FIDUCIARY LIABILITY INSURANCE POLICY

Transcription

1 A Stock Insurance Company, herein called the Company FIDUCIARY LIABILITY INSURANCE POLICY THIS POLICY APPLIES ONLY TO CLAIMS FIRST MADE AGAINST THE INSURED DURING THE POLICY PERIOD OR DISCOVERY PERIOD. THE LIMIT OF LIABILITY AVAILABLE TO PAY JUDGMENTS OR SETTLEMENTS SHALL BE REDUCED BY PAYMENT OF DEFENSE COSTS. DEFENSE COSTS ARE SUBJECT TO THE APPLICABLE RETENTION. PLEASE READ AND REVIEW THE POLICY CAREFULLY. In consideration of the payment of the premium and in reliance upon the statements in the Application, which is made a part hereof and subject to the Declarations, terms and conditions of this Policy, the insurance company indicated in the Declarations (herein called the Company) and the Insured agree as follows: I. INSURING AGREEMENTS A. Fiduciary Liability The Company will pay on behalf of the Insured any Loss as a result of a Claim first made during the Policy Period or Discovery Period, if applicable, against such Insured for a Wrongful Act of the Insured or any other person for whom the Insured is legally liable. The Company has the right and duty to defend any Claim to which this insurance applies, even if the allegations of the Claim are groundless, false or fraudulent. The Company may investigate and settle any Claim as the Company deems expedient. However, the Company is not obligated to pay any Loss or defend any Claim after the Aggregate Limit of Liability has been exhausted by payment of Loss, including Defense Costs. B. Settlement Program Coverage The Company will pay on behalf of the Insured any Voluntary Settlement Fees as a result of a Voluntary Settlement Notice first given to the Company during the Policy Period or Discovery Period, if applicable, up to the maximum aggregate limit of liability set forth in Item 2.(a) for all such Voluntary Settlement Fees; provided, however, that such Voluntary Settlement Fees are incurred with the Company s consent after the Voluntary Settlement Notice is first given to the Company. No Retention shall apply to such Voluntary Settlement Fees. II. DEFINITIONS A. Administration means giving counsel to employees of the Insured Entity with respect to any Employee Benefit Plan, handling records in connection with any Employee Benefit Plan or effecting enrollment, termination or cancellation of employees under any Employee Benefit Plan. B. Application means each and every signed application, any attachments to such applications, other materials submitted therewith or incorporated therein and any other documents submitted in connection with the underwriting of this Policy or the underwriting of any other fiduciary liability insurance policy issued by the Company, or any of its affiliates, of which this Policy is a renewal, replacement or successor in time. C. Claim means: (1) a written demand for monetary, non-monetary or injunctive relief; (2) a civil proceeding for monetary, non-monetary or injunctive relief which is commenced by service of a complaint or similar pleading; FFI-P-1 (3-09) Page 1 of 10

2 (3) a formal administrative or regulatory proceeding commenced by the filing of a notice of charges, formal investigative order or a similar document; (4) a criminal proceeding commenced by the return of an indictment, information or similar document; (5) a written notice of commencement of an investigation by the Department of Labor or the Pension Benefit Guaranty Association; or (6) a written request received by an Insured to toll or waive a statute of limitations relating to (1) through (5) above concerning a Wrongful Act. D. Defense Costs means reasonable and necessary fees, costs and expenses incurred by the Company or by the Insured with the Company s approval (including premiums for any appeal bond, attachment bond or similar bond, but without any obligation to apply for or furnish any such bond) resulting solely from the investigation, adjustment, defense and appeal of a Claim against the Insureds, but shall not include salaries, wages, overhead or benefit expenses associated with employees of the Company or the Insured Entity. E. Employee Benefit Plan means: (1) any employee benefit plan, welfare benefit plan or pension benefit plan (as defined in the Employee Retirement Income Security Act of 1974, as amended) which is operated solely by the Insured Entity or by the Insured Entity and a labor organization for the benefit of the Insured Entity s employees located anywhere in the world, if such plan: (a) existed on or before the inception of this Policy; or (b) is created or acquired after the inception of this Policy, pursuant to Section IX. of the Policy; (2) any other employee benefit plan or program not subject to Title 1 of the Employee Retirement Income Security Act of 1974, as amended, sponsored solely by the Insured Entity for the benefit of its employees, including any excess benefit plan, if such plan: (a) existed on or before the inception of this Policy; or (b) is created or acquired after the inception of this Policy, pursuant to Section IX. of the Policy; (3) any employee benefit plan otherwise described in (1) or (2) above, while such plan is being actively developed, formed or proposed by the Insured Entity prior to the effective date of such plan; provided, however, no coverage is afforded under this Policy for any Claim against any Insured in a settlor or similar uninsured capacity with respect to any such plan; (4) any other plan, fund or program specifically included as an Employee Benefit Plan by endorsement to this Policy; or (5) any governmentally mandated insurance program concerning workers compensation, unemployment, social security or disability benefits for the benefit of the employees of the Insured Entity. Employee Benefit Plan does not include any multi-employer plan or employee stock ownership plan, unless specifically included as an Employee Benefit Plan by endorsement to this Policy. F. Insured means the Insured Entity, any Employee Benefit Plan and any Insured Person. G. Insured Entity means the Named Insured and any Subsidiary, including any such entity as a Debtor-In-Possession (as defined in Chapter 11 of the U.S. Bankruptcy Code or any similar law). FFI-P-1 (3-09) Page 2 of 10

