Loews Corporation 21,000,000 Shares Common Stock ($1.00 par value) Underwriting Agreement
Exhibit
10.1
EXECUTION
VERSION
Loews
Corporation
21,000,000
Shares
Common
Stock
($1.00
par value)
Underwriting
Agreement
To
the
Representatives
named
in
Schedule I hereto
of
the
several Underwriters named
in
Schedule II hereto
Ladies
and Gentlemen:
Xxxx
X.
Xxxxx (the “Selling Stockholder”) proposes to sell to the several underwriters
named in Schedule II hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, 21,000,000 shares of Loews
Common Stock, $1.00 par value (“Loews Common Stock”), of Loews Corporation, a
corporation organized under the laws of Delaware (the “Company”) (said shares to
be sold by the Selling Stockholder being hereinafter called the “Securities”).
To the extent there are no additional Underwriters listed on Schedule II other
than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms “amend”, “amendment” or “supplement” with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing
of
any document under the Exchange Act after the Effective Date of the Registration
Statement, or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 20 hereof.
1.
Representations
and Warranties.
(i) The
Company represents and warrants to, and agrees with, each Underwriter as set
forth below in this Section 1.
2
(a)
The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related basic prospectus, for
registration under the Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. The Company may have filed with
the Commission, as part of an amendment to the Registration Statement or
pursuant to Rule 424(b), one or more Preliminary Final Prospectuses, each of
which has previously been furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus supplement shall
contain all information required by the Act and the rules thereunder, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time, will
be
included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b)
On
the
Effective Date, the Registration Statement did or will, and when the Final
Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined herein), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the Registration
Statement did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to
make the statements therein not misleading; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement date, the
Final Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided,
however,
that
the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement
or
the Final Prospectus (or any supplement thereto), it being understood and agreed
that the only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 8(c)
hereof.
(c)
The
Disclosure Package, when taken together as a whole, does not contain any untrue
statement of a material fact or omit to state any material fact
3
necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading. The preceding sentence does not apply
to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8(c)
hereof.
(d)
(i)
At
the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3)
of
the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Securities in reliance on the exemption in Rule 163, the Company
was a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to
pay the fees required by the Commission relating to the Securities within the
time required by Rule 456(b)(1) without regard to the proviso therein relating
to the four-business day extension to the payment deadline and otherwise in
accordance with Rules 456(b) and 457(r).
(e)
(i)
At
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona
fide
offer
(within the meaning of Rule 164(h)(2)) relating to the Securities, the Company
was not and is not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405 that it
is
not necessary that the Company be considered an Ineligible Issuer.
(f)
Each
Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed to be a
part
thereof that has not been superseded or modified. The foregoing sentence does
not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section
8(c)
hereof.
(g)
Each
of
the Company and its Material Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate power
and
authority to own or lease, as the case may be, and to operate its properties
and
conduct its business as described in the Disclosure Package and the Final
Prospectus, and other than as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, is duly qualified
to
do
4
business
as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification.
(h)
All
the
outstanding shares of capital stock of each Material Subsidiary have been duly
and validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Disclosure Package and the Final
Prospectus, all outstanding shares of capital stock of the Material Subsidiaries
are owned by the Company either directly or through wholly owned subsidiaries
free and clear of any security interests, claims, liens or encumbrances, except
where the existence of any such security interest, claim, lien or encumbrance,
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect.
(i)
The
Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Final Prospectus; the capital stock of the Company conforms
in
all material respects to the description thereof contained in the Disclosure
Package and the Final Prospectus; the Securities have been duly and validly
authorized and issued and are fully paid and nonassessable; the Securities
are
duly listed, and admitted and authorized for trading on the New York Stock
Exchange; the certificates for the Securities are in valid and sufficient form;
the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities; and,
except as set forth in the Disclosure Package and the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding.
(j)
There
is
no franchise, contract or other document of a character required to be described
in the Registration Statement, the Disclosure Package or the Final Prospectus,
or to be filed as an exhibit thereto, which is not described or filed as
required.
(k)
This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms (except as rights to indemnification and contribution
hereunder may be limited by applicable law and subject, as to the enforcement
of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or
other laws affecting creditors’ rights generally from time to time in effect and
to general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(l)
The
Company is not and, after giving effect to the offering and sale of the
Securities by the Selling Stockholder, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended.
(m)
No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required to be obtained by the Company in
5
connection
with the transactions contemplated herein, except such as have been or will
be
obtained under the Act and the Exchange Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner contemplated
herein and in the Disclosure Package and the Final Prospectus.
(n)
Neither
the sale of the Securities by the Selling Stockholder 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.
(o)
No
holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(p)
The
consolidated historical financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Final Prospectus,
the
Disclosure Package and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and the Exchange Act and
have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the
caption “Selected Financial Data” in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2005 (the “Annual Report”) fairly present in all
material respects, on the basis stated in the Annual Report, the information
included therein.
(q)
No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge
of
the Company, threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation of
any
of the transactions contemplated hereby or (ii) could reasonably be expected
to
have a Material Adverse Effect except, in the case of (i) and (ii), as set
forth
in or
6
contemplated
in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(r)
Except
as
could not reasonably be expected to have a Material Adverse Effect, each of
the
Company and each of its Material Subsidiaries owns or leases all such properties
as are necessary to the conduct of its operations as presently
conducted.
(s)
Neither
the Company nor any subsidiary is in violation or default of (i) any provision
of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound
or
to which its property is subject (except in any case in which such violation
or
default could not reasonably be expected to have a Material Adverse Effect,
and
except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto)), or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties,
as
applicable (except in any case in which such violation or default could not
reasonably be expected to have a Material Adverse Effect, and except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto)).
(t)
Deloitte
& Touche LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries and delivered their reports with respect
to
the audited consolidated financial statements and schedules included or
incorporated by reference in the Disclosure Package and the Final Prospectus,
are independent registered public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and regulations
thereunder.
(u)
There
are
no transfer taxes or other similar fees or charges under Federal law or the
laws
of any state, or any political subdivision thereof, required to be paid by
the
Company in connection with the execution and delivery of this Agreement or
the
sale by the Selling Stockholder of the Securities.
(v)
Except
as
could not reasonably be expected to have a Material Adverse Effect, and except
as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto), no labor problem or dispute
with the employees of the Company or any of its Material Subsidiaries exists
or,
to the Company’s knowledge, is threatened or imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any
of
its or its Material Subsidiaries’ principal suppliers, contractors or
customers.
(w)
No
subsidiary of the Company is currently prohibited, directly or indirectly,
from
paying any dividends to the Company, from making any other
7
distribution
on such subsidiary’s capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in or contemplated by the Disclosure Package and
the Final Prospectus.
(x)
The
Company and its Material Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective businesses,
except where the failure to possess such a license, certificate, permit and
other authorization could not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect, and neither the Company nor any
such
subsidiary has received any notice of proceedings relating to the revocation
or
modification of any such certificate, authorization or permit which, singly
or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
could reasonably be expected to have a Material Adverse Effect, except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(y)
Except
as
disclosed in the Disclosure Package and the Final Prospectus, the Company has
not taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under
the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
(z)
The
Company and its Material Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating
to
the protection of human health and safety, the environment or hazardous or
toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability could not,
individually or in the aggregate, have a Material Adverse Effect, and except
as
set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(aa)
The
Company and its Material Subsidiaries own, possess, license or have other rights
to use, on reasonable terms, all patents, patent applications, trade and service
marks, trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the “Intellectual Property”) necessary for the conduct of the
businesses of the Company and its Material Subsidiaries as now conducted or
as
proposed in the Disclosure Package and the Final Prospectus to be conducted.
