AXIS Directors and Officers and Corporate
Liability Policy
1
Schedule
Item 1 Company
Item 2 Period of Insurance
Item 3 Limit of Liability
Item 4 Additional Excess Limit
Item 5 Sub-limits
Item 5.1
Crisis Costs Sub-Limit
Item 5.2
Emergency Costs Sub-Limit
Item 5.3
Pecuniary Penalties Sub-Limit
Item 5.4
Personal Tax Liability Sub-Limit
Item 6 Deductibles
Item 6.1
Deductible for Insuring Clause 1.1
Item 6.2
Deductible for Insuring Clause 1.2
Item 6.3
Deductible for Insuring Clause 1.3
Item 6.4
Deductible for Insuring Clause 1.4 (a)
Item 6.5
Deductible for Insuring Clause 1.4 (b)
Item 7 Premium
Item 8 Continuity Date
Item 9 Prior/Pending Date
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AXIS Directors and Officers
and Corporate Liability Policy (07/12)
Table of Contents
Section 1.
Insuring Clauses ........................................................................................................... 5
1.1
Directors and Officers .......................................................................................................... 5
1.2
Company Reimbursement ................................................................................................... 5
1.3
Securities Claims................................................................................................................. 5
1.4
Inquiry Representation Expenses ........................................................................................ 5
Section 2.
Extensions ..................................................................................................................... 5
2.1
Additional Excess Limit for Directors and Officers ............................................................... 5
2.2
Advance Defence Costs ...................................................................................................... 6
2.3
Continuous Cover................................................................................................................ 6
2.4
Crisis Cover ......................................................................................................................... 6
2.5
Discovery Period ................................................................................................................. 6
2.6
Emergency Costs ................................................................................................................ 6
2.7
Heirs & Estates.................................................................................................................... 7
2.8
Occupational Health & Safety .............................................................................................. 7
2.9
Outside Directorship Claims ................................................................................................ 7
2.10
Pecuniary Penalties ............................................................................................................. 7
2.11
Personal Tax Liability .......................................................................................................... 7
2.12
Pollution .............................................................................................................................. 7
2.13
Public Offering ..................................................................................................................... 8
2.14
Retired Officers ................................................................................................................... 8
2.15
Run-off after Transaction ..................................................................................................... 8
2.16
Subsidiaries ......................................................................................................................... 8
Section 3.
Definitions ..................................................................................................................... 9
3.1
Additional Excess Limit ....................................................................................................... 9
3.2
AXIS .................................................................................................................................... 9
3.3
Claim ................................................................................................................................... 9
3.4
Company ............................................................................................................................. 9
3.5
Continuity Date .................................................................................................................... 9
3.6
Crisis ................................................................................................................................... 9
3.7
Crisis Costs ....................................................................................................................... 10
3.8
Crisis Costs Sub-Limit ....................................................................................................... 10
3.9
Deductible ......................................................................................................................... 10
3.10
Defence Costs ................................................................................................................... 10
3.11
Director or Officer .............................................................................................................. 10
3.12
Discovery Period ............................................................................................................... 11
3.13
Emergency Costs Sub-Limit .............................................................................................. 11
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3.14
Employee .......................................................................................................................... 11
3.15
Employment Wrongful Act ................................................................................................. 11
3.16
Extradition Proceeding ...................................................................................................... 11
3.17
Inquiry Notice .................................................................................................................... 11
3.18
Inquiry Representation Expenses ...................................................................................... 12
3.19
Insured .............................................................................................................................. 12
3.20
Insured Person .................................................................................................................. 12
3.21
Limit of Liability .................................................................................................................. 12
3.22
Loss .................................................................................................................................. 12
3.23
Outside Directorship Claims .............................................................................................. 13
3.24
Outside Entity .................................................................................................................... 13
3.25
Pecuniary Penalties ........................................................................................................... 14
3.26
Pecuniary Penalties Sub-Limit ........................................................................................... 14
3.27
Period of Insurance ........................................................................................................... 14
3.28
Personal Tax Liability Sub-Limit ........................................................................................ 14
3.29
Policy ................................................................................................................................ 14
3.30
Pollutant ............................................................................................................................ 14
3.31
Pollution ............................................................................................................................ 14
3.32
Premium ............................................................................................................................ 14
3.33
Prior/Pending Date ............................................................................................................ 14
3.34
Proposal ............................................................................................................................ 14
3.35
Prosecution Costs ............................................................................................................. 14
3.36
Public Relations Expenses ................................................................................................ 15
3.37
Retired Officer ................................................................................................................... 15
3.38
Schedule ........................................................................................................................... 15
3.39
Securities .......................................................................................................................... 15
3.40
Securities Claim ................................................................................................................ 15
3.41
Subsidiary ......................................................................................................................... 16
3.42
Transaction ....................................................................................................................... 16
3.43
Wrongful Act ...................................................................................................................... 16
Section 4.
Exclusions ................................................................................................................... 17
4.1
Dishonesty ........................................................................................................................ 17
4.2
Future Public Offering ....................................................................................................... 17
4.3
Known Prior Matters .......................................................................................................... 17
4.4
Personal Injury and Property Damage............................................................................... 17
4.5
Pollution ............................................................................................................................ 17
4.6
War ................................................................................................................................... 18
Section 5.