3 H. Insured Person means any: (1) any person who has been, now is or shall be a duly elected or appointed director, officer, general counsel, risk manager, and in the case of a limited liability company, a member of the management board (or equivalent position), of the Insured Entity; (2) in the event a Subsidiary operates outside the United States, any person who has held, now holds or shall hold a title, position or capacity in such foreign Subsidiary equivalent to a position listed in (1) above in an organization incorporated within the United States; (3) any person who has been, now is or shall become an employee of the Insured Entity, including any full-time, part-time, seasonal or temporary employee; (4) any natural person who has been, now is or shall be a duly elected or duly appointed trustee of any Employee Benefit Plan; (5) the estates, heirs, or legal representatives of any person described in (1) through (4) above, in the event of their death, incompetency, insolvency or bankruptcy; or (6) the lawful spouse or domestic partner (whether such status is derived by reason of statutory law, common law or otherwise of any applicable jurisdiction in the world) of any person described in (1) through (4) above, but solely with respect to a Claim arising out of his or her status as the spouse or domestic partner of any person listed in (1) through (4) above for a Wrongful Act of such person listed in (1) through (4) above; provided, however, Insured Person shall not include a lawful spouse or domestic partner with respect to a Claim against that person for his or her own Wrongful Acts. I. Interrelated Wrongful Acts means Wrongful Acts that have as a common nexus any fact, circumstance, situation, event, transaction, cause or series of causally connected facts, circumstances, situations, events, transactions or causes. J. Loss means damages, judgments (including pre/post-judgment interest on a covered judgment), settlements and Defense Costs; provided, however, Loss shall not include any: (1) criminal or civil fines or penalties imposed by law, other than the five percent or less, or the twenty percent (20%) or less, civil penalties imposed under Section 502(i) or (l) of the Employee Retirement Income Security Act of 1974 or its amendments; (2) amount arising from the failure to collect contributions owed by the Insured Entity to the Employee Benefit Plan or the failure or inability of the Insured Entity to fund the Employee Benefit Plan, unless the failure is the result of the negligence of a Insured Person; (3) amount which constitutes the return or reversion to the Insured Entity of any contribution or asset of the Employee Benefit Plan; (4) benefits due or to become due under the terms of an Employee Benefit Plan except and to the extent that recovery for such benefits is based upon a covered Wrongful Act by a Insured Person and such benefits are payable as such Insured Person's personal obligation; (5) non-monetary relief; or (6) matter deemed uninsurable under the law pursuant to which this Policy shall be construed. Loss shall include punitive or exemplary damages or the multiplied portion of multiplied damages, unless uninsurable under the applicable law most favoring coverage for such damages. K. Named Insured means the entity designated in Item 1. of the Declarations. L. Policy Period means the period from the effective date to the expiration date of this Policy as set forth in Item 3. of the Declarations, or any earlier cancellation date. FFI-P-1 (3-09) Page 3 of 10