Except as could not reasonably be expected to have a Material Adverse Effect,
to
8
the
Company’s knowledge: (a) there are no rights of third parties to any such
Intellectual Property; (b) there is no material infringement by third parties
of
any such Intellectual Property; (c) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging
the rights of the Company or any of its Material Subsidiaries in or to any
such
Intellectual Property, and the Company and each of its Material Subsidiaries
is
unaware of any facts which would form a reasonable basis for any such claim;
(d)
there is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and the
Company and each of its Material Subsidiaries is unaware of any facts which
would form a reasonable basis for any such claim; and (e) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company or any of its Material Subsidiaries infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company and each of its Material
Subsidiaries is unaware of any other fact which would form a reasonable basis
for any such claim.
(bb)
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.
(cc)
Except
as
disclosed in the Registration Statement, the Disclosure Package and the Final
Prospectus, the Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15 under the Exchange Act) that are effective in
all
material respects in providing reasonable assurance that information required
to
be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the Commission, including, without
limitation, controls and procedures designed to ensure that information required
to be disclosed by the Company in the reports that it files or submits under
the
Exchange Act is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and its principal
financial officer or officers, as appropriate to allow timely decisions
regarding required disclosure. Except as disclosed in the Registration
Statement, the Disclosure Package and the Final Prospectus, the Company
maintains a system of internal control over financial reporting sufficient
to
provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability
for
assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
9
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.
(ii)
The
Selling Stockholder represents and warrants to, and agrees with, each
Underwriter that:
(a)
This
Agreement has been duly executed and delivered by the Selling
Stockholder.
(b)
The
Selling Stockholder is the record and beneficial owner of the Securities to
be
sold by it hereunder free and clear of all liens, encumbrances, equities and
claims and has duly endorsed such Securities in blank, and, assuming that each
Underwriter acquires its interest in the Securities it has purchased from the
Selling Stockholder without notice of any adverse claim (within the meaning
of
Section 8-105 of the New York Uniform Commercial Code (“UCC”)), each Underwriter
that has purchased such Securities delivered on the Closing Date to The
Depository Trust Company or other securities intermediary by making payment
therefor as provided herein, and that has had such Securities credited to the
securities account or accounts of such Underwriters maintained with The
Depository Trust Company or such other securities intermediary will have
acquired a security entitlement (within the meaning of Section 8-102(a)(17)
of
the UCC) to such Securities purchased by such Underwriter, and no action based
on an adverse claim (within the meaning of Section 8-105 of the UCC) may be
asserted against such Underwriter with respect to such Securities.
(c)
The
Selling Stockholder 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.
(d)
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the consummation by the Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained under
the Act and such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained.
(e)
Neither
the sale of the Securities being sold by the Selling Stockholder nor the
consummation of any other of the transactions herein contemplated by the Selling
Stockholder or the fulfillment of the terms hereof by the Selling Stockholder
will conflict with, result in a breach or violation of, or constitute a default
under any law or the terms of any agreement or instrument to which the Selling
Stockholder is a party or bound, or any judgment, order or decree applicable
to
the Selling Stockholder of any court, regulatory body,
administrative
10
agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder.
(f)
The
Selling Stockholder has no reason to believe that the representations and
warranties of the Company contained in this Section 1 are not true and correct,
is familiar with the Disclosure Package and the Registration Statement and
has
no knowledge of any material fact, condition or information not disclosed in
the
Disclosure Package and the Final Prospectus which has adversely affected or
may
adversely affect the business of the Company or any of its subsidiaries; and
the
sale of Securities by such Selling Stockholder pursuant hereto is not prompted
by any information concerning the Company or any of its subsidiaries which
is
not set forth in the Disclosure Package and the Final Prospectus or any
amendment or supplement thereto.
(g)
In
respect of any statements in or omissions from the Registration Statement,
the
Final Prospectus, any Preliminary Final Prospectus or any Free Writing
Prospectus or any amendment or supplement thereto used by the Company or any
Underwriter, as the case may be, made in reliance upon and in conformity with
information furnished in writing to the Company or to the Underwriters by the
Selling Stockholder specifically for use in connection with the preparation
thereof, the Selling Stockholder hereby makes the same representations and
warranties to each Underwriter as the Company makes to such Underwriter under
paragraphs (i)(b), (i)(c) and (i)(f) of this Section.
Any
certificate signed by the Selling Stockholder 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 Selling
Stockholder, as to matters covered thereby, to each Underwriter.
2.
Purchase
and Sale.
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Selling Stockholder agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Selling Stockholder, at the purchase price set forth in Schedule I
hereto, the number of Securities set forth opposite such Underwriter’s name in
Schedule II hereto.
3.
Delivery
and Payment.
Delivery
of and payment for the Securities shall be made on the date and at the time
specified in Schedule I hereto, or at such time on such later date not more
than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Selling Stockholder 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 Selling Stockholder by wire transfer
payable in same-day funds to an account specified by the Selling Stockholder.
Delivery of the Securities shall be made through the
11
facilities
of The Depository Trust Company unless the Representatives shall otherwise
instruct.
The
Selling Stockholder will pay all applicable state transfer taxes, if any,
involved in the transfer to the several Underwriters of the Securities to be
purchased by them from the Selling Stockholder and the respective Underwriters
will pay any additional stock transfer taxes involved in further
transfers.
4.
Offering
by Underwriters.
It is
understood that the several Underwriters propose to offer the Securities for
sale to the public as set forth in the Final Prospectus.
5.
Agreements. (i)
The
Company agrees with the several Underwriters that:
(a)
Prior
to
the termination of the offering of the Securities, the Company will not file
any
amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. The Company will cause the Final Prospectus, properly completed, and
any
supplement thereto to be filed in a form approved by the Representatives (which
approval shall not be unreasonably withheld) with the Commission pursuant to
the
applicable paragraph of Rule 424(b) (without reliance on Rule 424(b)(8)) within
the time period therein prescribed and will provide evidence satisfactory to
the
Representatives of such timely filing. The Company will promptly advise the
Representatives (1) when the Final Prospectus, and any supplement thereto,
shall
have been filed (if required) with the Commission pursuant to Rule 424(b),
(2)
when, prior to termination of the offering of the Securities, any amendment
to
the Registration Statement shall have been filed or become effective, (3) of
any
request by the Commission or its staff for any amendment of the Registration
Statement, or for any supplement to the Final Prospectus or for any additional
information, (4) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any notice pursuant to
Rule 401(g)(2) of the Act that would prevent its use or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its reasonable best
efforts to prevent the issuance of any such stop order or the occurrence of
any
such suspension or prevention and, upon such issuance, occurrence or prevention,
to obtain as soon as possible the withdrawal of such stop order or relief from
such occurrence or prevention, including, if necessary, by filing an amendment
to the Registration Statement or a new registration statement and using its
reasonable best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
12
(b)
If
there
occurs an event or development as a result of which the Disclosure Package
would
include an untrue statement of a material fact or would omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will notify promptly
the Representatives so that any use of the Disclosure Package may cease until
it
is amended or supplemented.
(c)
If,
at
any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement
may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue statement of
a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made
not misleading, or if it shall be necessary to amend the Registration Statement,
file a new registration statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, including
in connection with use or delivery of the Final Prospectus, the Company promptly
will (1) notify the Representatives of such event, (2) prepare and file with
the
Commission, subject to the second sentence of paragraph (a) of this Section
5,
an amendment or supplement or new registration statement which will correct
such
statement or omission or effect such compliance, (3) use its reasonable best
efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any
disruption in use of the Final Prospectus and (4) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
(d)
As
soon
as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(e)
The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies
of
each Preliminary Final Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may
reasonably request.
