Rechtbank Noord-Holland, 09-09-2019, ECLI:NL:RBNHO:2019:7634, C/15/292189 / KG ZA 19-565

De structuur was als volgt:

Op de D&O 2013 zijn algemene voorwaarden van AIG en, voor zover het de door CNA te verlene4n Excess-dekking betreft, ook van CNA van toepassing.

In de van toepassing zijnde algemene voorwaarden van AIG is - voor zover hier van belang - het volgende opgenomen:

ARTICLE 1— Covers The following Covers apply to claims first made during the policy period and reported as required by this policy.

Management Liability The Insurer will:

(i) pay to or on behalf of each insured person any loss (...)

(...)

Non-Executive Directors Protection

The insurer will pay a separate excess limit on behalf of each of the policyholder’s non-executive directors serving during the policy period for any loss, subject to the sub-Limit specified in item 5 of the schedule.

(...)

Investigations The insurer will pay the investigation costs of each insured person arising from an investigation.

ARTICLE 2- Extensions

Lifetime Run Off for Retired Insured persons

The insurer will provide an unlimited discovery period for any insured person who resigns or retires, other than by reason of a transaction, prior to or during the policy period provided that:

Conduct arising out of, based upon or attributable to: (i) (...) (ii) the committing of any deliberately dishonest or deliberately fraudulent act, in the event that either of the above is established by final adjudication of a judicial or arbitral tribunal against any insured or by any formal written admission by any insured. (...)

For the purposes of determining the applicability of this exclusion 3.1, the conduct of any insured shail not be imputed to any other insured person.

ARTICLE 4 - Definitions

made or brought against an insured person alleging a wrongful act

(...)

(iii) an investigation with respect to insured persons

(...)

Defence costs

(i) reasonable fees, costs and expenses incurred, with the insurer’s prior written consent (which shall not unreasonably be withheld or delayed), by or on behalf of an insured after a claim is made, in the investigation, defence, settlement or appeal of such claim. (...)

Discovery Period

A period immediately following the expiration of the policy period during which written notice may be given to the insurer of a claim first made during such period:

(i) for a wrongful act occurring prior to the expiry of the policy period; or

(ii) in the case of an investigation (...) matters which occurred or arose prior to the expiry of the policy period.

Excess Limit

The amount specified in item 5 of the schedule that is available to the insured through Cover or Extension of this policy when

(i) the limit of liability;

(ii) all other applicable management liability insurance whether specifically written as excess over the limit of liability of this policy or otherwise; and

(iii) all other idemnification for loss available to such insured,

have all been exhausted.

Insured Person

any natural person who was, is or during the policy period becomes:

(i) a director or officer (...)

Investigations

any formal hearing, examination, investigation or inquiry into the affairs of a company or outside entity, or an insured person of such entity by an official body once an insured person:

(a) is required to attend before, procedure documents to answer questions by or attend interviews with the official body; or, (b) is identified in writing by an investigating official body as a target of the hearing, examination or inquiry (...)

Loss shall also include investigation costs (...) pre-investigation costs.

Official body

Any regulator, government body, government agency, official trade body, or other body that I empowered by statute to investigate the affairs of a company or an insured person.

ARTICLE 5 - Claims

The insurance covers under this policy are afforded solely with respect to claims first made against an Insured during the policy period or an applicable discovery period (...)

1f notice of a claim or circumstance is given as required by this policy, then any subsequent

claim, alleging, arising out of, based upon or attributable to the facts or acts, errors or omissions alleged in that claim or notice of circumstance, shall be deemed to have first been made at the same time as that claim was first made or notice of circumstance was first reported, and reported to the insurerat the time the required notices were first provided.

Any claim arising out of, based upon or attributable to (i) the same or similar originating cause or wrongful act, (ii) one matter or transaction, or a number of matters or transactions involving the same or similar underlying source, (iii) a series of continuous, repeated, related or connected wrongful acts, or (iv) the same or similar originating causes or wrongful acts involving a number of matters or transactions, whether or not committed by more than one insured and whether directed to or affecting one or more person or entity, shali be considered a single claim for the purposes of this policy.

Consent

The insured shall not admit or assume any liability, enter into any settlement agreement, or consent any judgment or incur any covered costs and expenses (...) without the prior written consent (which shall not be unreasonably delayed or withheld) of the insurer. Only liabilities, settlements, judgments, costs and expenses, which have been consented to by the insurer, and only those claims defended in accordance with this policy shall be recoverable as loss under this policy. (...)

Non-Rescindability

This policy is not avoidable or rescindable in whole or in part and the insurer shall have no other remedy with respect to any misrepresentation or non-disclosure in connection with this policy except with respect to insurance Cover 1.2 - Company Securities, or for any fraudulent misrepresentation or fraudulent non-disclosure of any insured, where established by final adjudication of a judicial or arbitral tribunal, or any formal written admission by or on behalf of any insured. (...)

Disputes

Except as otherwise specifically provided, any dispute regarding any aspect of this policy or any matter relating to cover thereunder which cannot be resolved by agreement within 30 days, will be referred to binding arbitration by either party, upon giving seven (7) days notice to the other, in the ICC (International Chamber of Commerce) International Court of Arbitration. (...)’

