UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
Vector Group Ltd.
(Name of Issuer)
Common Shares
(Title of Class of Securities)
112525100
(CUSIP Number)
Marc Weitzen, Esq., General Counsel
Icahn Associates Corp. and affiliated companies
767 Fifth Avenue, 47th floor
New York, New York 10153
(212) 702-4388
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 16, 2001
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
(Amendment No. 3)
CUSIP No. 112525100
1 NAME OF REPORTING PERSON
High River Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
1,990,934
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,990,934
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,990,934
12 CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.66%
14 TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
(Amendment No. 3)
CUSIP No.112525100
1 NAME OF REPORTING PERSON
Barberry Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,990,934
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,990,934
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,990,934
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.66%
14 TYPE OF REPORTING PERSON*
CO
SCHEDULE 13D
(Amendment No. 3)
CUSIP No.112525100
1 NAME OF REPORTING PERSON
Carl C. Icahn
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,990,934
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,990,934
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,990,934
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.66%
14 TYPE OF REPORTING PERSON*
IN
SCHEDULE 13D
(Amendment No. 3)
CUSIP No. 11252100
1 NAME OF REPORTING PERSON
Gail Golden
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
12,548
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
12,548
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,548
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.048%
14 TYPE OF REPORTING PERSON*
IN
SCHEDULE 13D
(Amendment No. 3)
Item 1. Security and Issuer
The Schedule 13D filed with the U.S. Securities and Exchange Commission
on January 28, 1998, by the Registrants, as amended on October 7, 1998 and on
April 28, 2000, relating to the common shares, $0.10 par value (the "Shares"),
of Vector Group Ltd. (f/k/a Brooke Group Ltd.) (the "Issuer"), is amended to
furnish the additional information set forth herein. All capitalized terms
contained herein but not otherwise defined shall have the meaning ascribed to
such terms in the previously filed statement on Schedule 13D.
Item 2. Identity and Background
Item 2 is hereby amended to add the following:
As of October 23, 2000, Riverdale ceased to be the general partner of
High River and Barberry Corp., a Delaware corporation ("Barberry"), became the
general partner of High River. The principal business address and the address
of the principal office of: (i) Barberry is 100 South Bedford Road, Mt. Kisco,
NY 10549, and (ii) Gail Golden is c/o Icahn Associates Corp., 767 Fifth Avenue,
47th Floor, New York, NY 10153.
Barberry is 100% owned by Carl C. Icahn and is principally engaged in
the business of investing in securities.
The principal occupation or employment of Gail Golden, who is the
spouse of Carl C. Icahn, is acting as Vice Chairman of Lowestfare, LLC, an
internet based travel agency indirectly wholly-owned by Mr. Icahn. Ms. Golden
also acts as an officer of various other entities, indirectly or directly,
wholly-owned by Mr. Icahn.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price of the 9,267 Shares purchased by the
Registrants not previously reported on a Schedule 13D by the Registrants was
$304,383.23 (including commissions). The source of funding for the purchase of
these Shares was general working capital of High River and personal funds of
Gail Golden.
On May 16, 2001, High River entered into a stock purchase agreement
with Vector Group, Ltd. whereby High River has agreed to purchase and the Issuer
has agreed to sell to High River 1,639,344 Shares for $50,000,000. The source of
funding for the purchase of the foregoing Shares will be the general working
capital of High River.
Item 5. Interest in Securities of the Issuer
(a) On May 16, 2001, High River entered into a stock purchase agreement
with Vector Group, Ltd. whereby High River has agreed to purchase and the Issuer
has agreed to sell to High River 1,639,344 shares for $50,000,000 (the
"Additional Shares"), attached hereto as Exhibit 2. The closing (the "Closing")
of the purchase of the Additional Shares is conditioned upon the expiration or
termination of the waiting period under the Hart-Scott-Rodino Act and the
acceptance of the Additional Shares for listing by the New York Stock Exchange.
As of the close of business on May 15, 2001, Registrants may be deemed to
beneficially own, in the aggregate, 2,003,482 Shares representing approximately
7.71% of the Issuer's outstanding Shares (based upon the 25,994,721 Shares
stated to be outstanding as of May 11, 2001 by the Issuer in the Issuer's Form
10-Q filing, filed with the Securities and Exchange Commission on May 15, 2001).