(f)
The
Company will use its reasonable best efforts to arrange, if necessary, for
the
qualification of the Securities for sale under the laws of such jurisdictions
as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided
that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of
the
13
offering
or sale of the Securities, in any jurisdiction where it is not now so subject
or
take any action which would subject the Company to taxation in any jurisdiction
where it is not already subject to taxation.
(g)
The
Company agrees that, unless it obtains the prior written consent of the
Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it obtains the prior written consent of the Company,
it
has not made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433; provided
that the prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in Schedule
III
hereto. Any such free writing prospectus consented to by the Representatives
or
the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (x) it has treated and will treat, as the case may
be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus
and
(y) it has complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record
keeping.
(h)
Except
as
disclosed in the Disclosure Package and the Final Prospectus, the Company will
not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under
the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(i)
The
Company agrees to pay or cause the Selling Stockholder to pay the costs and
expenses relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), the Basic Prospectus,
each Preliminary Final Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, the Basic Prospectus, each Preliminary Final Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates
for
the Securities; (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
14
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
and the Selling Stockholder of their respective obligations
hereunder.
The
provisions of this Section shall not supersede or otherwise affect any agreement
that the Company and the Selling Stockholder may otherwise have for the
allocation of such expenses between themselves.
(ii) The
Selling Stockholder agrees with the several Underwriters that:
(a)
During
the period commencing on the date hereof and ending 180 days after the date
hereof, the Selling Stockholder will not, directly or indirectly, without the
prior written consent of the Representatives, (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend or
otherwise transfer or dispose of any shares of Loews Common Stock or any
securities convertible into or exercisable or exchangeable for shares of Loews
Common Stock, (2) enter into any derivative, swap or other arrangement that
transfers to another party, in whole or in part, any of the economic
consequences of ownership of her holdings of Loews Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of securities, cash or otherwise, or (3) publicly announce an intention
to effect any such transaction; provided,
however,
that
the foregoing shall not prohibit or restrict (1) transactions involving
Loews Common Stock or other securities acquired in open market transactions
after the completion of the offering, (2) bona fide gifts under
circumstances where the donee agrees in writing to or is otherwise bound by
the
foregoing restrictions, (3) transfers incident to estate planning matters,
including, without limitation, transfers of Loews Common Stock to one or more
trusts for the benefit of the Selling Stockholder or members of her family
under
circumstances where the trustee agrees in writing to or is otherwise bound
by
the foregoing restrictions and (4) testamentary transfers and other transfers
made pursuant to the laws of descent and distribution.
(b)
The
Selling Stockholder 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.
(c)
The
Selling Stockholder will advise you promptly, and if requested by you, will
confirm such advice in writing, so long as delivery of a prospectus relating
to
the Securities by an Underwriter or dealer may be required under the Act, of
(i)
any material change in the Company’s condition (financial or
15
otherwise),
prospects, earnings, business or properties, (ii) any change in information
in
the Registration Statement, the Final Prospectus, any Preliminary Final
Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement
thereto relating to the Selling Stockholder or (iii) any new material
information relating to the Company or relating to any matter stated in the
Final Prospectus or any Free Writing Prospectus which comes to the attention
of
the Selling Stockholder.
(d)
The
Selling Stockholder represents that she has not prepared or had prepared on
her
behalf or used or referred to, and agrees that she will not prepare or have
prepared on her behalf or use or refer to, any Free Writing Prospectus, and
has
not distributed and will not distribute any written materials in connection
with
the offer or sale of the Securities.
6.
Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Securities shall be subject
to
the accuracy of the representations and warranties on the part of the Company
and the Selling Stockholder contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company and the Selling
Stockholder made in any certificates pursuant to the provisions hereof, to
the
performance by the Company and the Selling Stockholder of their respective
obligations hereunder and to the following additional conditions:
(a)
The
Final
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b) (without reliance on Rule 424(b)(8));
any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice
pursuant to Rule 401(g)(2) of the Act that would prevent its use shall have
been
issued and no proceedings for that purpose shall have been instituted or, to
the
Company’s knowledge, threatened.
(b)
The
Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx &
Xxxx, LLP, counsel for the Company, to have furnished to the Representatives
their opinion and letter, in each case dated the Closing Date and addressed
to
the Representatives, in the forms of Exhibit A and Exhibit B,
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,
16
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 Loews Common Stock.
(c)
The
Company shall have requested and caused Xxxx X. Xxxxxx, general counsel for
Loews Corporation, to have furnished his opinion, dated the Closing Date and
addressed to the Representatives in the form of Exhibit C.
(d)
The
Company shall have requested and caused Xxxxxx X. Xxxxxxxx, general counsel
for
Lorillard Tobacco Company, to have furnished his opinion, dated the Closing
Date
and addressed to the Representatives in the form of Exhibit D.
(e)
The
Selling Stockholder shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP,
counsel for the Selling Stockholder, to have furnished to the Representatives
their opinion dated the Closing Date and addressed to the Representatives in
the
form of Exhibit E.
(f)
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 sale of the
Securities, the Registration Statement, the Disclosure Package, the Final
Prospectus (together with any supplement thereto) and other related matters
as
the Representatives may reasonably require, and the Company and the Selling
Stockholder shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(g)
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, the Disclosure Package and
any
supplements or amendments thereto and this Agreement and that:
(i)
the
representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, provided,
however,
that if
any such representation or warranty is already qualified by materiality, such
representation or warranty as so qualified is true and correct in all respects
on and as of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
17
(ii)
no
stop
order suspending the effectiveness of the Registration Statement or any notice
pursuant to Rule 401(g)(2) of the Act that would prevent its use has been issued
and no proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened; and
(iii)
since
the
date of the most recent financial statements included or incorporated by
reference in the Final Prospectus (exclusive of any supplement thereto), there
has been no Material Adverse Effect, except as set forth in or contemplated
in
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(h)
The
Selling Stockholder shall have furnished to the Representatives a certificate,
signed by the Selling Stockholder, dated the Closing Date, to the effect that
the signer of such certificate has carefully examined the Registration
Statement, the Final Prospectus, the Disclosure Package and any supplements
or
amendments thereto and this Agreement, and that the representations and
warranties of the Selling Stockholder in this Agreement are true and correct
in
all material respects on and as of the Closing Date to the same effect as if
made on the Closing Date.
(i)
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, the
Disclosure Package and the Final Prospectus and reported on by them comply
as to
form in all material respects with the applicable accounting requirements of
the
Act and the Exchange Act and the related rules and regulations adopted by the
Commission;
(ii)
on
the
basis of a reading of the latest unaudited financial statements made available
by the Company and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the three-month period ended March
31, 2006 and as at March 31, 2006 carrying out certain specified procedures
(but
not an examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect to
the
comments set forth in such letter; a reading of the minutes of the meetings
of
the shareholders, directors and executive and audit committees of the Company
and its significant subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial
18
and
accounting matters of the Company and its subsidiaries as to transactions and
events subsequent to December 31, 2005, nothing came to their attention which
caused them to believe that:
(1)
any
unaudited financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus do not comply as to form in
all
material respects with applicable accounting requirements of the Act and with
the related rules and regulations adopted by the Commission with respect to
financial statements included or incorporated by reference in quarterly reports
on Form 10-Q under the Exchange Act; and said unaudited financial statements
are
not in conformity with generally accepted accounting principles applied on
a
basis substantially consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement and the
Final Prospectus;
(2)
with
respect to the period subsequent to March 31, 2006, there were any changes,
at a
specified date not more than five days prior to the date of the letter, in
the
long-term debt of the Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders’ equity of the Company as compared with
the corresponding amounts shown on the March 31, 2006 balance sheets included
or
incorporated by reference in the Registration Statement and the Final
Prospectus, or for the period from April 1, 2006 to such specified date
there were any decreases, as compared with the corresponding period in the
preceding year in net income of the Company and its subsidiaries or in operating
income of the Company and its subsidiaries, 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
19
Registration
Statement agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References
to the Final Prospectus in this paragraph (i) include any supplement thereto
at
the date of the letter.
