AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 2002 REGISTRATION NO. 333-73138 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- AMENDMENT NO. 2 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- LOEWS CORPORATION (Exact name of registrant as specified in its charter) --------------------- DELAWARE 13-2646102 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 667 MADISON AVENUE NEW YORK, NEW YORK 10021-8087 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) --------------------- BARRY HIRSCH, ESQ. SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY 667 MADISON AVENUE NEW YORK, NEW YORK 10021-8087 (212) 521-2000 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- COPIES TO: ELLIOTT V. STEIN, ESQ. MARC S. ROSENBERG, ESQ. WACHTELL, LIPTON, ROSEN & KATZ CRAVATH, SWAINE & MOORE 51 WEST 52ND STREET WORLDWIDE PLAZA NEW YORK, NEW YORK 10019 825 EIGHTH AVENUE (212) 403-1000 NEW YORK, NEW YORK 10019-7472 (212) 474-1000 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this registration statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [ ] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] --------------- If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] --------------- If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable in connection with the sale of Carolina Group stock being registered, all of which will be paid by the Registrant: AMOUNT -------- SEC registration fee....................................... $243,437 NYSE listing fee........................................... 5,000 Printing expenses.......................................... 400,000 Legal fees and expenses.................................... 1,500,000 Accounting fees and expenses............................... 500,000 Blue sky fees and expenses................................. 5,000 Transfer agent and registrar fees and expenses............. 3,500 Miscellaneous.............................................. 343,063 Total................................................. $3,000,000 ======== ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Reference is made to Section 145 of the Delaware General Corporation Law which provides for indemnification of directors and officers in certain circumstances. Article 8, Section 8.1 of Loews's by-laws provides as follows: "The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or an officer of the Corporation against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding to the fullest extent and in the manner set forth in and permitted by the [Delaware] General Corporation Law, and any other applicable law, as from time to time in effect. Such right of indemnification shall not be deemed exclusive of any other rights to which such director or officer may be entitled apart from the foregoing provisions. The foregoing provisions of this Section 8.1 shall be deemed to be a contract between the Corporation and each director and officer who serves in such capacity at any time while this Article 8 and the relevant provisions of the [Delaware] General Corporation Law and other applicable law, if any, are in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing, with respect to any state of facts then or theretofore existing, or any action, suit or proceeding theretofore, or thereafter brought or threatened based in whole or in part upon any such state of facts." The directors and officers of the Registrant are covered by insurance policies indemnifying them against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities. The Underwriting Agreement provides that the underwriters are obligated, under certain circumstances, to indemnify directors, officers and controlling persons of the Registrant against certain liabilities, including liabilities under the Securities Act. Reference is made to the form of Underwriting Agreement filed as Exhibit 1.1 hereto. II-1
ITEM 16. EXHIBITS. 1.1 Form of Underwriting Agreement between Loews Corporation and the underwriters. 4.1* The rights of the holders of Carolina Group stock are defined in Article Fourth of the Charter of Loews Corporation (filed as Exhibit A to the Proxy Statement on Schedule 14A, dated November 29, 2001 and incorporated herein by reference). 4.2* The Carolina Group Policy Statement (filed as Exhibit B to the Proxy Statement on Schedule 14A, dated November 29, 2001 and incorporated herein by reference). 5.1 Opinion of Wachtell, Lipton, Rosen & Katz, as to the legality of the securities being registered. 23.1 Consent of Wachtell, Lipton, Rosen & Katz (included in opinion of counsel filed as Exhibit 5.1). 23.2* Consent of Deloitte & Touche LLP. 24.1* Power of Attorney. - --------------------------- * Previously filed. ITEM 17. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (a) For purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. (c) That for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this Registration Statement as of the time it was declared effective. (d) That for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-2
SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of New York, state of New York, on January 23, 2002. LOEWS CORPORATION By: /s/ PETER W. KEEGAN --------------------------------------- Peter W. Keegan Senior Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on January 23, 2002.
