Loews Corporation 15,000,000 Shares Carolina Group Stock ($0.01 par value) Underwriting Agreement
Exhibit
10.1
EXECUTION
VERSION
Loews
Corporation
15,000,000
Shares
Carolina
Group Stock
($0.01
par value)
Underwriting
Agreement
May
10,
2006
UBS
Securities LLC
As
Representatives of the several Underwriters,
c/o
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Loews
Corporation, a corporation organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the “Representatives”) are acting as
representatives, 15,000,000 shares of Carolina Group Stock, $0.01 par value
(“Carolina Group Stock”) of the Company (said shares to be issued and sold by
the Company being hereinafter called the “Securities”). To the extent there are
no additional Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as
the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on
or
before the Effective Date of the Registration Statement or the issue date of
the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as
the case may be; and any reference herein to the terms “amend”, “amendment” or
“supplement” with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after
the
Effective Date of the Registration Statement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms
used
herein are defined in Section 20 hereof.
2
1.
Representations
and Warranties.
The
Company represents and warrants to, and agrees with, each Underwriter as set
forth below in this Section 1.
(a)
The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related basic prospectus, for
registration under the Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. The Company may have filed with
the Commission, as part of an amendment to the Registration Statement or
pursuant to Rule 424(b), one or more Preliminary Final Prospectuses, each of
which has previously been furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus supplement shall
contain all information required by the Act and the rules thereunder, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time, will
be
included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b)
On
the
Effective Date, the Registration Statement did or will, and when the Final
Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined herein), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the Registration
Statement did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to
make the statements therein not misleading; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit 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; provided,
however,
that
the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement
or
the Final Prospectus (or any supplement thereto), it being understood and agreed
that the only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 8 hereof.
3
(c)
The
Disclosure Package, when taken together as a whole, does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply
to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8
hereof.
(d)
(i)
At
the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3)
of
the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Securities in reliance on the exemption in Rule 163, the Company
was a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to
pay the fees required by the Commission relating to the Securities within the
time required by Rule 456(b)(1) without regard to the proviso therein relating
to the four-business day extension to the payment deadline and otherwise in
accordance with Rules 456(b) and 457(r).
(e)
(i)
At
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona
fide
offer
(within the meaning of Rule 164(h)(2)) relating to the Securities, the Company
was not and is not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405 that it
is
not necessary that the Company be considered an Ineligible Issuer.
(f)
Each
Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed to be a
part
thereof that has not been superseded or modified. The foregoing sentence does
not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section
8
hereof.
(g)
Each
of
the Company and its Material Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate power
and
authority to own or lease, as the case may be, and to operate its properties
and
conduct its business as described in the Disclosure Package and the Final
Prospectus, and other than as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, is duly qualified
to
do
4
business
as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification;
(h)
All
the
outstanding shares of capital stock of each Material Subsidiary have been duly
and validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Disclosure Package and the Final
Prospectus, all outstanding shares of capital stock of the Material Subsidiaries
are owned by the Company either directly or through wholly owned subsidiaries
free and clear of any security interests, claims, liens or encumbrances, except
where the existence of any such security interest, claim, lien or encumbrance,
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect;
(i)
The
Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Final Prospectus; the capital stock of the Company conforms
in
all material respects to the description thereof contained in the Disclosure
Package and the Final Prospectus; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the Securities
are duly listed, and admitted and authorized for trading and subject to official
notice of issuance on the New York Stock Exchange; the certificates for the
Securities are in valid and sufficient form; the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or other rights
to subscribe for the Securities; and, except as set forth in the Disclosure
Package and the Final Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of
or
ownership interests in the Company are outstanding;
(j)
There
is
no franchise, contract or other document of a character required to be described
in the Registration Statement, the Disclosure Package or the Final Prospectus,
or to be filed as an exhibit thereto, which is not described or filed as
required; and the statements in:
(1)
the
Company’s Annual Report on Form 10-K for the year ended December 31, 2005 (the
“Annual Report”) under the headings “Business -- Lorillard, Inc. -- Legislation
and Regulation,” “Business -- Lorillard, Inc. -- Federal Regulation,” “Business
-- Lorillard, Inc. -- State and Local Regulation,” together with “Business -
Lorillard, Inc. -- Advertising and Marketing;”
(2)
the
Annual Report under the headings “Legal Proceedings -- Tobacco Related,” “Notes
to Consolidated Financial Statements -- Note 20. Legal Proceedings -- Tobacco
Related” and in Exhibit 99.01 to the Annual Report, together with the statements
in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2006 (the “Quarterly Report”) under the headings “Notes to Consolidated
Condensed Financial
5
Statements
-- Note 12. Legal Proceedings -- Tobacco Related” and “Part II. Other
Information. Item 1. Legal Proceedings. 2. Tobacco Related”;
(3)
the
Basic
Prospectus under the headings “Description of Loews Capital Stock” and
“Relationship between the Loews Group and the Carolina Group;” and
(4)
the
Final
Prospectus under the heading “Certain U.S. Federal Tax
Consequences”
insofar
as such statements summarize legal matters, agreements, documents or proceedings
discussed therein, are, in all material respects, accurate summaries of such
legal matters, agreements, documents or proceedings, taken as a whole, in the
context provided.
(k)
This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms (except as rights to indemnification and contribution
hereunder may be limited by applicable law and subject, as to the enforcement
of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or
other laws affecting creditors’ rights generally from time to time in effect and
to general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(l)
The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be an “investment company” as defined in the Investment
Company Act of 1940, as amended.
(m)
No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required to be obtained by the Company in
connection with the transactions contemplated herein, except such as have been
or will be obtained under the Act and the Exchange Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Disclosure Package and the Final
Prospectus.
(n)
Neither
the issue and sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its Material
Subsidiaries pursuant to, (i) the charter or by-laws of the Company or any
of
its Material Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of
its
6
Material
Subsidiaries is a party or bound or to which its or their property is subject,
or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its Material Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its Material
Subsidiaries or any of its or their properties, except, with respect to clauses
(ii) and (iii) above, for such conflicts, breaches, violations or impositions
that could not, individually or in the aggregate, reasonably be expected to
have
a Material Adverse Effect.
(o)
No
holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(p)
The
consolidated historical financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Final Prospectus,
the
Disclosure Package and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and the Exchange Act and
have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the
caption “Selected Financial Data” in the Annual Report fairly present in all
material respects, on the basis stated in the Annual Report, the information
included therein.
(q)
No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge
of
the Company, threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation of
any
of the transactions contemplated hereby or (ii) could reasonably be expected
to
have a Material Adverse Effect except, in the case of (i) and (ii), as set
forth
in or contemplated in the Disclosure Package and the Final Prospectus (exclusive
of any supplement thereto).
(r)
Except
as
could not reasonably be expected to have a Material Adverse Effect, each of
the
Company and each of its Material Subsidiaries owns or leases all such properties
as are necessary to the conduct of its operations as presently
conducted.
(s)
Neither
the Company nor any subsidiary is in violation or default of (i) any provision
of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound
or
to which its property is subject (except in any case in which such violation
or
default could not reasonably be expected to have a Material Adverse Effect,
and
except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto)), or (iii) any statute,
7
law,
rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties,
as
applicable (except in any case in which such violation or default could not
reasonably be expected to have a Material Adverse Effect, and except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto)).
(t)
Deloitte
& Touche LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries and delivered their reports with respect
to
the audited consolidated financial statements and schedules included or
incorporated by reference in the Disclosure Package and the Final Prospectus,
are independent registered public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and regulations
thereunder.
(u)
There
are
no transfer taxes or other similar fees or charges under Federal law or the
laws
of any state, or any political subdivision thereof, required to be paid by
the
Company in connection with the execution and delivery of this Agreement or
the
issuance by the Company or sale by the Company of the Securities.
(v)
Except
as
could not reasonably be expected to have a Material Adverse Effect, and except
as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto), no labor problem or dispute
with the employees of the Company or any of its Material Subsidiaries exists
or,
to the Company’s knowledge, is threatened or imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any
of
its or its Material Subsidiaries’ principal suppliers, contractors or
customers.
(w)
No
subsidiary of the Company is currently prohibited, directly or indirectly,
from
paying any dividends to the Company, from making any other distribution on
such
subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in or contemplated by the Disclosure Package and
the Final Prospectus.
(x)
The
Company and its Material Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective businesses,
except where the failure to possess such a license, certificate, permit and
other authorization could not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect, and neither the Company nor any
such
subsidiary has received any notice of proceedings relating to the revocation
or
modification of any such certificate, authorization or permit which, singly
or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
could
8
reasonably
be expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive
of
any supplement thereto).
(y)
Except
as
disclosed in the Disclosure Package and the Final Prospectus, the Company has
not taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under
the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
(z)
The
Company, its Material Subsidiaries and Lorillard Tobacco Company are (i) in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability for the investigation
or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability could not, individually or in the aggregate, have a
Material Adverse Effect, and except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(aa)
The
Company and its Material Subsidiaries own, possess, license or have other rights
to use, on reasonable terms, all patents, patent applications, trade and service
marks, trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the “Intellectual Property”) necessary for the conduct of the
businesses of the Company and its Material Subsidiaries as now conducted or
as
proposed in the Disclosure Package and the Final Prospectus to be conducted.
Except as could not reasonably be expected to have a Material Adverse Effect,
to
the Company’s knowledge: (a) there are no rights of third parties to any such
Intellectual Property; (b) there is no material infringement by third parties
of
any such Intellectual Property; (c) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging
the rights of the Company or any of its Material Subsidiaries in or to any
such
Intellectual Property, and the Company and each of its Material Subsidiaries
is
unaware of any facts which would form a reasonable basis for any such claim;
(d)
there is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and the
Company and each of its Material Subsidiaries is unaware of any facts which
would form a reasonable basis for any such claim; and (e) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company or any of its Material Subsidiaries infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights
9
of
others, and the Company and each of its Material Subsidiaries is unaware of
any
other fact which would form a reasonable basis for any such claim.
(bb)
Except
as
disclosed in the Registration Statement, the Disclosure Package and the Final
Prospectus, the Company does not intend to use any of the proceeds from the
sale
of the Securities hereunder to repay any outstanding debt owed to any affiliate
of any of the Underwriters.
