EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 20th day of
April, 2004 (the "Effective Date"), by and between Continental Casualty
Company, an Illinois insurance company (the "Company"), and Xxxxxxxx X. Xxxxxx
("Executive");
WITNESSETH:
WHEREAS, Executive currently serves as Senior Vice President,
Corporate Controller, with senior management level responsibility for
accounting functions and other financial matters for the principal business
units and subsidiaries of the Company (hereinafter the "CNA insurance
companies"); and
WHEREAS, the Company and the Executive wish to enter into a written
agreement setting forth the terms of their future employment relationship as
set forth below;
NOW, THEREFORE, in consideration of the foregoing premises and the
promises and covenants herein, the parties hereto agree as follows:
1. Employment Term. The Company and Executive agree that the Company
shall employ Executive to perform the duties of a Senior Vice President of the
CNA insurance companies for the period commencing on April 20, 2004
("Effective Date") and ending on March 31, 2007, or such earlier date as of
which Executive's employment is terminated in accordance with Section 6
hereof. The covenants set forth in Sections 7, 8, 9, 10, 11, 12, 13, and 14
shall survive the employment term of this Agreement.
2. Duties of Executive.
(a) Executive shall continue to perform the duties and
responsibilities of a Senior Vice President, Corporate Controller [or
successor title] of the CNA insurance companies as defined and directed by the
Company's Chief Financial Officer (hereinafter "CFO"). Executive shall report
to the CFO. Executive may be elected to and shall serve as a member of the
Board of Directors of one or more of the CNA insurance companies, and if so
elected Executive agrees to serve on such boards in such capacity without
additional compensation and Executive further agrees to resign any such
position on such Boards upon the termination of his employment with the
Company for any reason; provided that nothing in this Agreement shall require
that the shareholders of any company elect Executive to its board of
directors.
1
(b) Executive shall diligently and to the best of his abilities
assume, perform, and discharge the duties and responsibilities of Senior Vice
President, Corporate Controller, as well as such other specific duties and
responsibilities as the CFO shall assign or designate to Executive from time
to time not inconsistent with Executive's status. Executive shall devote
substantially all of his working time to the performance of his duties as set
forth herein and shall not, without the prior written consent of the CFO,
accept other employment or render or perform other services, nor shall he have
any direct or indirect ownership interest in any other business which is in
competition with the business of the Company or the CNA insurance companies,
other than in the form of publicly traded securities constituting less than
five percent (5%) of the outstanding securities of a corporation (determined
by vote or value) or limited partnership interests constituting less than five
percent (5%) of the value of any such partnership. The foregoing shall not
preclude Executive from engaging in charitable, professional, and personal
investment activities, provided that, in the judgment of the CFO, such
activities do not materially interfere with his performance of his duties and
responsibilities hereunder.
3. Compensation.
(a) The Company shall pay to Executive for the period he is employed
by the Company hereunder, an annual base salary at no less than $280,000.00
payable not less frequently than monthly and consistent with the Company's
normal pay practices (the "Base Compensation"). At the discretion of the CFO,
such salary rate may be increased annually as of each March occurring during
the term of the Agreement, beginning with March 2005, based on market
considerations, responsibilities and performance. In no event shall
Executive's salary rate be reduced to an amount that is less than the amount
specified in this Section 3(a) without Executive's written consent, or to an
amount that is less than the amount that he was previously receiving without
Executive's written consent.
(b) The Executive shall be eligible for an annual incentive cash
award ("Bonus") pursuant to the Company's incentive compensation plan as
amended from time to time ("CCC Incentive Plan"). The Executive's target Bonus
thereunder shall not be less than the rate of forty percent (40%) of his Base
Compensation for each twelve month bonus period. In no event shall the target
Bonus be reduced without the Executive's written consent. The amount of the
award shall be based on the assessment of Executive's performance by the CFO
or the Company's Chief Executive Officer ("CEO"), and shall be determined and
payable in accordance with the terms of the CCC Incentive Plan as set forth in
the CCC Incentive Plan documents; however, if Executive is a proxy-named
2
officer, the amount of the award shall be based on the assessment of
Executive's performance by the Incentive Compensation Committee (the
"Committee") of the Board of Directors of the Company's parent, CNA Financial
Corporation ("CNAF"), and shall be determined and payable in accordance with
the terms of the Incentive Compensation Plan, as set forth in the Incentive
Compensation Plan documents.