Conditions ................................................................................................................... 18
5.1
Allocation........................................................................................................................... 18
5.2
Authorisation ..................................................................................................................... 18
5.3
Cancellation ...................................................................................................................... 18
5.4
Confidentiality .................................................................................................................... 19
5.5
Deductible ......................................................................................................................... 19
5.6
Defence, Co-operation and No Admissions ....................................................................... 19
5.7
Entire Agreement .............................................................................................................. 20
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5.8
Foreign Currency Settlements ........................................................................................... 20
5.9
GST ................................................................................................................................... 20
5.10
Interpretation ..................................................................................................................... 20
5.11
Jurisdiction and Governing Law ........................................................................................ 21
5.12
Limit of Liability .................................................................................................................. 21
5.13
Non-Assignment ................................................................................................................ 21
5.14
Notification ........................................................................................................................ 21
5.15
Other Insurance and Non-Accumulation ............................................................................ 22
5.16
Priority of Payments .......................................................................................................... 22
5.17
Severability of Proposal and Non-Avoidance..................................................................... 22
5.18
Subrogation ....................................................................................................................... 23
5.19
Transactions ...................................................................................................................... 23
Head Office
Level 21
45 Clarence Street
Sydney NSW 2000
Ph: (02) 8235 1000
Fax: (02) 8235 1095
Adelaide
Concorde Suite, Level 2
70 Hindmarsh Square
Adelaide SA 5000
Ph: (08) 8232 5860
Brisbane
Level 17
12 Creek Street
Brisbane QLD 4000
Ph: (07) 3237 2000
Fax: (07) 3221 7268
Melbourne
Level 18
357 Collins Street
Melbourne VIC 3000
Ph: (03) 9246 0500
Fax: (03) 9246 0595
Perth
L27, St Martins Tower
44 St Georges Terrace
Perth WA 6000
Ph: (08) 6316 4616
Fax: (08) 6316 4511
AXIS Specialty Australia (AXIS), a branch of AXIS Specialty Europe SE, ARBN 131 203 122, is authorised and supervised by
the Australian Prudential Regulation Authority as a general insurer. AXIS Specialty Europe plc is authorised and regulated by
the Irish Financial Services Regulatory Authority
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Directors and Officers and Corporate Liability Policy
In consideration of the payment of the Premium and in reliance on the contents of the Proposal, and
subject to all terms, conditions and exclusions of the Policy, AXIS agrees as follows.
Section 1. Insuring Clauses
For Claims first made during the Period of Insurance (or, where applicable, during the Discovery
Period), AXIS will:
1.1
DIRECTORS AND OFFICERS
pay on behalf of any Insured Person all Loss, to the extent which the Company has not indemnified
or agreed to indemnify such Insured Person.
1.2
COMPANY REIMBURSEMENT
pay on behalf of the Company all Loss of any Insured Person to the extent which the Company has
indemnified or agreed to indemnify such Insured Person.
1.3
SECURITIES CLAIMS
pay on behalf of the Company all Loss arising from any Securities Claim against the Company.
1.4
INQUIRY REPRESENTATION EXPENSES
For Inquiry Notices first received by the Insured during the Period of Insurance (or, where
applicable, during the Discovery Period), AXIS will pay Inquiry Representation Expenses on
behalf of:
(a) each Insured Person to the extent which the Company has not indemnified or agreed to
indemnify such Insured Person for such Inquiry Representation Expenses
(b) the Company to the extent which the Company has indemnified or agreed to indemnify the
Insured Person for such Inquiry Representation Expenses.
Section 2. Extensions
Subject to all terms, conditions and exclusions of the Policy, AXIS agrees to extend cover as follows:
2.1
ADDITIONAL EXCESS LIMIT FOR DIRECTORS AND OFFICERS
In addition to the Limit of Liability, for Claims first made during the Period of Insurance (or, where
applicable, during the Discovery Period), and notified to AXIS during the Period of Insurance (or,
where applicable, during the Discovery Period), AXIS will pay up to the Additional Excess Limit, to
or on behalf of any Director or Officer all Loss, to the extent which the Company has not
indemnified or agreed to indemnify such Director or Officer.
This extension is only available in excess of and after the exhaustion of all of:
(a) the Limit of Liability;
(b) the limit of indemnity or liability of all other policies of insurance available to the Director or
Officer including any other directors & officers liability policy written as a specific excess policy
over this policy.
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The Additional Excess Limit is the total aggregate limit of AXIS' liability in respect of all Loss under
this extension 2.1.
2.2
ADVANCE DEFENCE COSTS
AXIS will, prior to final disposition or adjudication of any Claim, pay Defence Costs on an as incurred
basis promptly upon receipt of invoices for such Defence Costs.
If at any time a Claim, or part of a Claim, is said by AXIS not to be covered under this Policy or is
found to be excluded, then all such amounts advanced in any respect of any uncovered part or matter
(including as determined by Condition 5.1 (Allocation)) must be returned to AXIS on demand, by the
party not entitled to such cover or the Insured to whom such amounts were advanced. This clause is
to be applied in the same manner to Inquiry Representation Expenses in respect of any Inquiry
Notice and to Crisis Costs, Prosecution Costs and Public Relations Expenses.
2.3
CONTINUOUS COVER
Notwithstanding Exclusion 4.3 (b) and (c) (Known Prior Matters), coverage is provided for Claims and
Inquiry Notices, arising from facts or conduct which could and should have been notified under any
policy for which this Policy is a renewal or replacement or which it may succeed in time provided
always that:
(a) the matter first could and should have been notified after the Continuity Date;
(b) the Company and its Directors and Officers have maintained, without interruption, a directors
and officers liability policy from the Continuity Date to the date this Policy commenced;
(c) there has been no fraudulent non-disclosure or misrepresentation to AXIS in respect of the
Claim or Inquiry Notice;
(d) AXIS has the discretion to apply either the terms, conditions, exclusions and limitations (including
insuring clauses, schedule, limits of liability and deductible) of the policy in force at the time the
Insured first becomes aware of the potential Claim or Inquiry Notice or the terms and
conditions of this Policy.
2.4
CRISIS COVER
AXIS will pay Crisis Costs up to the Crisis Costs Sub-Limit in the aggregate in connection with all
Crises. No Deductible applies to this extension.
2.5
DISCOVERY PERIOD
If this Policy is not renewed or replaced the Company shall be entitled to a Discovery Period of:
(a) 60 days, granted automatically with no additional premium payable; and
(b) 12 months subject to acceptance by the Company of the terms, conditions and additional
premium, so long as such additional premium is paid no later than 30 days after the expiry of the
Period of Insurance, such additional premium being deemed fully earned at the commencement
of the Discovery Period. This discovery period is non-cancellable.
A Discovery Period is not provided if a Transaction occurs.
2.6
EMERGENCY COSTS
If, because of an emergency, the written prior consent of AXIS cannot be requested for the Insured
to incur any of Defence Costs, Inquiry Representation Expenses, and/or Public Relations
Expenses, AXIS is deemed to consent to those Defence Costs, Inquiry Representation Expenses,
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and/or Public Relations Expenses incurred for a period of 31 days following the date on which the
Claim was first made, the Inquiry Notice was first received or the Crisis first occurred.
AXIS’s liability under this extension 2.6 is limited to 10% of the Limit of Liability or, if applicable, the
Emergency Costs Sub-Limit.
2.7
HEIRS & ESTATES
Coverage is extended to Claims for Wrongful Acts made against, or Inquiry Notices received by
the estate, heir or legal personal representative of a deceased Director or Officer.
