Directors and Officers Liability Insurance. General Terms and Conditions (GTC ZGCCH - D&O Commercial EN)

Transcription

1 Directors and Officers Liability Insurance General Terms and Conditions (GTC ZGCCH - D&O Commercial EN)

2 Table of Contents I. Basis... 3 II. Insurance Cover Protection of Private Assets Company Reimbursement Company Protection in Case of Securities Claims Indemnity Payments... 3 III. Cover Extensions Cover in Case of Gross Negligence Spouses, Registered Partners, Heirs and Legal Representatives Employment Related Claims Outside Entity Executives Pre-Claim Mitigation Costs Costs of Resolution of a Psychological Crisis Taxes and Social Security Contributions in Case of Involuntary Liquidation and Insolvency Fines and Penalties Extradition Costs, Penal Prosecution Costs and Bail Expenses Standard of Living Costs During Prosecution Investigation Costs Emergency Costs Indemnities Made by the Company for Derivative Actions Excess Limits for Expenses for Public Relations of a Company due to Resolution of Crises Excess Limits for Reputational Damage Excess Limits for Defence Costs Excess Limits of Liability for Non-Executive Directors... 7 IV. Exclusions Wilful Wrongful Acts Company versus Insured in the USA and ERISA... 7 V. Scope of Insurance Cover Limit of Liability and Insurance Cover Retention Failure to Indemnify the Insured Person Financial Interest Cover... 8 VI. Temporal Scope Period of Insurance Claims Made and Continuity Claims Series Subsidiaries and Outside Entity Executives Extended Reporting Period Extended Reporting Period for Retired Directors and Officers VII. Change in Risks Policyholder s Obligation to Notify Changes in Risk New Subsidiaries Liquidation, Merger and Acquisition of the Policyholder Public Offering VIII. Claims Handling Claim Notification Claims Handling Allocation Order of Payments by Zurich Eligibility for Payments From Zurich Recovery against Third Parties Notification of Circumstances IX. General Conditions Waiver of Cancellation Rights Severability Premium Remuneration of Broker Other Insurance Jurisdiction and Applicable Law Notifications to Zurich X. Definitions Page 2 of 17

3 I. Basis This policy is based on the following: 1. The provisions contained in the policy including any endorsements; 2. The General Conditions (GC) for the Directors' & Officers' Liability Insurance; 3. The Swiss Federal Law on Insurance Contracts (VVG) of April 2, 1908 for cases not covered by the provisions set out in the given policy or any endorsements thereto; 4. Any and all written declarations made by an insured person or a company or, if applicable, by the insurance broker in requesting an offer and/or in relevant documents associated with the conclusion and/or renewal of the policy. 5. Any and all financial reports, half-yearly reports, quarterly reports, ad hoc announcements or any other information published or made available to shareholders or Zurich by an insured person or a company. II. Insurance Cover 1. Protection of Private Assets Zurich indemnifies on behalf of the insured person in respect of a claim made against an insured person alleging a wrongful act. 2. Company Reimbursement If a company has fully or partially indemnified an insured person for a claim pursuant to article 1 and if permitted under the applicable law, the company shall be reimbursed to the extent it has indemnified the insured person. 3. Company Protection in Case of Securities Claims Zurich indemnifies on behalf of the company in respect of a securities claim made against the company alleging a wrongful act. 4. Indemnity Payments Indemnity payments by Zurich consist of the indemnification of founded claims and the defence of unfounded claims. Indemnities paid by Zurich comprise financial losses, costs and other expenses mentioned in the contract. III. Cover Extensions 5. Cover in Case of Gross Negligence Zurich waives its right to reduce payments under this contract pursuant to article 14 paragraph 2 VVG in case of gross negligence. Page 3 of 17