EXHIBIT INDEX 1.1 Form of Underwriting Agreement between Loews Corporation and the underwriters. 4.1* The rights of the holders of Carolina Group stock are defined in Article Fourth of the Charter of Loews Corporation (filed as Exhibit A to the Proxy Statement on Schedule 14A, dated November 29, 2001 and incorporated herein by reference). 4.2* The Carolina Group Policy Statement (filed as Exhibit B to the Proxy Statement on Schedule 14A, dated November 29, 2001 and incorporated herein by reference). 5.1 Opinion of Wachtell, Lipton, Rosen & Katz, as to the legality of the securities being registered. 23.1 Consent of Wachtell, Lipton, Rosen & Katz (included in opinion of counsel filed as Exhibit 5.1). 23.2* Consent of Deloitte & Touche LLP. 24.1* Power of Attorney. - ------------------------- * Previously filed. II-5
EXHIBIT 1.1
-----------
Loews Corporation
Shares*
Carolina Group Stock
($0.01 par value)
Form of Underwriting Agreement
New York, New York
, 2002
Salomon Smith Barney Inc.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
J. P. Morgan Securities Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
and
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
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, shares of Carolina Group Stock, $0.01 par value
("Carolina Group Stock") of the Company (said shares to be issued and sold by
the Company being hereinafter called the "Underwritten Securities"). The Company
also proposes to grant to the Underwriters an option to purchase up to
additional shares of Carolina Group Stock to cover over-allotments (the "Option
Securities"; the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
- -------------------------
*Plus an option to purchase from the Company, up to additional
shares to cover over-allotments.
2
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, a
Preliminary Prospectus or the 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 such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the 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 any Preliminary Prospectus or
the 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 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 333-73138) on Form S-3, including a related preliminary
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 related preliminary prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one
of the following: either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus) or (2) after the Effective Date of
such registration statement, a final prospectus in accordance with Rules
430A and 424(b). In the case of clause (2), the Company will include 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
Prospectus. As filed, such amendment and form of final prospectus, or such
final prospectus, 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 latest Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the Closing Date
(a "settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a
3
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 Effective Date, the 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
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
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 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 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
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 Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus;
the Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this Agreement,
will be fully paid and nonassessable; the Securities are duly listed, and
admitted and authorized for trading, subject to official notice of issuance
and evidence of satisfactory distribution, 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 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;
4
(f) There is no franchise, contract or other document of a character
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 the statements in the Prospectus under the headings "Business
- Legislation and Regulation", "Business - Legal Proceedings", "Business -
Environmental Matters", "Business - Payment Obligations under the State
Settlement Agreements", "Description of Loews Capital Stock", "Relationship
between the Loews Group and the Carolina Group", "The Stock Option Plan",
and "Certain U.S. Federal Tax Considerations" insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed
therein, are, in all material respects, accurate of such legal matters,
agreements, documents or proceedings, taken as a whole, in the context
provided.
(g) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms (except as rights to
indemnification and contribution hereunder may be limited by applicable law
and subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(h) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required to be obtained by the
Company in connection with the transactions contemplated herein, except
such as have been or will be obtained under the Act and the Exchange Act
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Prospectus.
(j) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Material Subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
Material Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of its Material Subsidiaries is a party or bound or to which its or their
property is
5
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Material Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its Material Subsidiaries or any of its or their properties, except,
with respect to clauses (ii) and (iii) above, for such conflicts, breaches,
violations or impositions that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(k) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(l) The consolidated historical financial statements of the Company
and its consolidated subsidiaries and of the Carolina Group included or
incorporated by reference in the Prospectus and the Registration Statement
present fairly in all material respects the financial condition, results of
operations and cash flows of the Company and the Carolina Group 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 Historical
Combined Financial Data of the Carolina Group" in the Prospectus and
Registration Statement fairly present in all material respects, on the
basis stated in the Prospectus and the Registration Statement, the
information included therein. The pro forma financial statements included
in the Prospectus and the Registration Statement include assumptions that
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma financial
statements included in the Prospectus and the Registration Statement. The
pro forma financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act and the
pro forma adjustments have been properly applied to the historical amounts
in the compilation of those data.
(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a Material Adverse
Effect except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto).
6
(n) Except as could not reasonably be expected to have a Material
Adverse Effect, each of the Company and each of its Material Subsidiaries
owns or leases all such properties as are necessary to the conduct of its
operations as presently conducted.
(o) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject (except in any case in which such violation or default could not
reasonably be expected to have a Material Adverse Effect, and except as set
forth in or contemplated in the 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 Prospectus (exclusive of any supplement thereto)).
