(A Stock Insurance Company, herein called theInsurer)
1. | Pursuant to Section XIII, entitled “Cancellation/Nonrenewal/Conversion”, thisPolicyshall terminate at 12:01 a.m. (local time at the address shown in Item 1 of the Declarations) on07/10/2010. |
2. | Subject to all provisions set forth in Section III, this Discovery Period Activation shall only apply to the coverages identified below: |
Discovery | Discovery | |||||||||||||||||||
Limit of | Period | Period | ||||||||||||||||||
Insuring Agreement | Liability | Retention | Premium | Effective Date | Expiration Date | |||||||||||||||
Directors and Officers Liability | $ | 10,000,000 | $ | 50,000 | $ | 13,413 | 07/10/2010 | 07/10/2011 | ||||||||||||
Broad Form Company Liability | $ | 5,000,000 | $ | 50,000 | $ | 11,498 | 07/10/2010 | 07/10/2011 | ||||||||||||
Fiduciary Liability | $ | 5,000,000 | $ | 5,000 | $ | 655 | 07/10/2010 | 07/10/2011 | ||||||||||||
Privacy Liability | $ | 5,000,000 | $ | 50,000 | $ | 479 | 07/10/2010 | 07/10/2011 |
3. | If the Discovery Period is purchased as a result of theCompanybeing acquired or merged with another entity and the acquiring entity is legally permitted to indemnify theInsured Persons, regardless of whether actual indemnification is granted, the retention applicable to Insuring Agreement (B) shall apply to suchLoss, unless by reason of itsFinancial Impairmentthe acquiring entity does not make indemnification. | |
4. | Section IV (E) is deleted and replaced as follows: |
E. | Company, means the entity or entities set forth in Item 1 of the Declarations, anySubsidiarycreated or acquired as of the inception date set forth in Item 2 of the Declarations, and, the acquiring entity, but only forWrongful Actsinvolving the entity or entities set forth in Item 1 of the Declarations and only forWrongful Actsoccurring prior to the termination date of thisPolicy. |
5. | Section XII, entitled “Mergers, Acquisitions and Changes in Business Activities”, is deleted in its entirety. |
6. | The Discovery Period is noncancellable and the entire premium for this Endorsement shall be deemed to be fully earned at its commencement. |
/s/ Dane A. Shrallow | /s/ Glenn Renwick | |||||
Secretary | President |
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(A Stock Insurance Company, herein called theInsurer)
FOR FINANCIAL INSTITUTIONS
Item 1. | Named Insured(s): | Sonoma Valley Bancorp Sonoma Valley Bank | ||
Principal Office: | 202 West Napa Street, Sonoma, CA 95476 | |||
Item 2. | Policy Period: | From 12:01 a.m. 07/01/2008 To 12:01 a.m. 07/01/2011 (Local time at the address shown in Item 1) | ||
Item 3. | Total Policy Limit:The Total Policy Limit for eachPolicy Yearduring thePolicy Period for all Insuring Agreements, regardless of whether such Insuring Agreement is provided as a sublimit or separate limit, shall not exceed $20,000,000. | |||
Item 4. | Discovery Period:If the eligibility requirements are met and the Discovery Period is properly exercised, theInsuredshall pay 75% of the annual premium set forth in Item 10 (a). The length of the Discovery Period shall be 365 days. | |||
Item 5. | Notices:All notices required to be given to theInsurerunder thisPolicyshall be addressed to Progressive Casualty Insurance Company, Professional Liability Group, 5920 Landerbrook Drive, PLG-L21, Mayfield Heights, Ohio 44124. Telephone: 800-274-5222. |
Item 6. | Coverage(s) Provided:It is understood and agreed that coverage will not be provided under any Insuring Agreement unless a Limit of Liability, retention and premium for such Insuring Agreement are set forth below: |
Item 7. | Item 8. | Item 9. | Item 10. (a) | Item 10. (b) | ||||||||||||||||
“X” | ||||||||||||||||||||
Indicates | ||||||||||||||||||||
Separate | Limit of | Annual | Actual | |||||||||||||||||
Insuring Agreements | Limit | Liability | Retention | Premium | Premium | |||||||||||||||
Directors & Officers Liability Coverage | ||||||||||||||||||||
A. Insured Persons Liability | N/A | $ | 10,000,000 | $ | 0 | $ | 17,571 | $ | 50,077 | |||||||||||
B. Company Indemnification | $ | 50,000 | ||||||||||||||||||
Company Liability Coverage | ||||||||||||||||||||
C. Broad Form Company Liability * | X | $ | 5,000,000 | $ | 50,000 | $ | 15,061 | $ | 42,924 | |||||||||||
Additional Insuring Agreements | ||||||||||||||||||||
D. Lender Liability (Broad Form) | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
E. Lender Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
F. Depositor Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
G. Securities Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
H. IRA/Keogh Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
I. Fiduciary Liability | X | $ | 5,000,000 | $ | 5,000 | $ | 1,471 | $ | 4,192 | |||||||||||
J. Insurance Services Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
K. Brokerage/Advisory Services Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
L. Trust Department Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
M. Employment Practices Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
N. Bankers Professional Liability | N/A | N/A | N/A | N/A | N/A | |||||||||||||||
O. Privacy Liability | N/A | $ | 5,000,000 | $ | 50,000 | $ | 627 | $ | 1,787 | |||||||||||
P. Privacy Liability Mitigation | N/A | $ | 100,000 | $ | 15,000 | $ | 251 | $ | 715 |
* | The Broad Form Company Liability Insuring Agreement includes coverage for Broad Form Lender Liability, Depositor Liability, Securities Liability, and IRA/Keogh Liability coverage. If a different Limit of Liability or retention is desired for any of these coverages, coverage will be excluded under Insuring Agreement (C) and a separate Insuring Agreement will be provided. |
Item 11. | IRA/Keogh Liability Retention:If IRA/Keogh coverage is provided pursuant to Insuring Agreement H, coverage shall be subject to the retention set forth in Item 9 above. If IRA/Keogh coverage is provided pursuant to: 1) Section IV (X)(2) of thePolicy;2) Insuring Agreement C; or 3) Insuring Agreement N, the retention for IRA/KeoghClaimsshall be $5,000. |
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Item 12. | Prior/Pending Litigation Dates:See endorsement #2811 for details. |
Item 13. | Endorsements:ThisPolicyis subject to the terms of the following Endorsements attached hereto and incorporated herein by reference at the effective date of thisPolicyand to all other Endorsements attached hereto after the effective date of thisPolicy:2244, 2811, 4074, 5093, 5105, TRIA-01, 8790D (CA), 2844 |
/s/ Dane A. Shrallow | ||||
Company Officer or Authorized Representative | ||||
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(A Stock Insurance Company, herein called theInsurer)
FOR FINANCIAL INSTITUTIONS
A. | INSURED PERSONS LIABILITY COVERAGE |
B. | COMPANY INDEMNIFICATION COVERAGE |
C. | BROAD FORM COMPANY LIABILITY COVERAGE |
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A. | ESTATES, HEIRS AND MARITAL ESTATE LIABILITY |
(1) | the estates, heirs, legal representatives or assigns of anyInsured Personswho are deceased, incompetent, insolvent or bankrupt; provided that suchClaimswould have been covered by thisPolicyin the absence of such death, incompetency, insolvency or bankruptcy; and |
(2) | the lawful spouse of anInsured Personsolely by reason of such person’s status as a spouse such spouse’s ownership interest in property which the claimant seeks as recovery for an allegedWrongful Actof suchInsured Person. |
B. | NOT-FOR-PROFIT DIRECTORSHIPS |
A. | If theCompanyor theInsurercancels or nonrenews thisPolicyor any Insuring Agreement, or if thePolicyconverts subject to Section XIII (C)(1)(b), theInsuredshall have the right to purchase an optional extended reporting period (herein called the Discovery Period) for the period set forth in Item 4 of the Declarations. It is understood that if theInsurercancels thisPolicydue to nonpayment of premium, theInsuredshall not be entitled to the Discovery Period. |
B. | The Discovery Period is not an extension of coverage, but rather an extended reporting period forClaimsfirst made during the Discovery Period resulting fromWrongful Actsthat occurred prior to the effective date of cancellation, nonrenewal or conversion and otherwise covered under thisPolicy.Notice of facts and circumstances that may give rise to aClaim,pursuant to Section X (B), must be given during thePolicy Periodand shall not be effective if given during the Discovery Period. |
C. | If theInsuredelects to purchase the Discovery Period, the premium will be calculated by multiplying the annual premium set forth in Item 10 (a) of the Declarations by the percentage set forth in Item 4 of the Declarations. The Discovery Period is noncancellable and the entire premium shall be deemed fully earned at its commencement. |
D. | TheInsureds’right to purchase the Discovery Period shall lapse unless theInsurerreceives written notice of theInsureds’election and full payment of the additional premium due within sixty (60) days after the effective date of such cancellation, nonrenewal or conversion. |
E. | The Limit of Liability with respect toClaimsmade during the Discovery Period shall be part of and not in addition to the Limit of Liability set forth in Item 8 of the Declarations, for each respective Insuring Agreement, for allClaimsmade during the immediately precedingPolicy Year.AnyClaimmade during the Discovery Period shall be deemed to be made during thePolicy Yearimmediately preceding the Discovery Period. |
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F. | The offer by theInsurerand acceptance by theInsuredof continued coverage under terms, conditions, Limits of Liability, retentions, or premiums different from those applicable to the expiringPolicyshall not constitute a refusal to renew and shall not entitle anyInsured to exercise the Discovery Period. |
A. | Application means all applications, attachments and materials submitted to theInsurerfor thisPolicy or anyPolicyof which thisPolicyis a direct or indirect renewal or replacement. All such applications, attachments and materials are deemed attached to and incorporated into thisPolicy,as if physically attached. |
B. | Brokerage/Advisory Services means the purchase or sale of securities, mutual funds, annuities, variable annuities, life, accident or health insurance which have been approved by theCompanyto be transacted through aRegistered Representative of theCompanyor a third party service provider pursuant to a contract between theCompanyand the service provider. In connection with the foregoing activities,Brokerage/Advisory Servicesalso includes the provision of: |
(1) | economic advice, financial advice or investment advisory services; and |
(2) | financial planning advice including without limitation any of the following activities in conjunction therewith: the preparation of financial plans or personal financial statements, and the giving of advice with regard to insurance, savings, investments, retirement planning or taxes. |
C. | Claim, either in singular or plural, means any of the following instituted against anInsured Personor against theCompany,but only to the extent coverage is granted to theCompany: |
(1) | a written or oral demand for monetary damages or non-monetary relief; | ||
(2) | a civil proceeding commenced by the service of a complaint or similar pleading; | ||
(3) | a criminal proceeding commenced by a return of an indictment; | ||
(4) | an arbitration or mediation proceeding in which monetary damages are sought; | ||
(5) | a formal administrative or regulatory proceeding commenced by the filing of a notice of charges, formal investigative order or similar document; or | ||
(6) | a written request to toll or waive a statute of limitations, relating to a potentialClaimdescribed in Items (1) through (5) above, |
D. | COBRA means the Consolidated Omnibus Budget Reconciliation Act, as amended. |
E. | Company means the entity or entities set forth in Item 1 of the Declarations, anySubsidiarycreated or acquired as of the inception date set forth in Item 2 of the Declarations, and, subject to Section XII (B), any bankSubsidiarycreated or acquired during thePolicy Period. |
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F. | Defense Costs means reasonable and necessary legal fees and expenses incurred in defending or investigating anyClaimand the cost of appeal, attachment or similar bonds.Defense Costsshall not include salaries, wages, overhead, or benefit expenses incurred by theInsured. |
G. | ERISA means the Employment Retirement Income Security Act of 1974, as amended. |
H. | Employee, either in singular or plural, means any natural person, other than a Leased Employee or Independent Contractor, who is a past, present or future employee of theCompanyincluding any part-time, seasonal or temporary employee, acting in their capacity as such. | |
I. | Financial Impairment means the status of theCompanyresulting from: |
(1) | the appointment by any state or federal official, regulatory agency or court of any receiver, conservator, liquidator, trustee, rehabilitator or similar official to take control of, supervise, manage, or liquidate theCompanyor anySubsidiary;or | ||
(2) | theCompanyor anySubsidiarybecoming a debtor in possession. |
J. | Insured, either in singular or plural, means theInsured Personsor theCompany. |
K. | Insured Person, either in singular or plural, means any past, present or future director, member of the board of trustees, officer,Employee,honorary or advisory director, or honorary or advisory member of the board of trustees of theCompany. |
L. | Insurance Services means any of the following services performed by anInsuredas insurance agent, insurance broker, insurance consultant or insurance managing general agent: |
(1) | sale and placement of insurance; | ||
(2) | identification, analysis and evaluation of a client’s insurance needs, including work performed for prospective clients; | ||
(3) | appraisal of property and inspections for insurance purposes; | ||
(4) | adjustment of claims on behalf of insurance companies, including loss payments; or | ||
(5) | arrangement of premium financing for clients. |
M. | Interrelated Wrongful Acts meansWrongful Actswhich have as a common nexus any fact, circumstance, situation, event, transaction or series of related facts, circumstances, situations, events or transactions. |
N. | Loss meansDefense Costsand any amount which theInsured Personsor theCompany(if applicable) are legally obligated to pay resulting from aClaim,including damages, judgments, settlements, pre- and post-judgment interest, punitive or exemplary damages and the multiple portion of any multiplied damage award where insurable by law.Lossshall not include: |
(1) | taxes; | ||
(2) | criminal or civil fines or penalties imposed by law; | ||
(3) | any unpaid, unrecoverable or outstanding loan, lease or extension of credit to any customer or any forgiveness of debt; |
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(4) | costs to comply with any non-monetary or injunctive relief of any kind or any agreement to provide such relief, including but not limited to any damages, costs or expenses incurred in making an accommodation for any disabled person pursuant to the Americans with Disabilities Act or any similar federal, state or local laws, or in complying with any other federal, state or local laws of any kind; |
(5) | other thanDefense Costs,that portion ofLossthat theCompanyis obligated to pay pursuant to any express written or oral contract or agreement existing prior to the date theClaimis made; provided, however, if it is established in fact that suchClaim involves an intentional breach of contract, theInsuredagrees to reimburse theInsurer for suchDefense Costs; |
(6) | the depreciation (or failure to appreciate) in value of any investment product, including securities, commodities, currencies, options or futures due to market fluctuation unrelated to anyWrongful Act; |
(7) | any restitution, disgorgement, or payment of similar sums including but not limited to the return of fees, commissions or charges for theCompany’sservices; or | ||
(8) | any matters which are uninsurable under the law pursuant to which thisPolicyshall be construed. |
O. | Loss Information means information on open, closed and potentialClaims,including date, description, and payment amounts, if any. |
P. | Named Insured means the first named entity set forth of Item 1 of the Declarations. |
Q. | Policy means collectively, the Declarations, theApplication,this policy form and any Endorsements attached hereto. |
R. | Policy Period means the period from the inception date set forth in Item 2 of the Declarations to the expiration date set forth in Item 2 of the Declarations or any earlier termination date. |
S. | Policy Year means the period of one year following the effective date and hour of thisPolicyor any anniversary thereof, or if the time between the effective date and termination of thePolicy Periodis less than one year, such lesser period. Any extension of thePolicy Periodshall not result in an increase or reinstatement of the Limit of Liability. If thePolicy Periodis extended beyond its original expiration date, the period of the extension shall be a part of thePolicy Year,which would have ended on the original expiration date. |
T. | Pollutants include but are not limited to any solid, liquid, gaseous or thermal organism, irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, hazardous substances, nuclear materials and waste. Waste includes materials to be recycled, reconditioned or reclaimed. |
U. | Registered Representative means an individual who is: |
(1) | registered with the National Association of Securities Dealers; or | ||
(2) | a life insurance agent or insurance broker who is licensed by the appropriate regulatory authorities. |
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V. | Subsidiary means: |
(1) | any entity in which theCompanyowns, directly or through one or more subsidiaries, more than fifty percent (50%) of the outstanding securities representing the present right to vote for the election of directors; |
(2) | any limited liability company in which theCompany,or one or more of its subsidiaries, has the right to appoint or designate fifty percent (50%) or more of such limited liability company’s managers; or |
(3) | any joint venture in which theCompany,or one or more of its subsidiaries, has the right to elect, appoint or designate more than fifty percent (50%) of such entity’s directors, trustees or other equivalent executives. |
W. | Trust Department Services means any of the following services performed by anInsured through a Trust Department or TrustSubsidiaryof theCompany: |
(1) | administrator, custodian or trustee under any individual retirement account (IRA) or H.R. 10 Plan (Keogh Plan); |
(2) | executor, administrator, or personal representative of estates, administrator of guardianships, trustee under personal or corporate trust agreements, or conservator of any person; |
(3) | trustee under a pension, profit sharing, health and welfare or any other employee benefit plan or trust, other than an employee benefit plan or trust sponsored or established by theCompanyfor its ownEmployees; |
(4) | custodian, depository or managing agent for securities or real property, manager of any personal property owned by others, attorney-in-fact, interest or dividend disbursing agent, transfer or paying agent, redemption or subscriptions agent, fiscal agent, tax withholding agent, registrar securities, agent for voting securities, sinking fund agent, escrow agent or trustee under a corporate bond indenture; or | ||
(5) | trustee exercising any other trust or fiduciary powers permitted by law. |
X. | Wrongful Act, either in singular or plural, means any actual or alleged act, error, omission, misstatement, misleading statement, neglect or breach of duty by: |
(1) | anyInsured Personin the discharge of their duties while acting solely in the capacity as such or while acting solely in the capacity as director, officer, or member of the board of trustees of a not- for-profit entity pursuant to Section II (B); |
(2) | anyInsured Personin the discharge of their duties while acting solely in the capacity as administrator, custodian or trustee under any individual retirement account (IRA) or H.R. 10 Plan (Keogh Plan) outside of the scope of any Trust Department or TrustSubsidiaryof theCompany;or |
(3) | theCompanyor any person or entity for which theCompanyis legally responsible, but only to the extent that coverage is granted to theCompanyby Insuring Agreement made a part of thisPolicy. |
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A. | Bodily/Personal Injury and Property Damage Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimfor actual or alleged bodily injury, sickness, disease, or death of any person, damage to or destruction of any tangible or intangible property including loss of use thereof, wrongful entry, eviction, false arrest, false imprisonment, malicious prosecution, abuse of process, assault, battery, mental anguish, emotional distress, loss of consortium, invasion of privacy, defamation, false light, libel, or slander. |
B. | Brokerage/Advisory Services Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving the rendering or failing to renderBrokerage/Advisory Services. |
C. | Collusion Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimby any security holder of theCompany,whether directly or derivatively, unless such security holder bringing suchClaimis acting independently of, and totally without the solicitation, assistance, participation, or intervention of anyInsuredor any affiliate of theCompany. |
D. | Employment Practices Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving: |
(1) | wrongful termination, employment-related discrimination or harassment; |
(2) | employment-related misrepresentation or retaliation, humiliation, wrongful failure to employ or promote, wrongful deprivation of career opportunity, wrongful demotion, negligent evaluation, negligent hiring, negligent retention, wrongful discipline; or |
(3) | any other violation of any statutory or common law relating to employment. |
E. | ERISA Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving any pension, profit sharing or employee benefit program established in whole or in part for the benefit ofEmployeesof theCompany,including without limitation, any violation ofERISAor similar provisions of any federal, state or local statutory law, common law or administrative law. |
F. | Foreclosed Property Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving the ownership, operation, management or control of any entity or property acquired by theCompanyas security or collateral for any loan, lease or extension of credit. This Exclusion shall not apply toClaimsresulting fromWrongful Actsin connection with the foreclosure process or the ownership, operation, management or control of any one to four family residential property. |
