UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
GRIFFIN LAND & NURSERIES, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock $0.01 Par Value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
398231 10 0
---------------------------------------------------------------
(CUSIP Number)
Frederick M. Danziger
387 Park Avenue South
New York, New York 10016 (212) 561-8700
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
July 3, 1997
---------------------------------------------------------------
(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).
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 2 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Edgar M. Cullman
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 111,138
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 848,776
Person --------------------------------------------------------
With 9 Sole Dispositive Power
111,138
--------------------------------------------------------
10 Shared Dispositive Power
848,776
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
111,138
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
2.44
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 3 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Louise B. Cullman
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 103,410
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 724,337
Person --------------------------------------------------------
With 9 Sole Dispositive Power
103,410
--------------------------------------------------------
10 Shared Dispositive Power
724,337
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
103,410
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
2.27
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 4 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Edgar M. Cullman, Jr.
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 136,510
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 740,090
Person --------------------------------------------------------
With 9 Sole Dispositive Power
136,510
--------------------------------------------------------
10 Shared Dispositive Power
740,090
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
121,310
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
2.66
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 5 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Elissa F. Cullman
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 17,000
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 55,200
Person --------------------------------------------------------
With 9 Sole Dispositive Power
17,000
--------------------------------------------------------
10 Shared Dispositive Power
55,200
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
17,000
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.37
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 6 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Susan R. Cullman
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 87,765
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 673,642
Person --------------------------------------------------------
With 9 Sole Dispositive Power
87,765
--------------------------------------------------------
10 Shared Dispositive Power
673,642
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
87,765
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
1.93
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 7 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Lucy C. Danziger
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 81,842
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 953,022
Person --------------------------------------------------------
With 9 Sole Dispositive Power
81,842
--------------------------------------------------------
10 Shared Dispositive Power
953,022
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
81,842
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
1.80
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 8 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Frederick M. Danziger
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 16,542
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 147,578
Person --------------------------------------------------------
With 9 Sole Dispositive Power
16,542
--------------------------------------------------------
10 Shared Dispositive Power
147,578
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
16,542
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.36
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 9 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
David M. Danziger
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 41,548
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
41,548
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
41,548
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.91
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 10 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Carolyn S. Fabrici
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 23,858
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 118,952
Person --------------------------------------------------------
With 9 Sole Dispositive Power
23,858
--------------------------------------------------------
10 Shared Dispositive Power
118,952
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
23,858
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.52
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 11 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
John L. Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 7,250
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 411,321
Person --------------------------------------------------------
With 9 Sole Dispositive Power
7,250
--------------------------------------------------------
10 Shared Dispositive Power
411,321
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
6,000
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.13
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 11 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Margot P. Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 0
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 20,315
Person --------------------------------------------------------
With 9 Sole Dispositive Power
0
--------------------------------------------------------
10 Shared Dispositive Power
20,315
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
0
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.00
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 13 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Alexandra Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 1,548
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 88,137
Person --------------------------------------------------------
With 9 Sole Dispositive Power
1,548
--------------------------------------------------------
10 Shared Dispositive Power
88,137
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,548
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.03
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 14 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
B. Bros. Realty Limited Partnership
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 233,792
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
233,792
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
233,792
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
5.13
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 15 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Matthew L. Ernst
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 1,250
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
1,250
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,250
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.03
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 16 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Rebecca D. Gamzon
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 30,946
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
30,946
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
30,946
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
0.68
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 17 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Edgar M. Cullman III
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 18,794
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
18,794
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
18,794
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.41
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
- ---------------------------- -------------------------------
CUSIP No. 299890108 Page 18 of 36 Pages
- ---------------------------- -------------------------------
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Caroline B. Sicher
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group*
a. |_|
See Item 6 and Insert 1 b. |X|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
No funds were used to acquire the shares (see Item 4)
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
USA
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 21,422
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0
Person --------------------------------------------------------
With 9 Sole Dispositive Power
21,422
--------------------------------------------------------
10 Shared Dispositive Power
0
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
21,422
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |X|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
.47
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 19 of 36 Pages
SCHEDULE 13D ITEMS
Item 1. Security and Issuer
This Schedule relates to the Common Stock, $0.01 par value (the
"Common Stock"), of Griffin Land & Nurseries, Inc. (the "Issuer"), a Delaware
corporation, having its principal executive offices at 387 Park Avenue South,
New York, New York 10016 and is being filed by the persons identified in Item 2
below.
Item 2. Identity and Background
See Insert 1 attached hereto.
None of the persons filing this Schedule (the "Reporting Persons")
has been convicted in a criminal proceeding (other than for traffic violations
or similar misdemeanors) during the past 5 years or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violations with respect to such laws. All individuals are citizens of the United
States and all trusts, partnerships and corporations are organized or formed
under the laws of the United States. The Reporting Persons have executed a joint
filing agreement in connection with the filing of this Schedule, a copy of which
has been filed as Exhibit 1 hereto.
Item 3. Source and Amount of Funds or Other Consideration
No funds were used in connection with the acquisition of securities
subject to this Schedule. See Item 4 for additional information.
Item 4. Purpose of Transaction
Pursuant to a Distribution Agreement, dated as of February 3, 1997
(the "Distribution Agreement"), among Culbro Corporation, a New York corporation
("Culbro"), the Issuer (formerly known as Culbro Land Resources, Inc.) and
General Cigar Holdings, Inc., a Delaware corporation, all of the issued and
outstanding shares of Common Stock were distributed (the "Distribution") on July
3, 1997 to the holders of the common stock, $1.00 par value, of Culbro (the
"Culbro Common Stock"). Pursuant to the Distribution, each of the Reporting
Persons received one share of Common Stock for each share of Culbro Common Stock
held by such Reporting Person immediately prior to the Distribution. No
consideration was paid by any Reporting Person in connection with the
acquisition by such Reporting Person pursuant to the Distribution of the shares
of Common Stock subject to this Schedule.
A separate report on Schedule 13D has been filed by the Reporting
Persons with respect to their ownership of shares of Culbro Common Stock.
<PAGE>
Page 20 of 36 Pages
A copy of the Distribution Agreement has been filed as Exhibit 2 to
this report on Schedule 13D and is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer
See Insert 1 hereto and cover pages.
Voting power and power to direct disposition of securities is shared
by trustees of each of the trusts referred to in Item 2 as set forth on Insert
1. The officers and directors of the Samuel J. Bloomingdale Foundation, Inc.,
the Susan B. and Richard C. Ernst Foundation, Inc. and Louise B. and Edgar M.
Cullman Foundation, Inc. and the trustees of charitable trust created by Justus
Heijmans (collectively, the "Foundations") referred to in Insert 1 as set forth
on Insert 1 hereto share voting power and the power to dispose of such
securities. Such shares are, however, not included in the individual totals
shown on cover pages. Shares owned by B. Bros. Realty Limited Partnership are
shown as beneficially owned for voting and dispositive purposes by both General
Partners of that partnership and also by the partnership itself.
No transactions in the Issuer's Common Stock were effected during
the 60 days preceding the date hereof by the persons filing this Schedule and
their affiliated persons other than as set forth in Item 4 above.
Item 6. Contract, Arrangement or Understanding with Respect to Securities of the
Issuer
None other than an informal understanding that the persons and
entities listed in Insert 1 attached hereto will hold and vote together the
shares of Issuer's Common Stock owned by each of them. However, Trustees of
trusts and partners of the partnership listed in Insert 1 may act independently
where fiduciary responsibilities so require. Furthermore, the persons and
entities listed in Insert 1 may acquire additional shares of the Issuer's Common
Stock.
Although the Foundations are included in Insert 1, no arrangement of
any kind exists with respect to any of the Issuer's Common Stock held by such
Foundations. Such Foundations were included in Insert 1 only because certain of
the undersigned are officers and directors of such Foundations.
Item 7. Material to the Filed as Exhibits
A copy of the Joint Filing Agreement, including powers of attorney,
is attached hereto as Exhibit 1. A copy of the Distribution Agreement is
attached hereto as Exhibit 2.
<PAGE>
Page 21 of 36 Pages
Each of the undersigned hereby certifies after reasonable inquiry,
that to the best of his/her knowledge and belief, the information set forth in
this statement is true, complete and correct.
Date: July 14, 1997
Edgar M. Cullman*
---------------------------------------
Edgar M. Cullman, individually and as
Trustee of the Trusts of which he is a
Trustee as indicated on Insert 1 hereto
Louise B. Cullman*
---------------------------------------
Louise B. Cullman, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
Susan R. Cullman*
---------------------------------------
Susan R. Cullman, individually, as
Custodian and as Trustee of the Trusts
of which she is a Trustee as indicated
on Insert 1 hereto
Edgar M. Cullman, Jr.*
---------------------------------------
Edgar M. Cullman, Jr., individually, as
Custodian and as Trustee of the Trusts
of which he is a Trustee as indicated
on Insert 1 hereto
Lucy C. Danziger*
---------------------------------------
Lucy C. Danziger, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
John L. Ernst*
---------------------------------------
John L. Ernst, individually and as
Trustee of the Trusts of which he is a
Trustee, as Custodian and as Guardian,
all as indicated on Insert 1 hereto
<PAGE>
Page 22 of 36 Pages
Carolyn S. Fabrici*
----------------------------------------
Carolyn S. Fabrici, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
/s/ Frederick M. Danziger
---------------------------------------
Frederick M. Danziger, individually and
as Trustee of the Trusts of which he is
a Trustee as indicated on Insert 1
hereto
Elissa F. Cullman*
---------------------------------------
Elissa F. Cullman, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
Rebecca D. Gamzon*
---------------------------------------
Rebecca D. Gamzon, individually
formerly Rebecca B. Danziger
Matthew L. Ernst*
---------------------------------------
Matthew L. Ernst, individually
B. BROS. REALTY LIMITED
PARTNERSHIP
By John L. Ernst*
-----------------------------------
John L. Ernst,
General Partner
Margot P. Ernst*
---------------------------------------
Margot P. Ernst, not individually but
as Trustee of the Trusts of which she
is a Trustee as indicated on Insert 1
hereto
Alexandra Ernst*
---------------------------------------
Alexandra Ernst, individually and as
Trustee of the Trusts of which she is a
Trustee as indicated on Insert 1 hereto
<PAGE>
Page 23 of 36 Pages
David M. Danziger*
---------------------------------------
David M. Danziger, individually
Edgar M. Cullman III*
---------------------------------------
Edgar M. Cullman III
Caroline B. Sicher*
---------------------------------------
Caroline B. Sicher
By: /s/ Frederick M. Danziger
----------------------------------
Frederick M. Danziger
Attorney-in-Fact
<PAGE>
Page 24 of 36 Pages
<TABLE>
<CAPTION>
Culbro Corporation
Schedule 13D Insert 1--Item 2. Identity and Background and
Amendment #17 Item 5. Interest in Securities of the Issuer
(4)
(3) (Item 5)
--------------------------------------------------------------
Present principal occu-
pation or employment and Number of shares Total number of
the name, principal busi- of Issuer's shares of the
ness and address of any Common Stock Issuer's Common
(1) (2) corporation or other acquired or Stock ($1 par Percentage of Class
Name Residence organization in which such disposed of since value) owned on of Issuer's Common
(Item 2(a) Address employment is conducted. April 1997 the date hereof Stock.
and 5) (Item 2(b)) (Item 2(c)) (i) (ii) (iii)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Edgar M. Cullman 2 E. 70th St. Chairman of the Board 111,138 2.44
("EMC") New York, N.Y. Culbro Corporation (cigar,
tobacco, real estate
development and tobacco and
sundries distribution)
378 Park Avenue
So. New York, N.Y.
2. Edgar M. Cullman, 770 Park Avenue President (1700) 121,301 2.66
Jr. ("EMC, Jr.") New York, N.Y. Culbro Corporation
387 Park Avenue So.
New York, N.Y.
3. Elissa F. Cullman 770 Park Avenue Interior Decorator 17,000 .37
("EFC") New York, New
York
4. Louise B. 2 E. 70th St. Housewife 103,410 2.27
Cullman ("LBC") New York, N.Y.
5. Susan R. Cullman 2830 Foxhall Rd. Housewife (6700) 87,765 1.96
("SRC") NW
Washington, D.C.
6. Lucy C. Danziger 2 E. 73rd St. Housewife (7500) 81,842 1.80
("LCD") New York, N.Y.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 25 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------------- ---------------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
7. Frederick M. 2 E. 73rd St. Latham & Watkins 16,542 .37
Danziger New York, N.Y. Attorneys At Law
("FMD") 885 Third Avenue
New York, New York
8. David M. Danziger 115 Central Park Executive Trainee 41,548 .94
("DMD") West The Eli Witt Company
NY, NY 10023
9. Rebecca D. Gamzon One Soldiers Field Teacher 30,946 .70
("RDG") Park, Apt. 414 Milton Academy
Boston, MA 02163
10. John L. Ernst 860 U.N. Towers Chairman & President (2213) 6,000 .13
("JLE") New York, N.Y. Bloomingdale Properties,
Inc.*
(Investments)
641 Lexington Avenue
New York, N.Y.
11. Alexandra Ernst 120 Bis Blvd. Writer 1,548 .03
("AE") Montpamesse
75014 Paris,
France
12. LCD, EMC, Jr. and
SRC,
Trustees
u/w/o Joseph F.
Cullman, Jr.
f/b/o/:
EMC 17,500 76,448 1.68
13. Carolyn S. P.O. Box 4708 Housewife 23,858 .52
Fabrici ("CSF") 42630 N. 54th St.
Cave Creek, AZ
85331
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 26 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
14. EMC, Jr. Custodian
f/b/o:
Edgar M. Cullman III, 0
a minor ("EMC III")
Samuel B. Cullman, 7,422 .16
a minor ("SBC")
Georgina D. Cullman, 7,778 .18
a minor ("GDC")
15. Caroline B. Sicher,
("CBS") 21,422 .47
16. EMC and LBC, Trustees
u/i/o LBC (12/16/43)*
f/b/o:
LCD 22,264 .49
17. EMC, LBC and SRC,
Trustees
u/i/o Samuel J.