(c) Subject to Committee approval, Executive shall be eligible to
receive a long-term Incentive Cash Award, in accordance with the terms of the
2000 Incentive Compensation Plan of CNAF ("Incentive Compensation Plan"), as
may be in effect during the term of this Agreement or such other long term
incentive plan as the Company may from time to time adopt for its senior
officers. The Executive's target long-term incentive cash award shall be no
less than 20 percent (20%) of annual base compensation during the three year
performance period. In no event shall the target award be reduced without the
Executive's written consent.
(d) Subject to the approval of the Committee, Executive shall be
awarded a minimum stock option grant of 1600 shares of CNA Financial
Corporation stock annually during the term of this Agreement. Such annual
grant may be increased at the recommendation of the CEO and upon approval of
the Committee, subject to share availability. Executive's rights with respect
to shares awarded hereunder shall be subject to the terms of the Incentive
Compensation Plan, share availability and approval of the Committee.
(e) For avoidance of doubt respecting awards to Executive under
Section 3(b), 3(c) and 3(d) hereof, the Committee shall retain such discretion
as may be provided under the Incentive Compensation Plan to satisfy Section
162(m) of the Internal Revenue Code of 1986 ("Code") or any successor
provision. The Company may defer the payment of all compensation to which
Executive is entitled hereunder or otherwise to enable it to comply with
Section 162(m) of the Code or any successor provision with respect to
deductibility of executive compensation. All deferred compensation will be
credited to the Executive's SES-CAP account and shall be subject to the terms
thereof.
3
(f) Executive's pensionable earnings under the CNA Retirement Plan,
the CNA Supplemental Executive Retirement Plan ("SERP"), the Savings & Capital
Accumulation Plan ("S-CAP"), and the CNA Supplemental Savings & Capital
Accumulation Plan ("SES-CAP") will be calculated as specified in the plan
documents.
(g) All payments due under this Agreement shall be subject to
withholding as required by law.
4. Other Benefits. Executive shall be entitled to continue to
participate in the various benefit plans, programs or arrangements established
and maintained by the Company from time to time and applicable to senior
executives of the Company such as, but not by way of limitation, medical
benefits, dental benefits, life insurance, long-term disability insurance,
both qualified and supplemental defined contribution plans, and to receive all
fringe benefits made available to senior executives of the Company, including
club membership ($6000.00 annually) and tax return preparation. Executive's
entitlement to participate in any such plan, program or arrangement shall, in
each case, be subject to the terms and conditions thereof. Executive shall not
be eligible for paid time off ("PTO") under the Company's PTO policy. However,
Executive shall be eligible for a reasonable amount of paid time off, as
approved by the Company CFO. In the event of termination of employment,
Executive's severance shall be determined solely in accordance with Section 6
hereof.
5. Expense Reimbursement. Executive shall continue to be entitled to
reimbursement by the Company for all reasonable and customary travel and other
business expenses incurred by Executive in carrying out his duties under this
Agreement, in accordance with the general reimbursement policies adopted by
the Company from time to time. Executive shall report all such expenditures
not less frequently than monthly accompanied by adequate records and such
other documentary evidence as required by the Company or by Federal or state
tax statutes or regulations governing the substantiation of such expenditures.
6. Termination of Employment. If Executive's employment with the
Company shall terminate during the term of this Agreement, the following
conditions set forth herein shall apply with respect to the Executive's
compensation and benefits hereunder. Either party may terminate Executive's
employment with the Company during the term of this Agreement by written
notice to the other party effective as of the date specified in such notice
and Executive's employment shall automatically terminate in the event of
Executive's death. Upon termination of Executive's employment during or at the
end of the term of this Agreement, the rights of the parties under this
Agreement shall be determined pursuant to this Section 6. All payments made
hereunder shall be made either to Executive or to his personal
representatives, heirs or beneficiaries as the case may be. In the event of
Executive's termination during the term of this Agreement, unless otherwise
specified in this Agreement, Executive's rights, if any, under any of the
Company's defined contribution, benefit, incentive or other plans of any
nature shall be governed by their terms.
