Nasz Krag Final Design

Allianz D&O Protect
General Terms and Conditions of Directors
and Officers Liability Insurance
Allianz – insurance from A to Z.
Table of Contents
1. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Subject-matter of the insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Defence Costs against Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Policy Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Exclusions of liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Insured's duties and behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7. Sum Insured, series clause and Deductible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. General conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
General Terms and Conditions of Directors
and Officers Liability Insurance
General
1.
These General Terms and Conditions of Directors and Officers Liability
Insurance, hereinafter referred to as “T&C,” shall apply to insurance
agreements entered into by TU Allianz Polska S.A., hereinafter referred to
as “Insurer”, with Policyholders.
2.
Incorporation into the insurance agreement of any provisions additional
to or other than these T&C shall be subject to execution of a notice of intent
by the parties, on pain of nullity. Insurer shall notify the Policyholder in
writing of any variances between the Underwriting Document and the T&C
prior to execution of the Agreement unless the same is subject to
negotiation between the Parties.
Article 1
Subject-matter of the insurance
§1
Scope of insurance
1.
The cover is granted for Claims or Official Proceeding that are brought for the
first time during the Policy Period or Extended Reporting Period, if applicable,
against the Insured, including as part of offsetting against claims for indemnity.
A. The Insurer shall grant insurance cover in the event of Claim for
indemnification of a Pure Financial Loss is made against the Insured
Person on account of a Wrongful Act of the Insured Person.
B. The Insurer shall reimburse the Insured Company with the reasonable
and actionable amount of indemnity paid by the Insured Company,
after the Insured Company disburses the due Claim brought against
the Insured Person on account of a Wrongful Act of the Insured Person.
C. The Insurer shall grant insurance cover for the Insured Companies in the
event that a Claim for the indemnification of Pure Financial Loss is made
against Insured Companies on account of their Wrongful Act in
connection with the Trading of Securities of the Insured Companies.
2.
The cover shall include both the in-court and out-of-court Defence Costs
against Claims, Defence Costs in Official Proceeding, costs of settling
justified Claims and additional insurance benefits as provided for in the
general terms and conditions of insurance (T&C).
§2
Insured Persons
1.
Cover shall apply in respect of all former, present and future:
a) Members of Management Board, Supervisory Board, Auditing Committee,
Advisory Board, Board of Directors, Managing Directors and all members
of other comparable executive, advisory and/or supervisory bodies in
accordance with the Company's Agreement or Articles of Association
under the relevant law applying to the Insured Company. The cover shall
also include their entire operational activity, including oral or written
statements directly connected with the relevant post as officer. External
auditors shall not be covered;
b) Personally liable partners, appointed officers to run the company's
business and also members of the supervisory and advisory bodies of
commercial partnerships, unless a claim is one involving liability of
these persons for company's liabilities and /or a breach of fiduciary
obligations as partners;
c) Interim managers, where they have been appointed as Directors or
Members of Management Boards;
d) General representatives, proxies, persons performing supervisory
functions and officers in accordance with the provisions of a common
law legal system.
e) Appointed liquidators, provided the Insured Company in not being
liquidated in insolvency proceeding;
f) Substitutes of persons mentioned in above letters of this subsection,
only when they carry out functions of such substitutes.
g) Employees,
– when and to the extend they are held liable as managers, or
– where, as de facto or shadow directors or Members of Management
Board, they carry out the functions of directors or Members of
Management Board, or
– in their capacity as “approved persons”, who have been granted
permission by a supervisory authority to carry out a supervisory
function in the interests of the insured company in accordance with
Section 59 of the United Kingdom's “Financial Services and Markets
Act 2000” or comparable provisions, or
– in their capacity as appointed compliance officer of the Insured
Company or in their capacity as special officers provided for by the law
or by industrial standards for ensuring compliance, e.g. as data
protection, money laundering, work health and safety officers, and/ or
– insofar and as long as any Claims are made or Official Proceeding
are instituted against them in addition to other Insured Persons as
per article 1 § 2 hereof;
2.
If the aforementioned functions are carried out by a legal entity, the cover
shall extend exclusively to those natural persons who represent the said
entity in the aforementioned functions.
3.
The identification of individual Insured Person is made by the Insurer in
the event of a Claim, Official Proceeding or notification of circumstances
made according to the article 3 § 7 T&C or paying damages.
§3
Spouses, heirs and executors
The spouses, cohabitants/domestic partners, heirs, executors and legal
representatives (in case of incapacitation) of persons mentioned in article
1 § 2 point 1 under letters a) - g) shall also be insured in result of a
Wrongful Act covered with insurance committed by the persons referred
to in the aforementioned letters.
§4
Outside Directorships
1.
Any employees and directors and officers of the Insured Companies who,
at the request of or in the interests of the Insured Companies, hold
executive or supervisory directorships or hold functions of proxies in
compliance with applicable legal provisions in Non-Profit Organisations
or For-Profit Organizations shall also be covered in respect of Wrongful
Acts committed during the performance of such directorships.
2.
The inclusion in the insurance of directors in management or supervisory
bodies or proxies in For-Profit Organisations consisting of:
– companies having their registered office in the USA or companies
whose shares are traded in the USA, or
– Financial Services Companies
shall require a separate written agreement.
3.
The cover in respect of Outside Directorships in the above For-Profit
Organisations is subject to the notification by the Policyholder to the
Insurer on holding such directorships. The cover shall start not earlier than
when the Insurer declares that he does not demand any further
information or when the Insurer declares that the provided information
in sufficient for the Insurer.
4.
Article 7 § 3 of this T&C shall apply. Article 4 § 3 of this T&C shall apply
respectively.
1
Article 2
Defence Costs against Claims
§1
Defence Costs cover
1.