(j)
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 (i) 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,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(k)
Prior
to
the Closing Date, the Company and the Selling Stockholder shall have furnished
to the Representatives such further information, certificates and documents
as
the Representatives may reasonably request.
(l)
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.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to
the Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company and the Selling Stockholder in writing or by
telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the
offices of Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing Date.
7.
Reimbursement
of Underwriters’ Expenses.
If the
sale of the Securities provided for herein is not consummated because any
condition to the
20
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 or the Selling Stockholder
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
or
cause the Selling Stockholder to reimburse the Underwriters severally through
the Representatives 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. If the Company is required to make any payments
to
the Underwriters under this Section 7 because of the Selling Stockholder’s
refusal, inability or failure to satisfy any condition to the obligations of
the
Underwriters set forth in Section 6, the Selling Stockholder shall reimburse
the
Company on demand for all amounts so paid.
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, the Final
Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof
or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b)
The
Selling Stockholder agrees to indemnify and hold harmless the Company, each
of
its directors, each of its officers who signs the Registration Statement, each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls the Company or any Underwriter 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
21
reference
to written information furnished to the Company by or on behalf of the Selling
Stockholder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Selling Stockholder may otherwise have.
(c)
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 and the Selling Stockholder, 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 and the Selling Stockholder
acknowledge that the statements set forth on Schedule I hereto 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.
(d)
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), (b) or (c) 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), (b) or (c) 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
22
indemnifying
party, (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(e)
In
the
event that the indemnity provided in paragraph (a), (b) or (c) of this Section
8
is unavailable to or insufficient to hold harmless an indemnified party for
any
reason, the Company, the Selling Stockholder and the Underwriters 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, the Selling
Stockholder 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, by the Selling Stockholder and by the Underwriters 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, the Selling Stockholder and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also
the relative fault of the Company, of the Selling Stockholder and of the
Underwriters 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 and/or by the Selling Stockholder shall be deemed to
be
equal to the total net proceeds from the offering (before deducting expenses)
received by the Selling Stockholder, 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, the Selling Stockholder or the Underwriters, 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, the Selling
Stockholder 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
23
paragraph
(e), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent
of an
Underwriter shall have the same rights to contribution as such Underwriter,
and
each person who controls the Company within the meaning of either the Act or
the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (e)
(f)
The
liability of the Selling Stockholder under the Selling Stockholder’s
representations and warranties contained in Section 1 hereof and under the
indemnity and contribution agreements contained in this Section 8 shall be
limited to an amount equal to the initial public offering price of the
Securities sold by the Selling Stockholder to the Underwriters. The Company
and
the Selling Stockholder may agree, as between themselves and without limiting
the rights of the Underwriters under this Agreement, as to the respective
amounts of such liability for which they each shall be responsible.
9.
Default
by an Underwriter.
If any
one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance
of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided,
however,
that in
the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not
be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter, the Selling
Stockholder 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, the Selling Stockholder and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
24
10.
Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company and the Selling Stockholder
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, of the Selling Stockholder 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, the Selling Stockholder or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section
8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12.
Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representatives, will be mailed, delivered or telefaxed to
the
Representatives
at the address set forth in Schedule I hereto;
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; or, if sent to the
Selling Stockholder, will be mailed, delivered or telefaxed to the
Selling Stockholder, in care of Xxxxx Xxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000 (fax no.: 000-000-0000).
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.
25
16.
Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
17.
Arms-length
Transaction.
The
Company, the Selling Stockholder and the Underwriters acknowledge and agree
that
(i) the purchase and sale of the Securities pursuant to this Agreement is an
arm’s-length commercial transaction between the Company and the Selling
Stockholder, on the one hand, and the Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary
of
the Company or the Selling Stockholder, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company or the Selling
Stockholder with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or the Selling Stockholder on other matters)
or
any other obligation to the Company or the Selling Stockholder except the
obligations expressly set forth in this Agreement and (iv) each of the Company,
the Selling Stockholder and the Underwriters has consulted its own legal and
financial advisors to the extent it deemed appropriate. The Company and the
Selling Stockholder agree that it will not claim that the Underwriters, or
any
of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to them, in connection with such transaction or the
process leading thereto.
18.
Integration.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company, the Selling Stockholder and the Underwriters, or
any
of them, with respect to the subject matter hereof other than, solely with
respect to the Company and the Selling Stockholder, the Letter Agreement, dated
as of May 25, 2006, between the Company and the Selling
Stockholder.
19.
Waiver
of Jury Trial.
The
Company, the Selling Stockholder and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right
to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
20.
Definitions.
The
terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Basic
Prospectus” shall mean the prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Effective Date, including any
documents incorporated by reference therein.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
26
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Basic Prospectus, as amended and supplemented to the
Execution Time, (ii) the other information, if any, identified in Schedule
IV
hereto, (iii) Issuer Free Writing Prospectuses, if any, identified in Schedule
III hereto, and (iv) any other Free Writing Prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of the Disclosure
Package.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or become effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together
with
the Basic Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Material
Adverse Effect” shall mean a material adverse effect on the financial condition,
earnings, business or properties of the Company and its subsidiaries, taken
as a
whole, whether or not arising from transactions in the ordinary course of
business.
“Material
Subsidiaries” shall mean CNA Financial Corporation, Lorillard, Inc., Lorillard
Tobacco Company, Loews Hotels Holding Corporation, Diamond Offshore Drilling,
Inc., and Boardwalk Pipelines Partners LP.
“Preliminary
Final Prospectus” shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus, including any documents incorporated
by
reference therein, together with the Basic Prospectus.
“Registration
Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits, financial statements and any documents incorporated
by reference therein and any prospectus supplement relating to the Securities
that is filed with the Commission pursuant to Rule 424(b) and deemed part of
such registration statement pursuant to Rule 430B, as
27
amended
at the Execution Time and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B”, and “Rule 433” refer to such rules under the
Act.
“Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule
405.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company, the Selling
Stockholder and the several Underwriters.
|
Very
truly yours,
|
||
|
By:
|
||
|
Xxxx
X. Xxxxx
|
||
[Signature
Page to the Underwriting Agreement]
|
Loews
Corporation
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[Signature
Page to the Underwriting Agreement]
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
|
By:
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
For
themselves and the other
several
Underwriters named in
Schedule
II to the foregoing
Agreement.
[Signature
Page to the Underwriting Agreement]
EXHIBIT
A
Opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
[Subject
to Opinion Committee Review]
|
May
31, 2006
|
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
Loews
Corporation - Public Offering of
|
|
|
|
Loews
common stock, par value $1.00 per
share
|
Ladies
and Gentlemen:
We
have
acted as special counsel to Loews Corporation, a Delaware corporation (the
"Company"), in connection with the Underwriting Agreement, dated May 25, 2006
(the "Underwriting Agreement"), among you (the "Underwriter"), the selling
stockholder named in the Underwriting Agreement (the "Selling Stockholder")
and
the Company, relating to the sale by the Selling Stockholder to the Underwriter
of 21,000,000 shares (the "Securities") of the Company's Loews common stock,
par
value $1.00 per share (the "Common Stock").
This
opinion is being furnished to you pursuant to Section 6(b) of the Underwriting
Agreement.