Bloomingdale ("SJB") and
Rita G. Bloomingdale
("RGB") (1/10/50)*
f/b/o:
SRC 50,880 1.15
18. EMC, LBC and SRC,
Trustees
u/i/o EMC and LBC
(3/21/50)*
f/b/o:
SRC 18,714 .41
19. EMC, LBC and LCD
Trustees
u/i/o SJB (12/21/50)*
f/b/o:
LCD 29,192 .64
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 27 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
20. EMC, LBC and EMC, Jr.
Trustees
u/i/o SJB (12/21/50)*
f/b/o:
EMC, Jr. 25,006 .55
21. EMC, LBC and SRC
Trustees
u/i/o SJB (12/21/50)*
f/b/o:
SRC 26,000 .57
22. EMC, LBC and LCD
Trustees
u/i/o RGB (12/21/50)*
f/b/o:
LCD 5,418 .12
23. EMC, LBC and EMC, Jr.
Trustees
u/i/o RGB (12/21/50)*
f/b/o:
EMC, Jr. 9,974 .22
24. EMC, LBC and SRC
Trustees
u/i/o RGB (12/21/50)*
f/b/o:
SRC 11,840 .26
25. EMC, LBC and LCD
Trustees
u/i/o RGB (6/14/51)*
f/b/o:
LCD 38,518 .84
26. EMC, LBC and EMC, Jr.
Trustees
u/i/o RGB (6/14/51)*
f/b/o:
EMC, Jr. 40,190 .88
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 28 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
27. EMC, LBC and SRC
Trustees u/i/o RGB
(6/14/51)*
f/b/o:
SRC 40,090 .88
28. LBC, Margot P. Ernst
("MPE"), AE and JLE,
Trustees
u/i/o Susan B. Ernst
("SBE") (4/9/52)*
f/b/o:
Descendants of JLE 4,364 .10
29. LBC, JLE, AE and CSF,
Trustees
u/i/o SBE (4/9/52)*
f/b/o:
Descendants of CSF 3,844 .09
30. EMC, LCD, EMC, Jr. and
SRC Trustees
u/i/o LBC (1/6/53)*
f/b/o:
Descendants of LCD 10,400 .23
Descendants of EMC, Jr. 41,948 .95
Descendants of SRC 26,284 .58
31. LBC, MPE, AE and
JLE, Trustees
u/i/o SBE (1/6/53)*
f/b/o:
Descendants of JLE 2,580 .06
32. LBC, JLE, AE and CSF
Trustees
u/i/o SBE (1/6/53)*
f/b/o:
Descendants of CSF 11,701 .26
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 29 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
33. EMC, LCD, EMC, Jr. and
SRC
Trustees
u/i/o LBC (6/30/54)*
f/b/o:
Descendants of LCD 25,944 .59
Descendants of EMC, Jr. 50,302 1.14
Descendants of SRC 35,878 .58
34. LBC, CSF, AE and JLE,
Trustees
u/i/o SJB (12/21/50)*
f/b/o:
Dorothy P. Ernst 3,974 .09
35. LBC, CSF, AE and JLE
Trustees
u/i/o RGB (12/21/50)*
f/b/o:
Dorothy P. Ernst 3,974 .09
36. LBC, LCD, EMC, Jr. and
SRC Trustees
u/i/o EMC (3/23/55)*
f/b/o/:
Descendants of LCD 10,830 .24
Descendants of EMC, Jr. 16,008 .36
Descendants of SRC 14,200 .31
37. EMC, LCD, EMC, Jr. and
SRC Trustees
u/i/o LBC (3/23/55)*
f/b/o:
Descendants of LCD 7,000 .16
Descendants of EMC, Jr. 12,324 .28
Descendants of SRC 13,600 .30
38. EMC, LBC, EMC, Jr. and
LCD Trustees
u/i/o SJB (8/2/55)*
f/b/o:
Descendants of LCD 24,400 .55
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 30 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
39. EMC, LBC, LCD and EMC,
Jr. Trustees
u/i/o SJB (8/2/55)*
f/b/o:
Descendants of EMC, Jr. 37,622 .85
40. EMC, LBC, LCD and SRC
Trustees
u/i/o SJB (8/2/55)*
f/b/o:
Descendants of SRC 37,962 .83
41. LBC, MPE, AE and JLE
Trustees
u/i/o SJB (8/2/55)*
f/b/o:
Descendants of JLE 3,194 .07
42. EMC, LBC, CSF, AE and
JLE
Trustees
u/i/o SJB (8/2/55)*
f/b/o:
Descendants of CSF 3,526 .08
43. EMC, LBC and LCD,
Trustees
u/w/o RGB (2/29/56)*
f/b/o:
Descendants of LCD 19,228 .43
44. EMC, LBC and EMC, Jr.,
Trustees
u/w/o RGB (2/29/56)*
f/b/o:
Descendants of EMC, Jr. 20,332 .46
45. EMC, LBC and SRC,
Trustees
u/w/o RGB (2/29/56)*
f/b/o:
Descendants of SRC 17,190 .39
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 31 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
46. EMC, LBC, CSF,
AE and JLE,
Trustees
u/w/o RGB
(2/29/56)*
f/b/o:
Descendants of
JLE 39,138 .88
47. EMC, LBC, JLE and
CSF, Trustees
u/w/o RGB
(2/29/56)*
f/b/o:
Descendants of
CSF 39,138 .88
48. Samuel J. Bloomingdale Charitable 19,642 .44
Foundation, Inc.* Foundation
EMC, Chairman &
Dir. LBC, President
& Dir. EMC, Jr.,
Treas. & Dir. LCD,
Secretary
49. Richard C. Ernst Charitable 2048 12,048 .26
and Susan B. Ernst Foundation
Foundation, Inc.*
JLE, Pres. & Dir.
MPE, Vice Pres. &
Dir. AE, Treas. &
Dir. John Fletcher
III, Secy.
50. EMC, LBC and EMC, Jr.,
Trustees
u/w/o F.W. Cullman
(7/23/59)*
f/b/o:
LCD 17,420 .39
EMC, Jr. 13,770 .31
SRC 20,014 .45
51. EMC, LCD and FMD,
Trustees
u/i/o SJB (4/15/66)*
f/b/o:
DMD 12,524 .28
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 32 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
52. FMD, LCD and EMC, Jr.,
u/i/o EMC (12/26/72)*
f/b/o:
LCD and DMD 17,800 .39
LCD and RDG 18,000 .39
53. FMD, LCD, SRC and
EMC, Jr.
Trustees
u/i/o EMC (12/23/76)*
f/b/o:
DMD 16,000 .35
RDG 16,200 .36
54. FMD, SRC, EMC, Jr.,
and JLE, Trustees
u/i/o LCD (12/25/76)*
f/b/o:
DMD 3,200 .07
RDG 3,200 .07
55. Richard M. Danziger and
FMD, Trustees
u/i/o LCD (12/24/69)*
f/b/o:
RDG 22,800 .51
56. LBC, MPE, AE and JLE,
Trustees
u/i/o RGB (6/14/51)*
f/b/o:
JLE 3,081 .07
57. LCD, SRC, JLE and
Elissa Cullman, Trustees,
u/i/o EMC, Jr.
(12/25/76)*
f/b/o:
EMC III 7,200 .16
SBC 7,200 .16
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 33 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
58. EMC, Jr., SRC, LCD and
Elissa Cullman, Trustees,
u/i/o EMC (12/23/76)*
f/b/o:
EMC III 20,400 .45
SBC 20,400 .45
59. EMC, Jr., SRC, LCD and
FMD
Trustees
u/i/o EMC (12/23/76)*
f/b/o:
GDC 20,000 .44
60. LCD, EMC, Jr., John
Sicher and JLE, Trustees,
u/i/o SRC (12/25/76)*
f/b/o:
CBS 14,000 .31
61. EMC, Jr., LCD, SRC and
John Sicher, Trustees,
u/i/o EMC (12/23/76)*
f/b/o:
CBS 16,000 .35
62. FMD and R.M. Danziger,
Trustees
u/i/o Elsie B. Paskus
f/b/o:
R.M. Danziger 3,000 .07
63. FMD and R.M. Danziger
Trustees
u/i/o Elsie B. Paskus
f/b/o:
FMD 1,400 .03
64. B. Bros. Realty Limited Investments (5,000) 233,792 5.13
Partnership*
JLE, General Partner
LCD, General Partner
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 34 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
65. EMC, EMC, Jr.
SRC and 202 0
Richard W. Dammann,
Executors of the
Estate of
Justus Heijmans
66. JLE, FMD and Roger
Bloom ("RB"),
Trustees
u/a/o SBE (4/19/81)
u/w/o SBE Appointment
u/i/o RBG (11/27/31)*
f/b/o:
Descendants of JLE 7,458 .16
67. LBC, JLE, AE and CSF,
Trustees
u/i/o SJB (12/21/50)*
f/b/o:
CSF 1,515 .03
68. LBC, JLE, AE and CSF
Trustees
u/i/o RGB (6/14/51)*
f/b/o:
CSF 1,400 .03
69. JLE, EMC, Jr. and Roger
Bloom, Trustees
u/a/o SBE (4/19/81)
u/w/o SBE Appointment
u/i/o RGB (11/27/31)*
f/b/o:
Descendants of CSF 2,000 .04
70. Matthew L. Ernst 27 Howard Street Artist 1,250 .03
New York, N.Y.
71. JLE, MPE, CSF, FMD
and EMC, Jr.,
Trustees
u/c/o/w Richard C. Ernst,
(6/19/84)
f/b/o:
Benjamin C. Stewart 5,996 .13
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 35 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
72. JLE, as Custodian
f/b/o:
Jessica P. Ernst
a minor ("JPE") 1,250 .03
73. Charitable Trust created
by Justus Heijmans,*
EMC and EMC, Jr.,
Trustees 200 0
74. LBC, JLE, MPE and AE,
Trustee
u/i/o RGB (12/21/50)*
f/b/o:
JLE 1,100 .02
75. JLE, as Guardian
f/b/o:
DPE 2,679 .06
76. JLE, LBC, EMC, CSF and
AE, Trustees
u/c/w/o RGB (2/29/56)*
f/b/o:
Descendants of JLE 4,746 .10
77. Chemical Bank and LBC,
Trustees
u/i/o RGB (11/27/31)*
f/b/o:
LBC 30,000 .66
78. Louise B. & Edgar M. Charitable 3400 6,400 .14
Cullman Foundation, Foundation
Inc.*
EMC, Chairman of the
Board
SRC, President
LBC, Vice President
EMC, Jr., Treasurer
LCD, Secretary
79. Edgar M. Cullman, III 770 Park Avenue Student
(EMC,III) New York, NY 18,794 .41
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(4) Page 36 of 36 Pages
--------------------------------------------------------------
(1) (2) (3) (i) (ii) (iii)
--------- ---------- ------------------- --------------------------------------------------------------
<S> <C> <C> <C>
TOTAL 2,235,020 48.88
</TABLE>
* Business Address: 641 Lexington Avenue, New York, NY 10022
<PAGE>
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act
of 1934, as amended, each of the persons whose signature appears below agrees to
the joint filing on behalf of each of them of a Statement on Schedule 13D
(including amendments thereto) with respect to (a) the common stock, par value
$1.00 per share, of Culbro Corporation, a New York corporation (the "Culbro
13D"), and (b) the common stock, par value $0.01 per share, of Griffin Land &
Nurseries, Inc., a Delaware corporation (the "Griffin 13D"), and further agrees
that this Joint Filing Agreement be included as an exhibit to such filings
provided that, as contemplated by Section 13d-1(f)(l)(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 Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument.
In addition, each of the persons whose signature appears below
constitutes and appoints Frederick M. Danziger as true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for him or her and in his or her name, place and stead, in any and all
capacities to sign the Culbro 13D, the Griffin 13D and any and all amendments to
the Culbro 13D and the Griffin 13D, and to file the same with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as full to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
<PAGE>
Dated: July 14, 1997
/s/ Edgar M. Cullman
--------------------------------------
Edgar M. Cullman, individually and as
Trustee of the Trusts of which he is a
Trustee as indicated on Insert 1
hereto
/s/ Louise B. Cullman
--------------------------------------
Louise B. Cullman, individually and as
Trustee of the Trusts of which she is
a Trustee as indicated on Insert 1
hereto
/s/ Susan R. Cullman
--------------------------------------
Susan R. Cullman, individually, as
Custodian and as Trustee of the Trusts
of which she is a Trustee as indicated
on Insert 1 hereto
/s/ Edgar M. Cullman, Jr.
--------------------------------------
Edgar M. Cullman, Jr., individually,
as Custodian and as Trustee of the
Trusts of which he is a Trustee as
indicated on Insert 1 hereto
/s/ Lucy C. Danziger
--------------------------------------
Lucy C. Danziger, individually and as
Trustee of the Trusts of which she is
a Trustee as indicated on Insert 1
hereto
/s/ John L. Ernst
--------------------------------------
John L. Ernst, individually and as
Trustee of the Trusts of which he is a
Trustee, as Custodian and as Guardian,
all as indicated on Insert 1 hereto
<PAGE>
/s/ Carolyn S. Fabrici
--------------------------------------
Carolyn S. Fabrici, individually and
as Trustee of the Trusts of which she
is a Trustee as indicated on Insert 1
hereto
/s/ Frederick M. Danziger
--------------------------------------
Frederick M. Danziger, individually
and as Trustee of the Trusts of which
he is a Trustee as indicated on Insert
1 hereto
/s/ Elissa F. Cullman
--------------------------------------
Elissa F. Cullman, individually and as
Trustee of the Trusts of which she is
a Trustee as indicated on Insert 1
hereto
/s/ Rebecca D. Gamzon
--------------------------------------
Rebecca D. Gamzon, individually
formerly Rebecca B. Danziger
/s/ Matthew L. Ernst
--------------------------------------
Matthew L. Ernst, individually
B. BROS. REALTY LIMITED
PARTNERSHIP
By /s/ John L. Ernst
--------------------------------------
John L. Ernst,
General Partner
/s/ Margot P. Ernst
--------------------------------------
Margot P. Ernst, not individually but
as Trustee of the Trusts of which she
is a Trustee as indicated on Insert 1
hereto
<PAGE>
/s/ Alexandra Ernst
--------------------------------------
Alexandra Ernst, individually and as
Trustee of the Trusts of which she is
a Trustee as indicated on Insert 1
hereto
/s/ David M. Danziger
--------------------------------------
David M. Danziger, individually
/s/ Edgar M. Cullman III
--------------------------------------
Edgar M. Cullman III
/s/ Caroline B. Sicher
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Caroline B. Sicher
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EXHIBIT 2
Execution Copy
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DISTRIBUTION AGREEMENT
among
CULBRO CORPORATION,
CULBRO LAND RESOURCES, INC.
and
GENERAL CIGAR HOLDINGS, INC.
