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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report: March 9, 2004
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(Date of earliest event reported): March 8, 2004
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LOEWS CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of Incorporation)
1-6541 13-2646102
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(Commission (IRS Employer
File Number Identification No.)
667 Madison Avenue, New York, N.Y. 10021-8087
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (212) 521-2000
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NOT APPLICABLE
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(Former Name or Former Address, if Changed Since Last Report)
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Page 1 of 2
Item 5. Other Events
On March 8, 2004, Loews Corporation (the "Company") entered into an
Underwriting Agreement with Citigroup Global Markets Inc. and Lehman Brothers
Inc., for the issuance and sale by the Company of $300,000,000 aggregate
principal amount of the Company's 5 1/4% Senior Notes due 2016 (the "Notes").
The Notes are being sold pursuant to an effective shelf registration
statement. A copy of the underwriting agreement is filed as Exhibit 1.1.
Item 7. Financial Statements and Exhibits
(c) Exhibits:
Exhibit Reference Number Exhibit Description
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1.1 Underwriting Agreement, dated March 8, 2004
by and among Loews Corporation, Citigroup
Global Markets Inc. and Lehman Brothers Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LOEWS CORPORATION
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(Registrant)
Dated: March 9, 2004 By: /s/ Gary W. Garson
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Gary W. Garson
Senior Vice President
General Counsel and Secretary
Page 2 of 2
Exhibit 1.1
EXECUTION COPY
Loews Corporation
5 1/4% Senior Notes due 2016
Underwriting Agreement
New York, New York
March 8, 2004
Citigroup Global Markets Inc.
Lehman Brothers Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
and
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Loews Corporation, a corporation organized under the laws of Delaware (the
"Company"), proposes to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you (the "Representatives") are acting
as representatives, $300,000,000 principal amount of its 5 1/4% Senior Notes
due 2016 (the "Securities"), to be issued under (a) an Indenture dated as of
March 1, 1986 (as supplemented by the First Supplemental Indenture dated as of
March 30, 1993, and the Second Supplemental Indenture, dated as of February
18, 1997, the "Senior Indenture"), between the Company and JPMorgan Chase Bank
(as successor to The Chase Manhattan Bank (National Association)), as trustee
(the "Trustee"), and (b) resolutions of a securities committee authorized by
the Board of Directors of the Company to determine the terms of the Securities
dated as of March 8, 2004 (such resolutions, together with the Senior
Indenture, are collectively referred to herein as the "Indenture"). To the
extent there are no additional Underwriters listed on Schedule I other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular
or plural as the context requires. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
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
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the Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
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to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-104759) on Form S-3, including a related basic prospectus,
for registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission one of the following:
(1) after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance with Rules
430A and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form
of final prospectus supplement) or (3) a final prospectus in accordance with
Rules 415 and 424(b). In the case of clause (1), the Company has included
in such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the
rules thereunder to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement, shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
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respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects with
the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date 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,
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that the Company makes no representations or warranties as to (i) that part
of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) Each of the Company and its Material Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Final
Prospectus, and other than as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification.
(d) All the outstanding shares of capital stock of each Material
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Material
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any security interests, claims, liens
or encumbrances, except where the existence of any such security interest,
claim, lien or encumbrance, could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(e) The Company's authorized equity capitalization is as set forth in
the Final Prospectus; and the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Prospectus.
(f) The Indenture has been duly authorized, executed and delivered, has
been duly qualified under the Trust Indenture Act, and constitutes a legal,
valid and binding instrument enforceable against the Company in accordance
with its terms (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); and the Securities
have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to
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and paid for by the Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled to the benefits
of the Indenture (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).
(g) The Securities conform in all material respects to the description
thereof contained in the Final Prospectus.
(h) 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.
(i) 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).
(j) The Company is not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required to be obtained by the
Company in connection with the transactions contemplated herein, except such
as have been or will be obtained under the Act and the Exchange Act and such
as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Final Prospectus.
(l) Neither the issue and sale of the Securities nor the consummation of
any other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its Material Subsidiaries pursuant to, (i) the charter
or by-laws of the Company or any of its Material Subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its Material
Subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree
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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.
(m) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(n) The consolidated historical financial statements of the Company and
its consolidated subsidiaries included or incorporated by reference in the
Final Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the
caption "Selected Financial Data" in the Final Prospectus fairly present in
all material respects, on the basis stated in the Final Prospectus, the
information included therein.
(o) 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, the
Indenture or the consummation of any of the transactions contemplated hereby
or (ii) could reasonably be expected to have a Material Adverse Effect
except, in the case of (i) and (ii), as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(p) 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.
(q) Neither the Company nor any subsidiary is in violation or default of
(i) any provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject (except in any case
in which such violation or default could not reasonably be expected to have
a Material Adverse Effect, and except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto)), or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable (except in any case in which such
violation or default could not reasonably be expected to have a
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Material Adverse Effect, and except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto)).