4
6.1 Death and Disability. In the event of the death of Executive or,
at the Company's election, in the event of his Permanent Disability (as
defined below) during the term of this Agreement, provided it has not already
terminated, Executive's employment shall terminate; provided, however, that:
(a) The Company shall pay to Executive or his personal
representatives, heirs or beneficiaries as the case may be, an amount equal to
his: (i) unpaid base salary and current year's target Bonus and CNA long-term
incentive target cash award, each prorated to the date of termination; (ii)
any previous year's unpaid Bonus at target; and (iii) unpaid cash entitlements
earned by Executive or payable to his beneficiaries as of the date of
termination which, pursuant to the terms of the applicable Company plan or
program (which unpaid cash entitlements shall not include any unpaid Bonus or
any unpaid long-term incentive cash award or other award under the Incentive
Compensation Plan), accrued prior to the date of termination.
(b) For purposes of this Agreement, the term "Permanent Disability"
means a physical or mental condition of Executive which, as determined by the
CEO, in his sole discretion based on all available medical information, is
expected to continue beyond 26 weeks and which renders Executive incapable of
performing any substantial portion of the services contemplated hereunder with
or without reasonable accommodation.
6.2 Termination for Cause by the Company. In the event that Executive
shall engage in any conduct which the CEO in his sole discretion shall
determine to be Cause, he shall be subject to termination forthwith. For
purposes of this Agreement, Cause shall mean engaging in or committing: (i)
any act which would constitute a felony or other act involving fraud,
dishonesty, moral turpitude, unlawful conduct or breach of fiduciary duty;
(ii) any conduct which is inconsistent with the dignity and character of an
executive of the Company; (iii) a substantial breach of any material provision
of this Agreement; (iv) a willful or reckless material misconduct in the
performance of the Executive's duties; or (v) the habitual neglect of duties;
provided, however, that for purposes of clauses (iv) and (v), Cause shall not
include any one or more of the following: bad judgment, negligence or any act
or omission believed by the Executive in good faith to have been in or not
opposed to the interest of the Company (without any intent by the Executive to
gain, directly or indirectly, a profit to which he was not legally entitled).
If the Executive agrees to resign from his employment with the Company in lieu
of being terminated for Cause, he may be deemed to have been terminated for
Cause for purposes of this Agreement.
5
Upon terminating the Executive for cause, other than paying the
Executive within 30 days of such termination his: (i) unpaid base salary
prorated to the date of termination and (ii) unpaid cash entitlements earned
and accrued pursuant to the terms of the applicable Company plan or program
(which unpaid cash entitlements shall not include any unpaid Bonus or any
unpaid long-term incentive cash award or other award under the Incentive
Compensation Plan) prior to the date of the date of termination, the Company
shall have no further obligations under this Agreement. In the event of
termination for Cause, Executive agrees to be bound by the covenants set forth
herein at Sections 7 through 13, effective as of the termination date.
