REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement is entered into as of August 8, 2006, between
CNA
Financial Corporation, a Delaware corporation (the “Company”),
and
Loews Corporation, a Delaware corporation (the “Purchaser”).
Reference
is made to the Series H Cumulative Preferred Stock Retirement Agreement, dated
as of August 1, 2006, among the Company and the Purchaser (as amended,
supplemented or modified from time to time, the “Retirement
Agreement”).
The
execution of this Agreement is a condition to the closing of the transactions
contemplated by the Retirement Agreement.
The
parties hereby agree as follows:
1.
Definitions
As
used
in this Agreement, the following terms shall have the following
meanings:
Advice: As
defined in the last paragraph of Section 4 hereof.
Affiliate: of
any specified person shall mean any other person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified person. For the purposes of this definition, “control,” when used
with respect to any person, means the power to direct the management and
policies of such person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise and the terms “affiliated,”
“controlling” and “controlled” have meanings correlative to the
foregoing.
Agreement: This
Registration Rights Agreement, as the same may be amended, supplemented or
modified from time to time in accordance with the terms hereof.
Business
Day: Each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York are authorized or obligated by law
or
executive order to close.
Common
Stock. The
common stock, $2.50 par value per share, of the Company.
Company: As
defined in the Recitals hereto.
Controlling
person: As
defined in Section 6(a) hereof.
Disclosure
Package: With
respect to any offering shall mean any preliminary prospectus relating to such
offering, any Issuer Free Writing Prospectus (as defined in Rule 433 promulgated
by the SEC pursuant to the Securities Act) used in connection with such offering
and any final term sheet used in connection with such offering.
Exchange
Act: The
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the SEC pursuant thereto.
Holder: The
Purchaser and each transferee (including subsequent transferees) of Shares
that
are Transfer Restricted Securities registered in the name of the Purchaser
or
such transferee.
Indemnified
Person: As
defined in Section 6(a) hereof.
Person: An
individual, partnership, corporation, limited liability company, professional
corporation, trust, unincorporated organization, or a government or agency
or
political subdivision thereof.
Prospectus: The
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A or Rule 430B promulgated pursuant to the Securities Act), as amended
or supplemented by any prospectus supplement, with respect to the terms of
the
offering of any portion of the Transfer Restricted Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference, if any, in such
prospectus.
Purchaser: As
defined in the Recitals hereto.
Registration
Request: As
defined in Section 2(a) hereto.
Registration
Statement: Any
registration statement of the Company that covers any of the Transfer Restricted
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
Retirement
Agreement: As
defined in the Recitals hereto.
Rule
144: Rule
144 promulgated by the SEC pursuant to the Securities Act, as such Rule may
be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC as a replacement thereto having substantially the same effect as
such
Rule.
SEC: The
Securities and Exchange Commission.
Securities
Act: The
Securities Act of 1933, as amended, and the rules and regulations promulgated
by
the SEC thereunder.
Shares: A
total of 7,863,258 shares of Common Stock owned by the Purchaser at the time
of
any Registration Request or any request by the Purchaser pursuant to Section
2(b) of this Agreement; provided,
that
the maximum number of shares of Common Stock for which the Purchaser may make
Registration Requests and requests pursuant to Section 2(b) of this Agreement
is
7,863,258.
Transfer
Restricted Securities: The
Shares until the earliest of (i) the date on which such Shares have been
registered effectively pursuant to the Securities Act and disposed of in
accordance with the Registration Statement or (ii) the date on which such Shares
are sold
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pursuant
to Rule 144 (or any similar provisions then in effect) or are salable pursuant
to paragraph (k) of Rule 144.
2.