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G. | Fraud/Violation of Law Exclusion —TheInsurershall not be liable to make any payment forLoss,other thanDefense Costs,in connection with anyClaimarising out of or in any way involving any fraudulent, dishonest or criminal act or any willful violation of any civil or criminal statute, regulation or law by theInsured,provided a final judgment or final adjudication establishes such fraudulent, dishone or criminal act or such willful violation of statute, regulation or law. |
H. | Illegal Profit/Payment Exclusion —TheInsurershall not be liable to make any payment forLoss,other thanDefense Costs,in connection with anyClaimarising out of or in any way involving: |
(1) | anyInsuredgaining, in fact, any profit, remuneration or financial advantage to which theInsuredwas not legally entitled; |
(2) | payment by theCompanyof inadequate or excessive consideration in connection with its purchase ofCompanysecurities; or | ||
(3) | conflicts of interest, engaging in self-dealing, or acting in bad faith. |
I. | Insurance Services Exclusion —The Insurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving the rendering or failing to renderInsurance Services(other thanInsurance Services relating to credit life or disability insurance incidental to the issuance of a loan). |
J. | Insured vs. Insured Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimby, on behalf of, or at the behest of theCompany,any affiliate of theCompanyor anyInsured Personin any capacity except where suchClaimis brought and maintained: |
(1) | in the form of a cross-claim or third-party claim for contribution or indemnity which is part of and results directly from aClaimwhich is not otherwise excluded by the terms of thePolicy; |
(2) | by anInsured Personsolely as a customer of theCompany;provided suchClaimis brought independently of, and totally without the solicitation, assistance, participation, or intervention of any otherInsured;or |
(3) | by a security holder of theCompanyas a derivative action on behalf of theCompanyor such affiliate; provided suchClaimis brought independently of, and totally without the solicitation, assistance, participation, or intervention of anyInsuredor any affiliate of theCompany. |
K. | Pollution Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimarising out of or in any way involving: |
(1) | the actual, alleged or threatened discharge, disposal, migration, dispersal, release or escape ofPollutants;or |
(2) | any direction, order or request to test for, monitor, remediate, clean up, remove, contain, treat, detoxify or neutralizePollutants,or to pay for or contribute to the costs of undertaking such actions, |
includingClaimsalleging damage to theCompanyor its security holders. |
L. | Prior Notice Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimarising out of or in any way involving anyWrongful Actor anyWrongful Actwhich is part of anyInterrelated Wrongful Acts,or any fact, circumstance or situation, which has been the subject of any notice given to any carrier other than theInsurerunder any similar insurance policy providing protection for anyInsured. |
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M. | Prior and Pending Litigation Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving any litigation against anyInsuredinitiated prior to the respective date set forth in Item 12 of the Declarations, or arising out of or in any way involving the same or substantially the same fact, circumstance or situation underlying or alleged in such prior litigation. |
N. | Short-Swing Profit Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimarising out of or in any way involving an accounting of profits made from the purchase and sale or sale and purchase ofCompanysecurities by theInsured Personswithin the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of any state statutory law or common law. |
O. | Subsidiary Wrongful Acts Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimagainst anySubsidiaryor itsInsured Persons acting in the capacity of director, member of the board of trustees, officer orEmployeeof suchSubsidiaryfor anyWrongful ActorInterrelated Wrongful Actsactually or allegedly committed in whole or in part at any time when the entity was not aSubsidiaryexcept as provided in Section XIII (C)(3). |
P. | Trust Department Services Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimarising out of or in any way involving the rendering or failing to renderTrust Department Services. |
A. | Bonding/Insurance Company Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimthat is brought directly or indirectly by or for the benefit of any insurance carrier or bond carrier of theCompany,or any affiliate of theCompany,regardless in whose name suchClaimis actually made. |
B. | Contract Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving the assumption of any liability to defend, indemnify, or hold harmless any person or entity, other than anInsured Person,under any written contract or agreement, unless such liability would be imposed regardless of the existence of such contract or agreement. |
C. | Fee Dispute Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimarising out of or in any way involving disputes over fees, commissions, or charges for theCompany’sservices. |
D. | Insolvency Exclusion —TheInsurershall not be liable to make any payment forLoss in connection with anyClaimarising out of or in any way involving the: |
(1) | Financial Impairmentof theCompanyor anySubsidiary; |
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(2) | insolvency, receivership, liquidation or bankruptcy of any insurance company theInsuredrepresents; or |
(3) | bankruptcy of or suspension of payments by any bank, banking firm, broker or dealer in securities or commodities or any other financial institution. |
E. | Internet Services Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving theCompany providing: |
(1) | transactional services through the transmission of data to or from an Internet website or private computer network owned, operated or controlled by theCompany; | ||
(2) | website development, software development or network security services to third parties; or |
(3) | hosting services or services as an Internet Service Provider, Internet Access Provider, Application Service Provider or provider of like services. |
F. | Investment Banking/Securities Underwriting Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving: |
(1) | underwriting, syndicating or promoting any security (except loan syndications or equity or debt securities issued by theCompany); |
(2) | rendering of advice or recommendations regarding any actual or attempted or threatened merger, acquisition, divestiture, tender offer, proxy contest, leveraged buy-out, going private transaction, bankruptcy, reorganization, restructuring, recapitalization, spin-off, offering of securities, dissolution or sale of all or substantially all of the assets or stock of an entity; |
(3) | rendering of any fairness opinion; | ||
(4) | proprietary trading; | ||
(5) | any acquisition or sale of securities of theCompanyfor its own account; or | ||
(6) | any other investment banking activity; |
G. | Legal Lending Limit Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving any extension of credit which was, at the time of its making, in excess of the legal lending limit of theCompany. |
H. | Notary Services Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving the notarization or certification of a signature of a person unless that person or someone claiming to be that person physically appeared before theInsuredat the time of notarization or certification. |
I. | Receivership Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving theCompany’s function or activity as receiver, trustee in bankruptcy, or assignee for the benefit of creditors. |
J. | Safe Deposit Operations Exclusion — TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving the safe deposit box operations of theCompany. |
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A. | LIMIT OF LIABILITY |
(1) | TheInsurer’smaximum Limit of Liability under thisPolicyfor all Insuring Agreements combined shall not exceed the Total Policy Limit set forth in Item 3 of the Declarations regardless of whether such Insuring Agreement is provided as a sublimit or a separate limit. |
(2) | Unless otherwise specified in Item 7 of the Declarations, theInsurer’smaximum Limit of Liability for each Insuring Agreement for allLossresulting from allClaims first made for eachPolicy Yearduring thePolicy Periodshall be a part of and not in addition to the D&O Limit of Liability set forth in Item 8 of the Declarations. |
(3) | If aClaimagainst theCompanyis subject to more than one Insuring Agreement, theInsurer’s maximum Limit of Liability for suchClaimshall not exceed the highest Limit of Liability provided by any Insuring Agreement providing coverage to theCompany; provided, however, that this provision shall not apply where a separate Limit of Liability is set forth in Item 7 of the Declarations. |
(4) | TheInsureragrees to provide, without additional charge, a one-time reinstatement of the Limit of Liability under Insuring Agreement (C) to the extent such Limit of Liability is diminished by paidLossresulting from IRA/KeoghClaimspursuant to Section IV(X)(2). Should an IRA/Keogh LiabilityClaimexhaust the Limit of Liability under Insuring Agreement (C), the Limit of Liability shall only be reinstated for subsequentClaims.This reinstatement shall not serve to increase the Limit of Liability for any singleClaim. |
B. | RETENTION AND INDEMNIFICATION |
(1) | TheInsurershall only pay for coveredLoss,including coveredDefense Costs,in excess of the applicable retention for eachClaimas set forth in Item 9 of the Declarations. No retention shall apply toLossincurred by theInsured Personsfor which theCompanyis: |
(a) | not permitted or required by law to advanceDefense Costsor indemnify theInsured Persons;or |
(b) | permitted or required to advanceDefense Costsor indemnify theInsured Personsbut does not do so by reason ofFinancial Impairment. |
(2) | If theCompanyis legally permitted or required to advanceDefense Costs or indemnify theInsured PersonsforLoss,regardless of whether actual indemnification or advancement is granted, the retention applicable to Insuring Agreement (B) shall apply to suchLoss, unless theCompany,solely by reason of itsFinancial Impairment,does not make indemnification or advancement. |
(3) | One retention shall apply to coveredLossresulting from eachClaim.IfLoss from aClaimis covered under more than one Insuring Agreement, the applicable retention shall be applied separately to the part of theLosscovered by each Insuring Agreement, and the sum of such retentions shall be the retention applicable to theClaim.If a single retention applies to multipleInsureds,the retention shall be prorated among the applicableInsureds.The total retention shall in no event exceed the largest of such applicable retentions set forth in Item 9 of the Declarations. |
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(4) | Except for the payment ofDefense Costs,theInsurershall pay or reimburse one hundred percent (100%) of coveredLoss,in excess of the applicable retention, upon final disposition of theClaim. |
C. | SINGLE CLAIM |
A. | NON-EROSION OF INSURING AGREEMENT(A) |
(1) | If the Limit of Liability for Insuring Agreement (C) or any Insuring Agreement extending coverage to theCompanyis a sublimit of the D&O Policy, the Limit of Liability applicable to Insuring Agreement (A) shall not be reduced by the payment ofLossresulting fromClaimscovered by such Insuring Agreement. If a separate Limit of Liability is set forth in Item 7 of the Declarations this provision shall not apply. |
(2) | If the retention applicable to Insuring Agreement (B) applies toLosspursuant to Section VII (B)(2), regardless of whether actual indemnification is granted, suchLoss shall be deemed to be paid under Insuring Agreement (B). |
B. | ORDER OF PAYMENTS |
(1) | In the event one or moreClaimsresult in a potential or actualLosswhich, in aggregate, in theInsurer’sjudgment could reasonably exceed the Total Policy Limit set forth in Item 3 of the Declarations, then theInsurershall pay first for suchLossfor which coverage is provided under Insuring Agreement (A). |
(2) | With respect to whatever remaining amount of the Limit of Liability is available after payment of suchLoss,theInsurershall pay suchLossfor which coverage is provided under Insuring Agreement (B), then pay suchLossfor which coverage is provided to theCompanyunder Insuring Agreement (C) or any Insuring Agreement extending coverage to theCompany. |
(3) | TheFinancial Impairmentof theCompanyor anyInsured Personshall not relieve theInsurerof any of its obligations to prioritize payment of coveredLossunder thisPolicypursuant to this Subsection. |
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A. | NO DUTY TO DEFEND |
(1) | Amounts incurred asDefense Costswill reduce and shall be part of and not in addition to the applicable Limit of Liability. It shall be the duty of theInsuredand not the duty of theInsurerto defendClaims. TheInsuredshall only retain counsel that is mutually agreed upon with theInsurer,consent for which shall not be unreasonably withheld. |
(2) | TheInsuredshall not incurDefense Costs,admit liability for, settle, or offer to settle anyClaimwithout theInsurer’sprior written consent, which shall not be unreasonably withheld. TheInsurershall be entitled to full information and all particulars it may request in order to reach a decision as to such consent. |
(3) | TheInsurershall have the right but not the duty to effectively associate with theInsuredin the settlement and defense of anyClaimthat appears reasonably likely to involve theInsurer.Such association shall include, but not be limited to, participation in the formation of litigation strategy, review of pleadings and other pertinent papers prior to filing, and participation in the settlement negotiations. |
B. | ADVANCEMENT OF DEFENSE COSTS |
(1) | Subject to Section XIV, theInsurer,if requested by theInsured,shall advance coveredDefense Costson a current basis, except when advancement ofDefense Costsis prohibited by law or regulation. TheInsuredshall repay any advancedDefense Coststo theInsurerin the event it is established that theInsurerhas no liability under thisPolicyfor suchDefense Costs. |
(2) | Prior to advancing or indemnifyingDefense Costs,theInsurershall be entitled to sufficient information and documentation as to the amount and purpose of anyDefense Coststo enable it to evaluate the reasonableness and necessity of suchDefenseCosts and to verify that suchDefense Costswere actually incurred. |
A. | TheInsured,as a condition precedent to any rights under thisPolicy,shall give theInsurer written notice, as soon as practicable, of anyClaimfirst made during thePolicy Periodor the Discovery Period, but in no event later than sixty (60) days after theClaimis first made. |
B. | If during thePolicy Period,theInsuredfirst becomes aware of circumstances which may give rise to aClaim,and gives written notice to theInsurerof the circumstances and reasons for anticipating aClaim,then anyClaimsubsequently made shall be deemed to have been first made during thePolicy Yearin which notice was first given to theInsurer.As a condition precedent to any coverage hereunder for suchClaims,such notice must be specific and contain full particulars as to the names, dates, and persons involved in the underlying facts potentially giving rise to theClaim,as well as the identity of the potential plaintiffs and the causes of action to be asserted. |
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C. | All notices required to be given to theInsurerunder thisPolicyshall be given to theInsurerat the address set forth in Item 5 of the Declarations. |
A. | If during thePolicy Period,theCompany: |
(1) | acquires, merges with or creates any non-bank entity; |
(2) | acquires or merges with another entity or creates or acquires aSubsidiary, whose assets equal or exceed twenty-five percent (25%) of theCompany’stotal assets at the time of the transaction; |
(3) | creates or acquires a financial services holding company or converts from a bank holding company to a financial services holding company; | ||
(4) | converts from a mutual company to a stock company; or | ||
(5) | changes or converts its corporate structure from a C corporation to an S corporation; |
(a) | theCompanyproviding written notice and any requested information regarding the transaction to theInsureras soon as practicable; | ||
(b) | theInsurer,at its sole discretion, agreeing in writing to provide such coverage; and |
(c) | theCompanyaccepting any special terms, conditions and/or Exclusions and paying any additional premium required by theInsurer. |
B. | If during thePolicy Period, theCompanycreates or acquires a bank or bankSubsidiary,whose assets are less than twenty-five percent (25%) of theCompany’stotal assets at the time of the transaction, theInsureragrees to provide automatic coverage for such bank, bankSubsidiaryand itsInsured Personsfor the remainder of thePolicy Period. |
C. | Any coverage otherwise afforded under thisPolicyfor aLossin any way involving theCompany,anySubsidiary,or any acquired, merged or created entity or itsInsured Persons shall not apply to anyClaimarising out of or directly or indirectly resulting from: |
(1) | anyWrongful Actor any fact, circumstance or situation committed or allegedly committed prior to the effective date of such acquisition, merger or creation; or |
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(2) | any otherWrongful Act,which, together with aWrongful Actcommitted or allegedly committed prior to effective date of such acquisition, merger or creation constituteInterrelated Wrongful Acts. |
A. | NAMED INSURED CANCELLATION |
B. | INSURER CANCELLATION OR NONRENEWAL |
(1) | TheInsurershall not be required to renew thisPolicyor any Insuring Agreement upon expiration of thePolicy Period.ThisPolicyor any Insuring Agreement may be cancelled or nonrenewed by theInsurerby giving to theNamed Insuredwritten notice stating when such action shall become effective and the reason(s) therefore. Notice will be mailed to theNamed Insuredby certified mail at the address set forth in Item 1 of the Declarations. The mailing of such notice as aforesaid shall be sufficient proof of notice, and thisPolicyshall terminate at the date and hour specified in such notice. TheInsurershall provide not less than: |
(a) | twenty (20) days notice of its intent to cancel for nonpayment of premium; or | ||
(b) | sixty (60) days notice of its intent to cancel or nonrenew for any other reason. |
(2) | If theInsurercancels thisPolicyor any Insuring Agreement, theInsurershall return one hundred percent (100%) of the unearned premium. The return of any unearned premium by theInsurershall not be a condition precedent to the effectiveness of cancellation, but such payment shall be made as soon as practicable. |
C. | CONVERSION |
(1) | Upon the occurrence of any of the following events, thisPolicyshall continue in full force and effect with respect toClaimsforWrongful Actscommitted or allegedly committed before such event, but coverage shall cease with respect toClaims for suchWrongful Actscommitted or allegedly committed after such event: |
(a) | Financial Impairmentof theCompanyor anySubsidiarycomprising more than fifty percent (50%) of theCompany’stotal assets; |
(b) | acquisition of theCompanyby another entity or the merger or consolidation of theCompanyinto another entity such that theCompanyis not the surviving entity or acquisition of substantially all of the assets of theCompany by another entity; or | ||
(c) | theCompanyceasing to engage actively in its primary business. |
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(2) | Pursuant to Subsection (C)(1) above, thisPolicymay not be cancelled and the entire premium shall be deemed fully earned. The occurrence of any of the foregoing events shall not affect theInsured’sright to purchase the Discovery Period pursuant to Section III. |
(3) | In the event ofFinancial Impairmentof aSubsidiarycomprising less than fifty percent (50%) of theCompany’stotal assets, this conversion provision shall apply only to theSubsidiaryand itsInsured Personsand thePolicyshall continue in full force with respect to all otherInsureds. |
A. | ALLOCATION |
(1) | If in anyClaimtheInsuredsare jointly and severally liable with others (including theCompanyeven if no coverage is extended for suchClaimagainst theCompany)forLoss,then: |
(a) | 100% of allLoss,other thanDefense Costs,incurred jointly by theInsured Personsand theCompanyshall be treated asLossincurred solely by theInsured Persons;and |
(b) | all otherLossshall be allocated between theInsured Personsand others based on the relative legal exposures of the parties to suchClaims. |
(2) | If in anyClaimtheInsuredsincur an amount consisting of both covered and uncoveredLossbecause theClaimincludes both covered and uncovered matters, then the amount shall be allocated between coveredLossand uncovered loss based on the relative legal exposures of theInsuredsto the covered and uncovered matters. |
B. | ARBITRATION |
(1) | TheInsurerand theInsuredagree to use their best efforts to reach a proper allocation ofDefenseCosts.If theInsuredand theInsurercannot agree on an allocation: |
(a) | no presumption as to allocation shall exist in any arbitration, suit or other proceeding; |
(b) | theInsurershall advance on a current basisDefense Costswhich theInsurerbelieves to be covered under thisPolicyuntil a different allocation is negotiated, arbitrated or judicially determined; and |
(c) | theInsurer,if requested by theInsured,shall submit the allocation dispute to binding arbitration. The rules of the American Arbitration Association shall apply except with respect to the selection of the arbitration panel. The arbitration panel shall consist of one arbitrator selected by theInsured,one arbitrator selected by theInsurer,and a third independent arbitrator selected by the first two arbitrators. In any such arbitration, each party will bear its own legal fees and expenses. |
(2) | Any negotiated, arbitrated or judicially determined allocation ofDefense Costs will be applied retroactively to allDefense Costs,notwithstanding any prior advancement to the contrary. Any allocation or advancement ofDefense Costsshall not apply to or create any presumption with respect to the allocation of otherLossarising from suchClaimor any otherClaim. |
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A. | REPRESENTATIONS |
(1) | suchApplicationshall be construed as a separateApplicationfor coverage by eachInsured Person; |
(2) | thisPolicyshall not be deemed to be a series of individual insurance contracts with theCompanyand each of theInsured Persons;and |
