Directors’ and Officers’ Liability Insurance Policy Wording
This is a Claims Made Policy.
It only responds to any CLAIM which is first made against any INSURED PERSON during the
POLICY
PERIOD
or EXTENDED REPORTING PERIOD if applicable.
Please read this Policy carefully
In consideration of the payment of the Premium stated in Item 5 of the
Schedule, the Insurers
named in the Schedule ("Underwriters") agree as follows.
1. COVER PROVIDED
Underwriters
shall pay LOSS as incurred by:
(a)
an INSURED PERSON; or
(b)
the COMPANY by way of REIMBURSEMENT.
2. EXTENSIONS
2.1
Professional Consultancy Expenses
In the event that an INSURED PERSON or the COMPANY becomes aware of
circumstances which might reasonably be
expected to give rise to a CLAIM and they reasonably consider that the services
of a professional consultancy firm are required
urgently in order to prevent or minimize the risk of a CLAIM which would be covered under this Policy, then Underwriters will
reimburse reasonable fees and costs (other than COSTS AND
EXPENSES) incurred as a result of instructing an appropriate professional
consultancy firm up to a maximum limit of
British Pounds £50,000 in the aggregate. Such limit shall be part of and not in
addition to the Limit of Liability stated in Item 3 of the Schedule.
Entitlement
to this additional cover is conditional upon the INSURED PERSON or the COMPANY
providing
Underwriters
with full written details of the action taken no later than 21 days after first
becoming aware of the circumstances that require the services of the
professional consultancy firm.
2.2
New Subsidiaries
(a) The benefit of the insurance cover provided by this
Policy shall extend automatically to any newly
acquired or
created entity that becomes a SUBSIDIARY of the COMPANY provided that:
(i) the total gross assets of such newly acquired or
created entity do not exceed 20% of the total gross
assets of the COMPANY as at the inception date of this Policy; and
(ii) such newly acquired or created entity does not or has not had a
listing of any of its securities on any exchange.
(b)
In respect of a newly acquired or created SUBSIDIARY that:
(i) has total gross assets that exceed 20% of the total gross assets of
the COMPANY as at the inception date of this Policy; or
(ii)
has or has had a listing of any of its securities on any exchange;
2.3
Additional INSURED PERSONS
The
following shall be deemed INSURED PERSONS under this Policy:
(a) lawful spouse or domestic partner of any INSURED PERSON but only
where recovery is sought in respect of
property held jointly by the spouse or domestic partner in respect of LOSS
arising from a CLAIM against such INSURED PERSON;
(b) in the event of the death, incapacity or bankruptcy of an INSURED
PERSON, their legal representative, heir and or assign for LOSS
arising from a CLAIM against such INSURED PERSON;
(c) OUTSIDE ENTITY DIRECTOR provided that cover shall apply solely to the
extent that such OUTSIDE ENTITY DIRECTOR is not indemnified
by their OUTSIDE ENTITY.
2.4
Emergency COSTS AND EXPENSES
If in an
emergency Underwriters’ written consent cannot reasonably be obtained before
COSTS AND EXPENSES are incurred with respect
to any CLAIM, Underwriters’
shall provide retrospective approval for such COSTS AND EXPENSES
up to 10 per cent (10%) of the Limit of Liability as stated in Item 3 of the
Schedule. This limit shall be part of and not in addition to the Limit of
Liability stated in Item 3 of the Schedule.
2.5
EXTENDED REPORTING PERIODS
(a)
Optional Bilateral EXTENDED REPORTING PERIOD
If
this policy is not renewed for any reason nor replaced with any other form of
management liability insurance, the COMPANY shall be entitled to purchase an
EXTENDED REPORTING PERIOD of 12 calendar months. To purchase such EXTENDED
REPORTING PERIOD, the COMPANY must:
(i)
serve written notice to Underwriters no later than 15 days after the expiry
date of this Policy; and
(ii) pay to Underwriters an additional premium of 100% of the annual or
annualized equivalent of the
premium charged for this Policy as stated in
Item 5 of the Schedule within 30 days of the expiry date
of this Policy.