Following the Closing, Registrants may be deemed to beneficially own, in the
aggregate, 3,642,826 Shares representing approximately 13.18% of the Issuers
outstanding Shares.
(b) High River has sole voting power and sole dispositive power with
regard to 1,990,934 Shares. As of October 23, 2000 Barberry has shared voting
power and shared dispositive power with regard to 1,990,934 Shares, previously
beneficially owned by Riverdale. Carl C. Icahn has shared voting power and
shared dispositive power with regard to 1,990,934 Shares. Gail Golden has sole
voting power and sole dispositive power with regard to 12,548 Shares.
Barberry and Mr. Icahn, by virtue of their relationships to High River
(as disclosed in Item 2), may be deemed to beneficially own (as that term is
defined in Rule 13d-3 under the Act) the Shares which High River directly
beneficially owns. Each of Barberry and Mr. Icahn disclaims beneficial ownership
of such Shares for all other purposes.
(c) The following table sets forth all transactions with respect to
Shares effected by any of the Registrants during the past sixty days. All such
transactions were effected in the open market.
No. of Shares Price
Name Date Purchased Per Share
High River 5/9/01 3,100 $30.5419
Gail Golden 5/8/01 2,500 $32.15
Gail Golden 4/26/00 1,000 $34.75
Gail Golden 4/26/01 1,667 $35.00
Gail Golden 4/26/01 1,000 $34.50
Item 7. Material to be Filed as Exhibits
1. Joint Filing Agreement of the Registrants
2. Stock Purchase Agreement, dated May 16, 2001, between Vector Group Ltd.
and High River Limited Partnerships.
SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, each of the undersigned certify that the information set forth in
this statement is true, complete and correct.
Dated: May 16, 2001
HIGH RIVER LIMITED PARTNERSHIP
By: BARBERRY CORP,
General Partner
By: /s/ Edward E. Mattner
---------------------------
Name: Edward E. Mattner
Title: Authorized Signatory
BARBERRY CORP.
By: /s/ Edward E. Mattner
--------------------------------
Name: Edward E. Mattner
Title: Authorized Signatory
/s/ Carl C. Icahn
- ----------------------
CARL C. ICAHN
/s/ Gail Golden
- --------------------
GAIL GOLDEN
[Signature Page of Amendment No. 3 to Schedule 13D with respect to Vector
Group Ltd.]
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) under the Securities Exchange
Act of 1934, as amended, each of the persons named below agree to the joint
filing of a statement on Schedule 13D, including amendments thereto, with
respect to the common stock, par value $0.01 per share, of Vector Group Ltd.,
and further agree that this Joint Filing Agreement be included as an exhibit to
such filings, provided that, as contemplated by Section 13d-1(k)(1)(ii), no
person shall be responsible for the completeness or accuracy of the information
concerning the other persons making the filing, unless such person knows or has
reason to believe that such information is inaccurate.
This Joint Filing Agreement may be executed in any number of
counterparts, all of which collectively shall constitute one and the same
instrument.
Dated: May 16, 2001
HIGH RIVER LIMITED PARTNERSHIP
By: BARBERRY CORP.
Its: General Partner
By: /s/ Edward E. Mattner
Edward E. Mattner
Its: Authorized Signatory
BARBERRY CORP.
By: /s/ Edward E. Mattner
Edward E. Mattner
Its: Authorized Signatory
/s/Carl C. Icahn
CARL C. ICAHN
/s/ Gail Golden
GAIL GOLDEN
STOCK PURCHASE AGREEMENT
dated as of May 16, 2001
by and between
VECTOR GROUP LTD.
and
HIGH RIVER LIMITED PARTNERSHIP
with respect to 1,639,344 shares of
common stock of
VECTOR GROUP LTD.
1
This STOCK PURCHASE AGREEMENT dated as of May 16, 2001 is made
and entered into by and between High River Limited Partnership, a Delaware
limited partnership ("Purchaser"), and Vector Group Ltd., a Delaware corporation
(the "Company"). Capitalized terms not otherwise defined herein have the
meanings set forth in Section 6.01.