2.8
OCCUPATIONAL HEALTH & SAFETY
Notwithstanding Exclusion 4.4 (Personal Injury and Property Damage) AXIS will pay Defence Costs,
Inquiry Representation Expenses, Pecuniary Penalties and Public Relations Expenses incurred
by an Insured Person in respect of any alleged breach of any occupational health & safety law or
regulation, including industrial or corporate manslaughter.
2.9
OUTSIDE DIRECTORSHIP CLAIMS
For Outside Directorship Claims first made during the Period of Insurance (or, where applicable,
during the Discovery Period), AXIS will pay on behalf of:
(a) any Insured Person all Loss, to the extent which the Company has not indemnified or agreed
to indemnify such Insured Person.
(b) the Company all Loss to the extent which the Company has indemnified or agreed to indemnify
the Insured Person.
However this extension 2.9 is available only when all of the following have been exhausted:
2.10
i.
indemnity by the Outside Entity;
ii.
cover under any other Directors & Officers policy of insurance, including any policies of
insurance held by the Outside Entity.
PECUNIARY PENALTIES
Coverage is extended for Pecuniary Penalties up to the Pecuniary Penalties Sub-Limit.
2.11
PERSONAL TAX LIABILITY
AXIS agrees to pay, up to the Personal Tax Liability Sub-Limit, on behalf of any Insured Person
his or her personal liability as a director of the Company for unpaid taxes of the Company where
such liability arises from the formal insolvency of the Company. This cover does not apply where the
conduct of the Insured Person is a wilful, deliberate or criminal breach of any law or regulation
relating to taxation of any kind.
2.12
POLLUTION
Notwithstanding Exclusion 4.5 (Pollution), AXIS will pay on behalf of:
(a) any Insured Person, to the extent which the Company has not indemnified or agreed to
indemnify such Insured Person all Loss for Claims based on, arising from, related or
attributable to Pollution; and
(b) the Company to the extent which the Company has indemnified or agreed to indemnify an
Insured Person all Defence Costs for Claims based on, arising from, related or attributable to
Pollution; and
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(c) the Company to the extent which the Company has indemnified or agreed to indemnify an
Insured Person all Loss for Claims made by a holder of Securities based on, arising from,
related or attributable to Pollution except to the extent such Claims are made in the United
States of America.
2.13
PUBLIC OFFERING
Notwithstanding exclusion 4.2 (Future Public Offering), AXIS will pay Loss in respect of any Claim
based on any public offering of any Securities during the Period of Insurance, provided:
(a) the total value of such public offering is equal to or less than 25% of the consolidated assets of
the Company referred to in item 1 of the Schedule; or
(b) where (a) does not apply AXIS is notified within 30 days of the first public announcement of such
offering, and the Insured agrees to any additional premium and amended terms and conditions
as determined by AXIS.
This extension is not available in respect of, and AXIS will not pay Loss arising from, any public
offering of Securities in the United States of America.
2.14
RETIRED OFFICERS
If the Policy is not renewed or replaced with any other policy providing directors and officers liability
cover, this Policy will extend to include as an Insured Person any Retired Officer but only in respect
of Claims made against or Inquiry Notices received by such Retired Officer during the period of 84
months immediately following the date of such non-renewal, provided such Claims or Inquiry
Notices relate to Wrongful Acts occurring before the Retired Officer ceased to act in the capacity of
an Insured Person.
This extension 2.14 will not apply in the event of a Discovery Period being taken up or if 2.15 is
operative.
2.15
RUN-OFF AFTER TRANSACTION
In the event of a Transaction, then on application by the Company no later than 30 days after the
effective date of such Transaction, AXIS will offer to extend cover to apply in respect of Claims
made or Inquiry Notices received within a period of up to 84 calendar months from the expiry date of
Period of Insurance but only for Claims or Inquiry Notices that arise from Wrongful Acts, or
conduct, occurring before the effective date of such Transaction and subject to acceptance by the
Company of the terms and conditions, exclusions and additional premiums specified in AXIS’ offer,
such additional premium being deemed fully earned at the commencement of the extension. This
extension shall be non-cancellable.
If cover is so extended, Extension 2.14 (Retired Officers), Extension 2.5 (Discovery Period) and
Extension 2.16 (Subsidiaries) are deleted from this Policy with effect from the effective date of such
Transaction.
2.16
SUBSIDIARIES
(a) If during the Period of Insurance the Company acquires or creates an entity so that it becomes
a Subsidiary that has total consolidated assets of less than 25% of the consolidated assets of
the Company specified in item 1 of the Schedule, then the Policy will automatically extend
cover in respect of the Subsidiary without notice to AXIS or additional premium being payable,
but only in respect of Wrongful Acts or conduct after such entity becomes a Subsidiary.
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(b) Any Subsidiary acquired or created during the Period of Insurance and not covered in clause
(a) above shall automatically be covered under the Policy for a period of 45 days from the date
of creation or acquisition. With the written agreement of AXIS and subject to any additional
premium and any amended terms and conditions required by AXIS, the Policy may be extended
to include such Subsidiary beyond 45 days, but only in respect of Wrongful Acts or conduct
after such entity becomes a Subsidiary.
(c) If the Company affects a sale or dissolution of a Subsidiary, the Policy will continue to include
such Subsidiary but only for Wrongful Acts or conduct prior to the effective date of sale or
dissolution.
(d) AXIS will only be liable for Loss in respect of Wrongful Acts or conduct whilst an entity is a
Subsidiary.
(e) This clause 2.16 does not operate to extend or provide cover to any Subsidiary whose
Securities are traded on a primary, secondary or other market in the United States of America or
its territories and/or possessions.
Section 3. Definitions
3.1
ADDITIONAL EXCESS LIMIT
Additional Excess Limit means the amount shown at item 4 of the Schedule.
3.2
AXIS
AXIS means AXIS Specialty Europe plc.
3.3
CLAIM
Claim means:
(a) any written communication to an Insured containing a demand for compensation or damages
made to; or
(b) any civil or arbitral proceeding against; or
(c) any criminal prosecution or proceeding against; or
(d) any administrative or regulatory proceeding against,
an Insured Person alleging a Wrongful Act;
(e)
any Extradition Proceeding.
For the purposes of insuring clause 1.3 only, Claim means Securities Claim.
