<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM 10-Q
---------
JOINT QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
---------
BROOKE GROUP LTD.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1-5759 51-0255124
(State or other jurisdiction of Commission File Number (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
BGLS INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 33-93576 13-3593483
(State or other jurisdiction of Commission File Number (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
100 S.E. SECOND STREET
MIAMI, FLORIDA 33131
305/579-8000
(Address, including zip code and telephone number, including area code,
of the principal executive offices)
---------
Indicate by check mark whether the Registrants (1) have filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), during the preceding 12 months (or
for such shorter period that the Registrants were required to file such
reports), and (2) have been subject to such filing requirements for the past 90
days. Yes [X] No [ ]
Explanatory Note: BGLS Inc. is required to file all reports required by
Section 13 or 15(d) of the Exchange Act in connection with its 15.75% Series B
Senior Secured Notes due 2001.
At November 10, 1997, Brooke Group Ltd. had 18,097,096 shares of common
stock outstanding, and BGLS Inc. had 100 shares of common stock outstanding, all
of which are held by Brooke Group Ltd.
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<PAGE> 2
BROOKE GROUP LTD.
BGLS INC.
FORM 10-Q
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Brooke Group Ltd./BGLS Inc. Consolidated Financial Statements:
Brooke Group Ltd. Consolidated Balance Sheets as of September 30, 1997 and
December 31, 1996............................................................................. 2
BGLS Inc. Consolidated Balance Sheets as of September 30, 1997 and
December 31, 1996............................................................................. 3
Brooke Group Ltd. Consolidated Statements of Operations for the three and nine months
ended September 30, 1997 and September 30, 1996............................................... 4
BGLS Inc. Consolidated Statements of Operations for the three and nine months ended
September 30, 1997 and September 30, 1996..................................................... 5
Brooke Group Ltd. Consolidated Statement of Stockholders' Equity (Deficit) for the nine
months ended September 30, 1997............................................................... 6
BGLS Inc. Consolidated Statement of Stockholder's Equity (Deficit) for the nine months
ended September 30, 1997...................................................................... 7
Brooke Group Ltd. Consolidated Statements of Cash Flows for the nine months ended
September 30, 1997 and September 30, 1996..................................................... 8
BGLS Inc. Consolidated Statements of Cash Flows for the nine months ended
September 30, 1997 and September 30, 1996..................................................... 9
Notes to Consolidated Financial Statements.......................................................... 10
Item 2 Management's Discussion and Analysis
of Financial Condition and Results of Operations.............................................. 27
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.............................................................................. 38
Item 3. Defaults Upon Senior Securities................................................................ 38
Item 6. Exhibits and Reports on Form 8-K............................................................... 38
SIGNATURE ............................................................................................. 40
</TABLE>
-1-
<PAGE> 3
Item 1. Consolidated Financial Statements
BROOKE GROUP LTD. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---------------- -----------------
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents........................................... $ 2,361 $ 1,941
Accounts receivable - trade......................................... 11,539 19,475
Other receivables................................................... 734 1,217
Receivables from affiliates......................................... 12,050 47
Inventories......................................................... 41,360 53,691
Other current assets................................................ 3,844 4,181
-------- ---------
Total current assets............................................ 71,888 80,552
Property, plant and equipment, at cost, less accumulated
depreciation of $32,237 and $31,047................................. 36,720 80,282
Intangible assets, at cost, less accumulated amortization
of $18,837 and $17,457.............................................. 3,071 4,421
Investment in affiliate................................................. 3,051
Other assets............................................................ 10,209 9,371
-------- --------
Total assets.................................................... $121,888 $177,677
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT):
Current liabilities:
Notes payable and current portion of long-term debt................... $ 38,245 $ 55,242
Accounts payable...................................................... 9,117 32,461
Due to affiliates..................................................... 990
Dividends payable..................................................... 1,387
Cash overdraft........................................................ 2,395 6
Accrued promotional expenses.......................................... 31,372 30,257
Accrued taxes payable................................................. 19,518 26,379
Accrued interest...................................................... 25,121 24,354
Other accrued liabilities............................................. 25,623 33,387
-------- --------
Total current liabilities........................................... 151,391 204,463
Notes payable, long-term debt and other obligations, less current portion 370,973 378,243
Noncurrent employee benefits............................................ 34,630 31,256
Other liabilities....................................................... 28,005 18,704
Commitments and contingencies...........................................
Stockholders' equity (deficit):
Preferred Stock, par value $1.00 per share, authorized
10,000,000 shares...................................................
Series G Preferred Stock, 2,184,834 shares, convertible, participating,
cumulative, each share convertible to 1,000 shares of common stock and cash
or stock distribution, liquidation preference of $1.00 per
share...........................
Common stock, par value $0.10 per share, authorized 40,000,000 shares, issued
24,998,043 shares, outstanding 18,097,096
and 18,497,096 shares............................................... 1,850 1,850
Additional paid-in capital............................................ 90,020 94,169
Deficit............................................................... (512,229) (490,706)
Other................................................................. (8,613) (27,963)
Less: 6,900,947 and 6,500,947 shares of common stock in
treasury, at cost............................................. (34,139) (32,339)
-------- --------
Total stockholders' equity (deficit).............................. (463,111) (454,989)
-------- --------
Total liabilities and stockholders' equity (deficit).............. $121,888 $177,677
======== ========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements
-2-
<PAGE> 4
Item 1. Consolidated Financial Statements - (Continued)
BGLS INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
--------------------------------
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents................................................. $ 2,323 $ 1,940
Accounts receivable - trade............................................... 11,539 19,475
Other receivables......................................................... 693 1,166
Receivables from affiliates............................................... 13,546 47
Inventories............................................................... 41,360 53,691
Other current assets...................................................... 3,518 3,878
--------- ---------
Total current assets.................................................. 72,979 80,197
Property, plant and equipment, at cost,
less accumulated depreciation of
$31,845 and $30,762....................................................... 36,517 79,972
Intangible assets, at cost, less accumulated
amortization of $18,837 and $17,457....................................... 3,071 4,421
Investment in affiliate..................................................... 3,051
Other assets................................................................ 13,452 10,467
--------- ---------
Total assets.......................................................... $ 126,019 $ 178,108
========= =========
LIABILITIES AND STOCKHOLDER'S EQUITY (DEFICIT):
Current liabilities:
Notes payable and current portion of long-term debt....................... $ 37,896 $ 53,945
Accounts payable.......................................................... 8,992 32,336
Cash overdraft............................................................ 2,395 6
Due to parent............................................................. 23,636 29,598
Accrued promotional expenses.............................................. 31,372 30,257
Accrued taxes payable..................................................... 19,518 26,379
Accrued interest.......................................................... 25,121 24,354
Other accrued liabilities................................................. 25,580 32,861
--------- ---------
Total current liabilities............................................. 174,510 229,736
Notes payable, long-term debt and other obligations, less current portion... 370,973 378,243
Noncurrent employee benefits................................................ 34,630 31,256
Other liabilities........................................................... 34,205 21,958
Commitments and contingencies...............................................
Stockholder's equity (deficit):
Common stock, par value $0.01 per share; 100 shares authorized,
issued and outstanding..................................................
Additional paid-in capital................................................ 39,080 39,081
Deficit................................................................... (522,761) (499,264)
Other..................................................................... (4,618) (22,902)
--------- ---------
Total stockholder's deficit........................................... (488,299) (483,085)
--------- ---------
Total liabilities and stockholder's equity (deficit).................. $ 126,019 $ 178,108
========= =========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements
-3-
<PAGE> 5
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
--------------------------- ---------------------------
Three Months Ended Nine Months Ended
--------------------------- ---------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
1997 1996 1997 1996
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues*................................................. $ 100,308 $ 114,635 $ 276,906 $ 330,364
Cost of goods sold*....................................... 53,045 58,361 145,841 168,931
----------- ----------- ----------- -----------
Gross profit.............................................. 47,263 56,274 131,065 161,433
Operating, selling and general expenses................... 40,498 55,326 117,535 158,482
----------- ----------- ----------- -----------
Operating income.......................................... 6,765 948 13,530 2,951
Other income (expenses):
Interest income....................................... 431 75 1,682 203
Interest expense...................................... (15,791) (15,254) (46,757) (45,488)
Equity in loss of affiliate........................... (7,090) (4,618) (21,488) (7,152)
Sale of assets........................................ 3,047 23,086 6,745
Retirement of debt.................................... 2,963
Proceeds from legal settlement........................ 4,125
Other, net............................................ (257) 3,210 (77) 1,846
----------- ----------- ----------- -----------
Loss from continuing operations before income taxes....... (15,942) (12,592) (22,936) (40,895)
(Benefit) provision for income taxes...................... (248) 1,145 541 1,291
----------- ----------- ----------- -----------
Loss from continuing operations........................... (15,694) (13,737) (23,477) (42,186)
----------- ----------- ----------- -----------
Discontinued operations:
Income from discontinued operations....................... 106 153
----------- ----------- ----------- -----------
Net loss.................................................. (15,588) (13,737) (23,324) (42,186)
Proportionate share of New Valley capital transactions,
retirement of Class A Preferred Shares................ 1,782
----------- ----------- ----------- -----------
Net loss applicable to common shares...................... $ (15,588) $ (13,737) $ (23,324) $ (40,404)
=========== =========== =========== ===========
Per common share:
Loss from continuing operations....................... $ (0.87) $ (0.74) $ (1.29) $ (2.18)
=========== =========== =========== ===========
Loss from discontinued operations..................... $ 0.01 $ $ 0.01 $
=========== =========== =========== ===========
Net loss applicable to common shares.................. $ (0.86) $ (0.74) $ (1.28) $ (2.18)
=========== =========== =========== ===========
Weighted average common shares outstanding................ 18,097,096 18,497,096 18,192,233 18,497,096
=========== =========== =========== ===========
</TABLE>
* Revenues and Cost of goods sold include federal excise taxes of $19,250 and
$26,074 for the three months ended September 30, 1997 and 1996,
respectively, and $55,263 and $76,758 for the nine months ended September
30, 1997 and 1996, respectively.
The accompanying notes are an integral part
of the consolidated financial statements
-4-
<PAGE> 6
Item 1. Consolidated Financial Statements - (Continued)
BGLS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
-----------------------------------------------------------
Three Months Ended Nine Months Ended
-----------------------------------------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
1997 1996 1997 1996
-----------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues* .................................................. $ 100,308 $ 114,635 $ 276,906 $ 330,364
Cost of goods sold* ........................................ 53,045 58,361 145,841 168,931
--------- --------- --------- ---------
Gross profit ............................................... 47,263 56,274 131,065 161,433
Operating, selling and general expenses .................... 40,502 54,627 117,159 157,287
--------- --------- --------- ---------
Operating income ........................................... 6,761 1,647 13,906 4,146
Other income (expenses):
Interest income ......................................... 431 62 1,670 140
Interest expense ........................................ (16,750) (16,245) (49,542) (48,308)
Equity in loss of affiliate ............................. (7,090) (4,618) (21,488) (7,152)
Sale of assets .......................................... 3,047 27,663 6,745
Retirement of debt ...................................... 2,963
Other, net .............................................. (257) 502 (84) (1,528)
--------- --------- --------- ---------
Loss from continuing operations before income taxes ........ (16,905) (15,605) (24,912) (45,957)
(Benefit) provision for income taxes ....................... (248) 4,945 539 5,143
--------- --------- --------- ---------
Loss from continuing operations ............................ (16,657) (20,550) (25,451) (51,100)
--------- --------- --------- ---------
Discontinued operations:
Income from discontinued operations ........................ 106 153
--------- --------- --------- ---------
Net loss ................................................... $ (16,551) $ (20,550) $ (25,298) $ (51,100)
========= ========= ========= =========
</TABLE>
- ---------------------------------
* Revenues and Cost of goods sold include federal excise taxes of $19,250 and
$26,074 for the three months ended September 30, 1997 and 1996, respectively,
and $55,263 and $76,758 for the nine months ended September 30, 1997 and 1996,
respectively.
The accompanying notes are an integral part
of the consolidated financial statements
-5-
<PAGE> 7
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------
Common Stock Additional
--------------------------- Paid-In Treasury
Shares Amount Capital Deficit Other Stock Total
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1996......... 18,497,096 $1,850 $94,169 $(490,706) $(27,963) $(32,339) $(454,989)
Net loss........................... (23,324) (23,324)
Distributions on common
stock ($0.225 per share).......... (4,148) (4,148)
Amortization of deferred
compensation...................... 1,066 1,066
Unrealized holding gain on
investment in New Valley.......... 8,801 8,801
Effect of New Valley
capital transactions.............. 9,483 9,483
Settlement of loan................. (400,000) 1,800 (1,800)
----------- ------ ------- --------- -------- -------- ---------
Balance, September 30, 1997........ 18,097,096 $1,850 $90,021 $(512,230) $ (8,613) $(34,139) $(463,111)
=========== ====== ======= ========= ======== ======== =========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements
-6-
<PAGE> 8
Item 1. Consolidated Financial Statements - (Continued)
BGLS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDER'S EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
Common Stock Additional
---------------------- Paid-In
Shares Amount Capital Deficit Other Total
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1996............... 100 $ $39,081 $(499,264) $(22,902) $(483,085)
Net loss................................. (25,298) (25,298)
Unrealized holding gain on
investment in New Valley............... 8,801 8,801
Effect of New Valley capital
transactions......................... 9,483 9,483
Settlement of loan....................... 1,800 1,800
---- -------- ------- --------- -------- ---------
Balance, September 30, 1997.............. 100 $ $39,081 $(522,762) $ (4,618) $(488,299)
==== ======== ======= ========= ======== =========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements
-7-
<PAGE> 9
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Ended
----------------------------------
September 30, September 30,
1997 1996
----------------- ----------------
<S> <C> <C>
Net cash used in operating activities..................................... $ (30,511) $ (22,000)
--------- ---------
Cash flows from investing activities:
Proceeds from sale of businesses and assets, net........................ 43,091 8,031
Investments............................................................. (482)
Capital expenditures.................................................... (9,857) (24,047)
Dividends from New Valley............................................... 24,733
--------- ---------
Net cash provided by investing activities................................. 33,234 8,235
--------- ---------
Cash flows from financing activities:
Proceeds from debt...................................................... 5,198 19,837
Repayments of debt...................................................... (10,323) (8,559)
Borrowings under revolver............................................... 209,822 265,117
Repayments on revolver.................................................. (202,881) 255,763
Increase (decrease) in cash overdraft................................... 1,416 (4,266)
Distributions on common stock........................................... (5,535) (4,162)
Other, net.............................................................. (18)
--------- ---------
Net cash (used in) provided by financing activities....................... (2,303) 12,498
--------- ---------
Net increase (decrease) in cash and cash equivalents...................... 420 (1,267)
Cash and cash equivalents, beginning of period............................ 1,941 3,370
--------- ---------
Cash and cash equivalents, end of period.................................. $ 2,361 $ 2,103
========= =========
Supplemental non-cash investing and financing activities:
Exchange of Series 2 Senior Secured Notes for Series A Notes.............. $ 99,154
Exchange of 14.50% Subordinated Debentures for Series B Notes............. 125,495
Issuance of Series A Notes for options.................................... 822
Exchange of Series A Notes for Series B Notes............................. 99,976
Issuance of promissory notes for shares of Liggett-Ducat.................. 1,643
Distribution of MAI shares to stockholders................................
