exv10w1



 








EXHIBIT 10.1




EMPLOYMENT AGREEMENT






THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made as of the 1st day of August, 2007 (the
“Effective Date”), by and between Continental Casualty Company, an Illinois insurance company
(the “Company”), and D. Craig Mense (“Executive”);



WITNESSETH:




          WHEREAS, the Company wishes to employ Executive as Executive Vice President and Chief
Financial Officer of the Company with senior management level responsibility in the capacity of
Chief Financial Officer for the principal business units and subsidiaries of the Company, being
hereinafter referred to as the “CNA insurance companies,” and Executive wishes to accept and agree
to such employment under the terms and conditions set forth hereinbelow.




          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 an Executive Vice President and Chief Financial Officer of the CNA insurance
companies for the period commencing on August 1, 2007 (“Effective Date”) and ending on December
31, 2010, or such earlier date as of which Executive’s employment is terminated in accordance with
Section 6 hereof (said period the “Term”). 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 perform the duties and responsibilities of an Executive Vice President and
Chief Financial Officer (hereinafter “CFO”) of the CNA insurance companies as defined and directed
by the Company’s Chief Executive Officer (hereinafter “CEO”). Executive shall report to the CEO.
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. Executive further agrees to resign any such position(s)
on such Boards upon the termination of his employment with the Company for any reason; provided,
however, that nothing in this Agreement shall require that any CNA insurance companies elect
Executive to its board of directors. Executive has also been elected as an executive officer of CNA
Financial Corporation (“CNAF”), a publicly-traded company that is the



 









 






indirect parent of the Company, and Executive agrees to serve in such capacity for the term of
this Agreement without additional compensation.




     (b) Executive shall diligently and to the best of his abilities assume, perform, and discharge
the duties and responsibilities of Executive Vice President and CFO, as well as such other specific
duties and responsibilities as the CEO 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 CEO, 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 CEO, such activities do not materially interfere with the performance of his duties and
responsibilities hereunder.



     3. Compensation.



     (a) During the Term, the Company shall pay to Executive for the period he is employed by the
Company hereunder, an annual base salary of $800,000.00 (the “Base Compensation”). The Base
Compensation shall be payable not less frequently than in monthly increments. At the discretion of
the CEO and/or the Compensation Committee (the “Committee”) of CNAF’s Board of Directors, such
salary rate may be increased annually during the term of the Agreement, based on market
considerations, responsibilities and performance. In no event shall Executive’s Base Compensation
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 of Base Compensation that
he was previously receiving under this Agreement without Executive’s written consent.



     (b) The Executive shall be eligible for an annual incentive cash award (“Bonus”) pursuant to
the CNA Financial Corporation 2000 Incentive Compensation Plan (the “Plan”). Subject to the
approval of the Committee, the Executive’s maximum Bonus opportunity thereunder shall not exceed
the rate of two-hundred percent (200%) of his Base Compensation for each twelve month bonus period.
In no event shall the maximum Bonus opportunity be reduced without the Executive’s written
consent. The amount of the Bonus shall be based on the Committee’s assessment in its sole
discretion of Executive’s performance and the net operating income goals (or other applicable
measures ) set annually by the Committee, and shall be determined and payable in accordance with
the terms of the Plan, as set forth in the Plan documents. The Committee shall have unlimited
negative discretion under the Plan and this Agreement to decrease the amount of Executive’s Bonus
for any



 









 




year. Executive’s annual Bonus determination shall be subject to renegotiation between the
parties hereto in the event of a change in the identity of the Chief Executive Officer of the
Company during the term of this Agreement, but only with regard to any such Bonus amounts that are
unpaid at the time such change occurs.




