect of increasing the net loss ratio. We believe this effect will naturally decrease as gross premiums written volume increases and the ratio of reinsurance ceded to gross premiums written decreases. Losses in this segment typically comprise a larger volume of smaller dollar value losses compared to our Bermuda/Dublin reinsurance and insurance segments. Losses recognized in the years ended December 31, 2008 and 2007 related to hurricane events were $5.0 million and $nil, respectively, net of reinsurance recoveries.

General and administrative expenses. General and administrative expenses principally comprise personnel and infrastructure costs, which have grown in line with the growth in gross premiums written, but have also decreased throughout 2008 as a percentage of net earned premiums, as expected. Compared to our other segments, we expect this segment to have a higher volume of smaller-sized transactions. Due to the greater number of personnel required to generate and process the high volume of transactions, we expect a higher general and administrative expense ratio in this segment compared to our other segments.

Loss before taxes. In line with expectations for this segment, net premiums earned grew at a significantly higher rate than general and administrative expenses during the year ended December 31, 2008, bringing the combined ratio down to 138.5%. As a result, the net loss before taxes has improved by $1.3 million compared to the year ended December 31, 2007. As our net earned premium grows, we expect the combined ratio to move more in line with our other segments.

Max at Lloyd’s Segment

Our Max at Lloyd’s segment comprises all of our UK-based operating businesses acquired on November 6, 2008, which are primarily the underwriting operations of our proportionate share of Syndicates 1400, 2525 and 2526. The results of operations for the Max at Lloyd’s segment are consolidated only from the November 6, 2008 date of acquisition. We provide 100%, 2.0% and 36.4% of the capacity for Syndicates 1400, 2525 and 2526, respectively, for the 2008 year of account.

For the period from November 6 to December 31, 2008, our Max at Lloyd’s segment produced a loss before taxes of $0.1 million, with gross premiums written of $8.8 million.

 

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Given the November 6, 2008 timing of the acquisition date, the results of this segment were not significant to us for the year ended December 31, 2008. Pursuant to a pre-existing quota share reinsurance agreement, 70% of Syndicate 1400’s net results for the 2007 and 2008 years of account are reinsured with the previous owner of Max UK.

Life and Annuity Reinsurance Segment

 

    2008     % change     2007     % change     2006  
    In millions of U.S. Dollars  

Gross premiums written

  $ 242.2     (19.8 )%   $ 301.9     570.9 %   $ 45.0  

Reinsurance premiums ceded

    (0.5 )   N/A       (0.5 )   (28.6 )%     (0.7 )
                           

Net premiums written

    241.7     (19.8 )%     301.4     580.4 %     44.3  
                           

Net premiums earned

    241.7     (19.8 )%     301.4     580.4 %     44.3  
                           

Net investment income

    40.0     (18.0 )%     33.9     16.9 %     29.0  

Net (losses) gains on alternative investments

    (100.9 )   (266.2 )%     60.7     165.1 %     22.9  
                           

Total revenues

    180.8     (54.3 )%     396.0         96.2  
                           

Claims and policy benefits

    301.5     (12.8 )%     345.6     344.2 %     77.8  

Acquisition costs

    (0.1 )   (108.3 )%     1.2     (29.4 )%     1.7  

Interest expense

    6.8     (1.4 )%     6.9     32.7 %     5.2  

General and administrative expenses

    2.9     3.6 %     2.8     (6.7 )%     3.0  
                           

Total benefits and expenses

    311.1     (12.7 )%     356.5     306.5 %     87.7  
                           

(Loss) income before taxes

  $ (130.3 )   (429.9 )%   $ 39.5     364.7 %   $ 8.5  
                           

Number of transactions written

    3         6         1  

Our life and annuity reinsurance segment writes life and annuity reinsurance transactions when attractive opportunities arise. The nature of life and annuity reinsurance transactions that we consider results in a limited number of transactions actually bound with potentially large variations in quarterly and annual premium volume. Consequently, components of our underwriting results, such as premiums written, premiums earned and benefits can be volatile and, accordingly, period to period comparisons are not necessarily representative of future trends.

We wrote three life and annuity contracts during the year ended December 31, 2008 with gross premiums written totaling $239.6 million, each covering a closed block of pension annuities for existing clients. For the year ended December 31, 2007, we wrote six reinsurance contracts, each covering closed blocks of pension annuities, compared to one contract written in 2006. Of the gross premiums written in 2007, $207.9 million was from new clients and $91.4 million was from existing clients.

Apart from the components related to the contracts incepting during the years ended December 31, 2008, 2007 and 2006, gross premiums written, reinsurance premiums ceded, net premiums earned, acquisition costs and general and administrative expenses represent ongoing premium receipts or adjustments and related administration expenses on existing contracts. Interest expense relates to interest on funds withheld on the variable quota share retrocession agreement with Grand Central Re and on certain deposit liabilities. The interest expense on funds withheld from Grand Central Re is based on the average of two total return fixed maturity indices, which varies from period to period.

Net investment income and net (losses) gains on alternative investments. The overall performance of our fixed maturities portfolio and alternative investment portfolio is discussed within the corporate function results of operations as we manage investments for this segment on a consolidated basis with the Bermuda/Dublin reinsurance and Bermuda/Dublin insurance segments.

 

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Claims and policy benefits. Claims and policy benefits relating to the life and annuity reinsurance segment were $301.5 million for the year ended December 31, 2008, of which $239.6 million related to the contracts incepting during the year, compared to claims and policy benefits of $345.6 million for the year ended December 31, 2007, of which $299.3 million related to the contracts incepting during the year. Excluding the contracts incepting during each year, benefits were $61.9 million for the year ended December 31, 2008 compared to $46.3 million for the year ended December 31, 2007. The increase reflects additional reinsured policy claims payments associated with the $238.4 million of reinsurance premiums written in the last quarter of 2007 and the $94.3 million of reinsurance premiums written in the first half of 2008.

For the years ended December 31, 2007 and 2006, excluding the contracts incepting during each year, benefits were $46.3 million and $36.0 million, respectively. The increase reflected the additional reinsured policy claims payments associated with the six reinsurance contracts written during 2007.

(Loss) income before taxes. Loss before taxes for the year ended December 31, 2008 was $130.3 million compared to income before taxes of $39.5 million for the year ended December 31, 2007. The results are primarily driven by the spread between the actual rate of return on our investments and the rate of return assumption used when pricing the business that we write, together with no material unexpected changes in our estimates of life and annuity benefit reserves. As a result, the principal contributor to the $169.8 million decrease in income before taxes for the year ended December 31, 2008 compared to the year ended December 31, 2007, was the $161.6 million year-over-year decrease in net gains on alternative investments. Similarly, the principal contributor to the $31.0 million increase in income before taxes for the year ended December 31, 2007 compared to the year ended December 31, 2006 was the $37.8 million year-over-year increase in net gains on alternative investments.

Corporate Function

The results of operations for the corporate function discussed below include the net investment income, net losses and gains on alternative investments, and net realized losses on fixed maturities for all of our segments, including amounts which are allocated to the segments and included in the segment discussions above. These investment results are presented below on a consolidated basis for purposes of ease of discussion.

All other items represent the portion not allocated or discussed in the results of operations of our other segments.

 

     2008     % change     2007     % change     2006  
     In millions of U.S. Dollars  

Net investment income

   $ 181.6     (3.5 )%   $ 188.2     25.5 %   $ 150.0  

Net (losses) gains on alternative investments

     (233.0 )   (224.8 )%     186.7     120.2 %     84.8  

Net realized losses on fixed maturities

     (18.9 )   372.5 %     (4.0 )   (31.0 )%     (5.8 )

Net realized gain on retirement of senior notes(1)

     2.2     N/A       —       N/A       —    

Other (expense) income(1)

     (0.1 )   (114.3 )%     0.7     N/A       1.0  

Interest expense(1)

     (21.8 )   (8.8 )%     (23.9 )   92.7 %     (12.4 )

Foreign exchange losses(1)

     (10.3 )   N/A       —       N/A       —    

General and administrative expenses(1)

     (45.1 )   16.5 %     (38.7 )   (12.2 )%     (44.1 )

 

(1) Amounts are not included in segment results.

 

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Net investment income. The decrease in net investment income, which excludes realized gains and losses, was principally attributable to the decrease in interest rates on cash and cash equivalents and the increase in cash held for the year ended December 31, 2008 compared to the year ended December 31, 2007. The average annualized investment yield on the cash, fixed maturities and funds withheld by clients for the year ended December 31, 2008 was 4.35% compared to 4.96% for the year ended December 31, 2007. The balance of cash and cash equivalents increased significantly during 2008, increasing by $551.7 million to $949.4 million at December 31, 2008. This increase can be attributed principally to two factors, the desire to maintain high levels of liquidity in the current investment environment, and significant cash redemptions received from the alternative investment portfolio which has not been reinvested.