The additional premium in respect of the EXTENDED REPORTING PERIOD is not
refundable and the EXTENDED REPORTING PERIOD is not cancellable.
(b)
RETIRED DIRECTORS EXTENDED REPORTING PERIOD
If this
policy is not renewed for any reason nor replaced with any other form of
management liability insurance, the RETIRED
DIRECTORS shall automatically be entitled to an EXTENDED REPORTING PERIOD of 72
months without payment of an additional premium.
If
an EXTENDED REPORTING PERIOD is effective by virtue of (a) or (b) above, the
Limit of Liability as stated in Item
3
of the Schedule shall not be increased in any way.
3. DEFINITIONS
3.1
CLAIM means any:
(a)
civil suit or proceedings for a WRONGFUL ACT against any INSURED PERSON seeking
monetary damages or other relief, including non-pecuniary relief; or
(b)
written allegation of a WRONGFUL ACT communicated to any INSURED PERSON or the
COMPANY; or
(c)
administrative or regulatory proceedings against any INSURED PERSON for a
WRONGFUL ACT; or
(d) official investigation into the affairs of the COMPANY or the
OUTSIDE ENTITY as applicable or the affairs
of an INSURED PERSON in their capacity as
such once the INSURED PERSON becomes legally compelled
to attend or is identified in writing by an
investigating authority as a subject of the proceeding or official
investigation; or
(e) criminal proceedings or any EXTRADITION PROCEEDING against any INSURED PERSON for a WRONGFUL
ACT;
which is
first made during the POLICY PERIOD (or EXTENDED REPORTING PERIOD if
applicable), provided always that a series
of CLAIMS arising out of or which are attributable to or which are otherwise
causally connected with a single WRONGFUL ACT shall constitute a single
CLAIM for the purposes of this Policy.
3.2 COMPANY means the entity named in Item 1 of the Schedule and any
SUBSIDIARY thereof (including any division,
sector, region, product group or other internal COMPANY structure or segment
detailed in an organization chart or similar document).
3.3 COSTS
AND EXPENSES means all reasonable and necessary fees and expenses incurred by
or on behalf of any
INSURED PERSON with the prior written consent
of Underwriters (which shall not be unreasonably withheld or
delayed), and which result from the
investigation, defense and/or settlement of or in connection with a CLAIM
including:
(a) any appeal relating thereto, including a separate
proceeding to overturn an order made in any EXTRADITION
PROCEEDING; and
(b)
premium paid for a financial instrument for appeal, bail or similar bonds.
3.4
EMPLOYMENT PRACTICES WRONGFUL ACTS means any actual or alleged:
(a) wrongful termination of the employment of (including but not limited
to constructive and or unfair
dismissal), demotion of, or failure or refusal to employ or
promote any person in relation to the COMPANY; or
(b)
discrimination or harassment affecting any employee of, or prospective employee
with, the COMPANY; or
(c) retaliatory treatment against an employee of the COMPANY on account
of the employee’s exercise or attempted exercise of his or her
legal rights.
3.5
EXTENDED REPORTING PERIOD means the period immediately following expiry of the
POLICY PERIOD during which time written
notice may be given to Underwriters of a CLAIM first made during such period or
the POLICY PERIOD, in respect of a WRONGFUL ACT that occurred prior to
the expiry of the POLICY PERIOD.
3.6 EXTRADITION PROCEEDING shall mean a proceeding following a request
for extradition or the execution of a warrant of arrest as part of
the extradition process.