3.4
COMPANY
Company means the entity or entities specified at item 1 of the Schedule and any Subsidiary.
3.5
CONTINUITY DATE
Continuity Date means the date specified at item 8 of the Schedule.
3.6
CRISIS
means any of the following events occurring during the Period of Insurance:
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(a) Any actual or threatened unauthorised intrusion into the Company’s computer systems for the
purpose of obtaining any confidential, private or secret information unique to any Company’s
business.
(b) Any directors, officers employees or customers on the premises of the Company experiencing
injury or death (or emotional trauma from witnessing an injury or death);
(c) Loss to the Company of a major contract or major customer;
(d) Any oil spills, major crashes, major fires, building collapse (other than by earthquake, windstorm
or other natural events) causing damage to any premises of the Company or other tangible
property;
(e) Recall of any Company product due to its potential to cause property damage or bodily injury to
others which potential comes as a result of its production, preparation, manufacture or packaging
by the Company;
(f)
In respect of a chairman, chief executive officer, chief financial officer or the holder of any
equivalent position in the Company, the sudden, unexpected death or disability, resignation
(other than in the course of retirement) or removal of such person; or
(g) Loss of intellectual property rights previously lawfully acquired by the Company for a patent,
trademark or copyright, other than by expiration,
but only where in the reasonable opinion of the Chief Executive Officer of the Company (and written
agreement of AXIS), the event has the potential to cause an imminent decrease of greater than 20%
of the consolidated annual revenues of the Company if left unmanaged .
Crisis does not include an industry-wide event that affects a number of entities in that industry, rather
than the Company specifically.
3.7
CRISIS COSTS
Crisis Costs means the reasonable fees, costs and expenses of any accredited external crisis
management firm retained by the Company with AXIS’ prior written consent (which shall not be
unreasonably delayed or withheld) to advise the Company in connection with a Crisis.
3.8
CRISIS COSTS SUB-LIMIT
Crisis Costs Sub-Limit means the amount specified at item 5.1 of the Schedule.
3.9
DEDUCTIBLE
Deductible means the amount specified at item 6 of the Schedule.
3.10
DEFENCE COSTS
Defence Costs means the reasonable legal and other professional fees, costs and expenses
incurred by an Insured with the prior written consent of AXIS, such consent not to be unreasonably
withheld, to defend, appeal, settle or investigate a Claim.
Defence Costs does not include regular or overtime wages, salaries or fees of any Insured Person.
3.11
DIRECTOR OR OFFICER
Director or Officer means any natural person who:
(a) is a past, present or future director, secretary, or officer of the Company;
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(b) is deemed by operation of Part 1.2 Division 1 of the Corporations Act 2001 (Cth) as amended to
be a director of the Company, or would be so deemed if that Act were to apply in the jurisdiction
of the Claim;
(c) is concerned in, or takes part in, the management of the Company, whether or not that person is
a director and regardless of the name given to the position;
(d) makes, or participates in making, decisions that affect the whole or a substantial part of the
business of the Company; or
(e) has the capacity to affect significantly the Company’s financial standing.
3.12
DISCOVERY PERIOD
Discovery Period means a period immediately after expiry of the Period of Insurance, during which
(subject to the provisions of Extension 2.5 (Discovery Period)) an Insured Person may notify Claims
(or the Company if in respect of Securities Claims) made or Inquiry Notices received, in that period
in respect of Wrongful Acts or conduct occurring, before expiry of the Period of Insurance.
3.13
EMERGENCY COSTS SUB-LIMIT
Emergency Costs Sub-Limit means the amount specified at item 5.2 of the Schedule.
3.14
EMPLOYEE
Employee means any person employed under a contract of service or apprenticeship but does not
mean a consultant, contractor or agent.
3.15
EMPLOYMENT WRONGFUL ACT
Employment Wrongful Act means any actual or alleged violation of employment law or regulation or
any other legal provision relating to the past, present or future employment of an individual with the
Company or Outside Entity.
3.16
EXTRADITION PROCEEDING
Extradition Proceeding means proceedings against an Insured Person following a request for
deportation, extradition or arrest warrant against such Insured Person (including an appeal or
separate proceedings to overturn an extradition order).
3.17
INQUIRY NOTICE
Inquiry Notice means:
(a) a written notice issued by any external official person or body having legal authority to conduct
an investigation into the business of:
i.
the Company; and/or
ii.
an Insured Person in their capacity as Insured person;
iii.
which requires an Insured Person to attend or produce documents or answer questions;
or
(b) a raid on, or site visit to, the Company by a regulator, government body or other external official
person or body having legal authority to carry out an investigation into the Company’s affairs
that involves the production, review, copying or seizure of any documents of an Insured Person
or an interview of an Insured Person.
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Inquiry Notice does not include a notice issued in respect of:
3.18
i.
an industry-wide hearing, investigation or inquiry;
ii.
any routine supervision, inspection or similar reviews of an Insured.
INQUIRY REPRESENTATION EXPENSES
Inquiry Representation Expenses means the reasonable legal and other professional fees, costs
and expenses incurred by an Insured Person with the prior written consent of AXIS, such consent
not to be unreasonably withheld, to respond to an Inquiry Notice.
Inquiry Representation Expenses does not include regular or overtime wages, salaries or fees of
any Insured.
3.19
INSURED
Insured means the Company and any Insured Person.
3.20
INSURED PERSON
Insured Person means a natural person who was, now is or becomes during the Period of
Insurance:
(a) a Director or Officer;
(b) an Employee;
(c) any lawful spouse or domestic partner of a Director or Officer, but only where the Claim arises
from the Wrongful Act of such Director or Officer;
(d) the legal representative of a Director or Officer in the event of the incapacity, insolvency or
bankruptcy of such Director or Officer;
(e) a secretary of the Company;
(f)
a contractor who acts as a member of a committee duly elected or appointed by resolution of the
board of the Company to perform specific directorial acts on behalf of the Company; or
(g) a lawyer employed by the Company who in their capacity as such, must comply with the
Sarbanes-Oxley Act 2002.
Insured Person does not include
3.21
i.
any receiver, receiver and manager, official manager, provisional liquidator, liquidator, or
administrator of the Company or trustee or other person administering a compromise or
scheme of arrangement between the Company and any other person; or
ii.
any company or other body corporate.
LIMIT OF LIABILITY
Limit of Liability means the amount specified at item 3 of the Schedule.