     (c) Subject to the approval of the Committee, Executive shall be eligible to receive a
long-term Incentive cash award, in accordance with the terms of the Plan, as may be in effect
during the Term 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 twenty-five
percent (25%) of his Base Compensation during any applicable three year performance period as
determined by the Company and/or the Committee, beginning with the 2008 performance year; that is,
(a) effective for the 2008 performance year of the 2006-2008 cycle, (b) effective for the 2008 and
2009 performance years of the 2007-2009 cycle and (c) effective for all covered years in each
subsequent performance cycle. In no event shall the target award be reduced without the Executive’s
written consent. Actual payout of the long-term incentive cash award may range from 0% to 200% of
target, based on the Company’s overall business results and performance as determined by the
Committee in its sole discretion.



     (d) Subject to the approval of the Committee, Executive shall be awarded a minimum grant of
30,000 stock appreciation rights paid in stock (“SARs”) of CNA Financial Corporation (“CNAF”)
common stock or equivalent stock options annually, beginning with the 2008 performance year
(awarded in February of 2008), during the term of Executive’s employment under 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 Plan, share availability and approval by the
Committee.



     (e) For avoidance of doubt respecting awards to Executive under Section 3(b), 3(c), 3(d) and
3(e) hereof, the Committee shall retain such discretion as may be provided under the Plan to
satisfy Section 162(m) of the Internal Revenue Code of 1986 (“Code”) or any successor provision.
The Company will defer until the first tax year in which it reasonably anticipates, or should
reasonably anticipate, that deductibility is not limited by said Section 162(m) the payment of all
compensation to which Executive is entitled under this Agreement which the Company reasonably
anticipates would be non-deductible under said Section 162(m) or any successor provision with
respect to deductibility of executive compensation if paid in the tax year in which it would
otherwise be payable. Subject to Section 162(m) of the Code and any other applicable laws or
regulations as interpreted by the Company, deferred compensation may be credited to the Executive’s
SES-CAP account and, if so credited, shall be subject to the terms thereof and of the Company’s
SES-CAP Plan.



 









 





     (f) Executive’s pensionable earnings under the Savings & Capital Accumulation Plan (“S-CAP”)
and the CNA Supplemental Savings & Capital Accumulation Plan (“SES-CAP”) will be calculated and
payable as specified in the respective plan documents, as amended from time to time, and also
subject to the requirements of any other applicable laws or regulations as interpreted by the
Company. Any deferral elections available to Executive with respect to such pensionable earnings
shall be made prior to the beginning of the year in which any amounts subject to such elections are
earned.



     (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 relocation assistance, club membership, 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 of the Company’s policies with regard to such
plans, programs or arrangements, as adjusted by the Company from time to time in its sole
discretion. Executive shall not be eligible for paid time off (“PTO”) under the Company’s PTO
policy. In the event of termination of employment, Executive’s available severance benefits 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 travel and business
reimbursement policies adopted by the Company as adjusted 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 to be 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, incentive or other benefit plans of any nature shall be governed by the respective
terms of such plans.




     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 Compensation and current year’s Bonus
calculated as 150% of Base Compensation and target CNA long-term incentive cash awards prorated to
the date of termination; (ii) any previous year’s unpaid Bonus based upon actual or discretionary
payouts, if any; and (iii) unpaid cash entitlements, if any, earned by Executive or payable to his
beneficiaries as of the date of termination which, pursuant to the terms of any applicable Company
plan or program (which unpaid cash entitlements shall not include any unpaid Bonus or any unpaid
long-term incentive cash awards or other awards 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 based on and consistent with 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 reasonable
accommodation compatible with the fulfillment of his duties as described in Section 2 hereinabove.



     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,” as defined herein, 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) a
substantial breach of any provision of this Agreement; (iii) willful or reckless material
misconduct in the performance of the Executive’s duties; or (iv) the habitual neglect of duties;
provided however, that, for purposes of clauses (iii) and (iv), 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.