In
rendering the opinions set forth herein, we have examined and relied on
originals or copies of the following:
(a) the
registration statement on Form S-3 (File No. 333-132334) of the Company relating
to the Securities and other securities of the Company filed on March 10, 2006
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933 (the "Securities Act") allowing for delayed offerings
pursuant to Rule 415 under the Securities Act, including the Incorporated
Documents (as defined below) and the information deemed to be a part of the
registration statement as of the date hereof pursuant to Rule 430B of the
General Rules and Regulations under the Securities Act (such registration
statement,
at
the
time it became effective, being hereinafter referred to as the "Registration
Statement");
(b) the
prospectus, dated March 10, 2006 (the "Base Prospectus"), relating to the
offering of securities of the Company, which forms a part of and is included
in
the Registration Statement;
(c) the
prospectus supplement, dated May 25, 2006 (the "Final Prospectus Supplement"
and, together with the Base Prospectus and the Incorporated Documents, the
"Prospectus"), relating to the offering of the Securities;
(d) the
documents identified on Schedule I hereto filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934 and incorporated
by
reference into the Prospectus as of the date hereof (collectively, the
"Incorporated Documents");
(e) an
executed copy of the Underwriting Agreement;
(f) the
specimen certificate evidencing the Common Stock attached to the certificate
of
Xxxx X. Xxxxxx, Secretary of the Company, referenced in paragraph 4 below (the
"Specimen Certificate");
(g) the
Restated Certificate of Incorporation of the Company, as certified by the
Secretary of State of the State of Delaware (the "Certificate of
Incorporation");
(h) the
By-laws of the Company, as certified by Xxxx X. Xxxxxx, Secretary of the Company
(the "By-laws");
(i)
resolutions
of the Board of Directors of the Company, adopted on April 11, 2006, and
resolutions of the Special Committee thereof, adopted April 21, 2006 and May
23,
2006, in each case, as certified by Xxxx X. Xxxxxx, Secretary of the
Company;
(l) the
certificate of Xxxxx X. Xxxxx, Chief Executive Officer of the Company, and
Xxxxx
X. Xxxxxx, Chief Financial Officer of the Company, dated the date hereof and
the
certificate of Xxxxx X. Xxxxxx, dated the date hereof, a copy of which is
attached as Exhibit A hereto (the "Company's Certificates");
(m) 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");
(n) a
certificate, dated May 25, 2006, and a facsimile bringdown thereof, dated May
31, 2006, from the Secretary of State of the State of Delaware as to the
Company's existence and good standing in such jurisdiction (the "Delaware
Certificates"); and
(o) a
certificate, dated May 25, 2006, and a facsimile bringdown thereof, dated May
31, 2006, from the Department of State of the State of New York, certifying
that
the Company is authorized to do business in the State of New York (the "New
York
Certificates").
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
Certificates.
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;
and
(b) the
opinion set forth in paragraph 2 below is based solely upon the New York
Certificates.
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
Specimen Certificate complies in all material respects with the applicable
requirements of the Certificate of Incorporation and By-laws, the DGCL and
the
New York Stock Exchange.
6. 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 as a
result of the transactions contemplated by the Underwriting
Agreement.
7. The
statements in the Base Prospectus under the headings "Description of Loews
Capital Stock," insofar as such statements purport to summarize certain
provisions of the Certificate of Incorporation, the By-laws and the DGCL, fairly
summarize such provisions in all material respects.
8.
The
Underwriting Agreement has been duly authorized, executed and delivered by
the
Company.
9.
The
Company is not subject to registration and regulation as an "investment company"
as such term is defined in the Investment Company Act of 1940, as
amended.
This
opinion is furnished only to you and is solely for your benefit in connection
with the closing occurring today and the offering of the Securities, in each
case pursuant to the Underwriting Agreement. Without our prior written consent,
this opinion may not be used, circulated, quoted or otherwise referred to for
any other purpose or relied upon by, or assigned to, any other person for any
purpose, including any other person that acquires any Securities or that seeks
to assert your rights in respect of this opinion (other than your successors
in
interest by means of merger, consolidation, transfer of a business or other
similar transaction).
|
|
Very
truly yours,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Schedule
I
INCORPORATED
DOCUMENTS
|
1.
|
Annual
Report on Form 10-K of the Company for the year ended December 31,
2005.
|
|
2.
|
Quarterly
Report on Form 10-Q of the Company for the period ended March 31,
2006.
|
|
3.
|
Current
Report on Form 8-K of the Company filed with the Commission on January
11,
2006.
|
|
4.
|
Current
Report on Form 8-K of the Company filed with the Commission on January
31,
2006.
|
|
5.
|
Current
Report on Form 8-K of the Company filed with the Commission on February
16, 2006 (other than items 2.02 and 9.01, which are not incorporated
by
reference in the Prospectus).
|
|
6.
|
Current
Report on Form 8-K of the Company filed with the Commission on March
3,
2006.
|
|
7.
|
Current
Report on Form 8-K of the Company filed with the Commission on March
8,
2006.
|
|
8.
|
Current
Report on Form 8-K of the Company filed with the Commission on April
4,
2006.
|
|
9.
|
Current
Report on Form 8-K of the Company filed with the Commission on April
11,
2006.
|
|
10.
|
Current
Report on Form 8-K of the Company filed with the Commission on May
16,
2006.
|
Exhibit
A
Company’s
Certificates
Exhibit
B
Secretary’s
Certificate
EXHIBIT
B
Negative
Assurance Letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP
[Subject
to Opinion Committee Review]
|
May
31, 2006
|
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
Loews
Corporation - Public Offering of
|
|
|
|
Loews
common stock, par value $1.00 per
share
|
Ladies
and Gentlemen:
We
have
acted as special counsel to Loews Corporation, a Delaware corporation (the
"Company"), in connection with the Underwriting Agreement, dated May 25, 2006
(the "Underwriting Agreement"), among you (the "Underwriter"), the selling
stockholder named in the Underwriting Agreement (the "Selling Stockholder")
and
the Company, relating to the sale by the Selling Stockholder to the Underwriter
of 21,000,000 shares (the "Securities") of the Company's Loews common stock,
par
value $1.00 per share (the "Common Stock") of the Company.
This
letter is being furnished to you pursuant to Section 6(b) of the Underwriting
Agreement.
In
the
above capacity, we have reviewed the registration statement on Form S-3 (File
No. 333-132334) of the Company relating to the Securities and other securities
of the Company filed on March 10, 2006 with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (the "Securities
Act") allowing for delayed offerings pursuant to Rule 415 under the Securities
Act, including the Incorporated Documents (as defined below) and the information
deemed to be a part of the registration statement as of the date hereof pursuant
to Rule 430B of the General Rules and Regulations under the Securities Act
(the
"Rules and Regulations") (such registration statement, at the time it became
effective, being hereinafter referred to as the "Registration Statement"),
and
(i) the prospectus, dated March 10, 2006 (the "Base Prospectus"), relating
to
the offering of securities of the Company, which forms a part of and is included
in the Registration Statement and (ii) the prospectus supplement, dated May
25,
2006 (the “Prospectus Supplement”
and,
together with the Base Prospectus and the Incorporated Documents, the
"Prospectus"), relating to the offering of the Securities, in the form filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations.
We also
have reviewed the documents identified on Schedule I hereto filed by the Company
pursuant to the Securities Exchange Act of 1934 and incorporated by reference
into the Prospectus Supplement as of the date hereof (collectively, the
"Incorporated Documents"), the "issuer free writing prospectus" (as defined
in
Rule 433(h)(1) of the Rules and Regulations) identified on Schedule II hereto
relating to the Securities (the "Free Writing Prospectus") and such other
documents as we deemed appropriate. Assuming the accuracy of the representations
and warranties of the Company set forth in Section 1(d) of the Underwriting
Agreement and that the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act that would prevent the use
of
the Registration Statement, the Registration Statement became effective upon
filing with the Commission pursuant to Rule 462 of the Securities Act, and
we
have been orally advised by the Commission that (i) no stop order suspending the
effectiveness of the Registration Statement has been issued and (ii) no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
In
addition, we have participated in conferences with officers and other
representatives of the Company, the general counsel of the Company,
representatives of the independent accountants of the Company, representatives
of the Underwriter, Cravath, Swaine & Xxxxx LLP, counsel for the Underwriter
and Xxxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, at which
the contents of the Registration Statement and the Prospectus, the General
Disclosure Package (as defined below) and related matters were discussed. We
did
not participate in the preparation of the Incorporated Documents but have,
however, reviewed such documents and discussed the business and affairs of
the
Company with officers and other representatives of the Company in the course
of
the conferences referred to above. We do not pass upon, or assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration Statement, the
Prospectus or the General Disclosure Package and have made no independent check
or verification thereof (except to the limited extent referred to in paragraph
7
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 Common
Stock.