The cover shall include Defence Costs, both in and out of court in respect
of Claims against Insureds.
a) In the event of a Insurance Event, the Insurer shall bear the Insured's
Defence Costs. It shall be the responsibility of the Insureds alone to
organise claims defence and choose a legal counsel.
b) Defence against or the settlement of a Claim or release of a third party
from its liability shall be in each case agreed beforehand between the
Insurer and the Insureds to whom such Claim, settlement or release
from liability refers.
c) The Insurer may give the Insureds binding and reasonable instructions
in justified cases but is not obliged to do so.
d) The Insured are entitled to require an advance payment for Defence
Costs borne by these persons. In case of such demand the Insurer is
obliged to pay an advance payment for Defence Costs.
§2
Provisional assumption of defence costs
1.
Where, according to the Insurer’s knowledge on the date of the Defence
Costs payment it is not possible to judge whether a Claim or an Official
Proceeding is insured under this insurance agreement, the Insurer shall
pay Defence Costs provisionally.
2.
Should it subsequently turn out that the Claim or Official Proceeding are
not covered at all under this T&C or insurance agreement or only in part,
the Insured shall then be obliged to repay all or part of the Defence Costs
assumed. If a Claim or Official Proceeding referred to more Insured than
one, the Insured shall be joint and severally liable for the repayment. Article
4 § 1 of this T&C shall be unaffected.
3.
Assumptions of the Defence Costs shall not at the same time mean that
the Insurer acknowledges cover and/ or liability under this T&C.
§3
Emergency costs
1.
The Insurer shall approve retroactively justified:
– Defence Costs;
– Defence Costs before a Claim is brought or the Official Proceeding is
instituted, mentioned in article 2 § 4 of this T&C,
– Defence Costs in Official Proceeding and other benefits referred to
article 2 § 5 of this T&C,
– Image Repair Costs referred to in article 2 § 6 of this T&C.
incurred by the Insureds in engaging a lawyer or an expert or incurred in
compliance with the principles and in the scope specified in article 2 § 5
of this T&C, if and insofar as the Insurer’s prior agreement could not be
obtained within a reasonable time because, for example, defence
measures had to be take without delay. A prerequisite for incurring the
aforementioned Defence Costs and befits is that the Insured should then
furnish the loss advice related to these costs and benefits without delay
and not later than within 14 days since the day of incurring them.
2.
Cover in respect of the extension of liability on Emergency Costs is limited,
within the Sum Insured for one and all losses related to incurring the
aforementioned costs and benefits in the Policy Period, to the sum stated
in the Underwriting Document (sublimit).
§4
Defence Costs before a Claim is brought or Official Proceeding is
instituted
1.
Where with respect to an Insured Person:
– the granting of discharge is refused, or
– the service contract or the contract of employment is terminated without
notice for serious reason or is under threat of termination, or
2
–
agreed benefits under the service contract or contract of employment
are not provided or are reduced, or
– a Claim or Official Proceeding is advised or threatened in writing, or
– an third-party notice of a dispute in result of a Wrongful Act is advised
or made known,
or if a Claim for indemnity or a restraining injunction for an amount of
dispute of at least €250,000 is brought against an Insured Company, the
Insurer shall offer cover for Defence Costs even where the assertion of
Claims against the Insured Person or instituting Official Proceeding
involving Insured Person has not yet occurred but is probable and such
circumstances are reported to the Insurer in writing within the Insurance
Period of the Extended Reporting Period, if applicable.
2.
The Insurer shall bear the Defence Costs related to assessment of risks
related to the liability and appropriate defence measures for the purpose
of defending the Insured Person before the Claim is asserted or Official
Proceeding is initiated.
3.
The provisions of article 2 § 1 and article 2 § 2 of this T&C shall apply accordingly.
4.
The receipt of such notification by the Insurer shall be deemed equal to an
assertion of a Claim or initiating Official Proceedings,
§5
Defence Costs in Official Proceedings, bail and extradition
proceedings, prosecution costs
1.
Where Official Proceeding are instituted during the Policy Period or the
Extended Reporting Period, if applicable, the Insurer shall assume the
Defence Costs involved in the Insured Persons' defence or legal assistance.
2.
Under the prerequisites specified under point 1 of this paragraph, the
Insurer shall also assume justified costs for the provisions of any security
required under criminal law or securities of financial claims or bails
provided for in the civil proceeding law.
3.
Where in the Policy Period or the Extended Reporting Period, if applicable
a remand order is issued against an Insured Person on account of a
Wrongful Act, or during the mentioned time a formal notification of an
extradition request is served or a warrant of arrest is executed against
them as a result of an extradition request, besides the costs mentioned
under point 1 or 2 the Insurer shall also bear the Insured Person's necessary
and reasonable expenses. These shall include shipping costs of medicines,
any board and lodging costs of the Insured Persons, the costs of notifying
close relatives and costs arising in connection with the involvement of any
authorities (particularly embassies and consulates).
4.
The insurer will pay, where permitted by law, the Prosecution Costs of each
Insured Person imposed due to a Wrongful Act of an Insured Person that can
lead to an insured Claim or Official Proceeding, to obtain the discharge or
revocation of a judicial order entered in connection with insured Claim or Official
Proceeding during the Policy Period or Extended Reporting Period, if applicable:
– confiscation, assumption of ownership and control, suspension or
freezing of rights of ownership of real property or personal assets of
such Insured Person;
– a charge over real property or personal assets of such Insured Person;
– a temporary or permanent prohibition on such Insured Person from holding
the office of or performing the function of a member of the Executive or
Supervisory Board of the Insured Company or function of a proxy;
– restriction of such Insured Person’s liberty to a specified domestic
residence or an Official Detention;
– deportation of an Insured Person following revocation of otherwise
proper, current and valid immigration status for any reason other than
such insured' s conviction of a crime; or
– extradition of such Insured Person.
5.
Provisions of article 2 § 1 and article 2 § 2 of this T&C shall apply accordingly.
6.