3.7
INSURED PERSON means any natural person who is, was prior to or becomes during
the POLICY PERIOD:
(a) a director or officer of the COMPANY including for this purpose
anyone alleged to have been acting as a SHADOW
DIRECTOR of the COMPANY;
(b)
an employee of the COMPANY to the extent that they:
(i)
are joined as co-defendants in any action against any natural person defined in
(a) above; or
(ii) were acting in a managerial or supervisory capacity when the
WRONGFUL ACT was or was alleged to have been committed; or
(iii) have received approval from the Financial Services Authority to
perform one or more of Control Functions for the COMPANY pursuant
to the relevant Financial Services and Markets Act.
3.8
LOSS means the liability of any INSURED PERSON incurred as a result of a CLAIM
to pay:
(a)
damages and costs awarded against them; and
(b) any settlement as agreed by Underwriters (which agreement shall not
be unreasonably withheld or delayed); and
(c)
COSTS AND EXPENSES; and
(d)
punitive or exemplary damages; and
(e)
reasonable fees and costs incurred as a result of the instruction of an
appropriate professional consultancy firm to prevent or minimize the risk of a
CLAIM in accordance with extension 2.1.
LOSS
does not mean:
(i)
taxes; or
(ii)
remuneration or employment related benefits; or
(iii) the multiplied portion of multiple damages.
3.9
OUTSIDE ENTITY means any entity other than an entity that is:
(a)
the COMPANY;
(b) incorporated, domiciled or has a listing of any of its securities on
any exchange; is or has securities that are legally required to be the subject of any registration statement
filed with any relevant Securities and Exchange Commission ("SEC"), or is subject to any obligation
to file reports with the SEC in accordance with relevant
Securities Exchange Act.
(a) was, is or may during the POLICY PERIOD becomes a director or officer
of an OUTSIDE ENTITY at the specific request of the COMPANY; or
(b) is alleged to have been acting as a SHADOW DIRECTOR of such OUTSIDE
ENTITY by reason of his or her duties as a director or officer
or employee of the COMPANY.
3.11
POLICY PERIOD means the period stated in Item 6 of the Schedule.
3.12 POLLUTANT means any substance, solid, liquid, gaseous or thermal
irritant or contaminant including but not limited to smoke, vapours, soot, fumes, acids, alkalis, chemicals and
waste materials (including but not limited to, recycled,
reconditioned or reclaimed materials).
3.13
REIMBURSEMENT means the obligation upon Underwriters to pay on behalf of the
COMPANY in respect of any amounts which the COMPANY has paid to or on behalf of
an INSURED PERSON in respect of LOSS.
3.14 RETIRED DIRECTOR means any INSURED PERSON who voluntarily
relinquishes their position within the COMPANY during the POLICY PERIOD and who does not subsequently resume or
assume a position of director, officer or employee in the
COMPANY.
3.15 SHADOW DIRECTOR means any natural person who is deemed a shadow
director, as defined in the relevant Companies Act or
re-enactment thereof.
3.16 SUBSIDIARY means any entity the COMPANY, either directly or
indirectly through one or more SUBSIDIARIES, controls or
controlled:
(a)
through holding a majority of the voting rights; or
(b)
through having the right to appoint or remove the majority of its board of
directors; or
(c) alone, or pursuant to a written agreement with other shareholders or
members, a majority of the voting rights of the entity; or
(d)
the composition of the board of directors.
3.17 WHISTLEBLOWER means any INSURED PERSON filing a CLAIM either
directly or indirectly under any law affording
whisleblower protection including but not limited to the relevant Public
Interest Disclosure Act (UK), False Claims Act (USA) or
Sarbanes-Oxley Act of 2002 (USA).