Net investment income from our cash and fixed maturities portfolio for the year ended December 31, 2007 increased $38.2 million compared to the year ended December 31, 2006. The increase was principally attributable to the growth in the cash and fixed maturities portfolio from $3,470.0 million at December 31, 2006 to $4,060.9 million at December 31, 2007, together with an increase in yield on the fixed maturities portfolio. The average annualized investment yield on the cash, fixed maturities investments and funds withheld by clients for the year ended December 31, 2007 was 4.96% compared to 4.73% for the year ended December 31, 2006.

Net (losses) gains on alternative investments. Net losses on the alternative investment portfolio were $233.0 million, or a negative 19.27% rate of return, for the year ended December 31, 2008 compared to a net gain of $186.7 million, or a 16.97% rate of return, for the year ended December 31, 2007. These returns include gains of $0.5 million and $2.4 million from our private equity reinsurance investment for the year ended December 31, 2008 and 2007, respectively. The remainder of our alternative investments comprises the Max Diversified portfolio.

The return for Max Diversified was negative 19.38% for the year ended December 31, 2008, compared to the HFRI Fund of Funds Composite Index returning negative 20.97%. The year ended December 31, 2008 experienced a continuation of tight credit conditions, a slumping U.S. housing market and slowing economic growth, culminating in unprecedented U.S. and foreign government intervention in the financial markets. These highly volatile market conditions had a greater than anticipated negative impact on our Max Diversified portfolio. The investment environment was challenging across a broad range of industries and particularly hard on equity asset classes, with the S&P 500 Index experiencing a negative 37.0% rate of return for the year ended December 31, 2008.

All but one of the alternative investment strategies we employed experienced negative returns during the year ended December 31, 2008. The largest contributors by investment strategy to the loss for the current period were the long/short equity and the event-driven arbitrage strategies. As of December 31, 2008, 38.5% and 9.9% of our alternative investments were allocated to long/short equity and event-driven arbitrage strategies, respectively. The long/short equity strategy typically entails the purchase of common stock of companies in a particular sector with perceived strong fundamentals and sell common stock of companies in the same sector that are perceived to have deteriorating fundamentals. The strategy attempts to create investment returns through superior stock selection based upon fundamental analysis rather than creating returns based simply upon upward price direction of the overall stock market. The event-driven arbitrage strategy typically entails the purchase of securities of a company involved in a significant corporate event. Event-driven arbitrage funds will typically employ merger arbitrage techniques along with traditional arbitrage techniques for companies that are spinning off divisions, going through reorganizations or undergoing other significant corporate events. In previous periods these strategies contributed to significant out-performance; however, this growth also led to increasing concentration in these strategies. We began to reduce our concentration in these strategies at the start of the third quarter, but market conditions

 

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slowed the pace of rebalancing the portfolio. The increase in market volatility, the increased volatility of alternative investments in general, as well as the decrease in market liquidity has led to a higher risk of a large decline in value in any given time period.

We intend to continue rebalancing the portfolio in 2009, to reduce our allocation to alternative investments to within a target range of 10% to 15% of total investable assets, and to move towards a more market neutral/absolute return portfolio, with increased diversification by strategy and underlying Fund. These actions will be made in accordance with new investment guidelines adopted in October 2008, which may be amended from time to time. A market neutral strategy strives to generate consistent returns in both up and down markets by selecting long and short positions with a total net exposure of zero. Returns are derived from the long/short spread, or the amount by which long positions outperform short positions. The objective of an absolute return strategy is to provide stable performance regardless of market conditions, with minimal correlation to market benchmarks. In the current investment environment, the process of rebalancing the portfolio may take longer as redemption requests may take longer to be realized. See “Business—Alternative Investments.”

Net gains on the alternative investment portfolio for the year ended December 31, 2007, were $186.7 million, or a 16.97% rate of return, including a gain of $2.4 million from our private equity reinsurance investment, compared to $84.8 million, or a 6.96% rate of return, including a gain of $10.0 million from our private equity reinsurance investments, for the year ended December 31, 2006. For 2007, the return from our Max Diversified portfolio was 16.78%. This return compares to the returns available in the capital markets as represented by the Merrill Lynch Master Bond Index returning 7.17%, the Standard & Poor’s 500 Index returning 5.49% and the HFRI Fund of Funds Composite Index returning 10.25% in 2007.

Each alternative investment strategy we employed was profitable during the year ended December 31, 2007. Alternative investment strategies principally contributing to the gains in the 2007 year were the event-driven arbitrage and long/short equity strategies, which returned 36.14% and 26.94%, respectively. Contributing to the returns were meaningful gains from a variety of long and short sub-prime mortgage positions taken by several of the underlying funds in our Max Diversified portfolio. As at December 31, 2007, 16.1% and 25.4% of our alternative investments were allocated to the event-driven arbitrage and long/short equity strategies, respectively.

Net realized losses on fixed maturities. As of December 31, 2008, our total fixed maturities portfolio is split into two portfolios: the first is a trading portfolio that was acquired as part of our Max UK acquisition; the second is our available for sale portfolio which remains the same portfolio that was previously known as our fixed maturities portfolio. Our trading portfolio is recorded at fair value with unrealized gains and losses recorded in net income as net realized gains or losses, all of which are reported within our Max UK segment. Our available for sale portfolio is recorded at fair value with unrealized gains and losses recorded in other comprehensive income as part of total shareholders’ equity. Our available for sale fixed maturities investment strategy is not intended to generate significant realized gains and losses as more fully discussed under Financial Condition below. Net realized losses on our fixed maturities portfolios for the years ended December 31, 2008, 2007 and 2006, were $18.9 million, $4.0 million and $5.8 million, respectively.

Included in net realized losses for the years ended December 31, 2008, 2007 and 2006, were other than temporary impairment charges of $16.9 million, $1.1 million and $nil, respectively, on securities for which we believe there is significant doubt over the ultimate recoverability of the maturity value. We perform regular reviews of our available for sale fixed maturities portfolio in order to identify investments that are showing signs of potential other than temporary impairments. The indicators include the issuer’s financial condition and ability to make future scheduled interest and principal payments, the nature of collateral or other credit support and significant economic events that have occurred that affect the industry in which the issuer participates.

 

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Included in net realized losses for the year ended December 31, 2008 was a $3.8 million realized loss on a futures transaction that was initiated and fully settled in September 2008. This transaction was initiated as an economic hedge on a portion of our holdings of U.S. government securities. Net realized losses for the year ended December 31, 2007 includes $1.7 million of gross realized losses resulting from the sale of fixed maturities triggered by an agreement to settle a block of prior period reserves.

Interest expense. Interest expense principally reflects interest on our bank loans and senior notes outstanding. The Max Bermuda $225.0 million swap loan and the Max Capital $150.0 million revolving credit facility loan, both described below under “Financial Condition—Bank Loans,” each bear interest at a rate based on LIBOR plus a spread. We also had $100.0 million in senior notes outstanding throughout 2008 that were issued in April 2007, mature in April 2017 and bear interest at 7.20%. Interest expense for 2008 decreased compared to 2007 primarily due to the impact of decreased LIBOR interest rates, partially offset by the $36.6 million increase in outstanding debt as of December 31, 2008 compared to December 31, 2007.

Interest expense was $23.9 million for the year ended December 31, 2007 compared to $12.4 million for the year ended December 31, 2006. Interest expense for the year ended December 31, 2007 increased primarily due to the $219.8 million increase in outstanding debt at December 31, 2007 compared to the same period in 2006.

Foreign exchange losses. Foreign exchange losses for the year ended December 31, 2008 of $10.6 million arose in connection with the purchase of Max UK. We purchased British pounds in advance of the acquisition of Max UK and before the transaction closed the value of the British pound dropped significantly relative to the U.S. dollar. Foreign exchange gains and losses for the years 2007 and 2006 were not significant to our operating results.

General and administrative expenses. The increase in general and administrative expense for the year ended December 31, 2008 compared to 2007 was principally related to professional fees associated with acquisition activity during the year. The decrease in general and administrative expenses during the year ended December 31, 2007 compared to 2006 was principally related to a decrease in professional fees.

Financial Condition

Cash and invested assets. Aggregate invested assets, comprising cash and cash equivalents, fixed maturities and alternative investments, were $5,356.9 million at December 31, 2008 compared to $5,122.6 million at December 31, 2007, an increase of 4.6%. The increase in cash resulted principally from the acquisition of Max UK, which had significant cash balances in excess of the purchase price; net redemptions from alternative investments during the year; life and annuity gross premiums written, which are fully received at inception; and a reduced level of fixed maturities purchases.