Promissory note from New Valley........................................... 33,500
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements
-8-
<PAGE> 10
Item 1. Consolidated Financial Statements - (Continued)
BGLS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Ended
------------------------------------
September 30, September 30,
1997 1996
------------------------------------
<S> <C> <C>
Net cash used in operating activities....................................... $ (36,989) $ (21,924)
--------- ---------
Cash flows from investing activities:
Proceeds from sale of businesses and assets, net.......................... 43,091 8,031
Investments............................................................... (482)
Capital expenditures...................................................... (9,857) (24,047)
Dividends from New Valley................................................. 24,733
--------- ---------
Net cash provided by investing activities................................... 33,234 8,235
--------- ---------
Cash flows from financing activities:
Proceeds from debt........................................................ 4,723 18,351
Repayments of debt........................................................ (8,942) (8,134)
Borrowings under revolver................................................. 209,822 264,473
Repayments on revolver.................................................... (202,881) (254,963)
Increase (decrease) in cash overdraft..................................... 1,416 (3,761)
Distributions paid to parent.............................................. (3,621)
Other, net................................................................ (18)
--------- ---------
Net cash (used in) provided by financing activities......................... (4,138) 12,327
--------- ---------
Net increase (decrease) in cash and cash equivalents........................ 383 (1,362)
Cash and cash equivalents, beginning of period.............................. 1,940 3,370
--------- ---------
Cash and cash equivalents, end of period.................................... $ 2,323 $ 2,008
========= =========
Supplemental non-cash investing and financing activities:
Exchange of Series 2 Senior Secured Notes for Series A Notes.............. $ 99,154
Exchange of 14.50% Subordinated Debentures for Series B Notes............. 125,495
Issuance of Series A Notes for options.................................... 822
Exchange of Series A Notes for Series B Notes............................. 99,976
Forgiveness of debt by parent............................................. 13,705
Issuance of promissory notes for shares of Liggett-Ducat.................. 1,643
Promissory note from New Valley........................................... 33,500
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements
-9-
<PAGE> 11
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
1. PRINCIPLES OF REPORTING
The consolidated financial statements of Brooke Group Ltd. (the
"Company") include the consolidated statements of its wholly-owned
subsidiary, BGLS Inc. ("BGLS"). The consolidated statements of BGLS
include the accounts of Liggett Group Inc. ("Liggett"), Brooke
(Overseas) Ltd. ("BOL"), New Valley Holdings, Inc. ("NV Holdings"),
Liggett-Ducat Ltd. ("Liggett-Ducat") and other less significant
subsidiaries. Liggett is engaged primarily in the manufacture and sale
of cigarettes, principally in the United States. Liggett-Ducat is
engaged in the manufacture and sale of cigarettes in Russia. All
significant intercompany balances and transactions have been
eliminated.
The interim consolidated financial statements of the Company and BGLS
are unaudited and, in the opinion of management, reflect all
adjustments necessary (which are normal and recurring) to present
fairly the Company's and BGLS' consolidated financial position, results
of operations and cash flows. These consolidated financial statements
should be read in conjunction with the consolidated financial
statements and the notes thereto included in the Company's and BGLS'
Annual Report on Form 10-K, as amended, for the year ended December 31,
1996, as filed with the Securities and Exchange Commission. The
consolidated results of operations for interim periods should not be
regarded as necessarily indicative of the results that may be expected
for the entire year.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities and the
reported amounts of revenues and expenses. Actual results could differ
from those estimates.
Certain amounts in the 1996 consolidated financial statements have been
reclassified to conform to the 1997 presentation.
LIQUIDITY:
The Company's principal sources of liquidity for 1997 include, among
other things, proceeds from the sale of BrookeMil Ltd. ("BML"), a
subsidiary of BOL, to an affiliate, New Valley Corporation ("New
Valley"), on January 31, 1997, and certain funds available from New
Valley subject to limitations imposed by BGLS' indenture agreements.
New Valley may acquire or seek to acquire additional operating
businesses through merger, purchase of assets, stock acquisition or
other means, or to make other investments, which may limit its ability
to make such distributions.
Liggett had net capital and working capital deficiencies of $180,011
and $47,292, respectively, at September 30, 1997, is highly leveraged
and has substantial near-term debt service requirements. Further,
Liggett's Senior Secured Notes (the "Liggett Notes") require a
mandatory principal redemption of $37,500 on February 1, 1998 and a
payment at maturity on February 1, 1999 of $107,400. Based on Liggett's
net loss for 1996 and anticipated 1997 operating results, Liggett does
not anticipate it will be able to generate sufficient cash from
operations to make such payments. While Liggett has engaged in
negotiations with its note holders to restructure the terms of the
Liggett Notes, there are no commitments to restructure the Liggett
Notes at this time, and no assurances can be given in this regard. In
conjunction with these discussions, the Company has also engaged in
negotiations with the principal holders of the BGLS 15.75% Series B
Senior Secured Notes (the "BGLS Notes") with respect to certain related
modifications to the terms of such debt.
-10-
<PAGE> 12
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
During such negotiations, BGLS and Liggett postponed making the interest
payments of approximately $18,338 for the BGLS Notes due on July 31, 1997
and approximately $9,700 for the Liggett Notes due on August 1, 1997. A
Standstill Agreement and Consent (the "Standstill Agreement") was reached
on August 28, 1997, as amended, among the holders of more than 83% of the
BGLS Notes and BGLS whereby each of such principal holders of the BGLS
Notes waived the right to receive on August 29, 1997 its pro rata share of
the July 31, 1997 interest payment (in total, $15,340). On August 29,
1997, BGLS made the interest payment on the BGLS Notes to all holders
other than the principal holders. Pending completion of the negotiations
with the principal holders, such holders have agreed with BGLS that they
will be entitled to receive their portion of the July 31, 1997 interest
payment only after giving BGLS 20 days' notice but, in any event, by
December 10, 1997. On August 29, 1997, Liggett's revolving credit facility
(the "Facility") was amended to permit Liggett to borrow an additional
$6,000 which was used in making the interest payment of $9,700 due on
August 1, 1997 to the holders of the Liggett Notes. BGLS guaranteed the
additional $6,000 advance under the Facility and collateralized the
guarantee with $6,000 in cash, deposited with Liggett's lender. In
November 1997, Liggett's Facility was extended for an additional year
until March 8, 1999.
If Liggett is unable to restructure the terms of the Liggett Notes or
otherwise make such payments, substantially all of Liggett's long-term
debt and the Facility would be in default and holders of such debt could
accelerate the maturity of such debt. In such event, Liggett may be forced
to seek protection from creditors under applicable laws. These matters
raise substantial doubt about Liggett meeting its liquidity needs and its
ability to continue as a going concern.
BOL is in the process of constructing a new tobacco factory and is
actively pursuing various potential financial alternatives related
thereto. (Refer to Note 5.)
NEW ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 130, "Reporting
Comprehensive Income". SFAS 130 establishes standards for reporting and
display of comprehensive income. The purpose of reporting comprehensive
income is to present a measure of all changes in equity that result from
recognized transactions and other economic events of the period other than
transactions with owners in their capacity as owners. SFAS 130 requires
that an enterprise classify items of other comprehensive income by their
nature in a financial statement and display the accumulated balance of
other comprehensive income separately from retained earnings and
additional paid-in capital in the equity section of the balance sheet.
SFAS 130 is effective for fiscal years beginning after December 15, 1997,
with earlier application permitted. The Company has not yet determined the
impact of the implementation of SFAS 130.
In June 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of
an Enterprise and Related Information". SFAS 131 specifies revised
guidelines for determining an entity's operating segments and the type and
level of financial information to be disclosed. Once operating segments
have been determined, SFAS 131 provides for a two-tier test for
determining those operating segments that would need to be disclosed for
external reporting purposes. In addition to providing the required
disclosures for reportable segments, SFAS 131 also requires disclosure of
certain "second level" information by geographic area and for
products/services. SFAS 131 also makes a number of changes to existing
disclosure requirements. SFAS 131 is effective for fiscal years
-11-
<PAGE> 13
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
beginning after December 15, 1997, with earlier application encouraged.
The Company has not yet determined the impact of the implementation of
SFAS 131.
2. INVESTMENT IN NEW VALLEY CORPORATION
The Company's and BGLS' investment in New Valley at September 30, 1997
is summarized below:
<TABLE>
<CAPTION>
Unrealized
Number of Fair Carrying Holding
Shares Value Amount Loss
------ ----- ------ ----
<S> <C> <C> <C> <C>
Class A Preferred Shares... 618,326 $56,886 $56,886 $(15,325)
Class B Preferred Shares... 250,885 1,004 1,004 (251)
Common Shares.............. 3,989,710(A) 3,491 (57,890)
------- ------- --------
$61,381 $ $(15,576)
======= ======= ========
</TABLE>
(A) Gives effect to July 1996 one-for-twenty stock split.
The $15.00 Class A Increasing Rate Cumulative Senior Preferred Shares
($100 Liquidation Value), $.01 par value (the "Class A Preferred Shares"),
and the $3.00 Class B Cumulative Convertible Preferred Shares ($25
Liquidation Value), $.10 par value (the "Class B Preferred Shares"), are
accounted for as debt and equity securities, respectively, pursuant to the
requirements of SFAS No. 115, "Accounting for Certain Investments in Debt
and Equity Securities", and are classified as available-for-sale. Through
September 1996, earnings on the Class A Preferred Shares were comprised of
dividends accrued during the period and the accretion of the difference
between the Company's basis and their mandatory redemption price. New
Valley's Common Shares, $.01 par value (the "Common Shares"), were
accounted for pursuant to APB No. 18, "The Equity Method of Accounting for
Investments in Common Stock".
During the quarter ended September 30, 1996, the decline in the market
value of the Class A Preferred Shares, the dividend received on the Class
A Preferred Shares and the Company's equity in losses incurred by New
Valley caused the carrying value of the Company's investment in New Valley
to be reduced to zero. Beginning in the fourth quarter of 1996, the
Company suspended the recording of its earnings on the dividends accrued
and the accretion of the difference between the Company's basis in the
Class A Preferred Shares and their mandatory redemption price.
At September 30, 1997, the Company's investment in New Valley consisted of
an approximate 42% voting interest. The Company's investment is
represented by 57.7% of the Class A Preferred Shares, 41.7% of the Common
Shares and 9.0% of the Class B Preferred Shares.
During the first quarter of 1996, New Valley repurchased 72,104 Class A
Preferred Shares for a total amount of $10,530. The Company has recorded
its proportionate interest in the excess of the carrying value of the
shares over the cost of the shares repurchased as a credit to additional
paid-in capital in the amount of $1,782, along with other New Valley
capital transactions of $1,563, for the nine months ended September 30,
1996. No such repurchases have been made during the nine months ended
September 30, 1997. Other New Valley capital transactions charged to
equity were $9,483 for the nine months ended September 30, 1997, which
represents the Company's portion of the unrealized gain on investment
securities at New Valley.
-12-
<PAGE> 14
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
The Class A Preferred Shares of New Valley are required to be redeemed on
January 1, 2003 for $100.00 per share plus dividends accrued to the
redemption date. The shares are redeemable, at any time prior to that
date, at the option of New Valley, at $100.00 per share plus accrued
dividends. The holders of Class A Preferred Shares are entitled to receive
a quarterly dividend, as declared by the Board of Directors (the "Board"),
payable at the rate of $19.00 per annum. At September 30, 1997, the
accrued and unpaid dividends arrearage on the Class A Preferred Shares was
$150,871 or $140.81 per share. During the nine months ended September 30,
1996, NV Holdings received $24,733 ($40.00 per share) on the Class A
Preferred Shares in dividend distributions. No such dividend distributions
have been made in 1997.
Holders of the Class B Preferred Shares are entitled to receive a
quarterly dividend, as declared by the Board, at a rate of $3.00 per
annum. At September 30, 1997, the accrued and unpaid dividends arrearage
on Class B Preferred Shares was $133,248 or $47.75 per share. No dividends
on the Class B Preferred Shares have been declared since the fourth
quarter of 1988.
Summarized financial information for New Valley as of September 30, 1997
and December 31, 1996 and for the three and nine months ended September
30, 1997 and 1996 follows:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------------- --------------------
<S> <C> <C>
Current assets, primarily cash and marketable
securities................................... $140,465 $183,720
Non-current assets.............................. 326,368 222,820
Current liabilities............................. 131,593 98,110
Non-current liabilities......................... 194,040 170,223
Redeemable preferred stock...................... 245,740 210,571
Shareholders' equity (deficit).................. (104,540) (72,364)
</TABLE>
<TABLE>
<CAPTION>
--------------------------- ---------------------------
Three Months Ended Nine Months Ended
--------------------------- ---------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
1997 1996 1997 1996
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues .................................... $ 26,448 $ 21,276 $ 70,605 $ 83,710
Costs and expenses.............................. 34,378 28,998 95,897 102,314
Loss from continuing operations................. (6,830) (7,105) (22,313) (17,589)
Income (loss) from discontinued operations...... 256 (5,339) 369 (4,501)
Net loss applicable to common shares(A)......... (24,141) (27,844) (72,241) (64,319)
</TABLE>
(A) Considers all preferred accrued dividends, whether or not declared, and
the excess of carrying value of redeemable preferred shares over cost
of shares purchased.
ACQUISITION OF COMMON SHARES OF BML:
On January 31, 1997, New Valley acquired substantially all the common shares of
BML from BOL for $55,000. (Refer to Note 3.)
-13-
<PAGE> 15
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
RJR NABISCO HOLDINGS CORP.:
At September 30, 1997, New Valley held 762,650 shares of RJR Nabisco
Holdings Corp. ("RJR Nabisco") common stock with a market value of $26,216
(cost of $23,378). The unrealized gain on New Valley's investment in RJR
Nabisco common stock was $2,838 at September 30, 1997.