On
the
basis of the foregoing, (i) the Registration Statement, as of March 10, 2006
and
as of the date of the Prospectus Supplement, and the Prospectus, as of the
date
of the Prospectus Supplement, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the Rules and Regulations (except that in each case we do not express any
view as to the financial statements, schedules and other financial information
included or incorporated by reference therein or excluded therefrom or the
exhibits to the Registration Statement) and (ii) no facts have come to our
attention that have caused us to believe that the Registration Statement, as
of
March 10, 2006 and as of the date of the Prospectus Supplement, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus Supplement
and as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading (except that in each case we do not express any view as
to
the financial statements, schedules and other financial information included
or
incorporated by reference therein or excluded therefrom or the statements
contained in the exhibits to the Registration Statement). In addition, on the
basis of the foregoing, no facts have come to our attention that have caused
us
to believe that the General Disclosure Package, as of the Applicable Time,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that we do
not
express any view as to the financial statements, schedules and other financial
information included or incorporated by reference therein or excluded therefrom
or the statements contained in the exhibits to the Registration
Statement.
As
used
herein, "Applicable Time" means 5:00 p.m. (Eastern time) on May 25, 2006 and
"General Disclosure Package" means the Free Writing Prospectus, the Incorporated
Documents and the Base Prospectus, all considered together.
In
addition, based on the foregoing, we confirm to you that the Prospectus
Supplement has been filed with the SEC within the time period required by Rule
424 of the Rules and Regulations.
This
letter is furnished only to you and is solely for your benefit in connection
with the closing occurring today and the offering of the Securities, in each
case pursuant to the Underwriting Agreement. Without our prior written consent,
this letter may not be used, circulated, quoted or otherwise referred to for
any
other purpose or relied upon by, or assigned to, any other person for any
purpose, including any other person that acquires Securities or that seeks
to
assert
your
rights in respect of this letter (other than your successors in interest by
means of merger, consolidation, transfer of a business or other similar
transaction).
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Very
truly yours,
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Schedule
I
INCORPORATED
DOCUMENTS
1. Annual
Report on Form 10-K of the Company for the year ended December 31,
2005.
2. Quarterly
Report on Form 10-Q of the Company for the period ended March 31, 2006.
3. Current
Report on Form 8-K of the Company filed with the Commission on January 11,
2006.
4. Current
Report on Form 8-K of the Company filed with the Commission on January 31,
2006.
5. Current
Report on Form 8-K of the Company filed with the Commission on February 16,
2006
(other than items 2.02 and 9.01, which are not incorporated by reference in
the
Prospectus).
6. Current
Report on Form 8-K of the Company filed with the Commission on March 3,
2006.
7. Current
Report on Form 8-K of the Company filed with the Commission on March 8,
2006.
8. Current
Report on Form 8-K of the Company filed with the Commission on April 4,
2006.
9. Current
Report on Form 8-K of the Company filed with the Commission on April 11,
2006.
10. Current
Report on Form 8-K of the Company filed with the Commission on May 16, 2006.
EXHIBIT
C
[Letterhead
of Loews Corp]
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May
31, 2006
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Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
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Re:
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Loews
Corporation - Public Offering of Loews common stock,
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par
value $1.00 per share
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Ladies
and Gentlemen:
I
have
acted as counsel to Loews Corporation (the "Company") in connection with the
sale by Xxxx X. Xxxxx (the "Selling Stockholder") of 21,000,000 shares (the
"Shares") of the Company's Loews common stock, par value $1.00 per share (the
"Loews Common Stock") pursuant to the terms of the Underwriting Agreement dated
May 25, 2006 (the "Underwriting Agreement") between the Company, the Selling
Stockholder and Xxxxxx Xxxxxxx & Co. Incorporated as the underwriter (the
"Underwriter"). Capitalized terms used but not defined herein are used as
defined in the Underwriting Agreement.
In
that
connection, I, or attorneys under my supervision, have reviewed and examined:
(i) the Registration Statement; (ii) the base prospectus, dated March 10, 2006,
relating to the offering of securities of the Company, which forms a part of
and
is included in the Registration Statement (the "Base Prospectus"); (iii) the
prospectus supplement, dated May 25, 2006 (the "Prospectus Supplement"),
relating to the offering of the Shares (together with the Base Prospectus and
the Incorporated Documents, the "Final Prospectus"); (iv) the "issuer free
writing prospectus" (as defined in Rule 433(h)(1) of the Rules and Regulations),
dated May 25, 2006, identified on Schedule II hereto relating to the Securities
(the "Free Writing Prospectus"); (v) the Restated Certificate of Incorporation
of the Company, as amended through the date hereof; (vi) the By-laws of the
Company, as amended through the date hereof; (vii) a specimen certificate
representing the Loews Common Stock; and (viii) the resolutions of the
Board of Directors of the Company relating to the issuance of the Loews Common
Stock. I have also reviewed the documents identified on Schedule I hereto filed
by the Company pursuant to the Securities Exchange Act of 1934 and incorporated
by reference into the Prospectus Supplement as of the date hereof (collectively,
the "Incorporated Documents") and such other corporate records, certificates
and
other documents as I have considered necessary for the purposes of rendering
this opinion.
As
used
herein, "Disclosure Package" means the Base Prospectus, the Free Writing
Prospectus and the Incorporated Documents, all considered
together.
In
rendering this opinion, I have relied with your consent: (a) as to matters
of
fact, on certificates and assurances of responsible officers of the Company
and
public officials and (b) as to opinions involving the Material Subsidiaries
and
their respective subsidiaries, on opinions of the general counsels of each
Material Subsidiary. I have with your consent also assumed the legal capacity
of
all natural persons, the genuineness of all signatures, the authenticity of
all
documents submitted to me as originals and the conformity to original documents
of all documents submitted to me as copies.