(3) | the statements in theApplicationare their representations, that they are material to the acceptance of the risk or hazard assumed by theInsurerunder thisPolicy,and that thisPolicyis issued in reliance upon the truth of such representations. |
B. | SEVERABILITY |
(1) | anyInsured Personwho knew of any fact, circumstance or situation that was not truthfully disclosed in theApplication; |
(2) | theCompany,to the extent theCompanyindemnifies theInsured Person reflected in Item (1) above; or |
(3) | theCompany,to the extent coverage is granted to theCompanyby any Insuring Agreement made a part of thisPolicy,if any past, present, or future chief financial officer, in-house counsel, chief executive officer, President or Chairman of the Board of theCompany,or any person holding any equivalent position within theCompany (regardless of title), knew of any fact, circumstance or situation that was not truthfully disclosed in theApplication. |
C. | SEVERABILITY OF EXCLUSIONS |
(1) | noWrongful Act,fact pertaining to or knowledge possessed by anyInsured Person will be imputed to any otherInsured Person;and |
(2) | all facts pertaining to and knowledge possessed by any past, present, or future chief financial officer, in-house counsel, chief executive officer, President or Chairman of the Board of theCompany,or any person holding any equivalent position within theCompany(regardless of title), shall be imputed to theCompanywith respect to Section V, Exclusions (G) and (H). |
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A. | SUBROGATION — In the event of any payment under thisPolicy,theInsurershall be subrogated to the extent of such payment to all theInsured Persons’and theCompany’srights to recovery therefore, and theInsuredshall execute all papers required and shall do everything that may be necessary to secure theInsurer’srights, including the execution of such documents as may be necessary to enable theInsurereffectively to bring suit in the name of theInsured Personsor theCompany. |
B. | ASSIGNMENT AND ACCEPTANCE — By acceptance of thisPolicy,theInsuredand theInsurer agree that thisPolicy,theApplication,and any written Endorsements attached thereto constitute the entire agreement between the parties. Assignment of interest under thisPolicyshall not bind theInsureruntil its consent is endorsed hereon. |
C. | CONFORMITY TO STATUTE — Any terms of thisPolicy,which are in conflict with the terms of any applicable laws governing thisPolicy,are hereby amended to conform to such laws. |
D. | AUTHORIZATION — By acceptance of thisPolicy,theInsuredsagree that theNamed Insuredwill act on behalf of allInsuredsfor all purposes under thisPolicyincluding, but not limited to, giving and receiving of all notices and correspondence, cancellation, nonrenewal or termination of thisPolicy,payment of premiums, the negotiation and acceptance of Endorsements, and receipt of any return premiums that may be due under thisPolicy. |
E. | CHANGES — Notice to any agent or knowledge possessed by any agent or other person acting on behalf of theInsurershall not effect a waiver or a change in any part of thisPolicyor estop theInsurerfrom asserting any right under the terms of thisPolicy,nor shall the terms, conditions and limitations of thePolicybe waived or changed, except by written Endorsement issued to form a part of thisPolicy. |
F. | ACTION AGAINST THE INSURER |
(1) | No action shall be taken against theInsurerunless, as a condition precedent thereto, there shall have been full compliance with all the terms of thisPolicy,and until theInsured’sobligation to pay is finally determined, either by adjudication or by written agreement of theInsureds,the claimant, and theInsurer. |
(2) | No person or organization shall have any right under thisPolicyto join theInsureras a party to anyClaimagainst theInsurednor shall theInsurerbe impleaded by theInsuredsor their legal representatives in any suchClaim. |
G. | OTHER INSURANCE OR INDEMNIFICATION — ThisPolicyshall not be subject to the terms of any other insurance. All Loss, includingDefense Costs,payable under thisPolicyshall be excess to: |
(1) | any other existing insurance regardless of whether collectable, including but not limited to, any insurance under which there is a duty to defend, unless such other insurance is written only as specific excess insurance over the Limits of Liability provided by thisPolicy; and | ||
(2) | indemnification to which anInsuredis entitled from any entity other than theCompany. |
H. | LOSS INFORMATION —TheInsurerwill provideLoss Informationto theCompanywithin ten (10) days of theCompany’srequest or, if required by statute, at the same time as any notice of cancellation nonrenewal of thisPolicy. |
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I. | INSOLVENCY / BANKRUPTCY — The Financial Impairmentof theInsuredor of the estate of suchInsuredshall not release theInsurerfrom its obligations nor deprive theInsurerof its rights under thisPolicy. |
J. | HEADINGS AND SUB-HEADINGS — The descriptions in the headings and sub-headings of thisPolicyare solely for convenience and form no part of the terms and conditions of coverage. |
/s/ Dane A. Shrallow | /s/ Glenn Renwick | |||||
Company Officer or Authorized Representative | President |
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(A Stock Insurance Company, herein called theInsurer)
1. | Section XVI, entitled “General Terms and Conditions”, is amended to add the following Subsection: |
2. | Section IV, entitled “Definitions” is amended to add the following: |
(1) | the power to determine the management or policy of theCompanyby virtue of voting stock or voting rights ownership (including rights with respect to withdrawal accounts); or |
(2) | ownership of voting stock or voting rights which results in direct or indirect ownership by a stockholder or an affiliated group of stockholders of ten percent (10%) or more of the outstanding voting stock or voting rights of theCompany. |
(A Stock Insurance Company, herein called theInsurer)
1. | Item 12 of the Declarations, entitled “Prior/Pending Litigation Dates”, is deleted in its entirety. | |
2. | Section V(M) of thePolicyis deleted and replaced as follows: |
M. | Prior and Pending Litigation Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimarising out of or in any way involving any litigation against anyInsuredinitiated prior to the respective date set forth below or arising out of or in any way involving the same or substantially the same fact, circumstance or situation underlying or alleged in such prior litigation. |
Prior/Pending | ||
Type of Claim | Litigation Date | |
D&O Claim | 07/01/1994 | |
Company Liability Claim | 07/01/2000 | |
Lender Liability Claim | 07/01/1994 | |
Depositor Claim | 07/01/2000 | |
Securities Claim | 07/01/2000 | |
IRA/Keogh Claim | 07/01/2000 | |
Fiduciary Claim | 07/01/1994 | |
Insurance Services Claim | N/A | |
Brokerage/Advisory Services Claim | N/A | |
Trust Department Claim | N/A | |
Employment Practices Claim | N/A | |
Bankers Professional Services Claim | N/A | |
Privacy Liability Claim | 07/01/2008 |
3. | For the purpose of this Endorsement only the following definitions are added: |
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/s/ Dane A. Shrallow | /s/ Glenn Renwick | |||||
Company Officer or Authorized Representative | President |
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(A Stock Insurance Company, herein called theInsurer)
A. | Application means: |
(1) | the application signed for the procurement of thisPolicyand any materials submitted to theInsurerin support of the procurement of thisPolicy or anyPolicyfor which thisPolicyis a direct or indirect renewal or replacement; and |
(2) | any publicly available information published or filed by or with a recognized source, agency or institution regarding theInsuredin the 3 years preceding thePolicy’sinception, and any amendment thereto, whether or not submitted with any signed application. |
(1) | medical, surgical, or hospital care or benefits; benefits in the event of sickness, accident, disability, death or unemployment; vacation benefits, apprenticeship or other training programs; day care centers; scholarship funds; prepaid legal services; or |
(2) | any benefit described in Section 186(c) ofERISA. |
C. | Section IV, entitled “Definitions”, is further amended to delete and replace the Definition ofInsuredandLossas follows: |
J. | Insured, either in singular or plural, means theInsured Persons,theCompany,anyEmployee Benefit Planexisting before thePolicy Period,anyEmployee Benefit Plancreated during thePolicy Period,and anyEmployee Benefit Planacquired during thePolicy Periodpursuant to Section XII. | ||
N. | Loss meansDefense Costsand any amount which theInsuredis legally obligated to pay resulting from aClaim,including damages, judgments, settlements, pre- and post-judgment interest, punitive or exemplary damages and the multiple portion of any multiplied damage award where insurable by law.Lossshall not include: |
(1) | taxes; | ||
(2) | criminal or civil fines or penalties imposed by law; | ||
(3) | any unpaid, unrecoverable or outstanding loan, lease or extension of credit to any employee or any forgiveness of debt; | ||
(4) | costs to comply with any non-monetary or injunctive relief of any kind or any agreement to provide such relief, including but not limited to any damages, costs or expenses incurred in complying with any other federal, state or local laws of any kind; | ||
(5) | any restitution, disgorgement, or payment of similar sums including but not limited to the return of fees, commissions or charges for theCompany’sservices; or | ||
(6) | any matters which are uninsurable under the law pursuant to which this Endorsement shall be construed. |
D. | All of the Exclusions set forth in Section V shall apply except Subsection (E), entitled “ERISA Exclusion”, which is deleted. |
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E. | Section V is further amended to delete and replace Subsection (J) as follows: |
J. | Insured vs. Insured Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimby, on behalf of, or at the behest of theCompany,any affiliate of theCompanyor anyInsured Personin any capacity except where suchClaimis brought and maintained: |
(1) | in the form of a cross-claim or third-party claim for contribution or indemnity which is part of and results directly from aClaimwhich is not otherwise excluded by the terms of thePolicy; | ||
(2) | by anInsured Personsolely as a customer of theCompany;provided suchClaimis brought independently of, and totally without the solicitation, assistance, participation, or intervention of any otherInsured; | ||
(3) | by a security holder of theCompanyas a derivative action on behalf of theCompanyor such affiliate; provided suchClaimis brought independently of, and totally without the solicitation, assistance, participation, or intervention of anyInsuredor any affiliate of theCompany;or | ||
(4) | by anInsured Personagainst one or moreInsuredsfor aClaimresulting from aWrongful Actinvolving anEmployee Benefit Plan. |
F. | Section V, entitled “Exclusions Applicable to all Insuring Agreements”, is further amended to add the following: |
(1) | the failure to collect contributions owed to anEmployee Benefit Plan or otherEmployee Program unless such failure is due to the negligence of theInsured; | ||
(2) | the return or reversion to an employee of any contribution or asset; or | ||
(3) | benefits paid or payable to a participant or beneficiary of anyEmployee Benefit Planor otherEmployeePrograms, or benefits which would be payable to such a participant or beneficiary if theEmployee Benefit Planor otherEmployeeProgram complied with applicable law. |
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G. | Section VII (A), entitled “Limit of Liability”, is amended to add the following Subsection: |
(5) | TheInsureragrees to provide, without additional charge, a one-time reinstatement of the Limit of Liability under this Endorsement to the extent such Limit of Liability is diminished by paidLossresulting from paidClaimsunder this Endorsement. Should aClaimexhaust the Limit of Liability under this Endorsement, the Limit of Liability will only be reinstated for subsequentClaims.This reinstatement shall not serve to increase the Limit of Liability for any singleClaim. |
3. | This Endorsement shall be effective as of 12:01 a.m. on 07/01/2008. |
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(A Stock Insurance Company, herein called theInsurer)
1. | The attachedPolicyis amended by adding the following Insuring Agreement(s) to the extent such coverage is set forth on the Declarations: |
O. | PRIVACY LIABILITY INSURING AGREEMENT |
P. | PRIVACY LIABILITY MITIGATION INSURING AGREEMENT |
(1) | in the custody or control of theInsuredor anyElectronic Data Processor;or |
(2) | arising from the negligent management, oversight or preservation of suchConfidential Customer Informationby theInsured. |
2. | For the purpose of the coverage afforded by this Endorsement, all of the terms and conditions set forth in thePolicyshall apply except: |
A. | Section IV, entitled “Definitions” is amended to add the following: |
(1) | notify those persons who may be directly affected by the unauthorized access of theConfidential Customer Information; | ||
(2) | change account numbers and related information, including the reissuance of debit/credit/ATM cards for those persons who may be directly affected; |
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(3) | with prior consent of theInsurer,provide basic credit monitoring or other services to prevent fraudulent use of theConfidential Customer Information;and |
(4) | protect or restore the professional reputation of theCompanythrough publicity and advertising solely in response toNegative Publicity. Liability Mitigation Expense [ILLEGIBLE] include, but not be limited to, expenses incurred by theCompanyto hire a public relations consultant; provided, however, that if a public relations consultant is used, such consultant shall be mutually agreed upon by theInsurerand theCompany.TheCompanyshall not hire a public relations consultant without theInsurer’sprior written consent, which shall not be unreasonably withheld. |
B. | All of the Exclusions set forth in Section V, entitled “Exclusions Applicable to all Insuring Agreements”, shall apply to this Endorsement except the following which is deleted and replaced: |
A. | Bodily/Personal Injury and Property Damage Exclusion —TheInsurershall not be liable to make any payment forLossin connection with anyClaimfor actual or alleged bodily injury, sickness, disease, or death of any person, damage to or destruction or theft of any tangible or intangible property in the custody or control of theInsuredincluding loss of thereof, wrongful entry, eviction, false arrest, false imprisonment, malicious prosecution, abuse of process, assault, battery, mental anguish, emotional distress, loss of consortium, invasion of privacy, defamation, false light, libel, or slander; provided, however, that this Exclusion shall not apply to any actual or alleged mental anguish, emotional distress, libel, slander, defamation, false light, invasion of privacy or loss of property other than property in the custody or control of theInsuredresulting from aWrongful Privacy Act. |
C. | Section V, “Exclusions Applicable to all Insuring Agreements”, is further amended to add the following: |
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(1) | Financial Impairmentof theCompanyor anySubsidiary; | ||
(2) | insolvency, receivership, liquidation or bankruptcy of any insurance company theInsuredrepresents; or | ||
(3) | bankruptcy of or suspension of payment by any bank, banking firm, broker or dealer in securities or commodities or any other financial institution. |
(1) | transactional services through the transmission of data to or from an Internet website or private computer network owned, operated or controlled by theCompany; | ||
(2) | website development, software development or network security services to third parties; or | ||
(3) | hosting services or services as an Internet Service Provider, Internet Access Provider, Application Service Provider or provider of like services. |
3. | In addition to the provisions set forth in Item 2 of this Endorsement, for the purpose of the coverage afforded by the Privacy Liability Insuring Agreement: |
A. | Section II (B) entitled “Not for Profit Directorships” is deleted. | ||
B. | The DefinitionsofInterrelated Wrongful Acts andWrongful Acts and all references thereto used throughout thePolicyare deleted and replaced with the termsInterrelated Wrongful Privacy ActsandWrongful Privacy Acts,respectively, as follows: |
4. | In addition to the provisions set forth in Item 2 of this Endorsement, for the purpose of the coverage afforded by the Privacy Liability Mitigation Insuring Agreement, all of the terms and conditions set forth in thePolicyand any amendments thereto shall apply except: |
A. | Section II, entitled “Additional Coverages”, is deleted in its entirety. | ||
B. | Section IV, Subsection N of thePolicyis deleted and replaced below: |
N. | LossmeansLiability Mitigation Expense. |
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C. | Section V, “Exclusions Applicable to all Insuring Agreements”, is further amended to add the following: |
D. | Section VII, entitled “Limit of Liability, Retention and Indemnification”, is deleted and replaced below: |
(1) | TheInsurer’smaximum Limit of Liability under thisPolicyfor all Insuring Agreements combined shall not exceed the Total Policy Limit set forth in Item 3 of the Declarations regardless of whether such Insuring Agreement is provided as a sublimit or a separate limit, and regardless of the time of payment by theInsurer. |
(2) | The Limit of Liability under this Endorsement constitutes a sublimit which does not increase theInsurer’smaximum liability under thePolicy. |
(3) | Lossresulting from the same act or series of related acts shall be considered a singleLoss, and only one Retention and Limit of Liability shall be applicable. However, each such singleLossshall be deemed to be first discovered on the date the earliest of suchLosswas first discovered, regardless of whether such date is before or during thePolicy Period. |
(4) | TheInsurershall only be liable under this Endorsement for the amount by which any singleLossexceeds the Retention amount for the Insuring Agreement applicable to suchLoss. One Retention amount shall apply to the covered portion of each and every singleLoss. |
E. | Section XVI, Subsection F, is deleted and replaced below: |
F. | ACTION AGAINST THE INSURER — Legal proceedings for the recovery of anyLossunder this Endorsement shall not be brought prior to the expiration of 60 days after the proof ofLoss,with full particulars, is filed with theInsurer or after the expiration of 24 months from the discovery of suchLoss. |
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NOTICE OF TERRORISM INSURANCE COVERAGE
(A Stock Insurance Company, herein called theInsurer)
B. | INSURER CANCELLATION OR NONRENEWAL |
(1) | TheInsurershall not be required to renew thisPolicyor any Insuring Agreement upon expiration of thePolicy Period.ThisPolicyor any Insuring Agreement may be cancelled or nonrenewed by theInsurerby giving to theNamed Insuredwritten notice stating when such action shall become effective and the reason(s) therefore. Notice will be mailed to theNamed Insuredby certified mail at the address set forth in Item 1 of the Declarations. The mailing of such notice as aforesaid shall be sufficient proof of notice, and thisPolicyshall terminate at the date and hour specified in such notice. TheInsurershall provide not less than: |
(a) | twenty (20) days notice of its intent to cancel for nonpayment of premium; | ||
(b) | sixty (60) days notice of its intent to nonrenew; or | ||
(c) | sixty (60) days notice of its intent to cancel for any of the following reasons: |
i. | discovery of fraud or material misrepresentation by: (1) theCompanyor anInsured Personin the obtaining of this insurance; or (2) theCompanyor anInsured Personin pursuing aClaim under thisPolicy; | ||
ii. | a judgement by a court or an administrative tribunal that theCompanyor anInsured Personhas violated a California or Federal Law, having as one of its necessary elements an act which materially increases any of the risks insured against; | ||
iii. | discovery of willful or grossly negligent acts or omissions, or of any violations of state laws or regulations establishing safety standards, by theCompanyor anyInsured Person, which materially increase any of the risks insured against; | ||
iv. | failure by theCompanyto implement reasonable loss control requirements, agreed to by theCompanyas a condition ofPolicy issuance, or which were conditions precedent to theInsurer’suse of a particular rate or rating plan, if that failure materially increases any of the risks insured against; | ||
v. | a determination by the Commissioner or Insurance that the loss of, or changes in, reinsurance by theInsurerwould threaten financial integrity or solvency, or that continuation of thePolicycoverage would place theInsurerin violation of California law or the laws of the state where theInsureris domiciled; or |
Page 1 of 2
vi. | a change by theCompanyin the activities or property of the commercial or industrial enterprise, which results in a materially added, increased or changed risk, unless the added, increased or changed risk is included in thePolicy. |
Page 2 of 2
(A Stock Insurance Company, herein called theInsurer)
(Exclude Punitive and Exemplary Damages)
(A Stock Insurance Company, herein called theInsurer)
Change Policy Period
Item 2. | Previous Policy Period: | FROM: 12:01 a.m. 07/01/2008 | TO: 12:01 a.m. 07/01/2011 | |||
New Policy Period: | FROM: 12:01 a.m. 07/01/2008 | TO: 12:01 a.m. 07/10/2010 | ||||
(Local time at the address shown in Item 1.) |
Item 13. | Endorsements:ThisPolicyis subject to the terms of the following Endorsements attached hereto and incorporated herein by reference at the effective date of thisPolicyand to all other Endorsements attached hereto after the effective date of thisPolicy:5081, 5082, 2244, 2811, 4074, 5093, 5105, TRIA-01, 8790D (CA), 2844 |
/s/ Dane A. Shrallow | /s/ Glenn Renwick | |||||
Company Officer or Authorized Representative | President |
(A Stock Company)
Mailing Address:
PO Box 3407
New York, NY 10008
(877) IRON411
Expiring Policy # N/A
ITEM 1: COMPANY NAME AND PRINCIPAL ADDRESS: | ITEM 2: POLICY PERIOD: | |
Sonoma Valley Bancorp/Sonoma Valley Bank 202 W Napa Street Sonoma, CA 95476 | (a) Inception Date— July 10, 2010 (b) Expiration Date — July 10, 2011 | |
at 12:01 a.m. both dates at the Principal Address in ITEM 1. |
Underlying Insurer | Policy No. | Limits | Policy Year | |||||
U.S. Specialty Insurance Company | 14-MGU-10-A21875 | $ | 5,000,000 | July 10, 2010 – July 11, 2011 |
