EXHIBIT 1.1
LOEWS CORPORATION
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(a Delaware corporation)
[Common Stock],
[Preferred Stock]
and
Debt Securities
UNDERWRITING AGREEMENT
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[Date]
To the Representatives named in
Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Loews Corporation, a Delaware corporation (the "Company"), proposes
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to issue and sell to the underwriters named in Schedule II hereto (the
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"Underwriters"), for whom you are acting as representatives (the
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"Representatives"), the principal amount of its securities identified in
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Schedule I hereto (the "Securities"), which may be [(i) shares of
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common stock, par value $1.00 per share (the "Common Stock"), (ii) shares
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of preferred stock, par value $.10 per share (the "Preferred Stock"), or
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(iii)] senior or subordinated debt securities (the "Debt Securities") or any
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combination thereof.
[The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable certificate of designations (each, the "Certificate of
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Designations") relating to such series of Preferred Stock.]
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The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
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March 1, 1986, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee"), as supplemented by a first
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supplemental indenture, dated March 30, 1993, between the Company and the
Trustee and a second supplemental indenture, dated as of February 18, 1997,
between the Company and the Trustee (such Indenture, as supplemented, is
referred to as the "Senior Indenture"), or as subordinated indebtedness (the
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"Subordinated Debt Securities") under an indenture, dated as of December 1,
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1985, between the Company and the Trustee, as supplemented by a first
supplemental indenture, dated as of February 18, 1997, between the Company and
the Trustee and a second supplemental indenture, dated as of February 18, 1997,
between the Company and the Trustee (such Indenture, as supplemented, is
referred to as the "Subordinated Indenture," and collectively with the Senior
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Indenture, the "Indentures," and each, an "Indenture"). Each series of Debt
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Securities may vary, as applicable, as to title, aggregate principal amount,
rank, interest rate or formula and timing of payments thereof, stated maturity
date, redemption and/or repayment provisions, sinking fund requirements,
conversion provisions (and terms of the related Underlying Securities) and any
other variable terms established by or pursuant to the applicable Indenture.
As used herein, "Securities" means the [Common Stock, Preferred Stock,]
Senior Debt Securities or Subordinated Debt Securities, or any combination
thereof, initially issuable by the Company and, if Securities are convertible,
"Underlying Securities" means the Common Stock or Preferred Stock issuable upon
conversion of the [Preferred Stock,] Senior Debt Securities or Subordinated Debt
Securities, as applicable.
Schedule I hereto specifies the number or aggregate principal amount,
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as the case may be, of Securities to be initially issued (the "Initial
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Underwritten Securities"), whether such offering is on a fixed or variable
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price basis and, if on a fixed price basis, the initial offering price, the
price at which the Initial Underwritten Securities are to be purchased by the
Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities, as well as the material variable terms of any
related Underlying Securities. [In addition, if applicable, such Underwriting
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the number or aggregate principal amount, as the
case may be, of Securities subject to such option (the "Option Underwritten
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Securities").] As used herein, the term "Underwritten Securities" shall
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include the Initial Underwritten Securities [and all or any portion of any
Option Underwritten Securities.]
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-___) and
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pre-effective amendment[s] no[s]. thereto for the registration of the
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Securities and the Underlying Securities under the Securities Act of 1933, as
amended (the "Act"), and the offering thereof from time to time in
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accordance with Rule 415 of the rules and regulations of the
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Commission under the Act (the "Act Regulations"), and the Company has filed
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such post-effective amendments thereto as may be required prior to the
execution of this Underwriting Agreement. Such registration statement (as so
amended, if applicable) has been declared effective by the Commission and each
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). Such registration statement (as so
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amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the Act Regulations (the "Rule 430A
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Information") or Rule 434(d) of the Act Regulations (the "Rule 434
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Information"), is referred to herein as the "Registration Statement"; and
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the final prospectus and the final prospectus supplement relating to the
offering of the Underwritten Securities, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the "Final
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Prospectus"; provided, however, that all references to the
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"Registration Statement" and the "Final Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to
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the execution of this Underwriting Agreement; provided further, that
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if the Company files a registration statement with the Commission pursuant to
Rule 462(b) of the Act Regulations (the "Rule 462 Registration Statement"),
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then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement; and provided
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further, that if the Company elects to rely upon Rule 434 of the Act
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Regulations, then all references to "Final Prospectus" shall also be deemed to
include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
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first furnished to the Underwriters by the Company in reliance upon Rule 434 of
the Act Regulations, and all references in this Underwriting Agreement to the
date of the Final Prospectus shall mean the date of the Term Sheet. A
"Preliminary Prospectus" shall be deemed to refer to any prospectus used
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before the registration statement became effective and any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434 Information or
other information to be included upon pricing in a form of prospectus filed
with the Commission pursuant to Rule 424(b) of the Act Regulations, that was
used after such effectiveness and prior to the execution and delivery of this
Underwriting Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Final Prospectus, Term Sheet or
Preliminary Prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX"). Notwithstanding anything to the contrary in this Underwriting
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Agreement, if any revised Term Sheet, Preliminary Prospectus or Final
Prospectus, as the case may be, shall be provided to the Underwriters by the
Company for use in connection with the offering of the Securities which differs
from the prospectus on file at the Commission at the time the Registration
Statement becomes effective (whether or not such revised prospectus is required
to be filed by the Company pursuant to Rule 424(b) of the Act Regulations), the
terms "Term Sheet," "Preliminary Prospectus" or "Final Prospectus," as the
case may be, shall refer to such revised "Term Sheet," "Preliminary Prospectus"
or "Final Prospectus" from and after the time it is first provided to the
Underwriters for such use. Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
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Statement, Term Sheet, any Preliminary Prospectus or the Final Prospectus,
unless otherwise expressly provided therein, shall be deemed to refer to and
include the filing of any document under the Exchange Act after the date of this
Underwriting Agreement, or the issue date of the Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference.