We own a trading portfolio and an available for sale portfolio of fixed maturities securities. We record both investment portfolios at fair value on our balance sheet. On our trading portfolio, the unrealized gain or loss associated with the difference between the fair value and the amortized cost of the investments is recorded in net income as a net realized gain or loss. On our available for sale portfolio, the unrealized gain or loss associated with the difference between the fair value and the amortized cost of the investments is recorded in other comprehensive income in the equity section of our balance sheet. Fixed maturities are subject to fluctuations in fair value due to changes in interest rates, changes in issuer specific circumstances, such as credit rating changes, and changes in industry specific circumstances, such as movements in credit spreads based on the market’s perception of industry risks. As a result of these potential fluctuations, it is possible to have significant unrealized gains or losses on a security. Our strategy for our fixed maturities portfolios is to

 

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tailor the maturities of the portfolios to the timing of expected loss and benefit payments. At maturity, absent any credit loss, a fixed maturity’s amortized cost will equal its fair value and no realized gain or loss will be recognized in income. If, due to an unforeseen change in loss payment patterns, we need to sell available for sale fixed maturity securities before maturity, we could realize significant gains or losses in any period, which could result in a meaningful effect on reported net income for such period.

In order to reduce the likelihood of needing to sell investments before maturity, especially given the unpredictable and potentially significant cash flow requirements of our property catastrophe business, we maintain significant cash and cash equivalent balances. We believe we have the ability to hold those securities in an unrealized loss position until such time as they reach maturity or the fair value increases.

The only time we would expect to realize an other than temporary impairment on a fixed maturity security is if we believed there was significant uncertainty about receiving the interest payments and the maturity value of the investment. We perform regular reviews of our fixed maturities portfolio and utilize a process that considers numerous indicators in order to identify investments that are showing signs of potential other than temporary impairments. The indicators include the issuer’s financial condition and ability to make future scheduled interest and principal payments, benchmark yield spreads, the nature of collateral or other credit support and significant economic events that have occurred that affect the industry in which the issuer participates. As a result of this process, we recognized an other than temporary impairment charge through net income of $16.9 million during the year ended December 31, 2008.

Our portfolio of investment grade fixed maturities includes mortgage-backed and asset-backed securities and collateralized mortgage obligations. These types of securities have cash flows that are backed by the principal and interest payments of a group of underlying mortgages or other receivables. During the years ended December 31, 2008 and 2007, delinquency and default rates have increased on these types of securities, and particularly on securities backed by sub-prime mortgages. Generally, sub-prime mortgages are considered to be those made to borrowers who do not qualify for market interest rates for one or more possible reasons, such as a low credit score, a limited or lack of credit history or a lack of earnings documentation. As a result of the increasing default rates of sub-prime borrowers, there is a greater risk of defaults on mortgage-backed and asset-backed securities and collateralized mortgage obligations, especially those that are non-investment grade. Therefore, fixed maturities securities backed by sub-prime mortgages have exhibited significant declines in fair value and liquidity. These factors combined with the contraction in liquidity in the principal markets for these securities makes the estimate of fair value increasingly uncertain. The fair values of our holdings in securities exposed to sub-prime borrowers are generally not based on quoted prices for identical securities, but are based on model-derived valuations from independent pricing sources as described below. We obtain fair value estimates from multiple independent pricing sources in an effort to mitigate some of the uncertainty surrounding the fair value estimates. If we need to liquidate these securities within a short period of time, the actual realized proceeds may be significantly different from the fair values estimated at December 31, 2008. We believe our investment exposure to sub-prime credit risk is limited although there can be no assurance that events in the sub-prime mortgage sector will not adversely affect the value of our investments. At December 31, 2008, securities with significant exposure to sub-prime borrowers totaled $34.3 million in fair value, $45.6 million in amortized cost and $45.7 million in par value for a net unrealized loss of $11.3 million. By fair value, 61.7% of these securities are AAA-rated, 20.2% AA-rated, and 18.1% are A-rated. The weighted average life of these securities is 2.7 years. As of December 31, 2008, we have determined that a write-down for impairment of these securities is not necessary based on a consideration of relevant factors, including prepayment rates, subordination levels, default rates, credit ratings, weighted average life and cash flow testing. Together with our investment managers, we continue to monitor our potential exposure to sub-prime borrowers, and we will make adjustments to the investment portfolio, if and when deemed necessary.

 

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Generally, Alt-A mortgages are considered to be those made to borrowers who do not qualify for market interest rates but who are considered to have less credit risk than sub-prime borrowers.

The following table summarizes the amortized cost and fair value of our fixed maturities securities with exposure to sub-prime or Alt-A mortgages as of December 31, 2008.

 

     Weighted
Average
Life in
Years
  AAA
Senior
Tranche
  Credit Rating
AAA
Junior
Tranche
  AA   A   BBB+
or
lower
  Amortized
Cost
  Fair
Value
    (In millions of U.S. Dollars)

By Vintage Year

 

Fixed maturities with sub-prime mortgage exposure

               

Pre-2005

  3.6   $ 2.3   $ 0.4   $ 5.4   $ —     $ —     $ 8.1   $ 7.1

2005

  4.1     1.5     —       3.4     —       —       4.9     3.2

2006

  2.4     16.3     4.6     —       9.3     —       30.1     22.4

2007

  2.5     2.5     —       —       —       —       2.5     1.6
                                             

Total

  2.7   $ 22.6   $ 5.0   $ 8.8   $ 9.3   $ —     $ 45.6   $ 34.3
                                             

Fixed maturities with Alt-A mortgage exposure

               

Pre-2005

  5.3   $ 6.0   $ —     $ —     $ —     $ —     $ 6.0   $ 4.8

2005

  1.6     —       16.8     —       —       —       16.8     11.0

2006

  0.7     —       6.0     —       —       3.1     9.1     8.1
                                             

Total

  2.0   $ 6.0   $ 22.8   $ —     $ —     $ 3.1   $ 31.9   $ 23.9
                                             

Total

  2.5   $ 28.6   $ 27.8   $ 8.8   $ 9.3   $ 3.1   $ 77.5   $ 58.2
                                             

As described in Note 3 of our audited consolidated financial statements, our fixed maturities investments and our alternative investments are carried at fair value.

Fair value prices for all securities in our fixed maturities portfolio are independently provided by both our investment custodian and our investment managers, which each utilize nationally recognized independent pricing services. We record the unadjusted price provided by the investment custodian and our validation process includes, but is not limited to: (i) comparison to the price provided by the investment manager, with significant differences investigated; (ii) quantitative analysis (e.g., comparing the quarterly return for each managed portfolio to its target benchmark, with significant differences identified and investigated); (iii) evaluation of methodologies used by external parties to calculate fair value; and (iv) comparing the price to our knowledge of the current investment market.

The independent pricing services used by our investment custodian and investment managers obtain actual transaction prices for securities that have quoted prices in active markets. Each pricing service has its own proprietary method for determining the fair value of securities that are not actively traded. In general, these methods involve the use of “matrix pricing” in which the independent pricing service uses observable market inputs including, but not limited to, reported trades, benchmark yields, broker/dealer quotes, interest rates, prepayment speeds, default rates and such other inputs as are available from market sources to determine a reasonable fair value. In addition, pricing services use valuation models, such as an Option Adjusted Spread model, to develop prepayment and

 

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interest rate scenarios. The Option Adjusted Spread model is commonly used to estimate fair value for securities such as mortgage-backed and asset-backed securities. The ability to obtain quoted market prices is reduced in periods of decreasing liquidity, which generally increases the use of matrix pricing methods and generally increases the uncertainty surrounding the fair value estimates.

Our investment in alternative investments comprise a portfolio of limited partnerships and stock investments in trading entities, or funds, which invest in a wide range of financial products. The units of account that we value are our interests in the funds and not the underlying holdings of such funds. Thus, the inputs we use to value our investments in each of the funds may differ from the inputs used to value the underlying holdings of such funds. These funds are stated at fair value which ordinarily will be the most recently reported net asset value as advised by the fund manager or administrator, where the fund’s underlying holdings can be in various quoted and unquoted investments. We believe the reported net asset value represents the fair value market participants would apply to an interest in the fund. The fund managers value their underlying investments at fair value in accordance with policies established by each fund, as described in each of their financial statements and offering memoranda.

We, together with Alstra, have designed ongoing due diligence processes with respect to funds and their managers, which processes are designed to assist us in assessing the quality of information provided by, or on behalf of, each fund and in determining whether such information continues to be reliable or whether further review is necessary. While reported net asset value is the primary input to the review, when the net asset value is deemed not to be indicative of fair value, we may incorporate adjustments to the reported net asset value. Such adjustments may involve significant judgment. We obtain the audited financial statements for every fund annually, and regularly review and discuss the fund performance with the fund managers to corroborate the reasonableness of the reported net asset values.