Demand
and Piggy-back Registrations
(a) Upon
the
written request (a “Registration
Request”)
to
register shares of Transfer Restricted Securities by Holders of not less than
a
majority of the then outstanding Transfer Restricted Securities, the Company
will use its reasonable best efforts to file with the SEC as promptly as
practicable thereafter (but in no event later than thirty (30) days following
the date of receipt of a Registration Request), a Registration Statement under
the Securities Act registering the resale of such Transfer Restricted Securities
and will use its reasonable best efforts to effect the registration of the
Transfer Restricted Securities under all applicable state securities and blue
sky laws on or prior to 150 days following the date of receipt of a Registration
Request. Such request shall state the intended method of disposition of the
Transfer Restricted Securities sought to be registered, which may include the
underwritten public offering of such Transfer Restricted Securities. Whenever
the Company shall be requested to effect the registration of any Transfer
Restricted Securities under the Securities Act pursuant to this Section 2(a),
the Company shall promptly give written notice of such proposed registration
to
all Holders stating that such Holders have the right to request that any or
all
of the Transfer Restricted Securities owned by them be included in such
registration. The Company shall include in such registration all Transfer
Restricted Securities with respect to which the Company receives written
requests from the Holders thereof for inclusion therein (stating the intended
method of disposition of such Transfer Restricted Securities) if such requests
are received within 20 calendar days of the Company’s delivery of written notice
pursuant to the preceding sentence. The Registration Statement shall be on
Form
S-1 or S-3 under the Securities Act or another appropriate registration
permitting registration of such Transfer Restricted Securities for resale by
the
Holders in the manner or manners reasonably designated by them. The holders
shall be entitled to request not more than three (3) such registrations pursuant
to this Section 2(a). The Company shall use its reasonable best efforts to
keep
the Registration Statement effective for a continuous period until such time
as
no Transfer Restriction Securities remain outstanding by supplementing and
amending the Registration Statement to the extent necessary to ensure that
it is
available for sales of Transfer Restricted Securities by the holder thereof
entitled to the benefits of this Section 2(a), and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the rules,
regulations or instructions applicable to the registration form used for such
Registration Statement.
(b) Piggy-back
Registration Rights. If
the Company at any time proposes or is required to register any of its
securities under the Securities Act or any applicable state securities or Blue
Sky laws on a form which permits inclusion of Transfer Restricted Securities,
it
will each such time give written notice to all Holders of then existing Transfer
Restricted Securities of its intentions to do so. Upon the written request
of
any such Holder given within 20 days after receipt of any such notice, the
Company will use its best efforts to cause all such Transfer Restricted
Securities which such Holders shall have requested be registered to be
registered under the Securities Act and any applicable state securities or
blue
sky laws all to the extent requisite to permit the sale or other disposition
by
such Holders of the Transfer Restricted Securities so registered; provided,
however, if the offering proposed to be made is to be an underwritten public
offering, and the managing underwriters of such public offering furnish
a
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written
opinion that the total amount of securities to be included in such offering
would exceed the maximum amount of Securities (as specified in such opinion)
which can be marketed without materially and adversely affecting such offering,
then the relative rights to participate in such offering of the Holders of
Transfer Restricted Securities, Holders of other securities having the right
to
include such securities in such registration, and the Company shall be in the
following order of priority:
First:
The Person or Persons (including the Company in the case of an offering
initiated by the Company) requesting such registration shall be entitled to
participate in accordance with the relative priorities, if any, as shall exist
among them; and then
Second:
The Holders of Transfer Restricted Securities and the holders of securities
of
the Company which have a right to include such securities in such registration
shall be entitled to participate pro rata among themselves in accordance with
the number of outstanding shares of Transfer Restricted Securities which each
such Holder shall have requested be registered and the number of outstanding
securities of the Company which a holder thereof shall have requested be
registered; and then
Third:
If
such registration shall have been requested by a Person or Persons other than
the Company, the Company shall be entitled to include securities in such
registration.
No
registrations of Transfer Restricted Securities under this Section 2(b) shall
relieve the Company of its obligation to effect registrations under Section
2(a)
hereof, or shall constitute a registration request by any Holder of Transfer
Restricted Securities under Section 2(a).