6.3 Termination by the Company Without Cause / Termination by
Executive for Good Reason. In the event Executive's employment is terminated
by the Company Without Cause as defined herein, or in the event Executive
terminates his employment for Good Reason, as defined herein,
(a) The Company shall pay to Executive severance consisting of an
amount equal to 12 months of the Executive's Base Compensation and Bonus at
target in effect at the time of termination. The severance shall be paid in
equal monthly installments beginning within 30 days following such
termination, provided the Executive has executed a general release in a form
provided by the Company. The Company shall also pay the Executive (i) within
30 days of his termination, his unpaid base salary, prorated to the date of
termination; (ii) at the time of the scheduled March payout date, any previous
year's Bonus and CNA long-term incentive cash award based upon actual or
discretionary payouts, if any; (iii) at the time of the scheduled March payout
date, current year's Bonus and CNA long-term incentive cash award based upon
actual or discretionary payouts, if any, prorated to the date of termination;
and (iv) within 30 days of his termination, unpaid cash entitlements earned
and accrued pursuant to the terms of the applicable Company plan or program
prior to the date of the date of termination (which unpaid cash entitlements
under this Section 6.3(a)(iv) shall not include any unpaid Bonus or any unpaid
long-term incentive cash award or other award under the Incentive Compensation
Plan). Executive agrees to be bound by the covenants set forth herein as of
the termination date. In addition, Executive shall continue to participate, at
the active employee rates, in such health benefits plans in which he is
enrolled throughout the term of the payments set forth in this Section 6.3(a),
up to a maximum of 12 months, with said period of participation to run
concurrently with any period of COBRA coverage to which Executive may be
entitled. The Company shall have no further obligations under this Agreement.
6
(b) Good Reason as set forth herein is defined as a reduction in the
rate of Executive's base salary, annual incentive target or long-term
incentive cash target compensation, a required relocation of his personal
residence to another geographical area without Executive's consent, or a
material diminution in Executive's duties and responsibilities without
Executive's consent.
( c ) Without Cause as set forth herein is defined as a termination
of the Executive by the Company for any reason not described in subsections
6.1 and 6.2.
6.4 Voluntary Resignation by Executive. In the event that Executive's
employment is voluntarily terminated by Executive other than pursuant to
subsection 6.3 or as a direct result of his death or Permanent Disability (as
described in subsection 6.1), the Company shall have no further obligations
under this Agreement other than paying the Executive within 30 days of such
termination his: (i) unpaid base salary prorated to the date of termination
and (ii) unpaid cash entitlements earned and accrued pursuant to the terms of
the applicable Company plan or program (which unpaid cash entitlements shall
not include any unpaid Bonus or any unpaid long-term incentive cash award or
other award under the Incentive Compensation Plan) prior to the date of
termination. Executive agrees to be bound by the covenants set forth herein
effective as of the termination date.
6.5 Expiration of Agreement. Following March 31, 2007, if the Company
and Executive have not mutually agreed to the terms of, and entered into a new
agreement, Executive's employment shall be one of employment at will, which
may be terminated by either the Company or Executive at any time. Such
continued employment after March 31, 2007 shall be subject to the Company's
normal policies and procedures in effect during said period of continued
employment.
6.6 Other Benefits. In the event that Executive's employment is
terminated pursuant to subsections 6.1, 6.2 or 6.4, Executive's coverage under
the Company's short-term disability plan, shall end on the date of termination
of employment; Executive's coverage under the Company's long-term disability
plan shall end on the last day of the month in which termination of employment
occurs; and Executive's coverage under the Company's non-contributory and
contributory life, dependent life and accidental death and dismemberment plans
shall end on the last day of the month in which termination occurs. In the
event that Executive's employment is terminated pursuant to subsection 6.3,
the foregoing shall also apply, except that Executive's coverage under the
Company's contributory life, dependent life and contributory accidental death
and dismemberment plans shall continue through the end of the severance
period, upon payment of the applicable premium.
7
6.7 Release. Executive acknowledges that the severance benefits set
forth in Section 6 hereof provides significant additional benefits as compared
to those available to the Company's employees in general. As a condition
precedent to receiving any benefits pursuant to Section 6, Executive agrees to
sign a full and complete release acceptable to the Company releasing the
Company, its subsidiaries and affiliates and their directors, officers and
employees of any and all claims, both known and unknown as of the date of
Executive's termination. In the absence of Executive's executing such a
release, the Company shall have no obligation to make the payments hereunder.