(p) Deloitte & Touche LLP, who have certified certain financial
statements of the Company, its consolidated subsidiaries and the Carolina
Group and delivered their report[s] with respect to the audited
consolidated financial statements and schedules included or incorporated by
reference in the Prospectus, are independent public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(q) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid by the Company in connection with the
execution and delivery of this Agreement or the issuance by the Company or
sale by the Company of the Securities.
(r) 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, that could
reasonably be expected to have a Material Adverse Effect, and except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(s) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary's capital stock, from repaying to the
Company any
7
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
Prospectus.
(t) The Company and its Material Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such a license,
certificate, permit and other authorization could not, individually or in
the aggregate, reasonably be 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 Prospectus (exclusive of any supplement thereto).
(u) Except as disclosed in the Prospectus, the Company has not
taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities.
(v) The Company, its Material Subsidiaries and Lorillard Tobacco
Company are (i) in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) have not received notice of any
actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or
liability could not, individually or in the aggregate, have a Material
Adverse Effect, and except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(w) The Company and its Material Subsidiaries own, possess, license
or have other rights to use, on reasonable terms, all patents, patent
applications, trade and service marks, trade and service 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 Prospectus to be conducted. Except as could
not reasonably be expected to have a Material Adverse Effect, to the
Company's knowledge: (a)
8
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.
(x) Except as disclosed in the Registration Statement and the
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.
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. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $ per share,
the amount of the Underwritten Securities set forth opposite such Underwriter's
name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
[ ] Option Securities at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
shares of the Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing
9
of the Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
, 2002, 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 Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) 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. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
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 Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(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 to the 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
10
Statement has become or becomes effective pursuant to Rule 430A, or filing
of the Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period therein prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (1) when the Registration Statement, if
not effective at the Execution Time, shall have become effective, (2) when
the 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 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 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 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 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
11
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Company will use its reasonable best efforts to arrange, if
necessary, for the qualification of the Securities for sale under the laws
of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Securities, in any jurisdiction where it is not now so subject or take
any action which would subject the Company to taxation in any jurisdiction
where it is not already subject to taxation.
(f) The Company will not, without the prior written consent of
Salomon Smith Barney Inc. and Morgan Stanley & Co. Incorporated, offer,
sell, contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Carolina
Group Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Carolina Group Stock; or publicly announce an
intention to effect any such transaction, for a period of 180 days after
the date of the Underwriting Agreement, provided, however, that the Company
may issue options and sell Carolina Group Stock pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan of
the Company in effect at the Execution Time or as described in the
Prospectus.
(g) Expect as disclosed in the 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), each Preliminary Prospectus, the
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, each Preliminary Prospectus, the 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
12
and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original
issuance and sale of the Securities; (iv) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection
with the offering of the Securities; (v) the registration of the Securities
under the Exchange Act and the listing of the Securities on the New York
Stock Exchange; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel, up to $5,000, for the Underwriters relating to such registration
and qualification); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (viii) the transportation and other expenses incurred by or
on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) 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 (x) all other costs and expenses
incident to the performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, 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 Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the 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 Wachtell, Lipton,
Rosen & Katz, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
13
(i) the Company is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own or lease,
as the case may be, and to operate its properties and conduct its
business as described in the 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) the Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the Securities have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters pursuant
to this Agreement, will be fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory
distribution, 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 under the
General Corporate Law of Delaware or any provision of the charter and
bylaws of the Company;
(iii) the statements included in the Prospectus under the
headings "Description of Loews Capital Stock", "Relationship between
the Loews Group and the Carolina Group", and "Certain U.S. Federal Tax
Considerations" insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate
summaries in all material respects of such legal matters, agreements,