Where in Insured Person is informed that proceedings as per point 1, 3 or
4 of this paragraph have been instituted, this shall be deemed equal to the
bringing of a Claim.
as long as the common legal interests of the Insured are represented by
the same lawyer. The Insurer shall retain the right to take recourse action
against uninsured natural persons.
Article 3
Policy Period
§6
Image Repair Costs
1.
In the event of a loss, the Insurer shall bear the costs (including fees and other
expenses) of restoring the Insured Person's reputation. Here in particular, the
cover shall also include the cost of a PR consultant for public relations work.
2.
The selection and appointment of a consultant shall be agreed beforehand
with the Insurer. The Insurer shall not abstain from this decision without
a reason. The Insurer may object to this appoint for legitimate reasons only.
3.
The cost of a consultant will be reimbursed as long as the public relations
work is suitable for counteracting any damage to the Insured Person's
reputation. In this respect, the dissemination of statements that have been
made in court rulings and/or official decision and exonerate the Insured
Person or clear them from charges shall be suitable.
4.
The costs of publishing advertisements or of broadcasts in the media shall
not be insured.
5.
The Insured Persons are entitled to require an advance payment for costs
borne by them. In case of such demand the Insurer is obliged to pay an
advance payment for these costs.
6.
Cover in respect of the above extension of liability is limited, within the Sum
Insured for one and all losses related to incurring the aforementioned costs in
the Policy Period, to the sum stated in the certificate of insurance (sublimit).
§7
Excess Defence Costs
1.
If it is agreed per schedule without prejudice to any other provisions of these
T&C, the Insurer will reimburse – only in case of full erosion by payment of the
Sum Insured available under this Underwriting Document and all coverage in
excess of this Underwriting Document – the Insured Persons for Defense Costs
in respect of further Claims or Official Proceeding related to Wrongful Acts that
are brought during the Policy Period or Extended reporting Period, if applicable,
up to the amount of the Sum Insured for Excess Defense Costs.
2.
Provisions of article 2 § 1 and article 2 § 2 of this T&C shall apply accordingly.
§8
Allocation
1.
Where Claims are made
a) against both Insured Persons and uninsured persons,
b) against both Insured Persons and Insured Companies,
c) on the basis of both insured and uninsured circumstances,
cover shall apply in respect to the share of the Defence Costs and/or Pure
Financial Loss corresponding to the share of the Insured regarding the
liability for insured circumstances.
2.
As regards the allocation of the Defence Costs and determination of the share of
the Insured in the indemnity, the following shall apply: The Insurer shall be
entitled, taking into consideration the chances for success of Claims brought, to
try to reach an agreement with the Insured about the corresponding sum. If an
agreement can not be achieved the Insurer indemnifies to own best estimate. If,
subsequent to the estimate, a different calculation of the insured portion is
arrived at through a court decision, compromise settlement or other legally
binding agreement, any resultant difference shall be refunded.
3.
This notwithstanding, in cases as per letters a) and b) of this subsection,
the Insurer shall at the Policyholder's request bear the entire Defence Costs
§1
Inception and end of the cover
1.
Unless otherwise agreed, the cover shall commence upon payment of the first
premium, though not sooner than at the time specified in the Underwriting
Document as the beginning of the Policy Period. Where the premium is not
requested until after the time specified in the Underwriting Document as the
beginning of the Policy Period and it is then paid without delay, the cover shall
nevertheless commence at the time specified in the Underwriting Document.
2.
If the Insurer is liable already before the premium or its first instalment is
paid, and the premium or its first instalment is not paid by its due date,
the Insurer may cancel the insurance agreement with immediate effect
and demand a payment for the premium for the period of its liability. If the
insurance agreement is not terminated, it shall expire at the end of a period
for which the unpaid premium was due.
3.
If the contract of insurance provides for the payment of premium in
installments and if a consecutive installment is not paid on time, the
Insurer may request the Policyholder to pay the overdue premium
installment and warn him that non-payment within seven days of the day
of receipt of the request by the Policyholder shall cause a cessation of
liability of the Insurer. Failing such a request from the Insurer the
insurance cover shall not cease, and the Insurer shall be entitled to a
premium for the whole period of insurance cover provided.
4.
In the event of the expiration of the insurance relationship through its
termination before the lapse of the agreed Policy Period, the Policyholder
is entitled to a reimbursement of the premium for the period of unused
insurance cover. The amount of premium to be reimbursed is determined
proportionally to the unused Policy Period.
§2
Term of the insurance agreement
1.
The insurance agreement is arranged for the Policy Period specified in the
Underwriting Document, unless the contract terminates for other reasons
according to the provisions of this contract or according to the applicable law.
2.
This policy terminates at midnight:
– of the day specified in the Underwriting Document, as the termination
of insurance
– any prior day of termination of insurance due to agreement of the
parties or cancellation.
3.
Any earlier cancellation or termination of or withdrawal from the insurance
agreement by the Policyholder as well as the Insurer shall be done in the form
of a registered letter as a precondition of the validity of such termination.
§3
Retroactive cover
1.
Unless otherwise agreed, the Insurer shall grant unlimited retroactive
cover in respect of all Wrongful Acts of the Insureds as long as the Claims
or Official Proceedings based on them are made or instituted during the
Policy Period or within the Extended Reporting Period if applicable.
2.
Cover for Claims or Official Proceedings against Insured Persons or Official
Proceedings involving Insured Persons of Subsidiary shall apply in respect
of Wrongful Acts that were committed while the company was a Subsidiary
of a Policyholder.
3
§4
Extended Reporting Period
1.
If this policy is not renewed beyond the time stated in the Underwriting
Document and no other liability insurance of directors and officers is
concluded, the cover may also apply for, after the acceptance of insurance
parties, Claims brought and Official Proceeding instituted during the
period set on the Underwriting Document starting on the next date after
the Policy Period expiration and based on Wrongful Acts committed prior
to the lapse of the Policy Period (Extended Reporting Period).