3.18 WRONGFUL ACT means any actual or alleged or proposed breach of duty,
breach of trust, neglect, error,
omission, misstatement, misleading statement,
mistreatment, breach of a fiduciary obligation, libel, slander, wrongful
trading, breach of warranty of authority or
any other act attempted or committed that gives rise to legal liability on the
part of any INSURED PERSON, jointly and
severally, which arises solely by reason of the conduct of their duties in
their capacity as INSURED PERSONS, or, any matter claimed against
an INSURED PERSON solely because of their
status as such. WRONGFUL ACT shall also include EMPLOYMENT
PRACTICES WRONGFUL ACT,
4. EXCLUSIONS
Underwriters
shall not be liable for any LOSS in respect of a CLAIM:
4.1
Injury and Property Damage
for bodily injury, sickness, disease, death or emotional distress of any
person or damage to or destruction of any tangible
property, including loss of use thereof, other than:
(a) for emotional distress forming part of a CLAIM in respect of
EMPLOYMENT PRACTICES WRONGFUL
ACTS; or
(b) COSTS AND
EXPENSES arising from
criminal proceedings against
an INSURED PERSON
for manslaughter in relation to the business of the COMPANY.
4.2
Prior Claims and Circumstances
arising
out of, based upon, attributable to or in any way involving:
(a) any
facts alleged or contained in any CLAIM or circumstance which might give rise
to a CLAIM which have been notified under any other policy in force prior to
the inception of this Policy; or
(b) any pending or prior litigation as at the pending date set out in
Item 7 of the Schedule or alleging or deriving from the same or
substantially the same facts alleged in the pending or prior litigation.
For the
purposes of this exclusion, ‘litigation’ shall mean any civil, administrative,
regulatory or criminal proceedings or any official investigation.
4.3
Pollution
arising
out of, based upon, attributable to or in any way involving:
(a) any actual, alleged or threatened discharge, dispersal, release or
escape of a POLLUTANT whether such discharge, dispersal,
release or escape is intentional or accidental; or
(b) any direction or request to test for, monitor, clean up, remove,
contain, treat, detoxify or neutralize a POLLUTANT.
It
is agreed, however, that this exclusion shall not apply to:
(a)
COSTS AND EXPENSES; or
(b) any CLAIM brought by or on behalf of any shareholder in the COMPANY,
either directly or derivatively, which alleges damage to the COMPANY
and/or its shareholders provided that:
(i) on or before the date specified in Item 8 of the Schedule, the
INSURED PERSONS and the COMPANY did not
know of nor could have reasonably foreseen that there existed any situation, circumstance
or WRONGFUL ACT which could give rise to the CLAIM; and
(ii) any matter(s) or incident(s) giving rise to the CLAIM occurred
entirely outside the homeland of the
Company and the CLAIM is brought or maintained entirely outside
the homeland of the Company.
4.4
CLAIMS by the OUTSIDE ENTITY
against an
OUTSIDE ENTITY DIRECTOR by or on behalf of another director or officer of the
same OUTSIDE ENTITY or by the OUTSIDE ENTITY itself, other than:
(a)
COSTS AND EXPENSES incurred in defending such a CLAIM;
(b)
any CLAIM in respect of EMPLOYMENT PRACTICES WRONGFUL ACTS;
(c) any CLAIM for contribution or indemnity in respect of a CLAIM which
is otherwise payable under the terms of this Policy;
(d) any
CLAIM brought as a shareholder derivative action which has not been solicited
or willingly assisted by the OUTSIDE ENTITY or a director or officer thereof;
(e) any
CLAIM brought by a liquidator, administrator or administrative receiver
directly or derivatively on behalf of the
OUTSIDE ENTITY that has not been solicited or willingly assisted by the OUTSIDE
ENTITY or a director or officer thereof;
(f) any CLAIM brought against any OUTSIDE ENTITY DIRECTOR who is a former
director or officer of the
OUTSIDE ENTITY and who is no longer employed
by it, and the CLAIM is not brought by or on behalf of a
company which falls within the definition of
a close company in the relevant Income and Corporation Taxes
Act;
(g)
any CLAIM made by a former director or officer of the OUTSIDE ENTITY.