------------------------
February 3, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 General...................................................... 1
Section 1.02 Terms Defined Elsewhere in Agreement......................... 8
ARTICLE II
TRANSFER OF ASSETS
Section 2.01 Transfer of Real Estate to General Cigar..................... 9
Section 2.02 Transfer of Real Estate to CLR............................... 9
Section 2.03 Transfer of Assets to Holdings............................... 9
Section 2.04 Transfer of Assets to CLR.................................... 10
Section 2.05 Related Agreements; Merger Agreement......................... 10
Section 2.06 Transfers Not Effected Prior to the Distribution............. 10
Section 2.07 No Representations or Warranties; Consents................... 11
Section 2.08 Conveyancing and Assumption Instruments...................... 11
Section 2.09 Business Operations.......................................... 12
ARTICLE III
ASSUMPTION AND SATISFACTION OF LIABILITIES
Section 3.01 Assumption and Satisfaction of Liabilities................... 13
ARTICLE IV
THE DISTRIBUTION
Section 4.01 Cooperation Prior to the Distribution........................ 13
Section 4.02 Culbro Board Action; Conditions Precedent to the Distribution 14
Section 4.03 The Distribution............................................. 14
ARTICLE V
INDEMNIFICATION
Section 5.01 Indemnification by Culbro.................................... 14
Section 5.02 Indemnification by CLR....................................... 15
Section 5.03 Insurance Proceeds........................................... 15
Section 5.04 Procedure for Indemnification................................ 15
Section 5.05 Remedies Cumulative.......................................... 17
Section 5.06 Survival of Indemnities...................................... 17
ARTICLE VI
CERTAIN ADDITIONAL MATTERS
Section 6.01 CLR Board.................................................... 17
Section 6.02 Resignations................................................. 17
Section 6.03 Certificate and Bylaws....................................... 18
ARTICLE VII
POST-DISTRIBUTION TRANSFERS
Section 7.01 Merger....................................................... 18
Section 7.02 Certain Post-Distribution Transactions....................... 18
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Page
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ARTICLE VIII
ACCESS TO INFORMATION AND SERVICES
Section 8.01 Provision of Corporate Records............................... 19
Section 8.02 Access to Information........................................ 19
Section 8.03 Production of Witnesses...................................... 19
Section 8.04 Reimbursement................................................ 19
Section 8.05 Retention of Records......................................... 20
Section 8.06 Confidentiality.............................................. 20
Section 8.07 Privileged Matters........................................... 20
ARTICLE IX
INSURANCE
Section 9.01 Policies and Rights Included Within the CLR Assets........... 22
Section 9.02 Post-Asset Transfer Date Claims.............................. 22
Section 9.03 Administration............................................... 22
Section 9.04 Agreement for Waiver of Conflict and Shared Defense.......... 23
ARTICLE X
MISCELLANEOUS
Section 10.01 Complete Agreement; Construction........................... 23
Section 10.02 Expenses................................................... 23
Section 10.03 Governing Law.............................................. 23
Section 10.04 Notices.................................................... 23
Section 10.05 Amendments................................................. 23
Section 10.06 Successors and Assigns..................................... 24
Section 10.07 Termination................................................ 24
Section 10.08 Subsidiaries............................................... 24
Section 10.09 No Third-Party Beneficiaries............................... 24
Section 10.10 Titles and Headings........................................ 24
Section 10.11 Exhibits and Schedules..................................... 24
Section 10.12 Legal Enforceability....................................... 24
Section 10.13 Consent of Parties......................................... 24
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LIST OF SCHEDULES AND EXHIBITS
Schedule 1.01(a) CLR Financing Obligations
Schedule 1.01(b) Culbro Financing Obligations
Schedule 1.01(c) Commercial Real Estate
Schedule 1.01(d) Nursery Real Estate
Schedule 1.01(e) Tobacco Real Estate
Schedule 1.01(f) Shared Policies
Schedule 2.08 Conveyance and Assumption Instruments
Schedule 4.01 Required Consents
Exhibit A Culbro Pro Forma Consolidated Balance Sheet
Exhibit B CLR Pro Forma Consolidated Balance Sheet
Exhibit C Form of CLR Bylaws
Exhibit D Form of CLR Certificate of Incorporation
Exhibit E Form of Agriculture Lease between CLR and General Cigar
Exhibit F Form of Benefits and Employment Matters Allocation Agreement
between Culbro and CLR
Exhibit G Form of Services Agreement between Culbro and CLR
Exhibit H Form of Tax Sharing Agreement between Culbro and CLR
Exhibit I Form of Merger Agreement between Culbro and Holdings
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DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT (this "Agreement") is made this 3rd day of
February, 1997 among Culbro Corporation, a New York corporation ("Culbro"),
Culbro Land Resources, Inc., a Delaware corporation and a wholly-owned
subsidiary of Culbro ("CLR"), and General Cigar Holdings, Inc., a Delaware
corporation and a wholly-owned subsidiary of Culbro ("Holdings").
RECITALS
WHEREAS, Culbro, directly and through subsidiaries, (i) manufactures and
markets cigars and grows, processes and sells cigar wrapper tobacco (the "Cigar
Business"), (ii) cultivates for sale container and field grown nursery products
principally to nursery centers and mass merchandisers, and owns and operates
wholesale nursery sales and service centers (the "Nursery Business") and (iii)
owns, builds and manages commercial and industrial properties and develops
residential subdivisions on real estate in Connecticut and Massachusetts (the
"Real Estate Business") (which Nursery Business and Real Estate Business are
more specifically defined herein as the "CLR Business");
WHEREAS, the Board of Directors of Culbro has determined that it is in the
best interests of Culbro to separate the Cigar Business on the one hand, and the
CLR Business on the other hand, and, in order to effect such separation, to
transfer to CLR the stock of certain Culbro subsidiaries principally engaged in
the CLR Business and certain other assets relating principally to the CLR
Business (as more specifically defined herein, the "Asset Transfers"), and
thereafter to distribute all of the outstanding shares of common stock of CLR to
the holders of Culbro common stock (the "Distribution");
WHEREAS, subsequent to the Asset Transfers and prior to the Distribution,
Holdings intends to consummate an initial public offering of its shares of
common stock, par value $0.01 per share.
WHEREAS, following the Distribution, subject to certain conditions set
forth herein, Culbro intends to merge with and into Holdings (the "Merger").
WHEREAS, in connection with the Distribution, Culbro and CLR have
determined that it is necessary and desirable to set forth the principal
corporate transactions required to effect the Asset Transfers, the Distribution
and the Merger, and to set forth the agreements that will govern certain matters
following the Distribution and the Merger.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. As used in this Agreement, the following terms shall
have the following meanings:
387 PAS: 387 PAS Corporation, a New York corporation and holder of a 99%
interest in 387 PAS Enterprises.
387 PAS Enterprises: 387 PAS Enterprises, a partnership organized under
the laws of the State
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of New York.
387 PAS Minority Interest: Culbro's 1% interest in 387 PAS Enterprises.
Action: Any action, claim, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
Affiliate: With respect to any specified Person, means any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
Notwithstanding the foregoing, (i) the Affiliates of Culbro shall not include
CLR, the CLR Subsidiaries or any other Person that would be an Affiliate of
Culbro by reason of Culbro's ownership of the capital stock of CLR prior to the
Distribution or the fact that any officer or director of CLR or any of the CLR
Subsidiaries shall also serve as an officer or director of Culbro or any of the
Retained Subsidiaries, and (ii) the Affiliates of CLR shall not include Culbro,
the Retained Subsidiaries or any other Person that would be an Affiliate of CLR
by reason of Culbro's ownership of the capital stock of CLR prior to the
Distribution or the fact that any officer or director of CLR or any of the CLR
Subsidiaries shall also serve as an officer or director of Culbro or any of the
Retained Subsidiaries.
Agent: The distribution agent appointed by Culbro to distribute the CLR
Common Stock pursuant to the Distribution.
Agriculture Lease: The Agriculture Lease between CLR and General Cigar,
which agreement shall be entered into on or before the Asset Transfer Date,
substantially in the form of Exhibit E attached hereto.
Airplane: That certain Israel Astra 1125, FAA registration number N387PAS,
owned by Culbro prior to the Asset Transfers.
Asset Transfer Date: The date all of the Asset Transfers set forth in
Sections 2.01 through 2.04 herein have been completed, which date shall be prior
to the consummation of the IPO.
Centaur: Centaur Communications Limited, a company incorporated under the
laws of England and Wales, a privately held publisher of business magazines in
the United Kingdom.
Centaur Interest: Culbro's ownership of 4,928,194 ordinary shares of
Centaur, representing a 25% equity interest in Centaur.
CLR Balance Sheet: The Pro Forma Consolidated Balance Sheet for CLR as of
November 30, 1996 (the end of its most recent fiscal year) attached hereto as
Exhibit B.
CLR Board: The Board of Directors of CLR.
CLR Books and Records: The books and records (including computerized
records, ledgers, files and software) of CLR and the CLR Subsidiaries and all
books and records owned by Culbro and its
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Subsidiaries that relate to the CLR Business or are necessary to operate the CLR
Business including, without limitation, all such books and records relating to
CLR Employees, all files relating to any Action being assumed by CLR as part of
the CLR Liabilities, original corporate minute books, stock ledgers and
certificates and corporate seals, and all licenses, leases, agreements and
filings relating to CLR, the CLR Subsidiaries or the CLR Business (but not
including the Culbro Books and Records, provided that CLR shall have access to,
and have the right to obtain duplicate copies of, the Culbro Books and Records
in accordance with the provisions of Article VIII).
CLR Business: The businesses conducted by CLR and the CLR Subsidiaries and
the businesses conducted pursuant to or utilizing the CLR Assets, including the
Nursery Business and the Real Estate Business and the ownership of the Centaur
Interest (but excluding the ownership and operation of 387 PAS Enterprises).
CLR Bylaws: The Bylaws of CLR, substantially in the form of Exhibit C
attached hereto, to be in effect at the Distribution Date.
CLR Certificate: The Certificate of Incorporation of CLR, substantially in
the form of Exhibit D attached hereto, to be in effect at the Distribution Date.
CLR Common Stock: The common stock, par value $1.00 per share, of CLR.
CLR Employees: The persons employed by the CLR Group on the Asset Transfer
Date; provided that no Retained Employee who performs services for the CLR group
after the Asset Transfer Date pursuant to the CLR Services Agreement shall be
deemed to be a CLR Employee.
CLR Financing Obligations: The Financing Obligations to be assumed or
retained by the CLR Group set forth on Schedule 1.01(a) hereto.
CLR Group: CLR and the CLR Subsidiaries, collectively.
CLR Initial Cash Balance: $7,000,000.
CLR Liabilities: (i) All of the Liabilities of the CLR Group under, or to
be retained or assumed by CLR or any of the CLR Subsidiaries pursuant to, this
Agreement or any of the Related Agreements, including without limitation all
liabilities retained or assumed pursuant to the Tax Sharing Agreement and the
Employee Benefits Allocation Agreement, (ii) all Liabilities under the CLR
Financing Obligations, (iii) all Liabilities relating to Eli Witt (including the
bankruptcy proceedings related thereto) and (iv) all other Liabilities arising
out of or in connection with any of the CLR Assets or the CLR Business,
determined on a basis consistent with the determination of the Liabilities of
CLR included on the CLR Balance Sheet.
CLR Policies: All Policies, current or past, which are owned or maintained
by or on behalf of Culbro or any of its Affiliates or predecessors, that relate
to the CLR Business but do not relate to the Retained Business, and which
Policies are either maintained by the CLR Group or assignable to the CLR Group.
CLR Services Agreement: The Services Agreement, which shall be entered
into between CLR and Culbro on or prior to the Asset Transfer Date,
substantially in the form of Exhibit G attached hereto.
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CLR Subsidiaries: The CLR Transferred Subsidiaries, and all direct and
indirect Subsidiaries of CLR and the CLR Transferred Subsidiaries as of the
Asset Transfer Date.
CLR Transferred Subsidiaries: Imperial, Eli Witt and General Witt
Receivables Corp.
CLR Transferred Subsidiary Stock: All of the issued and outstanding
capital stock of the CLR Transferred Subsidiaries owned by Culbro as of the date
of this Agreement.
Club Macanudo: Club Macanudo, Inc., a wholly-owned subsidiary of Culbro.
Club Macanudo (Chicago): Club Macanudo (Chicago), Inc., a wholly-owned
subsidiary of Culbro.
Code: The Internal Revenue Code of 1986, as amended.
Commercial Real Estate: The real property set forth on Schedule 1.01(c)
hereto.
Commission: The Securities and Exchange Commission.
Conveyancing and Assumption Instruments: Collectively, the various
agreements, instruments and other documents to be entered into to effect the
Asset Transfers and the assumption of Liabilities in the manner contemplated by
this Agreement and the Related Agreements.
Culbro Board: The Board of Directors of Culbro.
Culbro Books and Records: The books and records (including computerized
records, ledgers, files and software) of Culbro and the Retained Subsidiaries
and all books and records owned by Culbro and its Subsidiaries which relate to
the Retained Business, are necessary to operate the Retained Business, or are
required by law to be retained by Culbro, including, without limitation, all
such books and records relating to Retained Employees, all files relating to any
Action pertaining to the Retained Liabilities, original corporate minute books,
stock ledgers and certificates and corporate seals, and all licenses, leases,
agreements and filings, relating to Culbro, the Retained Subsidiaries or the
Retained Business (not including the CLR Books and Records, provided that Culbro
shall have access to, and shall have the right to obtain duplicate copies of,
the CLR Books and Records in accordance with the provisions of Article VIII).
Culbro Common Stock: The common stock, par value $1.00 per share, of
Culbro.
Culbro Group: Culbro and the Retained Subsidiaries, collectively.
Culbro Balance Sheet: The Pro Forma Consolidated Balance Sheet for Culbro,
after giving effect to the Asset Transfers and the Distribution, as of November
30, 1996 (the end of its most recent fiscal year) attached hereto as Exhibit A.
Culbro Financing Obligations: The Financing Obligations to be retained or
assumed by the Culbro Group as set forth on Schedule 1.01(b) hereto.
Culbro Leasehold: The leasehold for the headquarters of Culbro located at
387 Park Avenue South, New York, New York, and all improvements therein.
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Culbro Personal Property: All personalty owned by Culbro, including but
not limited to all vehicles, all office machinery and equipment located at the
Culbro Leasehold, all office furniture and fixtures located at the Culbro
Leasehold, and all works of art and other non-depreciable assets located at the
Culbro Leasehold.
Distribution Date: The date determined by the Culbro Board as the date on
which the Distribution shall be effected.
Distribution Record Date: The date established by the Culbro Board as the
date for taking a record of the Holders of Culbro Common Stock entitled to
participate in the Distribution.
Eli Witt: The Eli Witt Company, a Delaware corporation, in which Culbro
has a 50.1% common stock interest and which has issued certain corporate debt
and mortgaged certain real property to Culbro.
Eli Witt Notes: Certain indebtedness of Eli Witt to Culbro representing
(i) a junior mortgage note from Eli Witt to Culbro bearing a principal amount of
$2,000,000, plus interest, secured by a mortgage on certain real property owned
by Eli Witt and (ii) an unsecured note bearing a principal amount of $5,000,000,
plus interest, issued by Eli Witt to Culbro, and in both cases together with all
security interests related thereto of any kind.
Employee Benefits Allocation Agreement: The Benefits and Employment
Matters Allocation Agreement between Culbro and CLR, which agreement shall be
entered into on or prior to the Asset Transfer Date, substantially in the form
of Exhibit F attached hereto.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Financing Obligations: All (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, notes, debentures or similar instruments, (iii)
obligations under capitalized leases and deferred purchase arrangements, (iv)
reimbursement or other obligations relating to letters of credit or similar
arrangements, and (v) obligations to guarantee, directly or indirectly, any of
the foregoing types of obligations on behalf of others.
General Cigar: General Cigar Co., Inc., a Delaware corporation.
Holders: The holders of record of Culbro Common Stock as of the
Distribution Record Date.
Holdings Property: The Airplane, the Culbro Leasehold and the Culbro
Personal Property.
Holdings Transferred Subsidiaries: General Cigar, 387 PAS, Club Macanudo,
Club Macanudo (Chicago), Cifuentes Y Cia, Ltd., Cifuentes Free Zone, Ltd.,
Gradiaz Annis of Jamaica, Ltd., Gradiaz Annis & Co., Inc., Culbro Tobacco Sales
Corporation, Culbro V.L. Tobacco, S.A., Industrial Buildings & Properties Inc.,
Jose Escalante & Co., Macanudo Cigar Company, Inc., Partagas Cigar Company,
Inc., Culbro International U.K. Ltd., Culbro International, S.A., Moll Tool &
Plastics Corp. and Helmetta Realty Corp.
Holdings Transferred Subsidiary Stock: All of the issued and outstanding
capital stock of the Holdings Transferred Subsidiaries owned by Culbro as of the
date of this Agreement.
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HSR Act: The Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
Imperial: Imperial Nurseries, Inc., a Delaware corporation and a
wholly-owned subsidiary of Culbro.
Insurance Administration: With respect to each Policy, the accounting for
premiums, retrospectively rated premiums, defense costs, adjuster's fees,
indemnity payments, deductibles and retentions as appropriate under the terms
and conditions of such Policy; and the reporting to excess insurance carriers of
any losses or claims in accordance with Policy provisions, and the distribution
of Insurance Proceeds as contemplated by this Agreement.