(r) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their reports with respect to the audited consolidated financial statements
and schedules included or incorporated by reference in the Final Prospectus,
are independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(s) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision thereof,
required to be paid by the Company in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale by the
Company of the Securities.
(t) Except as could not reasonably be expected to have a Material
Adverse Effect, and except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto), no labor problem or
dispute with the employees of the Company or any of its Material
Subsidiaries exists or, to the Company's knowledge, is threatened or
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its Material Subsidiaries'
principal suppliers, contractors or customers.
(u) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Final Prospectus.
(v) 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 Final Prospectus (exclusive of any supplement thereto).
(w) Except as disclosed in the Final Prospectus, the Company has not
taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
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(x) 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 Final Prospectus (exclusive of any supplement thereto).
(y) 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 mark registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the "Intellectual
Property") necessary for the conduct of the businesses of the Company and
its Material Subsidiaries as now conducted or as proposed in the Final
Prospectus to be conducted. Except as could not reasonably be expected to
have a Material Adverse Effect, to the Company's knowledge: (a) there are no
rights of third parties to any such Intellectual Property; (b) there is no
material infringement by third parties of any such Intellectual Property;
(c) there is no pending or, to the Company's knowledge, threatened action,
suit, proceeding or claim by others challenging the rights of the Company or
any of its Material Subsidiaries in or to any such Intellectual Property,
and the Company and each of its Material Subsidiaries is unaware of any
facts which would form a reasonable basis for any such claim; (d) there is
no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and the
Company and each of its Material Subsidiaries is unaware of any facts which
would form a reasonable basis for any such claim; and (e) there is no
pending or, to the Company's knowledge, threatened action, suit, proceeding
or claim by others that the 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.
(z) Except as disclosed in the Registration Statement and the Final
Prospectus, the Company does not intend to use any of the proceeds from the
sale of the Securities hereunder to repay any outstanding debt owed to any
affiliate of any of the Underwriters.
(aa) 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
8
Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the "Sarbanes Oxley Act"), including Section 402 related to loans
and Sections 302 and 906 related to certifications.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 99.130% of
the principal amount thereof, plus accrued interest, if any from March 11,
2004 to the Closing Date, the amount of the Securities set forth opposite such
Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at 10:00 AM, New York City time, on March 11, 2004, or at such
time on such later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities
of The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
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(a) The Company will use its reasonable best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectus is otherwise
required under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Representatives (which approval shall not be unreasonably
withheld) with the Commission pursuant to the applicable
9
paragraph of Rule 424(b) within the time period therein prescribed and will
provide evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or for
any additional information, (5) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of the
receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its reasonable best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (1) notify the Representatives of such event, (2) prepare and
file with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company, its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Final Prospectus and the Final Prospectus
and any supplement thereto as the Representatives may reasonably request.
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(e) The Company will use its reasonable best efforts to arrange, if
necessary, for the qualification of the Securities for sale under the laws
of such jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution of
the Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject or take any action which
would subject the Company to taxation in any jurisdiction where it is not
already subject to taxation.
(f) The Company will not, without the prior written consent of Citigroup
Global Markets Inc. and Lehman Brothers Inc., offer, sell, contract to sell,
pledge, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or
any person in privity with the Company or any affiliate of the Company)
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange
Act, any debt securities issued or guaranteed by the Company (other than the
Securities); or publicly announce an intention to effect any such
transaction, until after the Closing Date.
(g) Except as disclosed in the Final Prospectus, the Company will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Basic Prospectus, each Preliminary
Final Prospectus, the Final Prospectus, and each amendment or supplement to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, the Basic Prospectus, each Preliminary
Final Prospectus, the Final Prospectus, and all amendments or supplements to
any of them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates
for the Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and
all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) any registration or
qualification of the Securities for offer and sale under the securities or
blue sky laws of the
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several states (including filing fees and the reasonable fees and expenses
of counsel, up to $5,000, for the Underwriters relating to such registration
and qualification); (vi) 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); (vii) the fees and expenses of the Company's accountants, the
Trustee and counsel (including local and special counsel) for the Company;
and (viii) all other costs and expenses incident to the performance by the
Company of its obligations under the Indenture and hereunder; provided,
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however, that on the Closing Date and subject to the satisfaction or waiver
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of the conditions set forth herein, the Underwriters agree to pay to the
Company a non-accountable expense reimbursement of $75,000 in connection
with the offering and 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
contained herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City
time on such date or (ii) 9:30 AM on the Business Day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened.