4.5
Local CLAIMS by the COMPANY
brought in the jurisdiction of the Homeland of the COMPANY by or on
behalf of another INSURED PERSON or the COMPANY,
other than:
(a)
COSTS AND EXPENSES incurred in defending such a CLAIM;
(b)
any CLAIM in respect of EMPLOYMENT PRACTICES WRONGFUL ACTS;
(c) any
CLAIM for contribution or indemnity in respect of a CLAIM which is otherwise
payable under the terms of this Policy;
(d) any CLAIM brought as a shareholder derivative action which has not
been solicited or willingly assisted by the COMPANY or an INSURED PERSON;
(e) any
CLAIM brought by a liquidator, administrator or administrative receiver
directly or derivatively on behalf
of the COMPANY that has not been solicited or
willingly assisted by the COMPANY or an INSURED
PERSON;
(f) any
CLAIM against an INSURED PERSON who is a former director or officer of the
COMPANY and who is no longer employed by it, and the CLAIM is not brought by or
on behalf of that of a company which falls within the definition of a close
company in the relevant Income and Corporation Taxes Act;
(g)
the CLAIM is made by a former director or officer of the COMPANY;
(h)
by a WHISTLEBLOWER.
4.6
Routine Inspections
arising out of, based upon, attributable to or in any way involving any
routine regulatory supervision, inspections or
compliance reviews or any investigation which
concerns the industry in which the COMPANY or the OUTSIDE
ENTITY is engaged as opposed to conduct by an INSURED PERSON or
the COMPANY or the OUTSIDE ENTITY.
4.7
Nuclear
arising out of, based upon, attributable to or in any way involving
ionizing radiations or contamination by radioactivity from any
nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or
the radioactive, toxic, explosive or other hazardous properties of any
explosive nuclear component thereof.
4.8
Trustees
arising out of, based upon, attributable to or in any way involving any
INSURED PERSON acting in the capacity of a
trustee, fiduciary or administrator of a
COMPANY’s or as applicable an OUTSIDE ENTITY’s pension, profit-sharing or
employee benefits programme including any
actual or alleged violation of the responsibilities, obligations or duties
imposed by the Employee Retirement Income
Security Act of 1974 (USA) or the Pensions Act 1995 (UK) or any
similar provisions of the law, common or statutory, of any state,
territory, jurisdiction, or political subdivision thereof.
4.9
War and Terrorism
arising out
of, based upon, attributable to or in any way involving any of the following
regardless of any other cause or event contributing concurrently or in any
other sequence to LOSS:
(a) war, invasion, acts of foreign enemies, hostilities or warlike
operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming
the proportions of or amounting to an uprising, military or
usurped power; or
(b)
any act of terrorism.
For the purposes of this exclusion, an ‘act of terrorism’ means an act,
including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of
persons, whether acting alone or on behalf
of or in connection with any organisation(s) or government(s), committed for
political, religious, ideological or
similar purposes including the intention to influence any government and/or to
put the public, or any section of the public, in fear.
This exclusion also excludes any LOSS on account of any CLAIM of
whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in
controlling, preventing, suppressing or in any way relating to
(a) and/or (b) above.
If Underwriters allege that by reason of this exclusion any LOSS is not
covered by this Policy, the burden of proving the
contrary shall be upon the INSURED PERSONS and/or the COMPANY.
In the
event that any portion of this exclusion is found to be invalid or
unenforceable, the remainder shall remain in full force and effect.
4.10 for any actual or alleged failure to perform professional services
rendered to third parties or back-office supporting
services directly related thereto.
5. CONDITIONS
5.1
Territory
This Policy shall apply to LOSS which results from any CLAIM made against
an INSURED PERSON during the POLICY PERIOD,
or EXTENDED REPORTING PERIOD if applicable, pursuant to the laws of and under
the jurisdiction of any recognized country in the World.
5.2
Aggregate Limit of Liability for LOSS
Underwriters’ total aggregate liability under this Policy in respect of
all LOSS arising from CLAIMS made during the POLICY PERIOD, and the EXTENDED REPORTING PERIOD if applicable, shall not
exceed the aggregate Limit of Liability stated in Item 3 of the
Schedule.