(c) Suspension
of Registration Statement. Notwithstanding
anything to the contrary in this Section 2, the Company may, by delivering
written notice to the Holders, defer and suspend the filing of any Registration
Statement covering Transfer Restricted Securities at any time if (i) the Company
is in possession of material non-public information, (ii) the Company determines
(based on advice of counsel) that such prohibition is necessary in order to
avoid a requirement to disclose such material non-public information and (iii)
the Company determines in good faith that disclosure of such material non-public
information would have a material adverse effect on the Company and its
stockholders; provided,
however,
that
upon the public disclosure by the Company of the material non-public information
described in clause (i) of this paragraph, the suspension of the filing of
the
Registration Statement pursuant to this Section 2(c) shall cease and the Company
shall promptly comply with Section 3(b) hereof. In no event shall any suspension
of the filing of a Registration Statement pursuant to Section 2(c) exceed sixty
(60) days or occur more than three (3) times in any twelve (12) month
period.
3.
Registration
Procedures
In
connection with the Company’s registration obligations pursuant to Section 2
above, the Company shall in compliance with the time frames set forth
above:
(a) prepare
and file with the SEC a Registration Statement with respect to such Transfer
Restricted Securities and use reasonable best efforts to cause such Registration
Statement to be declared effective (unless it shall have become automatically
effective upon
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filing)
and to keep such Registration Statement effective until such time as none of
such Transfer Restricted Securities remain outstanding and provide all requisite
financial statements required for such Registration Statement to become
effective and remain effective as provided herein. Upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not
to be effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement; the Company shall file promptly an
appropriate amendment to such Registration Statement, (1) in the case of clause
(A), correcting any such misstatement or omission, and (2) in the case of
clauses (A) and (B), use its best efforts to cause such amendment to be declared
effective (unless it shall have become automatically effective upon filing)
and
such Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(b) prepare
and file with the SEC such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the Registration Statement
effective for the applicable period as specified in Section 2 hereof; cause
the
related Prospectus to be supplemented by any required Prospectus supplement,
and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and comply with the provisions of
the
Securities Act with respect to the disposition of all securities covered by
such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in
such Registration Statement or supplement to the Prospectus;
(c) advise
the selling Holders and any underwriters promptly and, if requested by such
Persons, confirm such advice in writing, (i) when the Registration Statement,
post-effective amendment thereto, Prospectus or Prospectus supplement has been
filed and/or become effective, (ii) of any request by the SEC for amendments
to
the Registration Statement or amendments or supplements to the Prospectus or
for
additional information relating thereto, (iii) of the issuance by the SEC of
any
stop order suspending the effectiveness of the Registration Statement under
the
Securities Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale in
any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, and (iv) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto or any document incorporated
or deemed to be incorporated by reference therein untrue, or that requires
the
making of any additions to or changes in the Registration Statement in order
to
make the statements therein not misleading, or that requires the making of
any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the SEC shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(d) furnish
to any underwriters and each selling Holder named in any Registration Statement
or Prospectus before filing with the SEC, copies of any Registration Statement
or any
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Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after
the initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Persons in connection with such sale,
if any, for a period of at least five Business Days, and the Company will not
file any such Registration Statement or any amendment or supplement to any
such
Registration Statement (including all such documents incorporated by reference)
to which any such Person, shall reasonably object within five Business Days
after the receipt thereof. A selling Holder shall be deemed to have reasonably
objected to such filing only if such Registration Statement, amendment, or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission or fails to comply with the applicable requirements
of
the Securities Act;
(e) promptly
following the filing of any document that is to be incorporated by reference
into a Registration Statement, provide copies of such document to any
underwriter and the selling Holders, make the Company’s representatives
available for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the filing
thereof as such Persons, reasonably may request.
