EMPLOYMENT PRACTICES LIABILITY INSURANCE

Transcription

1 The Schedule Policy Number: The Assured: Address: Underwriters: Markel Syndicate 3000 at Lloyd s, 49 Leadenhall Street, London EC3A 2EA, United Kingdom Period of Insurance: From: To: Both dates inclusive Limit of Indemnity: Retentions: Claims made worldwide other than claims falling within the jurisdiction of the United States of America and Canada: Claims made within the jurisdiction of the United States of America or Canada: Jurisdiction: Premium: Extended Discovery Period: (applicable to 2. Definitions (j) New Subsidiaries: (applicable to 2. Definitions (l)) Prior and Pending Date: (applicable to 3. Exclusions (g)) Retroactive Date: Date of Proposal: Endorsement Numbers: Dated in London: Period: Additional Premium: Total Assets Limit: Territories: (plus Insurance Premium Tax at the rate from time to time in force) World-wide Excluding the United States of America and Canada D&O EPL (3000MKL00048) / May of 12

2 1. INSURANCE CLAUSE Underwriters agree, subject to the terms, conditions, limitations and exclusions of this Policy, to pay on behalf of the Insured, Loss arising from any Claim first made against the Insured during the Period of Insurance. 2. DEFINITIONS (The following words shall have the same meaning throughout this Policy, whether expressed in the singular or the plural. Words in the masculine gender shall include the feminine.) (a) Claim shall mean: (iv) (v) any application, claim form, writ or summons of any description whatsoever or any cross-claim or counter claim issued against or served on the Insured; any written communication received by the Insured; the criminal prosecution of the Insured; the ordering or commissioning of any Investigation; or any regulatory or administrative proceeding commenced against the Insured alleging any Wrongful Employment Act. (b) Company shall mean the Company stated in the Schedule and shall include all Subsidiary Companies. (c) Costs and Expenses' shall mean all reasonable and necessary legal fees and expenses incurred by or on behalf of the Insured with Underwriters prior written consent (such consent not to be unreasonably withheld) resulting solely from the investigation and/or defence and/or monitoring and/or settlement of any Claim which falls to be indemnified under this Policy, and appeals therefrom. Costs and Expenses shall also include any premium paid for insurance bonds which are required to be paid solely in order to institute an appeal. Costs and Expenses shall not include salaries, commissions, bonuses, expenses or other benefits of the Directors or Officers or of any Employee of the Company. (d) Director shall mean any natural person who is, was or may during the Period of Insurance become a Director of the Company (including a Shadow Director as defined in section 741 Companies Act 1985) or any natural person who is construed to be a Director within the meaning of any applicable law or regulation governing such matters. (e) Employee shall mean any natural person who was or is or may hereafter be employed under a contract of service with the Company. Employee shall not mean any independent agent, consultant, sub-contractor, professional advisor or any worker who is not employed under a contract of service. (f) Insured shall mean: D&O EPL (3000MKL00048) / May of 12

3 (iv) (v) the Company; any Director or any Officer of the Company; any Employee of the Company; the lawful spouse of any person as described in or above, but only in respect of a claim against such a spouse to enforce a judgment against such person for a Wrongful Employment Act by that person in his capacity as Director, Officer or Employee of the Company; and in the event of the death or incompetency or bankruptcy of any person as described in, or (iv) above, their estate, heirs, legal representatives or assigns, for legal liabilities incurred due to any Wrongful Employment Act of any Director, Officer or Employee in his capacity as a Director, Officer or Employee of the Company. (g) Investigation shall mean any official investigation or inquiry by any body authorised by statute to investigate any Wrongful Employment Act. (h) Loss shall mean loss by reason of the legal liability of the Insured to pay: Loss does not include: (iv) (v) (vi) compensation, damages or costs awarded against the Insured, including punitive or exemplary damages where insurance against liability to pay such punitive or exemplary damages is lawful under the laws of the territory in which the Claim is made; settlements entered into by the Insured with Underwriters prior written consent (such consent not to be unreasonably withheld); and Costs and Expenses. civil, regulatory or criminal fines or penalties; remuneration or other benefits due to any Employee including the obligation to pay the National Minimum Wage (or its equivalent in any foreign jurisdiction), holiday pay, pay for any notice period or sums unlawfully deducted from any wages, or any compensation for the non-payment of such remuneration or other benefits; any contractual or statutory redundancy payment; any obligation pursuant to any law or any regulation in any jurisdiction in respect of workers compensation, disability benefits, redundancy or unemployment benefits or compensation, unemployment insurance, retirement benefits, social security benefits, minimum wage regulation or any similar law or regulation whatsoever; the costs of compliance with any order for reinstatement or any injunctive or other non-pecuniary relief, or any additional compensation for non-compliance with any such order; the costs of adjusting or adapting any premises or methods of working to meet the needs of any person with a disability; or D&O EPL (3000MKL00048) / May of 12