5.3
Deductible
(a) Underwriters shall only be liable to pay any LOSS to the extent that
it exceeds the amount of the
Deductible stated in Item 4 of the Schedule. Such Deductible shall
be paid by the COMPANY and shall not be
insured.
(b) If the
COMPANY is permitted to indemnify any INSURED PERSON and does not do so,
Underwriters shall pay LOSS on behalf of the
INSURED PERSON without regard to the DEDUCTIBLE and the COMPANY shall reimburse
Underwriters upon demand to the fullest extent that the DEDUCTIBLE applies.
(c) For the purposes of determining the applicable Deductible, the
Memorandum of Association, Articles of
Association and or Byelaws (or the equivalent in any jurisdiction)
of the COMPANY shall be deemed to permit
indemnification to INSURED PERSONS to the
fullest extent authorised and not prevented by law or pursuant
to any contract.
5.4
Advancement of COSTS AND EXPENSES
Underwriters shall advance covered COSTS AND EXPENSES to the INSURED
PERSONS and or the COMPANY as applicable as
and when they are incurred following receipt of sufficiently detailed invoices.
If a CLAIM is ultimately determined not
to be covered under this Policy then all such COSTS AND EXPENSES shall be
reimbursed to Underwriters on demand.
Such
payment of COSTS AND EXPENSES shall not create any presumption with respect to
the allocation of amounts of covered LOSS or uncovered loss as described in
Clause 5.5.
5.5
Allocation
If both LOSS covered by this Policy and loss not covered by this Policy
are incurred either because the CLAIM includes both covered and
uncovered claims or because it includes both INSURED PERSONS and uninsured
parties, then the COMPANY, the INSURED
PERSONS and Underwriters agree to use their best endeavors to fairly and reasonably
allocate amounts between covered LOSS and uncovered loss.
In the event that agreement on such allocation cannot be reached the
COMPANY, the INSURED PERSONS and Underwriters
agree that the allocation of such amounts shall be determined by an independent
Counsel (whose identity shall be agreed by
the parties, or the chairman of the Bar Council if not agreed) who shall be
empowered to obtain such additional expert input as they
think necessary. The costs of the Counsel, including his expenses and the fees
related to any expert input, shall be borne by Underwriters.
Whether agreed or determined by Counsel, any allocation of LOSS on
account of a CLAIM shall be applied retrospectively
including all COSTS AND EXPENSES on account of such CLAIM notwithstanding the
basis of any prior advancement of LOSS or COSTS AND EXPENSES.
The COMPANY or the INSURED PERSONS as applicable agree to reimburse
Underwriters in respect of any
payments made to the extent that such
payments or parts thereof are ultimately determined not to be covered by this
Policy.
5.6
Subsidiaries
Coverage will apply in relation to any SUBSIDIARY only in respect of any
WRONGFUL ACT committed whilst a SUBSIDIARY.
Coverage will cease as at the effective date of the sale, disposal or
dissolution of any SUBSIDIARY for any WRONGFUL ACT committed after
such date of sale, disposal or dissolution.
5.7
Securities and Exchange Exposure
If
during the POLICY PERIOD, any
(a) share
capital or stock of the COMPANY is or becomes legally required to be the
subject of any registration statement filed
with the relevant Securities and Exchange Commission in accordance with
relevant Sections of the relevant Securities Act; or
(b) COMPANY is or becomes subject to any obligation to file reports with
any Securities and Exchange Commission in accordance with
relevant Securities Exchange Act;
then, where such registration or reporting obligation first attached
during the POLICY PERIOD, this Policy shall continue in
full force and effect provided the entity named in Item 1 of the Schedule has;
(i) as soon as is practicable provided Underwriters with notice of such
registration or reporting requirements
and such information as Underwriters may require in order to fully evaluate and
assess any additional exposure; and
(ii) accepted any amendment to the terms and conditions of this Policy
and has agreed to pay any additional premium charged in
relation to such additional exposure.