(f) make
available at reasonable times for inspection by any underwriters and the selling
Holders, and any attorney or accountant retained by Persons, all relevant
financial and other records, pertinent corporate documents and properties of
the
Company and cause the Company’s officers, directors and employees to supply all
relevant information reasonably requested by any Persons, attorney or accountant
in connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
(g) if
requested by any underwriter or selling Holders, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such underwriter or selling Holders,
may reasonably request to have included therein, including, without limitation,
information relating to the “Plan of Distribution” of the Transfer Restricted
Securities; and make all required filings of such supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters
to
be included therein;
(h) furnish
to any underwriter and each selling Holder, without charge, at least one copy
of
the Registration Statement, as first filed with the SEC, and of each amendment
thereto, including all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(i) deliver
to any underwriter and each selling Holder, without charge, as many copies
of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company hereby
consents to the use (in accordance with law) of the Prospectus and any amendment
or supplement thereto by any underwriter and each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement
thereto;
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(j) make
such
representations and warranties and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement contemplated by
this Agreement as may be reasonably requested by any Holder of Transfer
Restricted Securities in connection with any sale pursuant to any Registration
Statement contemplated by this Agreement, and, at or prior to each closing
of
such sale, the Company shall:
(A) furnish
(or in the case of subparagraphs (2) and (3) below, use its best efforts to
furnish) to any underwriter and each selling Holder:
(1) a
customary certificate signed on behalf of the Company by (x) the President
or
any Vice President and (y) a principal financial or accounting officer of the
Company confirming, as of the date thereof, the matters similar to those covered
in an officers certificate to underwriters in connection with primary
underwritten offerings and such other similar matters as the Holders may
reasonably request;
(2) a
customary opinion of counsel for the Company covering matters similar to those
customarily covered in opinion letters of Counsel to underwriters in connection
with primary underwritten offerings and such other matters as the Holders may
reasonably request, and in any event including a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company and have considered the matters required to be
stated therein and the statements contained therein, although such counsel
has
not independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the foregoing
(relying as to materiality to a large extent upon facts provided to such counsel
by officers and other representatives of the Company and without independent
check or verification), no facts came to such counsel’s attention that caused
such counsel to believe that the (i) applicable Registration Statement, as
of
its most recent effective date immediately preceding the execution of the
underwriting agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, (ii) the Disclosure Package as
of
the date of the first contract of sale following the execution of the
underwriting agreement contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (iii) Prospectus contained in such Registration Statement as
of
its date, contained an untrue statement of a material fact or omitted to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading. Without limiting
the foregoing, such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and schedules and
other financial data included in any Registration Statement contemplated by
this
Agreement or the related Prospectus; and
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(3) customary
comfort letters from the independent accountants of the Company, in the
customary form and covering matters of the type customarily covered in comfort
letters to underwriters in connection with primary Underwritten
Offerings;
(B) enter
into an underwriting agreement in customary form with an underwriter or
underwriters selected by the Holders;
(C) to
the
extent requested by the selling Holders, (1) make available for inspection
by
any underwriter participating in any disposition pursuant to a Registration
Statement, and any attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent corporate documents
and
assets of the Company, and cause the Company’s officers, directors, employees
and independent accountants to supply all information reasonably requested
by
any underwriter, attorney, accountant or agent in connection with the
registration statement, (2) make available appropriate management personnel
for
participation in the preparation and drafting of the registration or comparable
statement, for due diligence and “road show” meetings, and (3) obtain a cold
comfort letter from the Company’s independent public accountants addressed to
the selling Holders in customary form and covering such matters of the type
customarily covered by cold comfort letters as the Holders of a majority of
the
Transfer Restricted Securities being sold reasonably request; and
(D) deliver
such other documents and certificates as may be reasonably requested by any
underwriter or any of the selling Holders to evidence compliance with clause
(A)
above.
The
above
shall be done at each closing, and if at any time the representations and
warranties of the Company contemplated in (A)(1) above cease to be true and
correct, the Company shall so advise any underwriter and the selling Holders
promptly and if requested by such Persons, shall confirm such advice in
writing;
(k) prior
to
any public offering of Transfer Restricted Securities, to register or qualify,
or cooperate with any underwriter and the selling Holders, and their respective
counsel in connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may reasonably request and as reasonably
required to permit the resale of such Transfer Restricted Securities in such
jurisdictions and do any and all other acts or things necessary or advisable
to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided,
however,
that the
Company shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would subject it
to
the service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction where
it is not now so subject;
(l) in
connection with any sale of Transfer Restricted Securities that will result
in
such securities no longer being Transfer Restricted Securities, facilitate
the
timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations
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and
such
names as the Holders may request at least two Business Days prior to such sale
of Transfer Restricted Securities;
(m) use
its
reasonable best efforts to cause the disposition of the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in clause
(k)
above;
(n) subject
to Section 3(c)(iv), if any fact or event contemplated by Section 3(c)(iv)
above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(o) provide
a
CUSIP number for all Transfer Restricted Securities not later than the effective
date of a Registration Statement covering such Transfer Restricted Securities
and provide a transfer agent and registrar for the Transfer Restricted
Securities not later than the effective date of the Registration Statement;
and
(p) agree
with the selling Holders and any underwriters that no party may use a Free
Writing Prospectus (as defined in Rule 405 promulgated by the SEC pursuant
to
the Securities Act) without the consent of the other parties.