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Final
Prospectus or Preliminary Prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Final Prospectus or
Preliminary Prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Final Prospectus or Preliminary Prospectus shall be deemed to mean
and include the filing of any document under the Exchange Act which is
incorporated by reference in the Registration Statement, Final Prospectus or
Preliminary Prospectus, as the case may be.
1. Representations and Warranties. The Company represents and
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warrants to each Underwriter as of the date hereof and as of the Closing Date
that:
(a) The Company meets the requirements for use of Form S-3 under
the Act.
(b) Each of this Underwriting Agreement and, if the Underwritten
Securities are Debt Securities [or if Preferred Stock is convertible into
Debt Securities,] the applicable Indenture is substantially in the form
filed as an exhibit to the Registration Statement at the time the
Registration Statement became effective (other than insofar as the
Indenture has been modified by the Supplemental Indenture), and, has been
duly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except that (A) the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect, relating to
creditors' rights generally, (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought, and (C) no representation is given as to the
enforceability of indemnification and contribution provisions of the
Underwriting Agreement.
(c) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Act and no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional
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information has been complied with. In addition, each Indenture has been
duly qualified under the Trust Indenture Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
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effective and as of the date hereof, the Registration Statement, any Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the Act and the Act Regulations and the Trust Indenture Act and the
rules and regulations of the Commission under the Trust Indenture Act
(the "Trust Indenture Act Regulations") and did not and will not
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contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Final Prospectus,
at the Closing Date and at each Date of Delivery, if any, the Final
Prospectus and any amendments and supplements thereto did not and will
not include an 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.
If the Company elects to rely upon Rule 434 of the Act Regulations, the
Company will comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this subsection shall not
apply to (i) statements in or omissions from the Registration Statement or
the Final Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of any
Underwriter expressly for use in the Registration Statement or the Final
Prospectus or (ii) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act Regulations and each
Preliminary Prospectus and the Final Prospectus delivered to the
Underwriters for use in connection with the offering of Underwritten
Securities will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Final Prospectus as of
the date hereof, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder (the "Exchange Act
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Regulations").
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(e) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Final
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of material
property or the conduct of material business, except where the failure to
so qualify or be in good standing would not result in a material
adverse change in the condition (financial or other), earnings, business
or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect").
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(f) [Include if the Underwritten Securities being sold pursuant to
this Underwriting Agreement include Common Stock: The Underwritten
Securities have been duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement. Such Underwritten Securities,
when issued and delivered by the Company pursuant to this Underwriting
Agreement against payment of the consideration therefor specified in this
Underwriting Agreement, will be validly issued, fully paid and non-
assessable and will not be subject to preemptive or other similar rights
of any securityholder of the Company. No holder of such Underwritten
Securities is or will be subject to personal liability by reason of being
such a holder.]
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(g) [Include if the Underwritten Securities being sold pursuant to
this Underwriting Agreement include Preferred Stock: The Underwritten
Securities have been duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement. The applicable Preferred Stock,
when issued and delivered by the Company pursuant to this Underwriting
Agreement against payment of the consideration therefor, will be validly
issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company.
No holder of such Preferred Stock is or will be subject to personal
liability by reason of being such a holder. The applicable Certificate of
Designations will be in full force and effect prior to the Closing Date.]
(h) [Include if the Underwritten Securities being sold pursuant to
this Underwriting Agreement include Senior Debt Securities and/or
Subordinated Debt Securities:] The Underwritten Securities have been duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in this
Underwriting Agreement, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles, and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States, and (C) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(i) [Include if the Underlying Securities related to the
Underwritten Securities being sold pursuant to this Underwriting Agreement
include Common Stock or Preferred Stock: The Underlying Securities have
been duly authorized and reserved for issuance by the Company upon
conversion of the related Preferred Stock, Senior Debt Securities or
Subordinated Debt Securities, as applicable.] [Include if the Underlying
Securities include Common Stock or Preferred Stock: The Underlying
Securities, when issued upon such exercise or conversion, as applicable,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of the
Company. No holder of such Common Stock or Preferred Stock is or will be
subject to personal liability by reason of being such a holder.] [Include
if the Underlying Securities related to the Underwritten Securities being
sold
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pursuant to this Underwriting Agreement include Senior Debt Securities
and/or Subordinated Debt Securities: The Underlying Securities have been
duly authorized for issuance by the Company upon conversion of the
related Preferred Stock. Such Underlying Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered in accordance with the terms of the related Preferred Stock
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements
that a claim with respect to any Debt Securities denominated other than
in U.S. dollars (or a foreign or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law, (B)
governmental authority to limit, delay or prohibit the making of payments
outside the United States and (C) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.]