(cc)
There
has
been no failure in any material respect on the part of the Company and, to
the
Company’s knowledge, any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the Sarbanes Oxley Act
of
2002 and the rules and regulations promulgated in connection therewith (the
“Sarbanes Oxley Act”), including Section 402 related to loans and Sections 302
and 906 related to certifications.
(dd)
Except
as
disclosed in the Registration Statement, the Disclosure Package and the Final
Prospectus, the Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15 under the Exchange Act) that are effective in
all
material respects in providing reasonable assurance that information required
to
be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the Commission, including, without
limitation, controls and procedures designed to ensure that information required
to be disclosed by the Company in the reports that it files or submits under
the
Exchange Act is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and its principal
financial officer or officers, as appropriate to allow timely decisions
regarding required disclosure. Except as disclosed in the Registration
Statement, the Disclosure Package and the Final Prospectus, the Company
maintains a system of internal control over financial reporting sufficient
to
provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability
for
assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2.
Purchase
and Sale.
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter,
and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I
10
hereto,
the number of Securities set forth opposite such Underwriter’s name in Schedule
II hereto.
3.
Delivery
and Payment.
Delivery
of and payment for the Securities shall be made on the date and at the time
specified in Schedule I hereto, or at such time on such later date not more
than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by
the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to an account specified by the Company. Delivery of the Securities shall be
made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4.
Offering
by Underwriters.
It is
understood that the several Underwriters propose to offer the Securities for
sale to the public as set forth in the Final Prospectus.
5.
Agreements.
The
Company agrees with the several Underwriters that:
(a)
Prior
to
the termination of the offering of the Securities, the Company will not file
any
amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. The Company will cause the Final Prospectus, properly completed, and
any
supplement thereto to be filed in a form approved by the Representatives (which
approval shall not be unreasonably withheld) with the Commission pursuant to
the
applicable paragraph of Rule 424(b) (without reliance on Rule 424(b)(8)) within
the time period therein prescribed and will provide evidence satisfactory to
the
Representatives of such timely filing. The Company will promptly advise the
Representatives (1) when the Final Prospectus, and any supplement thereto,
shall
have been filed (if required) with the Commission pursuant to Rule 424(b),
(2)
when, prior to termination of the offering of the Securities, any amendment
to
the Registration Statement shall have been filed or become effective, (3) of
any
request by the Commission or its staff for any amendment of the Registration
Statement, or for any supplement to the Final Prospectus or for any additional
information, (4) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any notice pursuant to
Rule 401(g)(2) of the Act that would prevent its use or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will
11
use
its
reasonable best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or prevention and, upon such issuance,
occurrence or prevention, to obtain as soon as possible the withdrawal of such
stop order or relief from such occurrence or prevention, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its reasonable best efforts to have such
amendment or new registration statement declared effective as soon as
practicable.
(b)
If
there
occurs an event or development as a result of which the Disclosure Package
would
include an untrue statement of a material fact or would omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will notify promptly
the Representatives so that any use of the Disclosure Package may cease until
it
is amended or supplemented.
(c)
If,
at
any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement
may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented would include any 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, or if it shall be necessary to amend the Registration Statement,
file a new registration statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, including
in connection with use or delivery of the Final Prospectus, the Company promptly
will (1) notify the Representatives of such event, (2) prepare and file with
the
Commission, subject to the second sentence of paragraph (a) of this Section
5,
an amendment or supplement or new registration statement which will correct
such
statement or omission or effect such compliance, (3) use its reasonable best
efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any
disruption in use of the Final Prospectus and (4) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
(d)
As
soon
as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(e)
The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies
of
each Preliminary Final Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may
reasonably request.
12
(f)
The
Company will use its reasonable best efforts to arrange, if necessary, for
the
qualification of the Securities for sale under the laws of such jurisdictions
as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided
that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of
the
offering or sale of the Securities, in any jurisdiction where it is not now
so
subject or take any action which would subject the Company to taxation in any
jurisdiction where it is not already subject to taxation.
(g)
The
Company agrees that, unless it obtains the prior written consent of the
Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it obtains the prior written consent of the Company,
it
has not made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433; provided
that the prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in Schedule
III
hereto. Any such free writing prospectus consented to by the Representatives
or
the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (x) it has treated and will treat, as the case may
be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus
and
(y) it has complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record
keeping.
(h)
The
Company will not, without the prior written consent of UBS Securities LLC,
offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate
of the Company or any person in privity with the Company or any affiliate of
the
Company) directly or indirectly, including the filing (or participation in
the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call
equivalent position within the meaning of Section 16 of the Exchange Act, any
other shares of Carolina Group Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of Carolina Group Stock; or publicly
announce an intention to effect any such transaction, for a period of 90 days
after the date of the Underwriting Agreement, provided,
however,
that
the Company may issue options, grant stock appreciation rights and sell Carolina
Group Stock pursuant to any employee stock option plan, stock ownership plan
or
dividend reinvestment plan of the Company in effect at the Execution Time or
as
described in the Disclosure Package and the Final Prospectus.
13
(i)
Except
as
disclosed in the Disclosure Package and the Final Prospectus, the Company will
not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under
the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(j)
The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission
of
the Registration Statement (including financial statements and exhibits
thereto), the Basic Prospectus, each Preliminary Final Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Basic Prospectus, each
Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus, and all amendments or supplements to any of them, as may, in each
case, be reasonably requested for use in connection with the offering and sale
of the Securities; (iii) the preparation, printing, authentication, issuance
and
delivery of certificates for the Securities, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities;
(iv)
the printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the listing
of
the Securities on the New York Stock Exchange; (vi) any registration or
qualification of the Securities for offer and sale under the securities or
blue
sky laws of the several states (including filing fees and the reasonable fees
and expenses of counsel, up to $5,000, for the Underwriters relating to such
registration and qualification); (vii) any filings required to be made with
the
National Association of Securities Dealers, Inc. (including filing fees and
the
reasonable fees and expenses of counsel to the Underwriters related to such
filings; (viii) the fees and expenses of the Company’s accountants and the fees
and expenses of counsel (including local and special counsel) for the Company;
and (ix) all other costs and expenses incident to the performance by the Company
of its obligations hereunder.
6.
Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Securities shall be subject
to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a)
The
Final
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b) (without reliance on Rule 424(b)(8));
any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no
14
stop
order suspending the effectiveness of the Registration Statement or any notice
pursuant to Rule 401(g)(2) of the Act that would prevent its use shall have
been
issued and no proceedings for that purpose shall have been instituted or, to
the
Company’s knowledge, threatened.
(b)
The
Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx &
Xxxx, LLP, counsel for the Company, to have furnished to the Representatives
their opinion and letter, in each case dated the Closing Date and addressed
to
the Representatives, in the forms of Exhibit B and Exhibit C,
respectively.
In
rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the state of New York,
the General Corporation Law of Delaware or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon
the
opinion of other counsel of good standing whom they believe to be reliable
and
who are satisfactory to counsel for the Underwriters; and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible officers
of the Company and public officials. Such opinion may contain customary
assumptions, exceptions, limitations, qualifications and comments. In addition,
such opinion may contain statements to the effect that: (A) such counsel is
expressing no opinion regarding, nor is such counsel predicting or guaranteeing,
the outcome of any tobacco-related product liability case, and (B) such counsel
is expressing no opinion regarding the effect of the outcome, whether financial
or otherwise, of any tobacco-related product liability case on the Company
or
the Carolina Group Stock.
(c)
The
Company shall have requested and caused Xxxx X. Xxxxxx, general counsel for
Loews Corporation, to have furnished his opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i)
the
Company is duly qualified to do business as a foreign corporation and is in
good
standing under the laws of each jurisdiction which requires such qualification,
except where the failure to be so qualified could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect;
(ii)
each
of
the Material Subsidiaries is validly existing as a corporation or a limited
liability company, as the case may be, in good standing under the laws of the
jurisdiction in which it is chartered or organized, with the requisite power
and
authority to own or lease, as the case may be, and to operate its properties
and
conduct its business as described in the Disclosure Package and the Final
Prospectus, and is duly qualified to do business as a foreign corporation or
limited liability company and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure to
be
so qualified
15
could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(iii)
all
the
outstanding shares of capital stock of, or other ownership interests in, each
Material Subsidiary and each Carolina Group Company have been duly and validly
authorized and issued and, with respect to the shares of capital stock of such
Material Subsidiaries that are corporations, are fully paid and nonassessable,
and, except as otherwise set forth in the Disclosure Package and the Final
Prospectus, all outstanding shares of capital stock of or other ownership
interests in, the Material Subsidiaries are owned by the Company either directly
or through wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any other
security interest, claim, lien or encumbrance;
(iv)
except
as
set forth in the Disclosure Package and the Final Prospectus and to the
knowledge of such counsel, no options, warrants, preemptive rights or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of Carolina
Group Stock are outstanding;
(v)
to
the
knowledge of such counsel, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or body
or
any arbitrator involving the Company or any of its subsidiaries or its or their
property of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Disclosure Package and the Final
Prospectus, and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final Prospectus,
or
to be filed as an exhibit thereto, which is not described or filed as
required;
(vi)
neither
the issue and sale of the Securities, nor the consummation of any other of
the
transactions herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or its Material
Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its
Material Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of
its
Material Subsidiaries is a party or bound or to which its or their property
is
subject, or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or its Material Subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or its Material Subsidiaries or any of
its
or their properties, except, with respect to clauses (ii) and (iii) above,
for
such conflicts, breaches, violations or impositions
16
that
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect;
(vii)
to
the
knowledge of such counsel, no holders of securities of the Company have rights
to the registration of such securities under the Registration Statement;
(viii)
although
he has not independently verified the accuracy, completeness or fairness of
the
statements made or included in the Registration Statement or the Final
Prospectus and takes no responsibility therefor, such counsel has no reason
to
believe that on the Effective Date the Registration Statement contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Final Prospectus as of its date or on the Closing Date
included or includes any untrue statement of a material fact or omitted or
omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (in each case,
other than the financial statements and other financial information contained
therein, as to which such counsel need express no opinion);
(ix)
although
he has not independently verified the accuracy, completeness or fairness of
the
statements made or included in the Disclosure Package and takes no
responsibility therefor, such counsel has no reason to believe that the
documents specified in a schedule to such counsel’s letter, consisting of those
included in the Disclosure Package, when taken together as a whole, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of circumstances
under which they were made, not misleading; and
(x)
no
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the performance
by
the Company of its obligations under this Agreement, except such as have been
obtained under the Act and such as may be required to be obtained by the Company
under the blue sky laws of any jurisdiction in connection with the purchase
and
distribution of the Securities by the Underwriters in the manner contemplated
in
this Agreement and in the Preliminary Prospectus and the Final Prospectus and
such other approvals (specified in such opinion) as have been
obtained.