Based
on
and subject to the foregoing and the other limitations, qualifications and
exceptions set forth herein, I am of the opinion that:
(i) the
Company is validly existing as a corporation in good standing under the laws
the
State of Delaware, with full corporate power and authority to own or lease,
as
the case may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus, and 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
partnership in good standing under the laws of the jurisdiction in which it
is
chartered or organized, with full power (corporate or other) and authority
to
own or lease, as the case may be, and to operate its properties and conduct
its
business as described in the Disclosure Package and the Final Prospectus, and
is
duly qualified to do business as a foreign corporation or limited partnership
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 or limited partnership interests, as the
case may be, of each Material Subsidiary have been duly and validly authorized
and issued and, in the case of capital stock, are fully paid and nonassessable,
and, except to the extent otherwise set forth in the Disclosure Package and
the
Final Prospectus, all outstanding shares of capital stock or limited partnership
interests, as the case may be, of 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 my knowledge, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iv) except
as
set forth in the Disclosure Package and the Final Prospectus, to my knowledge,
no options, warrants, preemptive rights or other rights to purchase from the
Company, agreements or other obligations of the Company to issue, or rights
to
require the Company to convert any obligations into or exchange any securities
for, shares of the Loews Common Stock are outstanding;
(v) to
my
knowledge, there is no pending or threatened action, suit or proceeding by
or
before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or their property of
a
character required to be disclosed
in
the
Registration Statement which is not adequately disclosed in the Disclosure
Package and the 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) none
of
the transactions contemplated by the Underwriting Agreement, or the fulfillment
of the terms of the Underwriting Agreement will conflict with, result in a
breach or violation of, or the 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 of its Material Subsidiaries
that are corporations or the certificate of formation or operating agreement
of
any Material Subsidiary that is a limited partnership, (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
my
knowledge, other than the rights of the Selling Stockholder pursuant to the
Letter Agreement, dated as of May 25, 2006, between the Selling Stockholder
and
the Company, with respect to the sale of the Shares, no holders of securities
of
the Company have rights to the registration of such securities under the
Registration Statement;
(viii) although
I have not independently verified the accuracy, completeness or fairness of
the
statements made or included in the Registration Statement or the Final
Prospectus and I take no responsibility therefor, I have no reason to believe
that on March 10, 2006 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 the date of the Prospectus Supplement 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 I express no opinion);
(ix) although
I have not independently verified the accuracy, completeness or fairness of
the
statements made or included in the Disclosure Package and I take no
responsibility therefor, I have no reason to believe that the Disclosure
Package, as of the Execution Time, when taken as a whole, contained any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than the financial statements and
other financial information contained therein, as to which I 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 the Underwriting 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 from the Selling Stockholder and distribution of the Shares by the
Underwriter in the manner contemplated in the Underwriting Agreement and in
the
Final Prospectus and such other approvals as have been obtained.
I
am
expressing no opinion regarding, nor am I predicting or guaranteeing the outcome
of, any tobacco-related product liability case or insurance-related case and
I
am 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 Loews Common Stock.
I
do not
purport herein to cover the application of state blue sky or securities laws
to
the sale of the Loews Common Stock.
I
am a
member of the Bar of the State of New York and the foregoing opinion is limited
to the laws of the State of New York, the General Corporation Law of the State
of Delaware and the federal securities laws of the United States.
This
opinion is rendered only to you and solely for your benefit in connection with
the above transaction. This opinion may not be relied upon by you for any other
purpose, or relied upon by any other person, entity, firm or corporation for
any
purpose without my prior written consent. The opinions contained herein are
limited to the matters expressly stated herein, and no opinion may be inferred
or implied beyond the matters expressly stated herein.
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Yours
truly,
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Xxxx
X. Xxxxxx
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Senior
Vice President
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General
Counsel and Secretary
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EXHIBIT
D
Schedule
I
INCORPORATED
DOCUMENTS
1. Annual
Report on Form 10-K of the Company for the year ended December 31,
2005.
2. Quarterly
Report on Form 10-Q of the Company for the period ended March 31, 2006.
3. Current
Report on Form 8-K of the Company filed with the Commission on January 11,
2006.
4. Current
Report on Form 8-K of the Company filed with the Commission on January 31,
2006.
5. Current
Report on Form 8-K of the Company filed with the Commission on February 16,
2006
(other than items 2.02 and 9.01, which are not incorporated by reference in
the
Prospectus).
6. Current
Report on Form 8-K of the Company filed with the Commission on March 3,
2006.
7. Current
Report on Form 8-K of the Company filed with the Commission on March 8,
2006.
8. Current
Report on Form 8-K of the Company filed with the Commission on April 4,
2006.
9. Current
Report on Form 8-K of the Company filed with the Commission on April 11,
2006.
10. Current
Report on Form 8-K of the Company filed with the Commission on May 16,
2006.
2
Schedule
II
FREE
WRITING PROSPECTUS
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1.
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Final
Term Sheet related to the Shares, dated May 25, 2006, filed with
the
Commission under Rule 433 under the Securities Act on May 26,
2006.
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3
EXHIBIT
D
[Letterhead
of Lorillard]
May
31,
2006
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
I
am
Senior Vice President, Legal and External Affairs, General Counsel and Secretary
of Lorillard Tobacco Company, a Delaware corporation and a wholly owned
subsidiary of Lorillard, Inc. (collectively, the “Company”). I have acted as
counsel for the Company in connection with the purchase by you from Xxxx X.
Xxxxx (the “Selling Stockholder”) of 21,000,000 shares of Loews Common Stock,
par value $1.00 per share (the “Shares”), of Loews Corporation (“Parent”), a
Delaware corporation and parent corporation of Lorillard, Inc., pursuant to
the
Underwriting Agreement, dated May 25, 2006, among you, the Selling Stockholder
and the Parent (the “Underwriting Agreement’). This letter is being delivered to
you pursuant to Section 6(d) of the Underwriting Agreement.
I
have
examined: (1) the Registration Statement on Form S-3, as amended (such
Registration Statement, including the documents incorporated by reference
therein, at the time it became effective, being hereinafter called the
“Registration Statement”) filed by Parent under the Securities Act of 1933, as
amended (the “Act”); (2) the basic prospectus dated March 10, 2006, including
the documents incorporated by reference therein (the “Basic Prospectus”); (3)
the final prospectus supplement dated May 25, 2006, (the “Final Prospectus” and,
together with the Basic Prospectus, being hereinafter called the “Prospectus”),
filed by Parent pursuant to Rule 424(b); and (4) the "issuer free writing
prospectus" (as defined in Rule 433(h)(1) of the Rules and Regulations), dated
May 25, 2006, identified on Schedule I hereto relating to the Securities (the
"Free Writing Prospectus" and together with the Basic Prospectus, as amended
and
supplemented to the Execution Time, being hereinafter called the “Disclosure
Package”).
In
addition, I have examined certain records of the Company relating to the matters
covered by the opinions set forth in the numbered paragraphs below and have
made
such other investigations as I have deemed necessary in connection with the
opinion hereinafter set forth. I have relied, to the extent I deem such reliance
proper, upon certain factual representations made in certificates given by
officers of the Company in answer to inquiries.
As
we
have discussed, while I have general supervisory responsibility for all legal
matters involving the Company, I must rely extensively on various attorneys
at
the Company and various outside law firms which handle particular matters for
the Company. Accordingly, my personal knowledge of a significant number of
cases
and
4
other
matters is substantially limited. The opinions contained in this letter merely
constitute expressions of my professional judgment regarding the matters of
law
addressed herein. I am expressing no opinion regarding, nor am I predicting
or
guaranteeing, the outcome of any tobacco-related product liability case.
Further, I am expressing no opinion regarding the effect of the outcome, whether
financial or otherwise, of any tobacco-related product liability case on the
Company or the Shares. For purposes of the opinion in the first numbered
paragraph below, I have consulted with such other attorneys at the Company
and
outside counsel as I have deemed appropriate.
In
rendering my opinion, I have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to me as originals, the conformity to original documents of documents submitted
to me as certified, facsimile, conformed, electronic or photostatic copies
and
the authenticity of the originals of such copies. As to all questions of fact
material to this opinion that have not been independently established, I have
relied upon certificates or comparable documents, and oral and written
statements and representations, of government officials and other officers
and
representatives of the Company and Parent and, in certain instances, written
statements of the Underwriters and upon the representations and warranties
of
Parent and, in certain instances, the Underwriters, contained in the
Underwriting Agreement. I have not independently verified such information
and
assumptions.
I
have
investigated such questions of law for the purpose of rendering this opinion
as
I have deemed necessary. This opinion is limited to the federal law of the
United States of America, the laws of the State of North Carolina and the
General Corporate Law of Delaware. I disclaim any opinion as to any statute,
rule, regulation, ordinance, order or other promulgation of any other
jurisdiction or of any regional or local governmental body.