We are able to redeem the alternative investments held through Max Diversified on the same terms that the underlying funds can be liquidated. In general, the funds in which Max Diversified is invested require at least 30 days notice of redemption, and may be redeemed on a monthly, quarterly, semi-annually, annual, or longer basis, depending on the fund.

Certain funds may have a lock-up period. A lock-up period refers to the initial amount of time an investor is contractually required to invest before having the ability to redeem. Funds that do provide for periodic redemptions may, depending on the funds’ governing documents, have the ability to deny or delay a redemption request, called a gate. The fund may implement this restriction because the aggregate amount of redemption requests as of a particular date exceeds a specified level, generally ranging from 15% to 25% of the fund’s net assets. The gate is a method for executing an orderly redemption process which allows for redemption requests to be executed in a timely manner to reduce the possibility of adversely affecting the remaining investors in the fund. In the current financial market environment, we have experienced an increase in the number of funds which have imposed gates, and the Company believes it is likely that this trend will continue.

The majority of our alternative investment portfolio remains highly liquid and the imposition of gates by certain funds is not expected to significantly impact our cash flow needs or change our timetable for reducing our allocation to alternative investments. Based upon information provided by the fund managers, as of December 31, 2008, we estimate that over 87.0% of the underlying assets held by our alternative investment funds are traded securities or have broker quotes available. Typically, the imposition of a gate delays a portion of the requested redemption, with the remaining portion settled in cash shortly after the redemption date. Of our scheduled December 31, 2008 redemptions of $98.1 million, none of which are gated, $95.4 million were received in cash prior to February 19, 2009. The fair value of our holdings in funds with gates imposed as at December 31, 2008 were $42.7 million, and are included in the table below.

 

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Certain funds may be allowed to invest a portion of their assets in illiquid securities, such as private equity and convertible debt. In such cases, a common mechanism used is a side-pocket, whereby the illiquid security is assigned to a separate memorandum capital account or designated account. Typically, the investor loses its redemption rights to the designated account. Only when the illiquid security is sold, or otherwise deemed liquid by the fund, may investors redeem their interest. As at December 31, 2008, the fair value of our alternative investments held in side-pockets is $113.4 million. Due to the uncertainty surrounding the timing of the sale of the underlying assets within side-pockets, the estimated timing of liquidity presented in the table below is subject to change.

Had we requested full redemptions for all of our holdings in the funds, the table below indicates our best estimate of the earliest date from December 31, 2008 on which such redemptions might be received. This estimate is based on available information from the funds and is subject to significant change, particularly in the current economic environment.

 

     As at December 31, 2008  
     Fair Value    % of Alternative
Investments
 
     (in thousands)       

Liquidity

     

Within 90 days

   $ 57,297    7.6 %

Between 91 to 120 days

   $ 171,957    23.0 %

Between 121 to 180 days

   $ 253,785    33.9 %

Between 181 to 270 days

   $ 12,264    1.6 %

Greater than 270 days

   $ 253,905    33.9 %
             

Total

   $ 749,208    100.0 %

Although we believe that our significant cash balances, fixed maturities investments, and credit facilities provide sufficient liquidity to satisfy the claims of insureds and ceding clients, in the event that we were required to access assets invested in the alternative investments, our ability to do so may be impaired by these liquidity constraints. See “Risk Factors—Unexpected volatility or illiquidity associated with our alternative investment portfolio or in the financial markets could significantly and negatively affect our ability to conduct business.”

Additional information about the alternative investments can be found in Note 3 to our audited consolidated financial statements included herein.

Liabilities for property and casualty losses. Property and casualty losses totaled $2,938.2 million at December 31, 2008 compared to $2,333.9 million at December 31, 2007, an increase of 25.9%. The increase in property and casualty losses was principally attributable to estimated losses associated with premiums earned during the year ended December 31, 2008, and the acquisition of Max UK, partially offset by amounts paid on property and casualty losses and releases of reserves on prior period contracts. During the year ended December 31, 2008, we paid $279.1 million in property and casualty losses and recorded gross favorable development on prior period reserves of $118.0 million.

Liabilities for life and annuity benefits. Life and annuity benefits totaled $1,367.0 million at December 31, 2008 compared to $1,203.5 million at December 31, 2007. The increase was principally attributable to the reinsurance contracts written in the year ended December 31, 2008, which increased life and annuity benefits by $239.6 million, partially offset by movements in foreign exchange rates. During the year ended December 31, 2008, we paid $102.8 million of benefit payments.

Losses and benefits recoverable from reinsurers. Losses and benefits recoverable from reinsurers totaled $846.6 million at December 31, 2008 compared to $578.3 million at December 31, 2007, an increase of 46.4%, principally reflecting losses ceded under our reinsurance and retrocessional agreements resulting from net earned premiums during the year ended December 31, 2008, recoveries associated with hurricane losses, and the acquisition of Max UK.

 

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At December 31, 2008, 81.2% of our losses recoverable were with reinsurers rated “A” or above by A.M. Best Company and a further 4.6% are rated “A-”. The remaining 14.2% of losses recoverable are with “NR—not rated” reinsurers. Grand Central Re, a Bermuda domiciled reinsurance company in which Max Bermuda has a 7.5% equity investment, is our largest “NR—not rated” retrocessionaire and accounted for 12.5% of our losses recoverable at December 31, 2008. As security for outstanding loss obligations, we retain funds from Grand Central Re amounting to 119.8% of its loss recoverable obligations.

Bank loans. In February 2003, Max Bermuda completed a sale of 127,549 shares of its subsidiary, Max Diversified, to a third party financial institution, or the Bank, for a fair value of $150.0 million, or the notional amount. Simultaneous with the sale, Max Bermuda entered into a total return swap with the Bank whereby Max Bermuda receives the return earned on the Max Diversified shares in exchange for the payment of a variable rate of interest based on LIBOR plus a spread. The terms of the share sale obligate the Bank to sell the shares to Max Bermuda and give Max Bermuda the right to repurchase the shares at fair value at termination of the total return swap. On February 28, 2007, Max Bermuda amended the swap transaction. The notional amount under the swap was increased to $235.0 million, and the number of shares sold to the Bank was increased to 143,952. In addition, the amendment, among other things: (i) extended the termination date under the swap to February 28, 2010; (ii) increased the maximum notional amount under the swap to $300.0 million; (iii) decreased the monthly excess collateral requirement under the swap from 50% to 33% of the notional amount; and (iv) permits Max Bermuda to accelerate the swap termination date to a business day no earlier than February 28, 2009. Max Bermuda pledged cash and Max Diversified shares with a combined fair value of $123.9 million at December 31, 2008 to the Bank as collateral and is thus exposed to credit risk. The swap transaction contains provisions for earlier termination at Max Bermuda’s option or in the event that Max Bermuda fails to comply with certain covenants, including maintaining a minimum financial strength rating and a minimum Max Diversified net asset value.

Under GAAP, the non-controlling interest in Max Diversified and the total return swap are recorded on a combined basis and accounted for as a financing transaction. The effect of combining the transactions results in the notional amount being presented as a bank loan, or swap loan, with changes in the fair value of the Max Diversified shares increasing or decreasing this notional amount. At December 31, 2008, the notional amount of the swap loan was approximately $225.0 million.

On April 2, 2007, Max USA completed the acquisition of Max Specialty. On April 3, 2007, Max Capital borrowed $50.0 million and Max USA borrowed $100.0 million under their revolving credit facility, in connection with the acquisition and capitalization of Max Specialty. Max USA repaid the $100.0 million borrowed under their revolving credit facility with the proceeds of the issuance of $100.0 million of senior notes. As of December 31, 2008, the $50.0 million loan to Max Capital remains outstanding. This loan renews at intervals of 1 to 6 months at Max Capital’s option, at which time the interest rate is reset to LIBOR plus a premium based on Max Capital’s current debt rating. As of December 31, 2008, the interest rate was 4.56% and resets on April 10, 2009.

On October 20, 2008, Max Capital borrowed $100.0 million under our revolving credit facility in connection with the acquisition and capitalization of Max UK. As of December 31, 2008, $100.0 million remains outstanding. This loan renews at intervals of 1 to 6 months at Max Capital’s option, at which time the interest rate is reset to LIBOR plus a premium based on Max Capital’s current debt rating. As of December 31, 2008, the interest rate was 4.63% and resets on April 20, 2009.