Insurance Proceeds: Those moneys (i) received by an insured from an
insurance carrier or (ii) paid by an insurance carrier on behalf of an insured,
in either case net of any applicable premium adjustment, retrospectively-rated
premium, deductible, retention, cost or reserve paid or held by or for the
benefit of such insured.
Insured Claims: Those Liabilities that, individually or in the aggregate,
are covered within the terms and conditions of any of the Policies, whether or
not subject to deductibles, co-insurance, uncollectability or retrospectively
rated premium adjustments, but only to the extent that such Liabilities are
within applicable Policy limits, including aggregates.
IPO: The initial public offering of the common stock of Holdings.
IPO Commencement Date: The date the IPO is commenced through distribution
of a "red herring" prospectus.
Liabilities: Any and all debts, liabilities and obligations, absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, including all costs and expenses
relating thereto, and including, without limitation, those debts, liabilities
and obligations arising under any law, rule, regulation, Action, threatened
Action, order or consent decree of any governmental entity or any award of any
arbitrator of any kind, and those arising under any contract, commitment or
undertaking.
Merger Agreement: The Merger Agreement between Culbro and Holdings, which
agreement shall be entered into on or prior to the Distribution Date,
substantially in the form of Exhibit I attached hereto.
NASDAQ: The National Association of Securities Dealers Automated
Quotations System.
Nursery Real Estate: The real property set forth on Schedule 1.01(d)
hereto.
Person: Any individual, corporation, partnership, association, trust,
estate or other entity or organization, including any governmental entity or
authority.
Policies: Insurance policies and insurance contracts of any kind (each, a
"Policy") relating to the CLR Business or the Retained Business as conducted
prior to the Asset Transfer Date, including, without limitation, primary and
excess policies, comprehensive general liability policies, and automobile and
workers' compensation insurance policies, together with the rights, benefits and
privileges thereunder.
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Privileged Information: All information as to which Culbro, CLR or any of
their Subsidiaries are entitled to assert the protection of a Privilege.
Privileges: All privileges that may be asserted under applicable law
including, without limitation, privileges arising under or relating to the
attorney-client relationship (including but not limited to the attorney-client
and work product privileges), the accountant-client privilege, and privileges
relating to internal evaluative processes.
Related Agreements: All of the agreements, instruments, understandings,
assignments or other arrangements which are entered into in connection with the
transactions contemplated hereby and which are set forth in a writing,
including, without limitation, the Conveyancing and Assumption Instruments, the
Agriculture Lease, the Employee Benefits Allocation Agreement, the Tax Sharing
Agreement and the Services Agreement.
Retained Assets: The assets of Culbro other than the CLR Assets, including
without limitation (i) the capital stock of the Retained Subsidiaries, (ii)
assets relating to the Retained Business, determined on a basis consistent with
the determination of assets included on the Culbro Balance Sheet, (iii) all
other assets expressly allocated to Culbro or any of the Retained Subsidiaries
under this Agreement or the Related Agreements, and (iv) any other assets of
Culbro and its Affiliates relating to the Retained Business.
Retained Business: The businesses conducted by Culbro and its Affiliates
other than the CLR Business, including the Cigar Business.
Retained Employees: All of the persons employed by the Culbro Group on the
Asset Transfer Date, which shall be substantially all of the persons employed by
the Culbro Group immediately prior to the Asset Transfer Date; provided that no
CLR Employee shall be deemed to be a Retained Employee.
Retained Liabilities: (i) All of the Liabilities arising out of or in
connection with the Retained Assets or the Retained Business determined on a
basis consistent with the determination of the Liabilities of Culbro included on
the Culbro Balance Sheet, (ii) all other Liabilities of Culbro under, or to be
retained or assumed by Culbro or any of the Retained Subsidiaries pursuant to,
this Agreement or any of the Related Agreements, including without limitation
all Liabilities retained or assumed pursuant to the Tax Sharing Agreement and
the Employee Benefits Agreement, (iii) the Culbro Financing Obligations, (iv)
any Liabilities arising out of the settlement of lawsuits relating to the
Distribution (other than those Liabilities that constitute CLR Liabilities), (v)
all expenses relating to consummation of the Asset Transfers, the IPO, the
Distribution and the Merger (including without limitation all transfer taxes,
legal, accounting and investment bank fees and expenses) and (vi) all other
Liabilities of Culbro not constituting CLR Liabilities, including Liabilities
relating to the sales contracted pursuant to the Stock Purchase Agreement by and
between Culbro Corporation, as seller, and Impaxx, Inc., as buyer, dated as of
October 15, 1996 and any obligations of the operations sold pursuant thereto.
Retained Policies: All Policies, current or past, that are owned or
maintained by or on behalf of any member of the Culbro Group (or any of its
predecessors) which relate to the Retained Business but do not relate to the CLR
Business.
Retained Subsidiaries: All direct and indirect Subsidiaries of Culbro,
including but not limited to (i) Holdings, (ii) General Cigar, 387 PAS, Club
Macanudo, Club Macanudo (Chicago) and GCH Transportation, Inc., (iii) Villazon &
Co., Inc., Honduras American Tabaco, S.A. de C.V., Cifuentes
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Y Cia, Ltd., Cifuentes Free Zone, Ltd., Gradiaz Annis of Jamaica, Ltd., Gradiaz
Annis & Co., Inc., Culbro Tobacco Sales Corporation, Culbro V.L. Tobacco, S.A.
and Industrial Buildings & Properties Inc. and (iv) Jose Escalante & Co.,
Macanudo Cigar Company, Inc., Partagas Cigar Company, Inc., Culbro International
U.K. Ltd., Culbro International, S.A., Moll Tool & Plastics Corp., Helmetta
Realty Corp. and Twenty-Seventh & Park, Inc.; provided, however, that "Retained
Subsidiaries" shall exclude CLR and the CLR Subsidiaries.
Securities Act: The Securities Act of 1933, as amended.
Shared Policies: All Policies, current or past, that are owned or
maintained by or on behalf of Culbro or any of its Subsidiaries or their
respective predecessors that relate to both the Retained Business and the CLR
Business, and all other Policies not constituting Retained Policies or CLR
Policies, in each case including, but not limited to, the Policies specified on
Schedule 1.01(f) hereto.
Subsidiary: With respect to any Person, (a) any corporation of which at
least a majority in interest of the outstanding voting stock (having by the
terms thereof voting power under ordinary circumstances to elect a majority of
the directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, owned or controlled by such Person, by one or more
Subsidiaries of such Person, or by such Person and one or more of its
Subsidiaries; provided that Eli Witt shall not constitute a Subsidiary of Culbro
or any of its affiliates, or (b) any non-corporate entity in which such Person,
one or more Subsidiaries of such Person, or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof, has at least majority ownership interest.
Tax Ruling: The private letter ruling to be issued by the Internal Revenue
Service to the effect that the proposed Distribution constitutes a tax-free
spin-off under the Code.
Tax Sharing Agreement: The Tax Sharing Agreement between Culbro and CLR,
which agreement shall be entered into on or prior to the Asset Transfer Date,
substantially in the form of Exhibit H attached hereto.
Tobacco Real Estate: The real property set forth on Schedule 1.01(e)
hereto.
Section 1.02 Terms Defined Elsewhere in Agreement.
Each of the following terms is defined in the Section set forth opposite
such term:
Term Section
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Asset Transfers Recitals
Cigar Business Recitals
CLR Recitals
CLR Assets 2.04
CLR Indemnifiable Losses 5.01
CLR Indemnitees 5.01
Culbro Recitals
Culbro Indemnifiable Losses 5.02
Culbro Indemnitees 5.02
Distribution Recitals
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Form 10 Registration Statement 4.01
Holdings Assets 2.03
Indemnifiable Losses 5.02
Indemnifying Party 5.03
Indemnitee 5.03
Information 8.02
Merger Proxy 4.01
Nursery Business Recitals
Real Estate Business Recitals
Required Consents 4.01
Third-Party Claim 5.04
ARTICLE II
TRANSFER OF ASSETS
Section 2.01 Transfer of Real Estate to General Cigar. Prior to the IPO
Commencement Date, Culbro shall take or cause to be taken all actions necessary
to cause the transfer, assignment, delivery and conveyance to General Cigar or
any subsidiary thereof of all of Culbro's and its Subsidiaries' right, title and
interest in the Tobacco Real Estate.
Section 2.02 Transfer of Real Estate to CLR. Prior to the IPO Commencement
Date, Culbro shall take or cause to be taken all actions necessary to cause the
transfer, assignment, delivery and conveyance to CLR or any Subsidiary thereof
of all of Culbro's and its Subsidiaries' right, title and interest in the
Nursery Real Estate and in the Commercial Real Estate.
Section 2.03 Transfer of Assets to Holdings. Prior to the IPO Commencement
Date, Culbro shall take or cause to be taken all actions necessary to cause the
transfer, assignment, delivery and conveyance to Holdings or the Retained
Subsidiaries, as the case may be, of all of Culbro's and its Subsidiaries'
right, title and interest in the Holdings Assets, and Holdings shall take or
cause to be taken all actions necessary to cause the assumption by Holdings or
the Retained Subsidiaries of the Retained Liabilities. The "Holdings Assets"
shall consist of the following assets:
(i) the Holdings Transferred Subsidiary Stock;
(ii) the 387 PAS Minority Interest;
(iii) the Holdings Property;
(iv) licenses and permits relating to the Retained Business, to the
extent such licenses and permits are transferable;
(v) all accounts receivable, prepaid expenses, reserves and other
current assets relating to the Retained Business (except that
no cash shall constitute Holdings Assets except to the extent
provided in Section 2.09 below);
(vi) the Retained Policies and the Shared Policies; and
(vii) all of the other assets to be assigned to Holdings under this
Agreement or the
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Related Agreements.
Section 2.04 Transfer of Assets to CLR. Prior to the consummation of the
IPO, Culbro shall take or cause to be taken all actions necessary to cause the
transfer, assignment, delivery and conveyance to CLR or the CLR Subsidiaries of
all of Culbro's and its Subsidiaries' right, title and interest in the CLR
Assets, and CLR shall take or cause to be taken all actions necessary to cause
the assumption by CLR or the CLR Subsidiaries of the CLR Liabilities. The "CLR
Assets" shall consist of the following assets:
(i) the CLR Transferred Subsidiary Stock;
(ii) the Centaur Interest;
(iii) the Eli Witt Notes;
(iv) the CLR Books and Records;
(v) licenses and permits relating to the CLR Business, to the
extent such licenses and permits are transferable;
(vi) all of the other assets to be assigned to CLR under this
Agreement or the Related Agreements;
(vii) all accounts receivable, prepaid expenses, reserves and other
current assets relating to the CLR Business (except that no
cash shall constitute CLR Assets except to the extent provided
in Section 2.09 below);
(viii) the CLR Policies; and
(ix) all other assets relating to the CLR Business, determined on a
basis consistent with the determination of the assets included
on the CLR Balance Sheet.
Section 2.05 Related Agreements; Merger Agreement.
On or prior to the Asset Transfer Date, Culbro, Holdings and CLR (or their
respective Subsidiaries, as applicable) shall enter into the Related Agreements
and Culbro and Holdings shall enter into the Merger Agreement.
Section 2.06 Transfers Not Effected Prior to the Distribution.
To the extent that any transfers contemplated by this Article II shall not
have been fully effected on the Asset Transfer Date, the parties shall cooperate
to effect such transfers as promptly as shall be practicable following the Asset
Transfer Date. Nothing herein shall be deemed to require the transfer of any
assets or the assumption of any Liabilities that by their terms or operation of
law cannot be transferred or assumed; provided, however, that Culbro on the one
hand and Holdings or CLR, as the case may be, on the other hand, and their
respective Subsidiaries and Affiliates shall cooperate in seeking to obtain any
necessary consents or approvals for the transfer of all assets and Liabilities
contemplated to be transferred pursuant to this Article II. In the event that
any such transfer of assets or Liabilities has not been consummated as of the
Asset Transfer Date, the party retaining such asset or Liability shall
thereafter hold such asset in trust for the use and benefit of the party
entitled thereto (at the expense of
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the party entitled thereto) and retain such Liability for the account of the
party by whom such Liability is to be assumed pursuant hereto, and take such
other actions as may be reasonably required in order to place the parties,
insofar as reasonably possible, in the same position as would have existed had
such asset been transferred or such Liability been assumed as contemplated
hereby. As and when any such asset or Liability becomes transferable, such
transfer and assumption shall be effected forthwith. The parties agree that,
except as described in this section, as of the Asset Transfer Date, each party
hereto shall be deemed to have acquired complete and sole beneficial ownership
over all of the assets, together with all rights, powers and privileges
incidental thereto, and shall be deemed to have assumed in accordance with the
terms of this Agreement all of the Liabilities, and all duties, obligations and
responsibilities incidental thereto, which such party is entitled to acquire or
required to assume pursuant to the terms of this Agreement.
Section 2.07 No Representations or Warranties; Consents. Each of the
parties hereto understands and agrees that no party hereto is, in this Agreement
or in any other agreement or document contemplated by this Agreement or
otherwise, representing or warranting in any way (i) as to the value or freedom
from encumbrance of, or any other matter concerning, any assets of such party or
(ii) as to the legal sufficiency to convey title to any asset transferred
pursuant to this Agreement or any Related Agreement, including, without
limitation, any Conveyancing or Assumption Instruments. It is also agreed and
understood that there are no warranties, express or implied, as to the
merchantability or fitness of any of the assets either transferred to or
retained by the parties, as the case may be, and all such assets shall be "as
is, where is" and "with all faults", including without limitation all
environmental liabilities (provided, however, that the absence of warranties
shall have no effect upon the allocation of Liabilities under this Agreement).
Similarly, each party hereto understands and agrees that no party hereto is, in
this Agreement or in any other agreement or document contemplated by this
Agreement or otherwise, representing or warranting in any way that the obtaining
of any consents or approvals, the execution and delivery of any amendatory
agreements and the making of any filings or applications contemplated by this
Agreement will satisfy the provisions of any or all applicable laws or judgments
or other instruments or agreements relating to such assets. Notwithstanding the
foregoing, the parties shall use their good faith efforts to obtain all consents
and approvals, to enter into all reasonable amendatory agreements and to make
all filings and applications which may be reasonably required for the
consummation of the transactions contemplated by this Agreement, and shall take
all such further reasonable actions as shall be reasonably necessary to preserve
for each of the Culbro Group and the CLR Group, to the greatest extent feasible,
the economic and operational benefits of the allocation of assets and
Liabilities provided for in this Agreement. In case at any time after the Asset
Transfer Date any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of each party to
this Agreement shall take all such necessary or desirable action.
Section 2.08 Conveyancing and Assumption Instruments. In connection with
the Asset Transfers and the assumptions of Liabilities contemplated by this
Agreement, the parties shall execute or cause to be executed by the appropriate
entities the Conveyancing and Assumption Instruments in such forms as the
parties shall reasonably agree, including but not limited to the assignment of
franchise rights and the assignment and assumption of existing agreements as set
forth in Schedule 2.08 hereto. The transfer of capital stock shall be effected
by means of delivery of stock certificates and executed stock powers and
notation on the stock record books of the corporation or other legal entities
involved and, to the extent required by applicable law, by notation on public
registries.
Section 2.09 Business Operations.