 









 





     Upon terminating the Executive for Cause, other than paying the Executive within 30 days of
such termination his: (i) unpaid Base Compensation prorated to the date of termination and (ii)
unpaid cash entitlements, if any, earned and accrued pursuant to the terms of any applicable
Company plan or program (which unpaid cash entitlements shall not include any unpaid Bonus or any
unpaid long-term incentive cash awards or other awards under the Incentive Compensation Plan) prior
to the date of the date of termination, the Company shall have no further obligations whatsoever to
Executive under this Agreement. In the event of termination for Cause, Executive agrees to continue
to be bound by the covenants set forth herein at Sections 7 through 14 subsequent to the date of
such termination, for such periods of time as provided for in said Sections respectively. The CEO
shall, in his discretion but in consultation with the Board of Directors of CNAF, determine
whether, in light of all surrounding circumstances, (i) any additional compensation should be paid
to the Executive as a result of Executive being bound by the provisions of Section 9 hereinbelow in
the event of his termination for Cause and (ii) any modification to the requirements of said
Section 9 in relation to the Executive should be made.



     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 that term is
defined hereinbelow), or in the event Executive terminates his employment for “Good Reason” (as
that term is defined hereinbelow):



     (a) The Company shall pay to Executive severance consisting of an amount equal to the 12
months of the Executive’s Base Compensation and Bonus calculated at 150% of Base Compensation, or
the aggregate amount of unpaid base compensation due to Executive under this Agreement, whichever
is greater, in effect at the time of termination. The severance shall be paid not less frequently
than in equal monthly installments following such termination. The Company shall also pay the
Executive (i) aggregate unpaid Base Compensation and current year’s Bonus calculated as 150% of
Base Compensation and target CNA long-term incentive cash awards prorated to the date of
termination; (ii) any previous year’s unpaid Bonus based upon actual or discretionary payouts, if
any; and (iii) within 30 days of his termination, unpaid cash entitlements, if any, earned and
accrued pursuant to the terms of any applicable Company plan or program prior to the date of the
date of termination (which unpaid cash entitlements under this Section 6.3(a)(ii) shall not include
any unpaid Bonus or any unpaid long-term incentive cash awards or other awards under the Plan).
Executive agrees to be bound by the covenants set forth herein prior to, as of and subsequent to
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. To the
extent such health benefit coverage extends beyond the aforesaid period of COBRA coverage, the
difference between the premium paid by Executive for participation in such health benefit plans and
the



 









 




premium that would be payable by an employee receiving COBRA coverage shall constitute taxable
income to Executive, and deferred compensation, subject to Section 409A of the Code, and Executive
shall not receive any payment or other benefit in lieu of such coverage. Other than as set forth in
this Section 6.3 (a), the Company shall have no further obligations to Executive under this
Agreement in the event of a termination of Executive’s employment by the Company Without Cause or
any termination of Executive’s employment by Executive.




     (b) “Good Reason” as set forth herein is defined as a reduction in the rate of Executive’s
Base Compensation, annual incentive opportunity or long-term incentive cash target compensation, a
required relocation of his personal residence to another geographical area outside of the
geographical area where the Company’s home office is located without Executive’s consent, a change
in Executive’s direct reporting relationship to the CEO or other involuntary loss of position as
described herein (other than as a result of a termination by the Company for Cause) or a
substantial 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’s
employment by the
Company for any reason not described in subsections 6.1 and 6.2.


Any term or provision in this Agreement to the contrary notwithstanding, any failure of the parties
to reach agreement as to Executive’s annual Bonus pursuant to the renegotiation referenced in the
final sentence of Section 3(b) of this Agreement shall not constitute either termination of
Executive’s employment Without Cause or a basis for Executive’s termination of his employment for
Good Reason as provided for in this Section 6.3. In the event of any termination of employment as
described in this Section 6.3, Executive agrees to continue to be bound by the covenants set forth
herein at Sections 7 through 14 subsequent to the date of such termination for such periods of time
as provided for in said Sections respectively. Any term or provision herein to the contrary
notwithstanding, the timing and other conditions of any severance or other payments to be made
under this Agreement shall be subject to the requirements of all applicable laws and regulations,
whether or not they are in existence or in effect when this Agreement is executed by the parties
hereto.