4 (vii) any matter which is uninsurable under English law. Merger means the combination of two or more entities such that none of them: controls the composition of the Board of Directors, or controls more than half of the voting power, or holds more than half of the issued share capital. (j) Period of Insurance' shall mean the period stated in the Schedule. However, in the event that Underwriters refuse to renew this Policy, the Insured shall have the right to an Extended Discovery Period in respect only of any Wrongful Employment Act committed or alleged to have been committed prior to the expiry date of this Policy stated in the Schedule provided that: (iv) (v) (vi) the Extended Discovery Period shall be the period stated in the Schedule; the quotation by Underwriters of different premiums and/or different terms and/or different conditions and/or different limitations and/or different exclusions and/or a different Limit of Indemnity at renewal does not constitute a refusal to renew; this right is not exercisable if the Insured shall have obtained any other insurance against substantially the same risks as the risks covered under this Policy, and the Extended Discovery Period shall forthwith terminate if the Insured take out any other insurance against substantially the same risks as the risks covered under this Policy; to exercise their right under this provision the Company named first in the Schedule shall within ten (10) days of the expiry date of this Policy give notice in writing to Underwriters and shall pay the additional premium specified in the Schedule; this right to an Extended Discovery Period is not exercisable on or after the Takeover or Merger of the Company or on or after the appointment of any liquidator, provisional liquidator, administrator or receiver of the Company; the Limit of Indemnity stated in the Schedule shall not in any way be increased by virtue of the Extended Discovery Period. (k) Pollution shall mean the discharge, dispersal, release or escape of any solid, liquid, gaseous, or thermal irritant or contaminant including, but not limited to, smoke, vapours, soot, dust, fibres, fungi, viruses, bacteria, fumes, acids, alkalis, chemicals and waste (including, but not limited to material to be recycled, reconditioned or reclaimed). (l) Subsidiary Company' shall mean: any company in respect of which the Company (either directly or indirectly through one or more of its Subsidiary Companies) before the inception date of this Policy: (a) controls the composition of the Board of Directors, or (b) controls more than half of the voting power, or (c) holds more than half of the issued share capital; D&O EPL (3000MKL00048) / May of 12

5 any other company that falls within above domiciled or incorporated in the territories stated in the Schedule, acquired or created on or after the inception date of this Policy provided that the creation or acquisition of such company does not increase the total assets of all companies insured under this Policy by more than the Total Assets Limit stated in the Schedule, and provided that this Policy shall only apply in respect of a Wrongful Employment Act committed or alleged to have been committed after the date of acquisition or creation; any other company specifically named in the Schedule or in any endorsement to this Policy as a subsidiary. (m) Takeover of an entity means a transaction or event as a result of which another entity: controls the composition of the Board of Directors, or controls more than half of the voting power, or holds more than half of the issued share capital. (n) Terrorism shall mean the use of force or violence and/or the threat thereof, by any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organisation(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear. (o) Unlawful Association shall mean any organisation which is engaged in Terrorism and includes, but is not limited to, any organisation which at any relevant time is a proscribed organisation within the meaning of the Terrorism Act 2000 (UK) or any amendment or re-enactment thereof. (p) War shall mean war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power. (q) Wrongful Employment Act shall mean: wrongful or unfair termination, whether actual or constructive, of the employment of, or demotion of, or failure or refusal to hire or promote, any natural person in violation of the law, whether common or statutory, or in breach of any agreement to commence or continue employment; or employment discrimination, including any failure or refusal to hire any natural person, or discharge of, or other discrimination against, any natural person with respect to his remuneration or any of the terms, conditions or privileges of his employment, or any limitation, segregation or classification of any Employee or of applicants for employment in any way which would deprive or tend to deprive any natural person of employment opportunities or otherwise adversely affect his status as an Employee, because of such natural person s race, colour, religion or belief, age, gender or sexual orientation, national origin, disability, pregnancy, part time or fixed term status or other protected status; or D&O EPL (3000MKL00048) / May of 12

