2008 D&O Symposium Symposium EXCESS D&O – What’s Up With That? David Bell Senior Vice President Allied World Assurance Company, Ltd.

10x40 10x30 10x20 10x10 $10m 10x40 10x30 10x20 10x10 $10m Settlement Value of $40,000,000 $50m % or $10m Insured Contribution Deductible % or $20m Insured Contribution $10m $20m $30m $40m

Settlement Value of $40,000, x40 Attachment Point for “Covered Loss” = $33.5m $50m $10m $20m $30m $40m 10x40 10x30 10x20 10x10 $10m Deductible x40 10x30 10x20 10x10 $10m $50m Deductible % or $20m Insured Contribution

$50m 10x40 Attachment Point for “Covered Loss” = $27m Settlement Value of $40,000,000 10x40 Attachment Point for “Covered Loss” = $33.5m $50m $10m $20m $30m $40m 10x40 10x30 10x20 10x10 $10m Deductible x40 10x30 10x20 10x10 $10m $50m Deductible

$50m 10x40 10x30 10x20 10x10 $10m % or $10m Insured Contribution Deductible 10x40 10x30 10x20 10x10 $10m Deductible $500,000 $375,000 75% $281,250 75% $210,937 75% $158,203 75% $10m $20m $30m $40m 10x40=31% of Primary Premium 10x40 limit paid is 68% of primary Comparing 10x40 Limits Paid as a % of Primary to Premium

$50m 10x40 10x30 10x20 10x10 $10m Deductible $10m $20m $30m $40m $10m 10x40 10x20 Payout of $33m Damage Analysis Of $15m Problems with the Primary and High Excess Layers Being the Same Carrier

Not a “Loss” legal fees and expenses incurred in connection with internal investigations or special litigation committee investigations; expert and consulting fees incurred in connection with internal investigations or SLC investigations; legal fees and expenses incurred in connection with government or regulatory investigations for all time periods prior to the date the investigation became or becomes a "Claim" under the primary D&O policy in question; those portions of legal fees and expenses incurred in connection with non-covered matters or on behalf of non- covered parties. legal fees and efforts spent on corporate transactional issues (such as indemnification) or in securing D&O coverage.

Change the Process Broker should guide the insured’s counsel to keep separate files by functional activity. If coinsurance is effectively the result, then do it from the start. Claims Rep should send the pricing sheet at the first hint of a “work out”. “Cram Down Letter”

Exhaustion It is expressly agreed that liability for any covered Loss with respect to claims first made during the Policy Period or Discovery Period (if applicable) shall attach to the Insurer only after the Underlying Insurers have paid or have been held to pay the full amount of the Underlying Aggregate Limit above the applicable retention for such Policy Period. Therefore, in the event that the Underlying Insurers assert coverage defenses that result in an allocation or apportionment of covered Loss versus uncovered Loss, all covered Loss will be paid by the Underlying Insurers and the uncovered portion of the Loss will not erode the limits of the Underlying Insurers. This policy shall not pay until and unless all Underlying Insurers exhaust their available limits for covered Loss and any applicable Defense costs.