(j) The Underwritten Securities being sold pursuant to this
Underwriting Agreement and each applicable Indenture, as of the date of
the Final Prospectus, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Final Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(k) The execution and delivery of this Underwriting Agreement and
each applicable Indenture, and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in the
Registration Statement and the Final Prospectus and the consummation of
the transaction contemplated herein and in the Registration Statement and
the Final Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the Underwritten
Securities as described under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
any agreements or instruments, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any applicable law, administrative regulation
or administrative or court decree which, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
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2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Underwritten Securities set
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forth opposite such Underwriter's name in Schedule II hereto, except that,
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if Schedule I hereto provides for the sale of Securities pursuant to
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delayed delivery arrangements, the respective principal amounts of Underwritten
Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities (as
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hereinafter defined) determined as provided below. Securities to be purchased
by the Underwriters are herein sometimes called the "Underwritten
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Securities" and Securities to be purchased pursuant to Delayed Delivery
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Contracts as hereinafter provided are herein called "Contract Securities."
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[In addition, subject to the terms and conditions herein set forth, the
Company may grant, if so provided in Schedule I, an option to the
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Underwriters, severally and not jointly, to purchase up to the number or
aggregate principal amount, as the case may be, of the Option Underwritten
Securities set forth therein at a price per Option Underwritten Security equal
to the price per Initial Underwritten Security, less an amount equal to any
dividends or distributions declared by the Company and paid or payable on the
Initial Underwritten Securities but not payable on the Option Underwritten
Securities. Such option, if granted, will expire 30 days after the date of
this Underwriting Agreement, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by the Representatives to the Company setting forth the
number or aggregate principal amount, as the case may be, of Option
Underwritten Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery for
such Option Underwritten Securities. Any such time and date of payment and
delivery shall be determined by the Representatives, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Date, unless otherwise agreed upon by the
Representatives and the Company. If the option is exercised as to all or any
portion of the Option Underwritten Securities, each of the Underwriters,
severally and not jointly, will purchase that amount which shall bear the same
proportion to the total principal amount of Option Underwritten Securities as
the principal amount of Securities set forth opposite the name of such
Underwriter bears to the aggregate principal amount of Securities set forth in
Schedule II hereto, except to the extent that you determine that such
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reduction shall be otherwise than in such proportion and so advise the Company
in writing.]
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If so provided in Schedule I hereto, the Underwriters are authorized
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to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the
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form of Schedule III hereto but with such changes therein as the Company
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may authorize or approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
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Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto and the
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aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The
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Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Securities
to be purchased by each Underwriter as set forth in Schedule II hereto
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shall be reduced by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount of Securities
set forth opposite the name of such Underwriter bears to the aggregate
principal amount of Securities set forth in Schedule II hereto, except to
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the extent that you determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing; provided,
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however, that, subject to Section 9 hereof, the total principal amount
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of Securities to be purchased by all Underwriters shall be the aggregate
principal amount of Securities set forth in Schedule II hereto less the
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aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
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Underwritten Securities shall be made at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be postponed by
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agreement between the Representatives and the Company or as provided in Section
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9 hereof (such date and time of delivery and payment for the Underwritten
-
Securities being herein called the "Closing Date"). In addition, in the event
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that the Underwriters have exercised their option, if any, to purchase any or
all of the Option Underwritten Securities, payment of the purchase price for,
and delivery of such Option Underwritten Securities, shall be made at the
location set forth on Schedule I, or at such other place as shall be agreed upon
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by the Representatives and the Company, as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representatives for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the
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purchase price for, the Underwritten Securities which it has severally agreed
to purchase. The Representatives, individually and not as representative of
the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Underwritten Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Date, as the case
may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
Certificates for the Underwritten Securities shall be registered in such
names and in such denominations as the Representatives may request not less
than two full business days in advance of the Closing Date. The Company agrees
to have the Underwritten Securities available for inspection, checking and
packaging by the Representatives in New York, New York, not later than 1:00
p.m. on the business day prior to the Closing Date.
4. Agreements. (a) The Company agrees with the several
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Underwriters that:
(i) Until the earlier of (X) the termination of the offering of
the Underwritten Securities, and (Y) six months from the date of this
Underwriting Agreement, the Company will not file any amendment (other
than amendments resulting from the filing of the documents incorporated
by reference pursuant to Item 12 of Form S-3 under the Act) of the
Registration Statement or the Final Prospectus) unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably object.
The Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424. The Company will promptly advise the
Representatives (A) when the Final Prospectus shall have been filed with
the Commission pursuant to Rule 424, (B) when any amendment to the
Registration Statement relating to the Underwritten Securities shall have
become effective, (C) of any request by the Commission for any amendment
of the Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (D) 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 (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Underwritten Securities is required to be delivered under the Act, any
event occurs as a result of which, the Final Prospectus as then amended
or 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 or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the
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Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a)(i) of this Section 4, an
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amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance.