2.
Insured Persons who have left from their posts in one of the Insured
Companies voluntary or due to age or health reasons or on account of
restructuring that has led to the relevant post being abolished or for any
other reason than wilful or negligent misbehaviour continue to be
covered,– except as provided under point 1 above – with the Extended
Reporting Period as set on the Underwriting Document starting on the next
day after Policy Period expiration. This period remains in force regardless
of entering into another liability insurance agreement of members of
management boards and supervisory councils.
3.
In no case shall an Extended Reporting Period be granted if this insurance
agreement has been cancelled on account or arrears in the payment of premiums
§5
New subsidiaries
1.
The insurance will automatically extend to cover any new Subsidiary that
is acquired or established during the Policy Period, unless:
– the company is domiciled in the USA and its consolidated total assets
exceed 10% of the Policyholder's consolidated total assets or the
equivalent of EUR 500 million, or
– shares in that company (including their derivatives such as
ADRs/ADSa) are traded on a stock exchange in the USA or
– the Subsidiary is a Financial Services Company.
2.
Where the newly acquired or established Subsidiary does not fall under the
automatic cover, this cover will apply to that Subsidiary in accordance with
these terms and conditions for a limited period of 2 months from the Legal
Effectiveness of the measure under which such company became a direct or
indirect Subsidiary of the Policyholder. The newly acquired or established
Subsidiary can be granted an open-ended cover under this policy if:
– the Policyholder notifies the Insurer on the acquisition or new
establishment in accordance with article 5 § 1 of this T&C and
– the Policyholder and the Insurer reach an agreement on premium and
conditions within 2 months from the Legal Effectiveness of the
measure under which such company became a direct or indirect
Subsidiary of the Policyholder.
3.
Otherwise, no cover shall apply in respect of the newly acquired or established
Subsidiary and its Insured Persons at the end of the two-month period. This
shall also apply where the lack of agreement is attributable to a delay in the
notification of or a failure to notify of the acquisition or establishment.
§6
Loss of control of subsidiaries
In the event of the lost of direct or indirect control of a Subsidiary, the
Insured Persons of the former Subsidiary shall continue to be covered, but
only in respect of Wrongful Acts committed prior to the Legal Effectiveness
of the loss of direct or indirect control.
§7
Notice of circumstances
1.
If the insured has, within the Policy Period or the Extended Reporting Period
(if applicable), knowledge of any Insured’s Wrongful Act that are reasonably
likely to lead to a Claim or instituting Official Proceeding, he may notify the
Insurer of these circumstances in writing. If the above notice additionally
includes reasons for which the Insured expects a Claim or Official Proceeding,
together with full information on dates of such circumstances and persons
4
to whom they refer, the Insurer shall treat every such Claim brought against
the Insured or Official Proceeding instituted on the basis of such
circumstances as if it was reported to the Insurer at the time when the
Insured informed the Insurer on such circumstances for the first time.
2.
The liability of the insurer for noticed circumstances should cease 72
months after the termination of the insurance agreement.
Article 4
Exclusions of liability
§1
Wilful Wrongful Acts
1.
The insurance shall not cover Claims arising out of a wilful Wrongful Act,
or a willful violation of law committed by an Insured. Willful action of one
Insured shall not, however, be raised against another Insured.
2.
Where an Insured Person breaches law, the term “wilful” within the
meaning of this exclusion is not applicable where and insofar the Insured
Person, making an objective assessment of all the circumstances – in
particular also taking account of official announcements by authorities
or court judgements and taking account of the good of the Company, might
well assume that acting according to the breached law provisions was not
necessary or possible and that their action was therefore legitimate.
3.
Where the existence of an wilful Wrongful Act or wilful violation of law is
questionable, provisional cover shall apply in respect of the Defence Costs.
Where the wilful Wrongful Acts or wilful violation of law are established in a
legally binding way or through own admission, settlement or official or judicial
decision, the Insurer shall be released retroactively from its duty to indemnity
and any Defence Costs already assumed shall be reimbursed to the Insurer.
4.
The cover for gross negligent Wrongful Acts or gross negligent violation of
law committed by an Insured is granted.
5.
The assumption of Defence Costs shall not mean that the Insurer
acknowledges cover and/or liability under this insurance agreement.
§2
Known Wrongful Acts and Official Proceedings
1.
The insurance shall not cover Claims on account of or based on Wrongful Acts:
– that were known to a Representative of the Policyholder, the Insured
Persons against which a Claim is made or Official Proceeding are
instituted or the persons involved in the negotiations and agreement
of this policy, on the inception date of this policy or the Continuity Date
specified in the Underwriting Document, or
– that had already been reported under another insurance contract or
in an earlier Policy Period of this insurance agreement.
2.
Furthermore, no cover shall apply in respect of Claims on account of or based
on court or Official Proceeding against Insureds that were already initiated,
pending or concluded on or before the Continuity Date, insofar as the
possibility of a Claim in that connection was already objectively foreseeable
for the Insureds at that time. Article 6 § 2 of this T&C shall apply accordingly.
§3
Insured vs Insured Claims in USA
The insurance shall not cover Claims of Insured Companies against
Insured Persons or Insured Persons against each other, brought in the USA
or under the law applying there unless:
– Defence Costs are involved;
– an Insured Person seeks recourse as a direct consequence of an insured
Claim or brings a Claim for compensation;
– Derived Shareholder Claims are involved;
– the Claim is made without instruction, instigation, support or
recommendation from the Insured Companies or an Insured Person
–
by an administrator in insolvency proceedings or a comparable officer
under foreign law,
the Claim is brought by an Insured Person who no longer works for
any of the Insured Companies.