(a) Cash Allocation on the Asset Transfer Date. To satisfy the business
needs for cash of
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CLR as of the close of business on the Asset Transfer Date, (i) CLR shall be
allocated, out of all cash bank balances and short-term investments of Culbro
and its Subsidiaries ("Cash"), an amount of Cash equal to the CLR Initial Cash
Balance and (ii) Culbro shall transfer all other Cash to Holdings. To the extent
practicable, the parties shall use their reasonable best efforts to take all
necessary action to cause the Cash balances of CLR and its Subsidiaries
immediately prior to consummation of the Asset Transfers to be equal to the CLR
Initial Cash Balance. In the event the actual Cash balances of CLR and its
Subsidiaries as of the Asset Transfer Date are less than the CLR Initial Cash
Balance, the amount of the deficiency shall be recorded in the accounts of CLR
as of the Asset Transfer Date as a payable from Holdings to CLR (which payable
will be paid as promptly as practicable following the Asset Transfer Date); and
in the event the actual Cash balances of CLR and its Subsidiaries as of the
Asset Transfer Date exceeds the CLR Initial Cash Balance, the amount of such
excess shall be recorded in the accounts of Holdings and CLR as of the Asset
Transfer Date as a payable from CLR to Holdings (which payable will be paid as
promptly as practicable following the time it is determinable).
(b) Cash Management After the Asset Transfer Date. CLR shall separate from
Culbro, and establish and maintain a separate cash management system and
accounting records with respect to the CLR Business effective as of 12:01 a.m.
on the day following the Asset Transfer Date; thereafter, (i) any payments by
Culbro or its Retained Subsidiaries on behalf of CLR or the CLR Subsidiaries in
connection with the CLR Business shall be recorded in the accounts of the CLR
Group as a payable from the CLR Group to the Culbro Group; (ii) any payments by
CLR or the CLR Subsidiaries on behalf of Culbro or its Retained Subsidiaries in
connection with the Retained Business shall be recorded in the accounts of the
Culbro Group as a payable from the Culbro Group to the CLR Group; (iii) any cash
payments received by Culbro and the Retained Subsidiaries relating to the CLR
Business or the CLR Assets shall be recorded in the accounts of the Culbro Group
as a payable from the Culbro Group to the CLR Group; (iv) any cash payments
received by CLR or the CLR Subsidiaries relating to the Retained Business or the
Retained Assets shall be recorded in the accounts of the CLR Group as a payable
from the CLR Group to the Culbro Group; (v) CLR and Culbro shall make
adjustments for late deposits, checks returned for not sufficient funds and
other post-Asset Transfer Date transactions as shall be reasonable under the
circumstances consistent with the purpose and intent of this Agreement; and (vi)
the net balance due to the Culbro Group or the CLR Group, as the case may be, in
respect of the aggregate amounts of clauses (i), (ii), (iii), (iv) and (v) shall
be paid by CLR or Culbro, as appropriate, as promptly as practicable. For
purposes of this Section 2.09(b), the parties contemplate that the Retained
Business and the CLR Business, including but not limited to the administration
of accounts payable and accounts receivable, will be conducted in the normal
course.
(c) Separate Operations. From and after the Asset Transfer Date, the CLR
Business shall be operated as a stand-alone business. Culbro agrees that unless
and until the Distribution is abandoned pursuant to Section 10.07 below, Culbro
will not cause CLR to make any distribution, in cash or otherwise, to Culbro.
(d) Audit and Disputes. All transactions contemplated in this Section 2.09
shall be subject to audit by the parties, and any dispute thereunder shall be
resolved by an independent firm of certified public accounts mutually acceptable
to Culbro and CLR, whose decision shall be final and unappealable.
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ARTICLE III
ASSUMPTION AND SATISFACTION OF LIABILITIES
Section 3.01 Assumption and Satisfaction of Liabilities. Except as set
forth in the Tax Sharing Agreement, the Employee Benefits Allocation Agreement,
the Services Agreement, the Agriculture Lease or other Related Agreements,
effective as of and after the Asset Transfer Date, (a) Holdings shall, and/or
shall cause the Holdings Transferred Subsidiaries to, assume, pay, perform, and
discharge in due course all of the Retained Liabilities and (b) CLR shall,
and/or shall cause the CLR Subsidiaries to, assume, pay, perform, and discharge
in due course all of the CLR Liabilities.
ARTICLE IV
THE DISTRIBUTION
Section 4.01 Cooperation Prior to the Distribution.
(a) Culbro and CLR shall prepare, and CLR shall file with the Commission,
a Form 10 registration statement with respect to the registration under the
Exchange Act of the CLR Common Stock (the "Form 10 Registration Statement").
(b) Each of Culbro, Holdings and CLR shall cooperate in preparing, filing
with the Commission and causing to become effective any registration statements
or amendments thereto which are appropriate to reflect the establishment of, or
amendments to, any employee benefit plans and other plans contemplated by this
Agreement.
(c) Culbro shall file a "no-action" letter with the Commission with
respect to the Distribution, shall use its best efforts to receive a no-action
position from the Commission that the Distribution will not require registration
under the Securities Act and shall take all other action as may be necessary and
appropriate (including registration of the CLR Common Stock under the Securities
Act) to obtain approval under federal securities laws for the Distribution.
(d) Culbro shall prepare and file with the Commission a registration
statement on Form S-4 and related proxy materials (collectively, the "Merger
Proxy") with respect to effectuating the Merger, and shall take all other action
as may be necessary to consummate the Merger.
(e) Each of Culbro, Holdings and CLR shall take all such action as may be
necessary or appropriate under the securities or blue sky laws of states or
other political subdivisions of the United States in connection with the
transactions contemplated by this Agreement and the Related Agreements.
(f) Culbro and CLR shall prepare, and CLR shall file and pursue, an
application to permit the listing of CLR Common Stock on NASDAQ.
(g) Culbro, Holdings and CLR, as the case may be, shall make any requisite
filings under the HSR Act.
(h) Each of Culbro, Holdings and CLR shall use all reasonable efforts to
obtain any third-party consents or approvals necessary or desirable in
connection with the transactions contemplated hereby, including without
limitation the consents or approvals set forth on Schedule 4.01 hereto
(collectively, the "Required Consents").
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(i) Each of Culbro, Holdings and CLR shall use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary or desirable under applicable law, to consummate the
transactions contemplated under this Agreement.
Section 4.02 Culbro Board Action; Conditions Precedent to the
Distribution. The Culbro Board shall, in its discretion, establish the
Distribution Record Date and the Distribution Date and any appropriate
procedures in connection with the Distribution. In no event shall the
Distribution occur unless the following conditions shall have been satisfied:
(i) the Tax Ruling shall have been granted in form and substance
satisfactory to the Culbro Board, in its sole discretion, or the Culbro Board
shall have received an opinion of Latham & Watkins (or, in the event of a
conflict, of another national law firm mutually acceptable to the parties
hereto) in form and substance satisfactory to it in its sole discretion to the
effect that the proposed Distribution constitutes a tax-free spin-off under the
Code.
(ii) Culbro and Holdings shall have entered into the Merger
Agreement and the Holders of Culbro Common Stock shall have approved the Merger;
(iii) Culbro and CLR shall have obtained all approvals from
government authorities (including the Commission), the failure of which to
obtain would, in the determination of the Culbro Board, have a material adverse
effect on Culbro or CLR; and
(iv) Culbro and CLR shall have entered into the Related Agreements;
provided, however, that (i) any such condition may be waived by the Culbro Board
in its sole discretion upon the advice of counsel and (ii) the satisfaction of
such conditions shall not create any obligation on the part of Culbro or any
other party hereto to effect the Distribution or in any way limit Culbro's power
of termination set forth in Section 10.07 or alter the consequences of any such
termination from those specified in such Section.
Section 4.03 The Distribution. On the Distribution Date, subject to the
conditions and rights of termination set forth in this Agreement, Culbro shall
deliver to the Agent a share certificate representing all of the then
outstanding shares of CLR Common Stock owned by Culbro and shall instruct the
Agent to distribute, on or as soon as practicable following the Distribution
Date, such CLR Common Stock to the Holders. CLR agrees to provide all share
certificates that the Agent shall require in order to effect the Distribution.
ARTICLE V
INDEMNIFICATION
Section 5.01 Indemnification by Culbro.
Except as otherwise expressly set forth in a Related Agreement, Culbro and
Holdings shall indemnify, defend and hold harmless CLR and each of the CLR
Subsidiaries, and each of their respective directors, officers, employees,
agents and Affiliates and each of the heirs, executors, successors and assigns
of any of the foregoing (the "CLR Indemnitees") from and against the Retained
Liabilities and any and all losses, Liabilities, damages, including, without
limitation, the costs and expenses of any and all Actions, threatened Actions,
demands, assessments, judgments, settlements and compromises relating
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thereto and attorneys' fees and any and all expenses whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened Actions (collectively, "CLR Indemnifiable Losses" and, individually,
a "CLR Indemnifiable Loss") of the CLR Indemnitees arising out of or due to the
failure or alleged failure of Culbro or any of its Affiliates to (i) pay,
perform or otherwise discharge in due course any of the Retained Liabilities or
(ii) comply with the provisions of Section 5.04.
Section 5.02 Indemnification by CLR. Except as otherwise expressly set
forth in a Related Agreement, CLR shall indemnify, defend and hold harmless
Culbro and each of the Retained Subsidiaries, and each of their directors,
officers, employees, agents and Affiliates and each of the heirs, executors,
successors and assigns of any of the foregoing (the "Culbro Indemnitees") from
and against the CLR Liabilities and any and all losses, Liabilities, damages,
including, without limitation, the costs and expenses of any and all Actions,
threatened Actions, demands, assessments, judgments, settlements and compromises
relating thereto and attorneys' fees and any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any such
Actions or threatened Actions (collectively, "Culbro Indemnifiable Losses" and,
individually, a "Culbro Indemnifiable Loss") of the Culbro Indemnitees arising
out of or due to the failure or alleged failure of CLR or any of its Affiliates
to (i) pay, perform or otherwise discharge in due course any of the CLR
Liabilities or (ii) comply with the provisions of Section 5.04. The "CLR
Indemnifiable Losses" and the "Culbro Indemnifiable Losses" are collectively
referred to as the "Indemnifiable Losses."
Section 5.03 Insurance Proceeds. The amount that any party (an
"Indemnifying Party") is or may be required to pay to any other Person (an
"Indemnitee") pursuant to Section 5.01 or Section 5.02 shall be reduced
(including, without limitation, retroactively) by any Insurance Proceeds or
other amounts actually recovered by or on behalf of such Indemnitee in reduction
of the related Indemnifiable Loss. If an Indemnitee shall have received the
payment required by this Agreement from an Indemnifying Party in respect of an
Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds,
or other amounts in respect of such Indemnifiable Loss as specified above, then
such Indemnitee shall pay to such Indemnifying Party a sum equal to the amount
of such Insurance Proceeds or other amounts actually received.
Section 5.04 Procedure for Indemnification.
(a) Except as may be set forth in a Related Agreement, if an Indemnitee
shall receive notice or otherwise learn of the assertion by a Person (including,
without limitation, any governmental entity) who is not a party to this
Agreement or to any of the Related Agreements of any claim or of the
commencement by any such Person of any Action (a "Third-Party Claim") with
respect to which an Indemnifying Party may be obligated to provide
indemnification pursuant to this Agreement, such Indemnitee shall give such
Indemnifying Party written notice thereof promptly after becoming aware of such
Third-Party Claim; provided, that the failure of any Indemnitee to give notice
as required by this Section 5.04 shall not relieve the Indemnifying Party of its
obligations under this Article V, except to the extent that such Indemnifying
Party is prejudiced by such failure to give notice. Such notice shall describe
the Third-Party Claim in reasonable detail, and shall indicate the amount
(estimated if necessary) of the Indemnifiable Loss that has been or may be
sustained by such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or
compromise, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Third-Party Claim, provided that the Indemnifying Party
must confirm in writing that it agrees that Indemnitee is entitled to
indemnification hereunder in respect of such Third-Party Claim. Within 30 days
of the receipt of notice from an Indemnitee in accordance with Section 5.04(a)
(or sooner, if the nature of such Third-
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Party Claim so requires), the Indemnifying Party shall notify the Indemnitee of
its election whether to assume responsibility for such Third-Party Claim
(provided that if the Indemnifying Party does not so notify the Indemnitee of
its election within 30 days after receipt of such notice from the Indemnitee,
the Indemnifying Party shall be deemed to have elected not to assume
responsibility for such Third-Party Claim), and such Indemnitee shall cooperate
in the defense or settlement or compromise of such Third- Party Claim. After
notice from an Indemnifying Party to an Indemnitee of its election to assume
responsibility for a Third-Party Claim, such Indemnifying Party shall not be
liable to such Indemnitee under this Article V for any legal or other expenses
(except expenses approved in advance by the Indemnifying Party) subsequently
incurred by such Indemnitee in connection with the defense thereof; provided,
that if the defendants in any such claim include both the Indemnifying Party and
one or more Indemnitees and in such Indemnitees' reasonable judgment a conflict
of interest between such Indemnitees and such Indemnifying Party exists in
respect of such claim, such Indemnitees shall have the right to employ separate
counsel and in that event the reasonable fees and expenses of such separate
counsel (but not more than one separate counsel reasonably satisfactory to the
Indemnifying Party) shall be paid by such Indemnifying Party. If an Indemnifying
Party elects not to assume responsibility for a Third-Party Claim (which
election may be made only in the event of a good faith dispute that a claim was
inappropriately tendered under Section 5.01 or 5.02, as the case may be) such
Indemnitee may defend or (subject to the following sentence) seek to compromise
or settle such Third-Party Claim. Notwithstanding the foregoing, an Indemnitee
may not settle or compromise any claim without prior written notice to the
Indemnifying Party, which shall have the option within ten days following the
receipt of such notice (i) to disapprove the settlement and assume all past and
future responsibility for the claim, including reimbursing the Indemnitee for
prior expenditures in connection with the claim, or (ii) to disapprove the
settlement and continue to refrain from participation in the defense of the
claim, in which event the Indemnifying Party shall have no further right to
contest the amount or reasonableness of the settlement if the Indemnitee elects
to proceed therewith, or (iii) to approve the amount of the settlement,
reserving the Indemnifying Party's right to contest the Indemnitee's right to
indemnity, or (iv) to approve and agree to pay the settlement. In the event the
Indemnifying Party makes no response to such written notice from the Indemnitee,
the Indemnifying Party shall be deemed to have elected option (ii) above.
(c) If an Indemnifying Party chooses to defend or to seek to compromise
any Third-Party Claim, the Indemnitee shall make available to such Indemnifying
Party any personnel and any books, records or other documents within its control
or which it otherwise has the ability to make available that are necessary or
appropriate for such defense.
(d) Notwithstanding anything else in this Section 5.04 to the contrary, an
Indemnifying Party shall not settle or compromise any Third-Party Claim unless
such settlement or compromise contemplates as an unconditional term thereof the
giving by such claimant or plaintiff to the Indemnitee of a written release from
all liability in respect of such Third-Party Claim (and provided further that
such settlement may not provide for any non-monetary relief by Indemnitee
without the written consent of Indemnitee). In the event the Indemnitee shall
notify the Indemnifying Party in writing that such Indemnitee declines to accept
any such settlement or compromise, such Indemnitee may continue to contest such
Third-Party Claim, free of any participation by such Indemnifying Party, at such
Indemnitee's sole expense. In such event, the obligation of such Indemnifying
Party to such Indemnitee with respect to such Third-Party Claim shall be equal
to (i) the costs and expenses of such Indemnitee prior to the date such
Indemnifying Party notifies such Indemnitee of the offer to settle or compromise
(to the extent such costs and expenses are otherwise indemnifiable hereunder)
plus (ii) the lesser of (A) the amount of any offer of settlement or compromise
which such Indemnitee declined to accept or (B) the actual out-of-pocket amount
such Indemnitee is obligated to pay subsequent to such date as a result of such
Indemnitee's continuing to pursue such Third-Party Claim.