3.22
LOSS
Loss means all amounts which an Insured is legally liable to pay on account of a Claim or (for
insuring clause 1.4) Inquiry Notice including:
DOPOL 0712 – AXIS Specialty Australia
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(a) any damages (including punitive, exemplary or multiplied damages or aggravated damages),
compensation orders, interest and claimant’s costs and expenses ordered or awarded by any
court or tribunal
(b) Defence Costs
(c) Inquiry Representation Expenses (for insuring clause 1.4 only)
(d) Prosecution Costs
(e) Public Relations Expenses.
Loss does not mean:
3.23
i.
taxes, except as provided under Extension 2.10 (Pecuniary Penalties)
ii.
any liability which is uninsurable under the laws which apply to this Policy or the laws of
the jurisdiction where the relevant Claim is made
iii.
any amount incurred in testing for, monitoring, cleaning-up, removing, containing,
treating, detoxifying, neutralising, or assessing the effects of Pollutants, other than
Defence Costs, Inquiry Representation Expenses, Pecuniary Penalties,
Prosecution Costs, Public Relations Expenses or Crisis Costs
iv.
any liability to the extent coverage under this Policy would violate any applicable
economic or trade sanction law or regulations of the United Nations and/or the EU/EEA
and/or any other applicable national economic or trade sanction law or regulations.
OUTSIDE DIRECTORSHIP CLAIMS
Outside Directorship Claims means a Claim which arises from the Wrongful Act of an Insured
Person in his or her capacity as a director, officer or trustee of an Outside Entity where the Insured
Person hold that office with the Outside Entity at the request of the Company.
3.24
OUTSIDE ENTITY
Outside Entity means:
(a) any entity or organisation, but excluding any:
i.
Company;
ii.
financial institution;
iii.
entity whose securities are traded on a primary, secondary or other market in the United
States of America or its territories and/or possessions;
iv.
other entity that had negative net assets or negative net worth at the inception date of
this Policy;
v.
any entity to which a controller is appointed or is in liquidation, in provisional liquidation,
under administration, is being wound up or has had a receiver appointed to any part of its
property, otherwise being an insolvent under administration or insolvent (each as defined
in the Corporations Act 2001 (Cth) or its equivalent or being otherwise unable to pay its
debts when they fall due; or
(b) any entity agreed by endorsement to this Policy.
DOPOL 0712 – AXIS Specialty Australia
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3.25
PECUNIARY PENALTIES
Pecuniary Penalties means civil fines or pecuniary penalties unless AXIS is legally prohibited from
paying such fines or penalties in the jurisdiction in which the Claim is determined or under the laws of
this Policy.
3.26
PECUNIARY PENALTIES SUB-LIMIT
Pecuniary Penalties Sub-Limit means the amount specified at item 5.3 of the Schedule.
3.27
PERIOD OF INSURANCE
Period of Insurance means the period specified at item 2 of the Schedule.
3.28
PERSONAL TAX LIABILITY SUB-LIMIT
Personal Tax Liability Sub-Limit means the amount specified at item 5.4 of the Schedule.
3.29
POLICY
Policy means
(a) this document;
(b) any endorsement to this document;
(c) the Schedule; and
(d) the Proposal.
3.30
POLLUTANT
Pollutant means any contaminant, irritant or other matter or substance including but not limited to oil,
smoke, vapour, soot, asbestos, asbestos-containing materials, fumes, acids, alkalis, nuclear or
radioactive material, chemicals and waste. Waste includes materials to be recycled, reconditioned or
reclaimed.
3.31
POLLUTION
Pollution means the actual, alleged or threatened discharge, dispersal, seepage, migration, release or
escape of any Pollutant whether in a solid, liquid, gas, odour, noise, vibration, electromagnetic
radiation, ionising radiation, thermal or other form at any time.
3.32
PREMIUM
Premium means the amount of premium specified at item 7 of the Schedule.
3.33
PRIOR/PENDING DATE
Prior/Pending Date means the date specified at item 9 of the Schedule.
3.34
PROPOSAL
Proposal means the written proposal the Company made to AXIS, together with any other
information or documents accompanying it and incorporated by reference.
3.35
PROSECUTION COSTS
Prosecution Costs means the reasonable legal fees and related professional charges, arising from a
Claim first made or Inquiry Notice first received during the Period of Insurance and incurred
DOPOL 0712 – AXIS Specialty Australia
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personally by an Insured Person with the prior consent of AXIS, which consent will not be
unreasonably withheld, to bring legal proceedings to overturn an order:
(a) disqualifying an Insured Person from managing a corporation; or
(b) disqualifying or prohibiting an Insured Person from holding office as a Director or Officer; or
(c) imposing on an interim or interlocutory basis confiscation, or control, or suspension or freezing of
rights of ownership of real property or personal assets of the Insured Person; or
(d) imposing on an interim or interlocutory basis a charge over real property or personal assets of
the Insured Person; or
(e) by a court imposing a restriction of the Insured Person’s liberty; or
(f)
3.36
for deportation against an Insured Person following revocation of otherwise proper, current and
valid immigration status for any reason, other than the Insured Person’s conviction for a crime.
PUBLIC RELATIONS EXPENSES
Public Relations Expenses means the reasonable fees, costs and expenses incurred with AXIS'
prior written consent (not to be unreasonably withheld) by an Insured Person retaining a public
relations consultant to limit or prevent the effects of negative publicity in relation to that Insured
Person in connection with any Claim or Inquiry Notice.
3.37
RETIRED OFFICER
Retired Officer means any natural person (other than one who has been disqualified from holding
office as a company director) who voluntarily ceased to act in the capacity of a Director or Officer
before the expiry of the Period of Insurance.
3.38
SCHEDULE
Schedule means the schedule to this Policy.
3.39
SECURITIES
Securities means any of the following issued by the Company:
(a) bonds, debentures, evidence of indebtedness, notes, shares, stocks or other equity or debt
security; and
(b) certificates of interest or participation in, receipts for, warrants or other rights to subscribe to or
purchase, voting trust certificates relating to, certificates of deposits for, or other documentary
evidence of interest in any of the securities referred to in (a) above.
3.40
SECURITIES CLAIM
Securities Claim means:
(a) any written communication to the Company containing a demand for compensation or damages;
or
(b) any civil or arbitral proceeding; or
(c) any criminal prosecution or proceeding; or
(d) any administrative or regulatory proceeding,
DOPOL 0712 – AXIS Specialty Australia
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against the Company for or in respect of a Wrongful Act brought by a holder of Securities, whether
directly or on behalf of the Company.