4 6. Spouses, Registered Partners, Heirs and Legal Representatives The following persons have the same status as the insured person: 6.1 the insured person's spouse, insofar as claims are made against them as the insured person's spouse for the insured person's wrongful acts; 6.2 the insured person's registered partner as well as cohabiting partners to the extent claims are made against them as the insured person's partner for the insured person's wrongful acts; 6.3 the insured person's heirs and legal representatives (guardians, executors, etc.) to the extent claims are made against them for wrongful acts committed by the insured person before death, incompetence, insolvency or bankruptcy of the insured person. No insurance coverage is provided for acts or omissions committed directly by the spouses, registered partners, heirs or legal representatives. 7. Employment Related Claims Insurance coverage shall extend to claims made by an employee of a company or outside entity against an insured person based on actual or alleged employment-related wrongful acts or omissions of such insured person. 8. Outside Entity Executives 8.1 If an insured person or an employee of a company acts either as a director or officer for an outside entity or acts as a de facto director or officer for an outside entity (outside entity executive) at the company s direction and request, insurance coverage shall extend to wrongful acts committed by this insured person in its capacity as a director or officer of the outside entity. The continuity date in each case is the time of the acceptance of an outside entity executive position or the date listed under section 5 of the schedule, whichever is later. 8.2 This extension of cover shall apply in excess of payments due or effectively made under other insurance contracts and other indemnities due, paid or available from the outside entity. If, however, the other insurance contract was also concluded with one of the companies of Zurich Insurance Group Ltd, the indemnity payments available under this extension cover are reduced by the limits of liability specified in the other insurance contract of such company of Zurich Insurance Group Ltd with the outside entity. 9. Pre-Claim Mitigation Costs Zurich indemnifies the costs of an insured person to prevent, mitigate or limit an anticipated claim if: 9.1 shareholders of the company announce in writing to raise a claim; 9.2 shareholders of the company refuse to discharge the insured person due to a wrongful act; 9.3 a special auditor for the company is appointed based on Art. 697 a or 697 b of the Swiss Code of Obligations (CO) 9.4 due to a wrongful act, an employment contract of an insured person is terminated with the company or an insured person is dismissed as director or officer of the company; 9.5 the benefits agreed in the insured person s employment contract with the company were not paid or only partially paid; 9.6 the claim against the insured person was announced in writing; 9.7 due to a wrongful act a third party notice was served on the insured person; 9.8 due to a wrongful act a regulatory body announces in writing the commencement of investigation proceedings; or Page 4 of 17

5 9.9 based on a legal requirement to do so, the insured person, the company or an outside entity issues a selfreport to the responsible authority in order to indicate a wrongful act which might lead to a claim. Subject to Zurich s prior written consent Zurich pays the costs up to a sub-limit of 10% of the limit of liability at the time of the written notification of an event described in Art. 9.1 to 9.9 based pursuant to Art Costs of Resolution of a Psychological Crisis 10.1 Zurich indemnifies the reasonable and necessary costs incurred by an insured person for medical-psychological counselling by a recognized professional, to mitigate a psychological crisis in case an insured person loses its position as a director or officer in a company or outside entity due to a covered claim Subject to Zurich s prior written consent Zurich pays the costs limited by a sub-limit of 10% of the limit of liability. These costs will only be indemnified in the absence of a legal or another contractual obligation to indemnify (e.g. health or accident insurance) 11. Taxes and Social Security Contributions in Case of Involuntary Liquidation and Insolvency 11.1 Insurance coverage extends to unpaid taxes and social security contributions of the company, of which the insured person will be held legally liable, provided that the company files for insolvency or is subject to involuntary liquidation Insurance coverage will be granted up to a sub-limit of 30% of the limit of liability. Such insurance coverage ceases if the non-payment of taxes and social security contributions are based on a wilful and intentional act or omission by an insured person or company. Insurance coverage only applies if the indemnification of the insured person by the company is prohibited. 12. Fines and Penalties 12.1 Zurich indemnifies civil fines and administrative penalties on behalf of an insured person who is obliged to pay such civil fines or administrative penalties based on a final judgement on a claim but only provided that: the indemnification of the insured person by the company is prohibited or impossible due to insolvency of the company; and such indemnification is insurable and permitted according to the laws of the country in which the fines or penalties were imposed. This applies including the civil fines based on the United States Foreign Corrupt Practices Act, 15 U.S.C. 78dd-2(g)(2)(B) or similar laws in other jurisdictions. Zurich indemnifies insured persons up to a sub-limit of 10% of the limit of liability Notwithstanding the above, this policy shall provide cover for derivative actions made against an insured person based on a civil fine or administrative penalty imposed against a company A derivative action means a claim made and sustained in the name and for the benefit of a company by one or several shareholders, but without the solicitation of a company or an insured person and without the participation or direction of a company or an insured person. 13. Extradition Costs, Penal Prosecution Costs and Bail Expenses Zurich indemnifies the insured person for 13.1 costs for extradition requests which are raised by the responsible authorities against the insured person. Additionally, subject to Zurich s prior written consent, Zurich indemnifies necessary and reasonable travel expenses, which are directly related to the extradition request, for spouses, common law spouses as well as minors of such insured persons. Travel expenses are limited to a sub-limit of CHF 100'000. Page 5 of 17