(b) The Company shall have requested and caused Skadden, Arps, Slate,
Meagher & Flom, 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,
qualifications and comments. In addition, such opinion
12
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. References to the Final Prospectus in this paragraph (b) include
any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused Gary W. Garson, 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 Ronald S. Milstein,
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 Representatives shall have received from Cravath, Swaine & Moore
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the Chief
Executive Officer and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date,
provided, however, that if any such representation or warranty is already
-------- -------
qualified by materiality, such representation or warranty as so qualified
is true and correct in all respects on and as of the Closing Date, and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive
of any
13
supplement thereto), there has been no Material Adverse Effect,
except as set forth in or contemplated in the Final Prospectus (exclusive
of any supplement thereto).
(g) 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 accountants within the meaning of the
Act and the Exchange Act and the respective applicable rules and regulations
adopted by the Commission thereunder, and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the minutes of the meetings of
the shareholders, directors and executive and audit committees of the
Company and its significant subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to transactions
and events subsequent to December 31, 2003, nothing came to their
attention which caused them to believe that:
(1) with respect to the period subsequent to December 31,
2003, 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 net assets or the stockholders' equity of the
Company as compared with the corresponding amounts shown on the
September 30, 2003 balance sheets included or incorporated by
reference in the Registration Statement and the Final Prospectus, or
for the period from January 1, 2004 to such specified date there
were any decreases, as compared with the corresponding period in the
preceding year in net income of the Company and its subsidiaries or
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; and
(2) 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
14
(Supplementary Financial Information) and Item 402 (Executive
Compensation) is not in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth or
incorporated by reference in the Registration Statement and the Final
Prospectus and in Exhibit 12 to the Registration Statement agrees with
the accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) 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 (g) 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 Final Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(j) 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
15
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the offices of Cravath, Swaine & Moore LLP, counsel for the Underwriters,
at 825 Eighth Avenue, New York, New York, 10019, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Citigroup Global Markets Inc. and Lehman
Brothers Inc. on demand for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them solely and directly in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the
- -------- -------
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein
provided further, that with respect to any untrue statement or omission of
- -------- -------
material fact made in any Preliminary Final Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such
loss, claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Final Prospectus to the Representatives,
(x) delivery of the Final Prospectus was required by the Act to be
16
made to such person, (y) the untrue statement or omission of a material fact
contained in the Preliminary Final Prospectus was corrected in the Final
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of sale of such securities to such person, a copy of
the Final Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", (i) the list
of Underwriters and their respective participation in the sale of the
Securities, (ii) the paragraph related to concessions and reallowances, (iii)
the paragraph related to Market Axess Inc. and (iv) the paragraphs related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters
for inclusion in any Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory
-------- -------
to the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
17
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except
-------- -------
as may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses, but after deducting underwriting discounts and
commissions) received by it, and benefits received by the Underwriters shall
be deemed to be equal to the total underwriting discounts and commissions, in
each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by
the Company on the one hand or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
8, each person who controls an Underwriter within the meaning of either the
Act or the Exchange Act and each director,
18
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal 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 principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any,
to the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time after the
execution of this Agreement and prior to such time (i) trading in any
securities of the Company shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York
Stock Exchange or the Nasdaq National Market shall have been suspended or
limited or minimum prices shall have been established on such Exchange or the
Nasdaq National Market or the clearance or settlement of such trading
generally shall have been materially disrupted (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 (including, without limitation, an act of terrorism) 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).
19
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (212) 816-7912) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York,
10013, Attention: General Counsel; and to the Lehman Brothers Inc. General
Counsel (fax no.: (212) 526-0943) and confirmed to the General Counsel, Lehman
Brothers Inc., at 745 Seventh Avenue, New York, New York 10019, Attention:
Debt Capital Markets, Financial Institutions Group; or, if sent to the
Company, will be mailed, delivered or telefaxed to the General Counsel, Loews
Corporation (fax no.: (212) 521-2997) and confirmed to it at Loews
Corporation, 667 Madison Avenue, 7th Floor, New York, New York, 10021,
Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
--------
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
20
"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.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Material Adverse Effect" shall mean a material adverse effect on the
financial condition, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business.
"Material Subsidiaries" shall mean CNA Financial Corporation, Lorillard,
Inc., Lorillard Tobacco Company, Loews Hotels Holding Corporation, Diamond
Offshore Drilling, Inc., and Texas Gas Transmission, LLC.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
in the form in which it shall become effective) and, in the event any post-
effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
21
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Loews Corporation
By: /s/ Peter W. Keegan
----------------------------
Peter W. Keegan
Senior Vice President and
Chief Financial Officer
23
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets, Inc.
Lehman Brothers Inc.
By: Citigroup Global Markets, Inc.
By:
------------------------------
Name:
Title:
24
By: Lehman Brothers Inc.
By:
------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
----------
Principal Amount of
Underwriters Securities to be Purchased
- ----------- --------------------------
Citigroup Global Markets, Inc $150,000,000
Lehman Brothers Inc. $150,000,000
------------
Total: $300,000,000
============