For the avoidance of doubt, this Condition 5.7 shall not apply to any
share capital or stock of the COMPANY purchased or sold pursuant
to Rule 144A of the USA Securities Act 1933.
5.8
Changes to the COMPANY
(a) In the event of a merger or takeover of the entity named in Item 1
of the Schedule, Underwriters shall only be liable in respect of WRONGFUL ACTS
committed prior to the date of merger or takeover;
(b) For the purposes of this clause, the entity named in Item 1 of the
Schedule shall be deemed to have
merged with or been taken over by another
company if an offer is made for a controlling interest in the issued
share capital of the entity named in Item 1 of
the Schedule which is declared or becomes unconditional, or if
there has otherwise been a fundamental change
in the share ownership or control of the entity named in Item
1
of the Schedule.
5.9
CLAIMS Provisions
(a) As a condition precedent to Underwriters’ liability under this
Policy, notice of any CLAIM shall be given to Underwriters as soon as is practicable and in any event within 30 days of
the expiry of the POLICY PERIOD or EXTENDED
REPORTING PERIOD if applicable. Notice of a CLAIM shall be in writing and shall
be delivered by fax, email or post to the persons and address
specified in Item 9 of the Schedule.
5.10
CLAIM Handling
(a)
The INSURED PERSONS shall have the right and duty to defend any CLAIM.
Underwriters shall be
entitled:
(i) to participate fully in the defence and in the negotiation of any
settlement that involves or appears likely to involve
Underwriters; and
(ii) at any time to take over and conduct in the name of
the INSURED PERSON and/or the
COMPANY the defence or settlement of any
CLAIM, or to prosecute in the name of the INSURED
PERSONS and/or the COMPANY for their own benefit any associated
claim against a third party.
(b) Subject to (a) above, the INSURED PERSONS may, subject to
Underwriters prior written consent (which
shall not be unreasonably withheld or
delayed), appoint solicitors or counsel to represent them in defending
any CLAIM, but where the same or a similar
CLAIM is made against more than one INSURED PERSON the
same solicitors and counsel shall be appointed to defend all
INSURED PERSONS unless there is a conflict of
interest between them.
(c) The INSURED PERSONS and the COMPANY shall provide all information and
assistance reasonably required to enable any CLAIM to be
effectively investigated and/or defended.
(d) The
INSURED PERSONS and the COMPANY shall not do or omit to do anything which may
prejudice the investigation and/or defence of a CLAIM.
(e) Liability shall not be admitted nor any settlement agreed in respect
of any CLAIM nor any COSTS AND EXPENSES
incurred without the prior written consent of Underwriters (which shall not be
unreasonably withheld or delayed).
(f) In the event of a disagreement arising between Underwriters, any
INSURED PERSON and/or the COMPANY
regarding whether or not to contest legal proceedings, the matter shall be
remitted to a Counsel (whose identity
shall be agreed by the parties, or by the chairman of the Bar Council if not
agreed) whose decision on whether the proceedings should be
contested shall be binding. The costs of consulting the Counsel
shall be borne by Underwriters.
5.11
Representations to Underwriters
(a) Underwriters have relied upon the material statements and information
supplied in the proposal form,
together with its attachments and they are the basis of this
Policy and shall be deemed to be incorporated into
and form part of this Policy. The information
so supplied shall be construed as a separate proposal by each
INSURED PERSON.
(b) Underwriters agree not to exercise their right to avoid this Policy
where it is alleged there has been non-
disclosure or mis-representation of facts, or
untrue statements in the proposal form or supplementary information or failure to notify a circumstance which may
give rise to a loss or claim, provided always that the INSURED PERSONS shall establish to the Underwriters’ satisfaction that
such alleged non-disclosure, misrepresentation,
untrue statement or failure to notify a circumstance was innocent and free of
any fraudulent conduct or intention to deceive.