4.
Agreement
of Holders
Each
Holder of Transfer Restricted Securities agrees that, upon receipt of any notice
from the Company pursuant to Section 3(a) hereof or of the happening of any
event of the kind described in Section 3(c)(iv) hereof, such Holder will
forthwith discontinue disposition of such Transfer Restricted Securities covered
by such Registration Statement or Prospectus until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(d)
hereof, or until it is advised in writing (the “Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus and,
if so directed by the Company, such Holder will deliver to the Company (at
the
Company’s expense) all copies, other than permanent file copies, then in such
Holder’s possession of the Prospectus covering such Transfer Restricted
Securities at the time of receipt of such notice. In the event the Company
shall
give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 2(a) hereof, if applicable, shall
be
extended by the number of days during the period from and including the date
of
the giving of such notice pursuant to Section 3(c)(iii) or Section 3(c)(iv)
hereof to and including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the supplement or
amended Prospectus contemplated by Section 3(c) hereof or shall have received
the Advice.
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5.
Registration Expenses
(a) Except
as
set forth in Section 5(b) below, all fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registration Statement is filed or becomes
effective and whether or not any securities are issued or sold pursuant to
any
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing
fees
(including, without limitation, fees and expenses in compliance with securities
or Blue Sky laws), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Transfer Restricted Securities and
Prospectus), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company , (v) fees and disbursements of all
independent certified special audit and “cold comfort” letters required by or
incident to such performance, (vi) Securities Act liability insurance, if the
Company so desires such insurance, and (vii) fees and expenses of all other
persons retained by the Company. In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense
of
any annual audit, and the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities
exchange.
(b) In
connection with any Registration Request hereunder, the following fees and
expenses shall be borne by the Holders: (i) underwriters’ discounts, commissions
and expenses, (ii) SEC registration fees and stock exchange listing fees with
respect to the shares of Transfer Restricted Securities to be registered, and
(iii) fees and disbursements of counsel for the Holders.
6.
Indemnification
(a) The
Company agrees to indemnify and hold harmless (i) each Holder and underwriter
and (ii) each person, if any, who controls (within the meaning of Section 15
of
the Act or Section 20 of the Exchange Act) any Holder or underwriter (any of
the
persons referred to in this clause (ii) being hereinafter referred to as a
“controlling
person”)
and
(iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder, underwriter or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as
an
“Indemnified
Person”),
to
the fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation
and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding
by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Person) directly
or
indirectly caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, the Disclosure Package
or
the Prospectus (or any amendment or supplement thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by any such untrue statement or omission or alleged untrue statement
or
omission that is made in reliance, upon and in conformity with information
relating to any of the Holders furnished in writing to the Company by any of
the
Holders expressly for use therein.
