Exhibit 1.1
EXECUTION COPY
Loews Corporation
10,000,000 Shares
Carolina Group Stock
($0.01 par value)
Underwriting Agreement
New York, New York
December 7, 2004
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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 I hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, 10,000,000 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 I 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
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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 17 hereof.
1. Representations and Warranties. The Company represents and
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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 a registration
statement (file number 333-104759) on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus
supplement) or (3) a final prospectus in accordance with Rules 415 and
424(b). In the case of clause (1), the Company has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement, shall contain all Rule 430A
Information, together with all other such required information, 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 or will 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
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statements therein not misleading; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not, 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,
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however, that the Company makes no representations or warranties as to
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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).
(c) 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 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 business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification;
(d) 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 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;
(e) The Company's authorized equity capitalization is as set forth in
the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in 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 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;
(f) 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; and the statements in:
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(1) the Company's Annual Report on Form 10-K/A for the year ended
December 31, 2003 (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
21. 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 September 30, 2004 (the
"Quarterly Report") under the headings "Notes to Consolidated
Condensed Financial Statements -- Note 14. Legal Proceedings --
Tobacco Related" and "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.
(g) 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).
(h) 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.
(i) 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
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distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Final Prospectus.
(j) 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 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.
(k) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(l) The consolidated historical financial statements of the Company
and its consolidated subsidiaries included or incorporated by reference
in the Final Prospectus 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 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.
(m) 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 Final Prospectus (exclusive of any
supplement thereto).
(n) 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.
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(o) 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 Final Prospectus (exclusive of any
supplement thereto)), or (iii) any statute, 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 Final
Prospectus (exclusive of any supplement thereto)).
(p) 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
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.
(q) 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.
(r) Except as could not reasonably be expected to have a Material
Adverse Effect, and except as set forth in or contemplated in 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.
(s) 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 Final Prospectus.
(t) 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
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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 reasonably be expected to
have a Material Adverse Effect, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(u) Except as disclosed in 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.
(v) 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 Final Prospectus (exclusive of any supplement
thereto).
(w) 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 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
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Company or any of its Material Subsidiaries infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary rights 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.
(x) Except as disclosed in the Registration Statement 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.
(y) 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.
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
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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 a purchase price of $28.19 per
share, the amount of the Securities set forth opposite such Underwriter's name
in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
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Securities shall be made at 10:00 AM, New York City time, on December 13,
2004, 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
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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:
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(a) The Company will use its reasonable best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
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amendment thereof, to become effective. 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 or any Rule
462(b) Registration Statement 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. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), 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) 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
Registration Statement, if not effective at the Execution Time, shall
have become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (5) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) 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 use its reasonable
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, 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 or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, 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 which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
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(c) 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 under the Act.
(d) 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, as many copies of each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) 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.
(f) The Company will not, without the prior written consent of
Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated,
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,
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however, that the Company may issue options and sell Carolina Group
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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 Final Prospectus.
(g) Except as disclosed in 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.
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(h) 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 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
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
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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) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the Company's knowledge,
threatened.
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(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. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(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 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 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
13
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 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 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 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 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;
14
(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 or the date the Registration Statement was last
deemed amended 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); and
(ix) 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 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 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 general 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,
15
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 Company shall have requested and caused Weil, Gotshal & Xxxxxx,
antitrust counsel for Lorillard Tobacco Company, to have furnished their
opinion, dated the Closing Date and addressed to the Representatives in
the form of Exhibit H.
(i) 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
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.
(j) 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 examined the Registration Statement, the
Final Prospectus, any supplements to the Final Prospectus 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;
16
(ii) no stop order suspending the effectiveness of the
Registration Statement 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 Final Prospectus
(exclusive of any supplement thereto).
(k) 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, any
supplements to the Final Prospectus 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 Final Prospectus
(exclusive of any supplement thereto).
(l) 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:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in
the Registration Statement 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 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 September 30, 2004, nothing came
to their attention which caused them to believe that:
17
(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 September 30,
2004, 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
September 30, 2004 balance sheets included or incorporated by
reference in the Registration Statement and the Final
Prospectus, or for the period from October 1, 2004 to such
specified date there were any decreases, as compared with the
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.
18
References to the Final Prospectus in this paragraph (l) include
any supplement thereto at the date of the letter.
(m) 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 (l)
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 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) and the Final
Prospectus (exclusive of any supplement thereto).