1. | California State Amendatory | ||
2. | General E&O Exclusion | ||
3. | Prior Acts Exclusion — 7/1/2010 | ||
4. | Non-Follow Form, Recognize Erosion — EPL, BPL, LL, Fiduciary |
C.L. Frates
5005 N Lincoln Blvd.
Oklahoma City, OK 73105
c/o Ironshore Insurance Services, LLC
One State Street Plaza
8th Floor
New York, NY 10004
c/o Ironshore Insurance Services, LLC
One State Street Plaza
8th Floor
New York, NY 10004
Date:August 27, 2010 | By: | -s- [ILLEGIBLE] | ||||
TERRORISM INSURANCE COVERAGE
(new policies and renewals with no terrorism
exclusion or sublimit and no premium charge)
(A Stock Company)
Mailing Address:
PO Box 3407
New York, NY 10008
(877) IRON411
WITH COSTS OF DEFENSE INCLUDED IN THE LIMIT OF LIABILITY
PLEASE READ THE ENTIRE POLICY CAREFULLY
A. | “Application”shall mean each and every signed application submitted to theInsurerfor consideration of insurance together with any attachments to such applications and other materials submitted therewith or incorporated therein. | ||
B. | “Claim”shall mean: a civil, criminal, governmental, regulatory, administrative or arbitration proceeding made against anyInsured Personseeking monetary or non-monetary relief and commenced by the service of a complaint or similar pleading, the return of an indictment, or the receipt of filing of notice of charges or similar document; or other written demand for monetary or non-monetary relief made against anyInsured Person.However, in no event shall the term“Claim”include any labor or grievance proceeding which is subject to a collective bargaining agreement. | ||
C. | “Company”shall mean theCorporationand anySubsidiary; | ||
D. | “Corporation”shall mean the entity named in Item 1 of the Declarations. | ||
E. | “Costs of Defense”shall mean reasonable and necessary legal fees, costs and expenses incurred in the investigation, defense or appeal of anyClaimincluding the costs of an appeal bond, attachment bond or similar bond (but without obligation on the part of theInsurerto apply for or furnish such bonds); provided, however,Costs of Defenseshall not include salaries, wages, overhead or benefit expenses associated with anyInsured Person. |
F. | “Directors” and“Officers”shall mean all persons who were, now are, or shall be directors and/or officers (or foreign equivalent) of theCompany. | ||
G. | “Domestic Partners”shall mean any natural person qualifying as a domestic partner under the provisions of any applicable federal, state or local law or under the provisions of any formal program established by theCompany. | ||
H. | “Employment Practices Claim”shall mean anyClaimbrought by or on behalf of any past, present or future employee of theCompanyorOutside Entity,or any applicant for employment with theCompanyorOutside Entityalleging anEmployment Practices Wrongful Act. | ||
I. | “Employment Practices Wrongful Act”shall mean: |
(1) | adverse or unfair reprimand of anEmployee; | ||
(2) | denial of interview or position; | ||
(3) | denial of training to anEmployee; | ||
(4) | derogatory or disparaging remarks to anEmployee; | ||
(5) | discrimination; | ||
(6) | employment-related misrepresentations | ||
(7) | employment-related libel, slander, defamation, or invasion of privacy; | ||
(8) | failure to grant tenure; | ||
(9) | failure to provide an adequate workplace, or employment policy or procedure forEmployees; | ||
(10) | imposing mandatory arbitration of anEmployment Practices Claimby an employer; | ||
(11) | improper denial of time off or vacation time to anEmployee; | ||
(12) | improper disciplinary action of anEmployee; | ||
(13) | improper performance review of anEmployee; | ||
(14) | improper transfer, change of position or change of work hours or shift of anEmployee; | ||
(15) | improper treatment of anEmployeefor their actions as a whistleblower; | ||
(16) | negligent evaluation of anEmployee; | ||
(17) | negligent release of medical information of anEmployee; | ||
(18) | Retaliationagainst anEmployee; | ||
(19) | sexual or workplace harassment of any kind; | ||
(20) | violation of the Equal Pay Act; |
(21) | wrongful deprivation of career opportunity of anEmployee,including defamatory statements made in connection with anEmployeereference; | ||
(22) | wrongful dismissal, discharge or termination of employment, whether actual or constructive, of anEmployee; | ||
(23) | wrongful failure to promote, transfer or employ; and | ||
(24) | violation of the civil rights of anEmployeerelating to any of the above. |
J. | “Insurance Program”shall mean any existing insurance, other than this Policy, under which coverage may be owed to anInsured Person,including, without limitation, any existing Directors and Officers Liability insurance, Management Liability insurance or similar insurance. | ||
K. | “Insured Person”shall mean. any past, present, or futureDirectororOfficer,general counsel, or member of the Board of Managers of theCompanyand any person serving in a functionally equivalent role for theCompany; | ||
L. | “Insurer”shall mean the company stated in Item 8 of the Declarations. | ||
M. | “Loss” shall mean compensatory damages, punitive or exemplary damages, the multiple portion of any multiplied damage award, judgments, settlements (including pre- and post-judgment interest) andCosts of Defense,provided, however,Lossshall not include criminal or civil fines or penalties, taxes, or any matter which may be deemed uninsurable under the law pursuant to which this Policy shall be construed. It is understood and agreed that the enforceability of the foregoing coverage shall be governed by such applicable law which most favors coverage for punitive or exemplary damages or the multiple portion of any multiplied damage award. | ||
Lossshall not include any portion of damages, judgments or settlements arising out of anyClaimalleging that theCompanypaid an inadequate price or consideration for the purchase of securities. | |||
N. | “Outside Entity”shall mean: |
(1) | any not-for-profit entity; | ||
(2) | any private organization whose securities are not publicly traded; and | ||
(3) | any public company, but only upon the condition that theCorporationshall have provided theInsurerwith full particulars of the public company and agreed to any amendment of the provisions of this Policy required by theInsurerand paid when due any additional premium. |
O. | “Policy Period”shall mean the period from the inception date of this Policy to the expiration date of this Policy as set forth in Item 2 of the Declarations, or its earlier termination if applicable. | ||
P. | “Pollutants”shall mean any substance located anywhere in the world exhibiting any hazardous characteristics as defined by, or identified on any list of hazardous substances issued by, the United States Environmental Protection Agency or any state, county, municipality or locality counterpart thereof. Such substances shall include, without limitation, solids, liquids, gaseous or thermal irritants, contaminants or smoke, vapor, soot, fumes, acids, alkalis, chemicals or waste materials.Pollutantsshall also mean any other air emission, odor, waste water, oil or oil products, infectious or medical waste, asbestos or asbestos products and any noise. | ||
Q. | “Pollution”shall mean the actual, alleged or threatened discharge, release, escape or disposal ofPollutantsinto or on real or personal property, water or the atmosphere.Pollutionalso means any direction or request that theInsured Persontest for, monitor, clean up, remove, contain, treat, detoxify or neutralizePollutants,or any voluntary decision to do so. | ||
R. | “Related Wrongful Acts”shall meanWrongful Actswhich are the same, related or continuous, orWrongful Actswhich arise from a common nucleus of facts.Claimscan allegeRelated Wrongful Actsregardless of whether suchClaimsinvolve the same or different claimants,Insured Personsor legal causes of action. |
S. | “Securities Claim”shall mean anyClaim(including a civil lawsuit or criminal proceeding or administrative or regulatory proceeding brought by the Securities and Exchange Commission, or by any similar state or foreign governmental or securities regulatory entity) made against anInsured Person alleging a violation of any law, regulation or rule, whether statutory or common law, which is: |
(1) | brought by any person or entity alleging, arising out of, based upon or attributable to the: (a) purchase or sale of, or (b) offer or solicitation of an offer to purchase or sell, any securities issued by theCompany,or | ||
(2) | brought by a security holder of theCompany,arising solely with respect to such security holder’s interest in such securities of theCompany, whether directly, by class action, or derivatively on behalf of theCompany. |
T. | “Subsidiary”shall mean any entity in which theCompanyowns, directly or indirectly, more than fifty percent (50%) of the voting stock. This Policy will only apply to theWrongful Act or Related Wrongful Actsof anInsured Person of a Subsidiary,or of any entity that merges with theCompany,that first occur subsequent to the date such entity becomes aSubsidiaryor is merged with theCompanyand prior to the date theCorporationceased to own, directly or indirectly, more than fifty percent (50%) of the voting stock of suchSubsidiary. |
U. | “Wrongful Act”shall mean: |
(1) | any actual or alleged act, omission, error, misstatement, misleading statement, neglect or breach of duty, orEmployment Practices Wrongful Act,by anyInsured Personin their capacity as such with theCompany; | ||
(2) | any matter claimed against anyInsured Personsolely by reason of their capacity as such with theCompany; | ||
(3) | any matter claimed against anyInsured Personarising out of their service as a director, officer, trustee or governor of anOutside Entity, but only if such service is at the request of theCompany. |
A. | alleging, arising out of, based upon or attributable to: |
(1) | anInsured Persongaining any profit, advantage or remuneration to which they were not legally entitled; provided however, this exclusion shall only apply where it is finally adjudicated that such conduct occurred; or | ||
(2) | the deliberate fraudulent or criminal acts of anInsured Person; provided, however, this exclusion shall only apply where it is finally adjudicated that such conduct occurred; |
(a) | Exclusions A(1) and (2) shall not apply toCosts of Defense; | ||
(b) | Exclusion A(1) shall not apply to anySecurities Claimalleging violations of Section 11 or 12 of the Securities Act of 1933, as amended, to the portion of anyLossattributable to such violations. |
B. | alleging, arising out of, based upon or attributable to, anyWrongful Actor Related Wrongful Actor any fact, circumstance or situation which has been the subject of any notice orClaimgiven under any other policy of which this Policy is a renewal or replacement; | ||
C. | for any actual or alleged; |
(1) | bodily injury, sickness, disease, or death of any person; |
(2) | damage to or destruction of any tangible property, including the loss of use thereof; or | ||
(3) | mental anguish, emotional distress, invasion of privacy, wrongful entry, eviction, false arrest, false imprisonment, malicious prosecution, libel or slander. |
(a) | Exclusions C(1) and (2) shall not apply to anyClaimfor any actual or alleged violation of the Securities Act of 1933, the Securities Exchange Act of 1934 or any state securities statute or to anyClaimin the form of a derivative action provided such derivative action is brought and maintained independently of theCompany,any Insured Personor anyOutside Entity. | ||
(b) | Exclusion C(3) shall not apply to anEmployment Practices Claim. |
D. | which is brought by or on behalf of theCompanyor by anyInsured Person;or which is brought by any security holder or member of theCompany,whether directly or derivatively, unless such security holder’s or member’sClaimis instigated and continued totally independent of, and totally without solicitation of, or assistance of, or active participation of, or intervention of, theCompanyor anyDirectoror Officerof theCompanyor which is brought by or on behalf of anOutside Entity,or by any director, officer, trustee, or governor thereof, for anyWrongful Actof anInsured Personserving as a director, officer, trustee or governor of suchOutside Entity; |
(1) | any Claimbrought by anInsured Personin the form of a cross-claim or third-party claim for contribution or indemnity which is part of, and results directly from, aClaimthat is covered by this Policy; | ||
(2) | any Employment Practices Claimbrought by anInsured Person, other than anInsured Personwho is or was a member of the Board of Directors (or equivalent governing body) of theCompany; | ||
(3) | any Claimbrought by the examiner, trustee, receiver, liquidator, rehabilitator or creditors’ committee (or any assignee thereof) of theCompany, in any bankruptcy proceeding by or against theCompany; | ||
(4) | any Claimbrought by any pastDirectororOfficerof theCompany who has not served as a duly elected or appointed director, officer, trustee, governor, management committee member, member of the management board, General Counsel or Risk Manager (or equivalent position) of or consultant for theCompanyfor at least four (4) years prior to suchClaimbeing first made against any person; | ||
(5) | any Claimbrought by aDirectororOfficer(or equivalent position) of aCompanyformed and operating in a foreign jurisdiction, provided that suchClaimis brought and maintained outside the United States, Canada or any other common law country (including any territories thereof); or | ||
(6) | any Claimbrought against anInsured Personengaging in any protected activity specified in 18 U.S.C. 1514A(a) (“whistleblower” protection pursuant to the Sarbanes-Oxley Act of 2002) or any protected activity specified in any other “whistleblower” protection pursuant to any similar state, local or foreign securities laws. |
E. | alleging, arising out of, based upon, or attributable to, directly or indirectly resulting from, or in consequence of, or in any way involving,Pollution. This exclusion shall not apply to a derivative action commenced by a security holder of theCompanyor its creditors. |
the above stated exclusions.
A. | TheInsurershall be liable to payLossup to the Limit of Liability stated in Item 3 of the Declarations that is in excess of such indemnification or advancement by theCompanyor from any other source and excess any otherInsurance Program. | ||
B. | Costs of Defenseshall be part of, and not in addition to, the Limit of Liability stated in Item 3 of the Declarations. SuchCosts of Defenseshall serve to reduce the Limit of Liability. | ||
C. | The liability of theInsurerfor allLossarising from any and allClaimsfirst made and reported pursuant to Section VI of the Policy shall be the amount shown in Item 3 of the Declarations which shall be the maximum aggregate Limit of Liability of theInsurerfor thePolicy Periodand Discovery Period, if applicable, regardless of the time of payment or the number ofClaims. | ||
D. | Other Insurance and Indemnification |
(1) | TheInsured Personand theCompanyunderstand and agree that all coverage under this Policy shall be specifically excess over, and shall not contribute with: |
(a) | anyInsurance Programmaintained by theCompanyor anyOutside Entity,whether such other insurance is stated to be primary, contributing, excess or otherwise, and | ||
(b) | all indemnification and advancement to which anInsured Personmay be entitled from any source, including but not limited to theCompanyor anyOutside Entity. |
(2) | This Policy shall not be subject to the terms or conditions of any other insurance. TheInsurerdoes not waive, compromise or release any of its rights to recoverLosspaid under this Policy from the issuers of any other insurance under which coverage may be owed, or from any person or entity from which anInsured Personis entitled to indemnification or advancement, including theCompanyand anyOutside Entity. |
A. | TheInsured Personshall not incurCosts of Defense,or admit liability, offer to settle, or agree to any settlement in connection with anyClaimwithout the express prior written consent of theInsurer,which consent shall not be unreasonably withheld. TheInsured Personshall provide theInsurerwith all information and particulars it may reasonably request in order to reach a decision as to such consent. AnyLoss resulting from any admission of liability, agreement to settle, orCosts of Defense incurred prior to the consent of theInsurershall not be covered hereunder. | ||
B. | TheInsured Person,and not theInsurer,has the duty to defend allClaims, provided that theInsured Personshall only retain counsel as is mutually agreed upon with theInsurer. | ||
C. | TheInsurershall at all times have the right, but not the duty, to associate with theInsured Personin the investigation, defense or settlement of anyClaimto which coverage under this Policy may apply. TheInsured Personshall cooperate with theInsurerand provide theInsurersuch information as it may reasonably require in the investigation, defense or settlement of anyClaim. | ||
D. | TheInsurershall advanceCosts of Defenseprior to the final disposition of anyClaim,provided suchClaimis covered by this Policy. Any advancement shall be on the condition that if it is finally established that theInsurerhas no liability under the Policy for suchClaim,theInsured Personwill repay theInsurerallCosts of Defenseadvanced by virtue of this provision. |
A. | TheInsured Personshall, as a condition precedent to their rights under this Policy, give theInsurernotice in writing of anyClaimwhich is made during thePolicy Period.Such notice shall be given as soon as practicable but in no event later than thirty (30) days after the end of thePolicy Periodor Discovery Period, if applicable. If notice is provided pursuant to this Section, anyClaim subsequently made against anInsured Personand reported to theInsureralleging, arising out of, based upon or attributable to the prior noticedClaimor alleging anyRelated Wrongful Act,shall be considered related to the priorClaimand made at the time notice of the priorClaimwas first provided. |
B. | If during thePolicy Periodor during the Discovery Period (if applicable) anInsured Personshall become aware of any circumstances which may reasonably be expected to give rise to aClaimbeing made against anInsured Personand shall give written notice to theInsurerof the circumstances, theWrongful Actallegations anticipated and the reasons for anticipating such aClaim,with full particulars as to dates, persons and entities involved, then aClaimwhich is subsequently made against suchInsured Personand reported to theInsureralleging, arising out of, based upon or attributable to such circumstances or alleging anyRelated Wrongful Act,shall be considered made at the time such notice of such circumstances was given. Notice of any such subsequentClaimshall be given to theInsureras soon as practicable. | ||
C. | In addition to furnishing the notice as provided in Section VI, theInsured Personshall, as soon as practicable, furnish theInsurerwith copies of reports, investigations, pleadings and other papers in connection therewith. | ||
D. | Notice to theInsureras provided in Section VI shall be given to theInsurer identified in and to the address stated in Item 8 of the Declarations. |
A. | In the event theInsureror theCorporationrefuses to renew this Policy, theCorporationshall have the right, upon payment of one hundred percent (100%) of the annual premium, (or if thePolicy Periodis other than annual, one hundred percent (100%) of the annualized premium), to an extension of the coverage provided by this Policy with respect to anyClaimfirst made against anyInsured Personduring the period of twelve (12) months after the end of thePolicy Periodand reported to theInsurerpursuant to the provisions of this Policy, but only with respect to anyWrongful Actcommitted or alleged to have been committed before the end of thePolicy Period.This twelve (12) month period shall be referred to in thisPolicyas the Discovery Period. | ||
B. | As a condition precedent to the right to purchase the Discovery Period, the total premium for thisPolicymust have been paid, and a written request together with payment of the appropriate premium for the Discovery Period must be provided to theInsurerno later than thirty (30) days after the end of thePolicy Period. | ||
C. | The fact that the coverage provided by this Policy may be extended by virtue of the purchase of the Discovery Period shall not in any way increase the Limit of Liability stated in Item 3 of the Declarations. For purposes of the Limit of Liability, the Discovery Period is considered to be part of, and not in addition to, the Policy Period. |
A. | Cancellation or Non-Renewal |
(1) | This Policy may be cancelled by theCorporationat any time by written notice to theInsurer.Upon cancellation, theInsurershall retain the customary short rate portion of the premium, unless this Policy is converted to Run-Off pursuant to Section VIII.D. wherein the entire premium for this Policy shall be deemed earned. | ||
(2) | This Policy may only be cancelled by theInsurerif theCorporationdoes not pay the premium when due. TheInsurershall mail or deliver notice of cancellation to theCorporationat least ten (10) days before the effective date of cancellation. | ||
(3) | If theInsurerelects not to renew this Policy, theInsurershall provide the Corporation with no less than sixty (60) days advance notice thereof. |
B. | Application |
C. | Action Against the Insurer |
(1) | No action shall be taken against theInsurerunless, as a condition precedent thereto, there shall have been full compliance with all the terms of this Policy, and until the obligation of theInsured Personto pay shall have been finally determined by an adjudication against theInsured Personor by written agreement of theInsured Person,claimant and theInsurer. | ||
(2) | No person or organization shall have any right under this Policy to join theInsureras a party to anyClaimagainst theInsured Personnor shall theInsurerbe impleaded by anyInsured Personor their legal representative in any suchClaim. |
D. | Conversion to Run-Off Coverage | ||
If, during thePolicy Period,a transaction occurs wherein another entity gains control of theCorporationthrough the ownership of more than fifty percent (50%) of the voting stock of theCorporation,or theCorporationmerges into another entity or consolidates with another entity such that theCorporationis not the surviving entity, then: |
(1) | this Policy shall only apply toWrongful Actsactually or allegedly committed on or before the effective date of such transaction; and | ||
(2) | the entire premium for this Policy shall be deemed earned as of the date of such transaction. |
E. | Coverage Extensions |
(1) | Lawful Spouse or Domestic Partner Provision |
(2) | Worldwide Provision |
(3) | Estates and Legal Representatives |
F. | Subrogation |
G. | Dispute Resolution |
H. | Assignment |
I. | Conformity to Statute |
J. | Entire Agreement |
K. | Corporation Represents Insured Persons | ||
By acceptance of this Policy, theCorporationshall be designated to act on behalf of allInsured Personsfor all purposes including, but not limited to, the giving and receiving of all notices and correspondence, the cancellation or non-renewal of this Policy, the payment of premiums, and the receipt of any return premiums that may be due under this Policy. | |||
L. | Representative of the Insurer | ||
Ironshore Insurance Services, LLC, One State Street Plaza, 7th Floor, New York, NY 10004 shall act on behalf of theInsurerfor all purposes including, but not limited to, the giving and receiving of all notices and correspondence, provided, however, notice ofClaimshall be given pursuant to Section VI of the Policy. | |||
M. | Service of Suit | ||
In the event of the failure of theInsurerto pay any amount claimed to be due hereunder, the Insurer, at the request of theInsured Person,will submit to the jurisdiction of any court of competent jurisdiction within the United States. Nothing in this condition constitutes or shall be understood to constitute a waiver of the right of theInsurerto commence an action in any court of competent jurisdiction within the United States, to remove an action to a United States District Court or to seek a transfer of a case to another court as permitted by the laws of the United States or of any state in the United States. | |||
Service of process in any such suit may be made upon Ironshore Insurance Services, LLC, One State Street Plaza, 7th Floor, New York, NY 10004. In any suit instituted against theInsurerupon this Policy theInsurerwill abide by the final decision of such court or of any appellate court in the event of any appeal. | |||
Pursuant to any statute of any state, territory or district of the United States which makes provision therefore, theInsurerhereby designates the Superintendent, Commissioner or Director of Insurance, or other officer specified for that purpose in the statute, or his or her successor or successors in office, as its true and lawful attorney upon whom may be served lawful process in any action, suit or proceeding instituted by or on behalf of theInsured Personor any beneficiary hereunder arising out of this Policy, and hereby designates the above named Ironshore Insurance Services, LLC, One State Street Plaza, 7th Floor, New York, NY 10004 as the entity to whom said officer is authorized to mail such process or a true copy thereof. | |||
N. | Bankruptcy | ||
Bankruptcy or insolvency of theCompanyor anyInsured Personshall not relieve theInsurerof any of its obligations under this Policy. | |||
O. | Headings | ||
The descriptions in the headings of this Policy form no part of the terms and conditions of the coverage under this Policy. |
Ironshore Indemnity Inc. by: | ||
Secretary | President |
(A Stock Company)
Mailing Address:
PO Box 3407
New York, NY 10008
(877) IRON411
Policy Number:000571100 | Effective Date of Endorsement:July 10, 2010 | |
Insured Name:Sonoma Valley Bancorp/Sonoma Valley Bank |
(3) | Should theInsurerdecide to nonrenew this Policy, or condition renewal upon reduction of the Policy’s Limit of Liability, elimination of coverages, increase in deductibles, or increase of more than twenty five percent (25%) in the rate upon which the premium is based, then theInsurershall mail or deliver to the producer of record, if applicable, and to theCorporationat the address shown in Item 1. of the Declarations written notice of nonrenewal at least sixty (60) days but not more than one hundred twenty (120) days prior to the expiration of the Policy. The notice shall include the specific reason for nonrenewal or conditional renewal. |
-s- [ILLEGIBLE] Authorized Representative | August 27, 2010 |
(A Stock Company)
Mailing Address:
PO Box 3407
New York, NY 10008
(877) IRON411
Endorsement # 2
Policy Number:000571100 | Effective Date of Endorsement:July 10, 2010 | |
Insured Name:Sonoma Valley Bancorp/Sonoma Valley Bank |
-s- [ILLEGIBLE] | August 27, 2010 | |||
Authorized Representative |
(A Stock Company)
Mailing Address:
PO Box 3407
New York, NY 10008
(877) IRON411
Endorsement #3
Policy Number:000571100 | Effective Date of Endorsement:July 10, 2010 | |
Insured Name:Sonoma Valley Bancorp/Sonoma Valley Bank |
-s- [ILLEGIBLE] | September 2, 2010 | |||
Authorized Representative |
(A Stock Company)
Mailing Address:
PO Box 3407
New York, NY 10008
(877) IRON411
Endorsement #4
Policy Number:000571100 | Effective Date of Endorsement:July 10, 2010 | |
Insured Name:Sonoma Valley Bancorp/Sonoma Valley Bank |
-s- [ILLEGIBLE] Authorized Representative | September 2, 2010 Date |
DELIVERY INVOICE |
Sonoma Valley Bancorp 202 West Napa Street Sonoma, CA 95476 | Policy Inception/Effective Date: 07/01/09 Agency Number: 0432261 Transaction Type: Renewal of Policy Transaction number: 001 Processing date: 07/02/2009 Policy Number: EC09400585 | |||
North Bay Ins Brokers 25 McDonell Sonoma, CA 95476 |
Policy | Surtax/ | |||||||||
Number | Description | Amount | Surcharge | |||||||
EC09400585 | Broad Form PLUS+ Directors and Officers Liability Ins Policy (Renewal of Policy #590CM3372) | $ | 24,882.00 |
40724 Ed. 12-90 Printed in U.S.A. | INSURED COPY |
TERRORISM RISK INSURANCE ACT 2002
Name of Insured Sonoma Valley Bancorp | Policy NumberEC09400585 | Effective Date07/01/09 Processing Date07/02/09 15:04 001 |
D0146 Ed. 1-08 | ||
© 2008 The Travelers Companies, Inc. |
Page 1 of 1
ND044 Rev. 1-08 |
Page 1 of 1
Broad Form PLUS+smDirectors and Officers Liability Insurance Policy | ||
DECLARATIONS | POLICY NO. EC09400585 |
St. Paul, Minnesota 55102
(Stock Insurance Company, herein called the Company)
LIMIT OF LIABILITY. PLEASE READ IT CAREFULLY.
ITEM 1. | A. | þBLANKET DIRECTOR AND OFFICER COVERAGE ORGANIZATION:Sonoma Valley Bancorp | ||
PRINCIPAL ADDRESS: | ||||
202 West Napa Street Sonoma, CA 95476 | ||||
or; | ||||
B. | oINDEPENDENT DIRECTORSHIP LIABILITY COVERAGE INSURED PERSON: ORGANIZATION AND PRINCIPAL ADDRESS: |
ITEM 2. | POLICY PERIOD: | (a) Inception Date: 07/01/2009 | ||
(b) Expiration Date: 07/01/2010 | ||||
12:01 A.M. standard time both dates at the principal address stated in Item 1. | ||||
ITEM 3. | LIMIT OF LIABILITY(inclusive ofDefense Expenses): $ 5,000,000 maximum aggregate limit of liability for allClaims. | |||
ITEM 4. | PREMIUM: $ 24,882.00 total prepaid premium. | |||
ITEM 5. | RUN-OFF EXTENDED REPORTING PERIOD:12 months for 150% of the premium for the Policy Period, if exercised, in accordance with Section IX. of this Policy. | |||
ITEM 6. | EXTENDED REPORTING PERIOD:12 months for 150% of the premium for the Policy Period, if exercised, in accordance with Section X. of this Policy. | |||
ITEM 7. | ALL NOTICES TO THE COMPANY MUST BE ADDRESSED TO:St. Paul Fire and Marine Insurance Company, 385 Washington Street, St. Paul, Minnesota 55102-1396, Attention: Professional E&O Claim Unit as respects any notice under Section VII or XII. All other notices to the Company under this Policy shall be given to the same addressee but to the attention of the Financial and Professional Services Unit. |
DB000 Ed. 05-04 | ||
© 2004 The Travelers Companies, Inc. |
Page 1 of 2
ITEM 8. | ALL NOTICES TO THE INSURED PERSONS SHALL BE ADDRESSED TO THE FOLLOWING INSURED PERSON: Sonoma Valley Bancorp | |
ITEM 9. | PRIOR AND PENDING PROCEEDING DATE: 07/01/2003 | |
ITEM 10. | ENDORSEMENTS ATTACHED AT ISSUANCE: D0146 Ed. 1-08, TR000 Ed. 1-08, DB003 Ed. 05-04, DB005 Ed. 05-04, DB024 Ed. 6-05, MEL2980 Ed. 05-05, ILT-5009 (06-04) |
Countersigned: | ST. PAUL FIRE AND MARINE INSURANCE COMPANY | ||
Secretary | President |
DB000 Ed. 05-04 | ||
© 2004 The Travelers Companies, Inc. |
Page 2 of 2
Officers Liability Insurance Policy
LIABILITY, PLEASE READ THE ENTIRE POLICY CAREFULLY.