6 13.2 costs for contesting a judicial order, which limits the freedom of cross border travel of the insured person, confiscates private assets and prohibits to act as a director; or 13.3 necessary and reasonable expenses in order to grant a bail requested by a civil or criminal court for the insured person. Other collateral securities will not be indemnified; provided that the above is related to a claim. 14. Standard of Living Costs During Prosecution If, due to an insured claim, the personal assets of an insured person were confiscated as stipulated in article 13.2, whereby the insured person can no longer maintain its usual standard of living, Zurich pays the reasonable and necessary costs up to a sub-limit of 10% of the limit of liability and up to maximal 6 months after the enforcement of the relevant judicial order. 15. Investigation Costs 15.1 Zurich pays costs incurred by the insured person in connection with investigation proceedings against the company first initiated by the responsible authorities in the period of insurance, but only if the insured person is obliged to participate and only if indemnification of the insured person by the company is forbidden or is not possible due to insolvency of the company If the investigation proceedings take place in the USA or will are based on its applicable laws, the sub-limit stated in Section 7 of the Schedule will apply If the parties agreed that insurance coverage set forth in article 3 applies, the provisions of article 3 instead of this article will apply in the event of a securities claim Investigation proceedings shall not include industry-wide or sector- wide investigations or any routine or regular audits, examinations, inspections or reviews. 16. Emergency Costs If an insured person cannot obtain the consent by Zurich based on article 39 paragraph 3 within reasonable time (two working days) before costs will be incurred in relation to a claim, Zurich shall consent to the costs retroactively up to a sub-limit of 10% of the limit of liability. 17. Indemnities Made by the Company for Derivative Actions Zurich instead of the company will assume costs resulting from a derivative action, which, according to a legally valid judgement, the company shall pay to the claimant holder of securities of such company. 18. Excess Limits for Expenses for Public Relations of a Company due to Resolution of Crises In the event of insurance coverage based on article 3, Zurich indemnifies reasonable and necessary expenses subject to Zurich s prior written consent in the case of a derivative action against the company in the amount of at least CHF 10' for external public relation advisors in order to mitigate and limit reputational damage of a company up to an excess limit of CHF The expenses will be indemnified 30 days the latest after raising a securities claim. 19. Excess Limits for Reputational Damage 19.1 In the event of reputational damage of an insured person due to an insured claim, Zurich pays all reasonable and necessary expenses, which were incurred by an external public relation advisor and which are bound to reduce the occurred reputational damage of the insured person. Page 6 of 17

7 19.2 Subject to Zurich s prior written consent, Zurich pays these expenses up to an excess limit of 10% of the limit of liability, no more than CHF , but only if the indemnification of the insured person by the company is prohibited or not possible due to the insolvency of the company. 20. Excess Limits for Defence Costs 20.1 In the event that the limit of liability is exhausted by indemnity payments due to a claim during the period of insurance, Zurich pays for any other claim during the same period of insurance costs up to an excess limit of 10% of the limit of liability but only if the claims are not joined and not part of a claims series The costs are granted only to the extent of potential excess contracts that exceed this contract and all other available indemnity payments. 21. Excess Limits of Liability for Non-Executive Directors 21.1 In the event that the limit of liability is exhausted by indemnity payments during the period of insurance, Zurich pays indemnities for non-executive directors up to an excess limit of: five percent (5%) of the limit of liability, but no more than CHF per non-executive director, twenty percent (20%) of the limit of liability but no more than CHF 2' in the aggregate for all non-executive directors The indemnity provided shall be available excess of all other insurance written as specific excess over this Policy and excess of all other available indemnification, and only if indemnification of the insured person by the company is forbidden or is not possible due to insolvency of the company Non-executive directors are all natural persons acting as members of the board of directors or supervisory board of the company and at the same time do not act in a managerial or operational role, neither as members of the executive management board nor members of an internal position of the company nor are employed by the company. IV. Exclusions 22. Wilful Wrongful Acts Zurich will not make any indemnity payments for claims resulting from or in connection with: 22.1 a knowingly committed wrongful act or a knowingly committed violation of law 22.2 an unlawful acceptance of payments by an insured person or, based on article 3, by a company. This exclusion only applies if 22.1 or 22.2 are legally established in a final adjudication or acknowledged in writing by an insured person or company. Zurich provisionally pays the costs up to such establishment or acknowledgement. 23. Company versus Insured in the USA and ERISA Zurich will not make any indemnity payments for claims made wholly or partially in the United States of America or to which the laws of the United States of America are applicable, provided, however, that these claims are: 23.1 based on or in connection with any provisions of the United States "Employee Retirement Income Security Act of 1974" (ERISA), any amendments thereto and similar provisions regarding occupational retirement provisions or insurance policies, retirement, profit sharing or health and welfare programs having emerged from federal, state or local legislation or incorporating the same in any way; Page 7 of 17