§4
Claims brought in USA
The insurance shall not cover Claims that are brought in the USA or under
the law applying there,
– insofar as they are based wholly or in part on actual or alleged
violations of the provisions of the Securities Act of 1933, the Securities
Exchange Act of 1934 and any amendments thereto, or on violations
of corresponding federal or state regulations or associated principles
of common law in the USA;
– insofar as they are based wholly or in part on actual or alleged
violations of the provisions of the Employee Retirement Income
Securities Act of 1974 and any amendments thereto, or on violations
of corresponding federal or state regulations or associated principles
of common law in the USA;
– on account of or on the basis of imminent environmental impairment
or Environmental Damage, unless involving Own Shareholder Claims,
Derived Shareholders Claims or Defence Costs.
– for punitive and exemplary damages based on Employment Wrongful Act
§5
Penalties, fines and sanctions
1.
The insurance shall not cover Claims on account of or in result of penalties,
court, administrative, penal and fiscal fines and other fines and sanctions
for illegal activities, provided that recourse Claims of the Insured Company
against Insured Persons related to reimbursement of costs related to the
payment of a penalty, fine or sanction imposed on the Insured Company in
result of a Wrongful Act of the Insured Persons are covered with insurance.
2.
Cover in respect of the above extension of liability is limited, within the Sum
Insured for one and all losses related to incurring the aforementioned costs in
the Policy Period, to the sum stated in the Underwriting Document (sublimit).
§6
Taxes and other public-law liabilities
1.
The insurance shall not cover Claims on account of or in result of taxes or
other public-law liabilities unless:
– Defence Costs in Official Proceeding, or
– liability of Insured Persons for the public-law debts of the Insured
Company in accordance with Articles 116 and 116a in relation to Article
107 of the Tax Law.
are involved.
2.
Cover in respect of the above extension of liability of Insured Persons for
public-law debts of the Insured Company is limited, within the Sum Insured
for one and all losses related to incurring the aforementioned costs in the
Policy Period, to the sum stated in the Underwriting Document (sublimit).
Article 5
Insured's duties and behaviour
§1
Aggravation of risk during Policy Period
1.
The Policyholder shall be obliged to report to the Insurer immediately in writing
any of the following circumstances that occur after concluding the policy:
– takeover of the control of the Policyholder within the meaning of article
8 point 22 of this T&C, merger or equivalent measures with an entity
from outside the capital group;
– public offering of the Insured Companies' Securities on the primary
market (IPO/ Initial Public Offering) or secondary market (SPO/
Secondary Public Offering);
– acquisition or establishment of a Subsidiary that is not automatically
included under the cover in accordance with article 3 § 5 of this T&C;
– decision on the opening of insolvency proceedings.
2.
In the event of a takeover, merger or equivalent measures, declaration of
insolvency or application of declaring insolvent, this policy shall only
apply to Wrongful Acts committed prior to the Legal Effectiveness of such
event. Extended Reporting Period as described in article 3 § 4 applies
accordingly. With regard to acquisition or establishment of new
Subsidiaries article 3 § 5 shall apply.
3.
Any further cover may be granted subject to an agreement with the Insurer.
4.
In the event of a public offering of Securities of the Insured Company,
claims arising out of, based upon or attributable to such offering are
covered only subject to an agreement with the Insurer. The Policyholder
shall provide the Insurer in writing with all relevant or requested
information as a basis of such agreements as soon as such information
are publicly available. The Insurer shall be entitled to adjust the premium
and terms and conditions.
§2
Duty of notification of Insurance Event
Where a Claim is made or Official Proceedings are instituted against the
Insured, the Insurer shall be notified within 14 working days from the date
of making a Claim or instituting Official Proceeding. The obligation of
notification shall also apply in respect of circumstances for which
extended cover exists (article 2 § 4 of this T&C).
§3
Duty to minimise loss
The Insured is obliged to use all available measures to prevent or reduce
the amount of a Claim on account of Wrongful Act and to do everything in
their power to clarify the circumstances of occurrence of a Claim on
account of Wrongful Act.
§4
Acknowledgement and compromise
Without a prior Insurer's consent in writing, neither the Policyholder nor
the Insured is entitled to:
– accept or decide or settle any Claim on account of Wrongful Act or to
enter into settlement or start negotiating a settlement, or
– accept or decide or make a settlement in the course of Official
Proceeding.
§5
Rights of recourse
On the day of indemnity payment by the Insurer, the Insured's claim
against a person responsible for Pure Financial Loss is transferred to the
Insurer up to the amount of the indemnity paid. The Insurer may request
the issue of a document providing evidence of assignment of the claim.
The Insurer is also obliged not to assert recourse claims against any other
Insured that are covered under this T&C.
§6
Legal consequences of a breach of obligation
1.
In the event of violation of any of the duties towards the Insurer set forth
above, or any other provision of these T&C, the Insurer shall not be obliged
to indemnify under the insurance agreement unless such violation was
without intent or gross negligence. In the event of gross negligence the
Insurer shall remain liable to pay damages to the extent that such violation
did not affect the determination of the Insurance Event, or the calculation
of the resulting damages.
2.
If grossly negligent violation was committed with respect to the duty
specified in article 5 § 3 of this T&C, the Insurer shall remain liable to pay
indemnification to the extent that the Pure Financial Loss would be smaller
if such a violation had not been made.
5
Article 6
Sum Insured, series clause and Deductible
§1
Sum Insured
1.
The Sum Insured specified in the Underwriting Document represents the
maximum benefit payable by the Insurer on each and every Insurance
Event and in the aggregate within the Policy Period, including Defence
Costs and other insurance benefits. The Insurer's own costs shall not be
counted towards the Sum Insured.
2.
