Exhibit (99-4)
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Directors and Officers (Third) Excess Liability Policy
CHUBB ATLANTIC INDEMNITY LTD.
EXCESS INSURANCE POLICY
DECLARATIONS
Item 1. Parent Corporation: The Procter & Gamble Company
Principal Address: Policy Number: (01) 3310-04049
One P&G Plaza
Cincinnati, Ohio
U.S.A. 45202 Issued by the stock insurance
company indicated below, herein
called the Company.
CHUBB ATLANTIC INDEMNITY LTD.
Item 2. Premium: $115,000 Incorporated under the laws of Bermuda.
Item 3. Limit of Liability: See Endorsement 1
Item 4. Underlying Policy(ies):
(A) PRIMARY POLICY:
Insurer CODA
Limit of Liability $25,000,000
Deductible amount NONE
Policy number PG-106C
(B) Other Policy(ies):
Insurer XL Insurance
Limit of Liability $25,000,000
Excess of $25,000,000
Policy number XLD+O-00364-00
(C) Other Policy(ies):
Insurer Ace Bermuda Insurance Ltd
Limit of Liability $45,000,000
Excess of $50,000,000
Policy number PG-9271D
Item 5. Policy Period: From: June 30, 2000
To: June 30, 2001
12:01 a.m. Standard Time of the address
shown in Item 1.
Item 6. Endorsement(s) Effective at Inception: 1 and 2
Item 7. Pending or Prior Date: June 30, 1994
Item 8. Termination of Prior Policy(ies): (99)3310-04-49 / (00)3310-04-49
Item 9. Claims Notification: All notices to the Company, including
notices of loss or claim shall be sent via
mail to: Chubb Atlantic Indemnity Ltd.,
Suite 773, #48 Par-la-Ville Road,
Hamilton HM11, Bermuda
IN WITNESS WHEREOF, this policy has been made, entered into, executed, issued
and delivered by the undersigned in Hamilton, Bermuda on this 31st day of
July, 2000.
Senior Underwriter
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Authorized Officer Title
CHUBB ATLANTIC INDEMNITY LTD.
ALL DISPUTE RESOLUTION IS BY BINDING ARBITRATION HELD IN BERMUDA PURSUANT TO THE
BERMUDA ARBITRATION ACT OF 1993 AND THE UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW ("UNCITRAL") ARBITRATION RULES. BERMUDA LAW IS THE
GOVERNING LAW UNDER THIS POLICY. THE INSURED WAIVES ANY REQUIREMENT THAT THE
COMPANY POST A BOND AS A CONDITION PRECEDENT TO THE FILING OF ANY PLEADING IN
ANY DISPUTE. PLEASE REFER TO THE APPLICABLE SECTIONS OF THIS POLICY.
EXCESS INSURANCE POLICY
In consideration of payment of required premium and subject to the
Declarations made a part hereof and the limitations, conditions, provisions and
other terms of this policy, the Company agrees with the INSUREDS as follows:
INSURING CLAUSE
The Company shall provide the INSUREDS with insurance during the Policy
Period excess of the UNDERLYING INSURANCE. Coverage for any loss attach only
after: 1) all UNDERLYING INSURANCE carriers have paid in cash the full amount of
their respective liabilities, and 2) the full amount of the UNDERLYING INSURANCE
policies have been collected by the plaintiffs, the Insureds or the Insureds'
counsel and 3) all UNDERLYING INSURANCE has been exhausted. Coverage under this
policy shall then apply in conformance with the terms, conditions, exclusions
and endorsements of the PRIMARY POLICY, together with all limitations,
restrictions and exclusions contained in or added by endorsement to any other
UNDERLYING INSURANCE, except as specifically set forth in the terms, conditions,
exclusions and endorsements of this Policy. In no event shall this Policy grant
broader coverage than would be provided by any of the exhausted UNDERLYING
INSURANCE.
MAINTENANCE OF UNDERLYING INSURANCE
All of the Underlying Policy(ies) scheduled in Item 4. Of the
Declarations shall be maintained during the Policy Period in full effect and
affording coverage at least as broad as the PRIMARY POLICY, except for any
reduction of the aggregate limit(s) of liability available under the UNDERLYING
INSURANCE solely by reason of payment of losses thereunder. Failure to comply
with the foregoing shall not invalidate this policy but the Company shall not be
liable to a greater extent than if this condition had been complied with.