8 23.2 made at the instigation of the company or outside entity; provided, however, this exclusion shall not apply: to costs of an insured person; to shareholder derivative actions, where the action was brought without the solicitation of the company, outside entity or an insured person and without the participation or direction of the company, outside entity or an insured person unless the insured person acted as a whistleblower (as interpreted according to the applicable law) in good faith; to claims brought directly or on the company's or outside entity s behalf by a liquidator, trustee in bankruptcy or administrator, without the solicitation of the company, outside entity or an insured person and without the participation or direction of the company or an insured person. V. Scope of Insurance Cover 24. Limit of Liability and Insurance Cover 24.1 Indemnity payments by Zurich shall not exceed the limit of liability, the sub-limit and the excess limit, respectively The limit of liability indicated in the schedule is the maximum amount that Zurich will pay for any claim and for all claims in the aggregate during the period of insurance (including the extended reporting period) Each sub-limit indicated in the schedule or otherwise stated is part of the limit of liability and the excess limits are in excess to the limit of liability, per claim and per period of insurance in the aggregate. All indemnity payments under the excess limits are limited to 10% of the limit of liability but no more than CHF 5'000' Whether insurance coverage exists based on article 1, 2 and 3, depends on the terms of section 6.1 of the schedule. 25. Retention 25.1 Zurich shall only be liable for the portion of the indemnity payments that exceed the retention in accordance with section 8 of the schedule. Zurich is under no obligation to the insured person, the company or third parties to assume part or all of any indemnity payments that fall within the retention If a claims series or loss includes several claims, the retention is owed only once. 26. Failure to Indemnify the Insured Person 26.1 The company or outside entity shall fully indemnify the insured person to the extent that such indemnification is not explicitly prohibited If the company fails to indemnify the insured person in case of a claim although indemnification is not prohibited, Zurich makes indemnity payments instead of the company without prior deduction of an applicable retention. However, Zurich shall make such payments only when the company did not indemnify the insured person within 30 days of the insured person s written request for indemnification by the company In such event, however, Zurich shall obtain immediate reimbursement from the company for all payments made by Zurich that the company should have paid, including the applicable retention, unless the company failed to indemnify the insured person due to the policyholder s insolvency 27. Financial Interest Cover 27.1 Some jurisdictions prohibit the coverage of risks by an insurer without a local permit (restricted foreign jurisdiction). Subsidiaries located in such jurisdictions will not be covered within the scope of this contract. Zurich covers the interest of the policyholder to maintain the value of an economical participation on a subsidiary (financial interest) in case of: Page 8 of 17

9 a covered securities claim against a subsidiary; or an indemnification of an insured person by such subsidiary due to a covered claim; 27.2 but only if the provisions and insurance coverage of this contract will be applied analogously and if the insurance coverage under this contract cannot be granted to the insured person or subsidiary based on the restricted foreign jurisdiction. The insurance of the financial interest offers exclusively insurance coverage for the policyholder of this contract. The policyholder purchases insurance coverage for the financial interest at his/her own expenses A financial interest is the amount that would have been payable by Zurich, if the insurance coverage for the subsidiary could have been agreed effectively under this contract Circumstances, which were known to the insured person or subsidiary domiciled in a restricted foreign jurisdiction are deemed to be known to the company and the insured persons In the event of a claim, the following acts need prior consent by Zurich: Choice of defence strategy, choice of a defence counsel, judicial or extrajudicial settlements, acknowledgement of claims, cession of rights. The policyholder is obliged to ensure that eventual claims against third parties will be subrogated fully and at own expenses by the subsidiaries. Otherwise the non-subrogated part will be deemed to reduce the amount payable to the policyholder. VI. Temporal Scope 28. Period of Insurance 28.1 The contract is concluded for the duration of the period of insurance stated in section 4 of the schedule If the parties agreed to be bound by a tacit renewal (as stated in section 4.1 of the schedule), the following applies: Both the policyholder and Zurich have the right to terminate the contract at any time by giving written notice at least 3 (three) months prior to the expiration of the period of insurance. The termination is deemed timely if the other party to the contract received it on or before the last day before the start of the three-month deadline period. If the contract is not terminated, it will automatically be renewed for one year each time, but only if: a member of the management board, a Risk Manager or the head of legal services of the policyholder was not aware of a claim up to 60 days prior to the expiration of the period of insurance; no circumstances are reported up to 60 days prior to the expiration of the period of insurance; or the policyholder does not show a capital loss as defined by Art. 725 paragraph 1 CO in the past financial year If one or more of the events stated in , or occur, the contract will end upon the expiration of the period of insurance without requiring written notice of termination If a member of the management board, a Risk Manager or the head of legal services of the policyholder becomes aware of a claim or if a circumstance is reported to Zurich in less than 60 days prior to the expiration of the period of insurance, the contract will be renewed for another period of insurance and will expire at the time of the expiration of the following period of insurance without requiring written notice of termination In order to continue the contract in the events stated in and , a new written agreement is required. The delivery and/or payment of the continuation invoice is not considered a mutual agreement to renew the contract. Page 9 of 17