WHEREAS, Purchaser desires to purchase from the Company and
the Company desires to sell to Purchaser 1,639,344 shares (the "Shares") of
common stock, par value $.10 per share ("Common Stock"), of the Company, on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
SALES OF SHARES AND CLOSING
1.01 Purchase and Sale. The Company agrees to sell to Purchaser, and
Purchaser agrees to purchase from the Company, the Shares at the Closing on the
terms and subject to the conditions set forth in this Agreement.
1.02 Purchase Price. The aggregate purchase price for the Shares is
$50,000,000 (the "Purchase Price"), payable in immediately available United
States funds at the Closing in the manner provided in Section 1.03.
1.03 Closing. The Closing will take place at the offices of Milbank,
Tweed, Hadley & McCloy LLP, One Chase Manhattan Plaza, New York, NY 10005, on
the Closing Date. At the Closing: (i) Purchaser will pay the Purchase Price by
wire transfer of immediately available funds to such account as the Company has
reasonably directed, and (ii) the Company will sell to Purchaser the Shares by
delivering to Purchaser a certificate or certificates representing the Shares.
The Shares will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN
A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND IN RELIANCE UPON THE HOLDER'S REPRESENTATION THAT SUCH SECURITIES
WERE BEING ACQUIRED FOR INVESTMENT AND NOT FOR RESALE. NO TRANSFER OF SUCH
SECURITIES
2
MAY BE MADE ON THE BOOKS OF THE COMPANY UNLESS ACCOMPANIED BY
AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH TRANSFER MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THAT SUCH SECURITIES HAVE BEEN SO REGISTERED UNDER A REGISTRATION STATEMENT
WHICH IS IN EFFECT AT THE DATE OF SUCH TRANSFER.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser as
follows:
2.01 Corporate Existence of the Company. The Company is a corporation duly
incorporated, validly existing and in good standing under the Laws of the State
of Delaware. The Company has full corporate power and authority to execute and
deliver this Agreement and to perform the Company's obligations hereunder and to
consummate the transactions contemplated hereby, including without limitation to
sell and transfer (pursuant to this Agreement) the Shares.
2.02 Authority. The execution and delivery by the Company of this
Agreement, and the performance by such party of its obligations hereunder, have
been duly and validly authorized by the Board of Directors of the Company, no
other corporate action on the part of the Company or its stockholders being
necessary. This Agreement has been duly and validly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
2.03 Capital Stock. The Shares are duly authorized, validly issued, fully
paid and nonassessable. The delivery of a certificate or certificates at the
Closing representing the Shares in the manner provided in Section 1.03 will
transfer to Purchaser good and valid title to the Shares, free and clear of all
Liens other than Liens created or suffered to exist by Purchaser.
2.04 No Conflicts. The execution and delivery by the Company of this
Agreement do not, and the performance by the Company of its obligations under
this Agreement and the consummation of the transactions contemplated hereby will
not: conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the certificate of incorporation or by-laws (or
other comparable corporate charter documents) of the Company;
3
(a) conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to the Company or any of its Assets and
Properties (other than such conflicts, violations or breaches (i) which will not
in the aggregate adversely affect the validity or enforceability of this
Agreement or have a material adverse effect on the Business or Condition of the
Company or (ii) as would occur solely as a result of the identity or the legal
or regulatory status of Purchaser or any of its Affiliates); or
(b) except as will not, individually or in the aggregate, be materially
adverse to the Business or Condition of the Company or adversely affect the
ability of the Company to consummate the transactions contemplated hereby or to
perform its obligations hereunder, (i) conflict with or result in a violation or
breach of, (ii) constitute (with or without notice or lapse of time or both) a
default under, (iii) require the Company to obtain any consent, approval or
action of, make any filing with or give any notice to any Person as a result or
under the terms of, (iv) result in or give to any Person any right of
termination, cancellation, acceleration or modification in or with respect to,
or (v) result in the creation or imposition of any Lien upon the Company or any
of its Assets and Properties under, any Contract or License to which the Company
is a party or by which any of its Assets and Properties is bound.