(c) Where the INSURED PERSONS’ innocent breach or non-compliance with
any condition of this Policy has resulted in
prejudice to the handling or settlement of any CLAIM, the indemnity offered by
this Policy in respect of any such CLAIM
(including costs and expenses) shall be reduced to such sums as would have been
payable by them in the absence of such prejudice.
(d) If the
INSURED PERSONS or the COMPANY shall make any request for payment in respect of
any LOSS knowing the same to be false or
fraudulent as regards amount or otherwise, all requests for payment in respect of such LOSS hereunder shall be forfeited.
However, the fraud of any one INSURED PERSON shall not be imputed to any
other INSURED PERSON in this regard.
(e) Underwriters shall not avoid this Policy by reason only that they
may be so entitled by virtue of any statute or rule of law that makes or deems void any provision of this Policy to
indemnify or make payment to any INSURED PERSON or the COMPANY
against liability for any WRONGFUL ACT.
(f) Any reference in this Policy to any cause of action known to English
law shall be extended to include any cause of action in similar
circumstances under any foreign law.
5.12
Severability
No WRONGFUL ACT or knowledge of or statement made by one INSURED PERSON
shall be imputed to any other INSURED PERSON for the purposes of
determining their entitlement to cover pursuant to this Policy.
5.13
Subrogation
In the event that Underwriters make any payment in respect of LOSS
pursuant to the provisions of this Policy, they shall be subrogated to all of the INSURED PERSONS and/or the COMPANY’s
rights of recovery to the extent of the payment made. The INSURED PERSONS
and/or the COMPANY shall do all things reasonably necessary to enable Underwriters
to bring a claim in their name(s).
5.14
Variation and Assignment
No variation or assignment of interest under this Policy shall be
effective unless made in writing and signed by an authorised
representative of Underwriters.
5.15
Authority of the COMPANY
The COMPANY shall act on behalf of the INSURED PERSONS in respect of the
giving and receipt of all notices pursuant to this Policy and
in relation to the payment of premium.
5.16
Interpretation
Any reference in this Policy to a statute, statutory instrument,
regulation or order shall include all amendments made
to them. Any reference to the singular shall
include the plural and vice versa. Any references to any legislation
enacted in the United Kingdom shall include
any equivalent legislation enacted in any territory to which this Policy
applies.
5.17
Dispute Resolution
Save
in relation to the resolution of a dispute under Clause 5.5 or Clause 5.10(f):
(a) Any dispute arising out of or in connection with this Policy,
including any question regarding its formation, existence, validity or termination, shall be referred to arbitration in
London, England in accordance with the Arbitration Act 1996. The rules for the conduct of the arbitration shall,
subject to the provisions of the Arbitration Act 1996, be in the
discretion of the arbitrator.
(b) There shall be a sole arbitrator whose identity shall be mutually
agreed upon between the Underwriters and the INSURED PERSONS and/or the
COMPANY. In the absence of agreement, the arbitrator shall be selected by the Chairman of the Bar Council from a list
comprised of three nominations from each of the Underwriters
and the INSURED PERSONS and / or the COMPANY.
(c) The arbitrator (whether appointed by agreement or selected) shall be
a present or former member of the
English Commercial Bar with experience in insurance law who has
attained the status of Queen's Counsel.
5.18
Other Insurance
This Policy shall always apply excess of any other more specific
insurance and or indemnification available from any other
source.
5.19
Currency Equivalent
It is agreed that wherever an amount appears in this Policy in Sterling
(GBP) it shall be deemed to have the following words added
after the amount “(or the equivalent amount in any other currency)”.
5.20
Third Party Rights
A person who is not a party to this Policy may not enforce any of its
terms under the relevant Contracts (Rights of Third
Parties) Act.
5.21
Governing Law
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