10 28.3 If no tacit renewal is agreed according to the section 4.1 of the schedule, a new written agreement is required to continue the contract The policyholder has the right to terminate this contract up to 60 days after an event described in article 35 (new subsidiaries) or article 37 (IPO) occurred and no agreement with Zurich could be reached relating to the provisions of the contract or the premium. 29. Claims Made and Continuity 29.1 Insurance coverage is provided for claims first made during the period of insurance or during the extended reporting period, if applicable (claims made principle) Claims arising from wrongful acts committed prior to the continuity date in accordance with section 5 of the Schedule or mentioned elsewhere in the contract are deemed insured if neither the insured persons nor the company nor the outside entity have been aware of the wrongful act at the continuity date If the insurance coverage of this contract is extended during the period of insurance (including increase of the limit of liability, the sub-limit or an additional limit), the time of the extension of insurance coverage will be deemed to be the new continuity date with regard to that extension No insurance coverage is provided for: claims in connection with legal disputes, demand suit or proceedings commenced or pending, or order, decree or judgement entered against insured persons, the company or outside entities before the continuity date; claims as set forth in , which are based on or derived from the same or essentially the same facts as alleged in such demand, suit, proceedings, order, decree or judgement; claims or circumstances which were notified under any other contract or which were notified under a different period of insurance of this contract, as well as claims, wrongful acts or circumstances which were reported in a proposal, proposal form, Warranty Statement or in another declaration. 30. Claims Series 30.1 Claims series means one or several claims or financial losses: arising from one or several wrongful acts by one or several insured persons and which are attributable to the same facts or which are interrelated in a legal, economical or temporal respect; or which have the same cause All claims made within the scope of a claims series shall be deemed to be a single claim. Such claims series will be allocated only to that period of insurance during which the first claim was made. If the first claim was made prior to the continuity date, the entire claims series shall be deemed to be uninsured. 31. Subsidiaries and Outside Entity Executives 31.1 Insurance coverage only applies to claims arising from wrongful acts committed during the period when the entity was a subsidiary or when an insured person was mandated to act as a director or officer of an outside entity but only if the claim was notified during the period of insurance or during the extended reporting period, if applicable Alternatively, the policyholder or the former subsidiary may request from Zurich a quote for a run-off contract for wrongful acts committed during the time when the entity was still a subsidiary. Zurich reserves its right to determine the provisions of the run-off contract and to set the premium accordingly. The insurance coverage for the former subsidiary under this contract will cease to the extent of the coverage provided by the run-off contract The request for a quote of a run-off contract shall be made in writing to Zurich no later than 30 days after such entity ceases to be a subsidiary. Page 10 of 17

11 32. Extended Reporting Period 32.1 In the event of a non-renewal of this contract, the policyholder shall have the right to extend the insurance coverage according to section 10 of the schedule, but only : for claims arising from wrongful acts committed before the expiration of the period of insurance; and for the amount of the remaining unexhausted limit of liability available for the last period of insurance. To exercise this right, Zurich must be given written notice thereof before the expiration of the period of insurance. This insurance coverage ends automatically with the beginning of another Director s and Officer s liability insurance policy or as soon as the risk is insured elsewhere If the policyholder does not exercise its right to obtain an extended reporting period pursuant to this article, each and every insured person has the right to obtain an extended reporting period subject to the written notice to Zurich no later than 30 days after expiry of the period of insurance. In addition to and of this article the following applies: The amount of the remaining unexhausted limit of liability is only available once for the agreed extended reporting periods for all insured persons. Insurance coverage only exists if the indemnification by the policyholder is not allowed or not possible due to insolvency of the company. 33. Extended Reporting Period for Retired Directors and Officers 33.1 In case of non-renewal of this contract, the insured persons who left or retired for age-related reasons during the current period of insurance are entitled to an unlimited extended reporting period, but only; for claims arising from wrongful acts committed before leaving or retiring as insured persons and during the period of insurance; and for the amount of the remaining unexhausted limit of liability available for the last period of insurance This insurance cover ends if another insurance policy insures the same wrongful acts committed by these former or retired insured persons. VII. Change in Risks 34. Policyholder s Obligation to Notify Changes in Risk Notwithstanding the provisions of VVG, the policyholder s obligation to notify substantial changes in risk is limited to the following events during the period of insurance: 34.1 formation or acquisition of an entity pursuant to Article 35; 34.2 commencement of liquidation proceedings, bankruptcy proceedings or debt moratorium of the policyholder or a fusion or take-over of the policyholder pursuant to Article 36; 34.3 Initial public offering of company s shares pursuant to Article 37; and 34.4 the policyholder reports a capital loss as defined by Art. 725 paragraph 1 CO for the past financial year (applicable only in case the parties agreed a tacit renewal pursuant to Article 28). 35. New Subsidiaries 35.1 In the event of the policyholder forming and acquiring a new subsidiary during the period of insurance or contract period, coverage automatically extends to such a subsidiary provided that: the securities of such an entity are not traded on a stock exchange in the U.S.; Page 11 of 17