3. INVESTMENT IN BROOKE (OVERSEAS) LTD.
On January 31, 1997, BOL sold all its shares of BML to New Valley for
$21,500 in cash and a promissory note of $33,500 payable $21,500 on June
30, 1997 and $12,000 on December 31, 1997 with interest at 9%. The
consideration received exceeded the carrying value of the Company's
investment in BML by $43,700. The Company recognized a gain on the sale in
the amount of $21,300. The remaining $22,400 was deferred in recognition
of the fact that the Company retains an interest in BML through its 42%
equity ownership in New Valley and that a portion of the property sold is
subject to a put option held by New Valley. The option allows New Valley,
under certain circumstances, to put a portion of the property sold back to
the Company at the greater of the appraised fair value of the property at
the date of exercise or $13,600. On April 18, 1997, BML sold one of its
office buildings, Ducat Place I, to a third party. Accordingly, the
Company recognized approximately $1,240 of its deferred gain on the BML
sale in the second quarter, 1997.
During the second quarter 1997, New Valley paid $21,500 to BOL,
representing a portion of the promissory note together with accrued
interest thereon. As of September 30, 1997, the balance remaining on the
note was $12,000, subsequently reduced to $8,500, which is due on or
before December 31, 1997.
In connection with the sale of its BML shares to New Valley, certain
specified liabilities aggregating $40,800, including the Vneshtorgbank
loan, which was repaid in full during the third quarter, remained with
BML, and New Valley indemnified the Company and its subsidiaries with
respect to any obligation arising from such liabilities.
4. INVENTORIES
Inventories consist of:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------------ -------------------
<S> <C> <C>
Finished goods........................................ $13,108 $15,304
Work-in-process....................................... 4,178 4,435
Raw materials......................................... 25,937 34,002
Replacement parts and supplies........................ 4,546 4,406
------- -------
Inventories at current cost........................... 47,769 58,147
LIFO adjustments...................................... (6,409) (4,456)
------- -------
$41,360 $53,691
======= =======
</TABLE>
At September 30, 1997, Liggett and Liggett-Ducat had leaf tobacco
purchase commitments of approximately $12,207 and approximately
$23,900, respectively.
-14-
<PAGE> 16
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
5. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------------------------
<S> <C> <C>
Land and improvements.............. $ 455 $ 455
Buildings.......................... 6,443 14,205
Machinery and equipment............ 52,294 49,401
Leasehold improvements............. 302 302
Construction-in-progress........... 9,463 46,966
------- --------
68,957 111,329
Less accumulated depreciation...... 32,237 31,047
------ --------
$36,720 $ 80,282
======= ========
</TABLE>
On May 6, 1997, Liggett-Ducat Tobacco Ltd., a subsidiary of Liggett-Ducat,
entered into two contracts for construction of a new tobacco factory on
the outskirts of Moscow which provide for payments of $1,700 over a
three-month period ending July 1997 and of $18,760 payable over a
twelve-month period ending July 1998. In addition, a pre-construction
payment of $520 was paid in April 1997.
On September 9, 1997, BOL entered into a contract to purchase cigarette
manufacturing and processing equipment to be used in the new factory for
$15,000. $12,750 will be financed by a series of ten promissory notes
payable every six months at 6.71% per annum interest with the first note
due in 1999. The Company is a guarantor of the notes.
On September 24, 1997, BOL entered into an additional contract to purchase
cigarette manufacturing and processing equipment to be used in the new
factory for $12,400, of which $10,500 will be financed by a series of
sixty promissory notes payable monthly at 7.5% per annum interest. The
first note will be due six months after delivery of the equipment.
Delivery is estimated to be completed by September 1998.
6. INCOME TAXES
The provision for taxes for the three and nine months ended September 30,
1997 and 1996 does not bear the customary relationship to the pretax
loss/income for the Company and BGLS due principally to the effects of
taxes provided for foreign operations and an increase in the valuation
allowance related to deferred tax assets.
-15-
<PAGE> 17
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
7. NOTES PAYABLE, LONG-TERM DEBT AND OTHER OBLIGATIONS
Notes payable, long-term debt and other obligations consist of:
<TABLE>
<CAPTION>
Sept. 30, December 31,
1997 1996
----------------- -----------------
<S> <C> <C>
15.75% Series B Senior Secured Notes due 2001,
net of unamortized discount of $1,233 and $1,511...... $231,631 $231,353
14.500% Subordinated Debentures due 1998.................. 800 800
Notes payable - Foreign................................... 22,668
Other..................................................... 936 2,425
Liggett:
11.500% Senior Secured Series B Notes due 1999, net of
unamortized discount of $254 and $424................. 112,358 119,688
Variable Rate Series C Senior Secured Notes due 1999...... 32,279 32,279
Revolving credit facility................................. 31,214 24,272
-------- --------
Total notes payable and long-term debt.................... 409,218 433,485
Less current maturities................................... 38,245 55,242
-------- --------
Amount due after one year................................. $370,973 $378,243
======== ========
</TABLE>
STANDSTILL AGREEMENT-BGLS:
During negotiations with the BGLS and Liggett note holders, BGLS postponed
making the interest payments of approximately $18,338 for the BGLS Notes
due on July 31, 1997. (Refer to Note 1.) A Standstill Agreement and
Consent (the "Standstill Agreement") was reached on August 28, 1997, as
amended, among the holders of more than 83% of the BGLS Notes and BGLS
whereby each of such principal holders of the BGLS Notes waived the right
to receive on August 29, 1997 its pro rata share of the July 31, 1997
interest payment (in total, $15,340).
On August 29, 1997, BGLS made the interest payment on the BGLS Notes to
all holders other than the principal holders. Pending completion of the
negotiations with the principal holders, such holders have agreed with
BGLS that they will be entitled to receive their portion of the July 31,
1997 interest payment only after giving BGLS 20 days notice but in any
event by December 10, 1997.
REVOLVING CREDIT FACILITY - LIGGETT:
On March 8, 1994, Liggett entered into the Facility for $40,000 with a
syndicate of commercial lenders. The Facility is collateralized by all
inventories and receivables of Liggett. At September 30, 1997, $2,809 was
available under the Facility based on eligible collateral. Borrowings
under the Facility, whose interest is calculated at a rate equal to 1.5%
above the Philadelphia National Bank's prime rate (8.25%), bore a rate of
9.75% at March 31, 1997. On April 1, 1997, Philadelphia National Bank
raised its prime rate to 8.5%, thereby increasing Liggett's interest rate
to 10.0%. The Facility requires Liggett's compliance with certain
financial and other covenants. The Facility also limits the amount of cash
dividends and distributions by Liggett and imposes requirements with
respect to Liggett's adjusted net and working capital. In January 1997,
the Facility was extended for one year and in November 1997 was extended
for an additional year until March 8, 1999.
During the first quarter of 1997, Liggett violated the working capital
covenant contained in the Facility. This violation occurred during
February 1997 when $37,500 of the Liggett Notes were reclassified
-16-
<PAGE> 18
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
from long-term to current as a result of the February 1, 1998 mandatory
redemption requirement of such Notes. On March 19, 1997, the lead lender
agreed to waive this covenant default, and the Facility was amended as
follows: (i) the working capital definition was changed to exclude the
current portion of the Liggett Notes; (ii) the maximum permitted working
capital deficit was reduced to $12,000 (as computed in accordance with the
agreement); (iii) the maximum permitted adjusted net worth deficit was
increased to $180,000 (as computed in accordance with the agreement); and
(iv) the permitted advance rates under the Facility for eligible inventory
were reduced by five percent.
On August 29, 1997, the Facility was amended to permit Liggett to
borrow an additional $6,000 which was used on that date in making the
interest payment of $9,700 due on August 1, 1997 to the holders of the
Liggett Notes. BGLS guaranteed the additional $6,000 advance under the
Facility and collateralized the guarantee with $6,000 in cash, deposited
with Liggett's lender. At September 30, 1997, this amount is classified in
other assets on the balance sheet.
LIGGETT 11.500% SENIOR SECURED SERIES B NOTES DUE 1999:
On February 14, 1992, Liggett issued $150,000 in Senior Secured Notes (the
"Liggett Series B Notes"). Interest on the Liggett Series B Notes is
payable semiannually on February 1 and August 1 at an annual rate of
11.5%. The Liggett Notes referred to below required mandatory principal
redemptions of $7,500 on February 1 in each of the years 1993 through 1997
and $37,500 on February 1, 1998 with the balance of the Liggett Notes due
on February 1, 1999. In February 1997, $7,500 of Liggett Series B Notes
were purchased using the Facility and credited against the mandatory
redemption requirements. The transaction resulted in a net gain of $2,963.
The Liggett Notes are collateralized by substantially all of the assets of
Liggett, excluding inventories and receivables. Eve Holdings Inc. is a
guarantor for the Liggett Notes. The Liggett Notes may be redeemed, in
whole or in part, at a price equal to 102% and 100% of the principal
amount in the years 1997 and 1998, respectively, at the option of Liggett.
The Liggett Notes contain restrictions on Liggett's ability to declare or
pay cash dividends, incur additional debt, grant liens and enter into any
new agreements with affiliates, among others.
ISSUANCE OF LIGGETT SERIES C VARIABLE RATE NOTES:
On January 31, 1994, Liggett issued $22,500 of Variable Rate Series C
Senior Secured Notes Due 1999 (the "Liggett Series C Notes"). The Liggett
Series C Notes bore a 16.5% interest rate, which was reset on February 1,
1995 to 19.75%, the maximum reset rate. The Series C Notes have the same
terms (other than interest rate) and stated maturity as the Liggett Series
B Notes.
As discussed above, the Liggett Notes require a mandatory principal
redemption of $37,500 on February 1, 1998 and a payment at maturity on
February 1, 1999 of $107,400. Liggett has engaged in negotiations with its
note holders to restructure the Liggett Notes. In conjunction with these
discussions, the Company is also engaged in negotiations with the
principal holders of the BGLS Notes with respect to certain related
modifications to the terms of such debt. (Refer to Note 1.)
FOREIGN LOANS:
The Company was a guarantor on lines of credit opened by BOL during the
first quarter 1997 with two Russian banks in total amount of $4,000
with interest at 23%. These lines of credit were
-17-
<PAGE> 19
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
collateralized by accounts receivable, inventory and equipment. The lines
of credit expired in August and September 1997 with balances paid in full.
8. STOCK COMPENSATION
As of January 1, 1997, the Company granted to employees of the Company
non-qualified stock options to purchase 422,000 shares of the Company's
common stock at an exercise price of $5.00 per share. The options, which
will become exercisable over the ten-year term, vest in six equal annual
installments. No compensation expense was recorded in this transaction,
since the options had no intrinsic value.
9. RELATED PARTY TRANSACTIONS
Effective July 1, 1990, a former executive transferred all of his equity
in the Company to the Chairman and resigned from substantially all of his
positions with the Company and its affiliates. In consideration for this
transfer, a partnership (the "Partnership") controlled by the Chairman
agreed, among other things, to make certain payments to the Company on
account of the former executive's outstanding indebtedness of $8,677
(deducted from equity). In connection with this transaction, the
Partnership pledged 1,681,715 of the shares it held of the Company's
common stock to secure this non-recourse obligation, except as to the
pledged shares. In May 1994, the Partnership paid $3,200 in partial
satisfaction of the obligation. In consideration thereof, the Company
released 1,281,715 of the pledged shares. On March 7, 1997, the
Partnership transferred to the Company the remaining 400,000 pledged
shares in final satisfaction of the obligation. As a result, the Company
credited retained earnings $1,800, the fair market value of the pledged
shares which were returned to treasury.
10. RESTRUCTURING CHARGES
During the first nine months of 1997, Liggett reduced its headcount by 123
full-time positions and recorded a $1,926 restructuring charge to
operations for severance programs, primarily salary continuation and
related benefits for terminated employees. Approximately $285 in
restructuring charges will be funded in subsequent years. Liggett expects
to continue its cost reduction programs.
11. CONTINGENCIES
TOBACCO-RELATED LITIGATION:
Overview. Since 1954, Liggett and other United States cigarette
manufacturers have been named as defendants in a number of direct and
third-party actions predicated on the theory that they should be liable
for damages from cancer and other adverse health effects alleged to have
been caused by
-18-
<PAGE> 20
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
cigarette smoking or by exposure to secondary smoke (environmental tobacco
smoke, "ETS") from cigarettes. These cases are reported hereinafter as
though having been commenced against Liggett (without regard to whether
such cases were actually commenced against the Company or Liggett). There
has been a noteworthy increase in the number of cases pending against both
Liggett and the other tobacco companies. The cases generally fall into
three categories: (i) smoking and health cases alleging personal injury
brought on behalf of individual smokers ("Individual Actions"), (ii)
smoking and health cases alleging personal injury and purporting to be
brought on behalf of a class of plaintiffs ("Class Actions") and (iii)
health care cost recovery actions brought by state and local governments,
although recently several health care cost recovery actions have been
commenced on behalf of other third-party payors including asbestos
manufacturers, unions and taxpayers ("Attorneys General Actions"). As new
cases are commenced, the costs associated with defending such cases and
the risks attendant to the inherent unpredictability of litigation
continue to increase. Liggett had been receiving assistance from others in
the industry in defraying the costs and other burdens incurred in the
defense of smoking and health litigation and related proceedings, but
these benefits have ended. The future financial impact on the Company of
the termination of this assistance and the effects of the tobacco
litigation settlements discussed below is not quantifiable at this time.
On June 24, 1992, in an action entitled Cipollone v. Liggett Group Inc.,
et al., the United States Supreme Court issued an opinion concluding that
The Federal Cigarette Labeling and Advertising Act did not preempt state
common law damage claims but that The Public Health Cigarette Smoking Act
of 1969 (the "1969 Act") did preempt certain, but not all, state common
law damage claims. The decision bars plaintiffs from asserting claims
that, after the effective date of the 1969 Act, the tobacco companies
either failed to warn adequately of the claimed health risks of cigarette
smoking or sought to neutralize those claimed risks in their advertising
or promotion of cigarettes. Bills have been introduced in Congress on
occasion to eliminate the federal preemption defense. Enactment of any
federal legislation with such an effect could result in a significant
increase in claims, liabilities and litigation costs.
Individual Actions. As of September 30, 1997, there were 218 cases pending
against Liggett, and in most cases the other tobacco companies, where
individual plaintiffs allege injury resulting from cigarette smoking,
addiction to cigarette smoking or exposure to ETS and seek compensatory
and, in some cases, punitive damages. Of these, 103 are pending in the
State of Florida, 62 are pending in the State of New York and 19 are
pending in the State of Texas. The balance of individual cases are pending
in 15 states. Of the 218 individual cases, there are five cases pending
where Liggett is the only named defendant.