(iii) The Company will comply with the Act and the Act Regulations
and the Exchange Act and the Exchange Act Regulations so as to permit the
completion of the distribution of the Underwritten Securities as
contemplated in this Underwriting Agreement and in the Registration
Statement and the Final Prospectus. If at any time when the Final
Prospectus is required by the Act or the Exchange Act to be delivered in
connection with sales of the Underwritten Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or for the Company, to amend
the Registration Statement in order that the Registration Statement will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Final
Prospectus in order that the Final Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the Final
Prospectus in order to comply with the requirements of the Act or the Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 4(a)(i), such amendment or supplement
---------------
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Final Prospectus comply with such
requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(iv) The Company will make generally available to its
securityholders and to the Representatives not later than 90 days after
the end of the 12-month period beginning at the end of the current fiscal
quarter of the Company an earnings statement or statements of the Company
and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(v) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein), and each amendment to the Registration Statement
which shall become effective on or prior to the Closing Date and, so long
as delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Prospectus and the Final
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request and the Company hereby consents to
the use of such copies for purposes
-12-
permitted by the Act. The Company will pay the expenses of printing or
other production of all documents relating to the offering. The Final
Prospectus and copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(vi) The Company will arrange for the qualification of the
Underwritten Securities for sale under the laws of such jurisdictions as
the Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of the
Underwritten Securities and will arrange for the determination of the
legality of the Underwritten Securities for purchase by institutional
investors; provided, however, the Company shall not be obligated
-------- -------
to file any general consent to service of process under the laws of any
such jurisdiction, subject itself to taxation as doing business in any
such jurisdiction, or qualify to do business as a foreign corporation in
any such jurisdiction. The Company will pay all reasonable expenses
(including fees and disbursements of counsel) in connection with such
qualification (such expenses, fees and disbursements not to exceed in the
aggregate $5,000).
(vii) The Company, during the period when the Final Prospectus is
required to be delivered under the Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section
13, 14 or 15 of the Exchange Act within the time periods required by the
Exchange Act and the Exchange Act Regulations.
(viii) Between the date hereof and the Closing Date, the Company
will not, without the prior consent of the Representatives, offer or
sell, or enter into any agreement to sell, in the case of Debt
Securities, any debt securities of the Company with a maturity of more
than one year, including additional Underwritten Securities or, in the
case of any other Securities, the Securities specified in Schedule I.
----------
(ix) [Include if this Underwriting Agreement specifies that any
related Underlying Securities include Common Stock or Preferred Stock: The
Company will reserve and keep available at all times, free of preemptive
or other similar rights, a sufficient number of shares of Common Stock
and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities
upon conversion of the Preferred Stock, Senior Debt Securities or
Subordinated Debt Securities, as applicable.]
-13-
(b) The Underwriters agree to notify the Company promptly upon
completion by it of the sale of the Underwritten Securities.
5. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Underwriting
Agreement, including (a) the preparation, printing, filing and mailing of the
Registration Statement as originally filed and of each amendment thereto; (b)
the printing of this Underwriting Agreement, any applicable Indentures and any
blue sky and legal investment surveys and any other documents in connection
with the offering, purchase, sale and delivery of the Underwritten Securities;
(c) the preparation, issuance, and delivery to the Underwriters of the
certificates for the Underwritten Securities and any related Underlying
Securities, any certificates for the Underwritten Securities or such Underlying
Securities, to the Underwriters, including any transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Underwritten
Securities to the Underwriters; (d) the fees and disbursements of the Company's
counsel and accountants; (e) the qualification of the Securities under state
securities laws in accordance with this Underwriting Agreement, including
filing fees and the fee and disbursements of your counsel in connection
therewith and in connection with the preparation of the blue sky and legal
investment surveys in accordance with Section 4(a)(vi); (f) the printing
----------------
and delivery to you of copies of the Registration Statement as originally filed
and of each amendment thereto, of the Preliminary Prospectuses, and of the
Final Prospectus and any amendments or supplements thereto; (g) the costs of
preparing the Securities; (h) the fees, if any, of the National Association of
Securities Dealers, Inc.; (i) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture; (j) if the Company determines to request rating of the Underwritten
Securities by particular rating agencies, any fees payable in connection with
such rating of the Underwritten Securities by such rating agencies; and (k) the
fees and expenses incurred, if any, in connection with the listing of the
Underwritten Securities.
6. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the Act and no stop
order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened, and any request on
the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the
description of the
-14-
Underwritten Securities and any related Underlying Securities, the
specific method of distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424(b) (or any required
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the Act
Regulations, a Term Sheet including the Rule 434 Information shall have
been filed with the Commission in accordance with Rule 424(b)(7).
(b) The Company shall have furnished to the Representatives the
opinion of the General Counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Final Prospectus and to enter into and perform its obligations
under, or as contemplated under, the Underwriting Agreement, 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 wherein it owns or leases material properties or
conducts material business where the failure to be in good standing
or so qualified would result in a Material Adverse Effect;
(ii) each of Lorillard, Inc. and CNA Financial Corporation
(each a "Subsidiary" and together the "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 its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business where the
failure to be in good standing or so qualified would have a Material
Adverse Effect;
-15-
(iii) all the outstanding shares of capital stock of each
Subsidiary that are owned by the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the 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
interests, claims, liens or encumbrances;
(iv) the Securities and any Underlying Securities, when
issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respect to
the description thereof contained in the Final Prospectus;
(v) [Include if the Underwritten Securities being sold
pursuant to the Underwriting Agreement include Common Stock:
The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting
Agreement. The Underwritten Securities, when issued and delivered
by the Company pursuant to the Underwriting Agreement against
payment of the consideration therefor specified in such Agreement,
will be validly issued, fully paid and non-assessable and will not
be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of the Underwritten
Securities is or will be subject to personal liability by reason of
being such a holder. The form of certificate used to evidence the
Underwritten Securities is in due and proper form and complies with
the applicable statutory requirements, with any applicable
requirements of the Restated Certificate of Incorporation or
By-laws of the Company and with the requirements of any applicable
stock exchange.]