Senior notes. On April 16, 2007, Max USA privately issued $100.0 million principal amount of 7.20% senior notes, due April 14, 2017 with interest payable on April 16 and October 16 of each year. The senior notes are Max USA’s senior unsecured obligations and rank equally in right of payment with all existing and future senior unsecured

 

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indebtedness of Max USA. The senior notes are fully and unconditionally guaranteed by Max Capital. The effective interest rate related to the senior notes, based on the net proceeds received, was approximately 7.27%. The net proceeds from the sale of the senior notes were $99.5 million, and they were used to repay the $100.0 million short-term borrowing of Max USA under the revolving credit facility. On December 30, 2008, Max USA repurchased $8.5 million principal amount of these notes, leaving a principal amount of $91.5 million outstanding as of December 31, 2008.

Shareholders’ equity. Our shareholders’ equity decreased to $1,280.3 million at December 31, 2008 from $1,583.9 million at December 31, 2007, a decrease of 19.2%, principally due to the net loss of $175.3 million, the repurchase of common shares of $109.8 million, a decrease in accumulated other comprehensive income of $25.1 million, and payments of dividends of $20.4 million during the year ended December 31, 2008.

Liquidity. We generated $508.7 million of cash from operations during the year ended December 31, 2008 compared to $252.5 million for the year ended December 31, 2007. The increase in cash from operations is principally due to gross premiums written during the year ended December 31, 2008. The two principal factors that impact our operating cash flow are premium collections and timing of loss and benefit payments.

The casualty business we write generally has a long claim-tail, and we expect that we will generate significant operating cash flow as we accumulate property and casualty loss reserves and life and annuity benefit reserves on our balance sheet. As we continue to diversify into property and property catastrophe business, which generally has a short claim-tail, and as losses are incurred, we expect potential volatility in our operating cash flow levels. We believe that our property and casualty loss reserves and life and annuity benefit reserves currently have an average duration of approximately 5.0 years and we expect to see increases in the amount of expected loss payments in future periods with a resulting decrease in operating cash flow. We do not expect loss payments to exceed the premiums generated and therefore expect to have continued positive cash flow. However, actual premiums written and collected and losses and loss expenses paid in any period could vary from our expectations and could have a significant and adverse effect on operating cash flow.

While we tailor our fixed maturities portfolios to match the duration of expected loss and benefit payments, increased loss amounts or settlement of losses and benefits earlier than anticipated can result in greater cash needs. We maintain a significant working cash balance and have generated positive cash flow from operations in each of our last eight years of operating history. In recent quarters our cash balance has increased as we have elected to maintain a larger cash position in the current investment environment. Our cash and cash equivalents balance is $949.4 million at December 31, 2008. We believe that we currently maintain sufficient liquidity to cover existing requirements and provide for contingent liquidity. Nonetheless, it is possible that significant deviations in expected loss and benefit payments can occur, potentially requiring us to liquidate a portion of our fixed maturities portfolios. If we need to liquidate our fixed maturities securities within a short period of time, the actual realized proceeds may be significantly different from the fair values estimated at December 31, 2008. We believe that most of our portfolio has sufficient liquidity to mitigate this risk, and we believe that we can continue to hold any potentially illiquid position until we can initiate an appropriately priced transaction.

As a holding company, Max Capital’s principal assets are its investments in the common shares of its principal subsidiary, Max Bermuda, and its other subsidiaries. Max Capital’s principal source of funds is from interest income on cash balances and cash dividends from its subsidiaries, including Max Bermuda. The payment of dividends is limited under Bermuda insurance laws. In particular, Max Bermuda may not declare or pay any dividends if it is in breach of its minimum solvency or liquidity levels under Bermuda law or if the declaration or payment of the dividends would cause it to fail to meet the minimum solvency or liquidity levels under Bermuda law. At December 31, 2008, Max Bermuda had

 

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approximately $1,200.0 million in statutory capital and surplus and met all minimum solvency and liquidity requirements. Max Bermuda returned $221.5 million of capital and surplus to Max Capital during the year ended December 31, 2008.

In the ordinary course of business, we are required to provide letters of credit or other regulatory approved security to certain of our clients to meet contractual and regulatory requirements. As of December 31, 2008, we have three letter of credit facilities totaling $695.0 million with an additional $200.0 million available subject to certain conditions. On that date, we had $490.3 million in letters of credit and a $150.0 million unsecured loan outstanding under these facilities. We also have a GBP 90.0 million letter of credit facility supporting our funds at Lloyd’s commitments, of which GBP 63.6 million is utilized as of December 31, 2008. Each of our credit facilities requires that we comply with certain covenants, which may include a minimum consolidated tangible net worth, a minimum insurer financial strength rating and restrictions on the payment of dividends. We were in compliance with all the covenants of each of our credit facilities at December 31, 2008.

The amount which Max Capital provides as FAL is not available for distribution for the payment of dividends. Our corporate members may also be required to maintain funds under the control of Lloyd’s in excess of their capital requirements and such funds also may not be available for distribution of the payment of dividends.

Capital resources. At December 31, 2008, our capital structure consisted of common equity. Total capitalization amounted to $1,280.3 million as compared to $1,583.9 million at December 31, 2007, a decrease of 19.2%. On August 20, 2007, we filed an automatic shelf registration statement on Form S-3 with the SEC indicating that we may periodically issue up to $500.0 million in debt securities, common shares, preferred shares, depository shares, warrants, share-purchase contracts and share purchase units. The shelf registration statement also covers debt securities of Max USA and trust preferred securities of Max Capital Trust I. No securities have been issued under the shelf registration statement. We believe that we have sufficient capital to meet our financial obligations.

In April 2007, Max USA sold $100.0 million aggregate principal amount of 7.20% senior notes due April 14, 2017, of which $91.5 million remains outstanding at December 31, 2008. The senior notes are guaranteed by Max Capital. As of December 31, 2008, the senior notes had a senior unsecured debt rating of “Baa2” by Investors Service, Inc. or Moody’s, “bbb-” by A.M. Best, “BBB+” by Fitch, Inc., or Fitch, and “BBB-” by Standard & Poor’s Ratings Services, or S&P, all with a stable outlook, except S&P which has a positive outlook. The ratings assigned by rating agencies to reinsurance and insurance companies are based upon factors and criteria established independently by each rating agency. They are not an evaluation directed to investors in our senior notes, and are not a recommendation to buy, sell or hold our senior notes. These ratings are subject to periodic review by the rating agencies or may be revised downward or revoked at the sole discretion of the rating agencies.

On February 12, 2008, May 5, 2008, August 5, 2008 and October 31, 2008, Max Capital’s board of directors declared a shareholder dividend of $0.09 per share payable on March 11, 2008, May 30, 2008, September 2, 2008 and December 1, 2008 respectively, to shareholders of record on February 26, 2008, May 16, 2008, August 19, 2008 and November 17, 2008, respectively. On February 10, 2009, Max Capital’s board of directors declared a dividend of $0.09 per share payable on March 10, 2009 to shareholders of record on February 24, 2009. Continuation of cash dividends in the future will be at the discretion of the board of directors and will be dependent upon our results of operations and cash flows, and our financial position and capital requirements, general business conditions, legal, tax, regulatory and any contractual restrictions on the payment of dividends and other factors the board of directors deems relevant.

 

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As of December 31, 2008, the financial strength ratings of our non-Lloyd’s reinsurance and insurance subsidiaries were “A-” by A.M. Best, “A” by Fitch, and “A3” by Moody’s. The Syndicates share the Lloyd’s market rating of “A+” by S&P, “A” by A.M. Best, and “A+” by Fitch. These ratings reflect each rating agency’s opinion of our financial strength, operating performance and ability to meet obligations. If an independent rating agency downgrades or withdraws any of our ratings, we could be severely limited or prevented from writing any new insurance or reinsurance contracts, which would significantly and negatively affect our business. Insurer financial strength ratings are based upon factors relevant to policyholders and are not directed toward the protection of investors.

No off-balance sheet arrangements. We do not participate in transactions that generate relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or variable interest entities that would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.