The plaintiffs' allegations of liability in those cases in which
individuals seek recovery for personal injuries allegedly caused by
cigarette smoking are based on various theories of recovery, including
negligence, gross negligence, special duty, voluntary undertaking, strict
liability, fraud, misrepresentation, design defect, failure to warn,
breach of express and implied warranties, conspiracy, aiding and abetting,
concert of action, unjust enrichment, common law public nuisance,
indemnity, market share liability, and violations of deceptive trade
practices laws, the Federal Racketeer Influenced and Corrupt Organization
Act ("RICO") and antitrust statutes. In many of these cases, in addition
to compensatory damages, plaintiffs also seek other forms of relief
including disgorgement of profits and punitive damages. Defenses raised by
defendants in these cases include lack of proximate cause, assumption of
the risk, comparative fault and/or contributory
-19-
<PAGE> 21
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
negligence, lack of design defect, statute of limitations, equitable
defenses such as "unclean hands" and lack of benefit, failure to state a
claim and federal preemption.
On September 10, 1993, an action entitled Sackman v. Liggett Group Inc.,
United States District Court, Eastern District of New York, was filed
against Liggett alleging as injury lung cancer. On October 6, 1997, the
parties settled this matter.
Class Actions. As of September 30, 1997, there were 39 actions pending,
for which either a class has been certified or plaintiffs are seeking
class certification, where Liggett, among others, was a named defendant.
Two of these cases, Fletcher, et al. v. Brooke Group Ltd., et al. and
Walker, et al. v. Liggett Group Inc., et al. have been settled, subject to
court approval. These two settlements are more fully discussed below under
the "Settlements" section.
On October 31, 1991, an action entitled Broin, et al. v. Philip Morris
Incorporated, et al., Circuit Court of the Eleventh Judicial District in
and for Dade County, Florida, was filed against Liggett and others. This
case has been brought by plaintiffs on behalf of all flight attendants
that have worked or are presently working for airlines based in the United
States and who have never regularly smoked cigarettes but allege that they
have been damaged by involuntary exposure to ETS. On October 10, 1997, the
other major tobacco companies settled this matter, subject to a fairness
hearing, which settlement would provide for a full release on behalf of
the Company and Liggett.
On March 25, 1994, an action entitled Castano, et al. v. The American
Tobacco Company Inc., et al., United States District Court, Eastern
District of Louisiana, was filed against Liggett and others. The class
action complaint sought relief for a nationwide class of smokers based on
their alleged addiction to nicotine. On February 17, 1995, the District
Court granted plaintiffs' motion for class certification. On May 23, 1996,
the Court of Appeals for the Fifth Circuit reversed the February 17, 1995
order of the District Court certifying the Castano suit as a nationwide
class action and instructed the District Court to dismiss the class
complaint.
Attorneys General Actions. As of September 30, 1997, 38 state Attorneys
General actions were filed and served on Liggett and the Company. As more
fully discussed below, Liggett has reached settlements in 26 of these
actions. As of September 30, 1997, there were 18 additional third-party
payor actions pending. In certain of the pending proceedings, state and
local government entities and others seek reimbursement for Medicaid and
other health care expenditures allegedly caused by use of tobacco
products. The claims asserted in these health care cost recovery actions
vary. In most of these cases, plaintiffs assert the equitable claim that
the tobacco industry was "unjustly enriched" by plaintiffs' payment of
health care costs allegedly attributable to smoking and seek reimbursement
of those costs. Other claims made by some but not all plaintiffs include
the equitable claim of indemnity, common law claims of negligence, strict
liability, breach of express and implied warranty, violation of a
voluntary undertaking or special duty, fraud, negligent misrepresentation,
conspiracy, public nuisance, claims under state and federal statutes
governing consumer fraud, antitrust, deceptive trade practices and false
advertising, and claims under RICO.
Settlements. On March 12, 1996, the Company and Liggett entered into an
agreement, subject to court approval, to settle the Castano class action
tobacco litigation. Under the Castano settlement agreement, upon final
court approval of the settlement, the Castano class would be entitled to
receive up to five percent of Liggett's pretax income (income before
income taxes) each year (up to a maximum of $50,000 per year) for the next
25 years, subject to certain reductions provided for in the
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<PAGE> 22
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
agreement. The Company and Liggett have the right to terminate the
Castano settlement under certain circumstances. On March 14, 1996, the
Company, the Castano Plaintiffs Legal Committee and the Castano plaintiffs
entered into a letter agreement. According to the terms of the letter
agreement, for the period ending nine months from the date of Final
Approval (as defined in the letter), if granted, of the Castano settlement
or, if earlier, the completion by the Company or Liggett of a combination
with any defendant in Castano, except Philip Morris, the Castano
plaintiffs and their counsel agree not to enter into any more favorable
settlement agreement with any Castano defendant which would reduce the
terms of the Castano settlement agreement. If the Castano plaintiffs or
their counsel enter into any such settlement during this period, they
shall pay the Company $250,000 within 30 days of the more favorable
agreement and offer the Company and Liggett the option to enter into a
settlement on terms at least as favorable as those included in such other
settlement. The letter agreement further provides that during the same
time period, and if the Castano settlement agreement has not been earlier
terminated by the Company in accordance with its terms, the Company and
its affiliates will not enter into any business transaction with any third
party which would cause the termination of the Castano settlement
agreement. If the Company or its affiliates enter into any such
transaction, then the Castano plaintiffs will be entitled to receive
$250,000 within 30 days from the transacting party. On May 11, 1996, the
Castano Plaintiffs Legal Committee filed a motion with the United States
District Court for the Eastern District of Louisiana seeking preliminary
approval of the Castano settlement. On September 6, 1996, shortly after
the class was decertified, the Castano plaintiffs withdrew the motion for
approval of the Castano settlement.
On March 15, 1996 the Company and Liggett entered into a settlement of
tobacco-related litigation with the Attorneys General of Florida,
Louisiana, Mississippi, West Virginia and Massachusetts (the "March 1996
Settlement"). The March 1996 Settlement releases the Company and Liggett
from all tobacco-related claims including claims for health case cost
reimbursement and claims concerning sales of cigarettes to minors. The
March 1996 Settlement provides that additional states which commence
similar actions may agree to be bound by the settlement prior to six
months from the date thereof (subject to extension of such period by the
settling defendants). Certain of the terms of the March 1996 Settlement
are summarized below.
Under the March 1996 Settlement, the five settling states would share an
initial payment by Liggett of $5,000 ($1,000 of which was paid on March
22, 1996, with the balance payable over nine years and indexed and
adjusted for inflation), provided that any unpaid amount will be due 60
days after either a default by Liggett in its payment obligations under
the settlement or a merger or other similar transaction by the Company or
Liggett with another defendant in the lawsuits. In addition, Liggett will
be required to pay the settling states a percentage of Liggett's pretax
income (income before income taxes) each year from the second through the
twenty-fifth year. This annual percentage is 2-1/2% of Liggett's pretax
income, subject to increase to 7-1/2% depending on the number of
additional states joining the settlement. No additional states have joined
this settlement to date. All of Liggett's payments are subject to certain
reductions provided for in the agreement. Liggett has also agreed to pay
to the settling states $5,000 if the Company or Liggett fails to
consummate a merger or other similar transaction with another defendant in
the lawsuits within three years of the date of the March 1996 Settlement.
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<PAGE> 23
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
Settlement funds received by the Attorneys General will be used to
reimburse the states for smoking-related health care costs. The Company
and Liggett also have agreed to phase in compliance with certain of the
proposed interim FDA regulations on the same basis as provided in the
Castano settlement. The Company and Liggett have the right to terminate
the March 1996 Settlement with respect to any settling state if any of the
remaining defendants in the litigation succeed on the merits in that
state's respective Attorney General action. The Company and Liggett may
also terminate the March 1996 Settlement if they conclude that too many
states have filed Attorney General actions and have not settled such cases
with the Company and Liggett.
At December 31, 1995, the Company had accrued approximately $4,000 for the
present value of the fixed payments under the March 1996 Settlement. No
additional amounts have been accrued with respect to the recent
settlements discussed below. The Company cannot quantify the future costs
of the settlements at this time as the amount Liggett must pay is based,
in part, on future operating results. Possible future payments based on a
percentage of pretax income, and other contingent payments based on the
occurrence of a business combination, will be expensed when considered
probable.
On March 20, 1997, Liggett, together with the Company, entered into a
comprehensive settlement of tobacco litigation through parallel agreements
with the Attorneys General of 17 additional states (the "March 1997
Settlement") and with a nationwide class of individuals and entities that
allege smoking-related claims. The settlements cover all smoking-related
claims, including both addiction-based and tobacco injury claims against
the Company and Liggett, brought by the Attorneys General and, upon court
approval, the nationwide class.
As of September 30, 1997, settlements with a total of 26 Attorneys General
were reached, including the Attorneys General of Alaska, Arizona,
California, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas,
Maryland, Michigan, Minnesota, Nevada, New Jersey, New York, Oklahoma,
Oregon, Texas, Utah, Washington and Wisconsin. The March 1996 Settlement
remains in full force and effect. Other states have either recently filed
health care cost recovery actions or indicated intentions to do so. Both
Liggett and the Company will endeavor to resolve those actions on
substantially the same terms and conditions as the March 1997 Settlement;
however, there can be no assurance that any such settlements will be
completed.
As mentioned above, on March 20, 1997, Liggett, the Company and plaintiffs
filed the mandatory class settlement agreement in an action entitled
Fletcher, et al. v. Brooke Group Ltd., et al., Circuit Court of Mobile
County, Alabama, where the court granted preliminary approval and
preliminary certification of the class, and on May 15, 1997, a similar
mandatory class settlement agreement was filed in an action entitled
Walker, et al. v. Liggett Group Inc., et al., United States District
Court, Southern District of West Virginia. The Walker court also granted
preliminary approval and preliminary certification of the nationwide
class; however, on August 5, 1997, the court vacated its preliminary
certification of the settlement class, which decision is currently on
appeal.
In the Fletcher action, it is anticipated that class members will be
notified of the settlement and will have an opportunity to appear at a
later court hearing. Effectiveness of the mandatory settlement is
conditioned on final court approval of the settlement after a fairness
hearing. There can be no assurance as to whether, or when, such court
approval will be obtained.
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<PAGE> 24
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
Pursuant to the above-mentioned settlements, the Company and Liggett
agreed to cooperate fully with the Attorneys General and the nationwide
class in their respective lawsuits against the tobacco industry. The
Company and Liggett agreed to provide to these parties all relevant
tobacco documents in their possession, other than those subject to claims
of joint defense privilege, and to waive, subject to court order, certain
attorney-client privileges and work product protections regarding
Liggett's smoking-related documents to the extent Liggett and the Company
can so waive these privileges and protections. The Attorneys General and
the nationwide class agreed to keep Liggett's documents under protective
order and, subject to final court approval, to limit their use to those
actions brought by parties to the settlement agreements. Those documents
that may be subject to a joint defense privilege with other tobacco
companies will not be produced to the Attorneys General or the nationwide
class, but will be, pursuant to court order, submitted to the appropriate
court and placed under seal for possible in camera review. Additionally,
under similar protective conditions, the Company and Liggett agreed to
offer their employees for witness interviews and testimony at deposition
and trial. Pursuant to both settlement agreements, Liggett also agreed to
place an additional warning on its cigarette packaging stating that
"smoking is addictive" and to issue a public statement, as requested by
the Attorneys General. Liggett has commenced distribution of cigarette
packaging which displays the new warning label.
Under the terms of the new settlement agreements, Liggett will pay, on an
annual basis, 25% of its pretax income for the next 25 years into a
settlement fund, commencing with the first full fiscal year starting after
the date of the agreements. Monies collected in the settlement fund will
be overseen by a court-appointed committee and utilized to compensate
state health care programs and settlement class members and to provide
counter-market advertising. Liggett agreed to phase-in compliance with
certain proposed FDA regulations regarding smoking by children and
adolescents, including a prohibition on the use of cartoon characters in
tobacco advertising and limitations on the use of promotional materials
and distribution of sample packages where minors are present.
Under the recent settlement agreements, any other tobacco company
defendant, except Philip Morris, merging or combining with Liggett or the
Company, prior to the fourth anniversary of the settlements, would receive
certain settlement benefits, including limitations on potential liability
for affiliates not engaged in domestic tobacco operations and a waiver of
any obligation to post a bond to appeal any future adverse judgment. In
addition, within 120 days following any such combination, Liggett would be
required to pay the settlement fund $25,000. The settling Attorneys
General and the nationwide class have agreed not to seek an injunction
preventing a defendant tobacco company combining with Liggett or the
Company from spinning off any affiliate which is not engaged in the
domestic tobacco business.
The Company and Liggett are also entitled to most favored nation treatment
in the event any settling Attorney General reaches a settlement with any
other defendant tobacco company. In addition, in the event of a "global"
tobacco settlement enacted through Federal legislation or otherwise, the
settling Attorneys General and tobacco plaintiffs agreed to use their
"best efforts" to ensure that the Company and Liggett's liability under
such a plan should be no more onerous than under these new settlements.
Imminent Trials. Although trial schedules are subject to change, the next
case scheduled for trial, where Liggett is a defendant, is State of
Minnesota by Hubert H. Humphrey, III, its Attorney General and Blue
Cross and Blue shield of Minnesota V. Philip Morris Incorporated, et al.,
District Court of the Second Judicial District, Ramsey County, Minnesota,
which is scheduled for trial in January 1998. Liggett settled the claims
of the State of Minnesota on March 20, 1997, but still remains a
defendant in the case with respect to the State's co-plaintiff, Blue
Cross and Blue Shield of Minnesota. In addition, there is one class
action, Engle, et al. v. R.J. Reynolds Tobacco Company, et al., Circuit
Court, 11th Judicial Circuit, Dade County, Florida and one individual ETS
case, Dunn and Wiley v. RJR Nabisco Holdings Corp., et al., Superior
Court, Delaware County, Indiana, scheduled for trial in February 1998.
Other Matters. On June 20, 1997, Philip Morris Incorporated ("Philip
Morris"), R. J. Reynolds Tobacco Company ("RJR"), B&W, Lorillard Tobacco
Company ("Lorillard") and the United States Tobacco Company, along with
the Attorneys General for the States of Arizona, Connecticut, Florida,
Mississippi, New York and Washington and the Castano Plaintiffs'
Litigation Committee executed a
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<PAGE> 25
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
Memorandum of Understanding to support the adoption of federal legislation
and necessary ancillary undertakings, incorporating the features described
in a proposed resolution. The proposed resolution mandates a total
reformation and restructuring of how tobacco products are manufactured,
marketed and distributed in the United States. The proposals are currently
being reviewed by the White House, Congress and various public interest
groups. Separately, the other tobacco companies negotiated settlements of
the Attorneys General health care cost recovery actions in Mississippi and
Florida. Management is unable to predict the ultimate effect, if any, of
the enactment of legislation adopting the proposed resolution. Management
is also unable to predict the ultimate content of any such legislation;
however, adoption of any such legislation could have a material adverse
effect on the business of the Company and Liggett.