12 the consolidated assets of such an entity do not exceed 25% of the policyholder s consolidated assets as reported in the last financial statement; and such an entity is not a bank, insurance company or any other financial services company (with the exception of a captive insurance company of a company) 35.2 If one or more of these conditions are not fulfilled, such newly formed or acquired entity shall be deemed a subsidiary for a period of 90 days starting from the date of the acquisition or the formation or until the expiry of the period of insurance (which ever period expires first). After expiry of this period, the insurance cover will extend to such new subsidiary only with Zurich s written consent. Zurich reserves its right to modify the terms and conditions of the contract in respect of such new subsidiary, including charging an additional premium. 36. Liquidation, Merger and Acquisition of the Policyholder 36.1 In the event of the voluntary or mandatory liquidation of the policyholder, the commencement of bankruptcy proceedings, a merger (with the consequential loss of the policyholder s legal status) or an acquisition of the majority of its voting rights being taken over by one or several persons jointly, insurance cover extends only to claims arising from wrongful acts committed before the conclusion of the voluntary liquidation, the commencement of a mandatory liquidation, the commencement of bankruptcy proceedings or the closing date of a merger or acquisition. Art. 55 VVG is not applicable to this contract A debt-restructuring moratorium regarding the policyholder does not impact the insurance cover If one of the events mentioned under Art occurs, the policyholder may request an offer for a run-off contract of up to six years for claims arising from wrongful acts committed before the event occurred. Zurich reserves its right to set a premium, which can be paid by the policyholder or any other person. Insurance coverage in the scope of the extended reporting period exists to the extent of the remaining unexhausted limit of liability, sub-limit or additional limit, respectively, for the last period of insurance In order to exercise the right to an extended reporting period, the policyholder must give written notice thereof to Zurich within 30 days after the conclusion of the voluntary liquidation, the commencement of the involuntary liquidation, the commencement of the bankruptcy proceedings or up to the closing date of a merger or an acquisition. Article 32 does not apply in the case of liquidation, bankruptcy, merger or acquisition of the policyholder. 37. Public Offering If during the period of insurance or during the term of this contract the company decides to make a private or public offering of its shares, equity titles, and participation certificates, the insurance cover will only extend to wrongful acts in relation to such offerings with Zurich s written consent. Zurich reserves the right to modify the provisions of this contract with regard to such an event, including to charge an additional premium. Page 12 of 17

13 VIII. Claims Handling 38. Claim Notification 38.1 If an officer or director, a Risk Manager or a General Counsel of the policyholder becomes aware of a claim, the claim should be notified to Zurich in writing as soon as possible but no later than 90 days after the expiration of the period of insurance or within the extended reporting period (if applicable) The notification must include information about the occurred or anticipated financial loss, the alleged or actual wrongful act, the time of the wrongful act and the insured persons concerned. 39. Claims Handling 39.1 In the event that a claim is made against an insured person or respectively a securities claim is brought against a company, the insured person and the company shall defend themselves by all means at their disposal The amount of damages to be paid by Zurich shall be based on a final decision of a court or an arbitration tribunal, or a final order of an authority wherein the insured person or a company is sentenced to pay compensatory damages. Subject to the written consent of Zurich, settlements approved by the court or out of court shall be deemed equivalent The insured person and the company shall neither admit nor assume nor settle liability claims in whole or in part, nor incur costs without Zurich's prior written consent. The insured person and the company are obliged to support Zurich in the investigation of the facts and not to do or omit anything to prejudice the rights of Zurich. A culpable breach of these duties shall release Zurich from its obligation to indemnify to the extent of the consequences attributable to such breach. The culpable breach of duty by an insured person or a company shall not be imputed to any other insured person or to any other company If Zurich wishes to settle with the claimant whereas the company or the insured person is opposed to such settlement, Zurich s total aggregate payments under this contract shall be limited to the amount by which the claim could have been settled by compromise Zurich will be entitled to any payments awarded to the insured person or the company in the legal proceeding up to the amount of the indemnities paid by Zurich The insured person and the company may elect and retain a lawyer of their choice, subject to the prior written approval of Zurich Should it subsequently emerge that a claim is partly or entirely uncovered under this contact, the insured person or the company will reimburse Zurich for the respective uncovered part of the advanced costs. 40. Allocation The following applies if a claim is brought against both the insured person and the company or an uninsured person, or if certain facts uncovered under this contract are asserted in a claim brought against an insured person or a company: 40.1 the company, the insured person and Zurich shall determine the portion allocated or covered costs and covered financial loss in consideration of the parties relative likelihood of success and relative financial advantage no provision for, nor any payment of costs, shall bind Zurich in respect of questions of liability or coverage regarding the financial loss. 41. Order of Payments by Zurich In the event of a financial loss, Zurich will first indemnify pursuant to Article 1 (protection of private assets) and Article 8 (outside executives) and thereafter indemnify to the extent of the remaining available amount of the limit of liability or sub-limit pursuant to the other provisions of the contract. Page 13 of 17