2.05 Governmental Approvals and Filings. Except for the filings required
by the Company under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations thereunder (the "HSR Act") and the
listing by the Company of the Shares on notice of issuance on The New York Stock
Exchange and as required under Section 5.01, no other consent, approval or
action of, filing with or notice to any Governmental or Regulatory Authority by
the Company is required as a precondition to the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby except (i) where the failure to obtain any such consent,
approval or action, to make any such filing or to give any such notice will not
adversely affect the ability of the Company to consummate the transactions
contemplated by this Agreement or to perform its obligations hereunder or have a
material adverse effect on the Business or Condition of the Company, and (ii)
those as would be required solely as a result of the identity or the legal or
regulatory status of the Purchaser or any of its Affiliates.
2.06 SEC Reports and Financial Statements. As of their respective dates,
the Company SEC Reports did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Since the respective dates of such filings, and
except as disclosed therein, there has not been any change, event or development
having, or that is reasonably expected to have, individually or in the
aggregate, a material adverse effect on the Company.
4
2.07 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company directly
with Purchaser without the intervention of any person on behalf of the Company
in such manner as to give rise to any valid claim by any person against
Purchaser or any Subsidiary for a finder's fee, brokerage commission or similar
payment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Company as
follows:
3.01 Organization of Purchaser. Purchaser is a limited partnership duly
organized, validly existing and in good standing under the Laws of the State of
Delaware. Purchaser is duly authorized to execute and deliver this Agreement and
to perform Purchaser's obligations hereunder and to consummate the transactions
contemplated hereby, including, without limitation, to buy (pursuant to this
Agreement) the Shares.
3.02 Authority. The execution and delivery by Purchaser of this Agreement,
and the performance by Purchaser of its obligations hereunder, have been duly
and validly authorized, no other action on the part of Purchaser being
necessary. This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes a legal, valid and binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms.
3.03 No Conflicts. The execution and delivery by Purchaser of this
Agreement do not, and the performance by Purchaser of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of its partnership agreement (or other comparable
organizational documents) of Purchaser;
(b) conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to Purchaser or any of its Assets and
Properties (other than such conflicts, violations or breaches (i) which will not
in the aggregate adversely affect the validity or enforceability of this
Agreement or have a material adverse effect on the Business or Condition of
Purchaser or (ii) as would occur solely as a result of the identity or the legal
or regulatory status of the Company or any of its Affiliates); or
5
(c) except as will not, individually or in the aggregate, be materially
adverse to the Business or Condition of Purchaser or adversely affect the
ability of Purchaser to consummate the transactions contemplated hereby or to
perform its obligations hereunder, (i) conflict with or result in a violation or
breach of, (ii) constitute (with or without notice or lapse of time or both) a
default under, (iii) require Purchaser to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, (iv) result in or give to any Person any right of termination,
cancellation, acceleration or modification in or with respect to, or (v) result
in the creation or imposition of any Lien upon Purchaser or any of its Assets
and Properties under, any Contract or License to which Purchaser is a party or
by which any of its Assets and Properties is bound.
3.04 Governmental Approvals and Filings. Except for the filings required
by Purchaser under the HSR Act, no consent, approval or action of, filing with
or notice to any Governmental or Regulatory Authority by Purchaser is required
as a precondition to the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby except (i) where the
failure to obtain any such consent, approval or action, to make any such filing
or to give any such notice will not adversely affect the ability of Purchaser to
consummate the transactions contemplated by this Agreement or to perform its
obligations hereunder or have a material adverse effect on the Business or
Condition of Purchaser, and (ii) those as would be required solely as a result
of the identity or the legal or regulatory status of the Company or any of its
Affiliates.
3.05 Purchase for Investment.
(a) The Shares will be acquired by Purchaser for its
own account for the purpose of investment, it being understood that the right to
dispose of such Shares shall be entirely within the discretion of Purchaser.
Purchaser will refrain from transferring or otherwise disposing of any of the
Shares, or any interest therein, in such manner as to cause the Company to be in
violation of the registration requirements of the Securities Act or any
applicable state securities or blue sky laws.
(b) Purchaser acknowledges that it is an "accredited
investor" as defined in Rule 501 of Regulation D under the Securities Act.