I. | INSURING AGREEMENTS. |
II. | DEFINITIONS. |
A. | “Application” means the application attached to and forming part of this Policy, including any materials submitted and statements made in connection therewith or public information created prior to the Inception Date in Item 2.(a) of the Declarations by or on behalf of theOrganization.IftheApplicationuses terms or phrases that differ from the terms defined in this Policy, no inconsistency between any term or phrase used in the Application and any term defined in this Policy will waive or change any of the terms, conditions and limitations of this Policy. |
B. | “Claim” means: |
1. | a written demand for monetary or non-monetary relief; | ||
2. | a civil proceeding commenced by service of a complaint or similar pleading; | ||
3. | a criminal proceeding commenced by return of an indictment; or | ||
4. | a formal administrative or regulatory proceeding, including without limitation, proceedings brought by or before the Equal Employment Opportunity Commission or similar state or local agency, commenced by the filing of a notice of charges, formal investigative order or similar document; |
C. | “Defense Expenses” means reasonable legal fees and expenses incurred by anInsured Personin defense of a Claim.Defense Expensesshall not include remuneration, overhead or benefit expenses associated with directors, officers or employees of theOrganizationor anOutside Entity. |
D. | “Insured Person” means: |
1. | if Item 1.A. of the Declarations is checked: |
a. | any past, present or future director, officer or member of the board of managers of the Organization; and | ||
b. | the functional equivalent of a director or officer of theOrganizationserving in such capacity outside of the United States; or |
DB001 Ed. 05-04 © 2004 The Travelers Companies, Inc. |
Page 1 of 8
2. | if Item 1.B. of the Declarations is checked, the individual(s) scheduled in Item 1.B., but only for his or her service as a director of the applicableOrganizationalso scheduled in Item 1.B.; and |
3. | the lawful spouse of anyInsured Personin paragraph 1. or 2. above, but solely for aWrongful Actby theInsured Personto whom such spouse is married. |
E. | “Loss” means any amount, includingDefense Expenses, that anInsured Personis obligated to pay as a result of aClaim, including but not limited to punitive, exemplary or multiplied damages if insurable under the applicable law most favorable to the insurability of such damages.Lossshall not include matters that are uninsurable under applicable law, liquidated damages (other than liquidated damages awarded under the Age Discrimination in Employment Act or the Equal Pay Act) or taxes, fines or penalties, regardless of the nature of the conduct or action that is the basis for the imposition of any such taxes, fines or penalties. |
F. | “Organization” means: |
1. | the entity listed in Item 1.A. of the Declarations and anySubsidiary; or | ||
2. | the entity(ies) listed in Item 1.B. of the Declarations. |
G. | “Outside Entity” means any entity other than theOrganization. |
H. | “Outside Position” means service by anInsured Personin any capacity with: |
1. | a non-profitOutside Entitybut only during such time that such service is with the knowledge and consent and was at the specific written request of theOrganization; or |
2. | a for-profitOutside Entitybut only if theOrganizationagrees in writing when such service begins to indemnify suchInsured Personto the fullest extent permitted by law forWrongful Actscommitted in such capacity. |
I. | “Policy Period” means the period from the Inception Date to the Expiration Date in Item 2. of the Declarations, or to any earlier cancellation date. |
J. | “Related Claims” means all Claims based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the same or related facts, circumstances, situations, transactions, events orWrongful Actsor the same or related series of facts, circumstances, situations, transactions, events orWrongful Acts. |
K. | “Subsidiary” means any corporation or limited liability company during any time that theOrganizationowns or formerly owned, directly or through one or moreSubsidiaries: (1) more than fifty percent (50%) of the outstanding securities representing the right to vote for the election of its directors, or (2) the right to elect, appoint or designate more than fifty percent (50%) of the members of its board of managers. |
L. | “Wrongful Act” means: |
1. | any actual or alleged act, error, omission, misstatement, misleading statement, breach of duty orWrongful Employment Practiceby anInsured Personin his or her capacity as such; |
2. | if Item 1.A. of the Declarations is checked, any actual or alleged act, error, omission, misstatement, misleading statement, breach of duty orWrongful Employment Practiceby anInsured Personin his or herOutside Position; and | ||
3. | any matter asserted against anInsured Personsolely by reason of his or her status as such. |
DB001 Ed. 05-04 © 2004 The Travelers Companies, Inc. |
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M. | “Wrongful Employment Practice” means any of the following occurring in the course of or arising out of a claimant’s employment or application for employment with theOrganization: |
1. | violation of any employment discrimination law or disparate treatment of, or the failure or refusal to hire a claimant because he or she is or claims to be a member of a class which is or is alleged to be legally protected; |
2. | any adverse employment action against a claimant on account of such claimant’s exercise or attempted exercise of rights protected by law, refusal to violate any law, or on account of the claimant having assisted or testified in or cooperated with a proceeding or investigation regarding alleged violations of law; |
3. | sexual or other harassment which is made a term or condition of a claimant’s employment or advancement, which the submission to or rejection of is used as a basis for decisions affecting the claimant, or which has the purpose or effect of creating an intimidating, hostile or offensive work environment; or |
4. | actual or constructive termination of an employment relationship with theOrganisation in a manner or for a reason which is contrary to applicable law or public policy, or in violation of an implied agreement for continued employment. |
III. | EXCLUSIONS. |
A. | Except forDefense Expenses, the Company shall not payLossin connection with anyClaim: |
1. | by or on behalf of, or in the name or right of: |
a. | theOrganization; or | ||
b. | anOutside Entityagainst anInsured Personfor a Wrongful Act in anOutside Position; |
2. | brought about or contributed to any dishonest or fraudulent act or omission, any criminal act or omission or any willful violation of any statute, rule or law by anInsured Person, or by anInsured Persongaining any personal profit, remuneration or advantage to which he or she was not legally entitled; provided, that |
a. | if it is determined by final adjudication that this Exclusion (A)(2) applies to anyClaimagainst anInsured Person, suchInsured Personwill repay the Company anyDefense Expensespaid on his or her behalf in connection with suchClaim, and |
b. | this exclusion shall not apply to aClaimfor aWrongful Employment Practice alleging a willful violation of any statute, rule or law. |
B. | The Company shall not payLoss, includingDefense Expenses, in connection with anyClaim: |
1. | for bodily injury, sickness, disease or death of any person, or for damage to, destruction of or loss of use of any tangible property; provided, that this Section III. Exclusion (B)(1) shall not apply: |
a. | to anyClaimin the form of a derivative action by any security holder of theOrganizationacting independently and without the solicitation or assistance of theOrganization(including any director, officer or member of the board of managers thereof); |
DB001 Ed. 05-04 © 2004 The Travelers Companies, Inc. |
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b. | to the extent such Claim is for any actual or alleged violation of the Securities Act of 1933, the Securities Exchange Act of 1934 or any state securities statute; or |
c. | to that portion of aClaimfor aWrongful Employment Practiceseeking emotional distress or mental anguish; |
2. | based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any fact, circumstance, situation orWrongful Act underlying or alleged in any prior and/or pending civil, criminal, administrative or regulatory proceeding as of the Prior and Pending Proceeding Date in Item 9. of the Declarations; |
3. | based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any fact, circumstance, situation orWrongful Actwhich was the subject of any notice given before the Inception Date in Item 2(a). of the Declarations under any policy of directors and officers liability or similar insurance; or |
4. | with respect to anySubsidiary,based upon, alleging, arising out of, or in any way relating to, directly or indirectly, anyWrongful Actcommitted by a director or officer of suchSubsidiaryduring any time when such entity was not aSubsidiary,or any suchWrongful Actoccurring at any time when such entity is aSubsidiarywhich is based upon, arises out of, or in any way related to, directly or indirectly, the same or related facts, circumstances, situations, transactions or events or the same or related series of facts, circumstances, situations, transactions or events occurring at any time during which such entity was not aSubsidiary. |
IV. | OTHER INSURANCE AND INDEMNIFICATION. |
A. | all other insurance, whenever purchased, whether such other insurance is stated to be primary, excess, contributing, contingent or otherwise; provided, that this Policy shall not be subject to the terms of any other insurance; and |
B. | all indemnification to which anInsured Personmay be entitled from any source, including without limitation, theOrganizationand/or anyOutside Entity; |
V. | LIMIT OF LIABILITY. |
A. | the Company’s maximum aggregate limit of liability for allClaims,includingRelated Claims, first made or deemed to have been made during thePolicy Period,shall not exceed the amount stated in Item 3. of the Declarations; |
B. | Defense Expensesshall be part of, and not in addition to, the Company’s limit of liability, and payment ofDefense Expensesby the Company shall reduce, and may exhaust, such limit of liability; and |
C. | the Company will have no obligation to payLoss,including Defense Expenses, after the Company’s maximum aggregate limit of liability stated in Item 3. of the Declarations has been exhausted by the payment ofLoss,including Defense Expenses. If the Company’s limit of liability is exhausted by the payment of Loss including Defense Expenses, the premium will be fully earned. |
DB001 Ed. 05-04 © 2004 The Travelers Companies, Inc. |
Page 4 of 8
VI. | DEFENSE AND SETTLEMENT OF CLAIMS. |
A. | It shall be the duty of theInsured Personsand not the duty of the Company to defend Claims. NoDefense Expensesshall be incurred and no settlement of anyClaimshall be made without the Company’s written consent, such consent not to be unreasonably withheld. |
B. | In the event that: |
1. | theOrganizationand theOutside Entity(if applicable) are required or permitted to indemnify the Insured Person(s) for Defense Expenses or to advance on behalf of any Insured Person(s) any Defense Expenses in any Claim, whether such indemnity or advancement is pursuant to law, charter or other similar formative document, by-laws or written agreements of the Organization or Outside Entity, and |
2. | the Organization and the Outside Entity (if applicable) refuses or is financially unable to indemnify the Insured Persons for such Defense Expenses, |
C. | Except for such Defense Expenses, the Company shall pay or reimburse Loss only upon the final disposition of any Claim. |
VII. | REPORTING OF POTENTIAL CLAIMS. |
VIII. | CANCELLATION. |
A. | The Company may cancel this Policy only for failure to pay a premium when due, and then only by mailing or delivering to the Insured Person scheduled in Item 8. of the Declarations, written notice stating when, not less than ten (10) days thereafter, such cancellation shall be effective. |
B. | Except as provided in Section IX. Changes In Exposure, the Insured Person scheduled in Item 8. of the Declarations may cancel this Policy by mailing the Company written notice stating when, not later than the Expiration Date set forth in Item 2(b). of the Declarations, thereafter such cancellation shall be effective. In such event the earned premium shall be computed in accordance with the customary short rate table and procedure. Premium adjustment may be made either at the time cancellation is effective or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. |
DB001 Ed. 05-04 © 2004 The Travelers Companies, Inc. |
Page 5 of 8
C. | The Company shall not be required to renew this Policy upon its expiration. |
A. | If, during thePolicy Period, any of the following events occurs: |
1. | the acquisition of anOrganizationor of all or substantially all of its assets by another entity, or the merger or consolidation of anOrganizationinto or with another entity such that theOrganizationis not the surviving entity; | ||
2. | the appointment of a receiver, conservator, trustee, liquidator or rehabilitator, or any similar official, for or with respect to anOrganization; or | ||
3. | any transaction or event as a result of which any person, entity or affiliated group of persons or entities acquires or obtains record or beneficial ownership or control of fifty percent (50%) or more of the outstanding securities representing the right to vote for the election of the directors or members of the board of managers of anOrganization; |
B. | Upon the occurrence of any Change in Control, theInsured Personscheduled in Item 8. of the Declarations shall have the right, upon payment of the additional premium as calculated pursuant to Item 5. of the Declarations, to the period of time set forth in Item 5. of the Declarations, following the effective date of such Change in Control (“the Run-Off Extended Reporting Period”) in which to give the Company written notice ofClaimsfirst made during the Run-Off Extended Reporting Period againstInsured Persons, but only forWrongful Acts occurring wholly prior to such Change in Control and which otherwise would be covered by this Policy, subject to the conditions applicable to the Extended Reporting Period described in Section X.A through X.C. The right to elect the Run-Off Extended Reporting Period, shall terminate unless written notice of such election, together with payment of the additional premium due, is received by the Company within thirty (30) days of the Change in Control. In the event the Run-Off Extended Reporting Period is purchased, the option to purchase the Extended Reporting Period in Section X. shall terminate. In the event the Run-Off Extended Reporting Period is not purchased, theInsured Personscheduled in Item 8. of the Declarations will have the right to purchase the Extended Reporting Period under the terms of Section X. of this Policy. |
C. | If, during the Policy Period: |
1. | theOrganizationin Item 1.A. of the Declarations acquires any entity by merger or forms or acquires anySubsidiary; or | ||
2. | anOrganizationin Item 1.B. of the Declarations acquires any entity by merger; |
DB001 Ed. 05-04 | ||
© 2004 The Travelers Companies, Inc. |
Page 6 of 8
A. | the Extended Reporting Period shall not provide a new, additional or renewed limit of liability. The Company’s total liability for allClaimsmade during the Extended Reporting Period shall be limited to the remaining portion of the maximum aggregate limit of liability set forth in Item 3. of the Declarations as of the effective date of the nonrenewal or cancellation; | |
B. | the entire premium for the Extended Reporting Period, if purchased, shall be deemed to have been fully earned at the commencement of such Extended Reporting Period; | |
C. | Section VII. does not apply and may not be invoked during the Extended Reporting Period; and | |
D. | the right to elect the Extended Reporting Period under this Section X. shall terminate unless written notice of such election, together with payment of the additional premium due, is received by the Company within thirty (30) days of the effective date of the nonrenewal or cancellation. |
A. | Insured Person’s Duties. It is a condition precedent to all insurance afforded by this Policy that: |
1. | in the event of a Claim made against anyInsured Person, written notice concerning all particulars of such Claim, including all facts constituting the allegedWrongful Act, the identity of each person allegedly involved in or affected by suchWrongful Act, and the date(s) of the alleged events, shall be provided to the Company as soon as practicable; | ||
2. | all notices under this Section XII. A. must be sent by certified mail or prepaid overnight mail to the address set forth in Item 7. of the Declarations; | ||
3. | theInsured Person(s)shall cooperate with the Company and, upon the Company’s request, assist in making settlements ofClaimsand in defense of Claims and in enforcing rights of contribution or indemnity against any person or entity which may be liable to the Insured Person(s) because of an act or omission insured under this Policy, shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. TheInsured Person(s)shall provide the Company with all information, assistance and cooperation that it reasonably requests. TheInsured Person(s)shall not voluntarily settle any claim, make a settlement offer, assume or admit any liability nor, except at theInsured Person’sown cost, voluntarily make any payment, pay or incur any Defense Expenses, or assume any obligation or incur any other expense, without the Company’s prior written consent, such consent not to be unreasonably withheld. The Company shall not be liable for any settlement, Defense Expenses, assumed obligation or admission to which it has not consented; and | ||
4. | the obligations of theInsured Person(s)under this Section XII. A. will survive the Policy. |
B. | Action Against the Company. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this Policy, nor until the amount of theInsured Person’sobligation to pay shall have been finally determined either by judgment against theInsured Personafter actual trial or by written agreement of theInsured Person, the claimant and the Company. |
DB001 Ed. 05-04 | ||
© 2004 The Travelers Companies, Inc. |
Page 7 of 8
C. | Subrogation.In the event of payment under this Policy the Company shall be subrogated to all of the Insured Person’s rights of recovery against any person or organization, including without limitation for indemnification by the Organization and anyOutside Entity, to the extent of such payment. TheInsured Personswill execute all papers and do everything necessary to secure such rights, including the execution of any documents necessary to enable the Company effectively to bring suit in his or her name, including without limitation an action against the Organization or anyOutside Entityfor nonpayment of indemnity due and owing to theInsured Person. TheInsured Personsshall do nothing that may prejudice its position or potential or actual rights of recovery. The obligations of theInsured Personsunder this subsection XII.C. will survive the Policy. |
D. | Changes.Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of the Policy, or estop the Company from asserting any right under the terms, conditions and limitations of this Policy, nor may the terms, conditions and limitations of this Policy be waived or changed, except by a written endorsement issued by the Company to form a part of this Policy. |
E. | Assignment. Assignment of interest under this Policy shall not bind the Company until its consent is endorsed hereon. |
F. | Representations. TheInsured Person(s)represents that the particulars and statements contained in the Application are true, accurate and complete, and agree that this Policy is issued in reliance on the truth of that representation, and that such particulars and statements, which are incorporated into and constitute a part of this Policy, are the basis of this Policy and are material to the Company’s acceptance of this risk. No knowledge or information possessed by anyInsured Personshall be imputed to any other Insured Person to determine whether coverage shall be available. |
G. | Authorization. By acceptance of this Policy, theInsured Personscheduled in Item 8. of the Declarations agrees to act on behalf of allInsured Personswith respect to the payment of premiums, the receiving of any return premiums that may become due under the Policy, and the receiving of notices of cancellation, non-renewal, or change of coverages and the Insured Persons each agree that they have, individually and collectively, delegated such authority exclusively to theInsured Personscheduled in Item 8. of the Declarations; provided, however, that nothing herein shall relieve anyInsured Person, from giving any notice to the Company that is required under Section XII.A. of this Policy. |
H. | Entire Agreement. TheInsured Personsagree that this Policy, including theApplication, including any materials submitted in connection therewith, and any endorsements, constitutes the entire agreement between them and the Company or any of its agents relating to this insurance. |
I. | Headings.The descriptions in the headings and sub-headings of this Policy are solely for convenience, and form no part of the terms and conditions of coverage. |
DB001 Ed. 05-04 | ||
© 2004 The Travelers Companies, Inc. |
Page 8 of 8
ATTACHED TO AND FORMING | DATE ENDORSEMENT OR | * EFFECTIVE DATE OF ENDORSEMENT OR RIDER | ||||
PART OF BOND OR POLICY NO. | RIDER EXECUTED | |||||
12:01 A.M. LOCAL TIME AS | ||||||
EC09400585 | 07/02/09 | 07/01/09 | SPECIFIED IN THE BBOND OR POLICY | |||
* ISSUED TO | ||||||
Sonoma Valley Bancorp |
TR000 Ed. 01-08
1. | The following is added to this Policy: |
1. | the Insurer will not be responsible for the payment of any portion of the amount of such losses that exceeds $100 billion; and | ||
2. | insured losses up to $100 billion will be subject to pro rata allocation in accordance with procedures established by the Secretary of the Treasury. |
2. | The following is added to the Definitions section: |
1. | the act resulted in insured losses in excess of $5 million in the aggregate, attributable to all types of insurance subject to the Terrorism Risk Insurance Act; and | ||
2. | the act is a violent act or an act that is dangerous to human life, property or infrastructure and is committed by an individual or individuals as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. |
By | COPY |
© 2008 The Travelers Companies, Inc.
ATTACHED TO AND FORMING | DATE ENDORSEMENT OR | * EFFECTIVE DATE OF ENDORSEMENT OR RIDER | ||||
PART OF POLICY NO. | RIDER EXECUTED | |||||
12:01 A.M. LOCAL TIME AS | ||||||
EC09400585 | 07/02/09 | 07/01/09 | SPECIFIED IN THE POLICY | |||
* ISSUED TO | ||||||
Sonoma Valley Bancorp |
DB003 Ed. 05-04
By | COPY |
ATTACHED TO AND FORMING | DATE ENDORSEMENT OR | * EFFECTIVE DATE OF ENDORSEMENT OR RIDER | ||||
PART OF POLICY NO. | RIDER EXECUTED | |||||
12:01 A.M. LOCAL TIME AS | ||||||
EC09400585 | 07/02/09 | 07/01/09 | SPECIFIED IN THE POLICY | |||
* ISSUED TO | ||||||
Sonoma Valley Bancorp |
By | COPY |
ATTACHED TO AND FORMING | DATE ENDORSEMENT OR | * EFFECTIVE DATE OF ENDORSEMENT OR RIDER | ||||
PART OF BOND OR POLICY NO. | RIDER EXECUTED | |||||
12:01 A.M. LOCAL TIME AS | ||||||
EC09400585 | 07/02/09 | 07/01/09 | SPECIFIED IN THE BOND OR POLICY | |||
* ISSUED TO | ||||||
Sonoma Valley Bancorp |
AMENDING ORGANIZATION DEFINITION, AND
AMENDING CHANGES IN EXPOSURE SUBSECTION A.