7. Confidentiality. Executive agrees that while he is employed by the
Company, and at all times thereafter, Executive shall not reveal or utilize
information, knowledge or data which is confidential as defined in this
Agreement and learned during the course of or as a result of his employment
which relates to: (a) the Company and/or any other business or entity in which
the Company during the course of the Executive's employment has directly or
indirectly held a greater than a 10% equity interest whether voting or
non-voting; and (b) the Company's customers, employees, agents, brokers and
vendors. The Executive acknowledges that all such confidential information is
commercially valuable and is the property of the Company. Upon the termination
of his employment Executive shall return all confidential information and any
copies thereof to the Company, whether it exists in written, electronic,
computerized or other form.
8. "Confidential Information" Defined. For purposes of this Agreement
"confidential information" includes all information, knowledge or data
(whether or not a trade secret or protected by laws pertaining to intellectual
property) not generally known outside the Company (unless as a result of a
breach of any of the obligations imposed by this Agreement) concerning the
business and technical information of the Company or other entities as
described in Section 7 above. Such information may without limitation include
information relating to data, finances, marketing, pricing, profit margins,
underwriting, claims, loss control, marketing and business plans, renewals,
software, processing, vendors, administrators, customers or prospective
customers, products, brokers, agents and employees.
8
9. Competition. Executive hereby agrees that, while he is employed by
the Company, and for a period of 12 months following the date of his
termination of employment with the Company for any reason, he will not,
directly or indirectly, without the prior written approval of the CEO, in the
CEO's sole and exclusive discretion, enter into any business relationship
(either as principal, agent, board member, officer, consultant, stockholder,
employee or in any other capacity) with any business or other entity that at
any relevant time is engaged in the business of insurance (a "Competitor");
provided, however, that such prohibited activity shall not include the
ownership of less than 5% of the outstanding securities of any publicly traded
corporation (determined by vote or value) regardless of the business of such
corporation. Upon the written request of Executive, the CEO will determine
whether a business or other entity constitutes a "Competitor" for purposes of
this Section 9; provided that the CEO may require Executive to provide such
information as the CEO determines to be necessary to make such determination;
and further provided that the current and continuing effectiveness of such
determination may be conditioned on the accuracy of such information, and on
such other factors as the CEO may determine.
10. Solicitation. Executive agrees that while he is employed by the
Company, and for a period of 24 months following his termination of employment
with the Company for any reason, he will not employ, offer to employ, engage
as a consultant, or form a business association with any person who is then,
or who during the preceding one year was, an employee of the Company or any
Subsidiary or Affiliate of the Company or any successor or purchaser of any
portion thereof, nor will he assist any other person or entity in soliciting
for employment or consultation any person who is then, or who during the
preceding one year was, an employee of the Company or any Subsidiary or
Affiliate of the Company or any successor or purchaser of any portion thereof.
11. Non-interference. Executive agrees that while he is employed by
the Company, and for a period of 24 months following his termination of
employment with the Company for any reason, he will not disturb or attempt to
disturb any business relationship or agreement between either the Company or
any Subsidiary or Affiliate of the Company or any successor or purchaser of
any portion thereof, and any other person or entity.
9
12. Assistance with Claims. Executive agrees that, while he is
employed by the Company, and for a reasonable period (not less than 60 months
from the date of termination) thereafter, he will be available, on a
reasonable basis, to assist the Company and its subsidiaries and affiliates in
the prosecution or defense of any claims, suits, litigation, arbitrations,
investigations, or other proceedings, whether pending or threatened ("Claims")
that may be made or threatened by or against the Company or any of its
subsidiaries or affiliates. Executive agrees, unless precluded by law, to
promptly inform the Company if he is requested (i) to testify or otherwise
become involved in connection with any Claim against the Company or any
subsidiary or affiliate or (ii) to assist or participate in any investigation
(whether governmental or private) of the Company or any subsidiary or
affiliate or any of their actions, whether or not a lawsuit has been filed
against the Company or any of its subsidiaries or affiliates relating thereto.
For the period following the 24-month anniversary of the date of Executive's
termination of employment with the Company, the Company agrees to provide
reasonable compensation to Executive for such assistance. The Company agrees
to, in its sole and exclusive discretion, provide legal representation to
Executive, when deemed appropriate by the Company.