On
the
basis of the foregoing, and in reliance thereon, and subject to the limitations,
qualifications and exceptions set forth above, I am of the opinion
that:
1. To
the
best of my knowledge, the statements set forth
(A)
in
the Parent’s Annual Report on Form 10-K for the year ended December 31, 2005
(“Annual Report”) under the headings “Business -- Lorillard, Inc. -- Legislation
and Regulation,” “Business -- Lorillard, Inc. -- Federal Regulation,” “Business
-- Lorillard, Inc. -- State and Local Regulation,” together with “Business -
Lorillard, Inc. -- Advertising and Marketing,” when considered in their
entirety; and
(B)
in
the Annual Report under the headings “Legal Proceedings -- Tobacco Related” and
“Notes to Consolidated Financial Statements -- Note 20. Legal Proceedings --
Tobacco Related” and in Exhibit 99.01 to the Annual Report together with the
statements in the Parent’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2006 (“Quarterly Report”) under the headings
5
“Notes
to
Consolidated Condensed Financial Statements -- Note 12. Legal Proceedings --
Tobacco Related” and “Part II. Other Information. Item 1. Legal Proceedings. 2.
Tobacco Related”, when considered in their entirety,
incorporated
by reference into the Registration Statement, the Disclosure Package and the
Prospectus constitute a complete and accurate summary in all material respects
of the matters referred to therein;
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2.
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To
the best of my knowledge, there is no pending or threatened action,
suit
or proceeding by or before any court or governmental agency, authority
or
body or any arbitrator involving the Company or any of its subsidiaries
or
its or their property of a character required to be disclosed in
the
Registration Statement which is not adequately disclosed in the Disclosure
Package and the Prospectus, and there is no franchise, contract or
other
document of a character required involving the Company or any of
its
subsidiaries required to be described in the Registration Statement
or
Prospectus, or to be filed as an exhibit thereto, which is not described
or filed as required; and
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3.
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Neither
the sale of the Shares by the Selling Stockholder, 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.
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In
addition, although I have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Disclosure Package or the Prospectus and take no responsibility therefor,
except as and to the extent set forth in paragraph 1 above, I have no reason
to
believe that the Registration Statement (except for the financial statements,
other than the portions of Note 20 to the Consolidated Financial Statements
in
the Annual Report and Note 12 to
6
the
Consolidated Condensed Financial Statements in the Quarterly Report referred
to
above, and other information of an accounting or financial nature included
therein, as to which I do not express any view), to the extent it relates to
the
Company, at the time it became effective, contained any untrue statement of
a
material fact or omitted to state any material fact necessary to make the
statements therein not misleading, that the Disclosure Package, as of the
Execution Time, when taken together as a whole, (except for the financial
statements, other than the portions of Note 20 to the Consolidated Financial
Statements in the Annual Report and Note 12 to the Consolidated Condensed
Financial Statements in the Quarterly Report referred to above, and other
information of an accounting or financial nature included therein, as to which
I
do not express any view), to the extent it relates to the Company, includes
any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or that the Prospectus, (except
for
the financial statements, other than the portions of Note 20 to the Consolidated
Financial Statements in the Annual Report and Note 12 to the Consolidated
Condensed Financial Statements in the Quarterly Report referred to above, and
other information of an accounting or financial nature included therein, as
to
which I do not express any view), to the extent it relates to the Company,
as of
its date or the date hereof included or includes any untrue statement of a
material fact or omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading.
This
opinion letter is rendered to you in connection with the above described
transactions and I specifically do not render any opinions pertaining to any
matter not expressly stated herein. This opinion letter may not be relied upon
by you for any other purpose, or relied upon by, or furnished to, any other
person, firm or corporation without my prior written consent. The opinions
contained herein are limited to the matters expressly stated herein, and no
opinion may be inferred or implied beyond the matters expressly stated
herein.
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Very
truly yours,
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7
Schedule
I
FREE
WRITING PROSPECTUS
|
1.
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Final
Term Sheet related to the Shares, dated May 25, 2006, filed with
the
Commission under Rule 433 under the Securities Act on May 26,
2006.
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EXHIBIT
E
[Letterhead
of Xxxxxxxx & Xxxxxxxx LLP]
May
31,
2006
Xxxxxx
Xxxxxxx & Co. Incorporated,
0000
Xxxxxxxx,
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Ladies and Gentlemen:
We
have
acted as counsel to Xxxx X. Xxxxx (the “Selling Stockholder”) in connection
with the sale by the Selling Stockholder to you of 21,000,000 shares (the
“Shares”) of Loews Common Stock, par value $1.00 per share (the “Common Stock”),
of Loews Corporation, a Delaware corporation (the “Company”), pursuant to an
underwriting agreement (the “Underwriting Agreement”), dated May 25, 2006,
among the Company, the Selling Stockholder and you. This letter is being
furnished to you pursuant to Section 6(h) of the Underwriting
Agreement.
We
have
examined such records, certificates and other documents, and such questions
of
law, as we have considered necessary or appropriate for the purposes of this
letter. Upon the basis of such examination, it is our opinion that, assuming
that you acquire your interest in the Shares without notice of any adverse
claim
(within the meaning of Section 8-105 of the New York Uniform Commercial Code
(the “UCC”)), that you make payment for the Shares as provided in the
Underwriting Agreement and that such Shares are credited to your securities
account maintained with The Depository Trust Company, you will have acquired
a
valid security entitlement (within the meaning of Section 8-102(a)(7) of the
UCC) to such Shares, and no action based on an adverse claim (within the meaning
of Section 8-105 of the UCC) to such Shares may be asserted against you with
respect to such security entitlement.
The
foregoing opinion is limited to the Federal laws of the United States and the
laws of the State of New York, and we are expressing no opinion as to the
effect of the laws of any other jurisdiction.
In
rendering the foregoing opinion, we have relied as to certain matters upon
information obtained from public officials, officers of the Company and other
sources believed by us to be responsible, and we have assumed that the
signatures on all documents examined by us are genuine, an assumption which
we
have not independently verified.
This
letter is furnished by us solely for your benefit in connection with the
transactions referred to in the Underwriting Agreement and may not be used,
circulated, quoted or otherwise referred to for purpose or relied upon by,
or
assigned to, any other person for any purpose without our prior written
consent.
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Very
truly yours,
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SCHEDULE
I
Underwriting
Agreement dated May 25, 2006.
Registration
Statement No. 333-132334.
Representative(s):
Xxxxxx
Xxxxxxx & Co. Incorporated
Title,
Purchase Price and Description of Securities:
Title:
Loews Common Stock
Number
of
Securities to be sold by the Selling Stockholder: 21,000,000
Price
per
Share to the Underwriters - total: $33.50
Other
provisions:
Closing
Date, Time and Location: May 31, 2006 at 10:00 a.m. at the offices of Cravath,
Swaine & Xxxxx LLP, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000.
Information
provided for purposes of Section 8(c):
(i)
the
last paragraph on the cover page of the Final Prospectus regarding sales by
the
Underwriters of the Securities and (ii) in the Final Prospectus under the
heading “Underwriting,” (a) the language in the first paragraph regarding the
Underwriters and their respective participation in the sale of the Securities;
(b) the third paragraph regarding sales by the Underwriters of the Securities;
and (c) the seventh and eighth paragraphs related to stabilization and syndicate
covering transactions.
Address
for notices pursuant to Section 12:
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Fax
no.: (000-000-0000)
Attention
of: General Counsel
2
SCHEDULE
II
|
Number
of
|
||
|
Underwriters
|
Securities
to be Purchased
|
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
21,000,000
|
|
|
Total.
. . . . . . . .
|
21,000,000
|
3
SCHEDULE
III
Schedule
of Free Writing Prospectuses included in the Disclosure Package
1.
Free
writing prospectus, dated May 25, 2006, relating to the pricing terms of the
Securities.
4
SCHEDULE
IV
Schedule
of other information included in the Disclosure Package
Not
applicable