In
rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of New York, the
General Corporate Law of Delaware or the Federal laws of the United States,
to
the extent he deems proper and specified in such opinion, upon the opinion
of
other counsel of good standing whom he believes to be reliable and who are
satisfactory to counsel for the
17
Underwriters,
(B) as to matters of fact, to the extent he deems proper, on certificates of
responsible officers of the Company and public officials and (C) as to opinions
involving the Material Subsidiaries, on opinions of the counsels of those
Material Subsidiaries. Such opinion may contain customary assumptions,
exceptions, limitations, qualifications and comments. In addition, such opinion
may contain statements to the effect that: (A) such counsel is expressing no
opinion regarding, nor is such counsel predicting or guaranteeing, the outcome
of any tobacco-related product liability case or insurance-related case, and
(B)
such counsel is expressing no opinion regarding the effect of the outcome,
whether financial or otherwise, of any tobacco-related product liability case
or
insurance-related case on the Company or the Carolina Group Stock. References
to
the Final Prospectus in this paragraph (c) include any supplements thereto
at
the Closing Date.
(d)
The
Company shall have requested and caused Xxxxxx X. Xxxxxxxx, general counsel
for
Lorillard Tobacco Company, to have furnished his opinion, dated the Closing
Date
and addressed to the Representatives in the form of Exhibit D.
(e)
The
Company shall have requested and caused Shook, Hardy & Bacon LLP, litigation
counsel for Lorillard Tobacco Company, to have furnished their opinion, dated
the Closing Date and addressed to the Representatives in the form of Exhibit
E
hereto.
(f)
The
Company shall have requested and caused Xxxxxxxx Xxxxxx LLP, litigation counsel
for Lorillard Tobacco Company, to have furnished their opinion, dated the
Closing Date and addressed to the Representatives in the form of Exhibit
F.
(g)
The
Company shall have requested and caused Xxxxxxxxx Traurig LLP, litigation
counsel for Lorillard Tobacco Company, to have furnished their opinion, dated
the Closing Date and addressed to the Representatives in the form of Exhibit
G.
(h)
The
Representatives shall have received from Cravath, Swaine & Xxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale
of
the Securities, the Registration Statement, the Disclosure Package, the Final
Prospectus (together with any supplement thereto) and other related matters
as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(i)
The
Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the Chief Executive Officer
and
the principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
18
examined
the Registration Statement, the Final Prospectus, the Disclosure Package and
any
supplements or amendments thereto and this Agreement and that:
(i)
the
representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, provided,
however,
that if
any such representation or warranty is already qualified by materiality, such
representation or warranty as so qualified is true and correct in all respects
on and as of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii)
no
stop
order suspending the effectiveness of the Registration Statement or any notice
pursuant to Rule 401(g)(2) of the Act that would prevent its use has been issued
and no proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened; and
(iii)
since
the
date of the most recent financial statements included or incorporated by
reference in the Final Prospectus (exclusive of any supplement thereto), there
has been no Material Adverse Effect, except as set forth in or contemplated
in
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(j)
Lorillard
Tobacco Company shall have furnished to the Representatives a certificate of
Lorillard Tobacco Company, signed by the Chairman of the Board or the Chief
Executive Officer and the principal financial or accounting officer of Lorillard
Tobacco Company, dated the Closing Date, to the effect that the signers of
such
certificate have carefully examined the Registration Statement, the Final
Prospectus, the Disclosure Package and any supplements or amendments thereto
and
this Agreement and that since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive of
any
supplement thereto), there has been no material adverse effect on the financial
condition, earnings, business or properties associated with the Carolina Group,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(k)
The
Company shall have requested and caused Deloitte & Touche LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date,
letters, dated respectively as of the Execution Time and as of the Closing
Date,
in form and substance satisfactory to the Representatives, confirming that
they
are independent registered public accountants with respect to the Company within
the meaning of the Act and the Exchange Act and the respective applicable rules
and regulations adopted by the Commission thereunder, and stating in effect
that:
19
(i)
in
their
opinion the audited financial statements and financial statement schedules
included or incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus and reported on by them comply
as to
form in all material respects with the applicable accounting requirements of
the
Act and the Exchange Act and the related rules and regulations adopted by the
Commission;
(ii)
on
the
basis of a reading of the latest unaudited financial statements made available
by the Company and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the three-month period ended March
31, 2006 and as at March 31, 2006 carrying out certain specified procedures
(but
not an examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect to
the
comments set forth in such letter; a reading of the minutes of the meetings
of
the shareholders, directors and executive and audit committees of the Company
and its significant subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent to
December 31, 2005, nothing came to their attention which caused them to believe
that:
(1)
any
unaudited financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus do not comply as to form in
all
material respects with applicable accounting requirements of the Act and with
the related rules and regulations adopted by the Commission with respect to
financial statements included or incorporated by reference in quarterly reports
on Form 10-Q under the Exchange Act; and said unaudited financial statements
are
not in conformity with generally accepted accounting principles applied on
a
basis substantially consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement and the
Final Prospectus;
(2)
with
respect to the period subsequent to March 31, 2006, there were any changes,
at a
specified date not more than five days prior to the date of the letter, in
the
long-term debt of the Company and its subsidiaries or of the Carolina Group
or
capital stock of the Company or decreases in the stockholders’ equity of the
Company or decreases in the combined attributed net assets of the Carolina
Group
as compared with the corresponding amounts shown on the March 31, 2006 balance
sheets included or incorporated by reference in the Registration Statement
and
the Final Prospectus, or for the period from April 1, 2006 to such
specified date there were any decreases, as compared with the
20
corresponding
period in the preceding year in net income of the Company and its subsidiaries
or of the Carolina Group or in operating income of the Company and its
subsidiaries or of the Carolina Group, in each case, on either a total or per
share basis, except in all instances for changes or decreases set forth in
such
letter, in which case the letter shall be accompanied by an explanation by
the
Company as to the significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3)
the
information included or incorporated by reference in the Registration Statement
and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive
Compensation) is not in conformity with the applicable disclosure requirements
of Regulation S-K;
(iii)
they
have
performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company and its subsidiaries)
set forth or incorporated by reference in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement agrees with
the
accounting records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
References
to the Final Prospectus in this paragraph (k) include any supplement thereto
at
the date of the letter.
(l)
Subsequent
to the Execution Time or, if earlier, the dates as of which information is
given
in the Registration Statement (exclusive of any amendment thereof) and the
Final
Prospectus (exclusive of any supplement thereto), there shall not have been
(i)
any change or decrease specified in the letter or letters referred to in
paragraph (k) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the financial condition, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
or
the Carolina Group, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in
the
sole judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Disclosure Package and the Final Prospectus (exclusive
of any supplement thereto).
21
(m)
Prior
to
the Closing Date, the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
(n)
Subsequent
to the Execution Time, there shall not have been any decrease in the rating
of
any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such rating or
of
a possible change in any such rating that does not indicate the direction of
the
possible change.
(o)
Subject
to official notice of issuance, the Securities shall have been listed and
admitted and authorized for trading on the New York Stock Exchange, and
satisfactory evidence of such actions shall have been provided to the
Representatives.
(p)
At
the
Execution Time, the Company shall have furnished to the Representatives a letter
substantially in the form of Exhibit A hereto from each executive officer and
director of the Company addressed to the Representatives.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to
the Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the
offices of Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing Date.
7.
Reimbursement
of Underwriters’ Expenses.
If the
sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied, because of any termination pursuant to Section 10 hereof
or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by
reason of a default by any of the Underwriters, the Company will reimburse
the
Underwriters severally through UBS Securities LLC on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them solely and directly in connection with
the
proposed purchase and sale of the Securities.
8.
Indemnification
and Contribution. a)The
Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter
22
within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, any Issuer
Free Writing Prospectus, or in any amendment thereof or supplement thereto,
or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity
from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of
the
cover page regarding delivery of the Securities and, under the heading
“Underwriting”, (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final Prospectus
and
the Final Prospectus constitute the only information furnished in writing by
or
on behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not
otherwise learn of such action and such
23
failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided,
however,
that
such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to
represent the indemnified party would present such counsel with a conflict
of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without
the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In
the event that the indemnity provided in paragraph (a) or (b) of this Section
8
is unavailable to or insufficient to hold harmless an indemnified party for
any
reason, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same)
(collectively “Losses”) to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters on
the
other from the offering of the Securities; provided,
however,
that in
no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the
24
statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be
equal to the total net proceeds from the offering (before deducting expenses,
but after deducting underwriting discounts and commissions) received by it,
and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement
of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the
equitable considerations referred to above. Notwithstanding the provisions
of
this paragraph (d), 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. For purposes
of
this Section 8, each person who controls an Underwriter within the meaning
of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9.
Default
by an Underwriter.
If any
one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance
of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided,
however,
that in
the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not
be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or
in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve
25
any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
10.
Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time after the execution of this Agreement and
prior to such time (i) trading in any securities of the Company shall have
been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on such Exchange or the Nasdaq National Market, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war,
or
other calamity or crisis the effect of which on financial markets is such as
to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated
by
the Final Prospectus (exclusive of any supplement thereto).
11.
Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12.
Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representatives, will be mailed, delivered or telefaxed to
the
UBS
Securities LLC at 000 Xxxx Xxx, Xxx Xxxx, XX 00000
General
Counsel (fax no.: (000-000-0000);
or, if
sent to the Company, will be mailed, delivered or telefaxed to the General
Counsel, Loews Corporation (fax no.: (000) 000-0000) and confirmed to it at
Loews Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel.
13.
Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14.
Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed within the
State of New York.
26
15.
Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
16.
Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
17.
Arms-length
Transaction.
The
Company and the Underwriters acknowledge and agree that (i) the purchase and
sale of the Securities pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the Underwriters, on
the
other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent
or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Company on other matters)
or any other obligation to the Company except the obligations expressly set
forth in this Agreement and (iv) each of the Company and the Underwriters has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the Underwriters,
or
any of them, has rendered advisory services of any nature or respect, or owes
a
fiduciary or similar duty to the Company, in connection with such transaction
or
the process leading thereto.