(for use with DB001)
DB024 Ed. 6-05
1. | The following replaces the definition of “Organization” in Section II. DEFINITIONS: | |
“Organization” means any entity listed in the Declarations, including any Subsidiary. | ||
2. | The following definition is added to SectionII. DEFINITIONS: | |
“Parent Organization” means theOrganizationfirst listed in Item 1.A. or 1.B. of the Declarations. | ||
3. | Subsection A. of SectionIX. CHANGES IN EXPOSUREis replaced with the following paragraph: |
A. | If, during the Policy Period, any of the following change in control events occurs: |
1. | the acquisition of theParent Organizationor of all or substantially all of its assets by another entity, or the merger or consolidation of theParent Organizationinto or with another entity such that theParent Organizationis not the surviving entity; | ||
2. | the appointment of a receiver, conservator, trustee, liquidator or rehabilitator, or any similar official, for or with respect to theParent Organization; or | ||
3. | any transaction or event as a result of which any person, entity or affiliated group of persons or entities acquires or obtains record or beneficial ownership or control of fifty percent (50%) or more of the outstanding securities representing the right to vote for the election of the directors or members of the board of managers of theParent Organization; |
By | COPY |
ATTACHED TO AND FORMING | DATE ENDORSEMENT OR | * EFFECTIVE DATE OF ENDORSEMENT OR RIDER | ||||
PART OF BOND OR POLICY NO. | RIDER EXECUTED | |||||
12:01 A.M. LOCAL TIME AS | ||||||
EC09400585 | 07/02/09 | 07/01/09 | SPECIFIED IN THE BOND OR POLICY | |||
* ISSUED TO | ||||||
Sonoma Valley Bancorp |
CLAIMS BY BANKRUPTCY TRUSTEE
(for use with DB001)
MEL2980 Ed. 05-05
A. | Except forDefense Expenses, the Company shall not payLossin connection with anyClaim: |
1. | by or on behalf of, or in the name or right of: |
a. | theOrganization; or | ||
b. | anOutside Entity against an Insured Person for a Wrongful Act in an Outside Position; |
(i) | anyClaim, whether direct or in the form of a derivative action, by a security holder of theOrganizationor of suchOutside Entityacting independently and without the solicitation or assistance of anyInsured Person or theOrganizationor suchOutside Entity (including any director, officer or member of the board of managers thereof); or | ||
(ii) | in any bankruptcy proceeding against theOrganization, anyClaimbrought or maintained by a natural person who is the examiner, trustee, receiver, liquidator or rehabilitator, or any similar official, of theOrganization; |
By | COPY |
ISSUED TO: Sonoma Valley Bancorp | POLICY NUMBER: EC09400585 |
CANCELLATION FOR NONPAYMENT OF PREMIUM
1. | The policy provisions regarding cancellation by the Company are deleted and replaced with the following: |
A. | We may cancel this Policy for nonpayment of premium by mailing to the entity named in Item 1 of the Declarations with a copy to the agent or broker of record written notice of cancellation at least 10 days before the effective date of cancellation. |
2. | The following is added and supersedes any other provision to the contrary: |
A. | If we decide not to renew this Policy, we will mail written notice of nonrenewal to the entity named in Item 1 of the Declarations with a copy to the agent or broker of record at least 60 days but not more than 120 days before its expiration date, or its anniversary date if it is a Policy written for a term of more than one year or with no fixed expiration date. | ||
B. | Nonrenewal notice is not required if: |
a) | transfer or renewal of a policy without changes between insurers of the same group; | ||
b) | extensions of 90 days or less; | ||
c) | the insured has obtained or agreed to obtain replacement coverage within 60 days of termination; | ||
d) | for 60 day policies where notice of renewal is given at the time the policy was issued; | ||
e) | the insured requests a change in terms, conditions or risk covered by the policy within 60 days prior to the end of the policy period; or | ||
f) | the insured has made a written offer 60 days prior to the end of the policy term to renew under different terms. |
3. | Any notice of cancellation or nonrenewal will be sent by certified mail to the entity named in Item 1 of the Declarations with a copy to the agent or broker of record at the last mailing address known to us. |
4. | Mailing time must be added to the notice period as follows: |
a. | add 5 days when mailing to an addressee in California; | ||
b. | add 10 days for an addressee outside of California; or | ||
c. | add 20 days for an addressee outside the United States. |
© 2004 The St. Paul Travelers Companies, Inc. All Right Reserved
Houston, Texas
POLICY NUMBER: 14-MGU-10-A21875 | RENEWAL OF: N/A |
ITEM 1. | NAMED CORPORATION: | Sonoma Valley Bancorp | ||
202 West Napa Street | ||||
Sonoma, CA 95476 |
ITEM 2. | POLICY PERIOD: | |
(a) Inception Date: 7/10/2010 | ||
(b) Expiration Date: 7/10/2011 | ||
at 12:01 a.m. at the Principal Address stated in Item 1. | ||
ITEM 3. | LIMIT OF LIABILITY(inclusive of Defense Costs): $5,000,000 in the aggregate for all INSURING AGREEMENTS combined. |
ITEM 4. | RETENTIONS: | |||
(a) INSURING AGREEMENT A: | $0 or minimum required under applicable law, if any | |||
(b) INSURING AGREEMENT B(1): | $150,000 for Loss arising from Claims alleging the same | |||
Wrongful Act or related Wrongful Acts (waivable under the | ||||
circumstances described in CONDITION (A)(5)) | ||||
(c) INSURING AGREEMENT B(2): | $150,000 for Loss arising from Claims alleging the same | |||
Wrongful Act or related Wrongful Acts (waivable under the | ||||
circumstances described in CONDITION (A)(5)) | ||||
ITEM 5. | PREMIUM: $200,000.00 |
ITEM 6. | NOTICES REQUIRED TO BE GIVEN TO THE INSURER MUST BE ADDRESSED TO: | |
HCC GLOBAL FINANCIAL PRODUCTS P.O. Box 4018 Farmington, CT 06034 Attention: Claims Manager |
ITEM 7. | DISCOVERY PERIOD: | |
(a) Premium: 200% of the annual Premium. | ||
(b) Duration: 365 days |
ITEM 8. | ENDORSEMENTS ATTACHED AT ISSUANCE: | |
991-207 991-404 991-409 991-423 991-435 991-442 991-449 991-600 991-712 991-717 991-722 | ||
991-726 991-727 991-819 991-828 991-850 991-893 991-1235 80003 80016 |
Secretary | President | Authorized Representative | ||
Date: July 19, 2010 | USSIC-990 (04/2002) |
INCLUDING THIRD PARTY COVERAGE
(1) | INSURING AGREEMENT (B)(2) is amended to read: |
(2) | Securities ClaimsorClaimsforEmployment Practices Wrongful Actsfirst made during thePolicy Periodor the Discovery Period (if applicable) against theCompanyforWrongful Acts. |
(2) | The following DEFINITIONS are added to the Policy: | |
Discriminationmeans: |
(1) | any failure or refusal to hire, failure or refusal to promote, demotion or discharge of, or wrongful failure to grant tenure to, any person, or | ||
(2) | any limitation, segregation or classification of any employee or applicant for employment in any way that would deprive or tend to deprive any person of employment opportunities or otherwise adversely affect his or her status as an employee; |
(1) | Discrimination, | ||
(2) | Retaliation, | ||
(3) | Sexual Harassment, | ||
(4) | Workplace Harassment, | ||
(5) | Workplace Tort, | ||
(6) | Wrongful Termination, or | ||
(7) | Third Party Wrongful Act. |
Ed. 06/04
Page 1 of 4
(1) | discrimination by anInsuredagainst aThird Partybased on suchThird Party’s race, color, religion, age, sex, national origin, disability, pregnancy, sexual orientation or preference, or other status that is protected pursuant to any applicable federal, state or local statute or ordinance; or | ||
(2) | sexual or other harassment by anInsuredagainst aThird Party. |
(3) | DEFINITION (F)Insured Person,subsection (2) is amended to read: |
(2) | with respect only toSecurities ClaimsandClaimsforEmployment Practices Wrongful Acts,any past, present or future employee of theCompany. |
(4) | DEFINITION (G) Loss, subsection (2) is amended to read: |
(2) | theCompanyis legally obligated to pay as a result of anySecurities ClaimorClaim forEmployment Practices Wrongful Acts |
(5) | DEFINITION (P)Wrongful Actis deleted in its entirety and replaced with the following: |
(P) | Wrongful Actmeans: |
(1) | anyEmployment Practices Wrongful Act (a)by theCompany,or(b)by anInsured Personin his or her capacity as such; | ||
(2) | any other actual or alleged act, error, misstatement, misleading statement, omission or breach of duty (a) by anInsured Personin his or her capacity as such, including in anOutside Capacity,or (b) with respect only toSecurities Claims,by theCompany;or | ||
(3) | any matter claimed against anInsured Personsolely by reason of his or her service in such capacity or in anOutside Capacity. |
Ed. 06/04
Page 2 of 4
(6) | The following EXCLUSIONS are added to the Policy: |
(7) | EXCLUSION (C) will not apply toLossfor mental anguish, emotional distress, libel, slander, defamation or disparagement or violation of a person’s right of privacy caused by anEmployment Practices Wrongful Act. | |
(8) | EXCLUSION (F) is amended by the addition of the following subsection: |
(5) | for an actual or allegedEmployment Practices Wrongful Act; |
(9) | The Insurer’s maximum aggregate liability for allLosson account ofClaimsforEmployment Practices Wrongful Actswill be $2,000,000, which amount is included within, and not in addition to, the Limit of Liability set forth in ITEM 3 of the Declarations. | |
(10) | Notwithstanding anything in this Policy to the contrary: |
(a) | the retention under INSURING AGREEMENT (B)(2) applicable toClaimsforEmployment Practices Wrongful Acts(other thanThird Party Wrongful Acts)will be $100,000; and | ||
(b) | the retention under INSURING AGREEMENT (B)(2) applicable toClaimsforThird Party Wrongful Actswill be $100,000. |
(11) | CONDITION (D)Defense Costs,Settlements, Allocation ofLoss,Priority of Payments, subsection (3) is deleted in its entirety and replaced with the following: |
(3) | IfLosscovered by this Policy and loss not covered by this Policy are both incurred in connection with a singleClaim,either because theClaimincludes both covered and uncovered matters, or because theClaimis made both againstInsured Persons(or, with respect only toSecurities ClaimsorClaimsforEmployment Practices Wrongful Acts,againstInsureds)and against others not included within the definition ofInsured Person(or, with respect only toSecurities ClaimsorClaimsforEmployment Practices Wrongful Acts,the definition ofInsured),theInsuredsand the Insurer agree to use their best efforts to determine a fair and proper allocation of all such amounts, taking into account the relative legal and financial exposures of the parties to theClaimand the relative benefits to be obtained by the resolution of theClaim.The Insurer will be obligated to pay only those amounts or portions ofLossallocated to covered matters claimed againstInsured Persons(or, with respect only toSecurities ClaimsorClaimsforEmployment Practices Wrongful Acts,againstInsureds).If theInsuredsand the Insurer are unable to agree upon an allocation, then until a final allocation is agreed upon or determined pursuant to the provisions of this Policy and applicable law, the Insurer will be obligated to make an interim payment of that amount or portion ofLoss,includingDefense Costs,which the parties agree is not in dispute. |
Ed. 06/04
Page 3 of 4
By: | ||||
Attorney-in-Fact |
Ed. 06/04
Page 4 of 4
By: | ||||
Attorney-in-Fact |
Ed. 08/00
Page 1 of 1
(B) | arising out of, based upon or attributable to the commission by anyInsuredof any deliberately criminal or deliberately fraudulent or dishonest act; provided, that this EXCLUSION (B) will apply only if there has been a final adjudication adverse to suchInsuredestablishing that theInsuredso acted; |
By: | ||||
Attorney-in-Fact |
Ed. 07/00
Page 1 of 1
By: | ||||
Attorney-in-Fact |
Ed. 12/02
Page 1 of 1
(5) | brought by anyInsured Personwho has not served as a duly elected director, officer, trustee, governor, management committee member, member of the management board or General Counsel (or equivalent position) of, or consultant to, theCompanyfor at least 3 years prior to suchClaimbeing first made; |
By: | ||||
Attorney-in-Fact |
Ed. 01/03
Page 1 of 1
(A-SIDE CARVEBACK)
(D) | for the actual, alleged or threatened discharge, dispersal, release or escape ofPollutantsor any direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralizePollutants;provided, that this EXCLUSION (D) will not apply toSecurities Claims;provided further, that this EXCLUSION (D) will not apply toClaimsforLosspayable under INSURING AGREEMENT (A); |
By: | ||||
Attorney-in-Fact |
Ed. 05/04
Page 1 of 1
INSURED VS. INSURED EXCLUSION
(1) | AnInsured Person’sprovidingSpecific Assistancein aClaimwhich is a shareholder derivative action brought and maintained on behalf of theCompanywill not alone be deemed “solicitation, assistance or active participation” for purposes of subsection (1) of EXCLUSION (F). | ||
(2) | For purposes of this endorsement,Specific Assistancemeans assistance consisting of actions which are protected under Section 806 of the Sarbanes-Oxley Act of 2002 (or similar “whistleblower” protection provision of applicable federal, state, local or foreign securities law). |
By: | ||||
Attorney-in-Fact |
Ed. 07/06
Page 1 of 1
By: | ||||
Attorney- in-Fact |
Ed. 12/05
Page 1 of 1
(3) | IfLosscovered by this Policy and loss not covered by this Policy are both incurred in connection with a singleClaim,either because theClaimincludes both covered and uncovered matters, or because theClaimis made both againstInsured Persons(or, with respect only toSecurities Claims,againstInsureds) and against others not included within the definition ofInsured Person(or, with respect only toSecurities Claims,the definition ofInsured), theInsuredsand the Insurer agree to use their best efforts to determine a fair and proper allocation of all such amounts. The Insurer will be obligated to pay only those amounts or portions ofLoss allocated to covered matters claimed againstInsured Persons(or, with respect only toSecurities Claims,againstInsureds). If theInsuredsand the Insurer are unable to agree upon an allocation, then until a final allocation is agreed upon or determined pursuant to the provisions of this Policy and applicable law, the Insurer will be obligated to make an interim payment of that amount or portion ofLoss, includingDefense Costs,which the parties agree is not in dispute. |
By: | ||||
Attorney-in-Fact |
Ed. 09/06
Page 1 of 1
(1) | TheInsuredsmust, as a condition precedent to the obligations of the Insurer under this Policy, give written notice, including full details, to the Insurer of anyClaimas soon as practicable after theCompany’sChief Financial Officer becomes aware of suchClaim. |
By: | ||||
Attorney-in-Fact |
Ed. 04/05
Page 1 of 1
(PRESUMPTIVE MATERIALITY DELETED)
(M) | Representations and Severability | ||
TheInsuredsrepresent that the particulars and statements contained in theApplicationare true, accurate and complete. This Policy is issued in reliance upon the truth of such representations. If any of the particulars or statements in theApplicationis untrue, this Policy will be void with respect to anyInsuredwho knew of such untruth or to whom such knowledge is imputed. For purposes of the foregoing sentence: |
(1) | no knowledge or information possessed by anyInsured Person will be imputed to any otherInsured Person;and |
(2) | except for knowledge or information possessed by theCompany’schairman of the board, chief executive officer, president, chief financial officer or general counsel, no knowledge or information possessed by anyInsured Personwill be imputed to theCompany. |
By: | ||||
Attorney-in-Fact |
Ed. 01/06
Page 1 of 1
By: | ||||
Attorney-in-Fact |
Ed. 11/06
Page 1 of 1
(1) | TheInsuredsmust, as a condition precedent to the obligations of the Insurer under this Policy, give written notice, including full details, to the Insurer of anyClaimas soon as practicable after it is made, but in no event later than thirty (30) days after the end of thePolicy Period. |
By: | ||||
Attorney-in-Fact |
Ed. 07/07
Page 1 of 1
TO INCLUDE DEBTOR-IN-POSSESSION
(1) | DEFINITION (C)Companyis amended to read as follows: |
(C) | Companymeans theNamed Corporationand anySubsidiarythereof, including, in the event a bankruptcy proceeding is instituted by or against any of the foregoing entities, the resulting debtor-in-possession (or equivalent status outside the United States), if any. |
(2) | The following subsection is added to EXCLUSION (F): |
(5) | brought and maintained by theCompanyin its capacity as debtor-in-possession pursuant to a bankruptcy proceeding; |
By: | ||||
Attorney-in-Fact |
Ed. 12/00
Page 1 of 1
(1) | DEFINITION (I)No Liabilityis deleted in its entirety. | |
(2) | CONDITION (A)Limit of Liability and Retention, subsection (5), is deleted in its entirety. |
By: | ||||
Attorney-in-Fact |
Ed. 04/01
Page 1 of 1
(OMNIBUS PLANS; SUBLIMIT; SEPARATE RETENTION)
(1) | The following INSURING AGREEMENT is added to the Policy: | |
The Insurer will pay to or on behalf of theInsureds Lossarising fromClaimsfirst made against them during thePolicy Periodor Discovery Period (if applicable) forWrongful Acts. |
(2) | Solely for purposes of the coverage afforded pursuant to this endorsement: |
(a) | The terms“Administration,” “Employee Benefit Plan”and“Employee Benefits” are added to the DEFINITIONS section of the Policy and such terms are defined as follows. | ||
Administrationmeans: |
(1) | giving counsel or advice with respect toEmployee Benefits; | ||
(2) | interpretingEmployee Benefits; | ||
(3) | handling records in connection withEmployee Benefits;or | ||
(4) | effecting enrollment, cancellation or termination with respect toEmployee Benefits. |
(1) | as of the effective date of this endorsement, was or is sponsored solely by theCompany(or jointly by theCompanyand a labor organization) exclusively for the benefit of theCompany’semployees; or |
(2) | subsequent to the effective date of this endorsement, is created or acquired by theCompanyand is sponsored solely by theCompany(or jointly by theCompanyand a labor organization) exclusively for the benefit of theCompany’semployees, provided that (i) the Insurer receives written notice of such creation or acquisition within ninety (90) days thereof, (ii) the Insurer has agreed to provide such coverage, subject to any additional terms and conditions and payment of additional premium as the Insurer may require, and (iii) such coverage will be limited toClaimsforWrongful Acts committed or allegedly committed on or after the effective date of such creation or acquisition. |
(b) | DEFINITIONS (E) and (P) are amended to read in their entirety as follows: |
(E) | Insuredmeans: |
(1) | theCompany; | ||
(2) | anyEmployee Benefit Plan;or | ||
(3) | any natural person (including anyInsured Person) who was, is or becomes a trustee of anEmployee Benefit Planwhile acting in his or her capacity as a fiduciary. |
Ed. 11/04
Page 1 of 3
(P) | Wrongful Actmeans: |
(1) | any breach of the duties, obligations and responsibilities imposed by ERISA or COBRA (or by any similar state, local or foreign law or regulation) committed or allegedly committed by anInsuredin the discharge of his, her or its duties as respects anEmployee Benefit Plan; |
(2) | any other matter claimed against anInsuredsolely because of theInsured’sstatus as a fiduciary of anEmployee Benefit Plan;or |
(3) | any negligent act, error or omission committed or allegedly committed by anInsuredin theAdministration ofEmployee Benefits. |
(c) | Notwithstanding anything in this Policy to the contrary, DEFINITION (G)Losswill include civil penalties imposed under Sections 502(i) and 502(1) of ERISA. |
(3) | Solely for purposes of the coverage afforded pursuant to this endorsement: |
(a) | EXCLUSIONS (E) and (F) are deleted. | ||
(b) | The following exclusions are added to the EXCLUSIONS section of the Policy: |
(i) | for benefits which are or may become due under anEmployee Benefit Planif such benefits are paid (or may lawfully be paid) from the funds of suchEmployee Benefit Plan;provided that this EXCLUSION will not apply to the extent such sums are payable as a personal obligation of a natural personInsuredbecause of his or herWrongful Act;or |
(ii) | arising out of, based upon or attributable to the failure to comply with any law concerning workers’ compensation insurance, unemployment insurance, disability insurance or Social Security (other than COBRA). |
(i) | anyEmployee Benefit Planthat was sold, spun-off, merged or terminated; provided that this EXCLUSION will not apply toClaimsforWrongful Acts committed or allegedly committed prior to the date of such sale, spin-off, merger or termination; |
(ii) | anyWrongful Actas respects anEmployee Benefit Plancommitted or allegedly committed when suchEmployee Benefit Planwas not sponsored solely by theCompany(or jointly by theCompanyand a labor organization) exclusively for the benefit of theCompany’semployees; or |
(iii) | the liability of others assumed by anInsuredunder any contract or agreement (whether oral or written); provided that this EXCLUSION will not apply to liability assumed in accordance with the agreement or declaration of trust pursuant to which anEmployee Benefit Planwas established. |
Ed. 11/04
Page 2 of 3
(4) | The Insurer’s maximum aggregate liability for allLosson account of allClaimsfirst made during the samePolicy Periodand covered pursuant to this endorsement will not exceed $5,000,000 (“Fiduciary Liability Sublimit”). The Fiduciary Liability Sublimit shall be part of and not in addition to the Limit of Liability set forth in ITEM 3 of the Declarations, and payment of suchLossshall reduce such Limit of Liability. |
