Pension and Welfare Benefit Plan

Transcription

1 Pension and Welfare Benefit Plan Fiduciary Liability Insurance Policy Executive Risk Indemnity Inc. Home Office: 2711 Centerville Road, Suite 400 Wilmington, DE Administrative Offices/Mailing Address: 82 Hopmeadow Street Simsbury, Connecticut Phone: Fax: Web Site:

2 THIS IS A CLAIMS MADE POLICY WITH DEFENSE EXPENSES INCLUDED IN THE LIMIT OF LIABILITY. PLEASE READ THE ENTIRE POLICY CAREFULLY. EXECUTIVE RISK INDEMNITY INC. PENSION AND WELFARE BENEFIT PLAN FIDUCIARY LIABILITY INSURANCE POLICY Subject to the Limit of Liability and to all of the terms, conditions and limitations of this Policy and any endorsements to this Policy, Executive Risk Indemnity Inc. (the "Underwriter") and the Insureds agree as follows: I. INSURING AGREEMENT The Underwriter will pay on behalf of the Insureds Loss from Claims first made against any Insured during the Policy Period or, if applicable, the Extended Reporting Period, for Wrongful Acts occurring before the expiration of the Policy Period. As part of and subject to the Limit of Liability set forth in ITEM 3 of the Declarations, the Underwriter will have the right and duty to defend any such Claim, even if the Claim is groundless. II. DEFINITIONS (A) Administration means: (1) giving counsel to employees with respect to Employee Benefits; (2) interpreting Employee Benefits; (3) handling records in connection with Employee Benefits; or (4) effecting enrollment, termination or cancelation of employees under an Employee Benefits program. (B) (C) Application means the application attached to and forming part of this Policy, including any materials submitted in connection therewith, all of which are on file with the Underwriter and are a part of the Policy, as if physically attached. Claim means: (1) any written demand by any person or entity, (2) any civil proceeding in a court of law or equity, 1

3 (3) any criminal proceeding in a court of law, or (4) any administrative or regulatory proceeding commenced by the filing of a notice of charges, formal investigative order or similar document; seeking to hold an Insured responsible for monetary damages or other relief as a result of a Wrongful Act actually or allegedly committed by an Insured or by any person for whose Wrongful Acts an Insured is legally responsible. (D) (E) (F) (G) Defense Expenses means reasonable expenses and legal fees incurred by or on behalf of the Insureds in the investigation, adjustment, defense or appeal of a Claim, subject to the Underwriter s right and duty to defend as set forth in the INSURING AGREEMENT. Employee Benefits means any Plan, workers compensation insurance, unemployment insurance, Social Security or disability benefits. Insurance Representative means the person designated in ITEM 7 of the Declarations. Insured means: (1) any Plan; (2) any Sponsor Organization; and (3) any natural person who at any time holds or shall have held the position of trustee of any Plan or director, officer, trustee, partner or employee of any Plan or of any Sponsor Organization. 2

4 (H) Loss means Defense Expenses and damages, judgments or settlements which an Insured is legally obligated to pay as a result of a Claim; provided, that Loss shall not include: (1) fines, taxes or penalties, except that Loss may include civil penalties of up to five percent (5%) imposed pursuant to Section 502(i) of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ), for inadvertent violation of Section 406 of ERISA, and civil penalties of up to twenty percent (20%) of any settlement or judgment imposed pursuant to Section 502(l) of ERISA for breach of fiduciary duty; (2) fees or other charges of the Insureds, including but not limited to salaries, overhead or benefit expenses of any Insured; (3) punitive or exemplary damages or the multiplied portion of any multiple damage award; or (4) benefits due or to become due under the terms of any Plan, unless and then only to the extent that recovery for such benefits is based on a Wrongful Act and is payable as the personal obligation of an Insured who is a natural person; provided that Loss shall include Defense Expenses with respect to any Claim seeking benefits due or to become due under the terms of any Plan. (I) (J) Pension Benefit Plan means any employee pension benefit plan, as such term is defined in ERISA. Plan means: (1) any Welfare Benefit Plan which was, is now, or becomes sponsored by any Sponsor Organization; (2) the Pension Benefit Plan(s) identified in the Designated Plan Endorsement attached to this Policy, and any trust established to hold the assets of any such Pension Benefit Plan(s); (3) any Pension Benefit Plan, or any trust established to hold the assets of any such Pension Benefit Plan, which was formerly sponsored by any Sponsor Organization and which was sold, spun off or terminated before the Inception Date in ITEM 2(a) of the Declarations, but only if coverage was available in respect of such Pension Benefit Plan under any policy of which this Policy is a renewal; 3