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(e) Any claim on account of an Indemnifiable Loss which does not result
from a Third-Party Claim shall be asserted by written notice given by the
Indemnitee to the applicable Indemnifying Party. Such Indemnifying Party shall
have a period of 15 days after the receipt of such notice within which to
respond thereto. If such Indemnifying Party does not respond within such 15-day
period, such Indemnifying Party shall be deemed to have refused to accept
responsibility to make payment. If such Indemnifying Party does not respond
within such 15-day period or rejects such claim in whole or in part, such
Indemnitee shall be free to pursue such remedies as may be available to such
party under applicable law or under this Agreement.
(f) In addition to any adjustments required pursuant to Section 5.03, if
the amount of any Indemnifiable Loss shall, at any time subsequent to the
payment required by this Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the Indemnitee to the
Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in
connection with any Third-Party Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any events
or circumstances in respect of which such Indemnitee may have any right or claim
relating to such Third-Party Claim against any claimant or plaintiff asserting
such Third- Party Claim. Such Indemnitee shall cooperate with such Indemnifying
Party in a reasonable manner, and at the cost and expense of such Indemnifying
Party, in prosecuting any subrogated right or claim.
Section 5.05 Remedies Cumulative. The remedies provided in this Article V
shall be cumulative and shall not preclude assertion by any Indemnitee of any
other rights or the seeking of any and all other remedies against any
Indemnifying Party.
Section 5.06 Survival of Indemnities. The obligations of each of CLR and
Culbro under this Article V shall survive the Merger and the sale or other
transfer by it of any assets or businesses or the assignment by it of any
Liabilities, with respect to any Indemnifiable Loss of the other related to such
assets, businesses or Liabilities.
ARTICLE VI
CERTAIN ADDITIONAL MATTERS
Section 6.01 CLR Board. CLR and Culbro shall take all actions which may be
required to constitute, effective as of the Distribution Date, the following
persons as the directors of CLR: Edgar Cullman, Sr., Frederick M. Danziger, John
L. Ernst and John Fletcher.
Section 6.02 Resignations.
(a) CLR shall cause all of its directors and all CLR Employees to resign,
effective as of the Distribution Date, from all boards of directors or similar
governing bodies of Culbro or any of its Retained Subsidiaries on which they
serve, and from all positions as officers or employees of Culbro or any of its
Retained Subsidiaries in which they serve, except (i) Edgar M. Cullman, Sr.
shall serve as Chairman of the Board of Culbro and of Holdings and as Chairman
of the Board of CLR, (ii) John L. Ernst shall serve as a director of Culbro and
of Holdings and as a director of CLR and (iii) as set forth in the Services
Agreement. Culbro shall cause all of its directors and the Retained Employees to
resign from all boards of directors or similar governing bodies of CLR and of
any of its Subsidiaries on which such directors and Retained Employees serve,
and from all positions as officers or employees of CLR
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or any of its Subsidiaries in which they serve, except to the extent specified
in the preceding sentence.
Section 6.03 Certificate and Bylaws. On or prior to the Distribution Date,
CLR shall adopt the CLR Certificate and the CLR Bylaws, and shall file the CLR
Certificate with the Secretary of State of the State of Delaware.
ARTICLE VII
POST-DISTRIBUTION TRANSFERS
Section 7.01 Merger. Following the Distribution, and as promptly as
practicable after the date six months following consummation of the IPO (or such
earlier date as determined by the Culbro Board after receiving the consent of
Donaldson, Lufkin & Jenrette Securities Corporation and the approval of the
merger by the Culbro stockholders), Culbro and Holdings shall consummate the
Merger in accordance with the Merger Agreement. From and after the Merger, all
rights and obligations of Culbro hereunder shall survive and shall be vested in
Holdings.
Section 7.02 Certain Post-Distribution Transactions.
(a) CLR. CLR shall, and shall cause each of the CLR Subsidiaries to,
comply with each representation and statement made, or to be made, to any taxing
authority in connection with any ruling obtained, or to be obtained, by Culbro,
Holdings and CLR acting together, from any such taxing authority with respect to
any transaction contemplated by this Agreement; and until the second anniversary
of the Distribution Date, neither CLR nor any of the CLR Subsidiaries shall take
or omit any action inconsistent therewith, unless (i) required to do so by law,
(ii) permitted to do so by the prior written consent of Culbro, (iii) pursuant
to a favorable supplemental ruling letter reasonably satisfactory to Culbro that
such act or omission would not adversely affect the tax consequences of the
Distribution to Culbro or to the stockholders of Culbro, as set forth in any
ruling issued by any taxing authority or (iv) pursuant to an opinion of Latham &
Watkins (or, in the event of a conflict, of another national law firm mutually
acceptable to the parties hereto) reasonably satisfactory to Culbro that such
act or omission would not adversely affect the tax consequences of the
Distribution to Culbro or to the stockholders of Culbro. Neither CLR nor any of
the CLR Subsidiaries has a present intention to take or omit any such action.
(b) Culbro. Culbro shall, and shall cause each of the Retained
Subsidiaries to, comply with each representation and statement made, or to be
made, to any taxing authority in connection with any ruling obtained, by Culbro,
Holdings and CLR acting together, from any such taxing authority with respect to
any transaction contemplated by this Agreement; and until the second anniversary
of the Distribution Date, neither Culbro nor any of the Retained Subsidiaries
shall take or omit any action inconsistent therewith, unless (i) required to do
so by law, (ii) permitted to do so by the prior written consent of CLR, (iii)
pursuant to a favorable supplemental ruling letter reasonably satisfactory to
CLR that such act or omission would not adversely affect the tax consequences of
the Distribution to CLR or to the stockholders of CLR, as set forth in any
ruling issued by any taxing authority or (iv) pursuant to an opinion of Latham &
Watkins (or, in the event of a conflict, of another national law firm mutually
acceptable to the parties hereto) reasonably satisfactory to Culbro that such
act or omission would not adversely affect the tax consequences of the
Distribution to Culbro or to the stockholders of Culbro. Neither Culbro nor any
of the Retained Subsidiaries has a present intention to take or omit any such
action.
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ARTICLE VIII
ACCESS TO INFORMATION AND SERVICES
Section 8.01 Provision of Corporate Records.
(a) Except as may otherwise be provided in a Related Agreement, Culbro
shall arrange as soon as practicable following the Distribution Date, to the
extent not previously delivered in connection with the transactions contemplated
in Article II, for the transportation to CLR of the CLR Books and Records in its
possession, except to the extent such items are already in the possession of CLR
or a CLR Subsidiary. Such CLR Books and Records shall be the property of CLR,
but shall be available to Culbro for review and duplication until Culbro shall
notify CLR in writing that such records are no longer of use to Culbro.
(b) Except as otherwise provided in a Related Agreement, CLR shall arrange
as soon as practicable following the Distribution Date, to the extent not
previously delivered in connection with the transactions contemplated in Article
II, for the transportation to Culbro of the Culbro Books and Records in its
possession, except to the extent such items are already in the possession of
Culbro. The Culbro Books and Records shall be the property of Culbro, but shall
be available to CLR for review and duplication until CLR shall notify Culbro in
writing that such records are no longer of use to CLR.
Section 8.02 Access to Information.
Except as otherwise provided in a Related Agreement, from and after the
Distribution Date, Culbro shall afford to CLR and its authorized accountants,
counsel and other designated representatives reasonable access (including using
reasonable efforts to give access to persons or firms possessing information)
and duplicating rights during normal business hours to all records, books,
contracts, instruments, computer data, software and systems and other data and
information relating to pre- Distribution operations (collectively,
"Information") within Culbro's possession insofar as such access is reasonably
required by CLR for the conduct of its business, subject to appropriate
restrictions for classified or Privileged Information. Similarly, except as
otherwise provided in a Related Agreement, CLR shall afford to Culbro and its
authorized accountants, counsel and other designated representatives reasonable
access (including using reasonable efforts to give access to persons or firms
possessing information) and duplicating rights during normal business hours to
Information within CLR's possession, insofar as such access is reasonably
required by Culbro for the conduct of its business, subject to appropriate
restrictions for classified or Privileged Information. Information may be
requested under this Article VIII for the legitimate business purposes of either
party, including without limitation, audit, accounting, claims (including claims
for indemnification hereunder), litigation and tax purposes, as well as for
purposes of fulfilling disclosure and reporting obligations and for performing
this Agreement and the transactions contemplated hereby.
Section 8.03 Production of Witnesses. At all times from and after the
Distribution Date, each of Culbro and CLR shall use reasonable efforts to make
available to the others, upon written request, its and its subsidiaries'
officers, directors, employees and agents as witnesses to the extent that such
persons may reasonably be required in connection with any Action.
Section 8.04 Reimbursement. Except to the extent otherwise contemplated in
any Related Agreement, a party providing Information or witness services to the
other party under this Article VIII shall be entitled to receive from the
recipient, upon the presentation of invoices therefor, payments of such amounts,
relating to supplies, disbursements and other out-of-pocket expenses (at cost)
and direct
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and indirect expenses of employees who are witnesses or otherwise furnish
assistance (at cost), as may be reasonably incurred in providing such
Information or witness services.
Section 8.05 Retention of Records. Except as otherwise required by law or
agreed to in a Related Agreement or otherwise in writing, each of Culbro and CLR
may destroy or otherwise dispose of any of the Information (including
information that is material Information and is not contained in other
Information retained by Culbro or CLR, as the case may be) at any time after the
tenth anniversary of this Agreement, provided that, prior to such destruction or
disposal, (a) it shall provide no less than 90 or more than 120 days prior
written notice to the other, specifying in reasonable detail the Information
proposed to be destroyed or disposed of and (b) if a recipient of such notice
shall request in writing prior to the scheduled date for such destruction or
disposal that any of the Information proposed to be destroyed or disposed of be
delivered to such requesting party, the party proposing the destruction or
disposal shall promptly arrange for the delivery of such of the Information as
was requested at the expense of the party requesting such Information.
Section 8.06 Confidentiality. Each of Culbro and its Subsidiaries on the
one hand, and CLR and its Subsidiaries on the other hand, shall hold, and shall
cause its consultants and advisors to hold, in strict confidence, all
Information concerning the other in its possession or furnished by the other or
the other's representatives pursuant to this Agreement (except to the extent
that such Information has been (i) in the public domain through no fault of such
party or (ii) later lawfully acquired from other sources by such party), and
each party shall not release or disclose such Information to any other person,
except its auditors, attorneys, financial advisors, rating agencies, bankers and
other consultants and advisors, unless compelled to disclose by judicial or
administrative process or, as reasonably advised by its counsel, by other
requirements of law, or unless such Information is reasonably required to be
disclosed in connection with (x) any litigation with any third-parties or
litigation between the Culbro Group and the CLR Group, (y) any contractual
agreement to which the Culbro Group or the CLR Group are currently parties or
(z) in exercise of either parties' rights hereunder.
Section 8.07 Privileged Matters. Culbro and CLR recognize that legal and
other professional services that have been and will be provided prior to the
Distribution Date have been and will be rendered for the benefit of both the
Culbro Group and the CLR Group and that both the Culbro Group and the CLR Group
should be deemed to be the client for the purposes of asserting all Privileges.
To allocate the interests of each party in the Privileged Information, the
parties agree as follows:
(a) Culbro shall be entitled, in perpetuity, to control the assertion or
waiver of all Privileges in connection with Privileged Information which relates
solely to the Retained Business, whether or not the Privileged Information is in
the possession of or under the control of Culbro or CLR. Culbro shall also be
entitled, in perpetuity, to control the assertion or waiver of all Privileges in
connection with Privileged Information that relates solely to the subject matter
of any claims constituting Retained Liabilities, now pending or which may be
asserted in the future, in any lawsuits or other proceedings initiated against
or by Culbro, whether or not the Privileged Information is in the possession of
or under the control of Culbro or CLR.
(b) CLR shall be entitled, in perpetuity, to control the assertion or
waiver of all Privileges in connection with Privileged Information which relates
solely to the CLR Business, whether or not the Privileged Information is in the
possession of or under the control of Culbro or CLR. CLR shall also be entitled,
in perpetuity, to control the assertion or waiver of all Privileges in
connection with Privileged Information which relates solely to the subject
matter of any claims constituting CLR Liabilities, now pending or which may be
asserted in the future, in any lawsuits or other proceedings initiated against
or
20
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by CLR, whether or not the Privileged Information is in the possession of CLR or
under the control of Culbro or CLR.
(c) Culbro and CLR agree that they shall have a shared Privilege, with
equal right to assert or waive, subject to the restrictions in this Section
8.07, with respect to all Privileges not allocated pursuant to the terms of
Sections 8.07(a) and (b). (All Privileges relating to any claims, proceedings,
litigation, disputes, or other matters which involve both Culbro and CLR in
respect of which Culbro and CLR retain any responsibility or liability under
this Agreement, shall be subject to a shared Privilege.)
(d) No party may waive any Privilege which could be asserted under any
applicable law, and in which the other party has a shared Privilege, without the
consent of the other party, except to the extent reasonably required in
connection with any litigation with third-parties or as provided in subsection
(e) below. Consent shall be in writing, or shall be deemed to be granted unless
written objection is made within twenty (20) days after notice upon the other
party requesting such consent.
(e) In the event of any litigation or dispute between a member of the
Culbro Group and a member of the CLR Group, either party may waive a Privilege
in which the other party has a shared Privilege, without obtaining the consent
of the other party, provided that such waiver of a shared Privilege shall be
effective only as to the use of Information with respect to the litigation or
dispute between the Culbro Group and the CLR Group, and shall not operate as a
waiver of the shared Privilege with respect to third-parties.
(f) If a dispute arises between the parties regarding whether a Privilege
should be waived to protect or advance the interest of either party, each party
agrees that it shall negotiate in good faith, shall endeavor to minimize any
prejudice to the rights of the other party, and shall not unreasonably withhold
consent to any request for waiver by the other party. Each party specifically
agrees that it will not withhold consent to waiver for any purpose except to
protect its own legitimate interests.
(g) Upon receipt by any party of any subpoena, discovery or other request
which arguably calls for the production or disclosure of Information subject to
a shared Privilege or as to which the other party has the sole right hereunder
to assert a Privilege, or if any party obtains knowledge that any of its current
or former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such Privileged Information, such party shall promptly notify the
other party of the existence of the request and shall provide the other party a
reasonable opportunity to review the Information and to assert any rights it may
have under this Section 8.07 or otherwise to prevent the production or
disclosure of such Privileged Information.
(h) The transfer of the CLR Books and Records and the Culbro Books and
Records and other Information between Culbro and its Subsidiaries and CLR and
its Subsidiaries, is made in reliance on the agreement of Culbro and CLR, as set
forth in Sections 8.06 and 8.07, to maintain the confidentiality of Privileged
Information and to assert and maintain all applicable Privileges. The access to
information being granted pursuant to Sections 8.01 and 8.02 hereof, the
agreement to provide witnesses and individuals pursuant to Section 8.03 hereof
and the transfer of Privileged Information between Culbro and its Subsidiaries
and CLR and its Subsidiaries pursuant to this Agreement shall not be deemed a
waiver of any Privilege that has been or may be asserted under this Agreement or
otherwise.