documents or proceedings;
(iv) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened; the Registration Statement
and the Prospectus (other than the financial statements and other
financial information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder although such counsel has not
independently verified, and is not passing upon and assumes no
responsibility for, the accuracy, completeness or fairness of, or
otherwise verified, the statements made in, the Registration
Statement, no facts have come to such counsel's attention which leads
it to believe that (i) the Registration Statement (other than the
financial statements and related
14
notes thereto and the other financial, statistical, reserve and
accounting data included in or omitted from the Registration
Statement, all as to which we express no opinion), on the Effective
Date or the date the Registration Statement was last deemed amended,
or (ii) the Prospectus as of its date or on the Closing Date,
contained an untrue statement of a material fact or omitted 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;
(v) this Agreement has been duly authorized, executed
and delivered by the Company; and
(vi) 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.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the state of New York, the General Corporation Law of Delaware or
the Federal laws of the United States, to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters; and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion may contain
customary assumptions, exceptions, limitations, qualifications and
comments. In addition, such opinion may contain statements to the
effect that: (A) such counsel is expressing no opinion regarding, nor
is such counsel predicting or guaranteeing, the outcome of any
tobacco-related product liability case, and (B) such counsel is
expressing no opinion regarding the effect of the outcome, whether
financial or otherwise, of any tobacco-related product liability case
on the Company or the Carolina Group Stock. References to the
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Company shall have requested and caused Barry Hirsch,
general counsel for Loews Corporation, to have furnished his opinion, dated
the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Material Subsidiaries 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 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;
15
(ii) all the outstanding shares of capital stock of each
Material Subsidiary and each Carolina Group Company have been duly and
validly authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the Material Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interest, claim, lien
or encumbrance;
(iii) except as set forth in the Prospectus and to the
knowledge of such counsel, no options, warrants, preemptive rights or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of Carolina Group Stock are outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character 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;
(v) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its Material
Subsidiaries pursuant to, (i) the charter or by-laws of the Company or
its Material Subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its Material Subsidiaries is a party or
bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable
to the Company or its Material Subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its Material
Subsidiaries or any of its or their properties, except, with respect
to clauses (ii) and (iii) above, for such conflicts, breaches,
violations or impositions that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
(vi) to the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement;
16
(vii) although he has not independently verified the
accuracy, completeness or fairness of the statements made or included
in the Registration Statement or the Prospectus and takes no
responsibility therefor, such counsel has no reason to believe that on
the Effective Date or the date the Registration Statement was last
deemed amended the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date or on the
Closing Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion); and
(viii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the performance by the Company of its obligations
under this Agreement, except such as have been obtained under the Act
and such as may be required to be obtained by the Company under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus and such other
approvals (specified in such opinion) as have been obtained.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York, the General Corporate Law of Delaware or
the Federal laws of the United States, to the extent he deems proper
and specified in such opinion, upon the opinion of other counsel of
good standing whom he believes to be reliable and who are satisfactory
to counsel for the Underwriters, (B) as to matters of fact, to the
extent he deems proper, on certificates of responsible officers of the
Company and public officials and (C) as to opinions involving the
Material Subsidiaries, on opinions of the general counsels of those
Material Subsidiaries. Such opinion may contain customary assumptions,
exceptions, limitations, qualifications and comments. In addition,
such opinion may contain statements to the effect that: (A) such
counsel is expressing no opinion regarding, nor is such counsel
predicting or guaranteeing, the outcome of any tobacco-related product
liability case, and (B) such counsel is expressing no opinion
regarding the effect of the outcome, whether financial or otherwise,
of any tobacco-related product liability case on the Company or the
Carolina Group Stock. References to the Prospectus in this paragraph
(c) include any supplements thereto at the Closing Date.
(d) The Company shall have requested and caused Ronald S. Milstein,
general counsel for Lorillard Tobacco Company, to have furnished his
opinion,
17
dated the Closing Date and addressed to the Representatives in the form of
Exhibit B.
(e) The Company shall have requested and caused Shook, Hardy & Bacon
LLP, litigation counsel for the Company, to have furnished their opinion,
dated the Closing Date and addressed to the Representatives in the form of
Exhibit C hereto.
(f) The Company shall have requested and caused Thompson Coburn LLP,
litigation counsel for the Company, to have furnished their opinion, dated
the Closing Date and addressed to the Representatives in the form of
Exhibit D.
(g) The Company shall have requested and caused Greenberg Traurig
LLP, litigation counsel for the Company, to have furnished their opinion,
dated the Closing Date and addressed to the Representatives in the form of
Exhibit E.
(h) The Company shall have requested and caused Weil, Gotshal &
Manges, antitrust counsel for the Company, to have furnished their opinion,
dated the Closing Date and addressed to the Representatives in the form of
Exhibit F.
(i) The Company shall have requested and caused Brooks, Pierce,
McLendon, Humphrey & Leonard LLP, antitrust counsel for the Company, to
have furnished their opinion, dated the Closing Date and addressed to the
Representatives in the form of Exhibit G.