6 (iv) (v) (vi) (vii) harassment of an Employee on any protected grounds, including unwelcome sexual advances, requests for sexual favour or other verbal or physical conduct of a sexual nature; or failure to allow an Employee to exercise any rights under law; or victimisation or retaliatory treatment against an Employee on account of such Employee exercising or attempting to exercise his rights under law; or breach of the express or implied terms of any contract of employment; or libel, slander or defamation of any Employee or negligent misrepresentation in any reference in respect of any Employee or any breach of the Data Protection Act 1998 in respect of the personal data of any Employee committed or allegedly committed by the Insured. Related or continuous or repeated or causally connected Wrongful Employment Acts shall constitute a single Wrongful Employment Act. 3. EXCLUSIONS (The heading of each exclusion is for ease of identification only) Underwriters shall not pay any Loss arising from any Claim: (a) BODILY INJURY OR PROPERTY DAMAGE arising out of any actual or alleged bodily injury, mental illness, sickness, disease or death of any person, including any criminal prosecution for manslaughter or under the Health and Safety at Work Act 1974 (or any equivalent foreign legislation), or arising out of any actual or alleged damage to or destruction of any tangible property, including loss of use thereof, provided that this exclusion shall not apply to a Claim alleging injury to feelings caused by a Wrongful Employment Act. (b) DISHONESTY brought about by or contributed to by or consequent upon the actual dishonesty, fraud or malicious conduct of any Director, provided that: this exclusion shall not apply to Costs and Expenses incurred in successfully defending any such Claim; this exclusion shall not apply to any Director not personally implicated in such dishonesty, fraud or malicious conduct and shall not apply to the Company unless the majority of the Directors are personally implicated in such dishonesty, fraud or malicious conduct. (c) PENSION SCHEMES arising out of any pension or superannuation scheme or programme. D&O EPL (3000MKL00048) / May of 12

7 (d) CLAIMS BY DIRECTORS by any Director. (e) CLAIMS BY THE COMPANY by the Company. (f) NEW BUSINESSES arising out of or assumed as a result of the transfer to the Company of any business or part of a business provided that this exclusion shall not apply to any Wrongful Employment Act committed by the Insured after the date of transfer to the Company. (g) PRIOR AND PENDING CLAIMS based upon or in any way involving allegations made or any facts in issue in any pending or prior litigation as at the Pending and Prior Date stated in the Schedule or any Claim arising out of the same or substantially the same facts, circumstances or situations. For the purposes of this exclusion litigation shall mean any civil, administrative, regulatory or criminal proceedings or any investigation, examination, inquiry or disciplinary proceedings, including any correspondence prior to any such proceedings, involving any Insured. (h) CLAIMS NOTIFIED UNDER PREVIOUS INSURANCE arising out of any circumstance notified under any insurance in force prior to the inception date of this Policy or which should have been so notified. RETROACTIVE DATE relating to any Wrongful Employment Act done (or in the case of an omission which should have been done) prior to the Retroactive Date (if any) stated in the Schedule. (j) OTHER INSURANCE OR INDEMNITY to the extent that any indemnity or payment is recoverable from any other source. (k) POLLUTION based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any way involving any actual or alleged seepage, Pollution or contamination of any kind. (l) RADIOACTIVITY brought about by or contributed to by or consequent upon: loss or destruction of or damage to any property whatsoever or any loss or expense whatsoever resulting or arising therefrom or any consequential loss, D&O EPL (3000MKL00048) / May of 12