(n) 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.
(o) 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.
(p) 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.
(q) 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 cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
19
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 Xxxxxx Xxxxxxx & Co. Incorporated and Citigroup
Global Markets Inc. 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 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 or the Final 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 provided further, that with respect to any
-------- -------
untrue statement or omission of material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter from whom the person asserting any
such loss, claim, damage or liability purchased the Securities concerned, to
the extent that any such loss, claim, damage or liability of such Underwriter
occurs under the circumstance where it shall have been determined by a court
of competent jurisdiction by final and nonappealable judgment that (w) the
Company had previously furnished copies of the Final Prospectus to the
Representatives, (x) delivery of the Final Prospectus was required by the Act
to be made to such person, (y) the untrue statement or omission of a material
fact contained in the Preliminary Final Prospectus was corrected in the Final
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of sale of such
20
securities to such person, a copy of the Final Prospectus. 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 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
21
(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 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
22
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 I 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 I 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 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
23
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancelation 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 Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel; and to the Xxxxxx Xxxxxxx & Co.
Incorporated General Counsel (fax no.: (000) 000-0000) and confirmed to the
General Counsel, Xxxxxx Xxxxxxx & Co. Incorporated, at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: General Counsel; 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.
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. 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 Preliminary Final Prospectus.
"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.
24
"Carolina Group Companies" shall mean, collectively, Lorillard,
Inc., and each of its direct and indirect subsidiaries.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments thereto
and any Rule 462(b) Registration Statement 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.
"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 Texas Gas Transmission,
LLC.
"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, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
25
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
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.
Very truly yours,
Loews Corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
By: Citigroup Global Markets, Inc.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Director
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
-------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
By: Citigroup Global Markets, Inc.
By:
-------------------------------
Name:
Title:
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
For themselves and the other
several Underwriters named in
Schedule I 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
---------------------------------------
December 7, 2004
Citigroup Global Markets, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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 Citigroup Global Markets, Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated, 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,
2
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
Citigroup Global Markets, Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
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,
EXHIBIT B
Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
[Subject to Opinion Committee Review]
December [ ], 2004
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
as Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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 December 7, 2004 (the "Underwriting Agreement"), between you, as
representatives of the several Underwriters named therein (the
"Underwriters"), and the Company, relating to the sale by the Company to the
Underwriters of 10,000,000 shares (the "Securities") of the Company's Carolina
Group stock, par value $0.01 per share (the "Carolina Group stock").
This opinion is being furnished 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:
(i) the registration statement on Form S-3 (File No.
333-104759) of the Company relating to the Securities and
other securities of the Company filed 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 and the order declaring such registration statement
effective on May 6, 2003 (such registration statement, as so
2
declared effective on May 6, 2003, being hereafter referred
to as the "Registration Statement");
(ii) the prospectus, dated May 6, 2003 (the "Base
Prospectus"), relating to the offering of securities of the
Company, which forms a part of and is included in the
Registration Statement;
(iii) the prospectus supplement, dated December 7, 2004
(the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus"), relating to the offering of
the Securities;
(iv) the documents 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");
(v) an executed copy of the Underwriting Agreement;
(vi) a specimen certificate evidencing the Carolina Group
stock;
(vii) the Restated Certificate of Incorporation of the
Company, as certified by the Secretary of State of the State
of Delaware (the "Certificate of Incorporation");
(viii) the By-laws of the Company, as certified by Xxxx
X. Xxxxxx, Secretary of the Company (the "By-laws");
(ix) the Carolina Group policy statement, as certified by
Xxxx X. Xxxxxx, Secretary of the Company (the "Policy
Statement");
(x) resolutions of the Board of Directors of the Company,
adopted [ ], 2004 and resolutions of the Securities
Committee thereof, adopted [ ], 2004, in each case as
certified by Xxxx X. Xxxxxx, Secretary of the Company;
(xi) 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");
(xii) the certificate of Xxxx X. Xxxxxx, Senior Vice
President, General Counsel and Secretary of the Company,
dated the date hereof, a copy of which is attached as Exhibit
B hereto (the "Secretary's Certificate");
(xiii) a certificate, dated [ ], 2004, and a
facsimile bringdown thereof, dated [ ], 2004, from the
Secretary of the State of Delaware as to the Company's
existence and good standing in such jurisdiction (the
"Delaware Certificates");
3
(xiv) a certificate, dated [ ], 2004, and a facsimile
bringdown thereof, dated [ ], 2004, 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
(xv) an executed copy of the Company's Supplement Listing Application
to the New York Stock Exchange, Inc. (the "NYSE") with respect to the
Securities and the acknowledgment of authorization thereof by 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 described below.