On March 20, 1997, RJR, Philip Morris, B&W and Lorillard obtained a
temporary restraining order from a North Carolina state court preventing
the Company and Liggett and their agents, employees, directors, officers
and lawyers from turning over documents allegedly subject to the joint
defense privilege in connection with the settlements, which restraining
order was converted to a preliminary injunction by the court on April 9,
1997. This ruling is currently on appeal by the Company and Liggett. On
June 5, 1997, the North Carolina Supreme Court denied Liggett's Motion to
Stay the case pending appeal. On March 24, 1997, the United States
District Court for the Eastern District of Texas and state courts in
Mississippi and Illinois each issued orders enjoining the other tobacco
companies from interfering with Liggett's filing with the courts, under
seal, those documents.
The Company understands that a grand jury investigation is being conducted
by the office of the United States Attorney for the Eastern District of
New York regarding possible violations of criminal law relating to the
activities of The Council for Tobacco Research - USA, Inc. (the "CTR").
Liggett was a sponsor of the CTR at one time. In May 1996, Liggett
received a subpoena from a Federal grand jury sitting in the Eastern
District of New York, to which Liggett has responded. The Company is
unable, at this time, to predict the outcome of this investigation.
In March 1996, March 1997, July 1997 and October 1997, the Company and/or
Liggett received subpoenas from a Federal grand jury in connection with an
investigation by the United States Department of Justice, relating to
issues raised in testimony provided by tobacco industry executives before
Congress and other related matters. Liggett has responded to the March
1996 and March 1997 subpoenas and is in the process of responding to the
July and October 1997 subpoenas. The Company and Liggett are unable, at
this time, to predict the outcome of this investigation.
Liggett has been involved in certain environmental proceedings, none of
which, either individually or in the aggregate, rise to the level of
materiality. Liggett's current operations are conducted in material
compliance with all environmental laws and regulations. Management is
unaware of any material environmental conditions affecting its existing
facilities. Compliance with federal, state and local provisions regulating
the discharge of materials into the environment, or otherwise relating to
the protection of the environment, has not had a material effect on the
capital expenditures, earnings or competitive position of Liggett.
Litigation is subject to many uncertainties, and it is possible that some
of the aforementioned actions could be decided unfavorably against the
Company or Liggett. An unfavorable outcome of a pending smoking and health
case could encourage the commencement of additional similar litigation.
The Company is unable to evaluate the effect of these developing matters
on pending litigation or the possible commencement of additional
litigation.
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<PAGE> 26
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
There are several other proceedings, lawsuits and claims pending against
the Company unrelated to smoking or tobacco product liability. Management
is of the opinion that the liabilities, if any, ultimately resulting from
such other proceedings, lawsuits and claims should not materially affect
the Company's financial position, results of operations or cash flows.
The Company is unable to make a meaningful estimate of the amount or range
of loss that could result from an unfavorable outcome of the cases pending
against the Company and Liggett. It is possible that the Company's
consolidated financial position, results of operations and cash flows
could be materially adversely affected by an ultimate unfavorable outcome
in any of such pending litigation.
LEGISLATION AND REGULATION:
On August 28, 1996, the FDA filed in the Federal Register a Final Rule
(the "FDA Rule") classifying tobacco as a drug, asserting jurisdiction by
the FDA over the manufacture and marketing of tobacco products and
imposing restrictions on the sale, advertising and promotion of tobacco
products. Litigation was commenced in the United States District Court for
the Middle District of North Carolina challenging the legal authority of
the FDA to assert such jurisdiction, as well as challenging the
constitutionality of the rules. The court, after argument, granted
plaintiffs' motion for summary judgment prohibiting the FDA from
regulating or restricting the promotion and advertising of tobacco
products and denied plaintiffs' motion for summary judgment on the issue
of whether the FDA has the authority to regulate access to, and labeling
of, tobacco products. The four major cigarette manufacturers and the FDA
have filed notices of appeal. The Company and Liggett support the FDA Rule
and have begun to phase in compliance with certain of the proposed interim
FDA regulations. See discussions of the Castano and Attorneys General
settlements above.
In August 1996, the Commonwealth of Massachusetts enacted legislation
requiring tobacco companies to publish information regarding the
ingredients in cigarettes and other tobacco products sold in that state.
On February 7, 1997, the United States District Court for the District of
Massachusetts denied an attempt to block the new legislation on the ground
that it is preempted by federal law. The Company and Liggett support this
proposed legislation.
On September 13, 1995, the President of the United States issued
Presidential Proclamation 6821, which established a tariff rate quota
("TRQ") on certain imported tobacco, imposing extremely high tariffs on
imports of flue-cured and burley tobacco in excess of certain specified
levels, which levels vary by country. Management believes that the TRQ
levels are sufficiently high to allow Liggett to operate without material
disruption to its business. On February 20, 1996, the United States Trade
representative issued an "advance notice of rule making" concerning how
tobaccos imported under the TRQ should be allocated. Currently, tobacco
imported under the TRQ is allocated on a "first-come, first-served" basis,
meaning that entry is allowed on an open basis to those first requesting
entry in the quota year. Others in the cigarette industry have suggested
an "end-user licensing" system under which the right to import tobacco
under the quota would be initially assigned on the basis of domestic
market share. Such an approach, if adopted, could have a material adverse
effect on the Company and Liggett.
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<PAGE> 27
Item 1. Consolidated Financial Statements - (Continued)
BROOKE GROUP LTD.
BGLS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
In April 1994, the United States Occupational Safety and Health
Administration ("OSHA") issued a proposed rule that could ultimately ban
smoking in the workplace. Hearings were completed during 1995. OSHA has
not yet issued a final rule or a proposed revised rule. While the Company
cannot predict the outcome, some form of federal regulation of smoking in
workplaces may result.
In January 1993, the United States Environmental Protection Agency ("EPA")
released a report on the respiratory effect of ETS which concludes that
ETS is a known human lung carcinogen in adults, and in children causes
increased respiratory tract disease and middle ear disorders and increases
the severity and frequency of asthma. In June 1993, the two largest of the
major domestic cigarette manufacturers, together with other segments of
the tobacco and distribution industries, commenced a lawsuit against the
EPA seeking a determination that the EPA did not have the statutory
authority to regulate ETS, and that given the current body of scientific
evidence and the EPA's failure to follow its own guidelines in making the
determination, the EPA's classification of ETS was arbitrary and
capricious. Whatever the outcome of this litigation, issuance of the
report may encourage efforts to limit smoking in public areas.
As part of the budget agreement recently approved by Congress, federal
excise taxes on a pack of cigarettes, which are currently 24 cents, would
rise 10 cents in the year 2000 and 5 cents more in the year 2002.
In a speech on September 17, 1997, President Clinton called for federal
legislation that, among other things, would raise cigarette prices by up
to $1.50 per pack. In November 1997, several bills were introduced in the
Senate that purport to propose legislation along these lines. Management
is unable to predict the ultimate content of any such legislation;
however, adoption of any such legislation could have a material adverse
effect on the business of the Company and Liggett.
In addition to the foregoing, there have been a number of other
restrictive regulatory actions, adverse political decisions and other
unfavorable developments concerning cigarette smoking and the tobacco
industry, the effects of which, at this time, the Company is not able to
evaluate.
12. SALES OF ASSETS
On January 31, 1997, BOL sold BML to New Valley for $21,500 in cash and a
promissory note of $33,500 payable $21,500 on June 30, 1997 and $12,000 on
December 31, 1997. (Refer to Note 3.)
On March 11, 1997, Liggett sold to Blue Devil Ventures, a North Carolina
limited liability partnership, certain surplus realty for $2,200 and
recognized a gain of $1,531.
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<PAGE> 28
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
INTRODUCTION
The following discussion provides an assessment of the consolidated
results of operations, capital resources and liquidity of Brooke Group Ltd. (the
"Company") and its subsidiaries and should be read in conjunction with the
Consolidated Financial Statements and notes thereto of the Company and BGLS Inc.
("BGLS") included elsewhere in this report. BGLS is a wholly-owned subsidiary of
the Company. The consolidated financial statements include the accounts of BGLS,
Liggett Group Inc. ("Liggett"), Brooke (Overseas) Ltd. ("BOL"), New Valley
Holdings, Inc. ("NV Holdings"), Liggett-Ducat Ltd. ("Liggett-Ducat") and other
less significant subsidiaries. The Company holds an equity interest in New
Valley Corporation ("New Valley") through NV Holdings.
On January 31, 1997, BOL sold its interest in BrookeMil Ltd. ("BML"), a
real estate investment company doing business in Russia, to New Valley. See Note
3 to the Company's Consolidated Financial Statements.
For purposes of this discussion and other consolidated financial
reporting, the Company's significant business segments are tobacco for the nine
months ended September 30, 1997 and tobacco and real estate for the nine months
ended September 30, 1996.
RECENT DEVELOPMENTS
BOL. On January 31, 1997, New Valley acquired from BOL 10,483 shares
(99.1%) of common stock of BML (the "BML Shares") for a purchase price of
$55,000, consisting of $21,500 in cash and a $33,500 9% promissory note of New
Valley (the "Note"). The Note is collateralized by the BML Shares. During the
second quarter 1997, New Valley paid $21,500 to BOL. The remaining balance on
the Note at September 30, 1997 was $12,000, subsequently reduced to $8,500 and
is due on or before December 31, 1997. The Company recognized a gain of $21,300
on the sale in the first quarter, 1997. On April 18, 1997, BML sold one of its
office buildings to a third party. Accordingly, the Company recognized
approximately $1,240 of the deferred gain. See Note 3 to the Company's
Consolidated Financial Statements.
Liggett. In January 1997, Liggett underwent a major restructuring from
a centralized organization to a decentralized enterprise with four Strategic
Business Units, each a profit center, and a corporate headquarters. This
restructuring is intended to more closely align sales and marketing strategies
with the unique requirements of regional markets as well as reduce working
capital by improved production planning and inventory control. As a result of
this reorganization, Liggett is further reducing its salaried, hourly and
part-time headcount by a total of 273 positions (35%) over a twelve-month
transition period.
Debt Service. Liggett has engaged in negotiations with its note holders
with respect to a restructuring of the terms of Liggett's Senior Secured Notes
(the "Liggett Notes"). In conjunction with these discussions, the Company has
also engaged in negotiations with the principal holders of the BGLS 15.75%
Series B Senior Secured Notes (the "BGLS Notes") with respect to certain related
modifications to the terms of such debt. A Standstill Agreement and Consent (the
"Standstill Agreement") was reached on August 28, 1997, as amended, among the
principal holders of the BGLS Notes and BGLS whereby each of the principal
holders of the BGLS Notes waived the right to receive on August 29, 1997 its pro
rata share of the July interest amount ($15,340). Other BGLS note holders and
the Liggett note holders received the interest payments which had been due on
July 31, 1997 and on August 1, 1997, respectively, on August 29, 1997. Pending
completion of the negotiations with the principal holders, such holders have
agreed with BGLS that they will be entitled
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<PAGE> 29
to receive their portion of the July 31, 1997 interest payment only after giving
BGLS 20 days notice but in any event by December 10, 1997. On August 29, 1997,
Liggett's revolving credit facility (the "Facility") was amended to permit
Liggett to borrow an additional $6,000 which was used in making the interest
payment of $9,700 due on August 1, 1997 to the holders of the Liggett Notes.
BGLS guaranteed the additional $6,000 advance under the Facility and
collateralized the guarantee with $6,000 in cash, deposited with Liggett's
lender. With respect to Liggett's liquidity and near-term debt service
requirements and related matters, refer to "Capital Resources and Liquidity"
below.
New Accounting Pronouncements. In June 1997, the Financial Accounting
Standards Board ("FASB") issued Statement of Financial Accounting Standards
("SFAS") No. 130, "Reporting Comprehensive Income". SFAS 130 establishes
standards for reporting and display of comprehensive income. The purpose of
reporting comprehensive income is to present a measure of all changes in equity
that result from recognized transactions and other economic events of the period
other than transactions with owners in their capacity as owners. SFAS 130
requires that an enterprise classify items of other comprehensive income by
their nature in a financial statement and display the accumulated balance of
other comprehensive income separately from retained earnings and additional
paid-in capital in the equity section of the balance sheet. SFAS 130 is
effective for fiscal years beginning after December 15, 1997, with earlier
application permitted. The Company has not yet determined the impact of the
implementation of SFAS 130.
In June 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of
an Enterprise and Related Information". SFAS 131 specifies revised guidelines
for determining an entity's operating segments and the type and level of
financial information to be disclosed. Once operating segments have been
determined, SFAS 131 provides for a two-tier test for determining those
operating segments that would need to be disclosed for external reporting
purposes. In addition to providing the required disclosures for reportable
segments, SFAS 131 also requires disclosure of certain "second level"
information by geographic area and for products/services. SFAS 131 also makes a
number of changes to existing disclosure requirements. SFAS 131 is effective for
fiscal years beginning after December 15, 1997, with earlier application
encouraged. The Company has not yet determined the impact of the implementation
of SFAS 131.
RECENT DEVELOPMENTS IN THE CIGARETTE INDUSTRY
Pricing Activity. On March 7, 1997, R. J. Reynolds Tobacco Company
("RJR") initiated a list price increase on all brands of $.40 per carton
(approximately 4%). Brown & Williamson Tobacco Corporation ("B&W"), Lorillard
Tobacco Company ("Lorillard") and Liggett matched this increase, and, on March
21, 1997, Philip Morris Incorporated ("Philip Morris") announced a price
increase of $.50 per carton. Subsequently, Liggett and the other manufacturers
matched Philip Morris' price increase. On August 29, 1997, Philip Morris
announced a second price increase of $.70 per carton. During the first week of
September, all other major United States cigarette makers, including Liggett,
matched this increase.
Legislation, Regulation and Litigation. The cigarette industry
continues to be challenged on numerous fronts. New cases continue to be
commenced against Liggett and the Company and other cigarette manufacturers. As
of September 30, 1997, there were 218 individual suits, 39 class actions or
actions where class certification has been sought and 38 state (and numerous
municipality and other third-party payor) health care cost reimbursement actions
pending in the United States in which Liggett is a named defendant and has been
served. As new cases are commenced, the costs associated with defending such
cases and the risks attendant to the inherent unpredictability of litigation
continue to increase. Recently, there have been a number of restrictive
regulatory actions from various Federal administrative bodies, including the
United States Environmental Protection Agency ("EPA") and the Food and Drug
Administration ("FDA"), adverse political and legal decisions and other
unfavorable developments concerning cigarette smoking and the tobacco industry,
including the commencement and certification of class actions and the
commencement of Medicaid reimbursement suits by various states' Attorneys
General. These developments generally receive widespread media attention. The
Company is not able to evaluate the effect of these developing matters on
pending litigation or the possible commencement of additional litigation, but it
is
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<PAGE> 30
possible that the Company's financial position, results of operations and cash
flows could be materially adversely affected by an ultimate unfavorable outcome
in any of such pending litigation. See Note 11 to the Company's Consolidated
Financial Statements for a description of legislation, regulation and
litigation.