3.06 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Purchaser directly
with the Company without the intervention of any Person on behalf of the
Purchaser in such manner as to give rise to any valid claim by any Person
against the Company or any Subsidiary for a finder's fee, brokerage commission
or similar payment.
6
ARTICLE IV
CONDITIONS
4.01 Conditions to Obligation of Each Party to Effect the Closing. The
respective obligations of each party hereunder to effect the Closing are subject
to the fulfillment or waiver, at the Closing, of the following conditions:
(a) Representations and Warranties. Each of the
representations and warranties made by the other party in this Agreement shall
be true and correct in all material respects on and as of the Closing Date.
(b) Orders and Laws. There shall not be pending or in
effect on the Closing Date any Order or Law restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement or which could reasonably be expected to
otherwise result in a material diminution of the benefits of the transactions
contemplated by this Agreement to such party, and there shall not be pending on
the Closing Date any Action or Proceeding in, before or by any Governmental or
Regulatory Authority which could reasonably be expected to result in the
issuance of any such Order or the enactment, promulgation or deemed
applicability to either party or the transactions contemplated by this Agreement
of any such Law.
(c) Regulatory Consents and Approvals. All consents,
approvals and actions of, filings with and notices to any Governmental or
Regulatory Authority necessary to permit each party to perform its respective
obligations under this Agreement and to consummate the transactions contemplated
hereby (a) shall have been duly obtained, made or given, (b) shall be in form
and substance reasonably satisfactory to each party, (c) shall not be subject to
the satisfaction of any condition that has not been satisfied or waived and (d)
shall be in full force and effect, and all terminations or expirations of
waiting periods under the HSR Act or imposed by any other Governmental or
Regulatory Authority necessary for the consummation of the transactions
contemplated by this Agreement shall have occurred, and the Shares shall have
been accepted for listing on notice of issuance by The New York Stock Exchange.
ARTICLE V
COVENANTS
The Company covenants and agrees with Purchaser that the
Company will comply with the covenants and provisions of this Article V, except
to the extent Purchaser may otherwise consent in writing:
7
5.01 Shelf Registration Statement.
(a) The Company shall use best efforts to file with the
Securities and Exchange Commission (the "Commission") by the Filing Date a Shelf
Registration Statement pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement") on Form S?3 (or any successor form thereto) to register
resales by Purchaser of the Shares. The Company shall use best efforts to cause
such Shelf Registration Statement to be declared effective by the Commission as
soon as possible after the Filing Date but in no event later than the date of
termination of the Lock-Up Period (the "Termination Date"). The Company shall
use best efforts to keep such Shelf Registration Statement continuously
effective and usable until the date on which all of the Shares are sold or such
earlier date as the Shares may be resold by Purchaser without registration under
Rule 144(k) under the Securities Act (the "Final Date"). The Company shall
deliver copies of the Prospectus to The New York Stock Exchange pursuant to Rule
153 under the Securities Act and to Purchaser on reasonable request.
(b) Upon the occurrence of any event that would cause
the Shelf Registration Statement (i) to contain a material misstatement or to
omit a material fact required to be stated therein or necessary to make the
statements made not misleading or (ii) not to be effective and usable for resale
of the Shares until the Final Date, the Company shall notify Purchaser as soon
as reasonably practicable thereafter and, within two Business Days of the
occurrence of such event, file a supplement to the Prospectus included in (if a
supplement is appropriate for such purpose) or, within four Business Days of the
occurrence of such event, file an amendment to the Shelf Registration Statement,
in the case of clause (i) immediately above correcting any such misstatement or
omission, and in the case of either clause (i) or (ii) immediately above use
best efforts to cause such amendment to be declared effective and such Shelf
Registration Statement to become usable as soon as reasonably practicable
thereafter.