3.41
SUBSIDIARY
Subsidiary means any entity where the Company before or at any time during the Period of
Insurance, directly or indirectly:
(a) controls the composition of the board of directors; and/or
(b) controls the voting power at any general meeting; and/or
(c) holds greater than 50% of the issued voting share capital; and/or
(d) exercises effective control of management, including of any joint venture.
3.42
TRANSACTION
Transaction means, any one of the following events:
(a) the Company consolidates with or merges into or sells all or a majority of its assets to any other
person or entity or group of persons or entities acting in concert, resulting in the extinction of the
Company as an independent legal entity; or
(b) any person or entity, or persons or entities acting in concert (other than a Subsidiary) becomes
entitled to cast, or control the casting of, more than 50% of the rights to vote at general meetings
of the Company or control the appointment of directors who are able to exercise a majority of
votes at meetings of the board of directors of the Company;
(c) the Company having a controller appointed or being in liquidation, in provisional liquidation,
under administration, being wound up or having had a receiver appointed to any part of its
property, otherwise being an insolvent under administration or insolvent (each as defined in the
Corporations Act 2001 (Cth) or its equivalent or being otherwise unable to pay its debts when
they fall due.
3.43
WRONGFUL ACT
Wrongful Act means any breach of duty, breach of trust, neglect, error, omission, misstatement,
misleading statement, Employment Wrongful Act or other act committed or attempted by an
Insured Person:
(a) for the purposes of clauses 2.9 and 3.23 (Outside Directorship Claims), in his or her capacity as
a director, officer or trustee of an Outside Entity;
(b) for all other purposes, in his or her capacity as a Director or Officer of the Company.
For the purposes of insuring clause 1.3 (Securities Claims) only :
(a) Wrongful Act means the violation by the Insured of any laws, rules or regulations regulating
Securities of the Company, the purchase or sale or offer to purchase or sell any Securities or
any registration or ownership of such Securities; and
(b) Wrongful Act does not include an Employment Wrongful Act alleging or in connection with
loss of, inadequate consideration for, or failure to receive Securities.
DOPOL 0712 – AXIS Specialty Australia
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Section 4. Exclusions
AXIS is not liable for Loss in connection with any Claim or Inquiry Notice:
4.1
DISHONESTY
based on, arising out of, related or attributable to any Insured Person or Company:
(a) committing any deliberately fraudulent or deliberately dishonest or malicious act; or
(b) gaining any personal profit or advantage to which the Insured Person or Company was not
entitled; or
(c) engaging in any conduct or contravention in respect of which a liability is the subject of a
prohibition in section 199B(1) of the Corporations Act 2001 (Cth).
This exclusion will only apply where the conduct in question has been established by a formal written
admission or final adjudication.
No fact pertaining to, conduct of or knowledge possessed by an Insured will be imputed to any other
Insured to determine the operation of this exclusion.
4.2
FUTURE PUBLIC OFFERING
based on, arising out of, related or attributable to any public offering of any Securities after the
commencement of the Period of Insurance.
4.3
KNOWN PRIOR MATTERS
based on, arising out of, related or attributable to any:
(a) disclosure to AXIS before the Period of Insurance (whether in the Proposal or in relation to any
prior or other AXIS policy), of any claim, inquiry, investigation, conduct, fact or matter regardless
of how it is expressed; or
(b) matters which could have been notified under any earlier policy; or
(c) facts or conduct which, as at the Prior/Pending Date, any Insured Person or the Company had
knowledge that such facts or conduct might give rise to a Claim, or Inquiry Notice or ought
reasonably to have been aware of that potential; or
(d) any proceeding, inquiry or similar process as at the Prior/Pending Date and of which any
Insured Person or the Company then had notice, or derived from the same or similar facts.
4.4
PERSONAL INJURY AND PROPERTY DAMAGE
based on, arising out of, related or attributable to any Claim for bodily injury, sickness, mental
anguish or emotional distress or disturbance, disease or death of any person howsoever caused, or
damage to or loss of or destruction of any tangible property including loss of use thereof.
This exclusion will not apply to mental anguish or emotional distress or disturbance in respect of an
Employment Wrongful Act.
4.5
POLLUTION
based on, arising out of, related or attributable to Pollution.
DOPOL 0712 – AXIS Specialty Australia
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4.6
WAR
based on, arising out of, related or attributable to war, invasion, acts of foreign enemies, hostilities
(whether war be declared or not), civil war, revolution, insurrection, military or usurped power or
confiscation or nationalisation or requisition or destruction of or damage to property by or under the
order of any government or public or local authority.
Section 5. Conditions
5.1
ALLOCATION
(a) If an Insured Person or the Company incurs Loss in respect of a Claim or Inquiry Notice
which includes both covered and uncovered matters or which is made against both covered and
non-covered parties then:
i.
the Insured Person, the Company and AXIS must use their best efforts to agree upon a
fair and equitable allocation of the proportion of the Loss covered by this Policy, having
regard to the relative legal and financial exposures and the relative benefits obtained in
any settlement;
ii.
only Loss incurred by an Insured Person and in the case of Defence Costs, directly
attributable to the defence of an Insured Person, is covered under this Policy. Loss
incurred by or attributable to the defence of the Company itself is not covered, unless
covered under Insuring Clause 1.3 (Securities Claims).
(b) If the parties are unable to agree on a fair and equitable allocation, then the determination is to
be referred to Senior Counsel (to be mutually agreed upon by the parties, or in the absence of
agreement, to be appointed by the President of the Bar Association, or equivalent organisation,
in the relevant jurisdiction), as an expert, to decide the issue. That decision shall be binding upon
AXIS and the Insured Person and/or the Company (as appropriate). Senior Counsel’s costs of
providing the determination will be paid by AXIS and such payments will not erode the Limit of
Liability.
(c) While the proportion of Defence Costs or Inquiry Representation Expenses to be advanced
under the Policy remains disputed and undetermined, AXIS will advance the proportion which it
considers represents a fair and equitable allocation. The allocation finally agreed or determined
will be applied retrospectively to any Defence Costs or Inquiry Representation Expenses
incurred prior to agreement or determination.