18.
Integration.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriters, or any of them, with respect
to
the subject matter hereof.
19.
Waiver
of Jury Trial.
The
Company and each of the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
20.
Definitions.
The
terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Basic
Prospectus” shall mean the prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Effective Date, including any
documents incorporated by reference therein.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Carolina
Group” shall have the meaning assigned thereto in the Registration
Statement.
27
“Carolina
Group Companies” shall mean, collectively, Lorillard, Inc., and each of its
direct and indirect subsidiaries.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Basic Prospectus, as amended and supplemented to the
Execution Time, (ii) the Preliminary Prospectus Supplement, dated May 9, 2006,
as amended and supplemented to the Execution Time, (iii) the other information,
if any, identified in Schedule IV hereto, (iv) Issuer Free Writing Prospectuses,
if any, identified in Schedule III hereto, and (iii) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing
to
treat as part of the Disclosure Package.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or become effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together
with
the Basic Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Material
Adverse Effect” shall mean a material adverse effect on the financial condition,
earnings, business or properties of the Company and its subsidiaries, taken
as a
whole, or the Carolina Group, whether or not arising from transactions in the
ordinary course of business.
“Material
Subsidiaries” shall mean CNA Financial Corporation, Lorillard, Inc., Lorillard
Tobacco Company, Loews Hotels Holding Corporation, Diamond Offshore Drilling,
Inc., and Boardwalk Pipelines Partners LP.
“Preliminary
Final Prospectus” shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus, including any documents incorporated
by
reference therein, together with the Basic Prospectus.
28
“Registration
Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits, financial statements and any documents incorporated
by reference therein and any prospectus supplement relating to the Securities
that is filed with the Commission pursuant to Rule 424(b) and deemed part of
such registration statement pursuant to Rule 430B, as amended at the Execution
Time and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date, shall also mean such registration statement as so
amended.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B”, and “Rule 433” refer to such rules under the
Act.
“Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule
405.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company and the several
Underwriters.
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
For
themselves and the other
several
Underwriters named in
Schedule
II to the foregoing
Agreement.
EXHIBIT
A
[Form
of Lock-up Agreement]
[Letterhead
of officer or director of Loews Corporation]
Loews
Corporation
Public
Offering of Carolina Group Stock
May
10,
2006
UBS
Securities LLC
As
Representatives of the several Underwriters,
c/o
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”), between Loews Corporation, a Delaware
corporation (the “Company”), and each of you as representatives of a group of
Underwriters named therein, relating to an underwritten public offering of
Carolina Group Stock, $0.01 par value (the “Carolina Group Stock”), of the
Company.
In
order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of UBS
Securities LLC, offer, sell, contract to sell, pledge or otherwise dispose
of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with
the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder with respect to, any shares of
Carolina Group Stock or any securities convertible into or exercisable or
exchangeable for Carolina Group Stock, or publicly announce an intention to
effect any such transaction, for a period of 90 days after the date of the
Underwriting Agreement, other than shares of Carolina Group Stock disposed
of as
bona fide gifts approved by UBS Securities LLC.
2
If
for
any reason the Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the Underwriting Agreement), the agreement set forth above
shall likewise be terminated.
|
Yours
very truly,
|
|
|
|
Opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
[Subject
to Opinion Committee Review]
May
15,
2006
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re:
Loews
Corporation - Public Offering of
Carolina
Group stock, par value $0.01 per share
Ladies
and Gentlemen:
We
have
acted as special counsel to Loews Corporation, a Delaware corporation (the
"Company"), in connection with the Underwriting Agreement, dated May 10, 2006
(the "Underwriting Agreement"), between you (the "Underwriter") and the Company,
relating to the sale by the Company to the Underwriter of 15,000,000 shares
(the
"Securities") of Carolina Group stock, par value $0.01 per share (the "Carolina
Group stock") of the Company.
This
opinion is being furnished to you pursuant to Section 6(b) of the Underwriting
Agreement.
In
rendering the opinions set forth herein, we have examined and relied on
originals or copies of the following:
(a) the
registration statement on Form S-3 (File No. 333-132334) of the Company relating
to the Securities and other securities of the Company filed on March 10, 2006
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933 (the "Securities Act") allowing for delayed offerings
pursuant to Rule 415 under the Securities Act, including the Incorporated
Documents (as defined below) and the information deemed to be a part of the
registration statement as of the date hereof pursuant to Rule 430B of the
General Rules and Regulations under the Securities Act (such registration
statement, at the time it became effective, being hereinafter referred to as
the
"Registration Statement");
(b) the
prospectus, dated March 10, 2006 (the "Base Prospectus"), relating to the
offering of securities of the Company, which forms a part of and is included
in
the Registration Statement;
UBS
Securities LLC
May
15,
2006
Page
4
(c) the
preliminary prospectus supplement, dated May 10, 2006 (the "Preliminary
Prospectus Supplement");
(d) the
prospectus supplement, dated May 10, 2006 (the "Final Prospectus Supplement"
and, together with the Base Prospectus and the Incorporated Documents, the
"Prospectus"), relating to the offering of the Securities;
(e) the
documents identified on Schedule I hereto filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934 and incorporated
by
reference into the Prospectus as of the date hereof (collectively, the
"Incorporated Documents");
(f) an
executed copy of the Underwriting Agreement;
(g) a
specimen certificate evidencing the Carolina Group stock attached to the
certificate of Xxxx X. Xxxxxx, Secretary of the Company, referenced in paragraph
5 below;
(h) the
Restated Certificate of Incorporation of the Company, as certified by the
Secretary of State of the State of Delaware (the "Certificate of
Incorporation");
(i) the
By-laws of the Company, as certified by Xxxx X. Xxxxxx, Secretary of the Company
(the "By-laws");
(j) the
Carolina Group policy statement, as certified by Xxxx X. Xxxxxx, Secretary
of
the Company (the "Policy Statement");
(k)
resolutions
of the Board of Directors of the Company, adopted February 14, 2006, April
11,
2006 and May 8, 2006, and resolutions of the Securities Committee thereof,
adopted May 10, 2006, in each case as certified by Xxxx X. Xxxxxx, Secretary
of
the Company;
(l) the
certificate of Xxxxx X. Xxxxx, Chief Executive Officer of the Company, and
Xxxxx
X. Xxxxxx, Chief Financial Officer of the Company, dated the date hereof, a
copy
of which is attached as Exhibit A hereto (the "Company's
Certificate");
(m) the
certificate of Xxxx X. Xxxxxx, Senior Vice President, General Counsel and
Secretary of the Company, dated the date hereof and the
UBS
Securities LLC
May
15,
2006
Page
5
certificate
of Xxxxx X. Xxxxxx, dated the date hereof, copies of which are attached as
Exhibit B hereto (the "Secretary's Certificates");
(n) a
certificate, dated May 10, 2006, and a facsimile bringdown thereof, dated May
15, 2006, from the Secretary of State of the State of Delaware as to the
Company's existence and good standing in such jurisdiction (the "Delaware
Certificates");
(o) a
certificate, dated May 10, 2006, and a facsimile bringdown thereof, dated May
15, 2006, from the Department of State of the State of New York, certifying
that
the Company is authorized to do business in the State of New York (the "New
York
Certificates"); and
(p) an
executed copy of the Company's Supplemental Listing Application to the New
York
Stock Exchange, Inc. (the "NYSE") with respect to the Securities, including
the
acknowledgment of authorization (the "NYSE Authorization") thereof executed
by a
representative of the NYSE.
We
have
also examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements, certificates
and receipts of public officials, certificates of officers or other
representatives of the Company and others, and such other documents as we have
deemed necessary or appropriate as a basis for the opinions set forth
below.
In
our
examination, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted
to us
as originals, the conformity to original documents of all documents submitted
to
us as facsimile, electronic, certified or photostatic copies, and the
authenticity of the originals of such copies. In making our examination of
executed documents, we have assumed that the parties thereto, other than the
Company, had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and the execution and delivery by such
parties of such documents and the validity and binding effect thereof on such
parties. As to any facts material to the opinions expressed herein that we
did
not independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Company and others
and of public officials, including the facts set forth in the Company's
Certificate.
The
opinions set forth below are subject to the following further qualifications,
assumptions and limitations:
UBS
Securities LLC
May
15,
2006
Page
6
(a) the
opinion set forth in paragraph 1 below with respect to the valid existence
and
good standing of the Company is based solely upon the Delaware
Certificates;
(b) the
opinion set forth in paragraph 2 below is based solely upon the New York
Certificates;
(c) in
rendering the opinions set forth in paragraphs 4 and 5 below, we have assumed
that the certificate evidencing the Securities will be signed by one of the
authorized officers of the transfer agent and registrar for the Carolina Group
stock and registered by such transfer agent and registrar and will conform
to
the specimen certificate examined by us evidencing the Carolina Group stock;
and
(d) the
opinion set forth in paragraph 6 below is based solely upon the NYSE
Authorization.
We
do not
express any opinion as to any laws other than (i) the Delaware General
Corporation Law (the "DGCL"), (ii) those laws, rules and regulations of the
State of New York that, in our experience, are normally applicable to
transactions of the type contemplated by the Underwriting Agreement and (iii)
the federal laws of the United States of America to the extent referred to
specifically herein. Insofar as the opinions expressed herein relate to matters
governed by laws other than those set forth in the preceding sentence, we have
assumed, without having made any independent investigation, that such laws
do
not affect any of the opinions set forth herein. The opinions expressed herein
are based on laws in effect on the date hereof, which laws are subject to change
with possible retroactive effect.
Based
upon the foregoing and subject to the limitations, qualifications, exceptions
and assumptions set forth herein, we are of the opinion that:
1. The
Company is validly existing in good standing under the laws of the State of
Delaware. The Company has the corporate power and corporate authority to carry
on its business and to own, lease and operate its properties, in each case
as
described in the Prospectus.
2. The
Company is authorized to do business in the State of New York.
UBS
Securities LLC
May
15,
2006
Page
7
3. The
Company has an authorized capitalization as set forth in the Prospectus, and
the
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in the Prospectus.
4. The
Securities have been duly authorized by the Company and, when delivered to
and
paid for by you in accordance with the terms of the Underwriting Agreement,
will
be validly issued, fully paid and nonassessable.