(vi) [Include if the Underwritten Securities being sold
pursuant to the Underwriting Agreement include Preferred Stock:
The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting
Agreement. The applicable Preferred Stock, when issued and
delivered by the Company pursuant to the Underwriting Agreement
against payment of the consideration therefor specified in the
Underwriting Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other
similar rights of any securityholder of the Company. No holder of
such Preferred Stock is or will be subject to personal liability by
reason of being such a holder. The form of certificate used to
evidence the Preferred Stock is in due and proper form and complies
with the applicable statutory requirements, with any applicable
-16-
requirements of the Restated Certificate of Incorporation or By-laws
of the Company. The applicable Certificate of Designations will be
in full force and effect prior to the Closing Date.]
(vii) [Include if the Underwritten Securities being sold
pursuant to the Underwriting Agreement include Senior Debt
Securities and/or Subordinated Debt Securities:] The Underwritten
Securities have been duly authorized by the Company for issuance
and sale pursuant to the Underwriting Agreement. The Underwritten
Securities, when issued and authenticated in the manner provided
for in the applicable Indenture and delivered against payment of
the consideration therefor specified in the Underwriting Agreement,
will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with
respect to any Debt Securities denominated other than in U.S.
dollars (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of
payments outside the United States. The Underwritten Securities
are in the form contemplated by, and each registered holder thereof
is entitled to the benefits of, the applicable Indenture.
(viii) [Include if the Underwritten Securities being sold
pursuant to the Underwriting Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred
Stock is convertible into Debt Securities:] The [Each]
applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution
and delivery thereof by the applicable Trustee) constitutes a valid
and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
(ix) [Include if the Underlying Securities related to the
Underwritten Securities being sold pursuant to the Underwriting
Agreement include Common Stock or Preferred Stock: [The Underlying
Securities have been duly authorized and reserved for issuance by
the Company upon exercise of the [Common Stock] [Preferred Stock]
[upon conversion of the related [Preferred Stock] [Senior Debt
Securities] [Subordinated Debt Securities]]. The Underlying
Securities, when issued upon such [exercise] [conversion], will be
validly issued, fully paid and non-assessable and will not be
subject to
-17-
preemptive or other similar rights of any securityholder of the
Company. No holder of the Underlying Securities is or will be
subject to personal liability by reason of being such a holder.]
[Include if the Underlying Securities related to the Underwritten
Securities being sold pursuant to the Underwriting Agreement
include Senior Debt Securities and/or Subordinated Debt
Securities:] The Underlying Securities have been duly authorized
for issuance by the Company [upon exercise of the Debt Securities]
[upon conversion of the related Preferred Stock]. The Underlying
Securities, when issued and authenticated in the manner provided
for in the applicable Indenture and delivered in accordance with
the terms of the [Debt Securities] [related Preferred Stock], will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles, and except further as enforcement thereof may
be limited by (A) requirements that a claim with respect to any
Debt Securities denominated other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be
converted in U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
outside the United States.
(x) there is no pending or, to the best knowledge of such
counsel, threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed
as an exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such matters in
all material respects;
(xi) the Registration Statement and any amendments thereto
have become effective under the Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued, no proceedings
for that purpose have been instituted or threatened, and the
Registration Statement, the Final Prospectus and each amendment
thereof or supplement thereto as of their respective effective or
issue dates (other than the financial statements and other
financial and statistical information contained therein as to which
such counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective
-18-
rules thereunder; and such counsel has no reason to believe that
the Registration Statement, or any amendment thereof, at the time
it became effective and at the date of this Underwriting Agreement,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Final
Prospectus, as amended or supplemented, as of its date and as of
the date hereof, includes any untrue statement of a material fact
or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading;
(xii) this Underwriting Agreement has been and any Delayed
Delivery Contracts, when executed, will have been duly authorized,
executed and delivered by the Company;
(xiii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein
or in the Delayed Delivery Contracts, except such as have been
obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Underwritten Securities by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained;
(xiv) Neither the issue and sale of the Underwritten
Securities, nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms hereof or of
any Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the Restated Certificate of
Incorporation or By-laws of the Company or the terms of any
indenture or other agreement or instrument known to such counsel and
to which the Company is a party or bound, or any order or regulation
known to such counsel to be applicable to the Company of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company; and
(xv) the Company is not now, and upon the sale of the
Underwritten Securities to be sold by it hereunder and application
of the net proceeds from such sale as described in the Final
Prospectus under "Use of Proceeds" will
-19-
not be, an "investment company" within the meaning of 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
corporate laws of the State of Delaware and the laws of the State of New
York or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed
to be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received from
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the matters set forth in Exhibit A hereto.