5.02 Specific Performance; Liquidated Damages.
(a) The Company and Purchaser agree that Purchaser shall be entitled to
enforce specifically the obligations under Section 5.01(a) in any court of
competent jurisdiction (this being in addition to any other remedy to which it
is entitled at law or equity). The Company and Purchaser further agree that
Purchaser will suffer damages if the Shelf Registration Statement has not been
declared effective on or prior to the Termination Date. Accordingly, if the
Shelf Registration Statement has not been declared effective on or prior to the
Termination Date, Liquidated Damages on the Shares shall accrue at a rate per
share per day equal to the quotient obtained by dividing (x) $30.50 by (y) the
Post Lock-Up Period Days, until the Shelf Registration Statement has been
declared effective or the Final Date has occurred, and shall be payable monthly;
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provided, however, that the aggregate Liquidated Damages payable on the Shares
may not exceed the Purchase Price; and provided, further, that if the
Termination Date occurs subsequent to the six month anniversary of the Closing
Date (the "Six-Month Date"), then any Liquidated Damages payable for the period
between the Six-Month Date and the Termination Date shall be due and payable on
the Termination Date.
(b) Notwithstanding the foregoing, the Company shall
not be required to pay such Liquidated Damages with respect to the Shares if the
applicable default arises from the failure of the Company to file or cause to
become effective within the time period specified above primarily by reason of
the failure of the Purchaser to provide such information concerning Purchaser as
(i) is required pursuant to the Securities Act and the regulations promulgated
thereunder for inclusion in the Shelf Registration Statement or any Prospectus
included therein or (ii) the SEC may request in connection with such Shelf
Registration.
5.03 Registration Expenses. All fees and expenses
incidental to the performance of or compliance with this Article V by the
Company shall be borne by the Company whether or not the Shelf Registration is
filed or becomes effective, other than underwriting discounts and commissions
and transfer taxes, if any, in respect of the Shares, which shall be payable by
Purchaser.
5.04 Indemnification.
(a) Indemnification by the Company. The Company shall, to the
full extent permitted by law, indemnify and hold harmless Purchaser, its
directors and each Person, if any, who controls Purchaser within the meaning of
the Securities Act against any losses, claims, damages, expenses or liabilities,
joint or several (together, "Losses"), to which it or any such controlling
Person may become subject under the Securities Act or otherwise, insofar as such
Losses (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Shelf Registration Statement or
the Prospectus, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the circumstances under which
they were made) not misleading, and the Company will reimburse Purchaser and
each such controlling Person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such Loss
(or action or proceeding in respect thereof); provided that the Company shall
not be liable in any such case to the extent that any such Loss (or action or
proceeding in respect thereof) arises out of or is based upon (x) an untrue
statement or alleged untrue statement or omission or alleged omission made in
any such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written
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information furnished to the Company through an instrument duly executed by
Purchaser specifically stating that it is for use in the preparation thereof or
(y) Purchaser's failure to send or give a copy of the final Prospectus to the
Persons asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of Shares
to such Person if such statement or omission was corrected in such final
Prospectus. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of Purchaser or any such controlling
Person, and shall survive the transfer of Shares by Purchaser.
(b) Indemnification by Purchaser. Purchaser shall, to
the full extent permitted by law, indemnify and hold harmless the Company, its
directors and officers, and each other Person, if any, who controls the Company
within the meaning of the Securities Act, against any Losses to which the
Company or any such director or officer or controlling Person may become subject
under the Securities Act or otherwise, insofar as such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or the Prospectus,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of a
Prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
Purchaser specifically stating that it is for use in the preparation of the
Shelf Registration Statement or the Prospectus. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling Person and shall
survive the transfer of the Shares by Purchaser.