In the event of any actual or alleged (a) failure by the INSUREDS to
give notice or to exercise any extensions under any UNDERLYING INSURANCE or (b)
misrepresentation of breach of warranties by any of the INSUREDS with respect to
any UNDERLYING INSURANCE, the Company shall not be liable hereunder to a greater
extent than it would have been in the absence of such actual or alleged failure,
misrepresentation or breach.
DEPLETION OF UNDERLYING LIMIT(S)
In the event of the depletion of the limit(s) of liability of the
UNDERLYING INSURANCE solely as the result of payment of losses thereunder, this
policy shall, subject to the Company's limit of liability and to the other terms
of the policy, continue to apply for subsequent losses as excess insurance over
the amount of insurance remaining under such UNDERLYING INSURANCE. In the event
of the exhaustion of all of the limit(s) of liability of such UNDERLYING
INSURANCE solely as a result of payment of losses thereunder, the remaining
limits available under this policy shall, subject to the Company's limit of
liability and to the other terms of this policy, continue for subsequent losses
as primary insurance and any retention specified in the PRIMARY POLICY shall be
imposed under this policy; otherwise no retention shall be imposed under this
policy.
LIMIT OF LIABILITY
The amounts set forth in Endorsement Number 1, Item 3(A) and (B) is the
Limit of Liability of the Company and shall be the maximum liability for each
LOSS and maximum aggregate liability for each POLICY YEAR.
GOVERNING LAW, ARBITRATION AND JURISDICTION
This policy and any dispute, controvery, difference or claim which
arise from or relate to this policy, including but not limited to the express or
implied rights or obligations of one party to the other, or the alleged breach,
termination, invalidity or formation thereof, shall be governed by and construed
in accordance with the laws of Bermuda, without regard to its conflict of law
rules, provided, however, that the provisions, stipulations, exclusions and
conditions of the policy are to be construed in an evenhanded fashion as between
the Parent Corporation and the Company. Without limitation, where the language
of this policy is deemed to be ambiguous or otherwise unclear, the issue shall
be resolved in the manner most consistent with the relevant provisions,
stipulations, exclusions and conditions of the policy without regard to
authorship of the language, without any presumption or arbitrary interpretation
or construction in favor of either the Parent Corporation or the Company, and
without regard to parol or other evidence.
Any and all disputes, controversies, claims or differences between the
parties which arise from or relate to this policy, including but not limited to
the express or implied rights or obligations of one party to the other, or the
alleged breach, termination, invalidity or formation thereof, shall be solely
and exclusively determined and resolved by final and binding arbitration held in
Bermuda in accordance with the provisions of the Bermuda International
Conciliation and Arbitration Act 1993 (exclusive of the Conciliation Part of
such Act), and/or any statutory modifications or reenactments thereof, and the
United Nations Commission on International Trade Law ("UNCITRAL") Arbitration
Rules in effect as of the date of this policy.
Such arbitration shall be conducted by a Board composed of three (3)
arbitrators ("the Board"), each of whom shall be disinterested in the
controversy, to be selected for each controversy as follows:
Any party may, in the event of such a dispute, controversy, difference
or claim arising from or relating to this policy, including but not
limited to the express or implied rights or obligations of one party
to the other, or the alleged breach, termination, invalidity or
formation thereof, notify the other party or parties to such dispute,
controversy, difference or claim of its desire to arbitrate the
matter, and at the time of such notification, the party desiring
arbitration shall notify any other party or parties of the name of the
arbitrator selected by it. Any other party who has been so notified
shall within thirty (30) calendar days thereafter select an arbitrator
and notify the party desiring arbitration of the name of the second
arbitrator. If the party notified of the desire for arbitration shall
fail or refuse to nominate the second arbitrator within thirty (30)
calendar days following the receipt of such notification, the party
who first served notice of a desire to arbitrate will, within an
additional period of thirty (30) calendar days, apply to a court of
competent jurisdiction in Bermuda for the appointment of a second
arbitrator and in such a case the arbitrator appointed by such a Judge
shall be deemed to have been nominated by the party who failed to
select the second arbitrator. The two arbitrators, chosen as above
provided, shall within thirty (30) calendar days after the appointment
of the second arbitrator choose a third arbitrator. If the first two
arbitrators fail to agree on a third arbitrator within such thirty
(30) calendar days, either party shall immediately apply to a court of
competent jurisdiction in Bermuda for the appointment of a third
arbitrator. In such a case, the arbitrator appointed by such a Judge
shall be deemed to be accepted by the other two arbitrators. Upon
acceptance of the appointment by the thhird arbitrator, the Board for
the controversy in question shall be deemed fixed subject to each
parties' acceptance of each arbitrators' conflicts disclosure. All
notices and demands pursuant to this provision shall be delivered in
accordance with the policy conditions hereunder.