13. Return of Materials. Executive shall, at any time upon the
request of the Company, and in any event upon the termination of his
employment with the Company, for whatever reason, immediately return and
surrender to the Company all originals and all copies, regardless of medium,
of property belonging to the Company created or obtained by Executive as a
result of or in the course of or in connection with his employment with the
Company regardless of whether such items constitute proprietary information,
provided that Executive shall be under no obligation to return written
materials acquired from third parties which are generally available to the
public. Executive acknowledges that all such materials are, and will remain,
the exclusive property of the Company.
14. Scope of Covenants.
(a) The Executive acknowledges that: (a) as a senior executive of the
Company he had access to confidential information concerning not only the
business segments for which he may have been responsible (an outline summary
of which appears in the Company's Form 10K filed with the Securities and
Exchange Commission) but the entire range of businesses in which the Company
was engaged; (b) that the businesses segments for which he may have been
responsible and the Company's businesses are conducted nation-wide; and (c)
that the Company's confidential information, if disclosed or utilized without
its authorization would irreparably harm the Company in: (i) obtaining
renewals of existing customers; (ii) selling new business; (iii) maintaining
and establishing existing and new relationships with employees, agents,
brokers, vendors; and (iv) other ways arising out of the conduct of the
businesses in which the Company is engaged.
10
(b) To protect such information and such existing and prospective
relationships, and for other significant business reasons, the Executive
agrees that it is reasonable and necessary that: (a) the scope of this
agreement be nation-wide; (b) its breadth include the entire insurance
industry; and (c) the duration of the restrictions upon the Executive be as
indicated therein.
(c) The Executive acknowledges that the Company's customer, employee
and business relationships are long-standing, indeed, near permanent and
therefore are of great value to the Company. The Executive agrees that neither
any of the provisions in this Agreement nor the Company's enforcement of it
alters or will alter his ability to earn a livelihood for himself and his
family and further that both are reasonably necessary to protect the Company's
legitimate business and property interests and relationships, especially those
which he was responsible for developing or maintaining. The Executive agrees
that his actual or threatened breach of the covenants set forth in Sections 7
through 13 above would cause the Company irreparable harm and that the Company
is entitled to an injunction, in addition to whatever other remedies may be
available, to restrain such actual or threatened breach. The Executive agrees
that if bond is required in order for the Company to obtain such relief, if
need only be in a nominal amount and that he shall reimburse the Company for
all costs of any such suit, including the Company's reasonable attorneys'
fees. The Executive consents to the filing of any such suit against him in the
state or federal courts located in Illinois or any state in which he resides.
He further agrees that in the event of such suit or any other action arising
out of or relating to this Agreement, the parties shall be bound by and the
court shall apply the internal laws of the State of Illinois and irrespective
of rules regarding choice of law or conflicts of laws.
(d) If he has not already done so Executive agrees to continue to be
bound by and to execute the Company's Confidentiality, Computer Responsibility
and Professional Certification Agreement, a copy of which is attached hereto
and incorporated by reference herein.
11
(e) For purposes of Sections 7 through 14 hereof, the "Company" shall
include the "CNA insurance companies", as well.
15. Effect of Covenants. Nothing in Sections 7 through 14 shall be
construed to adversely affect the rights that the Company would possess in the
absence of the provisions of such Sections.
16. Revision. The parties hereto expressly agree that in the event
that any of the provisions, covenants, warranties or agreements in this
Agreement are held to be in any respect an unreasonable restriction upon
Executive or are otherwise invalid, for whatsoever cause, then the court or
arbitrator so holding is hereby authorized to (a) reduce the territory to
which said covenant, warranty or agreement pertains, the period of time in
which said covenant, warranty or agreement operates or the scope of activity
to which said covenant, warranty or agreement pertains or (b) effect any other
change to the extent necessary to render any of the restrictions contained in
this Agreement enforceable.