(c) Notices of Claims, etc. Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraph (a) or (b) of this Section 5.04,
such Indemnified Party will, if a claim in respect thereof is to be made against
an Indemnifying Party pursuant to such paragraphs, give written notice to the
latter of the commencement of such action, provided that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under the preceding paragraphs of this
Section 5.04, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to
participate in and to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense
thereof, the Indemnifying Party shall not be liable to such Indemnified Party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
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investigation; provided that the Indemnified Party or Indemnified Parties shall
have the right to employ one counsel to represent it or them if, in the
reasonable judgment of the Indemnified Party or Indemnified Parties, it is
advisable for it or them to be represented by separate counsel by reason of
having legal defenses which are different from or in addition to those available
to the Indemnifying Party, and in that event the reasonable fees and expenses of
such one counsel shall be paid by the Indemnifying Party. If the Indemnifying
Party is not entitled to, or elects not to, assume the defense of a claim, it
will not be obligated to pay the fees and expenses of more than one counsel for
the Indemnified Parties with respect to such claim, unless in the reasonable
judgment of the Indemnified Party a conflict of interest may exist between such
Indemnified Party and any other Indemnified Parties with respect to such claim,
in which event the Indemnifying Party shall be obligated to pay the fees and
expenses of such additional counsel for the Indemnified Parties or counsels. No
Indemnifying Party shall consent to entry of any judgment or enter into any
settlement without the consent of the Indemnified Party which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. No Indemnifying Party shall be subject to any liability for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(d) Contribution. If the indemnity and reimbursement obligation provided
for in any paragraph of this Section 5.04 is unavailable or insufficient to hold
harmless an Indemnified Party in respect of any Losses (or actions or
proceedings in respect thereof) referred to therein, then the Indemnifying Party
shall contribute to the amount paid or payable by the Indemnified Party as a
result of such Losses (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and the Indemnified Party on the other hand in connection
with statements or omissions which resulted in such Losses. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Indemnifying
Party or the Indemnified Party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this paragraph were to determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the first sentence of this
paragraph. The amount paid by an Indemnified Party as a result of the Losses
referred to in the first sentence of this paragraph shall be deemed to include
any legal and other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any Loss which is the subject of this
paragraph. No Indemnified Party guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
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5.05 HSR. Each party will (i) take promptly all actions
necessary to make the filings required of it or its Affiliates under the HSR
Act, (ii) comply at the earliest practicable date with any request for
additional information received by such party or its Affiliates from the Federal
Trade Commission (the "FTC") or the Antitrust Division of the Department of
Justice (the "Antitrust Division") pursuant to the HSR Act, and (iii) cooperate
with the other party in connection with such party's filings under the HSR Act
and in connection with resolving any investigation or other inquiry concerning
the matters contemplated by this Agreement commenced by either the FTC or the
Antitrust Division or state attorneys general.
5.06 Lockup.
(a) Purchaser shall not and shall not permit any
Affiliate or donee of Purchaser to offer or sell in the public market any Shares
for a period of 12 months from the Closing Date (the "Lockup Period").
(b) Notwithstanding the foregoing, in the event that
either Mr. Bennett S. LeBow or Mr. Howard Lorber, or any Affiliate or donee of
either Mr. LeBow or Mr. Lorber, offers or sells in the public market during the
Lock-Up Period more than 300,000 of the shares of Common Stock owned by such
party as of the Closing Date, the Company shall so notify Purchaser and the
Lock-Up Period will terminate.
5.07 Stock Exchange Listing. The Company shall use its
best efforts to cause the Shares to be approved for listing on notice of
issuance on The New York Stock Exchange.
ARTICLE VI
DEFINITIONS
6.01 Definitions.
(a) Defined Terms. As used in this Agreement, the
following defined terms have the meanings indicated below:
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation.
"Affiliate" means any Person that directly, or indirectly
through one of more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by Contract or
otherwise.
"Agreement" means this Stock Purchase Agreement, as the same
shall be amended from time to time.
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"Antitrust Division" has the meaning ascribed to it in Section
5.05.
"Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible, and wherever situated),
including the goodwill related thereto, operated, owned or leased by such
Person.
"Business Day" means any day other than a Saturday, a Sunday
or any other day on which banking institutions are not authorized or required to
close in New York City or Miami, Florida.
"Business or Condition of the Company" means the business,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole.
"Closing" means the closing of the transactions contemplated
by Section 1.03.
"Closing Date" means the third Business Day following the
later of (i) the termination or expiration of the waiting period under the HSR
Act or (ii) the Shares having been accepted for listing on notice of issuance by
The New York Stock Exchange.
"Commission" has the meaning ascribed to it in Section 5.01.
"Common Stock" has the meaning ascribed to it in the forepart
of this Agreement.
"Company" has the meaning ascribed to it in the forepart of
this Agreement.
"Company SEC Reports" means each form, report, schedule,
registration statement, definitive proxy statement and other document (together
with all amendments thereof and supplements thereto) filed by the Company with
the SEC since December 31, 2000.
"Contract" means any agreement, lease, license, evidence of
indebtedness, mortgage, indenture, security agreement or other contract.