8 any legal liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from (a) (b) ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. (m) WAR AND TERRORISM based upon, resulting directly or indirectly from, in consequence of, contributed to by, or in any way arising from: War Terrorism Any unlawful, wanton or malicious act committed by a person or persons acting on behalf of or in connection with any Unlawful Association regardless of any other cause or event contributing concurrently or in any other sequence to the Claim or Loss. Also excluded is loss, damage, costs or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing or in any way relating to and/or and/or above. If Underwriters allege by reason of this exclusion that any loss, damage, cost or expense is not covered by this Policy the burden of proving the contrary shall be upon the Insured. In the event that any part of this exclusion is found to be invalid or unenforceable, the remainder shall still be of full force and effect. (n) JURISDICTION brought outside the jurisdictions stated in the Schedule or brought under the laws of any territory outside such jurisdictions or any claim for the enforcement of any judgment obtained in the courts of any territory outside the jurisdictions. 4. LIMIT AND RETENTION (a) (b) Underwriters total aggregate liability under this Policy including any endorsements to this Policy (inclusive of Costs and Expenses) shall not exceed the Limit of Indemnity stated in the Schedule, irrespective of the number of Claims made and the number of persons against whom such Claims may be made. Underwriters shall only be liable in excess of the Retention (if any) stated in the Schedule (inclusive of Costs and Expenses) provided that no Retention shall apply if a Claim is brought only against one of the Insureds described at D&O EPL (3000MKL00048) / May of 12

9 parts to (v) of the definition of the Insured and such Insured is not indemnified by or entitled to be indemnified by the Company. 5. CLAIMS PROVISIONS (a) (b) (c) (d) (e) (f) (g) (h) The due observance and fulfilment of all the terms, conditions and endorsements of this Policy by the Insured shall be a condition precedent to any liability of Underwriters to make any payment under this Policy. The Insured shall as soon as practicable (and in any event not later than the expiry of the Period of Insurance) give to Underwriters notice in writing of any Claim or of any circumstances of which the Insured shall become aware which might reasonably be expected to give rise to a Claim, giving reasons for the anticipation of such Claim, with full particulars as to dates and persons involved. Such notice having been given as required by this provision, any subsequent Claim arising out of the circumstances so notified shall be deemed to have been made during the Period of Insurance. The Insured shall give Underwriters such information and co-operation as Underwriters may reasonably require. The Insured shall not admit liability for or settle or attempt to settle any Claim or incur any Costs and Expenses in connection with any Claim without Underwriters prior written consent (such consent not to be unreasonably withheld). Underwriters shall be entitled but not obliged at any time to take over and conduct in the name of the Insured the defence or settlement of any Claim or to prosecute in the name of the Insured for their own benefit any claim for payment, indemnity or damages or otherwise against any third party. If Underwriters consider the Insured will be entitled to indemnity under this Policy they shall pay Costs and Expenses prior to the final resolution of any Claim. If such payment is made the Insured shall refund such Costs and Expenses to the extent that they may not be entitled to indemnity under this Policy. The Insured shall not be required to contest any Claim unless Counsel of not less than 10 years standing (to be mutually agreed upon by the Insured and Underwriters or, in default of agreement, to be appointed by the President for the time being of the Law Society) shall advise that such Claim should be contested. Underwriters shall not settle any Claim without the consent of the Insured. If however the Insured shall refuse to consent to any settlement recommended by Underwriters and shall elect to contest a Claim, then Underwriters liability for such Claim (including Costs and Expenses) shall not exceed the amount for which the Claim could have been settled inclusive of Costs and D&O EPL (3000MKL00048) / May of 12