Contractual Obligations

 

    Payment due by period (in thousands of U.S. dollars)

Contractual Obligations

  Total   Less than 1
year
  1-3
years
  3-5 years   More than
5 years

Swap loan obligation

  $ 233,550   $ 6,840   $ 226,710   $ —     $ —  

Revolving credit facility loan obligations

    154,366     154,366     —       —       —  

Senior notes

    147,569     6,592     13,182     13,182     114,613

Operating lease obligations

    25,353     4,785     9,846     6,087     4,635

Property and casualty losses

    2,938,171     828,883     740,147     698,379     670,762

Life and annuity benefits

    2,468,963     115,547     218,710     203,827     1,930,879

Deposit liabilities

    248,853     97,025     78,375     11,400     62,053
                             

Total

  $ 6,216,825   $ 1,214,038   $ 1,286,970   $ 932,875   $ 2,782,942
                             

The reserves for losses and benefits together with deposit liabilities represent management’s estimate of the ultimate cost of settling losses, benefits and deposit liabilities. As more fully discussed in our “Critical Accounting Policies—Losses and benefits” above, the estimation of losses and benefits is based on various complex and subjective judgments. Actual losses and benefits paid may differ, perhaps significantly, from the reserve estimates reflected in our financial statements. Similarly, the timing of payment of our estimated losses and benefits is not fixed and there may be significant changes in actual payment activity. The assumptions used in estimating the likely payments due by period are based on our historical claims payment experience and industry payment patterns, but due to the inherent uncertainty in the process of estimating the timing of such payments, there is a risk that the amounts paid in any such period can be significantly different than the amounts disclosed above.

The amounts in this table represent our gross estimates of known liabilities as of December 31, 2008 and do not include any allowance for claims for future events within the time period specified. Accordingly, it is highly likely that the total amounts paid out in the time periods shown will be greater than that indicated in the table.

Furthermore, life and annuity benefits and deposit liabilities recorded in the audited consolidated financial statements at December 31, 2008 are computed on a net present value basis, whereas the expected payments by period in the table above are the estimated payments at a future time and do not reflect a discount of the amount payable.

 

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New Accounting Pronouncements

Financial Accounting Standard No. 159—The Fair Value Option for Financial Assets and Financial Liabilities

In February 2007, the FASB issued Financial Accounting Standard No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities,” or FAS 159. FAS 159 permits an entity to choose, at specified election dates, to measure eligible financial instruments and certain other items at fair value that are not currently required to be measured at fair value. An entity shall report unrealized gains and losses on items for which the fair value option has been elected in earnings at each subsequent reporting date. Upfront costs and fees related to items for which the fair value option is elected shall be recognized in earnings as incurred and not deferred. FAS 159 also establishes presentation and disclosure requirements designed to facilitate comparisons between entities that choose different measurement attributes for similar types of assets and liabilities. FAS 159 is effective for financial statements issued for fiscal years beginning after November 15, 2007 and interim periods within those fiscal years. At the effective date, an entity may elect the fair value option for eligible items that exist at that date. The entity shall report the effect of the first re-measurement to fair value as a cumulative-effect adjustment to the opening balance of retained earnings. We elected not to apply the fair value option to any eligible assets or liabilities held as of December 31, 2007.

Financial Accounting Standard No. 141(R)—Business Combinations (Revised)

In December 2007, the FASB issued Financial Accounting Standard No. 141(R), “Business Combinations,” or FAS 141(R). FAS 141(R) requires the acquiring entity in a business combination to recognize the full fair value of assets acquired and liabilities assumed in the transaction (whether a full or partial acquisition); establishes the acquisition-date fair value as the measurement objective for all assets acquired and liabilities assumed; requires expensing of most transaction and restructuring costs; and requires the acquirer to disclose to investors and other users all of the information needed to evaluate and understand the nature and financial effect of the business combination. FAS 141(R) applies to all transactions or other events in which the reporting entity obtains control of one or more businesses, including those sometimes referred to as “true mergers” or “mergers of equals” and combinations achieved without the transfer of consideration, for example, by contract alone or through the lapse of minority veto rights. FAS 141(R) applies prospectively to business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. We do not expect the adoption of FAS 141(R) will have a material impact on our consolidated financial statements.

Financial Accounting Standard No. 161—Disclosures about Derivative Instruments and Hedging Activities

In March 2008, the FASB issued Financial Accounting Standard No. 161, “Disclosures about Derivative Instruments and Hedging Activities, an Amendment of FASB Statement 133,” or FAS 161. FAS 161 changes required disclosures for derivatives and hedging activities, including enhanced disclosures regarding (a) how and why an entity uses derivative instruments, (b) how derivative instruments and related hedged items are accounted for under FAS 133 and its related interpretations and (c) how derivative instruments and related hedged items affect an entity’s financial position, financial performance and cash flows. Specifically, FAS 161 requires: disclosure of the objectives for using derivative instruments be disclosed in terms of underlying risk and accounting designation; disclosure of the fair values of derivative instruments and their gains and losses in a tabular format; disclosure of information about credit-risk-related contingent features; and cross-reference from the derivative footnote to other footnotes in which derivative-related information is disclosed. The statement is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. We are currently evaluating the impact that FAS 161 may have, if any, on the presentation of our consolidated financial statements.

 

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Financial Accounting Standard No. 163—Accounting for Financial Guarantee Insurance Contracts

In May 2008, the FASB issued Financial Accounting Standard No. 163 “Accounting for Financial Guarantee Insurance Contracts—an Interpretation of FASB Statement No. 60,” or FAS 163. FAS 163 prescribes the accounting for premium revenue and claims liabilities by insurers of financial obligations, and requires expanded disclosures about financial guarantee insurance contracts. FAS 163 applies to financial guarantee insurance and reinsurance contracts issued by insurers subject to FAS 60, “Accounting and Reporting by Insurance Enterprises.” FAS 163 does not apply to insurance contracts that are similar to financial guarantee insurance contracts such as mortgage guaranty or trade-receivable insurance, financial guarantee contracts issued by noninsurance entities or financial guarantee contracts that are derivative instruments within the scope of FAS 133. FAS 163 is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those years, except for certain disclosure requirements about the risk-management activities of the insurance enterprise that are effective for the first quarter beginning after the statement was issued. Except for those disclosures, early application is prohibited. We do not expect the adoption of FAS 163 will have a material impact on our consolidated financial statements.

 

ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

We engage in an investment strategy that combines a fixed maturities investment portfolio and an alternative investment portfolio that employ strategies to manage investment risk. We attempt to maintain adequate liquidity in our cash and fixed maturities investment portfolio to fund operations, pay reinsurance and insurance liabilities and claims and provide funding for unexpected events. We seek to manage our credit risk through industry and issuer diversification, and interest rate risk by monitoring the duration and structure of our investment portfolio relative to the duration and structure of our liability portfolio. We are exposed to potential loss from various market risks, primarily changes in interest rates, credit spreads and equity prices. Accordingly, earnings would be affected by these changes. We manage our market risk based on board-approved investment policies. With respect to our fixed maturities investment portfolio, our risk management strategy and investment policy is to invest in debt instruments of investment grade issuers and to limit the amount of credit exposure with respect to particular ratings categories and any one issuer. We select investments with characteristics such as duration, yield, currency and liquidity that are tailored to the cash flow characteristics of our property and casualty and life and annuity liabilities.

As of December 31, 2008, 98.1% of the securities held in our fixed maturities portfolios were rated BBB-/Baa3 or above. Our current policy is not to purchase securities rated lower than BBB-/Baa3 and to maintain a minimum weighted average credit rating quality of AA2/Aa. At December 31, 2008, the impact on the fixed maturities investment portfolio from an immediate 100 basis point increase in market interest rates would have resulted in an estimated decrease in market value of 3.9% or approximately $142.1 million, and the impact on the fixed maturities investment portfolio from an immediate 100 basis point decrease in market interest rates would have resulted in an estimated increase in market value of 5.3% or approximately $192.6 million.

With respect to our alternative investment portfolio, although our fund advisor is contractually obligated to abide by our investment guidelines, we do not directly control the allocation of our assets to strategies or underlying funds, nor do we control the manner in which they are invested by our fund managers. However, we consistently and systematically monitor the strategies and funds in which we are invested. We focus on risk, as opposed to return, in the selection of each of our alternative investments. This causes us to select individual alternative investments that have exhibited attractive risk/reward characteristics and low correlation to other investments in the portfolio, as opposed to individual investments that have shown the highest return, but also higher volatility of

 

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return. We then combine the selected individual alternative investments into a portfolio of alternative investments. By combining investments that we believe have moderate volatility and low correlations, we aim to achieve an alternative investment portfolio within Max Diversified that has overall lower volatility relative to investing in a common stock portfolio or a typical fund of hedge funds portfolio.

At December 31, 2008, the estimated impact on the alternative investment portfolio from an immediate 100 basis point increase in market interest rates would have resulted in an estimated decrease in market value of 3.9%, or approximately $142.1 million, and the impact on the alternative investment portfolio from an immediate 100 basis point decrease in market interest rates would have resulted in an estimated increase in market value of 5.3%, or approximately $192.6 million. Another method that attempts to measure portfolio risk is Value-at-Risk, or VaR. VaR is a statistical risk measure, calculating the level of potential losses that could be expected to be exceeded, over a specified holding period and at a given level of confidence, in normal market conditions, and is expressed as a percentage of the portfolio’s initial value. Since the VaR approach is based on historical positions and market data, VaR results should not be viewed as an absolute and predictive gauge of future financial performance or as a way for us to predict risk. At December 31, 2008, our alternative investment portfolio’s VaR was estimated to be 15.0% at the 99.0% level of confidence and with a three-month time horizon.