The portion of the Sum Insured stated in the Underwriting Document that has
not been used up for payments in the last expiring Policy Period shall be
available for all Insurance Events occurring and reported to the Insurer during
the Extended Reporting Period if applicable. In order to define the beginning
of the Extended Reporting Period in cases referred to in article 3 § 4 point 2
hereof, the moment when Policy Period expires shall be applicable. The
Insurance Event in accordance with article 3 § 4 point 2 of this T&C shall be
allocated to the Policy Period in which the Insurance Event occurred – or in
case of cancellation or non-renewal hereof, to the Policy Period last expiring.
3.
Where a separate Sum Insured is expressly agreed, the limits shall be
available alongside each other.
§2
Series clause
1.
All Clams or Official Proceeding:
– that relate to a Wrongful Act committed by one or more Insureds,
– that relate to several Wrongful Acts committed by one or more Insureds, insofar
as they can be attributed to one and the same situation and are connected
temporally, legally and economically, shall be deemed a single Claim or Official
Proceeding and shall be assigned exclusively to the Policy Period, in which a
Claim was made for the first time or Official Proceeding instituted for the first
time. Any Deductible shall then be applied only once overall.
2.
If a Claim was made for the first time or Official Proceeding were instituted
for the first time prior to the Continuity Date, the entire series of losses
shall be deemed not insured.
§3
Deductible
1.
The Underwriting Document may provide for an application of an agreed
Deductible to every Insured Event.
2.
A deductible means an amount determined in currency or as a fixed
percentage of the Pure Financial Loss, deducted from the loss payable.
3.
The Underwriting Document may provide for separate deductibles for:
– Claims covered under article 1 § 1 point 1 B
– Claims brought against Insured Companies according to the principles
specified in article 1 § 1 point 1 C
4.
The Underwriting Document may provide separate Deductible for Defence
Cost borne by an Insured Company.
5.
Deductible shall not apply if a Claim was brought against an Insured
Person or if given type of costs is borne by an Insured Person.
Article 7
General conditions
§1
Worldwide coverage
Insurance covers Claims brought or Official Proceeding initiated and
Wrongful Acts committed worldwide.
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§2
Imputation
1.
The knowledge and also the acts and omissions of other Insured Persons
shall not be imputed to any Insured Persons. The above provision does not
apply if the Insured Person knew about the acts or omissions of other
Insured Persons on the date of a breach of an obligation or duty. Only the
knowledge and acts and omissions of the Policyholder's Representatives
shall be imputed to the Policyholder.
2.
Only the knowledge and acts and omissions of the Policyholder's
Representatives and their own Representatives shall be imputed to the
other Insured Companies.
§3
Subsidiarity/ excess insurance
1.
Subject to the compulsory legal provisions, if a Pure Financial Loss
claimed for or Official Proceeding are also insured under any other
directors and officers liability insurance, or if a For-Profit or Non-Profit
Organisation is obliged to indemnify, this insurance shall be available
only after the payment is made under the other insurance or after the
obligation to indemnify was fulfilled. This shall also apply if the other
insurance contract no longer exists, but the loss could be or could have
been reported in an Extended Reporting Period if agreed therein.
2.
Cover shall apply as a supplement to the benefit paid by another insurer
insofar as the cover under this insurance agreement is wider than that
under the other relevant insurance agreement (difference-inconditions cover) or the other cover has been used up through
payments (drop-down cover).
3.
Where the Insured does not receive any payment from the other
insurance agreement or from the indemnity obligation on account of
permanent insolvency of the other insurer or the party subject to the
indemnity obligation, the Insurer shall pay directly against assignment
of the Insured's claims.
4.
If any other insurance agreement contains provisions comparable to
provisions of subsection 3 hereof, the insurance agreement that has a
closer substantive connection with the loss claimed shall take precedence.
5.
A closer substantive connection exists in particular with the insurance
agreement :
– that an Insured Company maintains separately as its own insurance
cover or
– that a For-Profit or Non-Profit Organisation maintains separately as its
own insurance agreement or
– that offers more specialised cover in respect of insured risk, in
particular but not exclusively an EPL or IPO/SPO cover.
6.
Where no closer substantive connection is identifiable, payment shall be
made first from the insurance agreement that was arranged earlier, and
in case of Extended reporting Period – from the insurance agreement that
was arranged later.
7.
Article 2 § 2 of this T&C shall apply accordingly.
§4
Accumulation clause
Where the Pure Financial Loss claimed for or Official Proceedings are
covered under more than one insurance agreement for members of
management board and supervisory boards provided by companies
belonging to Allianz SE Capital Group, the Insurer's overall indemnity shall
be limited to the highest of the amounts for which it is involved on any one
Insurance Event and Policy Period.
§5
Insurance premium and its payment
1.
Insurance premium is determined for the Policy Period and, if applicable, for
the Extended Reporting Period as, pointed out in the Underwriting Document.
2.
The whole amount of insurance premium is determined in the
Underwriting Document.
3.
The premium is calculated for scope of cover mentioned in article 1 § 1
point 1 A, B, C of this T&C and any additional coverages as granted in the
Underwriting Document.
4.
On the Policyholder request, the premium can be allocated between scope
of cover mentioned in article 1 § 1 point 1 A, B, C of this T&C and additional
cover granted in the Underwriting Document, according to the Insurer’s
individual risk assessment.
5.
Premium may be paid by a wire transfer. Premium shall be deemed paid
subject to a confirmation of wire transfer.
6.
Premium is paid by a one time payment for the whole Policy Period or by
instalments - at the Policyholder's request and at Insurer's consent.
§6
Jurisdiction and applicable law
1.
This terms and conditions and the insurance agreement concluded on the
basis of them shall be subject exclusively to Polish law.
2.
Any disputes arising from insurance agreement shall be solved by common
courts of law competent for the Insurer's seat or the place of residence of the
Policyholder or Insured or entitled from the Insurance Agreement.
§7
Insurance intermediary clause
Where an agent or broker of the Policyholder intermediates in the execution
or performance of the insurance agreement, all notices and statements of
intent addressed to the Policyholder shall be submitted to such an agent or
broker. All notices and statements of intent shall be deemed given by the
Insurer, and all obligations toward the Insurer shall be deemed met, if given
or met by or to the agent or broker of the Policyholder.