4 M. Settlement Program means any voluntary compliance resolution program or similar voluntary settlement program administered by the United States Internal Revenue Service, United States Department of Labor or any other domestic or foreign governmental authority, including but not limited to the Employee Plans Compliance Resolution System, Audit Closing Agreement Program, Voluntary Compliance Resolution Program, Walk-in Closing Agreement Program, Administrative Policy Regarding Self-Correction, Tax Sheltered Annuity Voluntary Correction Program, Delinquent Filer Voluntary Correction Program and Voluntary Fiduciary Correction Program. N. Subsidiary means: (1) any corporation during any time in which the Named Insured owns more than fifty percent (50%) of the issued and outstanding voting stock, either directly or indirectly through one or more of its Subsidiaries; provided, however, if the Named Insured so acquires more than fifty percent (50%) of the issued and outstanding voting stock after the inception of this Policy, any such corporation shall only be considered a Subsidiary if the assets of such corporation total: (a) less than twenty-five percent (25%) of the total consolidated assets of the Insured Entity as of the inception of this Policy; or (b) twenty-five percent (25%) or more of the total consolidated assets of the Insured Entity as of the inception of this Policy, and within ninety (90) days of such acquisition, the Named Insured has provided the Company with full particulars, paid any additional premium and agreed to any amendment of this Policy required by the Company; (2) any joint venture corporation or limited liability company during any time in which the Named Insured owns exactly fifty percent (50%) of the outstanding securities representing the present right to elect, appoint or designate exactly fifty percent (50%) of the members of the board of directors or managers of such corporation or limited liability company, either directly or indirectly through one or more of its Subsidiaries, so long as the Named Insured solely controls the management and operations of such corporation or limited liability company pursuant to a written agreement with the other owners of such corporation or limited liability company; provided, however, if the Named Insured so acquires exactly fifty percent (50%) of such corporation s or company s outstanding securities and such control of such corporation or company after the inception of this Policy, any such corporation or company shall only be considered a Subsidiary if the assets of such corporation or company total: (a) less than twenty-five percent (25%) of the total consolidated assets of the Insured Entity as of the inception of this Policy; or (b) twenty-five percent (25%) or more of the total consolidated assets of the Insured Entity as of the inception of this Policy, and within ninety (90) days of such acquisition, the Named Insured has provided the Company with full particulars, paid any additional premium and agreed to any amendment of this Policy required by the Company; or (3) any foundation, charitable trust or Political Action Committee during any time in which such entity is controlled by the Named Insured. A corporation ceases to be a Subsidiary when the Named Insured ceases to own more than fifty percent (50%) of the issued and outstanding voting stock, either directly or indirectly through one or more of its Subsidiaries. No coverage shall be afforded under this Policy with respect to a Claim made against a Subsidiary or any Insured Person thereof for Wrongful Acts committed or allegedly committed before the effective time that such corporation, company, foundation, charitable trust or Political Action Committee became a Subsidiary or after the time that such Subsidiary ceased to be a Subsidiary. FFI-P-1 (3-09) Page 4 of 10

5 O. Voluntary Settlement Fees means any fees, fines or penalties paid by an Insured to a governmental authority pursuant to a Settlement Program for the actual or alleged inadvertent non-compliance by any Employee Benefit Plan with any statute, rule or regulation; provided, however, that Voluntary Settlement Fees shall not include: (1) any costs to correct the non-compliance or any other charges, expenses, taxes or damages; or (2) any fees, fines or penalties relating to an Employee Benefit Plan that any Insured Person knew to be actually or allegedly non-compliant as of the earlier of the Inception Date of this Policy or the first policy issued by the Company to the Insured Entity in an uninterrupted series of policies of which this Policy is a direct or indirect renewal or replacement. P. Voluntary Settlement Notice means written notice by any Insured to the Company that the Insured intends to enter into a Settlement Program. Q. Wrongful Act means: (1) any actual or alleged act, error or omission in the Administration of any Employee Benefit Plan; (2) any actual or alleged breach of the responsibilities, obligations or duties imposed upon fiduciaries by the Employee Retirement Income Security Act of 1974 and any amendments thereto, or by the common or statutory law of the United States, or any state or other jurisdiction, in connection with any Employee Benefit Plan; or (3) any other matter claimed against an Insured Person solely by reason of such Insured Person s status as a fiduciary of any Employee Benefit Plan. III. EXCLUSIONS The Company shall not be liable to pay any Loss from any Claim made against an Insured: A. based upon, arising out of or attributable to any Insured committing any deliberate criminal or deliberate fraudulent act, deliberate dishonesty or willful violation of any statute or regulation, if established by a final judgment; in applying this exclusion, knowledge possessed by an Insured shall not be imputed to another Insured; B. based upon, arising out of or attributable to any Insured in fact gaining any profit or advantage to which such Insured was not legally entitled; in applying this exclusion, knowledge possessed by an Insured shall not be imputed to another Insured; C. based upon, arising out of or attributable to: (1) any Wrongful Act, matter, fact, circumstance, situation, transaction, or event which has been the subject of notice under any prior policy of which this Policy is a renewal or replacement or to which it may succeed in time; or (2) any other Wrongful Act which, together with a Wrongful Act described in (1) above, constitute Interrelated Wrongful Acts; D. based upon, arising out of or attributable to: (1) any Claim pending as of or made prior to the date stated in Item 5. of the Declarations; or (2) any Wrongful Act alleged in such Claim, or any Wrongful Act whenever occurring, which together with any Wrongful Act alleged in such Claim, constitute Interrelated Wrongful Acts; E. for any failure or omission by any of the Insureds to effect or maintain insurance or bonding for Employee Benefit Plan property or assets; FFI-P-1 (3-09) Page 5 of 10