(j) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the
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.
(k) 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
Prospectus, any supplements to the 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
18
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 Prospectus (exclusive of
any supplement thereto), there has been no Material Adverse Effect,
except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto).
(l) Lorillard Tobacco Company shall have furnished to the
Representatives a certificate of Lorillard Tobacco Company, signed by the
Chairman of the Board or the Chief Executive Officer and the principal
financial or accounting officer of Lorillard Tobacco Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that since the date of
the most recent financial statements included or incorporated by reference
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse effect on the financial condition, earnings, business or
properties associated with the Carolina Group, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(m) 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 and pro forma financial statements
included or incorporated by reference in the Registration Statement
and the 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
19
subsequent to September 30, 2001, 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
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 Prospectus;
(2) with respect to the period subsequent to September
30, 2001, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the long-term
debt of the Company and its subsidiaries or of the Carolina Group
or capital stock of the Company or decreases in the shareholders'
equity of the Company or decreases in the combined attributed net
assets of the Carolina Group as compared with the corresponding
amounts shown on the September 30, 2001 balance sheets included
or incorporated by reference in the Registration Statement and
the Prospectus, or for the period from October 1, 2001 to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year in net income of the
Company and its subsidiaries or of the Carolina Group or in
operating income of the Company and its subsidiaries or of the
Carolina Group, in each case, on either a total or per share
basis, except in all instances for changes or decreases set forth
in such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives;
(3) the information included or incorporated by
reference in the Registration Statement and 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
20
Registration Statement and the 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 Prospectus in this paragraph (m) include any
supplement thereto at the date of the letter.
(n) 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 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 (m) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the financial condition, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, or the Carolina Group,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the 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 Prospectus (exclusive of any supplement thereto).
(o) 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.
(p) 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.
(q) Subject to official notice of issuance and evidence of
satisfactory distribution, the Securities shall have been listed and
admitted and authorized for trading on the New York Stock Exchange, and
satisfactory evidence of such actions shall have been provided to the
Representatives.
(r) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each officer and director of the Company and each officer and director of
the Carolina Group listed under "Management of the Carolina Group" in the
Registration Statement and Prospectus addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters
21
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the offices of Cravath, Swaine & Moore, 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 Morgan Stanley & Co. Incorporated and Salomon Smith Barney
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 any
Preliminary Prospectus or the 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
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 Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act
22
to be made to such person, (y) the untrue statement or omission of a material
fact contained in the Preliminary Prospectus was corrected in the 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
Prospectus. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting", (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
any Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have
23
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 Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter,
24
and each person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time after the
execution of this Agreement and prior to such time (i) trading in any securities
of the Company shall have been suspended by the Commission or the New York Stock
Exchange or trading in securities generally on the New York Stock Exchange or
the Nasdaq National Market shall have been suspended or limited or minimum
prices shall have been established on such Exchange or the Nasdaq National
Market (ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors,
25
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 Salomon Smith Barney Inc. General
Counsel (fax no.: (212) 816-7912) and confirmed to the General Counsel, Salomon
Smith Barney Inc., at 388 Greenwich Street, New York, New York, 10013,
Attention: General Counsel and to the Morgan Stanley & Co. Incorporated General
Counsel (fax no.: (212) 761-0260) and confirmed to the General Counsel, Morgan
Stanley & Co. Incorporated, at 1585 Broadway, New York, New York 10036,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to the General Counsel, Loews Corporation (fax no.: (212)
935-6801) 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.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Carolina Group" shall have the meaning assigned thereto in the
Registration Statement.
"Carolina Group Companies" shall mean, collectively,
Lorillard, Inc., and each of its direct and indirect subsidiaries.
"Commission" shall mean the Securities and Exchange Commission.
26
"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.
"Material Adverse Effect" shall mean a material adverse effect on
the financial condition, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, or the Carolina Group, whether or
not arising from transactions in the ordinary course of business.
"Material Subsidiaries" shall mean CNA Financial
Corporation, Lorillard, Inc., Lorillard Tobacco Company, Loews Hotels
Holding Corporation, and Diamond Offshore Drilling, Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time or, if
no filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"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 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"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.
27
"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.