The opinions set forth below are subject to the following further
qualifications, assumptions and limitations:
(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 opinion in paragraph 5 below, we have assumed
that the certificate evidencing the Securities will be manually 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 letter to such effect received by the Company from a representative of the
NYSE.
4
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.
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.
5
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.
This letter is furnished only to you and is solely for your benefit in
connection with the closing under the Underwriting Agreement occurring today.
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 purpose, including any other person that
acquires Securities or that seeks to assert your rights in respect of this
letter (other than your successor 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
Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
December [ ], 2004
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
as Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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 December 7, 2004 (the "Underwriting Agreement"), between you, as
representatives of the several Underwriters named therein (the
"Underwriters"), and the Company, relating to the sale by the Company to the
Underwriters of 10,000,000 shares (the "Securities") of the Company's Carolina
Group stock, par value $0.01 per share (the "Carolina Group stock").
This letter is being furnished 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. 333-104759) of the Company relating to the Securities
and other securities of the Company filed 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 and the order declaring such registration statement
effective on May 6, 2003 (such registration statement, as so declared
effective on May 6, 2003, being hereinafter referred to as the "Registration
Statement") and (i) the prospectus, dated May 6, 2003 (the "Base Prospectus"),
relating to the offering of securities of the Company, which forms a part of
and is included in the
2
Registration Statement and (ii) the prospectus supplement, dated December 7,
2004 (the "Prospectus Supplement" and, together with the Base Prospectus and
the Incorporated Documents (as defined below), the "Prospectus"), relating to
the offering of the Securities. We also have reviewed the documents 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. The Registration Statement was declared effective under
the Securities Act at 10:00 a.m., on May 6, 2003, and we have been orally
advised 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.
The Prospectus Supplement has been filed in the manner and within the time
period required by Rule 424(b) of the General Rules and Regulations (the
"Rules and Regulations") under the Securities Act.
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 Underwriters and Cravath, Swaine & Xxxxx LLP,
counsel for the Underwriters, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed. We did not
participate in the preparation of the Registration Statement, the Base
Prospectus or 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 Statements or the Prospectus 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.
Subject to the foregoing, we confirm to you that, on the basis of
the information we gained in the course of performing the services referred to
above, (i) the Registration Statement, as of the date of the filing of the
Company's 2003 Annual Report on Form 10-K/A (the "Form 10-K/A") and as of
December 7, 2004, 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 the date of the
filing of the 10K/A and as of December 7, 2004 contained an 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
3
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 exhibits to the
Registration Statement).
This letter is furnished only to you and is solely for your benefit
in connection with the closing under the Underwriting Agreement occurring
today. 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 purpose, including any other
person that acquires Securities or that seeks to assert your rights in respect
of this letter (other than your successor 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 D
[Letterhead of Lorillard]
[Date]
[Underwriters]
Ladies and Gentlemen:
I am Vice President, 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 10,000,000 shares of Carolina Group Stock, par value $0.01 per share (the
"Shares") of Parent pursuant to the Underwriting Agreement, dated December 7,
2004, 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 the Registration Statement on Form S-3 (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"), and the prospectus supplement dated December 7, 2004,
(such prospectus supplement, together with the basic prospectus dated May 6,
2003, and the documents incorporated by reference therein, being hereinafter
called the "Prospectus"), filed by Parent pursuant to Rule 424(b) of the rules
and regulations of the Securities and Exchange Commission (the "Commission")
under the Act.
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 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
5
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/A for the
year ended December 31, 2004 ("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 21. 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 ended September 30, 2004
("Quarterly Report") under the headings "Notes to
Consolidated Condensed Financial Statements -- Note 14.
Legal Proceedings -- Tobacco Related" and "Legal Proceedings
-- 2. Tobacco Related," when considered in their entirety,
6
incorporated by reference into the Registration Statement
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 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
Prospectus, all outstanding shares of capital stock of the
subsidiaries of Lorillard, Inc. are owned by Lorillard, Inc.