     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 to Executive under this Agreement other than paying the Executive within 30
days of such termination his: (i) unpaid Base Compensation prorated to the date of termination and
(ii) unpaid cash entitlements, if any, earned and accrued pursuant to the terms of any applicable
Company plan or program (which unpaid cash entitlements shall not



 









 




include any unpaid Bonus or any unpaid long-term incentive cash awards or other awards under
the Plan) prior to the date of termination. In the event of termination of employment as described
in this Section 6.4, Executive agrees to continue to be bound by the covenants set forth herein at
Sections 7 through 14 subsequent to the date of such termination for such periods of time as
provided for in said Sections respectively.




     6.5 Expiration of Agreement.



     (a) If the Company has not made an offer to Executive by September 30, 2010 to extend his
employment with the Company under a compensation structure substantially similar to the one
provided for in this Agreement, Executive’s employment shall terminate on January 1, 2011 and his
employment shall be treated as having been terminated in accordance with Section 6.3 of this
Agreement (relating to Termination by Company Without Cause/ Termination by Executive for Good
Reason), and the sole payments and benefits to which he may be entitled shall be governed by said
Paragraph, except in the event that Executive’s employment continues through December 31, 2010,
Executive will also be eligible to receive the Bonus and long-term incentive cash award that would
otherwise be earned as provided for in Section 3 for the year 2010, payable as provided for
therein. Other than as set forth in this Section 6.5 (a), the Company shall have no further
obligations to Executive under this Agreement in the event of a termination of Executive’s
employment by the Company due to its expiration under the terms of this Agreement, except as
otherwise set forth in subset (b) of this Section 6.5.



     (b) Notwithstanding the foregoing, if Executive’s employment with the Company terminates
following Executive’s rejection of an offer by the Company to extend the term of the Agreement or
to enter into a new Agreement prior to termination, with Base Compensation, Bonus and long-term
incentive cash award target that are not less than Executive’s Base Compensation, Bonus and
long-term incentive cash award target as of the date of the termination or if Executive voluntarily
resigns, then his employment shall be treated as having been terminated in accordance with Section
6.4 of this Agreement (relating to Voluntary Resignation), and the sole payments to which he may be
entitled shall be governed by said Paragraph. The Company will take into account market
considerations with regard to Base Compensation as provided for in any offer by the Company to
extend the term of the Agreement or enter into a new Agreement as provided for in this subset (b).
In the event of termination of employment as described in any portion of this Section 6.5,
Executive agrees to continue to be bound by the covenants set forth herein at Sections 7 through 14
subsequent to the date of such termination for such periods of time as provided for in said
Sections respectively.



     (c) During such period as the Executive shall continue to be employed by the Company between
September 30, 2010 and December 31, 2010, he shall be paid under the same terms and at the same
rate as was in effect on September 29, 2010.



 









 





     6.6 Other Benefits. In the event that Executive’s employment is terminated pursuant to
Sections 6.1, 6.2 or 6.4: (a) Executive’s coverage under the Company’s short-term disability plan
shall end on the date of termination of employment; (b) 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 (c) 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
Section 6.3, the foregoing provisions of this Section 6.6 shall also apply, except that in such
event Executive’s coverage under the Company’s contributory life, dependent life and contributory
accidental death and dismemberment plans shall continue through the end of any applicable severance
period upon payment of the applicable premium.



     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 payments or other benefits pursuant to
Section 6 of this Agreement, 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
of employment with the Company. In the absence of Executive’s executing such a release in a form
satisfactory to the Company, the Company shall have no obligation to Executive to make any payments
or provide any other benefits as provided in said Section 6 or otherwise upon termination of
Executive’s employment by the Company.



     6.8 Involuntary Termination Rule. Any term or provision of this Section 6 or elsewhere in the
Agreement to the contrary, the following provisions shall apply to any payments to be made to
Executive pursuant to Section 6.1 on termination by reason of Permanent Disability, Section 6.3 or
Section 6.5(a) (collectively the “Payments”):




(a) Each Payment to be made on a separate date shall be treated as a separate
Payment for purposes of §409A of the Code.