The Board shall fix, by a notice in writing to the parties involved, a
reasonable time and place for the hearing and may prescribe reasonable rules and
regulations governing the course and conduct of the arbitration proceeding,
including, without limitation, discovery by the parties.
The Board shall, within ninety (90) days following the conclusion of
the hearing, render its decision on the matter in controversy in writing and
shall cause a copy thereof to be served on all the parties thereto. Any award
for damages by the Board shall be compensatory only. In case the Board fails to
reach a unanimous decision, the decision of the majority of the members of the
Board shall be deemed to be the decision of the Board and the same shall be
final and binding on the parties thereto. Such decision shall be a complete
defense to any attempted appeal or litigation of such decision in the absence of
fraud or collusion. Without limiting the foregoing, the parties waive any right
to appeal to and/or collateral review of the decisions of the Board by any court
or other body to the fullest extent permitted by applicable law.
Each party shall bear the costs of its legal representation, its own
arbitrator and its prosecution or defense. If two of the arbitrators are chosen
by one party, as above provided, then the expense of all three arbitrators shall
be equally dividend between the parties. Irrespective of the decision and
outcome of arbitration, all costs of the third arbitrator, any expert advice
retained by the Board and all costs to hold the arbitration proceedings (such as
stenographer, hearing room) shall be borne equally by the parties.
The Company and the Parent Corporation agree that in the event that
claims for indemnity or contribution are asserted in any action or proceeding
against the Company by any of the Parent Corporation other insurers in any
jurisdiction or forum other than that set forth in this policy, the Parent
Corporation will in good faith take all reasonable steps requested by the
Company to assist the Company in obtaining a dismissal of these claims (other
than on the merits) and will, without limitation, undertake to the court or
other tribunal to reduce any judgement or award against such other insurers to
the extent that the court or tribunal determines that the Company will have been
liable to such insurers for indemnity or contribution pursuant to the policy.
The Parent Corporation shall be entitled to assert claims against the Company
for coverage under the policy, including without limitation, for amounts by
which the Parent Corporation reduced its claim or judgment against such other
insurers in respect of such claims for indemnity or contribution, in an
arbitration between the Company and the Parent Corporation pursuant to this
provision of the policy and any dispute, controversy, difference or claim
arising out of or relating to this policy, provided, however, that the Company
in such arbitration in respect of such reduction of any judgment shall be
entitled to raise any defenses under this policy and any other defenses (other
than jurisdictional defenses) as it would have been entitled to raise in the
action or proceeding with such insurers, (and no determination in any such
actions or proceeding involving such other insurers) shall be collateral
estoppel, res judicata or other issue preclusion effect against the Company in
such arbitration, irrespective of whether or not the Company remained a party to
such action or proceeding with such insurers.
CLAIM PARTICIPATION
The Company may, at its sole discretion, elect to participate in the
investigation, settlement or defense of any claim against any of the INSUREDS
for matters covered by this policy even if the UNDERLYING INSURANCE has not been
exhausted.
SUBROGATION - RECOVERIES
In the event of any payment under this policy, the Company shall be
subrogated to all the INSUREDS' rights of recovery against any person or
organization, as state din the PRIMARY POLICY, and the INSUREDS shall execute
and deliver instruments and papers and do whatever else is necessary to secure
such rights.
Any amounts recovered after payment of loss hereunder shall be
apportioned in the inverse order of payment to the extent of actual payment. The
expenses of all such recover proceedings shall be apportioned in the ration of
respective recoveries.
The Company shall be given notice in writing as soon as is practicable
(a) in the event of the cancellation of any UNDERLYING INSURANCE and (b) of any
notice given or additional or return premiums charged or paid in connection with
any UNDERLYING INSURANCE.
Notice of any claim shall be given in writing to the Company.
COMPANY AUTHORIZATION CLAUSE
By acceptance of this policy, the Parent Corporation named in Item 1.
of the Declarations agrees to act on behalf of all the INSUREDS with respect to
the giving and receiving of notice of claim or cancellations, the payment of
premiums and the receiving of any return premium that may become due under this
policy; and the INSUREDS agree that the Parent Corporation shall act on their
behalf.
ALTERATION
No change in or modification of this policy shall be effective except
when made by written endorsements signed by an authorized officer of Chubb
Atlantic Indemnity Limited.