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
7
operate its properties and conduct its business as described
in 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 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 21 to the Consolidated Financial
Statements in the Annual Report and Note 14. 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, or that the Prospectus, (except for the financial statements,
other than the portions of Note 21 to the Consolidated Financial Statements in
the Annual Report and Note 14. 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 the date
hereof 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.
Very truly yours,
EXHIBIT E
[Form of Opinion Shook, Hardy & Bacon LLP]
[Date]
[Underwriters]
Ladies and Gentlemen:
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 10,000,000 shares of
common stock, par value $0.01 per share (the "Carolina Group Stock") of Parent
--------------------
pursuant to the Underwriting Agreement, dated December 7, 2004, 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 the Registration Statement on Form S-3, including the
documents incorporated by reference therein (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"), and the prospectus supplement dated December 7, 2004 (such
---
prospectus supplement, together with the basic prospectus dated May 6, 2003,
and the documents incorporated by reference therein, is referred to as the
"Prospectus"), filed by Parent pursuant to Rule 424(b) of the rules
----------
and regulations of the Securities and Exchange Commission (the "Commission")
----------
under the Act.
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:
A. The Parent's Annual Report on Form 10-K/A for the year
ended December 31, 2003 ("Annual Report") in (i) "Part I. Item 3.
Legal Proceedings. 2. Tobacco Related;" (ii) "Notes to Consolidated
Financial Statements. Note 21. Legal Proceedings. Tobacco Related" in
the paragraph subheadings captioned "Product Liability,"
"Conventional Product Liability Cases," "Flight Attendant Cases,"
"Class Action
9
Cases," "Reimbursement Cases," "Contribution Claims"
and "Filter Cases;" (iii) "Notes to Consolidated Financial
Statements. Note 21. 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 or cigarette
smuggling 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 21 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/A for the
year ended December 31, 2003 ("Annual Report") in (i) "Part I.
Item 3. Legal Proceedings. 2. Tobacco Related"; (ii) "Notes to
Consolidated Financial Statements. Note 21. Legal Proceedings.
Tobacco Related" in the paragraph subheadings captioned
"Product Liability," "Conventional Product Liability Cases,"
"Flight Attendant Cases," "Class Action Cases," "Reimbursement
Cases," "Contribution Claims" and "Filter Cases;" (iii) "Notes
to Consolidated Financial Statements. Note 21. 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 September 30, 2004 ("Quarterly Report") in (i)
"Notes to Consolidated Condensed Financial Statements. Note
14. Legal Proceedings. Tobacco Related Product Liability
Litigation" in the paragraph subheadings captioned
"Conventional Product Liability Cases," "Flight Attendant
Cases," "Class Action Cases," "Reimbursement Cases,"
"Contribution Claims" and "Filter Cases;" (ii) "Notes to
Consolidated Financial Statements. Note 21. Legal Proceedings.
Other Tobacco-Related" in the paragraph subheading captioned
"Reparation Cases;" and (iii) "Part II. Other Information.
Item 1. Legal
10
Proceedings. 2. Tobacco Related" in the
paragraph subheadings captioned "Class Actions" and
"Reimbursement Cases";
as incorporated by reference into the Prospectus that describe cigarette and
chewing tobacco product liability lawsuits or cigarette smuggling lawsuits
that are included in the SHB Cases as they relate to 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 21 to the
Consolidated Financial Statements in the Annual Report and Note 14 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 2997 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 or
the Prospectus and take no responsibility therefor, except as and to the
extent set forth in paragraph 1 above, subject to the qualifications and
limitations set forth herein. We confirm that we have read the Prospectus 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"), 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 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.
11
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 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 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); and (ii) 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 21 to
the Consolidated Financial Statements in the Annual Report and Note 14 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 to you in connection with the above
described transactions and we 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
12
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]
[Date]
[Underwriters]
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 10,000,000 shares of Carolina Group Stock, par value $0.01
per share of the Parent pursuant to the Underwriting Agreement, dated December
7, 2004, 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 the Registration Statement on Form S-3 (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective, being hereinafter called the
"Registration Statement") filed by the Parent under the Securities Act of
1933, as amended (the "Act"), and the prospectus supplement dated December 7,
2004, (such prospectus supplement, together with the basic prospectus dated
May 6, 2003, and the documents incorporated by reference therein, being
hereinafter called the "Prospectus"), filed by the Parent pursuant to Rule
----------
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Act. We have not independently reviewed or
verified the accuracy, completeness or fairness of any statements made or
included in the Registration Statement or the Prospectus except as and to the
extent set forth in this opinion and we, therefore, take no responsibility for
any such statements.