"Filing Date" means May 31, 2001.
"Final Date" has the meaning ascribed to it in Section
5.01(a).
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"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States or any state, county, city or other
political subdivision.
"HSR Act" has the meaning ascribed to it in Section 2.05.
"Indemnified Party" means a party entitled to indemnity in
accordance with Section 5.04.
"Indemnifying Party" means a party obligated to provide
indemnity in accordance with Section 5.04.
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States or any state, county, city or other political subdivision or of any
Governmental or Regulatory Authority.
"License" means all licenses, permits, certificates of
authority, authorizations, approvals, registrations, franchises and similar
consents granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security
interest, lease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sale Contract, title retention Contract or other
Contract to give any of the foregoing.
"Order" means any writ, judgment, decree, injunction or
similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
"Person" means any natural person, corporation, limited
liability company, general partnership, limited partnership, proprietorship,
other business organization, trust, union, association or Governmental or
Regulatory Authority.
"Post Lock-Up Period Days" means the number of days between
(x) the earlier of (i) the Termination Date or (ii) the Six-Month Date and (y)
the Final Date.
"Prospectus" shall mean the prospectus included in the Shelf
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the securities
covered by such Shelf Registration Statement, and all other amendments and
supplements to the Prospectus, including post?effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
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"Purchase Price" has the meaning ascribed to it in Section
1.02.
"Purchaser" has the meaning ascribed to it in the forepart of
this Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SEC" means Securities and Exchange Commission.
"Shares" has the meaning ascribed to it in the forepart of
this Agreement.
"Shelf Registration Statement" has the meaning ascribed to it
in Section 5.01.
"Six-Month Date" has the meaning ascribed to it in Section
5.02.
"Subsidiary" means any Person in which the Company, directly
or indirectly through Subsidiaries or otherwise, beneficially owns more than 50%
of either the equity interests in, or the voting control of, such Person.
"Termination Date" has the meaning ascribed to it in Section
5.01.
ARTICLE VII
MISCELLANEOUS
7.01 Entire Agreement. This Agreement supersedes all
prior discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
7.02 Expenses. Except as otherwise expressly provided in
this Agreement, whether or not the transactions contemplated hereby are
consummated, each party will pay its own costs and expenses incurred in
connection with the negotiation, execution and closing of this Agreement and the
transactions contemplated hereby.
7.03 Waiver. Any term or condition of this Agreement
may be waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a written instrument
duly executed by or on behalf of the
15
party waiving such term or condition. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by Law or otherwise afforded, will be cumulative and not alternative.
7.04 Amendment. This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or on
behalf of each party hereto.
7.05 No Third Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the benefit of each party
hereto and their respective successors or permitted assigns, and it is not the
intention of the parties to confer third-party beneficiary rights upon any other
Person.
7.06 No Assignment; Binding Effect. Neither this
Agreement nor any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other party hereto and any
attempt to do so will be void, except for assignments and transfers by operation
of Law. Subject to the preceding sentence, this Agreement is binding upon,
inures to the benefit of and is enforceable by the parties hereto and their
respective successors and assigns.
7.07 Headings. The headings used in this Agreement have
been inserted for convenience of reference only and do not define or limit the
provisions hereof.
7.08 Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any present or
future Law, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (a) such
provision will be fully severable, (b) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, and (c) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom.
7.09 Governing Law. This Agreement shall be governed by
and construed in accordance with the Laws of the State of New York applicable to
a Contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof.
7.10 Counterparts. This Agreement may be executed in
any number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
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7.11 Termination. This Agreement may be terminated, and
the transactions contemplated hereby may be abandoned, at any time after 60 days
after execution of this Agreement by either party upon notification of the
non-terminating party by the terminating party if the Closing shall not have
occurred on or before such date and such failure to consummate is not caused by
a breach of this Agreement by the terminating party.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
HIGH RIVER LIMITED PARTNERSHIP
By: Barberry Corp., General Partner
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
VECTOR GROUP LTD.
By: /s/ Richard J. Lampen
Name: Richard J. Lampen
Title: Executive Vice President
[Stock Purchase Agreement with Vector Group Ltd. dated May 16, 2001]
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