ITEM 8.    FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

Information with respect to this item is set forth under Item 15.

 

ITEM 9.    CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

None.

ITEM 9A.    CONTROLS AND PROCEDURES

Part A—Evaluation of Disclosure Controls and Procedures.

Our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act, which we refer to as disclosure controls, are controls and procedures that are designed with the objective of ensuring that information required to be disclosed in our reports filed under the Exchange Act, such as this Annual Report on Form 10-K, is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms. Disclosure controls are also designed with the objective of ensuring that such information is accumulated and communicated to our management, including the Chief Executive Officer and the Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. There are inherent limitations to the effectiveness of any control system. A control system, no matter how well conceived and operated, can provide only reasonable assurance that its objectives are met. No evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within our company have been detected.

As of December 31, 2008, an evaluation was carried out under the supervision and with the participation of Max Capital’s management, including the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the design and operation of these disclosure controls were effective to ensure that material information relating to our company is made known to management, including the Chief Executive Officer and Chief Financial Officer, particularly during the periods when our periodic reports are being prepared.

 

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Part B—Internal Control Over Financial Reporting

Management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act). Our company’s internal control system was designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. There are inherent limitations to the effectiveness of any control system. A control system, no matter how well conceived and operated, can provide only reasonable assurance that its objectives are met. No evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within our company have been detected.

Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2008. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework. Based on our assessment, we believe that, as of December 31, 2008, the Company’s internal control over financial reporting is effective based on those criteria.

 

ITEM 9B.    OTHER INFORMATION

None.

 

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PART III

 

ITEM 10.    DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT AND CORPORATE GOVERNANCE

The information required in response to this Item is contained under the captions “Proposal One—Election Of Directors Of The Company,” “Composition, Meetings and Committees of the Board of Directors” and “Section 16(a) Beneficial Ownership Reporting Compliance” in the Proxy Statement, to be filed on or about March 16, 2009, with the SEC pursuant to Regulation 14A. These portions of the Proxy Statement are hereby incorporated by reference herein.

We have adopted a written code of ethics, the “Max Capital Group Ltd. Code of Business Conduct and Ethics,” that applies to all our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller and other executive officers identified pursuant to this Item 10 who perform similar functions, which we refer to as the Selected Officers. The code is posted on our website at http://www.maxcapgroup.com . We will disclose any material changes in or waivers from our code of ethics applicable to any Selected Officer on our website at http://www.maxcapgroup.com or by filing a Form 8-K.

 

ITEM 11.    EXECUTIVE COMPENSATION

The information required in response to this Item is contained under the captions “Compensation Discussion and Analysis,” “Summary Compensation Table,” “Grants of Plan Based Awards,” “Outstanding Equity Awards at Fiscal Year-End,” “Option Exercises and Stock Vested,” “Pension Benefits,” “Non-Qualified Deferred Compensation,” “Potential Payments Upon Termination or Change in Control,” “Director Compensation,” “Employment Agreements,” “2008 Incentive Plan,” “Compensation Committee Interlocks and Insider Participation” and “Compensation Committee Report” in the Proxy Statement. These portions of the Proxy Statement are hereby incorporated by reference herein.

 

ITEM 12.    SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The information required in response to this Item is contained under the captions “Security Ownership of Certain Beneficial Owners, Officers And Directors” and “Securities Authorized for Issuance Under Equity Compensation Plans” in the Proxy Statement. These portions of the Proxy Statement are hereby incorporated by reference herein.

 

ITEM 13.    CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

The information required in response to this Item is contained under the captions “Certain Relationships and Related Transactions,” and “Composition, Meetings, and Committees of Board of Directors” in the Proxy Statement. These portions of the Proxy Statement are hereby incorporated by reference herein.

 

ITEM 14.    PRINCIPAL ACCOUNTANT FEES AND SERVICES

The information required in response to this Item is contained under the caption “Principal Accountant Fees and Services” in the Proxy Statement. This portion of the Proxy Statement is hereby incorporated by reference herein.

 

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PART IV

 

ITEM 15.    EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

 

         Page

(a)(1)

 

Financial Statements

  
 

Report of Independent Registered Public Accounting Firm (on the consolidated financial statements and on internal control over financial reporting)

   F-1
  Consolidated Balance Sheets as of December 31, 2008 and 2007    F-3
 

Consolidated Statements of Income and Comprehensive Income for the Years Ended December 31, 2008, 2007 and 2006

   F-4
 

Consolidated Statements of Changes in Shareholders’ Equity for the Years Ended December 31, 2008, 2007 and 2006

   F-5
 

Consolidated Statements of Cash Flows for the Years Ended December 31, 2008, 2007 and 2006

   F-6
  Notes to Consolidated Financial Statements    F-7

(a)(2)

 

Financial Statement Schedules:

  
  Schedule II—Condensed Financial Information of Registrant    F-55
  Schedule III—Supplementary Insurance Information    F-57
  Schedule IV—Supplementary Reinsurance Information    F-58

 

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(a)(3) Exhibits

 

Exhibit

  

Description

3(i).1    Memorandum of Association (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement (333-62006) filed with the SEC on July 6, 2001).
3(i).2    Certificate of Incorporation of Max USA (incorporated by reference to Exhibit 3.4 of the Company’s Registration Statement (333-145585) filed with the SEC on August 20, 2007).
3(ii).1    Amended and Restated Bye-laws of Max Capital (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement (333-150660) filed with the SEC on May 6, 2008).
3(ii).2    Bylaws of Max USA (incorporated by reference to Exhibit 3.4 of the Company’s Registration Statement (333-145585) filed with the SEC on August 20, 2007).
4.1    Specimen Common Share Certificate (incorporated by reference to Exhibit 4.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2007).
4.2    Form of Warrant (incorporated by reference to Exhibit 4.2 of the Company’s Registration Statement (333-62006) filed with the SEC on July 6, 2001).
4.3    Form of Senior Debt Indenture (incorporated by reference to Exhibit 4.3 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
4.4    Form of Subordinated Debt Indenture (incorporated by reference to Exhibit 4.4 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
4.5    Form of Junior Subordinated Debt Indenture (incorporated by reference to Exhibit 4.5 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
4.6    Form of Senior Indenture (incorporated by reference to Exhibit 4.6 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
4.7    Form of Subordinated Indenture (incorporated by reference to Exhibit 4.7 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
4.8    Certificate of Trust (incorporated by reference to Exhibit 4.12 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
4.9    Declaration of Trust (incorporated by reference to Exhibit 4.13 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
 4.10    Form of Amended and Restated Declaration of Trust (incorporated by reference to Exhibit 4.14 of the Company’s Registration Statement (333-145585) filed with the SEC on August 20, 2007).
 4.11    Trust Agreement (incorporated by reference to Exhibit 4.15 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).
 4.12    Form of Preferred Securities Guarantee Agreement (incorporated by reference to Exhibit 4.16 of the Company’s Registration Statement No. 333-145585) filed with the SEC on August 20, 2007).

 

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Exhibit

  

Description

 4.13    Max Capital Group Ltd. 2008 Stock Incentive Plan (incorporated by reference to Exhibit 4.2 of the Company’s Registration Statement (333-150660) filed with the SEC on May 6, 2008).
 4.14    Max Capital Group Ltd. Employee Stock Purchase Plan for U.S. Taxpayers (incorporated by reference to Exhibit 4.2 of the Company’s Registration Statement (333-151211) filed with the SEC on May 28, 2008).
 4.15    Max Capital Group Ltd. Employee Stock Purchase Plan for Non-U.S. Taxpayers (incorporated by reference to Exhibit 4.3 of the Company’s Registration Statement (333-151211) filed with the SEC on May 28, 2008).
 4.16    2000 Stock Incentive Plan. (incorporated by reference to Exhibit 10.7 of the Company’s Registration Statement (333-62006) filed with the SEC on May 31, 2001).
 4.17    Amendment to the 2000 Stock Incentive Plan, approved in May 2002. (incorporated by reference to Exhibit 10.8 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002).
 4.18    Amendment to the 2000 Stock Incentive Plan, approved in April 2005. (incorporated by reference to Exhibit 10.7 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2005).
10.1      Shareholders’ Agreement, dated as of December 22, 1999, among Max Capital, Max Bermuda and certain other signatories (incorporated by reference to Exhibit 10.1 of the Company’s Registration Statement (333-62006) filed with the SEC on May 31, 2001).
10.2      Employment Agreement, effective as of November 13, 2006 and executed December 8, 2006, by and between Max Capital and W. Marston Becker (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on December 14, 2006).
10.3      Retirement and Separation Agreement, dated as of March 6, 2007, between Keith S. Hynes and Max Capital (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on March 12, 2007).
10.4      Employment Agreement, dated as of July 27, 2007, by and between Max Capital and Peter A. Minton (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 30, 2007).
10.5      Employment Agreement, dated as of July 27, 2007, by and between Max Capital and Joseph W. Roberts (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed with the SEC on July 30, 2007).
10.6      Employment Agreement, dated as of July 27, 2007, by and between Max Bermuda and Angelo M. Guagliano (incorporated by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K filed with the SEC on July 30, 2007).
10.7      Employment Agreement, dated as of December 8, 2006, by and between Max USA and Stephen J. Vaccaro, Jr. (incorporated by reference to Exhibit 10.7 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2007).
10.8      Credit Agreement, dated as of August 7, 2007, among Max Bermuda and Max Capital, as borrowers, various financial institutions as the lenders, ING Bank N.V., London Branch and Citibank, NA, as co-syndication agents, Bank of America, National Association, as fronting bank, as administrative agent, and as letter of credit administrator for the lenders and Banc of America Securities LLC, as sole lead arranger and book manager (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on August 13, 2007).