5. The
form
of certificate used to evidence the Carolina Group stock complies in all
material respects with the applicable requirements of the Certificate of
Incorporation and By-laws, the DGCL and the NYSE.
6. The
Securities have been authorized for listing on the NYSE, subject to official
notice of issuance.
7. The
holders of outstanding shares of capital stock of the Company do not have any
preemptive rights or any similar rights arising under the Certificate of
Incorporation, the By-laws or the DGCL to subscribe for the
Securities.
8. The
statements in the Base Prospectus under the headings "Description of Loews
Capital Stock" and "Relationship between the Loews Group and the Carolina
Group," insofar as such statements purport to summarize certain provisions
of
the Certificate of Incorporation, the By-laws, the Policy Statement and the
DGCL, fairly summarize such provisions in all material respects.
9.
The
statements in the Prospectus Supplement under the heading "Certain U.S. Federal
Tax Consequences," insofar as such statements purport to summarize certain
legal
matters referred to therein, fairly summarize such legal matters in all material
respects.
10.
The
Underwriting Agreement has been duly authorized, executed and delivered by
the
Company.
11.
The
Company is not and, solely after giving effect to the offering and sale of
the
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be subject to registration and regulation as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
UBS
Securities LLC
May
15,
2006
Page
8
This
opinion is furnished only to you and is solely for your benefit in connection
with the closing occurring today and the offering of the Securities, in each
case pursuant to the Underwriting Agreement. Without our prior written consent,
this opinion may not be used, circulated, quoted or otherwise referred to for
any other purpose or relied upon by, or assigned to, any other person for any
purpose, including any other person that acquires any Securities or that seeks
to assert your rights in respect of this opinion (other than your successors
in
interest by means of merger, consolidation, transfer of a business or other
similar transaction). Notwithstanding the foregoing, you (and each of your
employees, representatives and other agents) may disclose this opinion to any
and all persons, without limitation of any kind, to the extent such disclosure
may be relevant to understanding the tax treatment or tax structure of any
transaction contemplated by the Underwriting Agreement.
|
Very
truly yours,
|
|
|
|
Schedule
I
INCORPORATED
DOCUMENTS
|
1.
|
Annual
Report on Form 10-K of the Company for the year ended December 31,
2005.
|
|
2.
|
Quarterly
Report on Form 10-Q of the Company for the period ended March 31,
2006.
|
|
3.
|
Current
Report on Form 8-K of the Company filed with the Commission on January
11,
2006.
|
|
4.
|
Current
Report on Form 8-K of the Company filed with the Commission on January
31,
2006.
|
|
5.
|
Current
Report on Form 8-K of the Company filed with the Commission on February
16, 2006 (other than items 2.02 and 9.01, which are not incorporated
by
reference in the Prospectus).
|
|
6.
|
Current
Report on Form 8-K of the Company filed with the Commission on March
3,
2006.
|
|
7.
|
Current
Report on Form 8-K of the Company filed with the Commission on March
8,
2006.
|
|
8.
|
Current
Report on Form 8-K of the Company filed with the Commission on April
4,
2006.
|
|
9.
|
Current
Report on Form 8-K of the Company filed with the Commission on April
11,
2006.
|
|
10.
|
The
description of the Carolina Group stock contained in the Registration
Statement on Form 8-A filed with the Commission on January 28, 2002,
and
any amendment or report filed thereafter for the purposes of updating
such
information.
|
Exhibit
A
Company's
Certificates
EXHIBIT
B
Exhibit
B
Secretary's
Certificates
Opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
May
15,
2006
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Re:
Loews
Corporation - Public Offering of Carolina Group stock,
par
value $0.01 per share
Ladies
and Gentlemen:
We
have
acted as special counsel to Loews Corporation, a Delaware corporation (the
"Company"), in connection with the Underwriting Agreement, dated May 10, 2006
(the "Underwriting Agreement"), between you (the "Underwriter"), and the
Company, relating to the sale by the Company to the Underwriter of 15,000,000
shares (the "Securities") of Carolina Group stock, par value $0.01 per share
(the "Carolina Group stock") of the Company.
This
letter is being furnished to you pursuant to Section 6(b) of the Underwriting
Agreement.
In
the
above capacity, we have reviewed the registration statement on Form S-3 (File
No. 333-132334) of the Company relating to the Securities and other securities
of the Company filed on March 10, 2006 with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (the "Securities
Act") allowing for delayed offerings pursuant to Rule 415 under the Securities
Act, including the Incorporated Documents (as defined below) and the information
deemed to be a part of the registration statement as of the date hereof pursuant
to Rule 430B of the General Rules and Regulations under the Securities Act
(the
"Rules and Regulations") (such registration statement, at the time it became
effective, being hereinafter referred to as the "Registration Statement"),
and
(i) the prospectus, dated March 10, 2006 (the "Base Prospectus"), relating
to
the offering of securities of the Company, which forms a part of and is included
in the Registration Statement, (ii) the preliminary prospectus supplement,
dated
May 10, 2006 (together with the Base Prospectus and the Incorporated Documents,
the "Preliminary Prospectus"), relating to the offering of the Securities,
in
the form filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, and (iii) the prospectus supplement, dated May 10, 2006 (the
"Prospectus Supplement" and, together with the Base Prospectus
UBS
Securities LLC
May
15,
2006
Page
3
and
the
Incorporated Documents, the "Prospectus"), relating to the offering of the
Securities, in the form filed with the Commission pursuant to Rule 424(b) of
the
Rules and Regulations.
We also
have reviewed the documents identified on Schedule I hereto filed by the Company
pursuant to the Securities Exchange Act of 1934 and incorporated by reference
into the Prospectus Supplement as of the date hereof (collectively, the
"Incorporated Documents") and such other documents as we deemed appropriate.
Assuming the accuracy of the representations and warranties of the Company
set
forth in Section 1(d) of the Underwriting Agreement and that the Company has
not
received from the Commission any notice pursuant to Rule 401(g)(2) of the
Securities Act that would prevent the use of the Registration Statement, the
Registration Statement became effective upon filing with the Commission pursuant
to Rule 462 of the Securities Act, and we have been orally advised by the
Commission that (i) no stop order suspending the effectiveness of the
Registration Statement has been issued and (ii) no proceedings for that purpose
have been instituted or are pending or threatened by the
Commission.
In
addition, we have participated in conferences with officers and other
representatives of the Company, the general counsel of the Company, various
outside counsel to the Company and/or its subsidiaries handling the various
litigations referred to in the Incorporated Documents and the Prospectus
Supplement, representatives of the independent accountants of the Company,
representatives of the Underwriter and Cravath, Swaine & Xxxxx LLP, counsel
for the Underwriter, at which the contents of the Registration Statement and
the
Prospectus, the General Disclosure Package (as defined below) and related
matters were discussed. We did not participate in the preparation of the
Incorporated Documents but have, however, reviewed such documents and discussed
the business and affairs of the Company with officers and other representatives
of the Company in the course of the conferences referred to above. We do not
pass upon, or assume any responsibility for, the accuracy, completeness or
fairness of the statements contained or incorporated by reference in the
Registration Statement, the Prospectus or the General Disclosure Package and
have made no independent check or verification thereof (except to the limited
extent referred to in paragraphs 8 and 9 of our opinion to you dated the date
hereof).
We
express no opinion or belief regarding, nor are we predicting or guaranteeing,
the outcome of any tobacco-related product liability case. We express no opinion
or belief regarding the effect of the outcome, whether financial or otherwise,
of any tobacco-related product liability case on the Company or the Carolina
Group stock.
UBS
Securities LLC
May
15,
2006
Page
4
On
the
basis of the foregoing, (i) the Registration Statement, as of March 10, 2006
and
as of the date of the Prospectus Supplement, and the Prospectus, as of the
date
of the Prospectus Supplement, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the Rules and Regulations (except that in each case we do not express any
view as to the financial statements, schedules and other financial information
included or incorporated by reference therein or excluded therefrom or the
exhibits to the Registration Statement) and (ii) no facts have come to our
attention that have caused us to believe that the Registration Statement, as
of
March 10, 2006 and as of the date of the Prospectus Supplement, 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 or that the Prospectus, as of the date of the Prospectus Supplement
and as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading (except that in each case we do not express any view as
to
the financial statements, schedules and other financial information included
or
incorporated by reference therein or excluded therefrom or the statements
contained in the exhibits to the Registration Statement). In addition, on the
basis of the foregoing, no facts have come to our attention that have caused
us
to believe that the General Disclosure Package, as of the Applicable Time,
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 (except that we do
not
express any view as to the financial statements, schedules and other financial
information included or incorporated by reference therein or excluded therefrom
or the statements contained in the exhibits to the Registration
Statement.
As
used
herein, "Applicable Time" means 4:15 p.m. (Eastern time) on May 10, 2006 and
"General Disclosure Package" means the Preliminary Prospectus and the
information included on Schedule IV to the Underwriting Agreement.
In
addition, based on the foregoing, we confirm to you that the Prospectus
Supplement has been filed with the SEC within the time period required by Rule
424 of the Rules and Regulations.
This
letter is furnished only to you and is solely for your benefit in connection
with the closing occurring today and the offering of the Securities, in each
case pursuant to the Underwriting Agreement. Without our prior written consent,
this letter may not be used, circulated, quoted or otherwise referred to for
any
other purpose or relied upon by, or assigned to, any other person for any
UBS
Securities LLC
May
15,
2006
Page
5
purpose,
including any other person that acquires Securities or that seeks to assert
your
rights in respect of this letter (other than your successors in interest by
means of merger, consolidation, transfer of a business or other similar
transaction). Notwithstanding the foregoing, you (and each of your employees,
representatives and other agents) may disclose this letter to any and all
persons, without limitation of any kind, to the extent such disclosure may
be
relevant to understanding the tax treatment or tax structure of any transaction
contemplated by the Underwriting Agreement.
|
Very
truly yours,
|
|
|
|
EXHIBIT
C
Schedule
I
INCORPORATED
DOCUMENTS
1. Annual
Report on Form 10-K of the Company for the year ended December 31,
2005.
2. Quarterly
Report on Form 10-Q of the Company for the period ended March 31,
2006.
3. Current
Report on Form 8-K of the Company filed with the Commission on January 11,
2006.
4. Current
Report on Form 8-K of the Company filed with the Commission on January 31,
2006.