§8
Notifications and declarations
1.
All notices and statements to Allianz shall be made in writing and
submitted to the Insurer registered offices or another address as may be
provided in the Underwriting Document or any attachments thereto.
2.
All complaints, attentions and reservations relating to the insurance
agreement, its concluding and implementation as well as services
provided by employees and / or cooperators of TU Allianz Polska may be
notified directly or by the representative, in written form or by phone:
a) on address: TU Allianz Poland S.A., 1 Rodziny Hiszpańskich Street, 02685 Warsaw (with additional note "The Casualty Department”),
b) on Call Center telephone number : 0-801-10-20-30, operative from Mon.
to Fri. between 8.00 a.m and 8.00 p.m. as well as on Saturday between
9.00 a.m. and 3.00 p.m.,
c) on e-mail address: [email protected]
Any notified problem will be considered in the possible quickest time, and
answers will be given at the latest within 30 days from the date of the
receipt of complaints, attentions and reservations.
§9
Insurance tax
1.
Where the Insurance agreement relates to risks situated abroad, the
Policyholder shall provide the relevant information for calculating and possibly
reducing a foreign insurance tax, or estimates for each premium calculation.
2.
Where the tax authority casts doubts on the basis for calculating the
premium or assesses it differently from the point of view of tax law and
therefore the Insurer is obliged to pay the insurance tax or other charges, the
Policyholder shall make the basis of calculation available and reimburse the
Insurer for any insurance tax or other charges that may subsequently be
payable. This shall also apply if in deviation from, or contrary to, standard
practice the Insurer is regarded as liable instead of the Policyholder.
3.
If the risk is located in the EU or the EEA, insurance tax shall be collected
in accordance with the national regulations by the Insurer, who shall pay
it to the tax authorities insofar as it is the Insurer’s obligation to do so.
4.
If the risk is located outside the EU or the EEA, the Policyholder shall, on its
own responsibility, ascertain whether and to what extent insurance tax
and/or other levies are payable under national regulations. Unless
otherwise expressly agreed, the Policyholder shall be responsible for paying
insurance tax and/ or other levies.
Article 8
Definitions
1.
Claim – a written demand for damages based on statutory liability
provisions, against an Insured in respect of Pure Financial Loss arising
from a Wrongful Act. This includes legal actions taken by Insureds. Insured
Companies’ Claims shall be deemed to have been made when:
– the supervisory board or the annual general meeting or the meeting of
shareholders of the Insured Company adopted a resolution on asserting
a Claim against an Insured Person by an Insured Company, or
– the annual general meeting or the meeting of shareholders of the
Insured Company has appointed a representative to represent the
Insured Company in asserting Claims against an Insured Person, or
– shareholders of the Insured Company request the Insured Company
to assert a Claim against an Insured Person.
2.
Continuity Date – a date specified in the Underwriting Document for the
requirement of liability exclusion specified in article 4 § 2 of this T&C.
Where no date is specified, the time when a statement on retroactive
insurance (warranty statement) was last signed shall be deemed to be the
Continuity Date. Where the Insurer does not have such a warranty
statement, the Continuity Date shall be the policy inception date. For new
Subsidiaries within the meaning of subsection 3.7 hereof, the Continuity
Date shall be the date on which they are included in the cover with Legal
Effectiveness. For extensions of cover or increases of the Limit of Liability,
the Continuity Date is the date of the Legal Effectiveness of the extension
of cover or the increase in the Limit of Liability.
3.
Defence costs – External attorney’s fees and expert fees, as well as witness
fees reimbursed by an Insured, court fees and costs of mediation or
arbitration, incurred by an Insured:
a) in the defense of a Claim whether in or out of court, or
b) in the defense of, or as payment of legal counsel fees related to, an
Official Proceeding, and
c) unless the Underwriting Document provides otherwise, up to the
amount of the Sum Insured specified in the Underwriting Document;
d) upon a prior consent of the Insurer, or, in case of additional coverage,
up to the amount of Emergency Costs, and
e) evidenced by proof of payment in the form of relevant invoices, bills,
or other evidence.
Internal costs of the Insured Company or Insured Person shall not be
reimbursed
4.
Derived Shareholder Claims – Claims asserted or maintained by one or
more shareholders on behalf of or in favour of an Insured Company
without any instruction, instigation, support or initiative from an Insured
Company or Insured Person. Where cooperation is necessary in order to
meet a statutory obligations, this shall not constitute support or initiative.
7
5.
Employment Wrongful Act means:
a) Unfair or wrongful dismissal, termination or discharge of employment,
either actual or constructive;
b) harassment (including sexual harassment and workplace
harassment);
c) discrimination;
d) retaliation, including lockouts;
e) employment related misrepresentations to an employee or applicant
for employment;
f) employment related humiliation, defamation or invasion of privacy;
g) wrongful failure to employ or promote;
h) wrongful deprivation of career opportunity;
i) wrongful failure to grant tenure;
j) negligent evaluation;
k) failure to provide accurate references;
solely relating to any past, present or prospective employee. The cover is
not provided for contractual obligations.
connection with a Claim or Official Proceeding against such Insured Person
and either without charge or without a judicial finding of culpability or
liability in that Claim of Official Proceeding.
6.
Environmental damage – a damage caused by any pollutants. Pollutants
means solid, liquid, gaseous, biological, radiological or thermal irritant, toxic
or hazardous substance, or contaminant, including, but not limited to,
asbestos, lead, smoke, vapour, dust, fibres, mould, spores, fungi, germs, soot,
fumes, acids, alkalis, chemicals and waste. Such waste includes, but is not
limited to, materials to be recycled, reconditioned or reclaimed and nuclear
materials and any other substances causing any environmental damage.