5.2
AUTHORISATION
The Company will act as agent on behalf of the Insured Persons in respect of all matters of any
nature relating to or affecting this Policy. Other than in respect of Extension 2.1 (Additional Excess
Limit for Directors and Officers) AXIS is entitled to treat the Company as having such authority for all
purposes connected with this Policy.
5.3
CANCELLATION
AXIS may only cancel this Policy by written notice given to the Company and in accordance with the
requirements of the Insurance Contracts Act 1984 (Cth).
Upon cancellation of this Policy by the Company, if there are no matters which have been notified to
AXIS, then AXIS will provide a refund of Premium calculated at its sole discretion but never more
than 75% of the Premium.
DOPOL 0712 – AXIS Specialty Australia
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5.4
CONFIDENTIALITY
The Company and the Insured Persons shall make all reasonable efforts not to disclose to any
person the existence of this Policy, its Limit of Liability, the nature of liability indemnified, or the
premium payable except:
(a) to state that the Company and its Directors or Officers have directors & officers insurance and
have paid a premium; or
(b) to professional advisors; or
(c) as required by law; or
(d) with the prior written consent of AXIS.
5.5
DEDUCTIBLE
A Deductible applies with respect to each and every Claim or Inquiry Notice. The Limit of Liability
is payable in excess of any applicable Deductible.
In the event that the Company and/or the relevant Subsidiary does not indemnify an Insured
Person, AXIS will advance the Loss covered by the Policy to such Insured Person. However, any
applicable Deductible then becomes immediately payable by the Company and/or the Subsidiary to
AXIS, unless the Company is insolvent or unable to pay such amount.
5.6
DEFENCE, CO-OPERATION AND NO ADMISSIONS
(a) It is the duty of the Insured to defend Claims and respond to any Inquiry Notice. However AXIS
has the right to effectively associate with the Insured Persons and the Company and fully
participate in respect of the conduct and management of any Claim or Inquiry Notice to which
this Policy may apply, and to be given the opportunity to consult with the Company and the
Insured Persons in relation to any proposed action that the Company or Insured Persons may
wish to take in relation to such Claim or Inquiry Notice.
(b) Notwithstanding clause 5.6 (a) above, AXIS has the right to defend any Claim brought against
an Insured by or on behalf of any:
i.
Company; or
ii.
Outside Entity,
unless the Claim is:

for contribution or indemnity if the Claim directly results from another Claim that would
otherwise be covered under this Policy; or

a shareholder derivative action brought or maintained on behalf of the Company or
Outside Entity without the encouragement or participation of an Insured or Outside
Entity unless legally compelled to do so; or

brought or maintained by a liquidator, receiver or administrative receiver, or similar
person under the laws of any other jurisdiction.
AXIS has no duty or obligation to communicate with any other Insured in relation to such Claim.
Any lawyers or other advisors the Insured Persons or the Company propose to appoint are to be
approved by AXIS prior to their appointment. Such approval will not be unreasonably withheld,
including the need for separate representation due to any conflicts between the Insured Persons, or
between the Insured Persons and the Company. The Company and the Insured Persons agree
DOPOL 0712 – AXIS Specialty Australia
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that, where more than one Insured Person and/or the Company is involved in a Claim or Inquiry
Notice, AXIS has no obligation to communicate with any other Insured Person or the Company in
relation to that Claim or Inquiry Notice.
The Company and the Insured Persons must not admit liability for or settle any Claim, or incur any
Defence Costs or Inquiry Representation Expenses or other Loss, without the written consent of
AXIS, such consent not to be unreasonably withheld. AXIS will not be liable for any Loss, settlement,
agreement or assumed obligation to which it has not consented in writing, other than as allowed
under Extension 2.4 (Crisis Cover).
The Company and the Insured Persons must assert all appropriate defences and cross claims for
contribution, indemnity or damages. The Company and the Insured Persons will, at their own cost,
co-operate fully with AXIS and/or its legal representative in relation to the conduct of any Claim, or
Inquiry Notice, and in relation to AXIS' investigation of the entitlement of the Insured Persons or the
Company to indemnity under this Policy.
The Company and the Insured Persons must do nothing which prejudices AXIS in respect of a
Claim or Inquiry Notice, including any subrogated or other rights of recovery.
5.7
ENTIRE AGREEMENT
The Company, Insured Person and AXIS agree that this Policy (including the Proposal) and any
written endorsements constitute the sole and entire agreement between the parties with respect to
this insurance. Any prior agreement between the parties is no longer valid.
5.8
FOREIGN CURRENCY SETTLEMENTS
All monetary amounts under this Policy are expressed and payable in Australian currency. If
judgement is rendered, settlement is expressed or other element of Loss under this Policy is stated
in a currency other than Australian dollars, payment under this Policy is to be made in Australian
dollars at the cash rate of exchange for the purchase of Australian dollars determined by the free
market rate of exchange as published in the currency conversion website oanda.com, or if no longer
current, a currency conversion website selected by AXIS on the date the final judgement is reached
or the amount of the settlement is agreed upon.
5.9
GST
Where AXIS makes a payment under this Policy for the acquisition of goods, services or other
supply, AXIS will reduce the amount of the payment by the amount of any input tax credit the
Company is, or will be, or would have been entitled to under A New Tax System (Goods and
Services Tax) Act 1999 (Cth) in relation to that acquisition, whether or not that acquisition is actually
made.
Where AXIS makes a payment under this Policy instead of payment for the acquisition of goods,
services or other supply, AXIS will reduce the amount of payment by the amount of any input tax
credit that the Company would have been entitled to under A New Tax System (Goods and Services
Tax Act) 1999 (Cth) had the payment been applied to acquire such goods, services or other supply.
5.10
INTERPRETATION
Words and expressions in the singular include the plural, and vice versa.
Where a term of this Policy is not specifically defined, the definition normally attributed to it by any
applicable law or business practice applies.
The word ‘includes’ means including, but not limited to.
DOPOL 0712 – AXIS Specialty Australia
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In this Policy capitalised and bolded words have special meaning and are defined.
This Policy, its Schedule and any endorsements are one contract in which, unless the context
otherwise requires:
(a) headings are descriptive only, not an aid to construction;
(b) singular includes the plural, and vice versa;
(c) the male includes the female and neuter;
(d) all references to specific legislation include amendments to and re-enactments of such
legislation; and
(e) references to positions, offices or titles include their equivalents in any jurisdiction in which a
covered Claim is made.