In artikel III van de algemene voorwaarden van CNA is het volgende opgenomen:

‘1.This policy shall apply as excess in the event of the exhaustion or reduction of the limit(s) of liability of the Underlying policies as result of actual payment of losses there under.

(...)

3. Any covered losses under the Underlying policies which for any reason remain unpaid, in whole or in part, by the insurers of the Underlying policies shall be retained by the Insureds. The Insurer shall nevertheless recognize this retention by the Insured as contributing to the exhaustion or reduction of the limit of the Underlying policies and the attachment point of this policy shall not be altered as such in this respect.’

(G) In anticipation of the VEB Shareholder Settlement Agreement, the Imtech Defendants and Imtech Deutschiand on one hand and AIG on the other hand are desirous of achieving resolution of all issues between them with regard to the AIG D&O Insurance, all on the terms as set forth below (the “Agreement’).

Only by executing this Agreement and under the terms of this Agreement AIG will consent with the insured entering into the VEB Shareholder Settlement Agreement as meant in article 5.4 of the AIG D&O lnsucance, and with a potential settliement with other claimants including Deminor and SBGBI as foreseen therein.

(H) In anticipation of the VEB Shareholder Settlement Agreement, the Imtech Defendants and Imtech Deutschland on one hand and AIG on the other hand wish to enter into a settlement agreement with respect to the amount AIG is willing to contribute to the funding of a settlement with claimants including constituencies of VEB, Deminor and SBGBI. AIG will contribute to a settlement

up to the amounts laid down in this agreement, taking into account the fact that at this stage it is uncertain whether liability of the insureds under the AIG D&O Insurance will be established and the fact that Imtech itself will also make a contribution to the settlement.

(I) The settlement between the Parties is made under the assumption that in the event liability of one ot more insureds would be established the amounts claimed by the claimants should be covered under the AIG D&O Insurance, up to an amount equal to the total sum insured under the AIG D&O Insurance.

PAYMENT BY IMTECH TO THE SETTLEMENT FUND

In verband met de inhoud van het sub 2.5 genoemde persbericht en de daaropvolgende gebeurtenissen (als hieronder omschreven) is Imtech ook geconfronteerd met vorderingen van Belgische aandeelhouders, verenigd in de claimstichting Deminor. Imtech heeft ook met Deminor een schikking uitonderhandeld. CNA bleek bereid onder de first excess layer van de D&O 2013 een bijdrage aan die schikking te leveren. Hierover is in mei 2015 overeenstemming bereikt tussen CNA, Imtech en de Raad van Bestuur uit 2013. CNA heeft ingestemd met de Deminor-schikking en aangegeven dat in geval van aansprakelijkstelling, de vorderingen gedekt zouden zijn onder de first excess layer van de D&O 2013, tot € 15 miljoen. De commissarissen 2013 waren geen partij bij de schikking met CNA. In de desbetreffende overeenkomst is het volgende opgenomen: ‘(...)

(B) In a press release of 4 February 2013 Imtech reported an unexpected write-off of at least EUR 100M on PoIish projects and possible irregularities in connection therewith (the ‘Events”). Further Information regarding the Events was disclosed by Imtech in consecutive press releases published through 18 June 2013, the annual accounts of the financial year 2012 and Imtech’s report to shareholders of 18 June 2013. Following the Events, Imtech restated its financial statements for the financial year 2011 and its semi-annual financial

statements for the financial year 2012. KPMG withdrew its unqualified audit opinion accompanying the annual accounts of the financial year 2011. (...)

(E) Imtech and the Former Members of the Board of Management have entered into a settlement agreement with VEB dated 7 October 2014 which provides for a settlement of the claims of the constituencies of VEB and other retail investors through the use of an opt-in mechanism and a settlement foundation (the “Foundation), with the (Former) Members of the Supervisory Board named as third-party beneficiaries (the ‘VEB Settlement Agreement’).

(...)

(l) Imtech and the Former Members of the Board of Management expect to agree on a settlement agreement with Deminor which provides for a settlement of the claims of the shareholders represented by Deminor and SBGBI through the use of an opt-in mechanism, with the (Former) Members of the Supervisory Board named as third-party beneficiaries (‘the Deminor Settlement Agreement”), a draft of which is attached as Annex 1 (Draft Deminor Settlement Agreement). As a result of the Deminor Settlement Agreement Imtech will pay (I) to Deminor a maximum amount of EUR 10,250,000 (ten milllion two hundred fifty thousand euro) of which EUR 7,000,000 (seven million) we be funded by the Foundation and EUR 3,250.000 (three million two hundred fifty thousand) will be paid directly by Imtech, and (ii) to VEB a maximum amount of EUR 1,155,000 (one million one hundred fifty-five thousand euro) in 2015 and a maximum amount of EUR 1,435,500 (one million four hundred thirty-five thousand five hundred euro) in 2018. By signing this Agreement, CNA irrevocably consents to Imtech entering into the Deminor Settlement Agreement.

(..._

(L) The settlement between the Parties is made under the assumption that in the event liability of one or more insureds would be established the amounts claimed by the claimants referred to in D) should be covered under the CNA 2013 D&O Insurance, up to an amount equal to the total sum insured under the CNA 2013 D&O Insurance’