5 (4) any Pension Benefit Plan, or any trust established to hold the assets of any such Pension Benefit Plan, created during the Policy Period by any Sponsor Organization or by any interest owned or controlled by such Sponsor Organization for the employees thereof, but only if the Insureds give the Underwriter written notice of the creation of such Plan within ninety (90) days of the effective date thereof; and (5) any Pension Benefit Plan, or any trust established to hold the assets of any such Pension Benefit Plan, of any entity acquired during the Policy Period through the merger, consolidation or otherwise by any Sponsor Organization or by any interest owned or controlled by such Sponsor Organization, but only if: (a) (b) the Insureds give the Underwriter written notice of such acquisition as soon as practicable after the effective date thereof; the Insureds give the Underwriter such additional information with respect thereto as the Underwriter may reasonably require; and (c) the Underwriter has specifically agreed by written endorsement to provide coverage in respect of such plan and the Insureds have accepted any additional terms, conditions and limitations of coverage, and paid any additional premium, that the Underwriter, in its sole discretion, shall have deemed appropriate in connection therewith. (K) (L) (M) (N) (O) Policy Period means the period from the Inception Date to the Expiration Date in ITEM 2 of the Declarations or to any earlier cancelation date. Related Claims means, collectively, all Claims involving the same Wrongful Act or Wrongful Acts which are logically or causally connected by reason of any common fact, circumstance, situation, transaction, event or decision. Sponsor Organization means any employer who is the sponsor of a Plan. Welfare Benefit Plan means any employee welfare benefit plan, as such term is defined in Section 3 of ERISA. Wrongful Act means any actual or alleged: (1) breach of the responsibilities, obligations or duties imposed upon fiduciaries of any Plan by ERISA or the common law or statutory law of any jurisdiction governing such Plan; or 4

6 (2) negligent act, error or omission by an Insured in the Administration of Employee Benefits. III. EXCLUSIONS This Policy does not apply to any Claim: (A) (B) (C) (D) (E) (F) brought about or contributed to in fact by any dishonest, fraudulent or criminal act or omission or any willful violation of any statute, rule or law by any Insured or the gaining in fact by any Insured of any profit, remuneration or advantage to which such Insured is not legally entitled; provided, that no Wrongful Act of any Insured will be imputed to any other Insured for purposes of determining the application of this EXCLUSION (A); made by or on behalf of a fidelity insurer against a natural person whose conduct has resulted in a loss which has been paid under a fidelity bond; for any actual or alleged libel, slander, defamation of character or oral or written publication of defamatory or disparaging material; for any actual or alleged bodily injury to, or sickness, disease or death of, any person, or damage to or destruction, loss or loss of use of any tangible property, including currency, coins, bank notes, bullion, travelers checks, register checks, money orders, or any other negotiable or non-negotiable instrument or contract representing money; based on or directly or indirectly arising out of or resulting from any actual, alleged or threatened exposure to, or generation, storage, transportation, discharge, emission, release, dispersal, escape, treatment, removal or disposal of, any smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials (including materials which are intended to be or have been recycled, reconditioned or reclaimed) or other irritants, pollutants or contaminants, or any regulation, order, direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize any of the foregoing, or any action taken in contemplation or anticipation of any such regulation, order, direction or request; based on or directly or indirectly arising out of or resulting from any actual or alleged failure by any Insured to comply with any law, rule or regulation concerning workers compensation, unemployment insurance, Social Security or disability benefits, whether or not such failure to comply is willful; 5