6 F. based upon, arising out of or attributable to the Insureds' actual or alleged failure to comply with any workers compensation, unemployment insurance, social security or disability benefits or similar law, provided, however, this exclusion shall not apply to the Consolidated Omnibus Budget Reconciliation Act of 1985 or the Health Insurance Portability and Accountability Act of 1996 (including any amendments thereto or regulations promulgated thereunder); G. based upon, arising out of or attributable to the liability of others assumed by any Insured under any contract or agreement, either oral or in writing; provided, however, this exclusion shall not apply to the extent that: (1) an Insured would have been liable in the absence of such contract or agreement; or (2) the liability was assumed in accordance with the terms of the Instrument or Declaration of Trust pursuant to which the Employee Benefit Plan is established; or H. for any actual or alleged bodily injury, sickness, mental anguish, emotional distress, disease or death of any person, or damage to or destruction of any tangible property including loss of use thereof. IV. LIMITS OF LIABILITY AND RETENTIONS A. The Limit of Liability stated in Item 2.(a) of the Declarations is the aggregate limit of the Company's liability for all Voluntary Settlement Fees as a result of all Voluntary Settlement Notices first given to the Company during the Policy Period and the Discovery Period, if applicable, which Limit shall be part of and not in addition to the Limit of Liability stated in Item 2.(b) of the Declarations. B. The Limit of Liability stated in Item 2.(b) of the Declarations is the aggregate limit of the Company's liability for: (1) all Loss, including Defense Costs, as a result of all Claims first made against the Insureds; and (2) all Voluntary Settlement Fees as a result of all Voluntary Settlement Notices first given to the Company; during the Policy Period and the Discovery Period, if applicable. The Company s payment of Defense Costs shall reduce, and may exhaust, such Limit of Liability. C. The Company shall only be liable for the amount of Loss from a Claim in excess of the Retention stated in Item 4. of the Declarations, such Retention to be borne by the Insureds uninsured. D. All Claims based upon or arising out of the same Wrongful Act or Interrelated Wrongful Acts will be treated as a single Claim made when the earliest such Claim was first made, or when the earliest such Claim is treated as having been made in accordance with Section V.C., whichever is earlier. A single Retention shall apply to Loss as a result of all Claims for the same Wrongful Act or Interrelated Wrongful Acts. V. NOTICES A. All notices to the Company shall be given in writing and sent by mail, prepaid express courier or by facsimile, to the address listed in Item 9. of the Declarations and shall be effective upon receipt. B. As a condition precedent to the obligations of the Company under this Policy, the Insureds shall give written notice to the Company of a Claim made against an Insured as soon as practicable after the Insured first becomes aware of such Claim. FFI-P-1 (3-09) Page 6 of 10