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In
case
any action or proceeding (including any governmental or regulatory investigation
or proceeding) shall be brought against any Indemnified Person with respect
to
which indemnity may be sought against the Company pursuant to the preceding
paragraph, such Indemnified Person (or the Indemnified Person controlled by
such
controlling person) shall promptly notify the Company in writing and the Company
upon the request of such Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person, and shall pay the fees and disbursements
of such counsel related to such proceedings (provided, that the failure to
promptly give such notice shall not relieve the Company of its obligations
pursuant to this Agreement except to the extent the Company was actually
prejudiced by such failure). Such Indemnified Person shall have the right to
employ its own counsel in any such action and the fees and expenses of such
counsel shall be at the expense of the such Indemnified Person, unless (i)
the
employment of such counsel shall have been specifically authorized in writing
by
the Company, (ii) the Company shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnified Person and the Company, and such
Indemnified Person shall have been advised by counsel that there may be one
or
more legal defenses available to it which are different from or additional
to
those available to the Company (in which case the Company shall not have the
right to assume the defense) it being understood, however, that the Company
shall not, in connection with any one such action or proceeding or separate
but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for such Indemnified Persons, which firm shall
be
designated by the Indemnified Persons. The Company shall be liable for any
settlement of any such action or proceeding effected with the Company’s prior
written consent, and the Company agrees to indemnify and hold harmless each
Indemnified Person from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written
consent of the Company. The Company shall not, without the prior written consent
of such Indemnified Person, settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Person
is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of such Indemnified Person from all liability
arising out of such action, claim, litigation or proceeding.
(b) Each
Holder of Transfer Restricted Securities agrees, severally and not jointly,
to
indemnify and hold harmless the Company and its directors, officers, and any
person controlling (within the meaning of Section 15 of the Act or Section
20 of
the Exchange Act) the Company, and its officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Holders, but
only with respect to claims and actions based on information relating to such
Holder furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the Company
or its directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder, such Holder shall have the rights
and
duties given the Company (except that if the Company shall have assumed the
defense thereof, such Holder shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees
and
expenses of such counsel shall be at the expense of such Indemnified Holder,
its
directors or officers or such
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controlling
persons) and the Company shall have the rights and duties given to each Holder
by the preceding paragraph. In no event shall any Holder be liable or
responsible for any amount in excess of the total proceeds (net of brokerage
commissions) received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement.
(c) If
the
indemnification provided for in this Section 6 is unavailable to an indemnified
party under Section 6(a) or Section 6(b) hereof (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion
as
is appropriate to reflect the relative fault of the Company, on the one hand,
and of the Indemnified Person, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company, on the one hand, and of the Indemnified
Person, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Indemnified Person and the parties’ relative
intent, knowledge and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed
to
include, subject to the limitations set forth in the second paragraph of Section
6(a), any legal or other fees or expenses reasonably incurred by such party
in
connection with investigating or defending any action or claim.
The
Company and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 6(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be required
to
contribute, in the aggregate, any amount in excess of the amount by which the
total amount received by such Holder with respect to the sale of its Transfer
Restricted Securities pursuant to a Registration Statement exceeds the amount
paid by such Holder for such Transfer Restricted Securities. No person guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders’ obligations to contribute pursuant to
this Section 6(c) are several in proportion to the respective shares of Transfer
Restricted Securities held by each of the Holders hereunder and not
joint.
The
indemnity, contribution and expense reimbursement obligations of the Company
hereunder shall be in addition to any liability the Company may otherwise have
under the Retirement Agreement or hereunder. The provisions of this Section
6
shall survive so long as Transfer Restricted Securities remain outstanding,
notwithstanding any transfer or sale of the
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Transfer
Restricted Securities by any Holder or any termination of this Agreement or
the
Retirement Agreement.
7.
Information
Requirements.
The
Company shall file the reports required to be filed by it under the Securities
Act and the Exchange Act, and if at any time the Company is not required to
file
such reports, it will, upon the request of any Holders of Transfer Restricted
Securities, make publicly available other information so long as necessary
to
permit sales pursuant to Rule 144 under the Securities Act. The Company further
covenants that it will cooperate with any Holder of Transfer Restricted
Securities and take such further reasonable action as any Holder of Transfer
Restricted Securities may reasonably request (including, without limitation,
making such reasonable representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder
to
sell Transfer Restricted Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act. Upon the request of any Holder of Transfer Restricted
Securities, the Company shall deliver to such Holder a written statement as
to
whether it has complied with such filing requirements.
8.
Miscellaneous
(a) Remedies. Each
holder of Transfer Restricted Securities or the Company, in addition to being
entitled to exercise all rights provided herein, in the Retirement Agreement
or
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each holder
of
Transfer Restricted Securities agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by the Company
of the provisions of this Agreement and hereby agrees to waive the defense
in
any action for specific performance that a remedy at law would be
adequate.