14 42. Eligibility for Payments From Zurich The insured person and, in accordance with Articles 2 and 3, the company, are solely eligible for payments under this contract. Zurich is authorized to make indemnity payments directly to the injured party. 43. Recovery against Third Parties The insured person s or the company s rights of recovery against third parties shall be assigned to Zurich to the extent of Zurich s payments under this contract. If the cession does not occur by law, the insured person or the company shall cede the recovery rights to Zurich. The insured person or the company shall be liable for any act or omission that may prejudice these rights of recovery. All rights to payments under this contract shall be forfeited to the extent that third parties are relieved of liability without Zurich s written consent. 44. Notification of Circumstances 44.1 If during the period of insurance an insured person or a company becomes aware of any circumstance that with high probability may result in an insured claim, they may report such circumstances to Zurich in writing before the expiration of the period of insurance. As a result of such notification, claims arising from these circumstances shall be deemed to be first made and reported to Zurich at the time of the notification The notification shall include particulars as detailed as possible about reasons which give rise to the assumption that a claim may be made, the potential claimant, the occurred or anticipated financial loss, the alleged wrongful act as well as the insured persons and company concerned. IX. General Conditions 45. Waiver of Cancellation Rights Zurich waives its rights to terminate the contract pursuant to VVG, except for non-payment of the premium. 46. Severability 46.1 In granting insurance cover Zurich has relied upon Section I, number 4 and 5, as well as upon the proposal forms or other declarations, which constitute the basis of this contract (proposal). In respect of the proposal it is agreed that: The proposal is deemed to be made by each insured person individually. Regarding the statements made in the proposal, no statement made by or knowledge possessed by an insured person shall be imputed to any other insured person for the purpose of determining the availability of cover under this contract For the purpose of granting insurance cover of article 2 and 3, the knowledge and statements made by the Chief Executive Officer (CEO), the Chief Financial Officer (CFO), the General Counsel, and the Insurance Risk Manager of the policyholder as well as their respective deputies will be imputed to the company For the application of article 22 and article 23 (Exclusions): wrongful acts, acts or omissions of an insured person will not be imputed to another insured person For the purpose of granting insurance cover of article 2 and 3, wrongful acts, acts or omissions of the Chief Executive Officer (CEO), the Chief Financial Officer (CFO), the General Counsel, and the Insurance Risk Manager of the policyholder as well as their respective deputies will be imputed to the company, Page 14 of 17

15 and wrongful acts, acts or omissions of such officers of a subsidiary will be imputed exclusively to that subsidiary. 47. Premium Unless otherwise agreed, the premium (plus taxes, charges and duties) is determined per period of insurance and due and payable at the inception of the period of insurance. 48. Remuneration of Broker 48.1 If a third party, e.g. a broker, represents the interests of the policyholder with regard to the conclusion of or management of this insurance contract, Zurich may remunerate said third party for its activities on the basis of an agreement. The policyholder may contact the third party for further information The broker is entitled to conduct all business transactions between the policyholder and Zurich. The broker is authorized by the policyholder to accept requests, notifications, declarations, declarations of intent etc. (though not payments) from Zurich and to pass requests, notifications, declarations, declarations of intent etc. (though not payments) to Zurich for the policyholder. They are deemed to have been received by the policyholder upon receipt by the broker. 49. Other Insurance 49.1 Insurance coverage does not extend to claims that are covered by another valid insurance contract at the time they are made or that would be covered thereunder, including agreed extended reporting period, but for the existence of the current contract However, this contract will grant insurance cover in excess of the amount which is or would be covered under the other insurance contract, subject to the applicable retentions. This excess of loss cover is granted subject to the other terms and conditions of this contract and to the maximum of the limit of liability indicated under section 6 of the schedule 49.3 If the other insurer denies insurance cover fully or partially, Zurich shall advance the costs of an insured person or the company up to 20% of the limit of liability, but only a maximum of CHF 1' , if the other contract is not with another entity of Zurich Insurance Group Ltd. 50. Jurisdiction and Applicable Law 50.1 The policyholder or the insured person may elect as place of jurisdiction (forum) for disputes arising from this policy either: The city of Zurich, as the head office of Zurich; The location of the Zurich branch office in Switzerland that is directly involved with this policy; The Swiss or Fürstentum Liechtenstein not, however, another foreign residence or head office of the policyholder or beneficiary All claims under or in connection with this policy are governed solely by Swiss law. The choice of law does not however affect the question of liability of an insured person or a company. 51. Notifications to Zurich All notifications shall be sent to Zurich Insurance Company AG, Global Corporate Switzerland, po Box, CH-8085 Zürich. Page 15 of 17