21
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ARTICLE IX
INSURANCE
Section 9.01 Policies and Rights Included Within the CLR Assets. Without
limiting the generality of the definition of the CLR Assets set forth in Section
2.04 or the effect of Section 2.04, the CLR Assets shall include (a) any and all
rights of an insured party under each of the Shared Policies, specifically
including rights of indemnity and the right to be defended by or at the expense
of the insurer, with respect to all injuries, losses, liabilities, damages and
expenses incurred or claimed to have been incurred on or prior to the Asset
Transfer Date by any party in or in connection with the conduct of the CLR
Business or, to the extent any claim is made against CLR or any of its
subsidiaries, the Retained Business, and which injuries, losses, liabilities,
damages and expenses may arise out of insured or insurable occurrences or events
under one or more of the Shared Policies; provided, however, that nothing in
this clause shall be deemed to constitute (or to reflect) the assignment of the
Shared Policies, or any of them, to CLR and (b) the CLR Policies.
Section 9.02 Post-Asset Transfer Date Claims. If, subsequent to the Asset
Transfer Date, any person, corporation, firm or entity shall assert a claim
against CLR or any CLR Subsidiary with respect to any injury, loss, liability,
damage or expense incurred or claimed to have been incurred prior to the Asset
Transfer Date in or in connection with the conduct of the CLR Business or, to
the extent any claim is made against CLR or any of its Subsidiaries or the CLR
Business, and which injury, loss, liability, damage or expense may arise out of
insured or insurable occurrences or events under one or more of the Shared
Policies, Culbro shall at the time such claim is asserted be deemed to assign,
without need of further documentation, to CLR any and all rights of an insured
party under the applicable Shared Policy with respect to such asserted claim,
specifically including rights of indemnity and the right to be defended by or at
the expense of the insurer; provided, however, that nothing in this sentence
shall be deemed to constitute (or to reflect) the assignment of the Shared
Policies, or any of them, to CLR.
Section 9.03 Administration.
(a) Insurance Premiums. Culbro shall have the right but not the obligation
to pay the premiums, to the extent that CLR does not pay premiums with respect
to CLR Liabilities (retrospectively- rated or otherwise), with respect to Shared
Policies and the Retained Policies, as required under the terms and conditions
of the respective Policies, whereupon CLR shall forthwith reimburse Culbro for
that portion of such premiums paid by Culbro as are attributable to the CLR
Liabilities. Unless otherwise agreed by the parties hereto, Culbro shall
purchase (subject to a 50% reimbursement by CLR within 15 days of its receipt of
invoice) continued coverage under its director and officer liability insurance
policy for a period no longer than 180 days following the Asset Transfer Date
for claims relating to periods prior to the Asset Transfer Date.
(b) Allocation of Insurance Proceeds. Insurance Proceeds received with
respect to claims, costs and expenses under the Policies shall be paid to CLR
with respect to the CLR Liabilities and to Culbro with respect to the Retained
Liabilities. Payment of the allocable portions of indemnity costs of Insurance
Proceeds resulting from the liability policies will be made to the appropriate
party upon receipt from the insurance carrier. In the event that the aggregate
limits on any Shared Policies are exceeded, the parties agree to provide an
equitable allocation of Insurance Proceeds received after the Asset Transfer
Date based upon their respective bona fide claims. The parties agree to use
their best efforts to cooperate with respect to insurance matters.
Section 9.04 Agreement for Waiver of Conflict and Shared Defense. In the
event that Insured
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Claims of both CLR and Culbro exist relating to the same occurrence, CLR and
Culbro agree to jointly defend and to waive any conflict of interest necessary
to the conduct of that joint defense. Nothing in this paragraph shall be
construed to limit or otherwise alter in any way the indemnity obligations of
the parties to this Agreement, including those created by this Agreement, by
operation of law or otherwise.
ARTICLE X
MISCELLANEOUS
Section 10.01 Complete Agreement; Construction. This Agreement, including
the Schedules and Exhibits and the Related Agreements and other agreements and
documents referred to herein, shall constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and shall
supersede all previous negotiations, commitments and writings with respect to
such subject matter. Notwithstanding any other provisions in this Agreement to
the contrary, in the event and to the extent that there shall be a conflict
between any provision of this Agreement and any provision of a Related
Agreement, then the provision in the applicable Related Agreement shall control.
Section 10.02 Expenses. All costs and expenses in connection with the
preparation, execution, delivery and implementation of this Agreement, the
Distribution, the Merger, the IPO and the Asset Transfers and with the
consummation of the transactions contemplated thereby shall be paid by Culbro.
Section 10.03 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of laws thereof.
Section 10.04 Notices. All notices and other communications hereunder
shall be in writing and shall be delivered by hand or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice) and shall be deemed given on the date on which such notice is received:
To Culbro and Holdings:
Culbro Corporation / General Cigar Holdings, Inc.
387 Park Avenue South
New York, New York 10016-8899
Attention: Edgar M. Cullman, Jr.
To CLR:
Culbro Land Resources, Inc.
8 Griffin Road North
Windsor, Connecticut 06095-1569
Attention: Frederick M. Danziger
Section 10.05 Amendments. This Agreement may not be modified or amended
except by an agreement in writing signed by the parties.
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Section 10.06 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns, and from and after the
Merger, Holdings shall succeed to all of Culbro's rights and obligations under
this Agreement and the Related Agreements.
Section 10.07 Termination. This Agreement may be terminated and the
Distribution abandoned at any time prior to the Distribution Date by and in the
sole discretion of the Culbro Board without the approval of CLR. In the event of
such termination, no party shall have any liability to any other party pursuant
to this Agreement.
Section 10.08 Subsidiaries. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any Subsidiary of such party
which is contemplated to be a Subsidiary of such party on and after the
Distribution Date.
Section 10.09 No Third-Party Beneficiaries. Except for the provisions of
Article V relating to Indemnities, this Agreement is solely for the benefit of
the parties hereto and their respective Subsidiaries and Affiliates and should
not be deemed to confer upon third-parties any remedy, claim, Liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
Section 10.10 Titles and Headings. Titles and headings to sections herein
are inserted for the convenience of reference only and are not intended to be a
part of or to affect the meaning or interpretation of this Agreement.
Section 10.11 Exhibits and Schedules. The Exhibits and Schedules shall be
construed with and as an integral part of this Agreement to the same extent as
if the same had been set forth verbatim herein.
Section 10.12 Legal Enforceability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
Section 10.13 Consent of Parties. The Parties hereby consent to the
jurisdiction of the New York Supreme Court, Nassau County, or the United States
District Court for the Eastern District of New York, for all purposes.
24
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
CULBRO CORPORATION
By: /s/ A. Ross Wollen
-------------------------------------
Name: A. Ross Wollen
Title: Secretary
CULBRO LAND RESOURCES, INC.
By: /s/ John Fletcher
-------------------------------------
Name: John Fletcher
Title: Chairman
GENERAL CIGAR HOLDINGS, INC.
By: /s/ Joseph C. Aird
-------------------------------------
Name: Joseph C. Aird
Title: Senior Vice President
25
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SCHEDULE 1.01(a)
CLR Financing Obligations
1. Promissory note and mortgage to First Union Bank of Connecticut, as
successor to Centerbank, with respect to parcels of land located at 14, 15
& 16 International Drive, Windsor, Connecticut, 06095, and improvements
thereon, which mortgage has an outstanding principal balance of
approximately $1,948,000 and matures on September 1, 2004.
2. Promissory note and mortgage to Eagle Federal Savings, as successor to
Shawmut Bank, with respect to parcels of land located at 29 and 35 Griffin
Road South, Windsor, Connecticut, 06095, and improvements thereon, which
mortgage has an outstanding principal balance of approximately $696,000
and matures on July 1, 2006.
<PAGE>
SCHEDULE 1.01(b)
Culbro Financing Obligations
1. Leasehold for office space at 387 Park Avenue South, New York, New York,
dated October 20, 1983.
2. Leasehold for office and hangar space at Teterboro Airport, 233 Industrial
Avenue, Teterboro, New Jersey, dated July 1, 1996.
3. Promissory note and mortgage to General Electric Capital Corporation with
respect to the Airplane.
4. Promissory note and mortgage to The Chase Manhattan Bank, The Bank of Nova
Scotia and The Bank of New York, with respect to the land and improvements
located at 387 Park Avenue South, New York, New York.
5. Promissory note and mortgage to Culbro Corporation, with respect to the
land and improvements located at 387 Park Avenue South, New York, New
York.
6. Capital lease of Moll Tool & Plastics Corp., dated December 23, 1988.
7. Guarantee of capital lease of Moll Tool & Plastics Corp., dated December
23, 1988.
8. Guarantee of leasehold of Club Macanudo at 26 East 63rd Street, New York,
New York, dated August 7, 1995.
9. Guarantee of leasehold of Club Macanudo (Chicago) at 60 East Walton
Street, Chicago, Illinois, dated October 1, 1996.
10. Reserves held in escrow with respect to that certain Environmental Fund
and Security Agreement, dated as of November 14, 1990, among Brown &
Williamson Tobacco Corporation, Culbro, General Cigar and The Chase
Manhattan Bank, as successor to Manufacturers Hanover Trust Company.
<PAGE>
SCHEDULE 1.01(c)
Commercial Real Estate
1. Approximately 0.83 acres situated in one parcel located at 434 Tunxis
Avenue, Bloomfield, Connecticut, 06002.
2. Approximately 45.35 acres situated in one parcel located at 29 Griffin
Road North, Bloomfield, Connecticut, 06002.
3. Approximately 11.98 acres historically known as "Home--Dubon" and situated
in one parcel located at West Newberry Road, Bloomfield, Connecticut,
06002.
4. Approximately 43.20 acres historically known as "Home--Dubon" and situated
in one parcel located at Lot #1, 393 Tunxis Avenue, Bloomfield,
Connecticut, 06002.
5. Approximately 4.00 acres historically known as "Home--Dubon" and situated
in one parcel located at 406 Tunxis Avenue, Bloomfield, Connecticut,
06002.
6. Approximately 7.50 acres historically known as "Home--Dubon" and situated
in one parcel located at Prospect Hill, Tunxis Avenue, Bloomfield,
Connecticut, 06002.
7. Approximately 11.80 acres historically known as "Home--Dubon" and situated
in one parcel located at Adams Road, Bloomfield, Connecticut, 06002.
8. Approximately 5.0 acres historically known as "Home--Dubon" and situated
in one parcel located at Bear Ridge, Adams Road, Bloomfield, Connecticut,
06002.
9. Approximately 74.75 acres historically known as "Holcomb Farm" and
situated in two parcels located at Old Iron Ore Road, Bloomfield,
Connecticut, 06002.
10. Approximately 13.25 acres historically known as "Davis Lot #8" and
situated in one parcel located at 1380 Blue Hills Avenue, Bloomfield,
Connecticut, 06002.
11. Approximately 19.9 acres historically known as "Indianhead Farm" and
situated in one parcel at 103 & 105 Hartford Avenue, East Granby,
Connecticut, 06026.
12. Approximately 15.0 acres historically known as "Indianhead Farm" and
situated in one parcel at Russelton Avenue, East Granby, Connecticut,
06026.
13. Approximately 275.37 acres historically known as "Floydville" and situated
in two parcels located at Lots 1, 2 & 18, Wolcott Road and "Lordship",
East Granby, Connecticut, 06026.
14. Approximately 117.10 acres historically known as "Floydville" and situated
in twelve parcels located at Lots 1, 8, 11, 13, 17 and 18, Floydville
Road, East Granby, Connecticut, 06026.
15. Approximately 36.90 acres historically known as "Hazelwood" and situated
in one parcel at Lot #44, Seymour Road, East Granby, Connecticut, 06026.
16. Approximately 82.90 acres historically known as "Spoonville" and situated
in one parcel at
<PAGE>
SCHEDULE 1.01(c) (continued)
Spoonville Road, East Granby, Connecticut, 06026.
17. Approximately 262.69 acres historically known as "Imperial Farm" and
situated in two parcels at 35-40 Floydville Road, Granby, Connecticut,
06035.
18. Approximately 4.00 acres historically known as "Imperial Corporate
Headquarters" and situated in one parcel at 90 Salmon Brook Street,
Granby, Connecticut, 06035.
19. Approximately 11.84 acres historically known as "Manitook Camp" and
situated in four parcels at 456, 456A, 456B and 462 Salmon Brook Street,
Granby, Connecticut, 06035.
20. Approximately 15.00 acres historically known as "Meadows Lots" and
situated in one parcel at 268--272 Hungary Road, Granby, Connecticut,
06035.
21. Approximately 79.00 acres historically known as "Consolidated Lots" and
situated in two parcels at 69--85 and 115R Hartford Avenue, Granby,
Connecticut, 06035.
22. Approximately 9.79 acres historically known as "Airport Lot" and situated
in one parcel at 80 Wolcott Road, Simsbury, Connecticut, 06070.
23. Approximately 2.80 acres historically known as "Asparagus Lot" and
situated in one parcel at 352 Firetown Road, Simsbury, Connecticut, 06070.
24. Approximately 271.35 acres historically known as "Asparagus Lot" and
situated in one parcel at L-5 Hostkins Road, Simsbury, Connecticut, 06070.
25. Approximately 45.80 acres historically known as "Bed Lot" and situated in
one parcel at 80 Firetown Road, Simsbury, Connecticut, 06070.
26. Approximately 195.92 acres historically known as "Hall--Ketchen Lot" and
situated in one parcel at Hoskins Road and Country Road, Simsbury,
Connecticut, 06070.
27. Approximately 101.50 acres historically known as "Hall--Ketchen Lot" and
situated in three parcels at 1503 Hopmeadow Street, Simsbury, Connecticut,
06070.
28. Approximately 60.40 acres historically known as "Hoskins Lot" and situated
in two parcels at 45 & 49 Hoskins Road, Simsbury, Connecticut, 06070.
29. Approximately 47.20 acres historically known as "Moses Lot" and situated
in two parcels at 376 Firetown Road, Simsbury, Connecticut, 06070.
30. Approximately 14.25 acres historically known as "Railroad Lots" and
situated in two parcels at 56 & 85 Wolcott Road, Simsbury, Connecticut,
06070.
31. Approximately 109.84 acres historically known as "Westerberg Lot" and
situated in four parcels at Hopmeadow Street, Simsbury, Connecticut,
06070.
<PAGE>
SCHEDULE 1.01(c) (continued)
32. Approximately 103.00 acres historically known as "Rye Street" and situated
in two parcels at 199 Rye Street, South Windsor, Connecticut, 06074.
33. Approximately 53.98 acres situated in one parcel located at Copper Hill
Road, Suffield, Connecticut, 06078.
34. Approximately 78.20 acres situated in two parcels located at Quarry Road,
Suffield, Connecticut, 06078.
35. Approximately 176.55 acres situated in three parcels located at 3683 and
4011 Phelps Road, Suffield, Connecticut, 06078.
36. Approximately 44.30 acres situated in one parcel located at Halladay
Avenue, Suffield, Connecticut, 06078.
37. Approximately 258.00 acres situated in two parcels located at 911 and 1239
Rainbow Road, Windsor, Connecticut, 06095.
38. Approximately 159.84 acres situated in six parcels located at 380, 490,
872, 890, 957 and 976 Stone Road, Windsor, Connecticut, 06095.