5. Current
Report on Form 8-K of the Company filed with the Commission on February 16,
2006
(other than items 2.02 and 9.01, which are not incorporated by reference in
the
Prospectus).
6. Current
Report on Form 8-K of the Company filed with the Commission on March 3,
2006.
7. Current
Report on Form 8-K of the Company filed with the Commission on March 8,
2006.
8. Current
Report on Form 8-K of the Company filed with the Commission on April 4,
2006.
9. Current
Report on Form 8-K of the Company filed with the Commission on April 11,
2006.
10. The
description of the Carolina Group stock contained in the Registration Statement
on Form 8-A filed with the Commission on January 28, 2002, and any amendment
or
report filed thereafter for the purposes of updating such information.
EXHIBIT
D
[Letterhead
of Lorillard]
May
15, 2006
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Ladies
and Gentlemen:
I
am
Senior Vice President, Legal and External Affairs, General Counsel and Secretary
of Lorillard Tobacco Company, a Delaware corporation and a wholly owned
subsidiary of Lorillard, Inc. (collectively, the “Company”). I have acted as
counsel for the Company in connection with the purchase by you from Loews
Corporation (“Parent”), a Delaware corporation and parent corporation of
Lorillard, Inc., of 15,000,000 shares of Carolina Group Stock, par value $0.01
per share (the “Shares”) of Parent pursuant to the Underwriting Agreement, dated
May 10, 2006, between you and Parent (the “Underwriting Agreement’). This letter
is being delivered to you pursuant to Section 6(d) of the Underwriting
Agreement.
I
have
examined: (1) the Registration Statement on Form S-3, as amended (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective, being hereinafter called the
“Registration Statement”) filed by Parent under the Securities Act of 1933, as
amended (the “Act”); (2) the basic prospectus dated March 10, 2006, including
the documents incorporated by reference therein (the “Basic Prospectus”); (3)
the preliminary prospectus supplement dated May 10, 2006 (the “Preliminary
Prospectus Supplement” and, together with the Basic Prospectus, being
hereinafter called the Preliminary Prospectus), filed by Parent pursuant to
Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the “Commission”); (4) the final prospectus supplement dated May 10, 2006, (the
“Final Prospectus” and, together with the Basic Prospectus, being hereinafter
called the “Prospectus”), filed by Parent pursuant to Rule 424(b); and (5) the
other information, if any, identified in Schedule IV to the Underwriting
Agreement (together with the Basic Prospectus, as amended and supplemented
to
the Execution Time and the Preliminary Prospectus Supplement, as amended and
supplemented to the Execution Time, being hereinafter called the “Disclosure
Package”).
In
addition, I have examined certain records of the Company relating to the matters
covered by the opinions set forth in the numbered paragraphs below and have
made
such other investigations as I have deemed necessary in connection with the
opinion hereinafter set forth. I have relied, to the extent I deem such reliance
proper, upon certain factual representations made in certificates given by
officers of the Company in answer to inquiries.
As
we
have discussed, while I have general supervisory responsibility for all legal
matters involving the Company, I must rely extensively on various attorneys
at
the Company and various outside law firms which handle particular matters for
the
2
Company.
Accordingly, my personal knowledge of a significant number of cases and other
matters is substantially limited. The opinions contained in this letter merely
constitute expressions of my professional judgment regarding the matters of
law
addressed herein. I am expressing no opinion regarding, nor am I predicting
or
guaranteeing, the outcome of any tobacco-related product liability case.
Further, I am expressing no opinion regarding the effect of the outcome, whether
financial or otherwise, of any tobacco-related product liability case on the
Company or the Shares. For purposes of the opinion in the first numbered
paragraph below, I have consulted with such other attorneys at the Company
and
outside counsel as I have deemed appropriate.
In
rendering my opinion, I have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to me as originals, the conformity to original documents of documents submitted
to me as certified, facsimile, conformed, electronic or photostatic copies
and
the authenticity of the originals of such copies. As to all questions of fact
material to this opinion that have not been independently established, I have
relied upon certificates or comparable documents, and oral and written
statements and representations, of government officials and other officers
and
representatives of the Company and Parent and, in certain instances, written
statements of the Underwriters and upon the representations and warranties
of
Parent and, in certain instances, the Underwriters, contained in the
Underwriting Agreement. I have not independently verified such information
and
assumptions.
I
have
investigated such questions of law for the purpose of rendering this opinion
as
I have deemed necessary. This opinion is limited to the federal law of the
United States of America, the laws of the State of North Carolina and the
General Corporate Law of Delaware. I disclaim any opinion as to any statute,
rule, regulation, ordinance, order or other promulgation of any other
jurisdiction or of any regional or local governmental body.
On
the
basis of the foregoing, and in reliance thereon, and subject to the limitations,
qualifications and exceptions set forth above, I am of the opinion
that:
1. To
the
best of my knowledge, the statements set forth
(A)
in
the Parent’s Annual Report on Form 10-K for the year ended December 31, 2005
(“Annual Report”) under the headings “Business -- Lorillard, Inc. -- Legislation
and Regulation,” “Business -- Lorillard, Inc. -- Federal Regulation,” “Business
-- Lorillard, Inc. -- State and Local Regulation,” together with “Business -
Lorillard, Inc. -- Advertising and Marketing,” when considered in their
entirety; and
(B)
in
the Annual Report under the headings “Legal Proceedings -- Tobacco Related” and
“Notes to Consolidated Financial Statements -- Note 20. Legal Proceedings --
Tobacco Related” and in Exhibit 99.01 to the Annual Report together with the
statements in the Parent’s Quarterly Report on Form 10-Q for the quarter
3
ended
March 31, 2006 (“Quarterly Report”) under the headings “Notes to
Consolidated Condensed Financial Statements -- Note 12. Legal Proceedings --
Tobacco Related” and “Part II. Other Information. Item 1. Legal Proceedings. 2.
Tobacco Related”, when considered in their entirety,
incorporated
by reference into the Registration Statement, the Disclosure Package and the
Prospectus constitute a complete and accurate summary in all material respects
of the matters referred to therein;
|
2.
|
To
the best of my knowledge, there is no pending or threatened action,
suit
or proceeding by or before any court or governmental agency, authority
or
body or any arbitrator involving the Company or any of its subsidiaries
or
its or their property of a character required to be disclosed in
the
Registration Statement which is not adequately disclosed in the Disclosure
Package and the Prospectus, and there is no franchise, contract or
other
document of a character required involving the Company or any of
its
subsidiaries required to be described in the Registration Statement
or
Prospectus, or to be filed as an exhibit thereto, which is not described
or filed as required;
|
|
3.
|
Neither
the issue and sale of the Shares, nor the consummation of any other
of the
transactions herein contemplated nor the fulfillment of the terms
hereof
will conflict with, result in a breach or violation of or imposition
of
any lien, charge or encumbrance upon any property or assets of the
Company
or its subsidiaries pursuant to, (i) the charter or by-laws of the
Company
or its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
the
Company or any of its subsidiaries is a party or bound or to which
its or
their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its subsidiaries
of
any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or its
subsidiaries or any of its or their properties, except, with respect
to
clauses (ii) and (iii) above, for such conflicts, breaches, violations
or
impositions that could not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the financial condition,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary
course of business;
|
|
4.
|
All
the outstanding shares of capital stock of Lorillard, Inc. and Lorillard
Tobacco Company have been duly and validly authorized and issued
and are
fully paid and nonassessable, and, except as otherwise set forth
in the
Disclosure Package and the Prospectus, all outstanding shares of
capital
stock of the subsidiaries of Lorillard, Inc. are owned by Lorillard,
Inc.
|
4
either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest and, to my knowledge, after due inquiry, any other security
interest, claim, lien or encumbrance; and
|
5.
|
The
Company is validly existing as a corporation in good standing under
the
laws of the jurisdiction in which it is chartered or organized, with
full
corporate power and authority to own or lease, as the case may be,
and to
operate its properties and conduct its business as described in the
Disclosure Package and the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws
of each jurisdiction which requires such qualification, except where
the
failure to be so qualified could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the financial
condition, earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
|
In
addition, although I have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Disclosure Package or the Prospectus and take no responsibility therefor,
except as and to the extent set forth in paragraph 1 above, I have no reason
to
believe that the Registration Statement (except for the financial statements,
other than the portions of Note 20 to the Consolidated Financial Statements
in
the Annual Report and Note 12 to the Consolidated Condensed Financial Statements
in the Quarterly Report referred to above, and other information of an
accounting or financial nature included therein, as to which I do not express
any view), to the extent it relates to the Company, at the time it became
effective, contained any untrue statement of a material fact or omitted to
state
any material fact necessary to make the statements therein not misleading,
that
the Disclosure Package, as of the Execution Time, when taken together as a
whole, (except for the financial statements, other than the portions of Note
20
to the Consolidated Financial Statements in the Annual Report and Note 12 to
the
Consolidated Condensed Financial Statements in the Quarterly Report referred
to
above, and other information of an accounting or financial nature included
therein, as to which I do not express any view), to the extent it relates to
the
Company, includes any untrue statement of a material fact or omits to state
any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the
Prospectus, (except for the financial statements, other than the portions of
Note 20 to the Consolidated Financial Statements in the Annual Report and Note
12 to the Consolidated Condensed Financial Statements in the Quarterly Report
referred to above, and other information of an accounting or financial nature
included therein, as to which I do not express any view), to the extent it
relates to the Company, as of its date or the date hereof included or includes
any untrue statement of a material fact or omitted or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
This
opinion letter is rendered to you in connection with the above described
transactions and I specifically do not render any opinions pertaining to
any matter not expressly stated herein. This opinion letter may not be relied
upon by you for
5
any
other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without my prior written consent. The opinions contained herein
are
limited to the matters expressly stated herein, and no opinion may be inferred
or implied beyond the matters expressly stated herein.
|
Very
truly yours,
|
|
|
|
EXHIBIT
E
[Form
of Opinion Shook, Hardy & Bacon LLP]
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
We
have
acted as special counsel to Loews Corporation, a Delaware corporation (the
“Parent”),
its
wholly owned subsidiary, Lorillard Inc., a Delaware corporation (“LI”),
and
LI’s wholly owned subsidiary Lorillard Tobacco Company, a Delaware corporation
(“LTC”)
(Parent, LI, and LTC are referred to collectively as the “Company”
or
the
“Companies”),
in
connection with the purchase by you from Parent of 15,000,000 shares of common
stock, par value $0.01 per share (the “Carolina
Group Stock”)
of
Parent pursuant to the Underwriting Agreement, dated May 10, 2006, between
you
and Parent (the “Underwriting
Agreement”).