(b) No
Inconsistent Agreements. The
Company shall not enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the holders of Transfer Restricted
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company represents and warrants that as of the date hereof, the rights
granted to the Holders of Transfer Restricted Securities hereunder do not in
any
way conflict with the rights granted to holders of the Company’s securities
under other agreements.
(c) Amendments
and Waivers. The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, without the written consent of the
Holders of a majority of the then outstanding Transfer Restricted Securities;
provided,
however;
that,
for the purposes of this Agreement, Transfer Restricted Securities that are
owned, directly or indirectly, by either the Company or an Affiliate of the
Company shall not be deemed outstanding.
(d) Notices. All
notices and other communications provided for herein shall be made in writing
by
hand-delivery, next-day air courier, or certified first-class mail, return
receipt requested:
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(i) if
to the
Company, as provided in the Retirement Agreement,
(ii) if
to the
Purchaser, as provided in the Retirement Agreement, or
(iii) if
to any
other person who is then the registered Holder of any Transfer Restricted
Securities, to the address of such Holder as it appears in the Transfer
Restricted Securities register of the Company.
Except
as
otherwise provided in this Agreement, all such communications shall be deemed
to
have been duly given: when delivered by hand, if personally delivered; one
Business Day after being timely delivered to a next-day air courier; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; and when receipt is acknowledged by the
recipient’s telecopier machine, if telecopied.
(e) Successors
and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including subsequent Holders of Transfer
Restricted Securities provided such subsequent Holders acquire such Transfer
Restricted Securities directly from such Holder but without the need for an
express assignment.
(f) Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and, all of which taken together shall constitute one and
the
same Agreement.
(g) Governing
Law; Venue. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, as applied to contracts made and performed within the State
of New York without regard to principles of conflicts of law. All suits or
other
actions (whether at law or in equity) to enforce rights pursuant to this
Registration Rights Agreement may be brought only in (i) state courts of the
state of Illinois in Xxxx County, (ii) state courts of the state of New York
in
New York County, (iii) state courts in the state of Delaware in New Castle
County, or (iv) the United States District Court for (a) the Northern District
of Illinois, (b) the Southern District of New York or (c) the District of
Delaware. The Company and Holders of Transfer Restricted Securities, by their
acceptance thereof, consent to the jurisdiction of such courts and waive any
objections to venue or claim of forum non-conveniens with respect to all such
suits and actions brought in any such court.
(h) Severability. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve
the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to
be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
-14-
(i) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof. All references made in this
Agreement to “Section” and “paragraph” refer to such Section or paragraph of
this Agreement, unless expressly stated otherwise.
(j) Owner
of Transfer Restricted Securities. The
Company will maintain, or will cause its registrar and transfer agent to
maintain, a register with respect to the Transfer Restricted Securities in
which
all transfers of Transfer Restricted Securities of which the Company has
received notice will be recorded. The Company may deem and treat the Person
in
whose name Transfer Restricted Securities are registered in such register of
the
Company as the owner thereof for all purposes, including, without limitation,
the giving of notices under this Agreement.
(k) Further
Assurances. Each
of the parties hereto shall use all reasonable efforts to take, or cause to
be
taken, all appropriate action, do or cause to be done all things reasonably
necessary, proper or advisable under applicable law, and execute and deliver
such documents and other papers, as may be required to carry out the provisions
of this Agreement and the other documents contemplated hereby and consummate
and
make effective the transactions contemplated hereby.
(l) Survival. The
provisions of Sections 5, 6 and 8(a) shall survive the termination of this
Agreement.
-15-
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to
be duly executed as of the date first written above.
|
CNA
FINANCIAL CORPORATION
|
|
|
By:
|
/s/
D. Xxxxx Xxxxx
|
|
|
Name:
D. Xxxxx Xxxxx
|
||
|
Title:
Executive Vice President
|
||
|
and Chief Financial Officer
|
||
|
LOEWS
CORPORATION
|
|
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxx
|
||
|
Title:
Senior Vice President
|
||
|
and Chief Financial Officer
|
||
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