7 C. If during the Policy Period or the Discovery Period (if applicable) the Insureds first become aware of any circumstance which may reasonably be expected to give rise to a Claim being made against an Insured and give written notice to the Company of the circumstance, the anticipated Wrongful Act allegations and the reason for anticipating such a Claim, with full particulars as to dates, persons and entities involved, then a Claim subsequently made against such Insured arising out of such Wrongful Act and reported to the Company shall be considered made at the time the Insured gave such notice of circumstance to the Company. VI. DEFENSE COSTS A. The Insureds shall not admit or assume any liability, enter into any settlement agreement, make any settlement offer, stipulate to any judgment, or incur any Defense Costs without the prior written consent of the Company, such consent not to be unreasonably withheld. The Company will have the right to make investigations and conduct negotiations and, with the consent of the Insureds, enter into such settlement of any Claim as the Insurer deems appropriate. If the Insured refuses to consent to a settlement acceptable to the claimant in accordance with the Company s recommendation, then, subject to the aggregate Limit of Liability set forth in Item 2. of the Declarations, the Company s liability for such Claim will not exceed the amount for which such Claim could have been settled by the Company and the amount of Defense Costs incurred as of the date the Insured refused to settle such Claim, plus eighty percent (80%) of any Loss incurred thereafter by the Insured in such Claim (with the Insured bearing the remaining twenty percent [20%] of such Loss). B. The Company will have no obligation to pay Loss, including Defense Costs, or to defend or continue to defend any Claim after the aggregate Limit of Liability set forth in Item 2. of the Declarations has been exhausted by the payment of Loss, including Defense Costs. If the aggregate Limit of Liability set forth in Item 2. of the Declarations is exhausted by payment of Loss, including Defense Costs, the premium for this Policy will be deemed fully earned. VII. DISCOVERY PERIOD A. Except as provided in B. below, if either the Company or the Named Insured shall cancel or refuse to renew this Policy, the Named Insured shall have the right, upon payment of the Discovery Period Premium stated in Item 7.(a) of the Declarations, to an additional period stated in Item 7.(b) of the Declarations immediately following the effective date of such cancellation or non-renewal (herein referred to as the Discovery Period) in which to give to the Company written notice of any Claim first made against the Insured during the Discovery Period, any Voluntary Settlement Notice or any notice of circumstance under Section VI.C., but only if such notice of circumstance, Claim or Voluntary Settlement Notice is for a Wrongful Act otherwise covered by this Policy that occurs prior to the earlier of any Transaction or the effective date of such cancellation or non-renewal. The rights contained in this paragraph shall terminate, however, unless written notice of such election together with the additional premium due is received by the Company within thirty (30) days of the effective date of cancellation or non-renewal. B. The additional premium for the Discovery Period shall be fully earned at the inception of the Discovery Period. The Discovery Period is not cancelable. This Section and the rights contained herein shall not apply to any cancellation resulting from non-payment of premium, or as a result of a renewal quotation with different terms and conditions. C. The purchase of the Discovery Period shall not increase or reinstate any Limit of Liability. VIII. CANCELLATION AND NON-RENEWAL A. The Named Insured may cancel this Policy by surrender thereof to the Company or any of its authorized representatives or by mailing to the Company written notice stating when thereafter the cancellation shall be effective. FFI-P-1 (3-09) Page 7 of 10

8 B. The Company may cancel this Policy solely for non-payment of premium by mailing to the Named Insured at the address shown in the Declarations and to its agent of record written notice stating when, not less than twenty (20) days thereafter, such cancellation shall be effective. The notice shall state the precise reason for the cancellation. Proof of mailing will be sufficient proof of notice. C. The time of the surrender or the effective date and hour of cancellation stated in the notice shall become the end of the Policy Period. D. If the Named Insured cancels this Policy, earned premium shall be the customary short rate amount of the annual premium, and if the Company cancels this Policy, earned premium shall be the pro rata amount of the annual premium; provided, however, if at the time of cancellation the Limit of Liability has been exhausted, the entire premium shall be considered earned. Premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. Mailing of the Company's check shall be sufficient tender of any refund of premium due to the Named Insured. E. If the Company chooses to non-renew this Policy, the Company will deliver or mail to the Named Insured and to its agent of record written notice stating such at least sixty (60) days before the expiration of the Policy Period. Proof of mailing is sufficient proof of notice. The notice of non-renewal shall state the precise reason for such non-renewal. IX. CHANGES IN EXPOSURE A. If during the Policy Period, the Insured Entity creates or acquires any employee benefit plan, welfare benefit plan or pension benefit plan (as defined in the Employee Retirement Income Security Act of 1974, as amended) sponsored solely by the Insured Entity for the benefit of its employees located anywhere in the world, such plan shall be deemed an Employee Benefit Plan if, within ninety (90) days of such creation or acquisition, the Named Insured has provided the Company with full particulars, paid any additional premium and agreed to any amendment of this Policy required by the Company relating to such new Employee Benefit Plan; provided, however, no coverage shall be afforded to such Employee Benefit Plan and its Insured Person for any actual or alleged Wrongful Act prior to the effective date of such creation or acquisition. B. If during the Policy Period: (1) the Named Insured shall consolidate with or merge into, or sell all or substantially all of its assets to any other person or entity or group of persons and/or entities acting in concert; (2) any person or entity or group of persons and/or entities acting in concert shall acquire an amount of the outstanding securities representing more than fifty percent (50%) of the voting power for the election of directors of the Named Insured, or acquires the voting rights of such an amount of such securities; (3) the appointment of a receiver, conservator, trustee, liquidator or rehabilitator or any similar official for or with respect to the Named Insured; or (4) the responsibilities of the Insured Entity for the Administration of, or as fiduciary of, any Employee Benefit Plan are assumed by another person or entity; (any such event referred to herein as a Transaction ) then, this Policy shall continue in full force and effect as to any Wrongful Act occurring prior to the effective date of the Transaction, but there shall be no coverage afforded by any provision of this Policy for any actual or alleged Wrongful Act after the effective date of the Transaction. This Policy may not be canceled after the effective date of the Transaction and the entire premium for this Policy shall be deemed earned as of such date. The Named Insured shall give the Company written notice of the Transaction as soon as practicable, but not later than thirty (30) days after the effective date of the Transaction. FFI-P-1 (3-09) Page 8 of 10