18.
Prosecution Costs – legal fees, costs and expenses due to prosecution
proceeding, incurred by an Insured Person with the prior written consent
of the Insurer, in order to initiate legal proceedings.
7.
Financial Services Companies – banks, insurance and reinsurance companies
and investment fund companies, employee pension or welfare plan or
organization or any other employee benefit plan as well as other companies
that are subject to the supervision of the Polish Financial Supervision Authority
(KNF) or any comparable financial authorities in other markets.
8.
For-Profit Organisation – private or public enterprises that are geared to
making profit not including:
– any employee pension welfare plan or organizations, or
– any other employee benefit plan, or
– any Subsidiaries,
and in which the Policyholder holds directly or indirectly between 5 and
50% shares while a relevant outside directorship is being held according
to article 1 § 4 of this T&C.
9.
Insurance Event – Making a Claim or initiating an Official Proceeding in
the Policy Period or, if applicable, in the Extended Reporting Period
following the Policy Period.
10.
Insureds – the Insured Persons or Insured Companies covered under this T&C.
11.
Insured Companies – the Policyholder as stated in the Underwriting
Document and its Subsidiaries. Cover for Claims against the Subsidiary
applies in respect of Wrongful Acts that were committed while that
company was a Subsidiary of the Policyholder.
12.
Insured Persons – natural persons who carry out, carried out or will carry out
an activity in accordance with article 1 § 2 hereof in the Insured Companies.
13.
Legal Effectiveness – the legal effectiveness of a given measure against
third parties.
16.
Official Proceedings – the following proceedings initiated in the Policy Period or
in the Extended Reporting Period, if applicable, by appropriate state authorities:
a) preparatory stage or discovery proceeding related to an Insured Person,or
b) offense proceeding, or criminal or administrative proceeding initiated
in the Policy Period or Extended Reporting Period, if applicable, alleging
a Wrongful Act by an Insured Person
17.
Own Shareholder Claim – Claims asserted or maintained by one or more
shareholders on their own behalf in respect of own losses, without any
instruction, instigation or support from and not on the initiative of an Insured
Company or an Insured Person. Where cooperation is necessary in order to
meet statutory obligations, this shall not constitute support or initiative.
19.
Pure Financial Loss – the suffered purely financial loss that is neither bodily
injury (resulting from death, bodily injury or a health disorder, including
mental disorder, of a harmed person) or a property loss (damage, breaking,
destruction or a loss of property), nor it derives from such losses. Property
are in particular monetary tokens. Pure Financial Losses are also deemed
to be monetary compensations for negative mental experience in result
of Employment Wrongful Act committed by Insured Persons.
20.
Representatives of Insured Companies are their
– Chairman of the Management Board
– Board Member responsible for the Finance Division
– Head of the Legal Department
– Head of the Insurance Department
or any other officer comparable to these persons at companies
incorporated under foreign law.
21.
Securities – shares, temporary certificates, deposit certificates, shares
collective certificates, bonds, founding certificates, warrants and other
rights issued by the Insured Companies, that are comparable to such
shares or bonds, if they can be traded on a market.
22.
Subsidiaries – companies, in which the Policyholder – before or on the date of
this insurance agreement coming into force, is directly or indirectly entitled to:
a) has or has had a majority of voting rights at a General Meeting of
Shareholders, or
b) have or have had a right to appoint or dismiss the majority of the
members of the executive or supervisory body, where the Policyholder
is simultaneously a shareholder, or
c) have or have had a of a controlling influence on this company on the
basis of a management agreement entered into with this company or
a provisions of the Company's Agreement or Articles of Association.
23.
Sum Insured for Excess Defense Costs – a separate Sum Insured specified
in the Underwriting Document for defence as provided for in subsection
article 2 § 7 hereof.
14.
Non-Profit Organisations – non-profit-making companies, associations,
federations or other private or public organisation that are not geared to
making profit and are not Subsidiaries not including any employee pension
or welfare plan or organization, or any other employee benefit plan.
24.
Trading – the offering for purchase or sale, the purchase or sale of a Security
and also the invitation or request to provide an offer on the purchase or
sale of a Security, but not the first public offering of primary Securities or
secondary shares as part of an Initial Public Offering (IPO) or Secondary
Public Offerings (SPO) and the takeover of or the offer to take over shares
as part of a share swap or squeeze-out procedure.
15.
Official Detention – confinement of an Insured Person in secure custodial
premises, operated by or on behalf of a governmental or judicial agency in
25.
Underwriting Document – a document stating the fact of entering this
insurance agreement and setting out the principal provisions thereof.
8
26.
Wrongful Act – any actual or presumed incorrect act or omission on the part
of an Insured Company or Insured Person in their capacity or function as such.
A Wrongful Act means also the Employment Wrongful Act. A Wrongful Act
through omission shall be deemed committed on the last day the omitted act
ought to have been carried out in order to avert the occurrence of the Pure
Financial Loss.
2.
All reference to singular include plural and vice-versa.
3.
Words of the masculine gender include the feminine and the neuter.
Article 9
Miscellaneous
4.
All references to laws shall be deemed to refer to such laws as they may from
time to time be amended or modified, and to equivalent laws applicable in
any country in which a Claim is made or Official Proceeding instituted.
1.
If any provision of this insurance agreement is held to be unenforceable
or invalid by a competent court, the remaining provisions of this insurance
agreement shall remain in full force and effect, unless such determination
renders this insurance agreement unenforceable.
5.
These terms and conditions were approved by way of Resolution 158/2009
of the Management Board of Towarzystwo Ubezpieczeń Allianz Polska
Spółka Akcyjna dated on 16th December 2009, and apply to all insurance
agreements entered into on or after 16th December 2009.
9
TUiR Allianz Polska S.A.
OCD&OEN-O02 08/10
Helpline: 0 801 10 20 30
www.allianz.pl