10 Expenses incurred with their consent up to the date of such refusal, and then only up to the Limit of Indemnity stated in the Schedule. The Insured shall not disclose the existence or terms of this Policy to anyone without Underwriters prior written consent, save to the extent that such disclosure is required by law (and for the avoidance of doubt a requirement to disclose the existence of this Policy is not a requirement to disclose its terms). 6. TAKEOVER AND MERGER In the event of the Takeover or Merger of the Company the Policy shall pay only Loss by reason of Wrongful Employment Acts committed prior to the date of the Takeover or Merger. In the event of any Subsidiary Company ceasing during the Period of Insurance to be a Subsidiary Company, the Policy shall pay only Loss by reason of Wrongful Employment Acts committed when it was a Subsidiary Company. 7. CONDITIONS (a) If the Insured shall make any request for payment in respect of any Loss knowing the same to be false or fraudulent, as regards amount or otherwise, this Policy shall become void and all requests for payment in respect of any Loss hereunder shall be forfeited. (b) If the Premium has not been paid within the agreed period, Underwriters may cancel this Policy by giving 15 days written notice to the Company first named in the Schedule or to the Broker, who shall receive such notice as agent on behalf of all persons and entities falling within the definition of the Insured. If the Premium is paid in full to Underwriters before the notice period expires, notice of cancellation shall automatically be revoked. If not, the Policy shall automatically terminate at the end of the notice period. In the event of such cancellation, premium is due to Underwriters on a pro rata basis for the period that Underwriters were on risk but the full Premium shall be payable in the event of notification of a Claim or of any circumstances before the effective date of termination. (d) The Proposal Form noted in the Schedule (together with all documents accompanying it and any other information supplied by the Insured to Underwriters in connection with this Policy) is the basis of this Policy and is incorporated herein. (e) For the purpose of determining the entitlement to indemnity of the Insureds described at parts to (v) of the definition of the Insured, no statement or omission in the Proposal Form nor any other knowledge, act or omission by any one Insured shall be imputed to any other Insured. (f) The parties to this Policy are Underwriters and the Insured. A person who is not a party to this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act. All Insureds agree that the Company first named in the Schedule is authorised to agree any amendment to any of the terms and conditions of this Policy and to give and receive all notices in connection with this Policy on behalf of all the Insureds. D&O EPL (3000MKL00048) / May of 12

11 (g) This Policy is governed by the Laws of England and Wales and Underwriters and the Insured agree to submit to the exclusive jurisdiction of the English Courts in respect of any dispute under this Policy. D&O EPL (3000MKL00048) / May of 12

12 NOTICE COMPLAINTS Below are two complaints notices. If you are insured with Markel Syndicate 3000 at Lloyd s please follow the procedure set out in (1) below. If you are insured with Markel International Insurance Company Ltd, please follow the procedure set out in (2) 1. Markel Syndicate 3000 at Lloyd s If at any time you have any questions or concerns regarding this Policy or the handling of a Claim, you should in the first instance refer to your insurance broker or intermediary, if any. If your problem cannot be resolved in this way, please write to the Claims Manager, Professional Liability Division, Markel International Limited, The Markel Building, 49 Leadenhall Street, London, EC3A 2EA. We will then advise you of Markel s internal complaints handling procedure. If you are still unable to resolve the situation and wish to make a complaint you can do so at any time by referring the matter to the Complaints Department at Lloyd s. Their address is Complaints Department, Lloyd s, One Lime Street, London, EC3M 7HA; Tel: ; Fax: ; [email protected] Complaints that cannot be resolved by our internal complaints handling procedure or by the Complaints Department at Lloyd s may be referred to the Financial Ombudsman Service. Further details will be provided at the appropriate stage of the complaints process. These complaints procedures do not affect your right to have recourse to legal action or to any other remedy available to you. 2. Markel International Insurance Company Ltd If at any time you have any questions or concerns regarding this Policy or the handling of a Claim, you should in the first instance refer to your insurance broker or intermediary, if any. If your problem cannot be resolved in this way, please write to the Claims Manager, Professional Liability Division, Markel International Limited, The Markel Building, 49 Leadenhall Street, London, EC3A 2EA. We will then advise you of Markel s internal complaints handling procedure. Complaints that cannot be resolved by our internal complaints handling procedure may be referred to the Financial Ombudsman Service. Further details will be provided at the appropriate stage of the complaints process. These complaints procedures do not affect your right to have recourse to legal action or to any other remedy available to you. 3000MKL00048 D&O EPL (3000MKL00048) / May of 12