---------
In giving such opinion, such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of New York,
the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by a Co-Chairman of the Board, the
President or a Vice President, and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus and this Underwriting Agreement and that:
(i) the representations and warranties of the Company in
this Underwriting 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 and the Company has complied with all the
agreements and satisfied all the
-20-
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, as amended, 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 in the Company's [annual] [quarterly] report on Form
[10-K] [10-Q] for the [year] [quarter] ended [ ],
----------
there has been no Material Adverse Effect, except as set forth in
the Final Prospectus.
(e) At the Closing Date, the Company's independent accountants
shall have furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to the Representatives), dated 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
published rules and regulations thereunder, that the response to Item 10
of the Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the amounts included or
incorporated in the Registration Statement and the Final Prospectus
in response to Item 301 of Regulation S-K and of the latest
unaudited financial statements made available by the Company and
its subsidiaries; carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders,
directors and committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
and its subsidiaries as to transactions and events subsequent to
the date of the most recent audited financial statements
incorporated in the Registration Statement and the Final
Prospectus, nothing came to their attention which caused them to
believe that:
-21-
(1) the amounts in the unaudited Selected Consolidated
Financial Data and Capitalization, if any, included in the
Registration Statement and the Final Prospectus and the
amounts included or incorporated in the Registration
Statement and the Final Prospectus in response to Item 301 of
Regulation S-K, do not agree with the corresponding amounts
in the audited financial statements from which such amounts
were derived;
(2) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects
with applicable accounting requirements and with the
published rules and regulations of the Commission with
respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited financial statements are not stated (except as
permitted by Form 10-Q) in conformity with GAAP applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(3) with respect to the period subsequent to the date
of the most recent financial statements included or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter,
in the long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
stockholders' equity of the Company and its subsidiaries as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
included or incorporated in the Registration Statement and
the Final Prospectus to such specified date there were any
decreases, as compared with the corresponding period in the
preceding year, in total revenues, or in total or per share
amounts of income before income taxes or of net income, of
the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives;
and
(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) set forth in the
Registration Statement and the Final Prospectus and in Exhibit 12
-22-
to the Registration Statement, including the information included
or incorporated in Items 1, 6, and 7 of the Company's annual report
on Form 10-K, incorporated in the Registration Statement and the
Final Prospectus, or in "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's quarterly reports on Form 10-Q or in
any Form 8-K, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Registration Statement and the Final Prospectus
in this paragraph (e) are to such documents as amended and
-------------
supplemented at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
----------
time this Underwriting Agreement is executed, the Company's independent
public accountants shall have furnished to the Representatives a letter or
letters, dated the date of this Underwriting Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(f) Since the time of execution of this Underwriting Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Company's debt securities by any "nationally recognized statistical rating
organization," as defined by the Commission for purposes of Rule 436(g)(2)
of the Act Regulations, and no such rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative consequences, its rating of the Company's debt securities.
(g) At Closing Date, the Underwritten Securities shall have been
approved for listing, subject only to official notice of issuance, if and
as specified in Schedule I hereto.
----------
(h) In the event that the Underwriters are granted an
over-allotment option by the Company and the Underwriters exercise their
option to purchase all or any portion of the Option Underwritten
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company or
any of its subsidiaries hereunder shall be true and correct as of
each
-23-
Closing Date, and, at the relevant Closing Date, the Representatives
shall have received:
(i) A certificate, dated such Closing Date, of a Co-Chairman
of the Board, the President or a Vice President of the Company and
the principal financial officer or accounting officer of the
Company, confirming that the certificate delivered at the Closing
Date pursuant to Section 5(d) hereof remains true and correct as of
------------
such Closing Date.
(ii) The opinion of the General Counsel for the Company,
dated the Closing Date, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required
by Section 6(b) hereof.
------------
(iii) The opinion of the counsel for the Underwriters, dated
the Closing Date, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section 6(c)
------------
hereof.
(iv) A letter from the Company's independent accountants, in
form and substance satisfactory to the Representatives and dated
such Closing Date, substantially in the same form and substance as
the letter furnished to the Representatives pursuant to Section
--------
6(e) hereof, except that the "specified date" on the letter
----
furnished pursuant to this paragraph shall be a date not more than
three business days prior to such Closing Date.]
(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(j) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
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
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and their counsel, this Underwriting Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or telecopy confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Underwritten Securities provided for herein is not consummated because any
condition to the obligations of
-24-
the Underwriters set forth in Section 6 hereof is not satisfied, 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, or because of the termination of this
Underwriting Agreement under Section 10, the Company will reimburse the
----------
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Underwritten
Securities; such obligation of the Company to reimburse the Underwriters shall
serve as the exclusive remedy of the Underwriters with respect to the Company.
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless 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 Final Prospectus or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
--------
however, that (i) 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 use in connection with the preparation
thereof, (ii) such indemnity with respect to any Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as
amended or supplemented) excluding documents incorporated therein by reference
at or prior to the confirmation of the sale of such Underwritten Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in any Preliminary
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented), and (iii) such indemnity with respect to the Final
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) with respect to the use of such Final Prospectus
in any manner subsequent to the period during which the Act required the
delivery thereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have. The Company shall not, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of
-25-
judgment in any pending or threatened action, claim, litigation or proceeding
in respect of which indemnification may be sought hereunder (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such action, claim, litigation or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party.