(5) | A retention of $100,000 shall apply to eachClaimcovered pursuant to this endorsement, unless theLossarising from suchClaimis incurred by a natural personInsuredand theCompanyis not legally permitted to indemnify such natural personInsuredfor suchLossor is unable to provide such indemnification solely by reason of theCompany’sfinancial insolvency. ITEM 4 of the Declarations will be deemed amended accordingly. |
By: | ||||
Attorney-in-Fact |
Ed. 11/04
Page 3 of 3
(1) | For purposes of this endorsement,Section 11 or 12 Claimmeans anySecurities Claimalleging a violation of Section 11 or 12 of the Securities Act of 1933 in connection with an initial or subsequent public offering of theCompany’ssecurities. |
(2) | Notwithstanding anything in this Policy to the contrary, the Insurer will not assert that any award in or settlement of anySection 11 or 12 Claimconstitutes uninsurable loss under this Policy. For purposes of determining the insurability of such amounts, the Insurer agrees to abide by the law of whichever jurisdiction is applicable to suchSection 11 or 12 Claimand is most favorable to theInsuredsin that regard. |
(3) | EXCLUSION (A) will not apply toSection 11 or 12 Claims. |
By: | ||||
Attorney-in-Fact |
Ed. 06/07
Page 1 of 1
(SUBJECT TO SUBLIMIT AND SEPARATE RETENTION)
(1) | The following INSURING AGREEMENT is added to the Policy |
(2) | The following DEFINITIONS are added to the Policy: |
(a) | Banking Wrongful Actmeans any actual or alleged act, error or omission by: |
(i) | theCompany;or | ||
(ii) | anInsured Personin his or her capacity as such; |
in performing (or failing to perform) professional services for or on behalf of a customer of theCompany,pursuant to an agreement between such customer and theCompanyand for a fee, commission, monetary consideration or other remuneration which inures to the benefit of theCompany;provided, thatBanking Wrongful Act will not include any act, error or omission in connection with: |
1. | extending credit or granting a loan (or refusing to extend credit or grant a loan), orLoan Servicing; | ||
2. | services performed by any entity in which theCompany has acquired an ownership interest or control as security for a loan or extension of credit; | ||
3. | lock box, safe deposit or safe-keeping operations; | ||
4. | real estate appraisals; | ||
5. | architectural or construction management services; | ||
6. | the practice of law or legal services; or | ||
7. | medical or health care services. |
(b) | Loan Servicingmeans the servicing of any loan, lease or extension of credit, including but not limited to the following servicing activities: |
(i) | record keeping, billing and disbursements of principal or interest; | ||
(ii) | receipt or payment of insurance premiums or taxes; | ||
(iii) | credit reporting or statements of a customer’s creditworthiness; and | ||
(iv) | determination of the depreciation amount of property. |
(3) | DEFINITION (D) is deleted and replaced with the following: |
(D) | Defense Costsmeans reasonable fees, costs and expenses consented to by the Insurer (including premiums for any appeal bond, attachment bond or similar bond) resulting from the investigation, adjustment, defense or appeal of aClaim against anInsured Person(or, with respect toClaimsforBanking Wrongful Actsor Securities Claims,against anyInsured), but excluding salaries, wages, benefits or overhead expenses of directors, officers or employees of theCompany. |
Ed. 09/09
Page 1 of 3
(4) | Subsection (2) of DEFINITION (F)Insured Personis deleted and replaced with the following: |
(2) | with respect only toClaimsforBanking Wrongful ActsorSecurities Claims, any past, present or future employee of theCompany. |
(5) | Subsection (2) of DEFINITION (G) Loss is deleted and replaced with the following: |
(2) | theCompanyis legally obligated to pay as a result of anyClaimforBanking Wrongful Actsor anySecurities Claim; |
(6) | The following sentence is added to DEFINITION (P)Wrongful Act: |
Solely for purposes of the BANKERS PROFESSIONAL LIABILITY INSURING AGREEMENT, the termWrongful Act,as used throughout the Policy (other than in the INSURING AGREEMENTS), means aBanking Wrongful Act. |
(7) | The following EXCLUSIONS are added to the Policy: |
(a) | arising out of, based upon or attributable to trust operations of theCompany,including but not limited to any exercise of trust or fiduciary powers by anyInsured; |
(b) | arising out of, based upon or attributable to any actual or alleged insolvency, bankruptcy, conservatorship, receivership or liquidation of, or suspension of payment by: |
(i) | any broker or dealer in securities or commodities; | ||
(ii) | any investment company or investment banker; | ||
(iii) | any insurance or reinsurance entity; | ||
(iv) | any bank or banking firm; or | ||
(v) | anyInsured(including any debt unpaid or obligation unfulfilled by reason of anyInsured’sinsolvency); |
(c) | arising out of, based upon or attributable to any actual or alleged violation of any tax law or regulation; |
(d) | arising out of, based upon or attributable to any actual or alleged ethnic, racial, sexual, religious, age or other unlawful discrimination or harassment; |
(e) | arising out of, based upon or attributable to any actual or alleged liability of anyInsuredunder any contract or agreement (oral or written); provided, that this EXCLUSION (7)(e) will not apply toClaimsbrought by depositors arising out of a depository relationship; or |
(f) | to the extent any portion of suchClaimseeks relief or redress in any form other than money damages; provided, that this EXCLUSION (7)(f) will not apply toDefense Costsincurred in connection with suchClaim. |
Ed. 09/09
Page 2 of 3
(8) | CONDITION (D)(3) is deleted and replaced with the following: |
(3) | IfLosscovered by this Policy and loss not covered by this Policy are both incurred in connection with a singleClaim,either because theClaim includes both covered and uncovered matters, or because theClaimis made both againstInsured Persons(or, with respect only toClaims forBanking Wrongful Acts orSecurities Claims,againstInsureds)and against others not included within the definition ofInsured Person(or, with respect only toClaims forBanking Wrongful Acts orSecurities Claims,the definition ofInsured), theInsuredsand the Insurer agree to use their best efforts to determine a fair and proper allocation of all such amounts, taking into account the relative legal and financial exposures of the parties to theClaimand the relative benefits to be obtained by the resolution of theClaim.The Insurer will be obligated to pay only those amounts or portions ofLoss allocated to covered matters claimed againstInsured Persons(or, with respect only toClaims forBanking Wrongful Acts orSecurities Claims,againstInsureds).If theInsureds and the Insurer are unable to agree upon an allocation, then until a final allocation is agreed upon or determined pursuant to the provisions of this Policy and applicable law, the Insurer will be obligated to make an interim payment of that amount or portion ofLoss,includingDefense Costs,which the parties agree is not in dispute. |
(9) | The Insurer’s maximum aggregate liability for allLosson account of allClaims forBanking Wrongful Actsfirst made during the samePolicy Periodwill not exceed $5,000,000. Such amount is a sublimit; accordingly, it shall be part of, and not in addition to, the Limit of Liability set forth in Item 3 of the Declarations. |
(10) | A retention of $250,000 will apply to eachClaimforBanking Wrongful Acts,and Item 4 of the Declarations will be deemed amended accordingly. |
By: | ||||
Attorney-in-Fact |
Ed. 09/09
Page 3 of 3
By: | ||||
Attorney-in-Fact |
Ed. 06/00
Page 1 of 1
By: | ||||
Attorney-in-Fact |
Ed. 03/09
Page 1 of 1
FINANCIAL INSTITUTION APPLICATION
þ DIRECTORS & OFFICERS / COMPANY LIABILITY | þ EMPLOYMENT PRACTICES LIABILITY |
Address 202 West Napa Street | City Sonoma | State CA | Zip Code 95476 | |||
P.O. Box 1288 | City Sonoma | State CA | Zip Code 95476 | |||
Telephone707-935-3200 | Fax 707-935-3899 | Websitewww.sonomavalleybank.com |
NameBill Husbands, CFCU | Title |
1. | a. | The Applicant is a: | þ Bank | þ Bank Holding Company | o Financial Services Holding Co. | |||||
o Savings & Loan / Thrift | o Other _____ | |||||||||
b. | Corporate structure: | þ C-Corporation | o S-Corporation | o Limited Liability Company | ||||||
c. | Type of ownership: | þ Stock Company | o Mutual Company | o Other _____ | ||||||
2. | If a Stock Company: | |||||||||
a. Stock is:o Privately Held | þ Publicly Traded | Ticker Symbol: SBNK | Exchange: |
b. | Number of: | Holding Company | Subsidiary Bank | |||||||||||
i. | Shareholders | 1600 | 1 | |||||||||||
ii. | Shares outstanding | 2316403 | 100 | |||||||||||
iii. | % Shares owned directly or beneficially by directors, officers and employees | 21.46 | % | — | % |
c. | List all persons or entities that own more than 10% of common stock (directly or beneficially) or debentures convertible to common stock, which if exercised, would result in a controlling interest of 10% or more of common stock. Indicate name, percentage owned and if such individual/entity is represented on the board. |
3. | Number of: | 53 Employees (full and part-time) | 3 Full Service Branches (including Main Office) | |||
_____ Off-Premises ATMs | 0 Limited Facilities (accepts deposits; no lending) | |||||
One Locations with Safe Deposit Boxes | _____ Locations with Self-Storage Safe Deposit Boxes |
4. | List all subsidiaries and most recent year-end income/assets below or by attachment: |
Nature of | Parent | % | Date | Net | Total | |||||||||||||||
Name | Business | Owner | Owned | Established | Income | Assets | ||||||||||||||
Sonoma Valley Bank | Banking | Sonoma Valley Bancorp | 100 | 1988 | $ | (2,671,000 | ) | $ | 362,996,000 |
Page 1
Real Estate | Insurance Services | |||||||||
o Appraisal Services | $ | o Insurance Agency | $ | |||||||
o Property Management | $ | o Insurance Company | $ | |||||||
o Real Estate Brokerage | $ | Technology | ||||||||
o Title Company | $ | þ Internet/Electronic Banking | $ | |||||||
Investment Services | (complete application 6285) | |||||||||
o Investment Advisory Services | $ | o Data Processing | $ | |||||||
o Security Broker/Dealer | $ | o Internet Service Provider | $ | |||||||
o Investment Banking | $ | o Network Hosting | $ | |||||||
o Securities Underwriting | $ | o Network Security Services | $ | |||||||
o Private Equity Investing | $ | o Website Development | $ | |||||||
o Trust Services | $ | o Consulting, Design or Sales | $ | |||||||
(complete application 3114) | Other (specify) | |||||||||
Accounting/Processing Services | o IRA/Keogh Account Administration | $ | ||||||||
o Accounting Services | $ | o Mortgage Banking Services | $ | |||||||
o Actuarial Services | $ | o Loan Servicing (third party) | $ | |||||||
o Credit Card Processing | $ | þ Wire transfer services | $ | |||||||
o Tax Preparation | $ | þ Notary public services | $ |
6. | Has the Applicant or any Subsidiary completed any of the following transactions during the past 3 years, or are any such transactions planned for the next 12 months: |
a | Stock offering, merger, consolidation, acquisition, divestment or sale of stock in excess of 10% of shares outstanding? | þ Yes | o No | |||||
b. | Conversion from a mutual to stock form of ownership or from a Bank Holding Company to a Financial Services Holding Company? | o Yes | þ No | |||||
c. | Going-private transaction, conversion from a C-Corporation to a Subchapter S-Corporation or any other transaction that eliminates shareholders? | o Yes | þ No |
7. | MANAGEMENT: |
a. | Indicate if there have been changes in any of the following positions during the past 3 years for reasons other than internal promotion,retirement or death(provide detail and attach resumes of any new hires): |
þ No changes | o Chairman of the Board | o President and/or CEO | ||||
o Senior Operations Officer | o Senior Loan Officer | o Internal Auditor |
b. | List all board members who missed more than25%or the board meetings within the past 12 months and reasons: ______ |
c. | During the past 3 years, have there been any problems involving extensions of credit to directors or officers? | o Yes | þ No | |||||
d. | During the past 3 years, has any past or present director, officer or employee been charged with a crime or been the subject of a criminal investigation or disciplinary proceeding by a regulatory agency or organization? | o Yes | þ No |
Page 2
8. | LEVELS OF REVIEW: |
a. | The internal audit function is performed by: o Employee(s) þ External Firm o Not Performed | ||
b. | Internal audits are performed: o Monthly o Quarterly o Annually o Other frequently throught | ||
c. | Is the Audit Committee comprised only of outside directors? þ Yes o No [ILLEGIBLE] | ||
d. | Summarize auditor’s qualifications (or attach resumes) | ||
e. | Are audit reports submitted directly to the: þ Board of Directors (or) þ Audit Committee | ||
f. | Type of external audit: þ Full-scope o Directors-scope o Other | ||
g. | The external audit is performed: þ Annually o Every other year o Other or as determined in rich assessment. | ||
h. | Was the most recent audit opinion unqualified (favorable)? o Not Applicable þ Yeso No | ||
i. | Were any material weaknesses noted in the most recent Management Letter? o Not Applicable o Yes þ No | ||
j. | Current level of internally classified assets: Substandard $49407472 Doubtful $1065461 Loss $6 | ||
k. | Attach a copy of the most recent Audit Report, Management Letter and Applicant’s response. | ||
l. | Regulatory Agency FDIC / DFI Date of Exam 12/22/09-1/8/10 [ILLEGIBLE] | ||
m. | Have all criticisms in the exam report been addressed by the board of directors on process? o Yes o No | ||
n. | During the past 3 years, has the Applicant or any Subsidiary been placed under, or to the best of your knowledge, does management anticipate: |
i. | any type of formal enforcement action, order or agreement; or þ Yes o No | ||
ii. | a memorandum of understanding requiring public disclosure as dictated by securities law? o Yes þ No |
9. | LOAN REVIEW: |
a. | Loan reviews are conducted: o Monthly o Quarterly o Annually þ Other semi annually | ||
b. | The loan review function is performed by: o Employee(s) þ External Firm (specify) in the past credit rich solutions | ||
c. | During the past 3 years, has any director or officer become aware of any of the following conditions as a result of an internal audit or loan review: |
i. | Concentration of credit that warrants reduction or correction? | þ Yes | o No | |||||
ii. | Extension of credit that exceeds the legal lending limit? | þ Yes | o No | |||||
iii. | Conflict of interest transaction? | o Yes | þ No |
Complete this sectiononly if coverage is desired.
1. | Is a written loan application required for every extension of credit? | þ Yes | o No | |||
2. | For loans originated by the Applicant, are signatures on all notes and documents obtained in the presence of a bank employee, attorney, closing agent, escrow agent or title company employee? | þ Yes | o No | |||
3. | For loans originated by third parties (e.g., mortgage brokers, other banks, etc.), are signatures on all notes and documents obtained in the presence of a bank employee, attorney, closing agent, escrow agent or title company employee?o Not Applicable | þ Yes | o No | |||
4. | Prior to opening a corporate account, is the customer required to provide a signed corporate solution or letter designating certain individuals to sign on the account? | þ Yes | o No | |||
5. | Does the Applicant prohibit the acceptance of checks made payable to corporate payees, but endorsed by individuals or endorsed over to individuals? | þ Yes | o No | |||
6. | Are account statements forwarded to customers on a monthly basis? | �� | þ Yes | o No | ||
If No, how often? | ||||||
7. | Are makers’ signatures verified on checks in excess of $10,000 drawn on the Applicant? | þ Yes | o No | |||
8. | Are endorsements on negotiable instruments verified upon presentment? | þ Yes | o No |
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9. | Indicate if the Applicant or any Subsidiary engages in the following: |
Description | Answer | Existing Amount | ||||||||||
Loan servicing for third parties | o Yes | þ No | $ | |||||||||
Out-of-territory lending greater than 25% of total loans | o Yes | þ NO | $ | |||||||||
Loan participations originated by third parties | þ Yes | o No | $ | |||||||||
Loan participations sold with recourse | o Yes | þ No | $ | |||||||||
Unsecured commercial lending; UCC SECURED | o Yes | þ No | $ | |||||||||
Construction lending for speculative buildings or homes | þ Yes | o No | $ | |||||||||
Construction lending without firm take-out commitments | þYes | o No | $ | |||||||||
Dealer floor planning | o Yes | þ No | $ | |||||||||
Subprime lending | o Yes | þ No | $ | |||||||||
“Payday” lending (i.e., cash advances on checks held for future deposit) | o Yes | þ No | $ | |||||||||
Purchase of brokered loans or books of loans | o Yes | þ No | $ | |||||||||
Use of mortgage brokers or other third-party loan or lease producers | o Yes | þ No | $ | |||||||||
Origination of loan syndications or securitizations | o Yes | þ No | $ |
Complete this sectiononly if coverage is desired.
1. | Does the Applicant have a written manual of all personnel policies and procedures? | þ Yes | o No | |||||
a. | If Yes, does it include an employment-at-will statement? | þ Yes | o No | |||||
b. | If Yes, does it include a Sexual Harassment Policy? | þ Yes | o No | |||||
c. | If Yes, does it include a Discrimination Policy? | þ Yes | o No | |||||
2. | Prior to terminating employees, does the Applicant seek legal counsel? Sometimes | o Yes | o No | |||||
3. | Has employee turnover exceeded 25% in either of the past 2 years? | o Yes | þ No | |||||
4. | Have there been during the past 12 months, or does the Applicant anticipate in the next 12 months, any branch/office closings, layoffs, or reorganizations? | þ Yes | o No | |||||
5. | During the past 3 years, have there been or are there now any lawsuits, written or oral demands, employee grievances, negotiated settlements or administrative proceedings (EEOC, NLRB, etc) involving: | |||||||
a. | any past or present director, officer or employee resulting from their activities as such? | o Yes | þ No | |||||
b. | the Applicant or any Subsidiary? | o Yes | þ No |
6. | Attach a copy of the Applicant’s Employment Application used for all applicants for hire. If there are exceptions to Questions 2 through 5, provide details by attachment. |
Complete this sectiononly if coverage is desired.
1. | Complete the following for all Plans. |
Asset | Year | Number of | ||||||||||
Plan Name | Value | Established | Participants | |||||||||
All attached |
2. | Is any Plan an Employee Stock Ownership Plan (ESOP)? | o Yes | þ No | |||
If Yes, percentage of Company stock owned: | % | |||||
3. | Are any Plan assets (other than ESOP) currently: |
Page 4
a. | loaned to or invested in the securities of the Applicant, any Subsidiary or any affiliate? | o Yes | þ No | |||||
b. | invested in bank deposits or any other investment vehicle sponsored by the Applicant? | o Yes | þ No | |||||
4. | Does any Plan have a funding deficiency? | o Yes | þ No | |||||
5. | Is any Plan currently under examination or is any issue related to a Plan currently pending before the Internal Revenue Service, Department of Labor, the Pension Benefit Guaranty Corporation or any court? | o Yes | þ No | |||||
6. | Did any of the past 3 actuarial assessments or external audit reports contain any qualifications? | o Yes | þ No | |||||
If any of the answers to Questions 3 through 6 are Yes, provide details by attachment. |
Complete this sectiononly if coverage is desired.
1. | Type of brokerage services offered: | N/A | ||||
o | Referral-basis only (if applicable, skip to next section) | o Investment advisory services only | ||||
o | Discount brokerage only (purchase and sale of securities; no investment advice) | o Full-service brokerage |
2. | Brokerage services are offered by: |
o | The Applicant’s own employees |
o | The Applicant’s own employees, who are also managed and/or compensated by a third-party broker-dealer (i.e., “dual employees”) Firm name: |
3. | Total assets under management: $ Total Number of Accounts |
4. | If dual employees are used, does the Applicant’s contract. specify that the broker/dealer is responsible for supervision of the dual employees? o Not Applicable | o Yes | o No | |||
5. | Are all securities and funds forwarded directly to the client or deposited directly into the client’s account? | o Yes | o No | |||
6. | Do address changes require management approval and a written, signed request from the client? | o Yes | o No | |||
7. | Are account statements forwarded directly to the client from a central location at least quarterly? | o Yes | o No | |||
8. | Is a process in place to ensure that all transactions over $5,000 are verified with the client by an individual other than the broker? | o Yes | o No | |||
9. | Are all employees prohibited from accessing client funds? | o Yes | o No |
10. | Indicate all services that are now offered or that the Applicant or any Subsidiary contemplates offering within the next 12 months. Provide the most recent year-end revenue for each applicable service.o Not Applicable |
o Market making services | $ | o Underwriting activities | $ | |||||
o Market timing services | $ | o Economic forecasting | $ | |||||
o Private placements | $ | o Other (specify) | $ |
Complete this sectiononly if coverage is desired.
1. Type of insurance offered: | % at Total Premium | N/A | ||||||
o Credit Life & Disability | % | |||||||
o Homeowners & Personal Automobile | % | |||||||
o Health&Life | % | |||||||
o Commercial P&C | % | |||||||
o Annuities | % | |||||||
o Consulting/Loss Control Services | % | |||||||
o Claims Adjusting/TPA | % | |||||||
o Other (specify) | % | |||||||
2. Most recent Year-end premium volume: $ | 100 | % |
Page 5
Complete this sectiononly if coverage is desired.