The plaintiffs' allegations of liability in those cases in which
individuals seek recovery for personal injuries allegedly caused by cigarette
smoking are based on various theories of recovery, including negligence, gross
negligence, special duty, voluntary undertaking, strict liability, fraud,
misrepresentation, design defect, failure to warn, breach of express and implied
warranties, conspiracy, aiding and abetting, concert of action, unjust
enrichment, common law public nuisance, indemnity, market share liability, and
violations of deceptive trade practices laws, the Federal Racketeer Influenced
and Corrupt Organization Act ("RICO") and antitrust statutes. In many of these
cases, in addition to compensatory damages, plaintiffs also seek other forms of
relief including disgorgement of profits and punitive damages. Defenses raised
by defendants in these cases include lack of proximate cause, assumption of the
risk, comparative fault and/or contributory negligence, lack of design defect,
statutes of limitations, equitable defenses such as "unclean hands" and lack of
benefit, failure to state a claim and federal preemption.
The claims asserted in the health care cost recovery actions vary. In
most of these cases, plaintiffs assert the equitable claim that the tobacco
industry was "unjustly enriched" by plaintiffs' payment of health care costs
allegedly attributable to smoking and seek reimbursement of those costs. Other
claims made by some but not all plaintiffs include the equitable claim of
indemnity, common law claims of negligence, strict liability, breach of express
and implied warranty, violation of a voluntary undertaking or special duty,
fraud, negligent misrepresentation, conspiracy, public nuisance, claims under
state and federal statutes governing consumer fraud, antitrust, deceptive trade
practices and false advertising, and claims under RICO.
Settlements. On March 12, 1996, Liggett, together with the Company,
entered into an agreement to settle the Castano class action tobacco litigation,
and on March 15, 1996, Liggett, together with the Company, entered into an
agreement with the Attorneys General of West Virginia, Florida, Mississippi,
Massachusetts and Louisiana to settle certain actions brought against Liggett
and the Company by such states. Liggett and the Company, while neither
consenting to FDA jurisdiction nor waiving their objections thereto, agreed to
withdraw their objections and opposition to the proposed FDA regulations and to
phase in compliance with certain of the proposed interim FDA regulations.
Under the Castano settlement agreement, upon final court approval of
the settlement, the Castano class would be entitled to receive up to five
percent of Liggett's pretax income (income before income taxes) each year (up to
a maximum of $50,000 per year) for the next 25 years, subject to certain
reductions provided for in the agreement. The Company and Liggett have the right
to terminate the Castano settlement under certain circumstances. On May 11,
1996, the Castano Plaintiffs Legal Committee filed a motion with the United
States District Court for the Eastern District of Louisiana seeking preliminary
approval of the Castano settlement. On May 23, 1996, the Court of Appeals for
the Fifth Circuit reversed the February 17, 1995 order of the District Court
certifying the Castano suit as a nationwide class action and instructed the
District Court to dismiss the class complaint. On September 6, 1996, the Castano
plaintiffs withdrew the motion for approval of the Castano settlement.
On March 14, 1996, the Company, the Castano Plaintiffs Legal Committee
and the Castano plaintiffs entered into a letter agreement. According to the
terms of the letter agreement, for the period ending nine months from the date
of Final Approval (if granted) of the Castano settlement or, if earlier, the
completion by the Company or Liggett of a combination with any defendant in
Castano, except Philip Morris, the Castano plaintiffs and their counsel agree
not to enter into any more favorable settlement agreement with any Castano
defendant which would reduce the terms of the Castano settlement agreement. If
the Castano plaintiffs or their counsel enter into any such settlement during
this period, they shall pay the Company $250,000 within 30 days of the more
favorable agreement and offer the Company and Liggett the option to enter into a
settlement on terms at least as favorable as those included in such other
settlement. The letter agreement further provides that during the same time
period, and if the Castano settlement agreement has not been earlier terminated
by the Company in accordance with its
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terms, the Company and its affiliates will not enter into any business
transaction with any third party which would cause the termination of the
Castano settlement agreement. If the Company or its affiliates enter into any
such transaction, then the Castano plaintiffs will be entitled to receive
$250,000 within 30 days from the transacting party.
Under the Attorneys General settlement, the five settling states would
share an initial payment by Liggett of $5,000 ($1,000 of which was paid on March
22, 1996, with the balance payable over nine years and indexed and adjusted for
inflation), provided that any unpaid amount will be due 60 days after either a
default by Liggett in its payment obligations under the settlement or a merger
or other similar transaction by the Company or Liggett with another defendant in
the lawsuits. In addition, Liggett will be required to pay the states a
percentage of Liggett's pretax income (income before income taxes) each year
from the second through the twenty-fifth year. This annual percentage is 2-1/2%
of Liggett's pretax income, subject to increase to 7-1/2% depending on the
number of additional states joining the settlement. No additional states have
joined this settlement to date. All of Liggett's payments are subject to certain
reductions provided for in the agreement. Liggett has also agreed to pay to the
states $5,000 if the Company or Liggett fails to consummate a merger or other
similar transaction with another defendant in the lawsuits within three years of
the date of the settlement.
On March 20, 1997, Liggett, together with the Company, entered into a
comprehensive settlement of tobacco litigation through parallel agreements with
the Attorneys General of 17 states and with a nationwide class of individuals
and entities that allege smoking-related claims. The settlements cover all
smoking-related claims, including both addiction-based and tobacco injury claims
against Liggett and the Company, and upon court approval, the nationwide class.
As of September 30, 1997, settlements with a total of 26 Attorneys
General were reached, including the Attorneys General of Alaska, Arizona,
California, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas, Maryland,
Michigan, Minnesota, Nevada, New Jersey, New York, Oklahoma, Oregon, Texas,
Utah, Washington and Wisconsin. The Company's and Liggett's previous settlement
on March 15, 1996 with the Attorneys General of Florida, Louisiana,
Massachusetts, Mississippi and West Virginia remains in full force and effect.
Other states have either recently filed health care cost recovery actions or
indicated intentions to do so. Both Liggett and the Company will endeavor to
resolve those matters on substantially the same terms and conditions as the
prior settlements; however, there can be no assurance that any such settlements
will be completed.
As mentioned above, on March 20, 1997, Liggett, the Company and
plaintiffs filed the mandatory class settlement agreement in an action entitled
Fletcher, et al. v Brooke Group Ltd., et al., Circuit Court of Mobile County,
Alabama, where the court granted preliminary approval and preliminary
certification of the class, and on May 15, 1997, a similar mandatory class
settlement agreement was filed in an action entitled Walker, et al. v. Liggett
Group Inc., et al., United States District Court, Southern District of West
Virginia. The Walker court also granted preliminary approval and preliminary
certification of the nationwide class; however, on August 5, 1997, the court
vacated its preliminary certification of the settlement class, which decision is
currently on appeal.
In the Fletcher action, it is anticipated that class members will be
notified of the settlement and will have an opportunity to appear at a later
court hearing. Effectiveness of the mandatory settlement is conditioned on final
court approval of the settlement after a fairness hearing. There can be no
assurance as to whether, or when, court approval will be obtained.
Pursuant to the above-mentioned settlements, the Company and Liggett
agreed to cooperate fully with the Attorneys General and the nationwide class in
their respective lawsuits against the tobacco industry. The Company and Liggett
agreed to provide to these parties all relevant tobacco documents in their
possession, other than those subject to claims of joint defense privilege, and
to waive, subject to court order, certain attorney-client privileges and work
product protections regarding Liggett's smoking-related documents to the extent
Liggett and the Company can so waive these privileges and protections. The
Attorneys General and the nationwide class agreed to keep Liggett's documents
under protective order and, subject to final court approval, to limit their use
to those actions brought by parties to the
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settlement agreements. Those documents that may be subject to a joint defense
privilege with other tobacco companies will not be produced to the Attorneys
General or the nationwide class, but will be, pursuant to court order, submitted
to the appropriate court and placed under seal for possible in camera review.
Additionally, under similar protective conditions, the Company and Liggett
agreed to offer their employees for witness interviews and testimony at
deposition and trial. Pursuant to both settlement agreements, Liggett also
agreed to place an additional warning on its cigarette packaging stating that
"smoking is addictive" and to issue a public statement, as requested by the
Attorneys General. Liggett has commenced distribution of cigarette packaging
which displays the new warning label.
Under the terms of the new settlement agreements, Liggett will pay on
an annual basis 25% of its pretax income for the next 25 years into a settlement
fund, commencing with the first full fiscal year starting after the date of the
agreements. Monies collected in the settlement fund will be overseen by a
court-appointed committee and utilized to compensate state health care programs
and settlement class members and to provide counter-market advertising. Liggett
agreed to phase in compliance with certain proposed FDA regulations regarding
smoking by children and adolescents, including a prohibition on the use of
cartoon characters in tobacco advertising and limitations on the use of
promotional materials and distribution of sample packages where minors are
present.
Under the recent settlement agreements, any other tobacco company
defendant, except Philip Morris, merging or combining with Liggett or the
Company, prior to the fourth anniversary of the settlements, would receive
certain settlement benefits, including limitations on potential liability for
affiliates not engaged in domestic tobacco operations and a waiver of any
obligation to post a bond to appeal any future adverse judgment. In addition,
within 120 days following any such combination, Liggett would be required to pay
the settlement fund $25,000. The settling Attorneys General and the nationwide
class agreed not to seek an injunction preventing a defendant tobacco company
combining with Liggett or the Company from spinning-off any of its affiliates
which are not engaged in the domestic tobacco business.
The Company and Liggett are also entitled to certain most favored
nation treatment in the event any settling Attorney General reaches a settlement
with any other defendant tobacco company. In addition, in the event of a
"global" tobacco settlement enacted through Federal legislation or otherwise,
the settling Attorneys General and tobacco plaintiffs agreed to use their "best
efforts" to ensure that the Company and Liggett's liability under such a plan
should be no more onerous than under these new settlements.
At December 31, 1995, the Company had accrued approximately $4,000 for
the present value of the fixed payments under the initial Attorneys General
settlement and no additional amounts have been accrued with respect to the
recent settlements discussed above. The Company cannot quantify the future costs
of the settlements at this time as the amount Liggett must pay is based, in
part, on future operating results. Possible future payments based on a
percentage of pretax income, and other contingent payments based on the
occurrence of a business combination, will be expensed when considered probable.
See the discussions of the tobacco litigation settlements appearing in Note 11
to the Company's Consolidated Financial Statements.
Other Matters. On June 20, 1997, Philip Morris, RJR, B&W, Lorillard and
the United States Tobacco Company, along with the Attorneys General for the
States of Arizona, Connecticut, Florida, Mississippi, New York and Washington
and the Castano Plaintiffs' Litigation Committee executed a Memorandum of
Understanding to support the adoption of federal legislation and necessary
ancillary undertakings, incorporating the features described in a proposed
resolution. The proposed resolution mandates a total reformation and
restructuring of how tobacco products are manufactured, marketed and distributed
in the United States. The proposals are currently being reviewed by the White
House, Congress and various public interest groups. Separately, the other
tobacco companies negotiated settlements of the Attorneys General health care
cost recovery actions in Mississippi and Florida. Management is unable to
predict the ultimate effect, if any, of the enactment of legislation adopting
the proposed resolution. Management is also unable to predict the ultimate
content of any such legislation. However, adoption of any such legislation could
have a material adverse effect on the business of the Company and Liggett.
In a speech on September 17, 1997, President Clinton called for federal
legislation that, among other things, would raise cigarette prices by up to
$1.50 per pack. In November 1997, several bills were introduced in the Senate
that purport to propose legislation along these lines. Management is unable to
predict the ultimate content of any such legislation; however, adoption of any
such legislation could have a material adverse effect on the business of the
Company and Liggett.
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RESULTS OF OPERATIONS
Three Months Ended September 30, 1997 Compared to Three Months Ended September
30, 1996.
Revenues. Total revenues were $100,308 for the three months ended
September 30, 1997 compared to $114,635 for the three months ended September 30,
1996. This 12.5% decrease in revenues was primarily due to a $21,757 or 21.5%
decrease in revenues at Liggett reflecting a 29.6% decrease in Liggett's overall
unit sales volume, partially offset by an increase in tobacco revenues at
Liggett-Ducat of $8,100 or 63.1% over the same period in 1996 and an increase of
22.8% in overall unit sales volume. (See also "Recent Developments in the
Cigarette Industry-Pricing Activity" for a discussion of the March and September
1997 domestic price increases). The decline in overall unit sales volume of
29.6% at Liggett was comprised of declines within the premium segment of 18.6%
and discount segment (which includes generic, control label and branded discount
products) of 28.8%. The decline in premium and discount unit sales volume was
due to certain competitors' continuing leveraged rebate programs tied to their
products and increased promotional activity by certain other manufacturers. The
increase in tobacco revenues at Liggett-Ducat is attributable to increased unit
sales volume of 22.8% and price increases. The increase in tobacco revenues at
Liggett-Ducat is offset by a decline in real estate revenues of $668 due to the
sale of the BML Shares.
Gross Profit. Gross profit was $47,263 for the three months ended
September 30, 1997 compared to $56,274 for the three months ended September 30,
1996, a decrease of $9,011 when compared to the same period last year, due
primarily to the decline in unit sales volume at Liggett discussed above.
Overall, the Company's gross profit as a percentage of revenues decreased 2.0%
when compared to the same period in the prior year. Liggett's gross profit as a
percentage of revenues (excluding federal excise taxes) for the period decreased
to 72.2% compared to 74.0% in the same period in the prior year. This decrease
is the result of increased tobacco costs due to a reduction in the average
discount available to Liggett from leaf tobacco dealers on tobacco purchased
under prior years' purchase commitments, partially offset by the March and
September 1997 list price increases discussed above. See "Recent Developments in
the Cigarette Industry". Gross profit at Liggett-Ducat increased $3,712 over the
prior year due to increased sales volume and cigarette price increases.
Expenses. Selling, general and administrative expenses were $40,498 for
the three months ended September 30, 1997 compared to $55,326 for the same
period last year. The decrease of $14,828 is due primarily to a decrease in
expenses at Liggett of approximately $13,300 which include lower promotion,
marketing and administrative expenses as well as lower charges for restructuring
partially offset by higher legal expenses at Liggett and a decrease of
approximately $900 in operating expenses at BOL due to the sale of BML Shares in
January 1997.