(b) The aggregate amount of all Payments, if any, payable after March 15 of the
year following the year that includes the date of such involuntary termination (the
“Termination Date”) but before the date that is six months after the Termination
Date (increased by any other amounts of taxable compensation paid to the Executive
during such period that would not have been paid but for such termination) shall
not exceed two times the lesser of (i)



 









 






Executive’s Base Compensation on the last day of the year immediately prior to the
year that includes the Termination Date or (ii) the limit in effect under
§401(a)(17) of the Code during the year that includes the Termination Date, as
determined by the Company.




(c) To the extent the Payments payable during the period described in subparagraph
(b) above would otherwise exceed the limit of subparagraph (b), such Payments shall
be reduced to the extent necessary to satisfy the requirement of subparagraph (b)
as determined by the Company, and the amount by which the Payments are reduced will
be paid to Executive in a lump sum, without interest, on the first business day
that is six months after the Termination Date as determined by the Company.
However, if Executive dies during such period, the limits of subparagraph (b) shall
not apply to Payments to the Executive’s beneficiaries or estate.



     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 information” (as that term is defined hereinbelow) 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 operations, performance and other information of the Company or other affiliated 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.



     9. Competition. Executive hereby agrees that, while he is employed by the Company, and for a
period of 6 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, 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 in direct or indirect competition with the Company or any of its
affiliates (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 an 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.



     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. The Company agrees to provide reasonable
compensation, including reasonable attorney’s fees, to Executive for such assistance provided
during such period. Nothing in



 









 




this Section 12 is intended or shall be construed to prevent Executive from cooperating fully
with any governmental investigation or review as required by applicable law or regulation.




     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 any reason, immediately
return and surrender to the Company all originals and all copies, regardless of medium, of any
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 materials
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 has and will
have access to confidential information concerning not only the business segments for which he may
have been responsible (a non-exhaustive summary of which appears in the Company’s reports on Forms
10-K and 10-Q 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 and
its affiliates are engaged.



     (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 national and international; (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, near permanent and therefore are of critical value to the Company.
The Executive agrees that neither any of the provisions in this Agreement nor any enforcement of it
by the Company alters or will alter his ability to earn a livelihood for himself and his family,
and further that both said provisions and said enforcement 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 would be 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, such bond
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 any of the state or federal courts located in Illinois or any state in
which Executive 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, irrespective of rules regarding choice of law or
conflicts of laws.




     (d) If he has not already done so, Executive agrees 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.



     (e) For purposes of Sections 7 through 14 hereof, the “Company” shall include all subsidiaries
and affiliates of the Company and CNAF, as well as the Company.



     15. Effect of Covenants. Nothing in Sections 7 through 14 shall be construed to limit or
otherwise adversely affect any rights, remedies or options 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).



     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 hereto.



     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
intent and purposes of this Agreement.



     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 either party with
respect to any breach of any provision hereunder by the 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 expressly provided herein, the obligations set forth 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;




        (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:




CONTINENTAL CASUALTY COMPANY

333 S. Wabash

Chicago, IL 60604

Attn: Corporate Secretary




If to Executive:




D. Craig Mense

333 S. Wabash Avenue, 40th Floor

Chicago, Illinois 60604





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. Except as otherwise provided hereinbelow, 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 subject matter or controversy or relating to the provisions of Sections 7 through 14
of this Agreement.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.



	 	 	 	 	 
	CONTINENTAL CASUALTY COMPANY
	 
	 	 	 	 
	By:
	 	/s/ Stephen W. Lilienthal	 	 
	 	 	 	 	 
	 
	 	 	 	 
	Title:
	 	President & Chairman of the Board	 	 
	 	 	 	 	 
	 
	 	 	 	 
	/s/ D.
Craig Mense
	 	 	 	 
	 	 	 
	D. Craig Mense