(b) Each Underwriter severally 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 use
in the preparation of 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, the stabilization legend,
under the heading "Plan of Distribution" and, if Schedule I hereto provides for
----------
sales of Securities pursuant to delayed delivery arrangements, in the
last sentence under the heading "Delayed Delivery Arrangements" in any
Preliminary Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(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 omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought
---------
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in
-------- -------
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, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred
---------
by such indemnified party in connection with the defense thereof
-26-
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph
---------
(a) of this Section 8, representing the indemnified parties under such
--- ---------
paragraph (a) who are parties to such action), (ii) the indemnifying party
-------------
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
---------- -----
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
--------- -----
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
-------------
this Section 8 is due in accordance with its terms but is for any reason
---------
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the sum
of such discount and the purchase price of the Securities specified in
Schedule I hereto and the Company is responsible for the balance;
----------
provided, however, that (y) in no case shall any Underwriter (except as
-------- -------
may be provided in any agreement among underwriters relating to the offering of
the Underwritten Securities) be responsible for any amount in excess of the
underwriting discount applicable to the Underwritten Securities purchased by
such Underwriter hereunder and (z) 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 the Act or the Exchange Act shall
have the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to clause (y) of this paragraph (d).
---------- -------------
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom
-------------
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have hereunder or otherwise than under
this paragraph (d).
-------------
9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Underwritten Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default
-27-
in the performance of its obligations under this Underwriting Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Underwritten Securities set
forth opposite their names in Schedule II hereto bears to the aggregate
-----------
amount of Underwritten Securities set forth opposite the names of all the
remaining Underwriters) the Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate amount of Underwritten
-------
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of Underwritten Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
-----------
right to purchase all, but shall not be under any obligation to purchase any,
of the Underwritten Securities, and if such nondefaulting Underwriters do not
purchase all the Underwritten Securities, this Underwriting 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 seven
-
days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Underwriting 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 and Liabilities. (a) Termination. This Underwriting
----------- --------------- -----------
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 Underwritten Securities, if after the date of this Underwriting
Agreement and prior to such time (i) there has been, since the respective dates
as of which information is given in the Registration Statement, any Material
Adverse Effect except as set forth in the Final Prospectus, (ii) there has
occurred any outbreak of hostilities or material escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such to make it, in the Underwriter's judgment,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, (iii) if trading in any securities of
the Company shall have been suspended by the Commission, (iv) if trading
generally on, the New York Stock Exchange has been suspended or limited, or
minimum and maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said Exchange or by order of the
Commission or any other governmental authority, or (v) a banking moratorium
shall have been declared either by Federal or New York State authorities, or if
the Underwritten Securities or any Underlying
-28-
Securities include Debt Securities denominated or payable in, or indexed to,
one or more foreign or composite currencies, by the relevant authorities in the
related foreign country or countries.
(b) Liabilities. If this Underwriting Agreement is terminated
-----------
pursuant to this Section 10, such termination shall be without liability of
----------
any party to any other party except as provided in Sections 5 and 7
---------- -
hereof, and provided further that Sections 1, 8 and 11 shall
---------- - --
survive such termination and remain in full force and effect.
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 Underwriting 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 or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
---------
Underwritten Securities.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered, sent by or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or confirmed telecopy at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of the Corporate Secretary.
13. Successors. This Underwriting Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
---------
hereunder.
14. Applicable Law. This Underwriting Agreement will be governed by
--------------
and construed in accordance with the laws of the State of New York.
15. Counterparts. This Underwriting Agreement may be signed in
------------
various counterparts which together shall constitute one and the same
instrument.
-29-
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 Underwriter.
Very truly yours,
LOEWS CORPORATION
By:
--------------------------
Its:
-----------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
----------
By:
----------------------------
Its:
-------------------------
For itself and the other
several Underwriters, if any,
named in Schedule II to the
-----------
foregoing Agreement.
-30-
SCHEDULE I
Underwriting Agreement dated ,
--------------- ----
Registration Statement No. 333-_____
Representatives:
The Underwritten Securities shall have the following terms:
[Common Stock]
------------
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
---------------
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share:$ plus accumulated
----------
dividends, if any, from ___________
Purchase price per share: $______ plus accumulated dividends, if any,
from ________
Other terms and conditions:
Closing date and location:
[Debt Securities]
---------------
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering:[Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: ___%
of the principal amount, plus accrued interest [amortized original issue
discount], if any, from .