This
letter is being delivered to you pursuant to Section 6(e) of the Underwriting
Agreement.
We
have
examined: (1) the Registration Statement on Form S-3, as amended (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective (the “Effective
Date”),
is
referred to as the “Registration
Statement”)
filed
by Parent under the Securities Act of 1933, as amended (the “Act”);
(2)
the basic prospectus dated March 10, 2006, including the documents incorporated
by reference therein (the “Basic
Prospectus”);
(3)
the preliminary prospectus supplement dated May 10, 2006 (the “Preliminary
Prospectus Supplement”
and,
together with the Basic Prospectus, is referred to as the Preliminary
Prospectus), filed by Parent pursuant to Rule 424(b) of the rules and
regulations of the Securities and Exchange Commission (the “Commission”);
(4)
the final prospectus supplement dated May 10, 2006, (the “Final Prospectus” and,
together with the Basic Prospectus, is referred to as the “Prospectus”),
filed
by Parent pursuant to Rule 424(b); and (5) the other information, if any,
identified in Schedule IV to the Underwriting Agreement and the issuer free
writing prospectuses, if any, identified in Schedule III to the Underwriting
Agreement (together with the Basic Prospectus, as amended and supplemented
to
the Execution Time and the Preliminary Prospectus Supplement, as amended and
supplemented to the Execution Time, is referred to as the “Disclosure
Package”).
In
addition, we have examined certain records of the Company relating to the
matters covered by the opinions set forth in the numbered paragraph below and,
subject to the limitations set forth herein, have made such other investigations
as we have deemed necessary in connection with the opinion set forth in such
numbered paragraph.
Based
upon such examination and review, and subject to the other qualifications and
limitations set forth herein, we are of the opinion that:
1. To
the
best of our knowledge, the statements set forth in:
2
A. The
Parent’s Annual Report on Form 10-K for the year ended December 31, 2005
(“Annual Report”) in (i) “Part I. Item 3. Legal Proceedings. Tobacco Related;”
(ii) “Notes to Consolidated Financial Statements. Note 20. Legal Proceedings.
Tobacco Related” in the paragraph subheadings captioned “Conventional
Product Liability Cases,” “Flight Attendant Cases,” “Class Action Cases,”
“Reimbursement Cases,” “Contribution Claims”
and“Filter
Cases;”
(iii)
“Notes to Consolidated Financial Statements. Note 20. Legal Proceedings. Other
Tobacco-Related” in the paragraph subheading captioned“Reparation
Cases;” and
(iv) Exhibit
99.01. Tobacco
Pending Litigation in the paragraph subheadings captioned “Class
Action Cases,” “Reimbursement Cases” and
“Contribution
Claims;”
as
incorporated by reference into the Registration Statement that describe
cigarette and chewing tobacco product liability lawsuits (a) pending
against the Company and for which we act as primary legal counsel of record
to
the Company or (b) which have been “overtly threatened “(as such phrase is
defined in the American Bar Association’s Statement of Policy Regarding Lawyers’
Responses to Auditors’ Requests for Information) against the Company and for
which we act as primary legal counsel to the Company (the cigarette and chewing
tobacco product liability lawsuits described in clause 1(a) and 1(b) are
collectively referred to herein as the “SHB
Cases”),
when
considered in their entirety, (i) as they relate to the Registration
Statement, at the Effective Date did not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein not misleading (except for the financial statements, other than the
portions of Note 20 to the Consolidated Financial Statements in the Annual
Report referred to above, and other information of an accounting or financial
nature included therein, if any, as to which we do not express any view);
and
2. To
the
best of our knowledge, the statements set forth in:
A. The
Parent’s Annual Report on Form 10-K for the year ended December 31, 2005
(“Annual Report”) in (i) “Part I. Item 3. Legal Proceedings. 2. Tobacco
Related”; (ii) “Notes to Consolidated Financial Statements. Note 20. Legal
Proceedings. Tobacco Related” in the paragraph subheadings captioned
“Conventional
Product Liability Cases,” “Flight Attendant Cases,” “Class Action Cases,”
“Reimbursement Cases,” “Contribution Claims”
and“Filter
Cases;”
(iii)
“Notes to Consolidated Financial Statements. Note 20. Legal Proceedings. Other
Tobacco-Related” in the paragraph subheading captioned“Reparation
Cases;” and
(iv) Exhibit
99.01. Tobacco
Pending Litigation in the paragraph subheadings captioned “Class
Action Cases,” “Reimbursement Cases” and
“Contribution
Claims;”
and in
B. The
Parent’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006
(“Quarterly Report”) in (i) “Notes to Consolidated Condensed Financial
Statements. Note 12. Legal Proceedings. Tobacco Related. Tobacco Related Product
Liability Litigation” in the paragraph subheadings captioned “Conventional
3
Product
Liability Cases,” “Flight Attendant Cases,” “Class Action Cases,” “Reimbursement
Cases,” “Contribution Claims”
and“Filter
Cases;”
(ii)
“Notes to Consolidated Financial Statements. Note 12. Legal Proceedings. Tobacco
Related. Other Tobacco-Related” in the paragraph subheading
captioned“Reparation
Cases;” and
(iii)
“Part II. Other Information. Item 1. Legal Proceedings. 2. Tobacco Related” in
the paragraph subheadings captioned “Class
Actions” and“Reimbursement
Cases”;
as
incorporated by reference into the Disclosure Package and the Prospectus that
describe cigarette and chewing tobacco product liability lawsuits that are
included in the SHB Cases as they relate to the Disclosure Package, as of the
Execution Time, when taken together as a whole, and the Prospectus, at the
date
thereof (except as may be set forth on Schedule A attached to this letter)
or
hereof (except as may be set forth on Schedule B attached to this letter) did
not contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading (except for the
financial statements, other than the portions of Note 20 to the Consolidated
Financial Statements in the Annual Report and Note 12 to the Consolidated
Condensed Financial Statements in the Quarterly Report referred to above, and
other information of an accounting or financial nature included therein, if
any,
as to which we do not express any view).
As
we
have discussed, we are primary legal counsel to the Company with respect to
approximately 2,775 SHB Cases. A significant number of product liability
lawsuits (including cigarette and chewing tobacco lawsuits) are pending against
the Company, for which we do not act as primary legal counsel of record to
the
Company, and may have been “overtly threatened” against the Company, for which
we do not act as primary legal counsel to the Company (collectively, the
“NonSHB
Cases”).
Our
knowledge about the NonSHB Cases is substantially more limited than our
knowledge about the SHB Cases (the SHB Cases and the NonSHB Cases are
collectively referred to herein as the “Product
Liability Cases”).
Further, we do not serve as legal counsel to the Company other than in
connection with the SHB Cases and as a result we are not corporate, securities,
regulatory or antitrust counsel to the Company in connection with the
preparation of the Registration Statement or the Prospectus and we have not
advised the Company on compliance with the requirements of the applicable
federal or state securities laws or on the Carolina Group Stock.
We
have
not independently verified the accuracy, completeness or fairness of the
statements made or included in the Registration Statement, the Disclosure
Package or the Prospectus and take no responsibility therefor, except as and
to
the extent set forth in paragraphs 1 and 2 above, subject to the qualifications
and limitations set forth herein. We confirm that we have read the Prospectus,
the Disclosure Package and the Registration Statement and we have reviewed
the
descriptions of the Product Liability Cases described therein. We confirm that
we have reviewed generally our files relating to the SHB Cases, we have reviewed
this opinion with the attorneys who currently are partners in or employed by
this firm and who are primarily responsible for the representation of the
Company in the SHB Cases or who were directly involved in any material respect
with the preparation of this letter (the “Responsible
Attorney Group”),
4
and
we
have had conversations with representatives of the legal departments of the
Company regarding the contents of this letter, but we have not discussed the
NonSHB Cases with any person or entity, we have not reviewed any files or any
materials (other than the contents of the Prospectus, the Disclosure Package
and
the Registration Statement) relating to the NonSHB Cases, and we have not
reviewed the contents of this letter with attorneys who are partners in or
employees of this firm, other than the Responsible Attorney Group.
You
acknowledge that the statements that are made herein “to the best of our
knowledge” or as to matters that have “come to our attention” or matters as to
which we “believe” (or the converse) in this letter are made based solely on the
knowledge or awareness of the attorneys in the Responsible Attorney Group and
that those statements do not include the knowledge or awareness of other
attorneys who are partners in or employees of this firm who are not in the
Responsible Attorney Group, including those who may be primarily responsible
for
representing parties to Products Liability Cases other than the Companies.
Without limiting the foregoing, you acknowledge that we are making no statements
and giving no opinions with regard to the discussions in the Registration
Statement, the Disclosure Package and the Prospectus of the State Settlement
Agreements, the Master Settlement Agreement, Settlement of State Reimbursement
Litigation, Tobacco-Related Antitrust Cases, or Antitrust Claims (as those
terms
are defined in the Registration Statement and the Prospectus), the provisions
of
the Carolina Group Stock and the charter amendments creating those securities,
or as to the actual or potential financial effect of the Products Liability
Cases, individually or collectively, on the Company, its business, or its
condition, financial or otherwise.
The
opinions contained in this letter merely constitute expressions of our
professional judgment regarding the matters of law addressed herein. We are
expressing no opinion regarding, nor are we endorsing or adopting as our own
opinion, any particular statement of opinion or belief attributed to the Company
in the Registration Statement, the Disclosure Package or the Prospectus. We
are
expressing no opinion regarding, nor are we predicting or guaranteeing, the
outcome of any Product Liability Case. Further, we are expressing no opinion
regarding the effect of the outcome, whether financial or otherwise, of any
Product Liability Case on the Company or the Carolina Group Stock.