16 X. Definitions The terms printed in bold in this contract whether in the singular or in the plural are defined as follows: 1. Claim means a written demand for damages first made during the period of insurance or the extended reporting period in respect of a financial loss arising from a wrongful act. Claim also means a formal notice of a criminal, administrative or investigation proceeding arising from a wrongful act, first initiated against an insured person during the period of insurance. Claim shall also include a securities claim. 2. Outside entities mean all legal entities excluding any companies, any entities which have issued securities that are traded on a stock exchange in the United States, any entities which are banks, insurance companies or other financial institutions, and any entities which report negative equity at the inception of the period of insurance. 3. Company means the policyholder and its subsidiaries. 4. Continuity date means the date mentioned under section 5 of the schedule or the date otherwise mentioned or designated in the policy/contract. 5. Costs mean all reasonable and necessary expenses in connection with an insured claim, including interests, experts`, lawyer s and court fees, parties expenses awarded and fees for the interpretation of foreign legal documents. Remuneration fees of insured persons or employees, or the company s own fees are not considered to be costs pursuant to this contract. 6. Wrongful Act means any alleged or actual act or omission of an insured person which results in a legal liability as a director or officer of a company or an outside entity. Exclusively for insurance cover pursuant to Article 3, a wrongful act means any alleged and actual act or omission of a company which results in a legal liability of the company. 7. Subsidiary means any entity in which the policyholder -directly or indirectly-at or before the inception of the period of insurance according to section 4 of the schedule : 7.1 holds or held more than 50% of the voting rights: 7.2 appoints or appointed a majority of the board of directors (or equivalent in any other country); or 7.3 has or had, pursuant to a written agreement, a controlling influence over the management board. Subsidiary shall also mean any charity and charitable foundation which is fully controlled and financed by a company, but not a pension trust or pension scheme. The entity is not considered a subsidiary if none of the above mentioned conditions is fulfilled anymore. 8. Financial loss means a loss which is neither directly nor indirectly resulting from death, injury or other impairment of health (bodily injury) or destruction of, damage to or loss of tangible property (property damage). The consequences of an employment-related infliction of emotional distress are not considered as bodily injury. Financial loss also means: 8.1 a diminution of assets in connection with a personal or property damage but only insofar as the wrongful act of an insured person did not cause the personal and property damage but caused exclusively the diminution of the assets; 8.2 a diminution of value in the policyholder s shares due to bodily injury or property damage; 8.3 damages pursuant to the Corporate Manslaughter and Corporate Homicide Act 2007 of the United Kingdom; and 8.4 punitive, exemplary or multiplied damages if insurable in its applicable jurisdiction, but only if it is not considered to be a claim pursuant to Article 7. Page 16 of 17

17 Tax, social security contributions, charges, civil fines or penalties as well as expenses in relation with decontamination of environmental damages (Clean-up Costs) shall not be considered a financial loss, except as provided in Articles 11 and 12. Furthermore, expenses of a company in relation to the difference between the originally offered or agreed and the finally paid price in connection with the purchase or sale of a company, its shares or assets shall not be considered a financial loss. 9. Insured persons are natural persons, namely all past, present and future 9.1 Members of the Board of Directors, 9.2 Members of the Executive Management Board, 9.3 Members of internal control bodies, internal audit and internal control, Compliance Officers or other persons by law in charge of maintaining compliance, Risk Managers, head of insurance department and General Counsel. 9.4 de facto directors and officers, 9.5 Employees of internal pension fund committee, 9.6 Internal legal counsels employed by the company, 9.7 shadow directors, approved persons pursuant to the UK Financial Services and Market Act 2000, 9.8 Company Secretaries, Officers pursuant to Common Law, Senior Accounting Officer based on the Schedule 46, Paragraph 16 of the UK Finance Act 2009, 9.9 General representatives, authorised proxy holders and members of executive staff, 9.10 ad interim Managers, 9.11 appointed liquidators in their function during a voluntary liquidation of a company, in their capacity or function as a director and officer of a company, as well as other employees of the company, as long as the claim is brought and continuously maintained against a person defined in 9.1 through 9.11 or if the claim brought against them is based on article 7 (employment related claim). Also, the following persons are considered an insured person: 9.12 natural persons representing a legal entity which is mandated as member of a company s statutory bodies; employees of a company involved in establishing the company, but only exclusively within the scope of the legal liability pursuant to Art. 753 OR or similar statutory liability provisions in other jurisdictions. 10. Securities claim means a written demand for damages first made during the period of insurance in respect of a financial loss arising from a wrongful act in connection with the purchase, hold or sale of securities of and issued by the company. Securities claim also means an investigation in relation to securities of the company first brought or commenced against the company during the period of insurance by a responsible authority, in particular the Securities and Exchange Commission (SEC), SIX Swiss Exchange or FINMA, due to a wrongful act, but only if and as long as the investigation was commenced and maintained simultaneously against an insured person. An investigation directed against an entire economic sector or conducted during standard or regular controls are not considered a securities claim. * * * Page 17 of 17