9 X. SUBROGATION If the Company pays any Loss, the Company shall be subrogated to the Insured's right of recovery against any other person or organization for such Loss, and the Insured shall execute all papers required, and shall do everything that may be necessary to secure and preserve such rights, including the execution of such documents necessary to enable the Company effectively to bring suit in the name of the Insured. Any recovery (after expenses) shall be used to reduce the Loss, and so much of such recovery shall be paid to the Company as will reduce the Loss ultimately borne by the Company to what it would have been had the recovery preceded any payment of such Loss by the Company. XI. OTHER INSURANCE The insurance provided by this Policy shall apply only as excess over any other valid and collectible insurance, unless such other insurance is written only as specific excess insurance over the applicable Limit of Liability provided by this Policy. This Policy shall also be specifically excess over any other valid and collectible insurance pursuant to which any other insurer has a duty to defend a Claim for which this Policy may be obligated to pay Loss. XII. ARBITRATION If requested by the Insured, the Company shall submit any dispute, controversy or claim arising out of or relating to this Policy or the breach, termination or invalidity thereof to final and binding arbitration pursuant to such rules and procedures as the parties may agree. If the parties cannot so agree, the arbitration shall be administered by the American Arbitration Association in accordance with its then prevailing commercial arbitration rules. The arbitration panel shall consist of one arbitrator selected by the Insured, one arbitrator selected by the Company, and a third independent arbitrator selected by the first two arbitrators. Each party will bear its own legal fees and expenses. XIII. NOTICE AND AUTHORITY It is agreed that the Named Insured shall act on behalf of its Subsidiaries and all Insured Persons with respect to giving notice of Claim, giving and receiving notice of cancellation, the payment of premiums and the receiving of any return premiums that may become due under this Policy, the receipt and acceptance of any endorsements issued to form a part of this Policy and the exercising or declining to exercise any right to a Discovery Period. XIV. ACTION AGAINST COMPANY No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this Policy, and the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company. Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this Policy to the extent of any insurance afforded by this Policy. No person or organization shall have any right under this Policy to join the Company as a party to any action against the Insured to determine the Insured's liability, nor shall the Company be impleaded by the Insured or his legal representative. Bankruptcy or insolvency of the Insured or the Insured's estate shall not relieve the Company of any of its obligations hereunder. XV. REPRESENTATIONS By accepting this Policy the Insureds agree that the statements in the Application are their agreements and representations and that this Policy is issued in reliance upon the truth of such agreements and representations, which are deemed material to the acceptance of the risk or the hazard assumed by the Company under the Policy. FFI-P-1 (3-09) Page 9 of 10

10 The Insureds further agree that in the event of any material misstatement, misrepresentation or omission in the Application, this Policy will be void as to: A. any Insured Person who knew of such misstatement, misrepresentation or omission; and B. any other Insured to whom knowledge of such misstatement, misrepresentation or omission is imputed. For the purpose of determining imputation, the Insureds agree that: (1) any knowledge possessed by the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, General Counsel, President or the Chairman of the Board of Directors of the Named Insured shall be imputed to the Insured Entity and the Employee Benefit Plans; and (2) the knowledge of an Insured Person shall not be imputed to any other Insured Person. XVI. ASSIGNMENT No assignment of interest under this Policy shall be valid unless endorsed in writing by the Company. XVII. ENTIRE AGREEMENT This Policy, together with the Declarations, Application and Endorsements, embodies all agreements existing between the Insured and the Company or any of its agents relating to this insurance. XVIII. CAPTIONS The headings or captions used in this Policy are for reference only and do not affect the meaning of this Policy. FFI-P-1 (3-09) Page 10 of 10