Other Income (Expense). Interest expense was $15,791 for the three
months ended September 30, 1997 compared to $15,254 for the same period last
year.
Equity in earnings of affiliate was a loss of $7,090 for the three
months ended September 30, 1997 compared to a loss of $4,618 for the three
months ended September 30, 1996 and relates primarily to losses at New Valley.
Nine Months Ended September 30, 1997 Compared to Nine Months Ended September 30,
1996.
Revenues. Total revenues were $276,906 for the nine months ended
September 30, 1997 compared to $330,364 for the nine months ended September 30,
1996. This 16.2% decrease in revenues was primarily due to a $69,008 or 23.6%
decrease in revenues at Liggett reflecting a 30.8% decrease in Liggett's overall
unit sales volume, partially offset by an increase of $19,874 or 60.2% over the
same period in 1996 in tobacco revenues and an increase of 24.1% in overall unit
sales volume at Liggett-Ducat. The decline in overall units sales volume at
Liggett was comprised of declines within the premium segment of 22.7% and
discount segment (which includes generic, control label and branded discount
products) of 30.0%. The decline in premium and discount unit sales volume was
due to certain competitors' continuing
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leveraged rebate programs tied to their products and increased promotional
activity by certain other manufacturers. Liggett has had two price increases
this year as compared with one price increase in 1996 and Liggett-Ducat has also
experienced price increases. The increase in tobacco revenues at Liggett-Ducat
is offset by a decline in real estate rental revenues of $1,783 due to the sale
of the BML Shares.
Gross Profit. Gross profit was $131,065 for the nine months ended
September 30, 1997 compared to $161,433 for the nine months ended September 30,
1996, a decrease of $30,368 when compared to the same period last year, due
primarily to the decline in unit sales volume at Liggett discussed above.
Overall, the Company's gross profit as a percentage of revenues decreased 1.5%
when compared to the same period in the prior year. Liggett's gross profit as a
percentage of revenues (excluding federal excise taxes) for the period decreased
to 72.0% compared to 73.3% in the same period in the prior year. This decrease
is the result of increased tobacco costs due to a reduction in the average
discount available to Liggett from leaf tobacco dealers on tobacco purchased
under prior years' purchase commitments, partially offset by the March and
September 1997 list price increases. See "Recent Developments in the Cigarette
Industry".
Expenses. Selling, general and administrative expenses were $117,535
for the nine months ended September 30, 1997 compared to $158,482 for the same
period last year. The decrease of $40,947 is due primarily to lower promotion,
marketing and administrative expenses at Liggett caused by the decline in unit
sales volume discussed above partially offset by restructuring charges of
$1,926, as compared with restructuring charges of $1,180 in the same period in
the prior year, and higher legal expenses at Liggett.
Other Income (Expense). Interest expense was $46,757 for the nine
months ended September 30, 1997 compared to $45,488 for the same period last
year. The increase is due to additional interest expense at corporate
headquarters and higher outstanding balances under Liggett's Facility partially
offset by the redemption of $7,500 Liggett Series B Notes in February 1997.
Equity in earnings of affiliate was a loss of $21,488 for the nine
months ended September 30, 1997 compared to a loss of $7,152 for the nine months
ended September 30, 1996 and relates to losses at New Valley and the decline in
market value of the Class A Preferred Shares.
Interest expense and loss in equity of affiliate were offset by the gain
on sale of assets, which includes the sale of the BML Shares and surplus realty
at Liggett, and proceeds from a legal settlement of $4,125. See Notes 3 and 12
to the Company's Consolidated Financial Statements.
CAPITAL RESOURCES AND LIQUIDITY
Net cash and cash equivalents increased $420 and decreased $1,267 for
the nine months ended September 30, 1997 and 1996, respectively. Net cash used
in operations for the nine months ended September 30, 1997 was $30,511 compared
to net cash used in operations of $22,000 for the comparable period of 1996,
primarily due to net losses of $23,324 and $40,404, respectively. Such losses
included interest payments of approximately $41,000 in 1997 as compared with
$53,000 in 1996. In addition, there was an increase in receivables from
affiliates of $28,190 resulting from the sale of the BML Shares to New Valley, a
decrease in accounts payable and other accrued liabilities of $26,058. These
items were offset by a decrease in trade receivables and inventories at Liggett
due to declining sales volume, and non-cash items including equity in loss of
affiliate of approximately $22,000 and the impact of the deferred gain on the
sale of the BML Shares of approximately $22,000.
Cash provided by investing activities of $33,234 for the period ended
September 30, 1997 includes principally cash of $43,000 received in the sale of
the BML Shares to New Valley and net cash received in the sale of certain of
Liggett's surplus realty to Blue Devil Ventures. Cash received was offset by
capital expenditures of $9,857, principally at BOL. Capital expenditures include
costs incurred in the development of the new Russian cigarette factory and
equipment purchases and $1,282 in costs for equipment modernization at Liggett.
Cash used in investing activities of $8,235 for the nine months ended September
30, 1996 includes capital expenditures of approximately $24,047, principally for
real estate development at BOL and for costs of $2,983 for equipment
modernization at Liggett. Capital expenditures in 1996 were
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offset by dividends received on the New Valley Class A Preferred Shares of
$24,733 or $40.00 per share and proceeds from the sale of certain surplus realty
at Liggett and the sale of assets of COM Products Inc.
Cash used in financing activities was $2,303 for the nine months ended
September 30, 1997 compared to cash provided of $12,498 for the same period in
1996. Proceeds from financing activities of $5,198 primarily include proceeds at
BOL from credit lines and net borrowings under Liggett's Facility of $6,941.
These proceeds were offset by repayments on credit lines and on debt including
principally the required repurchase of $7,500 face amount of the Liggett Notes
on February 1, 1997 at a net gain of $2,963. Distributions on common stock
include distributions declared in the fourth quarter 1996 which were paid in
January 1997 and distributions declared and paid in March, June and September
1997. Proceeds from debt in the same period in 1996 include the private
placement of BGLS' Series A Notes (later exchanged for Series B Notes) for net
cash proceeds of $6,065, borrowings by BOL for real estate development of
$12,400 and borrowings of $9,500 by Liggett and BOL under their revolving credit
facilities. These transactions were primarily offset by the redemption for
approximately $6,237 of BGLS' 16.125% Senior Subordinated Reset Notes including
premium and accrued interest thereon, and distributions to the Company's
shareholders of $4,162.
Liggett. Liggett had a net capital deficiency of $180,011 as of September
30, 1997, is highly leveraged and has substantial near-term debt service
requirements. Due to the many risks and uncertainties associated with the
cigarette industry and the impact of recent tobacco litigation settlements,
there can be no assurance that Liggett will be able to meet its future earnings
or cash flow goals. Consequently, Liggett could be in violation of certain debt
covenants, and if its lenders were to exercise acceleration rights under the
Facility or the Liggett Notes indenture, or refuse to lend under the Facility,
Liggett would not be able to satisfy such demands or its working capital
requirements.
Further, the Liggett Notes require a mandatory principal redemption of
$37,500 on February 1, 1998 and a payment at maturity on February 1, 1999 of
$107,400. Based on Liggett's net loss for 1996 and anticipated 1997 operating
results, Liggett does not anticipate it will be able to generate sufficient cash
from operations to make such payments. While Liggett has engaged in negotiations
with its note holders to restructure the terms of the Liggett Notes, there are
no commitments to restructure the Liggett Notes at this time, and no assurances
can be given in this regard. In conjunction with these discussions, the Company
has also engaged in negotiations with the principal holders of the BGLS Notes
with respect to certain related modifications to the terms of such debt. During
such negotiations, both BGLS and Liggett postponed making the interest payments
of approximately $18,338 for the BGLS Notes due on July 31, 1997 and
approximately $9,700 for the Liggett Notes due on August 1, 1997. On August 29,
1997, Liggett's Facility was amended to permit Liggett to borrow an additional
$6,000 which was used on that date in making the interest payment of $9,700 due
on August 1, 1997 to the Liggett note holders. BGLS guaranteed the additional
$6,000 advance under the Facility and collateralized the guarantee with $6,000
in cash, deposited with Liggett's lenders.
If Liggett is unable to restructure the terms of the Liggett Notes, or
otherwise make all payments thereon, substantially all of Liggett's long-term
debt and the Facility would be in default and holders of such debt could
accelerate its maturity. In such event, Liggett may be forced to seek protection
from creditors under applicable laws. These matters raise substantial doubt
about Liggett meeting its liquidity needs and its ability to continue as a going
concern.
On March 8, 1994, Liggett entered into the Facility under which it can
borrow up to $40,000 (depending on the amount of eligible inventory and
receivables as determined by the lenders) from a syndicate of commercial
lenders. At September 30, 1997, $31,214 was outstanding and $2,809 was available
under the Facility based on eligible collateral. The Facility is collateralized
by all inventories and receivables of Liggett. Borrowings under the Facility are
charged interest at a rate equal to 1.5% above Philadelphia National Bank's (the
indirect parent of Congress Financial Corporation, the lead lender) prime rate.
Liggett's interest rate is currently 10.0%. The Facility contains certain
financial covenants similar to those contained in the Liggett Notes Indenture,
including restrictions on Liggett's ability to declare or pay cash dividends,
incur additional debt, grant liens and enter into any new agreements with
affiliates, among others. In addition, the Facility currently imposes
requirements with respect to Liggett's adjusted net worth
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(not to fall below a deficit of $180,000 as computed in accordance with the
agreement, this computation is currently $173,602) and working capital (not to
fall below a deficit of $12,000 as computed in accordance with the agreement,
this computation is currently $3,492).
During the first quarter of 1997, Liggett violated the working capital
covenant contained in the Facility as a result of the 1998 mandatory redemption
payment on the Liggett Notes becoming due within one year. On March 19, 1997,
the lead lender agreed to waive this covenant default, and the Facility was
amended as follows: (i) the working capital definition was changed to exclude
the Liggett Notes; (ii) the maximum permitted working capital deficit, as
defined, was reduced to $12,000 (as computed in accordance with the agreement);
(iii) the maximum permitted adjusted net worth deficit, as defined, was
increased to $180,000 (as computed in accordance with the agreement); and (iv)
the permitted advance rates under the Facility for eligible inventory were
reduced by five percent.
In November 1997, the Facility was extended until March 8, 1999. The
balance on the Facility, $31,214, was reclassified from current to long-term
debt as of September 30, 1997.
In February 1997, Liggett purchased $7,500 of Series B Notes using
Facility availability and credited such Notes against the 1997 mandatory
redemption requirement. Liggett recorded a net gain of $2,963 for this
transaction in the first quarter, 1997. BGLS or its affiliates may, from time to
time, based on current market conditions, purchase Liggett Notes in the open
market or in privately negotiated transactions. Current maturities of the
Liggett Notes of $37,500 contribute substantially to Liggett's working capital
deficit of $47,292 at September 30, 1997.
Liggett (and, in certain cases, the Company) and other United States
cigarette manufacturers have been named as defendants in a number of direct and
third-party actions (and purported class actions) predicated on the theory that
they should be liable for damages from cancer and other adverse health effects
alleged to have been caused by cigarette smoking or by exposure to so-called
secondary smoke (environmental tobacco smoke) from cigarettes. As new cases are
commenced, the costs associated with defending such cases and the risk attendant
to the inherent unpredictability of litigation continue. Liggett had been
receiving certain assistance from others in the industry in defraying the costs
and other burdens incurred in the defense of smoking and health litigation and
related proceedings, but these benefits have ended. The future financial impact
on the Company of the termination of this assistance and the effects of the
tobacco litigation settlements discussed above is not quantifiable at this time.
The Company believes, and has been so advised by counsel handling the
respective cases, that the Company and Liggett have a number of valid defenses
to the claim or claims asserted against them. Litigation is subject to many
uncertainties, and it is possible that some of these actions could be decided
unfavorably. An unfavorable outcome of a pending smoking and health case could
encourage the commencement of additional similar litigation. Recently, there
have been a number of adverse regulatory, political and other developments
concerning cigarette smoking and the tobacco industry, including the
commencement of the purported class actions referred to above. These
developments generally receive widespread media attention. Neither the Company
nor Liggett is able to evaluate the effect of these developing matters on
pending litigation or the possible commencement of additional litigation.
The Company is unable to make a meaningful estimate of the amount or
range of loss that could result from an unfavorable outcome of the cases pending
against the Company and Liggett. It is possible that the Company's consolidated
financial position, results of operations or cash flows could be materially
affected by an ultimate unfavorable outcome in any such pending litigation.
BGLS. At September 30, 1997, BGLS' long-term debt was approximately
$233,000. In connection with the interest payment BGLS made on August 29, 1997,
the Standstill Agreement was reached with the
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principal holders of BGLS debt on August 28, 1997, as amended, and interest was
paid to other BGLS note holders in the amount of $3,039 on August 29, 1997. (See
"Recent Developments" and Liggett discussion above).
BOL. As discussed in "Recent Developments," on January 31, 1997, BOL
sold its 99.1% interest in BML to New Valley for $55,000. The purchase price
paid was $21,500 in cash and a 9% promissory note of $33,500, of which $21,500
was paid during the second quarter 1997. The remaining balance of $12,000,
subsequently reduced to $8,500, is due on or before December 31, 1997.
In October 1995, Liggett-Ducat entered into a loan agreement with
Vneshtorgbank, Moscow, Russia, to borrow up to $20,400 to fund real estate
development. Interest on the note is based on the London Interbank Offered Rate
plus 10%. The Company had guaranteed the payment of the note. In December 1996,
the loan was assigned by Liggett-Ducat to BML. On January 31, 1997, New Valley
purchased BOL's 99.1% interest in BML and indemnified the Company and its
subsidiaries with respect to the loan. BML paid the balance of the loan in full
during the third quarter, 1997.
Liggett-Ducat is building a new cigarette factory on the outskirts of
Moscow. The new factory, which will utilize Western cigarette making technology
and have a capacity of 30 billion units per year, will produce American and
international blend cigarettes, as well as traditional Russian cigarettes.
Construction has begun, and management is actively pursuing various potential
financing alternatives that would permit the new factory to be operational by
the end of 1998, although no assurance can be given that such financing can be
obtained on satisfactory terms.
In connection with the new cigarette factory, BOL has entered into
equipment purchases of approximately $28,000, of which $23,000 will be financed
over 5 years beginning in 1998. The Company is a guarantor of one of the
purchases for which the remaining obligation is $12,750.