17. Severability. Each of the terms and provisions of this Agreement
is to be deemed severable in whole or in part and, if any term or provision of
the application thereof in any circumstances should be invalid, illegal or
unenforceable, the remaining terms and provisions or the application thereof
to circumstances other than those as to which it is held invalid, illegal or
unenforceable, shall not be affected thereby and shall remain in full force
and effect.
18. Binding Agreement; Assignment. This Agreement shall be binding
upon the parties hereto and their respective heirs, successors, personal
representatives and assigns. The Company shall have the right to assign this
Agreement to any successor in interest to the business, or any majority part
thereof, of the Company or any joint venture or partnership to which the
Company is a joint venturer or general partner which conducts substantially
all of the Company's business. Executive shall not assign any of his
obligations or duties hereunder and any such attempted assignment shall be
null and void.
19. Controlling Law; Jurisdiction. This Agreement shall be governed
by, interpreted and construed according to the laws of the State of Illinois
(without regard to choice of law or conflict of laws principles).
12
20. Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement contains the entire agreement of the parties with regard to the
subject matter hereof, supersedes all prior agreements and understandings,
written or oral, and may only be amended by an agreement in writing signed by
the parties thereto.
21. Additional Documents. Each party hereto shall, from time to time,
upon request of the other party, execute any additional documents which shall
reasonably be required to effectuate the purposes hereof.
22. Incorporation. The introductory recitals hereof are incorporated
in this Agreement and are binding upon the parties hereto.
23. Failure to Enforce. The failure to enforce any of the provisions
of this Agreement shall not be construed as a waiver of such provisions.
Further, any express waiver by any party with respect to any breach of any
provision hereunder by any other party shall not constitute a waiver of such
party's right to thereafter fully enforce each and every provision of this
Agreement.
24. Survival. Except as otherwise set forth herein, the obligations
contained in this Agreement shall survive the termination, for any reason
whatsoever, of Executive's employment with the Company.
25. Headings. All numbers and headings contained herein are for
reference only and are not intended to qualify, limit or otherwise affect the
meaning or interpretation of any provision contained herein.
26. Notices. Notices and all other communications provided for in
this Agreement shall be in writing and shall be delivered personally or sent
by registered or certified mail, return receipt requested, postage prepaid
(provided that international mail shall be sent via overnight or two-day
delivery), or sent by facsimile or prepaid overnight courier to the parties at
the addresses set forth below (or such other addresses as shall be specified
by the parties by like notice). Such notices, demands, claims and other
communications shall be deemed given:
(a) in the case of delivery by overnight service with guaranteed next
day delivery, the next day or the day designated for delivery;
13
(b) in the case of certified or registered U.S. mail, five days after
deposit in the U.S. mail;
or
(c) in the case of facsimile, the date upon which the transmitting
party received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that
are to be delivered by the U.S. mail or by overnight service or two-day
delivery service are to be delivered to the addresses set forth below:
If to the Company:
CNA Financial Corporation
XXX Xxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
If to Executive:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
or to such other address as either party shall furnish to the other party in
writing in accordance with the provisions of this Section 26.
27. Gender. The masculine, feminine or neuter pronouns used herein
shall be interpreted without regard to gender, and the use of the singular or
plural shall be deemed to include the other whenever the context so requires.
28. Arbitration of All Disputes. Any controversy or claim arising out
of or relating to this Agreement (or the breach thereof) shall be settled by
final, binding and non-appealable arbitration in Chicago, Illinois by three
arbitrators. Except as otherwise expressly provided in this Section 28, the
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association (the "Association") then in effect. One of the
arbitrators shall be appointed by the Company, one shall be appointed by
Executive, and the third shall be appointed by the first two arbitrators. If
the first two arbitrators cannot agree on the third arbitrator within 30 days
of the appointment of the second arbitrator, then the third arbitrator shall
be appointed by the Association. This Section 28 shall not be applicable with
respect to any matter or controversy subject to Sections 7 through 14 of this
Agreement.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.
CONTINENTAL CASUALTY COMPANY
By:
Title: /s/Xxxx Xxxxxxxxxx
---------------------------
Senior Vice President
Human Resources
/s/Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