POLICY TERMINATION
This policy may be cancelled by the PARENT CORPORATION at any time by
written notice or by surrender of this policy to the Company. This policy may
also be cancelled by or on behalf of the Company by delivery to the PARENT
CORPORATION or by mailing to the PARENT CORPORATION, by registered, certified or
other first class mail, at the address shown in Item 2. of the Declarations,
written notice stating when, not less than thirty days thereafter, the
cancellation shall become effective. The mailing of such notice as aforesaid
shall be sufficient proof of notice and this policy shall terminate at the date
and hour specified in such notice.
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 shall be deemed to be amended so as to be equal to the minimum period of
limitation permitted by such law. The Company shall refund the unearned premium
computed at customary short rates if the policy is terminated in its entirety by
the PARENT CORPORATION. Under any other circumstances the refund shall be
computed pro rata.
TERMINATION OF PRIMARY POLICY
This policy shall terminate immediately upon the termination of the
PRIMARY POLICY, whether by the INSUREDS or the primary insurer. Notice of
cancellation or non-renewal of the PRIMARY POLICY duly given by the primary
insurer shall serve as notice of the cancellation or non-renewal of this policy
by the Company.
TERMINATION OF PRIOR POLICY(IES)
The taking effect of this policy shall terminate, if not already
terminated, the policy(ies) specified in Item 8. of the Declarations.
POLICY DEFINITIONS
INSUREDS means those persons insured under the PRIMARY POLICY.
PRIMARY POLICY means the policy scheduled in Item 4.(A) of the Declarations or
any policy of the same insurer replacing or renewing such policy.
POLICY YEAR means the one year period between the anniversaries of the PRIMARY
POLICY, provided that: (1) the first POLICY YEAR of this policy shall be the
period between the inception of this policy and the next subsequent anniversary
of the PRIMARY POLICY, and (2) the last POLICY YEAR of this policy shall be the
period between the termination of this policy and the anniversary of the PRIMARY
POLICY immediately preceding such termination. If any discovery period extension
is exercised such extension shall be treated as set forth in the PRIMARY POLICY.
UNDERLYING INSURANCE means all those policies scheduled in Item 4 of the
Declarations and any policies replacing them.
CHUBB ATLANTIC INDEMNITY LTD.
ENDORSEMENT
INSURED: The Procter & Gamble Company
ENDORSEMENT NO.: 1
DATE ISSUED: July 31, 2000
TO BE ATTACHED TO AND FORM PART OF POLICY NO. (01)3310-04-49
NAME OF COMPANY: Chubb Atlantic Indemnity Ltd.
PRODUCER: H&H Park International Limited
EFFECTIVE DATE: June 30, 2000
PAGE: 1 of 1
AMENDED LIMIT OF LIABILITY
It is understood and agreed that Item 3., Limit of Liability, as set forth on
the Declarations Page, is deleted in its entirety and replaced with the
following:
Item 3. Limit of Liability (Inclusive of Defense Costs):
(A) Each LOSS $50,000,000
(B) Each POLICY YEAR $50,000,000
Excess of:
(A) Each LOSS $95,000,000
(B) Each POLICY YEAR $95,000,000
which in turn is excess of the Deductible/Retention
shown below:
Retention Amount: $None
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.
July 31, 2000
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Authorized Representative Date
CHUBB ATLANTIC INDEMNITY LTD.
ENDORSEMENT
INSURED: The Procter & Gamble Company
ENDORSEMENT NO.: 2
DATE ISSUED: July 31, 2000
TO BE ATTACHED TO AND FORM PART OF POLICY NO. (01)3310-04-49
NAME OF COMPANY: Chubb Atlantic Indemnity Ltd.
PRODUCER: H&H Park International Limited
EFFECTIVE DATE: June 30, 2000
PAGE: 1 of 1
PRIOR AND PENDING LITIGATION - EXCESS
It is understood and agreed that the company shall not be liable to make any
payment for Loss in connection with any Claim based upon, arising out of,
relating to, in consequence of, or in any way involving:
(1) any litigation, arbitration, claims, demands, causes of action,
equitable, legal or quasi-legal proceedings, decrees or judgments
(collectively referred to as litigation) against any INSUREDS
occurring prior to or pending as of June 30, 1994, of which the
INSUREDS has received notice or otherwise had knowledge as of such
date; or
(2) any subsequent litigation arising from, or based on substantially the
same matters as alleged in the prior or pending litigation included in
(1) above; or
(3) any Wrongful Act of the INSUREDS which gave rise to the prior or
pending litigation included in (1) above.
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.
July 31, 2000
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Authorized Representative Date