39. Approximately 130.09 acres situated in five parcels located at 1, 21, 25T,
29 and 40 Griffin Road North, Windsor, Connecticut, 06095.
40. Approximately 14.54 acres situated in one parcel located at 4 Sumatra
Drive, Windsor, Connecticut, 06095.
41. Approximately 30.07 acres situated in one parcel located at 40 Hilltop
Road, Windsor, Connecticut, 06095.
42. Approximately 1.82 acres situated in two parcels located at 1995 and 2000
Blue Hills Avenue, Windsor, Connecticut, 06095.
43. Approximately 10.07 acres situated in three parcels located at 20, 30 and
40 Griffin Road South, Windsor, Connecticut, 06095.
44. Approximately 286.07 acres situated in six parcels located at 1T, 2T, 3T,
4T, 998T and 999T International Drive (Road), Windsor, Connecticut, 06095.
45. Approximately 0.63 acres situated in one parcel located at 126 Birchwood
Road, Windsor, Connecticut, 06095.
46. Approximately 20.14 acres situated in three parcels located at 660, 691
and 825 Prospect Hill Road, Windsor, Connecticut, 06095.
47. Approximately 38.43 acres situated in three parcels located at 2600, 2619
and 2630 Day Hill
<PAGE>
SCHEDULE 1.01(c) (continued)
Road, Windsor, Connecticut, 06095.
48. Approximately 169.20 acres situated in one parcel located at 801 Day Hill
Road, Windsor, Connecticut, 06095.
49. Approximately 29.70 acres situated in one parcel located at 701 Marshall
Phelps Road, Windsor, Connecticut, 06095.
50. Approximately 75.60 acres situated in two parcels located at 712 and 713
Pigeon Hill Road, Windsor, Connecticut, 06095.
51. Approximately 249.54 acres historically known as "Dibble Farm" and
situated in two parcels located at 56 & 59 North Longyard Road, Southwick,
Massachusetts, 01077.
52. Approximately 76.66 acres historically known as "Hudson/Matus Farm" and
situated in three parcels located at 66R, 66 & 68 Feeding Hills Road,
Southwick, Massachusetts, 01077.
53. Approximately 99.00 acres historically known as "Moriarti Farm" and
situated in one parcel located at 686 College Highway, Southwick,
Massachusetts, 01077.
54. Approximately 1.28 acres situated in one parcel located at Point Grove
Road and Hudson Drive, Southwick, Massachusetts, 01077.
55. All of the real property, situated in two parcels located in Hillsborough
County, Florida, described in that certain deed between The Eli Witt
Company, a Delaware corporation, and Culbro Corporation, a New York
corporation, dated as of February 17, 1993.
56. All of the real property, situated in one parcel located in Leon County,
Florida, described in that certain deed between The Eli Witt Company, a
Delaware corporation, and Culbro Corporation, a New York corporation,
dated as of February 17, 1993.
<PAGE>
SCHEDULE 1.01(d)
Nursery Real Estate
1. Approximately 1212.1 acres situated in six parcels located at Federal and
Atlanta Streets, Quincy, Florida 32351, as such parcels are more
specifically described by metes and bounds in a warranty deed dated as of
June 4, 1968, to "General Cigar Co., Inc.," the predecessor of Culbro
Corporation covering the same.
2. Approximately 152.8 acres situated in one parcel located at Federal and
Atlanta Streets, Quincy, Florida 32351, as such parcel is more
specifically described by metes and bounds in a corrective warranty deed
dated as of June 14, 1977, to "Culbro Corporation" covering the same.
3. Approximately 152.8 acres situated in one parcel located at Federal and
Atlanta Streets, Quincy, Florida 32351, as such parcel is more
specifically described by metes and bounds in a warranty deed dated as of
June 7, 1977, to "Culbro Corporation" covering the same.
4. Approximately 24.183 acres situated in one parcel located at 4410 Broadway
Boulevard, Monroeville, Pennsylvania, 15146, as such parcel is more
specifically described by metes and bounds in a warranty deed dated as of
January 5, 1988, to "Culbro Corporation" covering the same.
5. Approximately 16.55 acres situated in one parcel located at 1129 Concord
Road, Aston, Pennsylvania, 19014, as such parcel is more specifically
described by metes and bounds in a warranty deed dated as of December 6,
1982, to "Culbro Corporation" covering the same.
6. All of the real property, situated in two parcels (lots 601 & 603),
located at 360 Bilmar Drive, Pittsburgh, Pennsylvania, 15205, as such
parcels are more specifically described by lot in a warranty deed dated as
of July 28, 1988, to "Culbro Corporation" covering the same.
7. Approximately 15.0996 acres situated in one parcel located at 8309 Quarry
Road, Manassas, Virginia, 22110, and appurtenant easement, as such parcel
and easement are more specifically identified by plat described in a
warranty deed dated as of September 12, 1985, to "Imperial Nurseries, a
Division of Culbro Corporation" covering the same.
8. Approximately 6.42346 acres situated in one parcel located at 8309 Quarry
Road, Manassas, Virginia, 22110, as such parcel is more specifically
described by metes and bounds in a warranty deed dated as of May 16, 1990,
to "Imperial Nurseries, a division of Culbro Corporation" covering the
same.
9. Approximately 2.700 acres situated in one parcel located at 4877 Vulcan
Avenue, Columbus, Ohio, as such parcel is more specifically described by
metes and bounds in a warranty deed dated as of April 20, 1987, to
"Imperial Nurseries, Division of Culbro Corporation" covering the same.
10. Approximately 10.728 acres situated in one parcel located at 11245
Mosteller Road, Cincinnati, Ohio, 45241, as such parcel is more
specifically described by metes and bounds in a warranty deed dated as of
December 28, 1987, to "Culbro Corporation" covering the same.
11. Approximately 19.788 acres situated in one parcel located at 5801 Stevens
Road, White Marsh,
<PAGE>
SCHEDULE 1.01(d) (continued)
Maryland 31162, as such parcel is more specifically described by metes and
bounds in a warranty deed dated as of July 15, 1986, to "Culbro
Corporation" covering the same.
<PAGE>
SCHEDULE 1.01(e)
Tobacco Real Estate
1. Approximately 449.30 acres historically known as "Indianhead Farm" and
situated in three parcels located at Lot #50, Hartford Avenue, East
Granby, Connecticut, 06026.
2. Approximately 202.95 acres historically known as "Kelly Farm" and situated
in two parcels located at 71 Abbot Road, Ellington, Connecticut, 06029 and
78 Abbot Road, Ellington, Connecticut, 06029.(1)
3. Approximately 204.80 acres historically known as "Southwick Farm" and
situated in three parcels located at 642 Babbs Road, Suffield,
Connecticut, 06078.(2)
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(1) CLR owns approximately 1.3 acres situated in a single parcel located at
168 Pinney Street, Ellington, Connecticut, 06029, which is adjacent to the
Kelly Farm properties described in item 2 above. CLR will transfer this
parcel to General Cigar independently of the Asset Transfers.
(2) For the avoidance of doubt, the approximately 254.51 acres historically
known as "Southwick Farm" and situated in two parcels located at 95 South
Longyard Road, Southwick, Massachusetts, 01077, and 129R South Longyard
Road, Southwick, Massachusetts, 01077, which together comprise part of the
Southwick Farm referred to in item 3 above, were owned directly by General
Cigar prior to the Asset Transfers.
<PAGE>
SCHEDULE 1.01(f)
Shared Policies
1. Liberty Mutual General Liability Account: 00 42 32
Sub Account: 2096
Policy No.: RG2-621-004232-116
Office: New York City (202)
Contact: Tomao (8844)
2. Liberty Mutual Automobile Liability Account: 00 42 32
Sub Account: 2096
Policy No.: AS2-621-004232-196
Office: New York City (202)
Contact: Tomao (8844)
3. Liberty Mutual Workers' Compensation Account: 00 42 32
Sub Account: 2096
Policy Nos.: WA2-62D-004232-186
WC2-621-004232-026
Office: New York City (202)
Contact: Tomao (8844)
4. Liberty Mutual Workers' Compensation Account: 00 42 32
Excess Indemnity Sub Account: 2096
Policy No.: EH2-621-004232-216
Office: New York City (202)
Contact: Tomao (8844)
5. Arkwright Mutual Property Damage/ Policy No.: 230552
Business Interruption Contact: Bodick
6. Arkwright Mutual Fidelity & Crime Policy No.: 230552
Contact: Bodick
7. AIU Insurance Commercial Umbrella Policy No.: BE 932-36-38
Broker: Johnson & Higgins
<PAGE>
SCHEDULE 2.08
Conveyancing and Assumption Instruments
1. Stock Power by Culbro to Holdings for General Cigar, 387 PAS, Club
Macanudo and Club Macanudo (Chicago), and appropriate stock certificates
registered in the name of Holdings, as available.
2. Stock Power by Culbro to General Cigar for Cifuentes Y Cia, Ltd.,
Cifuentes Free Zone, Ltd., Gradiaz Annis of Jamaica, Ltd., Gradiaz Annis &
Co., Inc., Culbro Tobacco Sales Corporation, Industrial Buildings &
Properties Inc., Culbro V.L. Tobacco, S.A., Jose Escalante & Co., Macanudo
Cigar Company, Inc., Partagas Cigar Company, Inc., Culbro International
U.K. Ltd., Culbro International, S.A., Moll Tool & Plastics Corp. and
Helmetta Realty Corp., and appropriate stock certificates registered in
the name of General Cigar, as available.
3. Stock Power by Culbro to CLR for Imperial, Eli Witt, the Centaur Interest
and General Witt Receivables Corp., and appropriate stock certificates
registered in the name of CLR, as available.
4. Assignment by Culbro to Holdings of the 387 PAS Minority Interest;
5. Second Amendment to Restated Partnership Agreement
6. Quit-claim deed by Culbro to CLR or any CLR Subsidiary covering all
Commercial Real Estate.
7. Quit-claim deed by Culbro to Imperial covering all Nursery Real Estate.
8. Quit-claim deed by Culbro to General Cigar covering all Tobacco Real
Estate.
9. Quit-claim deed by CLR to General Cigar for certain real property
described in Note (1) on Schedule 1.01(e).
10. Omnibus bill of sale by Culbro to General Cigar covering all Holdings
Personal Property.
11. Assumption of assumed liabilities by CLR.
12. Assumption of assumed liabilities by Holdings.
13. FAA Civil Aviation Registry AC Form 8050-1, Aircraft Registration
Application and accompanying FAA Bill of Sale to effect transfer of title
in the Airplane and registration of GCH Transportation, Inc. as owner of
the Airplane with the FAA Registry.
14. Transfer and Assumption Agreement with respect to the aircraft chattel
mortgage and the transfer of the Airplane to GCH Transportation, Inc.
15. Form of Consent from GECC with respect to the transfer of the Airplane.
16. Corporate Guaranty from Holdings with respect to the GECC mortgage on the
Airplane.
17. Stockholders Certification from Holdings with respect to the Corporate
Guaranty on the Airplane.
<PAGE>
SCHEDULE 2.08 (continued)
18. Certified Resolution of Holdings with respect to the Corporate Guaranty
19. Certification and Representation by Signing Officers of Holdings with
respect to the Corporate Guaranty
20. UCC-1 Financing Statements to be filed in New York (dual filing state) and
New Jersey with respect to GECC's security interest in the Airplane after
transfer to GCH Transportation, Inc.
21. Assignment of mortgage and promissory note of Eli Witt, as mortgagor, in
favor of Culbro, as mortgagee, by Culbro to CLR, as mortgagee.
22. Assignment of Note with respect to the Eli Witt Notes by Culbro to CLR.
23. Assignment of escrow account by Culbro to Holdings with respect to that
certain Environmental Fund and Security Agreement, dated as of November
14, 1990, among Brown & Williamson Tobacco Corporation, Culbro, General
Cigar and The Chase Manhattan Bank, as successor to Manufacturers Hanover
Trust Company.
24. Consent of Mortggee and Landlord with respect to the assignment of the
Headquarters Lease.
25. Assignment of lease between 387 P.A.S. Enterprises (lessor) and Culbro
(lessee), dated as of October 20, 1983, in favor of Holdings as lessee.
26. Assignment of lease between Atlantic Aviation Corporation (lessor) and
Culbro (lessee), dated as of July 1, 1996, in favor of GCH Transportation,
Inc., as lessee.
27. Guarantee by Holdings in favor of Leonori Investment Associates, as
lessor, with respect to that certain lease, dated as of August 7, 1995,
between Club Macanudo and lessor.
28. Guarantee by Holdings in favor of Chicago Title and Trust Company, as
lessor, with respect to that certain lease, dated as of October 1, 1996,
between Club Macanudo (Chicago) and lessor.
29. Proof of Claim by CLR for Eli Witt bankruptcy proceedings.
30. Change of name on account to effect transfer of cash on hand/bank accounts
to Holdings.
31. Entry of an account payable on the consolidated balance sheet of the
Culbro Group in favor of CLR in an amount equal to the CLR Initial Cash
Balance.
32. Change of name on Policies to name the CLR Group, as appropriate, as the
insured and as beneficiary under the CLR Policies.
33. Change of name on Policies to name both the CLR Group and Culbro Group, as
appropriate, as the insured and as beneficiaries under the Shared
Policies.
<PAGE>
SCHEDULE 4.01
Required Consents
1. The consent of each of 387 PAS Enterprises and The Chase Manhattan Bank
("Chase") is required for the transfer of the headquarters lease at 387
Park Avenue South, New York, New York, from Culbro Corporation to Holdings
pursuant to a lease between 387 PAS Corp. (lessor) and Culbro (lessee)
dated as of October 20, 1983. Notwithstanding assignment of the lease, the
lessee (Culbro) will remain joint and severally liable on the lease for
rent. The lessor assigned the lease to the Manufacturers Hanover Trust
Company, the successor in interest of which is Chase, which holds a
mortgage on the property at 387 PAS. Pursuant to this assignment, Chase
has been assigned all of lessor's rights and power to modify the lease or
to waive or release the tenants under any lease from any obligation on the
leases. The assignment expires upon repayment of the mortgage, which
remains outstanding.
2. The consent of each of Chase, The Bank of Nova Scotia and The Bank of New
York is required for the transfer of the 387 PAS Minority Interest. 387
PAS Enterprises entered into an Amended and Restated Mortgage Agreement
with Chemical Bank, the successor in interest of which is Chase, The Bank
of Nova Scotia and The Bank of New York with respect to the building at
387 Park Avenue South. The mortgagees' consent is required for any change
in the identity of the partners in 387 PAS Enterprises. Because a partner
is being changed to Holdings upon transfer of the 387 PAS Minority
Interest, the consent of the above named parties is required.
3. The consent of General Electric Capital Corporation ("GECC") is required
for the transfer of the airplane. Culbro owns an airplane that will be
transferred to GCH Transportation, Inc. as part of the Asset Transfers.
GECC is the mortgagee under a mortgage on the airplane.
4. For the avoidance of doubt, the consent of GECC is not required for a
change in guarantor. Culbro is a guarantor of a certain capital lease,
dated as of December 23, 1988, between GECC and Moll Tool & Plastics
Corp., a subsidiary of Culbro ("Moll Tool"). Moll Tool subsequently sold
its assets to an unrelated third party which forwards payments to GECC
through Moll Tool. The capital lease expires in 2000, and it is not
contemplated that GECC will release Culbro as guarantor of the lease.