7 (G) (H) based on or directly or indirectly arising out of or resulting from any liability of others assumed by any Insured under any contract or agreement, whether oral or written, other than an Agreement and Declaration of Trust or similar agreement creating or establishing a Plan; based on or directly or indirectly arising out of or resulting from: (1) any act, error, omission, fact, circumstance, situation, transaction, event, decision or Wrongful Act: (a) (b) underlying or alleged in any litigation, claim, demand, proceeding, decree, order or judgment occurring or entered before, or pending as of, the Inception Date in ITEM 2(a) of the Declarations or the Inception Date of any policy of insurance issued by the Underwriter of which this Policy is a renewal, whichever is earlier, or which was the subject of any notice or claim under any prior policy of insurance; or (2) any other act, error, omission, fact, circumstance, situation, transaction, event, decision or Wrongful Act, whenever occurring, which is logically or causally connected by reason of any common fact, circumstance, situation, transaction, event or decision with any act, error, omission, fact, circumstance, situation, transaction, event, decision or Wrongful Act described in EXCLUSION (H)(1); or (I) IV. (A) for the failure to collect contributions owed to any Plan from any employer unless such failure is due to the negligence of an Insured, or for the return to any employer of any contributions if such amounts are or could be chargeable to a Plan; provided, that this EXCLUSION (I) shall not apply to the Underwriter s obligations, subject to the applicable Limit of Liability, to defend such Claim and to pay Defense Expenses resulting therefrom. CONDITIONS Notice: (1) As a condition precedent to any right to coverage afforded by this Policy, the Insureds must give the Underwriter written notice of any Claim as soon as practicable after such Claim is first made. 6

8 (2) If, during the Policy Period, the Insureds first become aware of any circumstance which may subsequently give rise to a Claim against any Insured and, as soon as practicable thereafter but before the end of the Policy Period give the Underwriter written notice of: (a) (b) (c) (d) the nature and date of the specific Wrongful Act; the identities of any potential claimants; the injury or consequences which have resulted or may result therefrom; and the manner in which the Insureds first became aware of the potential of a Claim therefrom; then any Claim subsequently made against an Insured arising out of such Wrongful Act will be deemed to have been made during the Policy Period. (B) Date of Related Claims: Related Claims will be deemed to have been first made at the earlier of the following times: (1) when the earliest of such Related Claims was first made, or (2) at the earliest time at which notice was given under any policy of insurance of any act, error, omission, fact, circumstance, situation, transaction, event, decision or Wrongful Act underlying any such Related Claim. (C) Defense and Settlement of Claims: No Insured may incur any Defense Expenses or admit liability for or settle any Claim without the Underwriter s written consent. The Underwriter will have the right to make investigations and conduct negotiations and, with the written consent of the Insureds, to enter into such settlement of any Claim as the Underwriter deems appropriate. If the Insureds refuse to consent to a settlement acceptable to the claimant in accordance with the Underwriter s recommendation: (1) the Insureds will thereafter be responsible for negotiating and defending such Claim at their own expense independently of the Underwriter, and 7

9 (2) subject to the Limit of Liability set forth in ITEM 3 of the Declarations, the Underwriter s liability in respect of any such Claim will not exceed the amount for which such Claim could have been settled by the Underwriter plus Defense Expenses up to the date the Insureds refused to settle such Claim. (D) Limit of Liability and Retention: (1) Regardless of the number of Claims, the number of persons or entities included within the definition of Insured, the number of Insureds included in a particular Claim or the number of claimants who may make Claims against the Insureds: (a) the amount stated in ITEM 3 of the Declarations will be the maximum aggregate Limit of Liability of the Underwriter under this Policy for all Loss from all Claims for which this Policy provides coverage, and (b) the retention stated in ITEM 4 of the Declarations will apply separately to each Claim and will apply to Defense Expenses, Loss other than Defense Expenses, or both. (2) Defense Expenses are part of and not in addition to the Limit of Liability set forth in ITEM 3 of the Declarations, and payment of Defense Expenses by the Underwriter will reduce, and may exhaust, that Limit of Liability. (3) The obligations of the Underwriter to pay Loss and to defend Claims will only be in excess of the retention stated in ITEM 4 of the Declarations, which amount will be borne by the Insureds at their own expense. The Underwriter will have no obligation whatsoever, either to the Insureds or to any other person or entity, to pay all or any portion of the retention amount on behalf of any Insured, although the Underwriter will, at its sole discretion, have the right and option to do so, in which event the Insureds agree to repay the Underwriter any amounts so paid. (4) The Underwriter will have no obligation to pay Loss or to defend or continue to defend any Claim after the Limit of Liability set forth in ITEM 3 of the Declarations has been exhausted by the payment of Loss. 8