 

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Exhibit

  

Description

10.9      First Amendment Agreement, dated September 16, 2008 and effective September 23, 2008, to the Credit Agreement, dated as of August 7, 2007, among Max Bermuda Ltd. and Max Capital Group Ltd., as borrowers, various financial institutions as lenders, ING Bank N.V., London Branch and Citibank, N.A., as co-syndication agents, Bank of America, National Association, as fronting bank, as administrative agent, and as letter of credit administrator for the lenders and Banc of America Securities LLC, as sole lead arranger and book manager (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on September 24, 2008).
10.10    Second Amendment Agreement, dated October 1, 2008, to the Credit Agreement, dated as of August 7, 2007, among Max Bermuda Ltd. and Max Capital Group Ltd., as borrowers, various financial institutions as lenders, ING Bank N.V., London Branch and Citibank, N.A., as co-syndication agents, Bank of America, National Association, as fronting bank, as administrative agent, and as letter of credit administrator for the lenders and Banc of America Securities LLC, as sole lead arranger and book manager (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on October 06, 2008).
10.11    Credit Agreement, dated December 22, 2006, by and between Max Bermuda as borrower and The Bank of Nova Scotia as the Lender (incorporated by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K filed with the SEC on December 22, 2006).
10.12    Amendment No. 1 to Credit Agreement with The Bank of Nova Scotia (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on December 21, 2007).
10.13    Amendment No. 2 to Credit Agreement with The Bank of Nova Scotia (incorporated by reference to 10.1 the Company’s Current Report on From 8-K filed with the SEC on December 22, 2008
10.14    Letter of Credit Reimbursement Agreement, dated as of November 23, 2004, between Max Bermuda and ING Bank N.V., London Branch (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on November 29, 2004).
10.15    Investment Management Agreement dated as of May 1, 2000, between General Re-New England Asset Management, Inc. and Max Bermuda (incorporated by reference to Exhibit 10.13 of the Company’s Registration Statement (333-62006) filed with the SEC on July 6, 2001).
10.16    Total Return Swap Confirmation, dated as of February 18, 2003, between Max Bermuda and Canadian Imperial Bank of Commerce (incorporated by reference to Exhibit 10.19 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002)
10.17    Amendment, dated February 28, 2007, to the Total Return Swap Confirmation, dated as of February 18, 2003, between Max Bermuda and Canadian Imperial Bank of Commerce(incorporated by reference to Exhibit 10.21 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2007).
10.18    Second Amended and Restated Customer Agreement and Trading Authorization, dated as of February 14, 2006, between Max Diversified and Alstra Capital Management, LLC (incorporated by reference to Exhibit 10.19 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2005)

 

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Exhibit

  

Description

10.19    Amendment No. 1 to Second Amended and Restated Customer Agreement and Trading Authorization between Max Diversified Strategies Ltd. and Alstra Capital Management, LLC (incorporated by reference to Exhibit 10.3 of the Company’s Quarterly Report on Form 10-Q for the three months ended March 31, 2008).
10.20    Amendment No. 2 to Second Amended and Restated Customer Agreement and Trading Authorization between Max Diversified Strategies Ltd. and Alstra Capital Management, LLC, as previously amended (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on November 25, 2008).
10.21    Purchase Agreement, dated April 11, 2007, by and between Max USA, Max Capital, as guarantor, and Citigroup Global Markets, Inc. as representative of the initial purchasers (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on April 17, 2007).
10.22    Indenture, dated April 15, 2007, among Max USA, as issuer, Max Capital, as guarantor, and The Bank of New York, as trustee (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed with the SEC on April 17, 2007).
10.23    Officer’s Certificate of Max USA, dated April 16, 2007 (incorporated by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K filed with the SEC on April 17, 2007).
10.24    Indemnification Agreement (incorporated by reference to Exhibit 10.1 of the Company’s Registration Statement (333-145585) filed with the SEC on August 20, 2007).
10.25    Form of Employee Restricted Stock Agreement under the 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Registration Statement (333-150660) filed with the SEC on May 6, 2008).
10.26    Form of Employee Restricted Stock Unit Agreement under the 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 of the Company’s Registration Statement (333-150660) filed with the SEC on May 6, 2008).
10.27    Form of Option Agreement under the 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.3 of the Company’s Registration Statement (333-150660) filed with the SEC on May 6, 2008).
10.28    Form of Director Restricted Stock Agreement under the 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.4 of the Company’s Registration Statement (333-150660) filed with the SEC on May 6, 2008).
10.29    Form of Restricted Stock Agreement under the 2000 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report of Form -10Q for the quarter ended March 31, 2008).
10.30    Form of Restricted Stock Unit Agreement under the 2000 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 of the Company’s Quarterly Report of Form -10Q for the quarter ended March 31, 2008).
10.31    Form of Stock Option agreement under the 2000 Stock Incentive Plan (incorporated by reference to Exhibit 10.11 of the Company’s Annual Report for the year ended December 31, 2007).
10.32    Model Director Restricted Stock Award Agreement under the 2000 Stock Incentive Plan (incorporated by reference to Exhibit 10.3 of the Company’s Quarterly Report for the quarter ended March 31, 2007).
10.33    Share Purchase Agreement (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 28, 2008).

 

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Exhibit

  

Description

10.34    Credit Facility Agreement, dated October 13, 2008, by and among Max Capital Group Ltd. as initial account party, applicant and guarantor, ING Bank N.V., London Branch, as agent, issuing bank and security trustee (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on October 15, 2008).
21.1      Schedule of Group Companies.
23.1      Consent of KPMG.
24.1      Power of Attorney for officers and directors of Max Capital (included on the signature page of this filing).
31.1      Certification of the Chief Executive Officer of Max Capital filed herewith pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2      Certification of the Chief Financial Officer of Max Capital filed herewith pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1      Certification of the Chief Executive Officer of Max Capital furnished herewith pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2      Certification of the Chief Financial Officer of Max Capital furnished herewith pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

MAX CAPITAL GROUP LTD.

 

/s/    W. Marston Becker        

W. Marston Becker
Chief Executive Officer

February 19, 2009

 

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POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints W. Marston Becker, his true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments or supplements to this Form 10-K and to file the same with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or appropriate to be done with this Form 10-K and any amendments or supplements hereto, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

 

 

/s/    W. Marston Becker        

   

/s/    Joseph W. Roberts        

W. Marston Becker
Chief Executive Officer and Director
(Principal executive officer)
    Joseph W. Roberts
Executive Vice President and
Chief Financial Officer
(Principal financial and accounting officer)

Date: February 19, 2009

    Date: February 19, 2009
/s/    Zack H. Bacon III             /s/    Gordon Cheesbrough        

Zack H. Bacon III

Director

   

Gordon Cheesbrough

Director

Date: February 19, 2009

    Date: February 19, 2009
/s/    K. Bruce Connell             /s/    Willis T. King, Jr.        

K. Bruce Connell

Director

   

Willis T. King, Jr.

Director

Date: February 19, 2009

    Date: February 19, 2009
/s/    William Kronenberg III             /s/    James H. MacNaughton        

William Kronenberg III

Director

   

James H. MacNaughton

Director

Date: February 19, 2009

    Date: February 19, 2009
/s/    Peter A. Minton             /s/    Steven M. Skala        

Peter A. Minton

Director

   

Steven M. Skala

Director

Date: February 19, 2009