1. | INTERNAL CONTROLS: |
a. | Are all loan proceeds prepared and disbursed by someone other than the officer approving the loan? | þ Yes | o No | |||
b. | Does the Applicant fund loans or leases originated by mortgage brokers or leasing companies? | o Yes | þ NO |
If Yes, signatures on all notes and documents are obtained by the: | o Applicant o Broker or Leasing Company o Other (specify) _____ |
c. | Are all currency shipments prepared, received and counted under dual control? | þ Yes | o NO | |||
d. | Are employees’ accounts segregated and reviewed for unusual activity at least monthly? | o Yes | þ No | |||
e. | Are dormant accounts flagged, segregated and maintained under dual control? | þ Yes | o NO | |||
f. | Is there a formal program requiring the segregation of dutiesin every area, so that no single transaction can be fully controlled from origination to posting by one person? | þ Yes | o NO | |||
If No, is there a formal program requiring the rotation of duties without prior notice thereof? | o Yes | o NO | ||||
g. | Are all employees required to take vacations each year, and are they prohibited from accessing their work stations during the vacation period? | þ Yes | o NO |
If Yes, vacations are required for a period of: | þ At leasttwo consecutive weeks o At leastone consecutive week | |||||
Unless approved in writings on an [ILLEGIBLE] uption. We have no kite Suspect Revised large item, [ILLEGIBLE] |
h. | Check kite suspect reports are reciewed: | þ Daily o Weekly þ Other _____ o Not Reviewed |
i. | Are all accounts (including suspense accounts) reconciled at least monthly by individuals who have no authority to post transactions to the accounts? | þ Yes | o No | |||
If any of the answers to Question 1 are No, provide details by attachment. |
2. | COMPUTER SYSTEMS: |
a. | Core processing is: o Performed internally by the Applicant þ Outsourced (entirely) Vendor: [ILLEGIBLE] Signatureo Outsourced (partially) Vendor: _____ | ||
b. | Specify all computer systems to be covered under the Bond (other than the Applicant’s proprietary systems): [ILLEGIBLE] |
3. | BROKERAGE SERVICES:If the Applicant provides brokerage services (either directly or indirectly), provide the following: N/A |
a. | Type of brokerage services offered; |
o Referral-basis only (if applicable, skip to next section). | o Investment advisory services only | |||
o Discount brokerage only (purchase and sale of securities; no investment advice) | o Full-service brokerage |
b. | Brokerage services are offered by: |
o The Applicant’s own employees | ||
o The Applicant’s own employees, who are also managed and/or compensated by a third-party broker-dealer (i.e., “dual employees”) Firm name: _____ |
1. | Is the Applicant or any Subsidiary a defendant in any lawsuit which, if the allegations are proven, could materially affect the financial condition of the Applicant or any Subsidiary? | o Yes | þ No |
2. | Have there been any Financial Institution Bond losses in excess of $5,000 during the past 3 years, |
Page 6
whether reimbursed or not? | o Yes | þ No | ||||
3. | Does the undersigned or any director or officer have knowledge of any fact, circumstance or situation involving the Applicant, its Subsidiaries or any past or present director, officer or employee, which could reasonably be expected to give rise to a future claim? | o Yes | o No | |||
4. | Has any carrier declined, cancelled or non-renewed any policy similar to the coverage herein applied for? (Missouri applicants are not required to respond to this question.) | þ Yes | o No |
Page 7
Print Name: ___________ | Signature: ________________ | |
Title: ________________ | Date: ________________ |
Print Name: ________________ | Signature: ________________ | |
Title: ________________ | Date: ________________ |
Agent Name | License Number |
5920 Landerbrook Drive, PLG-L21• Mayfield Heights, Ohio 44124
Telephone: (800) 274-5222• Fax: (800) 456-6590 Website: banks.progressive.com
Page 8
(A) | The Insurer will pay to or on behalf of theInsured Persons Lossarising fromClaimsfirst made during thePolicy Periodor Discovery Period (if applicable), against theInsured Persons forWrongful Acts, except when and to the extent that theCompanyhas paid suchLossto or on behalf of theInsured Personsas indemnification or advancement. |
(B) | The Insurer will pay to or on behalf of theCompany Lossarising from: |
(1) | Claimsfirst made during thePolicy Periodor the Discovery Period (if applicable) against theInsured PersonsforWrongful Acts, if theCompanyhas paid suchLossto or on behalf of theInsured Personsas indemnification or advancement, and/or |
(2) | Securities Claimsfirst made during thePolicy Periodor the Discovery Period (if applicable) against theCompanyforWrongful Acts. |
(A) | Applicationmeans the application attached to and forming part of this Policy, including any materials submitted in connection with such application, all of which are deemed a part of the Policy. | |
(B) | Claimmeans: |
(1) | any written demand for monetary or non-monetary relief, | ||
(2) | any civil proceeding commenced by service of a complaint or similar pleading, | ||
(3) | any arbitration, mediation or other similar dispute resolution proceeding, | ||
(4) | any criminal proceeding commenced by return of an indictment, |
(5) | the receipt by anInsured Personof a target letter or similar document in connection with a criminal investigation of suchInsured Person, or |
(6) | any administrative or regulatory proceeding commenced by the filing of a notice of charges, formal investigative order or similar document; |
(C) | Companymeans theNamed Corporationand anySubsidiarythereof. |
(D) | Defense Costsmeans reasonable fees, costs and expenses consented to by the Insurer (including premiums for any appeal bond, attachment bond or similar bond) resulting from the investigation, adjustment, defense or appeal of aClaimagainst anInsured Person(or, with respect toSecurities Claims, against anyInsured), but excluding salaries, wages, benefits or overhead expenses of directors, officers or employees of theCompany. |
Page 2 of 11
(E) | Insuredmeans theInsured Personsand theCompany. | |
(F) | Insured Personmeans: |
(1) | any past, present or future director or officer of theCompany, including any person in a position which is the functional equivalent of a director or officer with respect to any entity included within the definition ofCompanyorOutside Entitylocated outside the United States, and |
(2) | with respect only toSecurities Claims, any past, present or future employee of theCompany. |
(G) | LossmeansDefense Costsand any damages, settlements, judgments or other amounts (including punitive or exemplary damages and the multiplied portion of any multiplied damage award, if and where insurable by law) that: |
(1) | anInsured Personis legally obligated to pay as a result of anyClaim, or | ||
(2) | theCompanyis legally obligated to pay as a result of anySecurities Claim; |
(H) | Named Corporationmeans the entity designated as such in Item 1 of the Declarations. |
(I) | No Liabilitymeans all defendantInsuredsobtain by reason of a motion to dismiss, motion for summary judgment or trial a final non-appealable judgment in their favor. |
(J) | Outside Capacitymeans service by anInsured Personas a director, officer, trustee, regent or governor of, or in another equivalent executive position with respect to, anOutside Entity, during such time that such service is at the request of theCompany. | |
(K) | Outside Entitymeans any not-for-profit corporation, association, organization or entity. |
(L) | Policy Periodmeans the period set forth in Item 2 of the Declarations, subject to prior termination or cancellation pursuant to CONDITION (E). |
(M) | Pollutantsmeans any seepage, pollution or contamination, including but not limited to any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, waste, and materials to be recycled, reconditioned or reclaimed. | |
(N) | Securities Claimmeans aClaimwhich: |
(1) | is brought by or on behalf of one or more securities holders of theCompanyin their capacity as such, or |
(2) | arises from the purchase or sale of, or offer to purchase or sell, any securities issued by theCompany, whether such purchase, sale or offer involves a transaction with theCompanyor occurs in the open market. |
Page 3 of 11
(O) | Subsidiarymeans any entity: |
(1) | during any time on or before the inception of thePolicy Periodin which theNamed Corporationowns or owned more than 50% of the issued and outstanding securities representing the right to vote for the election of such entity’s directors (or the legal equivalent thereof), either directly or indirectly through one or more otherSubsidiaries; or |
(2) | created or acquired during thePolicy Periodduring any time in which, as a result of such creation or acquisition, theNamed Corporationowns more than 50% of the issued and outstanding securities representing the right to vote for the election of such entity’s directors (or the legal equivalent thereof), either directly or indirectly through one or more otherSubsidiaries. |
(P) | Wrongful Actmeans any: |
(1) | actual or alleged act, error, misstatement, misleading statement, omission or breach of duty: |
(a) | by anInsured Personin his or her capacity as such, including in anOutside Capacity, or | ||
(b) | with respect only toSecurities Claims, by theCompany; or |
(2) | matter claimed against anInsured Personsolely by reason of his or her service in such capacity or in anOutside Capacity. |
(A) | arising out of based upon or attributable to the gaining by anyInsuredof any profit or advantage to which suchInsuredwas not legally entitled; provided, that this EXCLUSION (A) will apply only if there has been a final adjudication adverse to suchInsuredestablishing that theInsuredgained such a profit or advantage; |
(B) | arising out of, based upon or attributable to the commission by anyInsuredof any criminal or deliberately fraudulent or dishonest act; provided, that this EXCLUSION (B) will apply only if there has been a final adjudication adverse to suchInsuredestablishing that theInsured so acted; |
(C) | for any actual or alleged bodily injury, sickness, mental anguish, emotional distress, disease or death of any person or damage to or destruction of any tangible property, including the loss of use thereof, or for injury from any actual or alleged libel, slander, defamation or disparagement or violation of a person’s right of privacy; provided, that this EXCLUSION (C) will not apply toSecurities Claims; |
(D) | for the actual, alleged or threatened discharge, dispersal, release or escape ofPollutants or any direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralizePollutants; provided, that this EXCLUSION (D) will not apply toSecurities Claims; |
Page 4 of 11
(E) | for any actual or alleged violation of the Employee Retirement Income Security Act of 1974 or any regulations promulgated thereunder or of any similar law or regulation; |
(F) | brought by or on behalf of, or in the name or right of, theCompany, whether directly or derivatively, or anyInsured Person, unless suchClaimis: |
(1) | brought and maintained independently of, and without the solicitation, assistance or active participation of, theCompanyor anyInsured Person, or | ||
(2) | for an actual or alleged wrongful termination of employment, or |
(3) | brought or maintained by anInsured Personfor contribution or indemnity and directly results from anotherClaimcovered under this Policy, or |
(4) | brought and maintained by an employee of theCompanysolely to enforce his or her rights as a holder of securities issued by theCompany; |
(G) | by or on behalf of, or in the name or right of, anyOutside Entity, whether directly or derivatively, against anInsured Personfor aWrongful Actin his or herOutside Capacitywith respect to suchOutside Entity, unless suchClaimis brought and maintained independently of, and without the solicitation, assistance or active participation of, theOutside Entity, theCompanyor anyInsured Person; |
(H) | arising out of, based upon or attributable to facts or circumstances alleged, or to the same or relatedWrongful Actsalleged or contained, in any claim which has been reported, or with respect to which any notice has been given, under any policy of which this Policy is a renewal or replacement or which it may succeed in time; or |
(I) | arising out of, based upon or attributable to any pending or prior litigation as of the inception date of this Policy, or alleging or derived from the same or essentially the same facts or circumstances as alleged in such pending or prior litigation. |
Page 5 of 11
(A) | Subject to its terms and conditions, this Policy will afford coverage forClaimsforWrongful Actsof anInsured Personif suchClaimsare made against the estates, heirs, legal representatives or assigns of anInsured Personwho is deceased or against the legal representatives or assigns of anInsured Personwho is incompetent, insolvent or bankrupt, to the extent that suchClaimswould have been covered by this Policy in the absence of such death, incompetence, insolvency or bankruptcy. |
(B) | Subject to its terms and conditions, this Policy will afford coverage forClaimsforWrongful Actsof anInsured Personif suchClaimsare made against theInsured Person’slawful spouse solely by reason of such spouse’s legal status as a spouse of theInsured Personor such spouse’s ownership interest in property which the claimant seeks as recovery for allegedWrongful Actsof theInsured Person. For purposes of the Policy, amounts which such spouse becomes legally obligated to pay by reason of suchClaimwill be treated asLosswhich theInsured Personis legally obligated to pay on account of theClaimmade against theInsured Person. This coverage extension does not apply, however, to the extent theClaimalleges any wrongful act or omission by theInsured Person’sspouse. |
(A) | Limit of Liability and Retention |
(1) | The Insurer’s maximum aggregate liability for allLosson account of allClaims first made during the samePolicy Period, whether covered under one or more INSURING AGREEMENTS, will not exceed the Limit of Liability set forth in Item 3 of the Declarations. |
(2) | Defense Costswill be part of and not in addition to the Limit of Liability, and payment ofDefense Costswill reduce the Limit of Liability.Defense Costs, as incurred, will also be applied against the retention. |
(3) | The retention stated in Item 4(b) of the Declarations will apply toLoss, includingDefense Costs, which theCompanyis required or permitted to pay as indemnification or advancement to or on behalf of theInsured Persons, whether or not suchLossis actually paid, unless theCompanyis unable to pay suchLossas indemnification or advancement solely by reason of its financial insolvency. For purposes of this CONDITION (A)(3), the certificate of incorporation, charter, articles of association or other organizational documents of theNamed Corporation, eachSubsidiaryand eachOutside Entity, including the bylaws and resolutions thereof, will be deemed to have been adopted or amended to provide indemnification and advancement to theInsured Personsto the fullest extent permitted by law. |
(4) | The Insurer will be liable only for the amount ofLossin connection with anyClaim, which is in excess of the applicable retention stated in Item 4 of the Declarations. Such retention is to be borne by theInsuredsand remain uninsured. A single retention will apply toLossarising from allClaimsalleging the sameWrongful Actor relatedWrongful Acts. |
(5) | Notwithstanding the foregoing, with respect toSecurities Claimsthe retentions stated in Items 4(b) and 4(c) of the Declarations will apply only toDefense Costs; provided, that if aSecurities Claimis finally resolved by a determination ofNo Liability, no retention will apply to suchSecurities Claimeven as respectsDefense Costsand the Insurer will thereupon reimburseDefense Costswithin the retention which shall already have been paid by theInsureds. |
(6) | One retention amount will apply to the covered portion of each and every singleClaim.If a singleClaimis covered under more than one INSURING AGREEMENT, the retentions stated in Item 4 of the Declarations will be applied separately to the portions of theClaimcovered by each INSURING AGREEMENT, and the sum of the retentions so applied will constitute the retention for each singleClaim, which in total will not exceed the largest of the applicable retentions. |
Page 6 of 11
(B) | Notice ofClaimsand Reporting Provisions |
(1) | TheInsuredsmust, as a condition precedent to the obligations of the Insurer under this Policy, give written notice, including full details, to the Insurer of anyClaimas soon as practicable after it is made. |
(2) | If written notice of aClaimhas been given to the Insurer pursuant to CONDITION (B)(1) above, then anyClaimsubsequently made against theInsuredsand reported to the Insurer alleging, arising out of, based upon or attributable to the facts alleged in theClaimof which such notice has been given, or alleging anyWrongful Actwhich is the same as or related to anyWrongful Actalleged in theClaimof which such notice has been given, will be considered to have been made at the time such notice was given. |
(3) | If, during thePolicy Periodor the Discovery Period (if applicable), theInsureds become aware of any circumstances which may reasonably be expected to give rise to aClaimagainst theInsuredsand if, before the end of thePolicy Periodor the Discovery Period (if applicable), theInsuredsgive written notice to the Insurer of the circumstances and the reasons for anticipating such aClaim, with full particulars as to dates, persons and entities involved, potential claimants and the consequences which have resulted or may result from suchWrongful Act, then anyClaimsubsequently made against theInsuredsand reported to the Insurer alleging, arising out of, based upon or attributable to such circumstances or alleging anyWrongful Actwhich is the same as or related to anyWrongful Actdescribed in such notice will be considered to have been made at the time such notice of circumstances was given. |
(4) | All notices under this CONDITION (B) must refer to the Policy Number, must be in writing, must request coverage under this Policy, and must be given by certified mail or prepaid express courier to the address set forth in Item 6 of the Declarations. |
(C) | Interrelationship ofClaims |
(D) | Defense Costs, Settlements, Allocation ofLoss, Priority of Payments |
(1) | The Insurer will have no duty under this Policy to defend anyClaim. TheInsureds must defend anyClaimmade against them. TheInsuredsmay not admit or assume any liability, enter into any settlement agreement, stipulate to any judgment, or incur anyDefense Costswithout the Insurer’s prior written consent. Only those settlements, stipulated judgments andDefense Coststo which the Insurer has consented will be recoverable asLossunder this Policy. The Insurer’s consent may not be unreasonably withheld; provided, that the Insurer will be entitled to effectively associate in the defense and the negotiation of any settlement of anyClaim. |
(2) | The Insurer will pay coveredDefense Costson an as-incurred basis. If it is finally determined that anyDefense Costspaid by the Insurer are not covered under this Policy, theInsuredsagree to repay such non-coveredDefense Coststo the Insurer. |
Page 7 of 11
(3) | IfLosscovered by this Policy and loss not covered by this Policy are both incurred in connection with a singleClaim, either because theClaimincludes both covered and uncovered matters, or because theClaimis made both againstInsured Persons (or, with respect only toSecurities Claims, againstInsureds) and against others not included within the definition ofInsured Person(or, with respect only toSecurities Claims, the definition ofInsured), theInsuredsand the Insurer agree to use their best efforts to determine a fair and proper allocation of all such amounts, taking into account the relative legal and financial exposures of the parties to theClaimand the relative benefits to be obtained by the resolution of theClaim. The Insurer will be obligated to pay only those amounts or portions ofLossallocated to covered matters claimed againstInsured Persons(or, with respect only toSecurities Claims, againstInsureds). If theInsuredsand the Insurer are unable to agree upon an allocation, then until a final allocation is agreed upon or determined pursuant to the provisions of this Policy and applicable law, the Insurer will be obligated to make an interim payment of that amount or portion ofLoss, includingDefense Costs, which the parties agree is not in dispute. |
(4) | If the Insurer is obligated to payLoss, includingDefense Costs, under more than one INSURING AGREEMENT, whether in connection with a singleClaimor multipleClaims, the Insurer will first pay anyLosspayable under INSURING AGREEMENT (A) and, if the Insurer concludes that the amount of allLoss, includingDefense Costs, is likely to exceed the Insurer’s Limit of Liability, the Insurer shall be entitled to withhold some or all of anyLosspayable under INSURING AGREEMENT (B)(1) or (B)(2) to ensure that as much of the Limit of Liability as possible is available for the payment ofLossunder INSURING AGREEMENT (A). If noLossis payable under INSURING AGREEMENT (A), or if the Insurer’s obligations under INSURING AGREEMENT (A) have been satisfied, then, subject to the Insurer’s Limit of Liability as set forth in Item 3 of the Declarations, the Insurer will pay suchLossas it is required to pay under INSURING AGREEMENT (B)(1) or (B)(2) in such manner and, in the event of multipleClaims, apportioned among suchClaimsas theNamed Corporationshall direct in writing. |
(E) | Cancellation or Nonrenewal |
(1) | The Insurer may cancel this Policy for non-payment of premium by sending not less than ten (10) days notice to theNamed Corporationat its last known address. The Insurer may not otherwise cancel this Policy. |
(2) | TheNamed Corporationmay cancel this Policy by mailing the Insurer written notice stating when such cancellation will be effective; provided, that theNamed Corporation may not cancel this Policy after the effective date of any acquisition of theNamed Corporationas described in CONDITION (F) below. If theNamed Corporationcancels this Policy, the Insurer will retain the customary short rate premium. Premium adjustment may be made either at the time cancellation is effective or as soon as practicable after cancellation becomes effective, but payment of unearned premium is not a condition of cancellation. |
(3) | If the Insurer elects not to renew this Policy, the Insurer must give theNamed Corporationnotice of non-renewal no less than sixty (60) days before the end of thePolicy Period. |
(4) | If the period of limitation relating to the giving of notice is prohibited or made void by any law controlling the construction thereof, such period will be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. |
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(F) | Changes in Control |
(1) | If, during thePolicy Period, any of the following transactions or events (each a “Change in Control”) occurs with respect to theNamed Corporation: |
(a) | theNamed Corporationmerges into or consolidates with another entity such that theNamed Corporationis not the surviving entity, or |
(b) | another entity, person or group of entities and/or persons acting in concert acquires securities or voting rights which result in ownership or voting control by the other entity(ies) or person(s) of more than 50% of the outstanding securities representing the present right to vote for the election of directors of theNamed Corporation, or |
(c) | a trustee in bankruptcy, receiver, conservator, rehabilitator, liquidator or other similar official is duly appointed with respect to theNamed Corporation; |
(2) | If, during thePolicy Period, any of the following transactions or events (each a “Change in Control”) occurs with respect to aSubsidiary: |
(a) | theSubsidiaryceases to be aSubsidiary, or | ||
(b) | a trustee in bankruptcy, receiver, conservator, rehabilitator, liquidator or other similar official is duly appointed with respect to theSubsidiary; |
(G) | Other Insurance and Other Indemnification |
(1) | Such insurance as is provided by this Policy will apply only as excess over and will not contribute with any other valid and collectible insurance. |
(2) | All coverage forLossfromClaimsagainstInsured PersonsforWrongful Actsin theirOutside Capacitieswill be specifically excess of, and will not contribute with, |
(a) | any other insurance available to suchInsured Personsby reason of their service inOutside Capacities, and |
(b) | any indemnification available to suchInsured Personsin connection with their service inOutside Capacitiesfrom any source other than theCompany, including but not limited toOutside Entities. |
(H) | Cooperation and Subrogation |
(1) | In the event of any notice under CONDITION (B) of aClaimor of circumstances which may reasonably be expected to give rise to aClaim, theInsuredswill give the Insurer all information, assistance and cooperation that the Insurer may reasonably request with respect thereto. |
(2) | In the event of any payment under this Policy, the Insurer will be subrogated to the extent of such payment to all of theInsureds’rights of recovery, including without limitation theInsured Persons’rights to indemnification or advancement from theCompany. TheInsuredsmust execute all papers required and do everything necessary to secure such rights and to enable the Insurer to bring suit in their name. |
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(I) | No Action against the Insurer |
(J) | Notices and Authority |
(K) | Assignment |
(L) | Titles and Headings |
(M) | Representations and Severability |
(N) | Changes |
(O) | Entire Agreement |
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(P) | Territory |
(Q) | Conformity to Statute |
Secretary | President |
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