10 (E) Extended Reporting Period: (1) If this Policy is not renewed for any reason or is canceled by the Insureds, the Insureds will have the right to purchase an extension of the coverage granted by this Policy for Claims first made during the period of one (1) year (the Extended Reporting Period ) after the effective date of such cancelation or non-renewal, but only if such Claims are for otherwise covered Wrongful Acts committed before the effective date of such cancelation or non-renewal. The premium for this Extended Reporting Period will be seventy-five percent (75%) of the premium set forth in ITEM 5 of the Declarations, as the same may be amended from time to time, or, if the Policy Period is greater than one (1) year, seventy-five percent (75%) of the annualized premium. The additional premium for the Extended Reporting Period must be paid within thirty (30) days after the effective date of the cancelation or non-renewal of the Policy, and will be deemed to have been fully earned immediately as of the inception of the Extended Reporting Period. (F) (2) The Underwriter s Limit of Liability for Loss from Claims first made during the Extended Reporting Period will be part of, and not in addition to, the Limit of Liability stated in ITEM 3 of the Declarations, which is applicable to all Loss from all Claims for which this Policy provides coverage. Conversion of Coverage under Certain Circumstances: (1) There will be no coverage under this Policy for Claims for Wrongful Acts with respect to any Plan which is or has been sold, spun off or terminated if such Wrongful Acts are committed or allegedly committed by any Insured after the effective date of such sale, spin-off or termination. The Sponsor Organization shall give the Underwriter written notice of the sale, spin-off or termination of any Plan during the Policy Period as soon as practicable after the effective date thereof. (2) If, during the Policy Period, any of the following events occurs: (a) the Sponsor Organization of any Plan is acquired, or all or substantially all of the assets of the Sponsor Organization are acquired, by another entity, or the Sponsor Organization is merged into, or consolidated with, another entity such that the Sponsor Organization is not the surviving entity, or 9

11 (b) any person, entity or affiliated group of persons or entities obtains the right to elect, appoint or designate at least fifty percent (50%) of the directors of the Sponsor Organization of any Plan; coverage under this Policy will continue in full force and effect with respect to Claims for Wrongful Acts committed or allegedly committed before such event by such Sponsor Organization, or by any Plan(s) of such Sponsor Organization, or by any natural person who holds or shall have held the position of trustee of any such Plan(s) or director, officer or employee of any such Plan(s) or of such Sponsor Organization, but coverage will cease with respect to Claims for Wrongful Acts committed or allegedly committed after such event by any such Insured. After any such event, this Policy may not be canceled, regardless of CONDITION (I)(2), and the entire premium for the Policy will be deemed fully earned. (G) (H) Other Insurance: All Loss payable under this Policy will be specifically excess of and will not contribute with any other valid and collectible insurance, whether such other insurance is stated to be primary, contributing, excess (except insurance specifically in excess of this Policy), contingent or otherwise. Cooperation and Subrogation; Recourse: (1) In the event of a Claim, or after giving the Underwriter notice of circumstances which may subsequently give rise to a Claim against an Insured, the Insureds will provide the Underwriter with all information, assistance and cooperation that the Underwriter reasonably requests, and will do nothing that may prejudice the Underwriter's position or potential or actual rights of recovery. At the Underwriter s request, the Insureds will assist in the conduct of actions, suits or proceedings, including but not limited to attending hearings, trials and depositions, securing and giving evidence and obtaining the attendance of witnesses, and will also assist in making settlements. (2) In the event of payment under this Policy, the Underwriter will be subrogated to, and will be entitled to an assignment of, all of the rights of recovery therefor of the Insureds. The Insureds will execute all papers and do everything necessary to secure such rights, including the execution of any documents necessary to enable the Underwriter effectively to pursue and enforce such rights and to bring suit in the name of the Insureds. 10