-----------
Purchase price per share: % of principal amount, plus accrued interest
---
[amortized original issue discount], if any,
from ________
Form:
Other terms and conditions:
Closing date and location:
Delayed Delivery Arrangements:
Modification of items to be covered by the letter from the Company's independent
accountants delivered pursuant to Section 5(e) at the time this Underwriting
Agreement is executed:
-2-
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
Total............................... $
-----------
SCHEDULE III
LOEWS CORPORATION
Delayed Delivery Contract
[Date]
Dear Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Loews Corporation (the
"Company"), and the Company agrees to sell to the undersigned, on ____ __, ____
(the "Delivery Date"), [___________ of the Company's __________] (the
"Securities") offered by the Company's Prospectus dated ________ __, ____, and
related Prospectus Supplement dated _______ __, ____, receipt of a copy of
which is hereby acknowledged, at a purchase price of ________, plus [accrued
interest] [accrued dividends] [amortization of original issue discount], if
any, thereon from __________ __, ____, to the date of payment and delivery, and
on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 a.m., New York City time, on the Delivery Date to or
upon the order of the Company in same day funds, at the office of the Company,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, upon delivery to the undersigned of the
Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written or telegraphic communication addressed to the Company not less than
three full business days prior to the Delivery Date. If no request is
received, the Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Securities
to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters")
such [principal] amount of the Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after completion of such sale
to the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the failure of
any purchase to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
-2-
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
________________________________
(Name of Purchaser)
By______________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
Loews Corporation
By__________________________
(Authorized Signature)
-3-
Exhibit A
FORM OF OPINION OF UNDERWRITER'S COUNSEL
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(3) [Include if the Underwritten Securities being sold pursuant to the
Underwriting Agreement include Common Stock--] The Underwritten Securities
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement. The Underwritten Securities, when issued and delivered
by the Company pursuant to the Underwriting Agreement against payment of the
consideration therefor specified in such Agreement, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or other
similar rights of any securityholder of the Company. No holder of the
Underwritten Securities is or will be subject to personal liability by reason
of being such a holder.
(4) [Include if the Underwritten Securities being sold pursuant to the
Underwriting Agreement include Preferred Stock--] The Underwritten Securities
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement. The applicable Preferred Stock, when issued and
delivered by the Company pursuant to the Underwriting Agreement against payment
of the consideration therefor specified in the Underwriting Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of such Preferred Stock is or will be subject to personal liability by
reason of being such a holder.
(5) [Include if the Underwritten Securities being sold pursuant to the
Underwriting Agreement include Senior Debt Securities and/or Subordinated Debt
Securities--] The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement. The
Underwritten Securities, when issued and authenticated in the manner provided
for in the applicable Indenture and delivered against payment of the
consideration therefor specified in the Underwriting Agreement, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by general
equitable principles, and except further as enforcement thereof may be limited
by (A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite currency
-4-
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Underwritten Securities are in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the applicable Indenture.
(6) [Include if the Underwritten Securities being sold pursuant to the
Underwriting Agreement include Senior Debt Securities and/or Subordinated Debt
Securities or if Preferred Stock is convertible into Debt Securities--] The
[Each] applicable Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery thereof by
the applicable Trustee) constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as of the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(7) [Include if the Underlying Securities related to the Underwritten
Securities being sold pursuant to the Underwriting Agreement include Common
Stock or Preferred Stock--] The Underlying Securities have been duly
authorized and reserved for issuance by the Company [upon exercise of the
[Common Stock] [Preferred Stock]] [upon conversion of the related [Preferred
Stock] [Senior Debt Securities] [Subordinated Debt Securities]]. The
Underlying Securities, when issued upon such [exercise] [conversion], will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of the Underlying Securities is or will be subject to personal liability
by reason of being such a holder. [Include if the Underlying Securities
related to the Underwritten Securities being sold pursuant to the Underwriting
Agreement include Senior Debt Securities and/or Subordinated Debt Securities--]
The Underlying Securities have been duly authorized for issuance by the Company
[upon conversion of the related [Preferred Stock]]. The Underlying Securities,
when issued and authenticated in the manner provided for in the applicable
Indenture and delivered in accordance with the terms of the [related Preferred
Stock], will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted in U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the making of payments
outside the United States.
(8) The Underwritten Securities being sold pursuant to the Underwriting
Agreement and the [each] applicable [Indenture] conform, and any Underlying
Securities, when issued and delivered in accordance with the terms of the
related Underwritten Securities, will
-5-
conform, in all material respect so the statements relating thereto contained
in the Final Prospectus and are in substantially the form filed or incorporated
by reference, as the case may be, as an exhibit to the Registration Statement.
(9) The information in the Final Prospectus under "Description of
Underwritten Securities" and "Description of Underlying Securities," if any, or
any caption purporting to describe any such Securities, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's Restated
Certificate of Incorporation and By-laws or legal proceedings, or legal
conclusions, has been reviewed by [us] and is correct in all material
respects.
(10) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Final Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b). To the best of [our] [my] knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been initiated or are pending or
threatened by the Commission.
(11) The Registration Statement and the Final Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement
to the Registration Statement and Final Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules included
therein or omitted therefrom and each Trustee's Statement of Eligibility on
Form T-1 (the "Form T-1s"), as to which [we] [I] express no opinion) complied
as to form in all material respects with the requirements as of the 1933 Act
and the 1933 Act Regulations.
Nothing has come to [our] [my] attention that would lead [us] [me] to
believe that the Registration Statement or any post-effective amendment thereto
(except for financial statements and schedules and other financial and
statistical data included therein or omitted therefrom and for the Form T-1s,
as to which [we] [I] make no statement), at the time the Registration Statement
or any post-effective amendment thereto (including the filing of the Company's
Annual Report on Form 10-K with the Commission) became effective or at the date
of the Underwriting Agreement, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Final Prospectus or
any amendment or supplement thereto (except for financial statements and
schedules and other financial and statistical data included therein or omitted
therefrom, as to which [we] [I] make no statement), at the time the Final
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Date, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
-6-