5.11
JURISDICTION AND GOVERNING LAW
Subject to the terms, conditions and exclusions of this Policy, this Policy provides worldwide cover.
Any issue relating to the construction, validity or operation of this Policy is to be determined in
accordance with the laws of the Commonwealth of Australia and the Australian State or Territory in
which the Policy is issued. Except as otherwise provided in this Policy, the parties submit to the
exclusive jurisdiction of the Australian courts.
5.12
LIMIT OF LIABILITY
Subject to Extension 2.1 (Additional Excess Limit for Directors and Officers), the Limit of Liability is
the total aggregate limit of AXIS' liability in respect of all Loss (including Defence Costs and Inquiry
Representation Expenses) for all Claims, Inquiry Notices and Crises for all Insureds. However,
the Limit of Liability is not inclusive of the Additional Excess Limit.
Any number of Claims against, or Inquiry Notices involving, Insured Persons or the Company
which arise out of or are attributable to or connected in any way with a single Wrongful Act or the
same conduct or a series of the same, related, interconnected or continuous Wrongful Acts or
conduct, is to constitute a single Claim or Inquiry Notice for the purpose of this Policy. Where there
is more than one such Claim or Inquiry Notice, all such Claims or Inquiry Notices will be deemed
first made when the earliest such Claim or Inquiry Notice was first made.
The applicable sub-limits shown in the Schedule (or in any endorsement) are in the aggregate sublimits for all applicable Claims and Inquiry Notices and all Loss, irrespective of the number of
Insured Persons involved, and are part of and not in addition to the Limit of Liability.
5.13
NON-ASSIGNMENT
This Policy and any rights pursuant to it must not be assigned without the written consent of AXIS.
5.14
NOTIFICATION
All Claims and Inquiry Notices must be reported to AXIS as soon as practicable and during the
Period of Insurance or Discovery Period if applicable.
Notice of any such Claim or Inquiry Notice must include full particulars including:
(a) full details of such Claim or Inquiry Notice;
(b) full details of any Wrongful Act alleged;
DOPOL 0712 – AXIS Specialty Australia
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(c) the parties involved; and
(d) a copy of any document commencing proceedings and any written Inquiry Notice.
AXIS must be advised, within a reasonable time of any notification, of any other insurance policy
which may apply to any Loss covered under this Policy.
5.15
OTHER INSURANCE AND NON-ACCUMULATION
This Policy will always apply excess over any other valid and collectible insurance specified in an
endorsement to this Policy, or any indemnification available to the Insured Person or Company
from any other party.
With respect to Extension 2.1 (Additional Excess Limit for Directors and Officers), the Additional
Excess Limit will apply excess over any other valid and collectible insurance and all other avenues of
indemnification.
With regard to cover provided under Extension 2.9 (Outside Directorship Claims) this Policy will cover
Loss specifically in excess of any indemnity or cover available to the Insured Person or the Outside
Entity in respect of that Loss under any other policy entered into by the respective Outside Entity or
under any indemnification available from that Outside Entity.
5.16
PRIORITY OF PAYMENTS
If payment of Loss is due under this Policy but the amount of such Loss in the aggregate exceeds or
may exceed the remaining available Limit of Liability for this Policy, AXIS is entitled:
(a) to first pay Loss for which cover is provided under insuring clause 1.1 (Directors and Officers)
and such Inquiry Representation Expenses for which cover is provided under insuring clause
1.4 (a) ( Inquiry Representation Expenses), then,
(b) to the extent of any remaining amount of the Limit of Liability available after payment under (a)
above, pay such Loss for which cover is provided under any other provision of this Policy.
Except as otherwise provided, AXIS may pay Loss as it becomes due without regard to the potential
for other or future claims under the Policy or future payment obligations under the Policy.
The Company and the Insured Persons agree that, where more than one Insured Person or the
Company is entitled to indemnity under the Policy, AXIS is entitled (but not obliged) to make
payments in respect of such claims under the Policy in the sequence in which the claims by the
Insured Persons or the Company are received by it, irrespective of whether such payments might
exhaust or erode the Limit of Liability.
5.17
SEVERABILITY OF PROPOSAL AND NON-AVOIDANCE
The Proposal will be construed as a separate proposal by each Insured. With respect to statements
and particulars in the Proposal, no statements made or information possessed by any Insured will be
imputed to any other Insured to determine whether cover is available for that other Insured.
Where there is any fraudulent non-disclosure or misrepresentation to AXIS, AXIS irrevocably waives
any right to avoid the Policy but the person or persons who engaged in, or was or were aware of, the
fraudulent non-disclosure or misrepresentation is or are not entitled to any indemnity under the
Policy.
Where there is any non-disclosure or misrepresentation which is not fraudulent, AXIS irrevocably
waives any right to avoid the Policy or to reduce its liability under the Policy in respect of any Claim
or Inquiry Notice arising from the matter not disclosed or misrepresented.
DOPOL 0712 – AXIS Specialty Australia
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With respect to Insuring Clause 1.3 (Securities Claims), only statements, information and knowledge
possessed by any finance director, chief executive officer, chief operating officer, chief legal officer,
managing director or chairman (or equivalent positions) of the Company seeking indemnity will be
imputed to that Company.
5.18
SUBROGATION
In the event of any payment under this Policy, AXIS is to be subrogated to all of the rights of recovery
of the Insured Persons and the Company in respect of such payment. In addition, the Insured
Persons and the Company must execute all and any documentation and do any other things, at their
own cost, as may be necessary to enable AXIS to bring an action or suit for such recovery. Any
recovery received will first be applied against the costs of the recovery proceeding, then any payment
made by AXIS and then to any balance remaining will be remitted first to the Insured Persons and
then to the Company up to the amount of any respective uninsured loss.
AXIS will not exercise its rights of subrogation against an Insured Person in connection with a Claim,
unless Exclusion 4.1(Dishonesty) has been established to apply to that Insured Person in respect of
that Claim.
5.19
TRANSACTIONS
The Company must give AXIS written notice of any Transaction as soon as practicable, but not later
than 30 days after the effective date of the Transaction.
This Policy does not provide cover for Claims based on, arising out of, related or attributable to any
Wrongful Act committed or allegedly committed, or a matter which is the subject of an Inquiry
Notice or Extradition Proceeding occurring or arising after the effective date of a Transaction.
DOPOL 0712 – AXIS Specialty Australia