12 (3) The obligations of the Insureds under subparagraphs (1) and (2) of this CONDITION (H) will survive the expiration or termination of the Policy. (4) In the event that there is no premium set forth in ITEM 5(b) of the Declarations and the total premium for this policy set forth in ITEM 5(c) of the Declarations is paid by one or more Plans, the Underwriter shall have a right of recourse, in accordance with Section 410(b)(1) of ERISA, against any Insured in the event that such Insured breaches a fiduciary obligation imposed by ERISA. (I) Cancelation; No Obligation to Renew: (1) The Underwriter may not cancel this Policy except for failure to pay a premium when due, in which case the Underwriter will deliver or mail to the Insureds written notice thereof at least fifteen (15) days before the effective date of cancelation. (2) Except as provided in CONDITION (F)(2), the Insureds may cancel this Policy by delivering or mailing to the Underwriter written notice stating when thereafter such cancelation will be effective. In such event, the earned premium will be computed in accordance with the customary short rate table and procedure. Premium adjustment may be made either at the time cancelation by the Insureds is effective or as soon as practicable thereafter, but payment or tender by the Underwriter of unearned premium is not a condition of cancelation by the Insureds. (3) The Underwriter will not be required to renew this Policy upon its expiration. If the Underwriter elects not to renew this Policy, the Underwriter will deliver or mail to the Insureds written notice to that effect at least sixty (60) days before the Expiration Date set forth in ITEM 2(b) of the Declarations. (J) Representations: The Insureds represent that the particulars and statements contained in the Application are true, accurate and complete, and agree that this Policy is issued in reliance on the truth of that representation, and that such particulars and statements, which are deemed to be incorporated into and to constitute a part of this Policy, are the basis of this Policy and are material to the Underwriter s acceptance of this risk. 11

13 (K) No Action Against the Underwriter; Bankruptcy of Insureds: (1) No action may be taken against the Underwriter unless, as conditions precedent thereto, there shall have been full compliance with all of the terms of this Policy and the amount of the Insureds obligation to pay has been finally determined either by judgment against the Insureds after adjudicatory proceedings, or by written agreement of the Insureds, the claimant and the Underwriter. (2) No person or entity will have any right under this Policy to join the Underwriter as a party to any Claim to determine the liability of any Insured; nor may the Underwriter be impleaded by an Insured or his, her or its legal representative in any such Claim. (3) The Underwriter will not be relieved of any of its obligations under the Policy by the bankruptcy or insolvency of any of the Insureds or their estates. (L) (M) Authorization and Notices: The Insurance Representative agrees to act on behalf of all Insureds with respect to all matters under this Policy, including but not limited to the payment of premiums and the receipt of any return premiums, the giving and receiving of notices and other communications, the effecting or accepting of any endorsements to or cancelation of this Policy, and the purchase of any Extended Reporting Period. However, nothing herein will relieve the Insureds from the obligation to give written notice to the Underwriter as required under CONDITION (A) above. Changes: Notice to any agent or knowledge possessed by any agent or other person acting on behalf of the Underwriter will not effect a waiver or change in any part of this Policy or estop the Underwriter from asserting any right under the terms, conditions and limitations of this Policy. The terms, conditions and limitations of this Policy can be waived or changed only by written endorsement. 12

14 (N) No Transfer or Assignment: No transfer or assignment of interest under this Policy or of any cause of action against the Underwriter arising out of its performance of or alleged failure to perform in accordance with the terms and conditions of this Policy will be effective without the Underwriter s written consent. However, in the event of the death, incapacity or bankruptcy of any Insured, a Claim against the estate, heirs, legal representatives or assigns of such Insured for a Wrongful Act by such Insured will be considered a Claim against that Insured. (O) Entire Agreement: The Insureds agree that this Policy, including the Application and any endorsements, constitutes the entire agreement between them and the Underwriter or any of its agents relating to this insurance. (P) Headings: The descriptions in the headings and sub-headings of this Policy are solely for convenience, and form no part of the terms and conditions of coverage. In witness whereof the Underwriter has caused this Policy to be executed on the Declarations Page. Secretary President 13