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 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/A for the year ended
December 31, 2003 (the "Annual Report") under the headings
"Legal Proceedings -- Tobacco
2
Related" and "Notes to Consolidated Financial Statements -- Note
21. 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 September 30, 2004("Quarterly
Report") under the headings "Notes to Consolidated Condensed
Financial Statements -- Note 14. Legal Proceedings -- Tobacco
Related" and "Legal Proceedings -- 2. Tobacco Related"
incorporated by reference into the Registration Statement 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
or 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 [ ], 2004.
Very truly yours,
EXHIBIT G
[Form of Opinion Xxxxxxxxx Traurig LLP]
[Date]
[Underwriters]
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 10,000,000 shares of Carolina Group Stock, par value $0.01
per share of the Parent pursuant to the Underwriting Agreement, dated December
7, 2004, 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 the Registration Statement on Form S-3 (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective, being hereinafter called the
"Registration Statement") filed by the Parent under the Securities Act of
1933, as amended (the "Act"), and the prospectus supplement dated December 7,
2004, (such prospectus supplement, together with the basic prospectus dated
May 6, 2003, and the documents incorporated by reference therein, being
hereinafter called the "Prospectus"), filed by the Parent pursuant to Rule
----------
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Act. We have not independently reviewed or
verified the accuracy, completeness or fairness of any statements made or
included in the Registration Statement or the Prospectus except as and to the
extent set forth in this opinion and we, therefore, take no responsibility for
any such statements.
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 seem 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:
2
1. To the best of our knowledge, the statements set forth in the
Parent's Annual Report on Form 10-K/A for the year ended
December 31, 2003 (the "Annual Report") under the headings
"Legal Proceedings -- Tobacco Related" and "Notes to
Consolidated Financial Statements -- Note 21. 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 September 30, 2004 ("Quarterly Report") under the
headings "Notes to Consolidated Condensed Financial Statements
-- Note 14. Legal Proceedings -- Tobacco Related" and "Legal
Proceedings -- 2. Tobacco Related" incorporated by reference
into the Registration Statement 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 or 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 [ ]. We expressly disavow any
obligation to update this opinion as to any events occurring after [ ], 2004.
Very truly yours,
EXHIBIT H
[Form of Opinion of Weil, Gotshal & Xxxxxx]
[Date]
[Underwriters]
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 antitrust 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 10,000,000 shares of
Carolina Group Stock, par value $0.01 per share of the Parent pursuant to the
Underwriting Agreement, dated December 7, 2004, between you and the Parent
(the "Underwriting Agreement"). The letter is being delivered to you pursuant
to Section 6(h) of the Underwriting Agreement.
We have examined the Registration Statement on Form S-3 (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective, being hereinafter called the
"Registration Statement") filed by the Parent under the Securities Act of
1933, as amended (the "Act"), and the prospectus supplement dated December 7,
2004, (such prospectus supplement, together with the basic prospectus dated
May 6, 2003, and the documents incorporated by reference therein, being
hereinafter called the "Prospectus"), filed by the Parent pursuant to Rule
----------
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Act. We have not independently reviewed or
verified the accuracy, completeness or fairness of any statements made or
included in the Registration Statement or the Prospectus except as and to the
extent set forth in this opinion and we, therefore, take no responsibility for
any such statements.
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/A for the year ended December
31, 2003
2
(the "Annual Report") under the heading "Notes to
Consolidated Financial Statements -- Note 21 Legal Proceedings --
Tobacco Related" and Exhibit 99.01 to the Annual Report and in the
Parent's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004 under the heading "Notes to Consolidated
Condensed Financial Statements -- Note 14. Legal Proceedings --
Tobacco Related," incorporated by reference into the Registration
Statement and the Prospectus, when considered in their entirety,
constitute a complete and accurate summary, in all material
respects, of matters involving actual or threatened antitrust
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 or
Prospectus, nor are we predicting the outcome of any pending or
threatened litigation.
We expressly disavow any obligation to update this opinion as to any
events occurring after [ ], 2004.
Very truly yours,
SCHEDULE I
----------
Number of
Underwriters Securities to be Purchased
------------ --------------------------
Citigroup Global Markets Inc. 5,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 5,000,000
Total . . . . . . . . . . 10,000,000