28
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:
------------------------
Name:
Title:
29
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Smith Barney Inc.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
J. P. Morgan Securities Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
By: Salomon Smith Barney Inc.
By:
--------------------------------
Name:
Title:
By: Morgan Stanley & Co. Incorporated
By:
--------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
[FORM OF LOCK-UP AGREEMENT] EXHIBIT A
[LETTERHEAD OF OFFICER OR DIRECTOR OF LOEWS
CORPORATION OR LETTERHEAD OF OFFICER OR DIRECTOR OF LORILLARD]
Loews Corporation
-----------------
Public Offering of Carolina Group Stock
---------------------------------------
, 2002
Salomon Smith Barney Inc.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
J. P. Morgan Securities Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
and
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between Loews
Corporation, a Delaware corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Carolina Group Stock, $0.01 par value (the
"Carolina Group Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Salomon Smith Barney Inc. and Morgan Stanley & Co. Incorporated,
offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due
2
to cash settlement or otherwise) by the undersigned or any affiliate of the
undersigned or any person in privity with the undersigned or any affiliate of
the undersigned), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of Carolina Group Stock or any securities
convertible into or exercisable or exchangeable for Carolina Group Stock, or
publicly announce an intention to effect any such transaction, for a period of
180 days after the date of the Underwriting Agreement, other than shares of
Carolina Group Stock disposed of as bona fide gifts approved by Salomon Smith
Barney Inc. and Morgan Stanley & Co. Incorporated.
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[FORM OF OPINION OF LORILLARD IN-HOUSE COUNSEL] EXHIBIT B
[FORM OF OPINION OF SHOOK, HARDY & BACON] EXHIBIT C
[FORM OF OPINION OF THOMPSON COBURN] EXHIBIT D
[FORM OF OPINION OF GREENBERG TRAURIG] EXHIBIT E
[FORM OF OPINION OF WEIL, GOTSHAL & MANGES] EXHIBIT F
[FORM OF OPINION OF BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD] EXHIBIT G
SCHEDULE I
----------
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
- ------------ --------------------------
Salomon Smith Barney Inc....................
Morgan Stanley & Co. Incorporated...........
Banc of America Securities LLC..............
Credit Suisse First Boston Corporation......
Goldman, Sachs & Co.........................
J. P. Morgan Securities Inc.................
Lehman Brothers Inc.........................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...............................
UBS Warburg LLC.............................
Total...........................
-------------------
EXHIBIT 5.1
-----------
[LETTERHEAD OF WACHTELL, LIPTON, ROSEN & KATZ]
January 23, 2002
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Loews Corporation, Registration No. 333-73138
-------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Loews Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-3, registration number 333-73138 (the
"Registration Statement"), first filed with the Securities and Exchange
Commission on November 9, 2001, relating to the issuance of 35,966,250 shares of
Carolina Group common stock, par value $0.01 per share (the "Carolina Group
tracking stock"), registered under the Securities Act of 1933, as amended (the
"Securities Act").
As counsel, we have examined the Registration Statement and such other
documents, records and other matters as we have deemed necessary or appropriate
in order to give the opinions set forth herein.
In giving the opinions contained herein, we have relied upon
representations of officers of the Company and certificates of public officials
with respect to the accuracy of the material factual matters addressed by such
representations and certificates. We have assumed the genuineness of all
signatures or instruments submitted to us, and the conformity of certified
copies submitted to us with the original documents to which such certified
copies relate.
We are members of the bar of the State of New York and we express no
opinion as to the laws of any jurisdiction other than the federal laws of the
United States, the Delaware General Corporation Law and the laws of the State of
New York.
Based upon and subject to the foregoing, it is our opinion that:
1. the Company is a duly organized and validly existing corporation
under the laws of the State of Delaware;
2. the issuance of the Carolina Group tracking stock has been duly
authorized by appropriate corporate action of the Company; and
3. when (i) the amendment to the Company's certificate of incorporation
approved by the stockholders of the Company at a meeting held on
January 4, 2002 is properly filed with the Secretary of State of
the State of Delaware and (ii) the Carolina Group tracking stock
has been issued and delivered pursuant to a sale in the manner
described in the Registration Statement, such Carolina Group
tracking stock will be validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to the reference to our firm in the Prospectus that is a part of
the Registration Statement. In giving such consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
/s/ WACHTELL, LIPTON, ROSEN & KATZ