Subject
to the qualifications and limitations set forth herein, no facts have come
to
our attention that cause us to believe that the descriptions of the Product
Liability Cases in the Registration Statement and the Prospectus when considered
in their entirety, (i) as they relate to the Registration Statement, as of
the Effective Date contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein not misleading
(except for the financial statements and other information of an accounting
or
financial nature included therein, as to which we do not express any view);
(ii)
as they relate to the Disclosure Package, as of the Execution Time, when taken
together as a whole, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements, in the
light
of the circumstances under which they were made, not misleading (except for
the
financial statements, other than the portions of Note 20 to the Consolidated
Financial Statements in the Annual Report and Note 12 to the Consolidated
Condensed Financial Statements in
5
the
Quarterly Report referred to above, and other information of an accounting
or
financial nature included therein, as to which we do not express any view)
; and
(iii) as they relate to the Prospectus, at the date thereof or hereof
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading (except for the
financial statements, other than the portions of Note 20 to the Consolidated
Financial Statements in the Annual Report and Note 12 to the Consolidated
Condensed Financial Statements in the Quarterly Report referred to above,
and
other information of an accounting or financial nature included therein,
as to
which we do not express any view).
We
have
not considered and express no opinion as to, the laws of any jurisdiction other
than the laws of the United States of America.
This
opinion letter is rendered only to you and solely for your benefit in connection
with the above described transactions. This opinion may not be relied upon
by
you for any other purpose, or relied upon by, or furnished to, any other person,
firm or corporation without our prior written consent.
|
Very
truly yours,
|
|
|
|
EXHIBIT
F
[Form
of Opinion of Xxxxxxxx Xxxxxx LLP]
May
15, 2006
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Ladies
and Gentlemen:
We
have
served as primary legal counsel of record for Lorillard, Inc., a Delaware
corporation, and its wholly owned subsidiary Lorillard Tobacco Company, a
Delaware corporation (collectively, the “Company”), in connection with certain
matters involving cigarette and chewing tobacco related products liability
litigation to which the Company is a party. We are rendering this opinion in
connection with the purchase by you from Loews Corporation, a Delaware
corporation and parent corporation of Lorillard, Inc. (the “Parent”), of
15,000,000 shares of Carolina Group Stock, par value $0.01 per share of the
Parent pursuant to the Underwriting Agreement, dated May 10, 2006, between
you
and the Parent (the “Underwriting Agreement”). The letter is being delivered to
you pursuant to Section 6(f) of the Underwriting Agreement.
We
have
examined: (1) the Registration Statement on Form S-3, as amended (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective (the “Effective Date”), is referred to
as the “Registration Statement”) filed by Parent under the Securities Act of
1933, as amended (the “Act”); (2) the basic prospectus dated March 10, 2006,
including the documents incorporated by reference therein (the “Basic
Prospectus”); (3) the preliminary prospectus supplement dated May 10, 2006 (the
“Preliminary Prospectus Supplement” and, together with the Basic Prospectus, is
referred to as the Preliminary Prospectus), filed by Parent pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the “Commission”); (4) the final prospectus supplement dated May 10, 2006, (the
“Final Prospectus” and, together with the Basic Prospectus, is referred to as
the “Prospectus”), filed by Parent pursuant to Rule 424(b); and (5) the other
information, if any, identified in Schedule IV to the Underwriting Agreement
and
the issuer free writing prospectuses, if any, identified in Schedule III to
the
Underwriting Agreement (together with the Basic Prospectus, as amended and
supplemented to the Execution Time and the Preliminary Prospectus Supplement,
as
amended and supplemented to the Execution Time, is referred to as the
“Disclosure Package”).
In
addition, we have examined certain records of the Company relating to the
matters covered by the opinion set forth in the numbered paragraph below and
have made such other investigations as we have deemed necessary in connection
with the opinion hereinafter set forth. In examining such material and in
delivering this opinion, we have assumed the genuineness of all signatures,
the
authenticity of all documents submitted to us as originals, the conformity
to
the originals of all documents submitted to
2
us
as
certified, photostatic or conformed copies, and the authenticity of the
originals of all such copies.
Based
upon such examination and review, and subject to the foregoing, we are of the
opinion that:
|
1.
|
To
the best of our knowledge, the statements set forth in the Parent’s Annual
Report on Form 10-K for the year ended December 31, 2005 (the “Annual
Report”) under the headings “Legal Proceedings -- Tobacco Related” and
“Notes to Consolidated Financial Statements -- Note 20. Legal Proceedings
-- Tobacco Related” and in Exhibit 99.01 to the Annual Report and in the
Parent’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2006 (“Quarterly Report”) under the headings “Notes to
Consolidated Condensed Financial Statements -- Note 12. Legal Proceedings
-- Tobacco Related” and “Part II. Other Information. Item 1. Legal
Proceedings. 2. Tobacco Related” incorporated by reference into the
Registration Statement, the Disclosure Package and the Prospectus,
when
considered in their entirety, constitute a complete and accurate
summary,
in all material respects, of matters involving actual or threatened
cigarette and chewing tobacco related products liability litigation
to
which the Company is or may be a party and for which we act as primary
legal counsel of record to the Company. In passing upon the accuracy
of
those statements, we are not endorsing or adopting as our own opinion
any
particular statement of opinion or belief attributed to the Company
in the
Registration Statement, the Disclosure Package or the Prospectus,
nor are
we predicting the outcome of any pending or threatened
litigation.
|
We
are
opining herein only on the federal laws of the United States and the laws of
the
State of Missouri. We expressly disavow any obligation to update this opinion
as
to any events occurring after May 15, 2006.
|
Very
truly yours,
|
|
|
|
EXHIBIT
G
[Form
of Opinion Xxxxxxxxx Traurig LLP]
May
15, 2006
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Ladies
and Gentlemen:
We
have
served as primary legal counsel of record for Lorillard, Inc., a Delaware
corporation, and its wholly owned subsidiary Lorillard Tobacco Company, a
Delaware corporation (collectively, the “Company”), in connection with certain
matters involving cigarette and chewing tobacco related products liability
litigation to which the Company is a party. We are rendering this opinion in
connection with the purchase by you from Loews Corporation, a Delaware
corporation and parent corporation of Lorillard, Inc. (the “Parent”), of
15,000,000 shares of Carolina Group Stock, par value $0.01 per share of the
Parent pursuant to the Underwriting Agreement, dated May 10, 2006, between
you
and the Parent (the “Underwriting Agreement”). The letter is being delivered to
you pursuant to Section 6(g) of the Underwriting Agreement.
We
have
examined: (1) the Registration Statement on Form S-3, as amended (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective (the “Effective Date”), is referred to
as the “Registration Statement”) filed by Parent under the Securities Act of
1933, as amended (the “Act”); (2) the basic prospectus dated March 10, 2006,
including the documents incorporated by reference therein (the “Basic
Prospectus”); (3) the preliminary prospectus supplement dated May 10, 2006 (the
“Preliminary Prospectus Supplement” and, together with the Basic Prospectus, is
referred to as the Preliminary Prospectus), filed by Parent pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the “Commission”); (4) the final prospectus supplement dated May 10, 2006, (the
“Final Prospectus” and, together with the Basic Prospectus, is referred to as
the “Prospectus”), filed by Parent pursuant to Rule 424(b); and (5) the other
information, if any, identified in Schedule IV to the Underwriting Agreement
and
the issuer free writing prospectuses, if any, identified in Schedule III to
the
Underwriting Agreement (together with the Basic Prospectus, as amended and
supplemented to the Execution Time and the Preliminary Prospectus Supplement,
as
amended and supplemented to the Execution Time, is referred to as the
“Disclosure Package”).
In
addition, we have examined certain records of the Company relating to the
matters covered by the opinion set forth in the numbered paragraph below and
have made such other investigations as we have deemed necessary in connection
with the opinion hereinafter set forth. We have relied, to the extent that
we
deem such reliance proper, upon certain factual representations made in
certificates given by officers of the Company in answer to our inquiries. In
examining such material and in delivering this opinion, we have assumed the
genuineness of all signatures, the authenticity of all
documents
submitted to us as originals, the conformity to the originals of all documents
submitted to us as certified, photostatic or conformed copies, and the
authenticity of the originals of all such copies.
Based
upon such examination and review, and subject to the foregoing, we are of the
opinion that:
|
1.
|
To
the best of our knowledge, the statements set forth in the Parent’s Annual
Report on Form 10-K for the year ended December 31, 2005 (the “Annual
Report”) under the headings “Legal Proceedings -- Tobacco Related” and
“Notes to Consolidated Financial Statements -- Note 20. Legal Proceedings
-- Tobacco Related” and in Exhibit 99.01 to the Annual Report and in the
Parent’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2006 (“Quarterly Report”) under the headings “Notes to Consolidated
Condensed Financial Statements -- Note 12. Legal Proceedings -- Tobacco
Related” and “Part II. Other Information. Item 1. Legal Proceedings. 2.
Tobacco Related” incorporated by reference into the Registration
Statement, the Disclosure Package and the Prospectus, when considered
in
their entirety, constitute a complete and accurate summary, in all
material respects, of matters involving actual or threatened cigarette
and
chewing tobacco related products liability litigation to which the
Company
is or may be a party and for which we act as primary legal counsel
of
record to the Company. In passing upon the accuracy of those statements,
we are not endorsing or adopting as our own opinion any particular
statement of opinion or belief attributed to the Company in the
Registration Statement, the Disclosure Package or the Prospectus,
nor are
we predicting the outcome of any pending or threatened
litigation.
|
We
are
opining herein only on the federal laws of the United States and the laws of
the
State of New York. We expressly disavow any obligation to update this opinion
as
to any events occurring after May 15, 2006.
|
Very
truly yours,
|
|
|
|
SCHEDULE I
Underwriting
Agreement dated May 10, 2006.
Registration
Statement No. 333-132344.
Representative(s):
UBS Securities LLC
Title,
Purchase Price and Description of Securities:
Title:
Carolina Group Stock
Number
of
Underwritten Securities to be sold by the Company: 15,000,000
Price
per
Share to the Underwriters - total: $50.10
Other
provisions:
Closing
Date, Time and Location: May 15, 2006 at 10:00 a.m. at the offices of Cravath,
Swaine & Xxxxx LLP, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000.
SCHEDULE
II
|
Underwriters
|
Number
of
Securities
to be Purchased
|
|
|
UBS
Securities LLC
|
15,000,000
|
|
|
Total.
. . . . . . . .
|
15,000,000
|
SCHEDULE III
Schedule
of Free Writing Prospectuses included in the Disclosure Package
1.
None.
SCHEDULE IV
Schedule
of other information included in the Disclosure Package
1.
Issuer: Loews Corporation Carolina Group
2.
Shares
offered: 15,000,000 shares
3.
Price
to public: $50.40 per share
4.
Underwriter(s): UBS Securities LLC