The Company. As a result of the 1995 debt exchange offer, the
redemption of the Reset Notes in 1996, the sale of the BML Shares to New Valley
in January 1997, the redemption of $7,500 of the Liggett Notes on February 1,
1997 and the extension of the Liggett Facility through March 8, 1999, the
Company decreased its scheduled near-term debt maturities to $38,245 due in the
year 1998; at September 30, 1997, $37,500 of this debt relates to Liggett. In
addition, Liggett has a payment due at maturity of the Liggett Notes on February
1, 1999 of $107,400. The BGLS Notes Indenture limits the amount of restricted
payments BGLS is permitted to make to the Company during the calendar year. At
September 30, 1997, the remaining amount available through December 31, 1997 in
the Restricted Payment Basket related to BGLS' payment of dividends to the
Company (as defined by the BGLS Notes Indenture) is $6,443. In March and June
1997, the Company provided for its quarterly dividends with proceeds from the
legal settlement received in January 1997. Company expenditures (exclusive of
Liggett and Liggett-Ducat) in 1997 for current operations include debt service
originally estimated at $36,800 on which payments of $21,377 have been made. The
remaining balance of $15,340 is the subject of the Standstill Agreement with the
principal holders of the BGLS Notes discussed above and is due upon 20 days'
notice by such holders but in any event by December 10, 1997. Additional
expenditures include dividends on the Company's shares (currently at an annual
rate of approximately $5,500) and corporate expense. The Company anticipates
funding current operations with the remaining proceeds from the sale of BML,
management fees and other payments from subsidiaries of approximately $5,000.
The Company expects to finance its long-term growth, working capital
requirements, capital expenditures and debt service requirements through a
combination of cash provided from operations, proceeds from the sale of certain
assets, additional public or private debt and/or equity financing and
distributions from New Valley. New Valley may acquire or seek to acquire
additional operating businesses through merger, purchase of assets, stock
acquisition or other means, or to make other investments, which may limit its
ability to make such distributions.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The Company and its representatives may from time to time make oral or
written "forward-looking statements" within the meaning of the Private
Securities Reform Act of 1995 (the "Reform Act"), including any
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<PAGE> 38
statements that may be contained in the foregoing discussion in "Management's
Discussion and Analysis of Financial Condition and Results of Operations", in
this report and in other filings with the Securities and Exchange Commission and
in its reports to shareholders, which reflect management's current views with
respect to future events and financial performance. These forward-looking
statements are subject to certain risks and uncertainties and, in connection
with the "safe-harbor" provisions of the Reform Act, the Company is hereby
identifying important factors that could cause actual results to differ
materially from those contained in any forward-looking statement made by or on
behalf of the Company. Liggett continues to be subject to risk factors endemic
to the domestic tobacco industry including, without limitation, health concerns
relating to the use of tobacco products and exposure to ETS, legislation,
including tax increases, governmental regulation, privately imposed smoking
restrictions, governmental and grand jury investigations and litigation. Each of
the Company's operating subsidiaries, namely Liggett and Liggett-Ducat, are
subject to intense competition, changes in consumer preferences, the effects of
changing prices for its raw materials and local economic conditions.
Furthermore, the performance of Liggett-Ducat's cigarette operations in Russia
are affected by uncertainties in Russia which include, among others, political
or diplomatic developments, regional tensions, currency repatriation
restrictions, foreign exchange fluctuations, inflation, and an undeveloped
system of commercial laws and legislative reform relating to foreign ownership
in Russia. In addition, the Company has a high degree of leverage and
substantial near-term debt service requirements, as well as a net worth
deficiency and recent losses from continuing operations. See "Capital Resources
and Liquidity" for a discussion of certain matters which raise substantial doubt
about Liggett meeting its liquidity needs and its ability to continue as a going
concern. The Indenture for the BGLS Notes provides for, among other things, the
restriction of certain affiliated transactions between the Company and its
affiliates, as well as for certain restrictions on the use of future
distributions received from New Valley. Due to such uncertainties and risks,
readers are cautioned not to place undue reliance on such forward-looking
statements, which speak only as of the date on which such statements are made.
The Company does not undertake to update any forward-looking statement that may
be made from time to time by or on behalf of the Company.
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<PAGE> 39
PART II
OTHER INFORMATION
Item 1. Legal Proceedings
Reference is made to information entitled "Contingencies" in Note 11
to the Consolidated Financial Statements of Brooke Group Ltd. and
BGLS Inc. (collectively, the "Companies") included elsewhere in this
report on Form 10-Q.
Item 3. Defaults Upon Senior Securities
As of September 30, 1997, New Valley Corporation, the Companies'
affiliate, had the following respective accrued and unpaid dividend
arrearages on its 1,071,462 outstanding shares of $15.00 Class A
Increasing Rate Cumulative Senior Preferred Shares ($100 Liquidation
Value), $.01 par value per share (the "Class A Shares") and
2,790,776 outstanding shares of $3.00 Class B Cumulative Convertible
Preferred Shares ($25 Liquidation Value), $.10 par value per share
(the "Class B Shares"): (i) $150.9 million or $140.81 per Class A
Share; and (ii) $133.2 million or $47.75 per Class B Share.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
<TABLE>
<S> <C>
10.1 Settlement Agreement dated September 15, 1997 by and
among the State of Nevada and Brooke Group Ltd. and
Liggett Group Inc.
10.2 Settlement Agreement dated June 9, 1997 by and among
the State of Oregon and Brooke Group Ltd. and
Liggett Group Inc.
10.3 Standstill Agreement and Consent ("Standstill
Agreement"), dated as of August 28, 1997, among BGLS
Inc., AIF II, L.P., Artemis America Partnership and
Tortoise Corp. (incorporated by reference to exhibit
99.2 in the Companies' Form 8-K dated August 29,
1997.
10.4 Amendment to Standstill Agreement dated November 13,
1997.
27.1 Brooke Group Ltd.'s Financial Data Schedule (for SEC
use only)
27.2 BGLS Inc.'s Financial Data Schedule (for SEC use
only)
99.1 Liggett Group Inc.'s Interim Consolidated Financial
Statements for the quarterly period ended September
30, 1997.
99.2 New Valley Corporation's Interim Consolidated
Financial Statements for the quarterly period ended
September 30, 1997.
99.3 Brooke (Overseas) Ltd.'s Interim Consolidated
Financial Statements for the quarterly period ended
September 30, 1997.
99.4 New Valley Holdings, Inc.'s Interim Consolidated
Financial Statements for the quarterly period ended
September 30, 1997.
</TABLE>
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<PAGE> 40
(b) Reports on Form 8-K
During the third quarter of 1997, the Companies filed current
reports on Form 8-K, dated July 31, 1997 and August 29, 1997,
concerning Items 5 and 7 (no financial statements were
included therewith).
39
<PAGE> 41
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned thereunto duly authorized.
BROOKE GROUP LTD.
(REGISTRANT)
By: /s/ Joselynn D. Van Siclen
-------------------------------
Joselynn D. Van Siclen
Vice President and Chief
Financial Officer
Date: November 17, 1997
BGLS INC.
(REGISTRANT)
By: /s/ Joselynn D. Van Siclen
-------------------------------
Joselynn D. Van Siclen
Vice President and Chief
Financial Officer
Date: November 17, 1997
40
<PAGE> 1
EXHIBIT 10.1
STATE OF NEVADA SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT is entered into this 15th day of
September, 1997 by and among the State of Nevada and Brooke Group Ltd., a
Delaware corporation ("Brooke Group"), Liggett & Myers Inc., a Delaware
corporation ("Myers"), and Liggett Group, Inc., a Delaware corporation (which,
with Myers, is hereinafter referred to as "Liggett").
RECITALS
WHEREAS,
A. The State of Nevada, by and through its Attorney General
(the "Attorney General"), has brought a civil action (the "Action") against,
among others, the American Tobacco Company, Inc., BAT Industries, Plc, British
American Tobacco Company, R.J. Reynolds Tobacco Company, Brown & Williamson
Tobacco Corporation, Philip Morris, Inc., Liggett & Myers, Inc., Lorillard
Tobacco Company, Inc., and United States Tobacco Company and their various
parent and related companies ("Defendants"), asserting claims for, among other
things, expenses allegedly arising from tobacco-related matters and injunctive
relief concerning sales of cigarettes to minors.
B. Because of the importance of the agreements and
undertakings by Liggett and Brooke Group herein to the goals of the State of
Nevada, including the prosecution of the Action against non-settling defendants,
the State of Nevada has agreed to extend financial settlement terms to Liggett
and Brooke Group which will not be offered to any other Defendant, all as set
forth in this Settlement Agreement.
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<PAGE> 2
C. On March 20, 1997, seventeen States, by and through their
Attorneys General, and Liggett and Brooke Group entered into a settlement (the
"Attorneys General Settlement") of the actions brought by such States, pursuant
to which Liggett agreed to make certain payments, comply with certain proposed
regulations restricting the marketing and sale of cigarettes to minors and to
offer certain significant cooperation in connection with the prosecution of
their respective actions against the other Defendants; all in accordance with
the terms of the Attorneys General Settlement, a copy of which is annexed hereto
as Appendix A.
D. The State of Nevada and Liggett and Brooke Group wish to
provide in this Settlement Agreement for the State of Nevada to become a
Subsequent Settling State under the Attorneys General Settlement, all in
accordance with the terms of this Settlement Agreement.
E. The State of Nevada acknowledges and agrees that this
Settlement Agreement, including the cooperation provisions thereof, are
important to the prosecution of its Action against non-settling Defendants.
F. The State of Nevada and Liggett and Brooke Group recognize
and support the public interest in preventing smoking by, and preventing the
promotion of smoking to, children and adolescents.
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<PAGE> 3
G. Liggett and Brooke Group have denied, and continue to deny
any wrongdoing or any legal liability of any kind in all of the above-mentioned
actions.
H. The State of Nevada recognizes and acknowledges that the
cooperation being provided for in this Settlement Agreement would be valuable to
the prosecution of claims against the tobacco industry. Further, the State of
Nevada acknowledges that the change in warning labels provided for in this
Settlement Agreement is a step towards properly informing consumers more fully
of the truth about cigarettes and the consequences of smoking, as is the
statement by Liggett also provided for herein.
NOW, THEREFORE, in consideration of the foregoing and of the
promises and covenants set forth in this Agreement, the undersigned Attorney
General, on behalf of the State of Nevada, and Liggett and Brooke Group hereby
stipulate and agree that any and all smoking-related claims, including the
Action, of the State of Nevada shall be settled as against Liggett and Brooke
Group all on the terms contained herein, as follows:
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<PAGE> 4
1. Definitions.
Capitalized terms used herein shall have the meanings assigned
to them in Section 1 of the Attorneys General Settlement, except as set forth
below or defined elsewhere in this Agreement:
"Action" means the action entitled State of Nevada v. Philip
Morris Inc., et al., Nev. Dist., 2nd Jud. Dist. (Washoe Cty., Nevada).
"Agreement" means this Settlement Agreement.
"Attorney General Actions" means those actions settled
pursuant to the Attorneys General Settlement or any similar action commenced by
or on behalf of a State against the Defendants.
"Attorneys General Settlement" means the settlement agreement
entered into on March 20, 1997 by seventeen Settling States and Settling
Defendants, a copy of which is annexed hereto as Exhibit A.
"Parties" means the State of Nevada and Brooke Group and
Liggett.
"Settling States" means the States listed in Appendix A to the
Attorneys General Settlement and Subsequent Settling States.
2. Settlement Purposes Only.
Section 2 of the Attorneys General Settlement is incorporated
herein by reference.
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<PAGE> 5
3. Parties.
3.1. Section 3.1 of the Attorneys General Settlement is
incorporated herein by reference.
3.2. Section 3.2 of the Attorneys General Settlement is
incorporated herein by reference.
4. Public Statement; Cooperation; Advertising Limitations.
Section 4 of the Attorneys General Settlement is incorporated herein by
reference, except as modified below.
4.1 Promptly after execution of this Settlement Agreement,
Liggett shall, by and through its Director, Bennett S. LeBow, issue in the State
of Nevada a public statement substantially in the following form and substance:
I am, and have been for a number of years, a Director of
Liggett Group Inc., a manufacturer of cigarettes. Cigarettes were identified as
a cause of lung cancer and other diseases as early as 1950. I, personally, am
not a scientist. But, like all of you, I am aware of the many reports concerning
the ill-effects of cigarette smoking. We at Liggett know and acknowledge that,
as the Surgeon General and respected medical researchers have found, cigarette
smoking causes health problems, including lung cancer, heart and vascular
disease and emphysema. We at Liggett also know and acknowledge that, as the
Surgeon General, the Food and Drug Administration and respected medical
researchers have found, nicotine is addictive.
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<PAGE> 6
Liggett will continue to engage in the legal activity of
selling cigarettes to adults, but will endeavor to ensure that these adult
smokers are aware of the health risks and addictive nature of smoking. As part
of our efforts, we will do the following:
1. In accordance with a court-approved settlement, Liggett
will set up a fund to compensate equitably those who claim to have been
injured by our products.
2. Liggett will add a prominent warning to each of our
packages of cigarettes and all of our cigarette advertising stating
that "Smoking is Addictive".
3. Liggett supports and will not challenge Food and Drug
Administration regulations concerning the sale and distribution of
nicotine-containing cigarettes and smokeless tobacco products to
children and adolescents. Accordingly, Liggett has agreed to comply
with many of these regulations even before they apply to the tobacco
industry generally.
4. Liggett has instructed its advertising and marketing people
to scrupulously avoid any and all advertising or marketing which would
appeal to children or adolescents. Liggett acknowledges that the
tobacco industry markets to "youth," which means those under 18 years
of age, and not just those 18-24 years of age. Liggett condemns this
practice and will not market to children. Liggett agrees that if it
sees industry advertisements which in its
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<PAGE> 7
view are aimed at children, it will bring this to the attention of the
Attorney General of the State of Nevada.
5. In accordance with our settlement agreements, Liggett
agrees to fully cooperate with the State of Nevada in connection with
contemplated lawsuits against the other tobacco companies. To that end,
Liggett will make available to the State of Nevada all relevant
documents and information, including documents subject to Liggett's own
attorney-client privileges and work product protections, and will
assist the State of Nevada in obtaining prompt court adjudication of
the rest of the industry's joint privilege claims.
4.2 Section 4.2 of the Attorneys General Settlement is incorporated
herein by reference.
4.3.1. Upon execution of this Agreement, each Settling
Defendant shall:
(1) cooperate with the Attorney General of the State
of Nevada in that such Settling Defendant will take no steps
to impede or frustrate civil investigations into, or civil
prosecutions of, any of the Non-settling Tobacco Companies, so
as to secure the just, speedy and inexpensive determination of
all such smoking-related claims against said non-settling
persons and entities;
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<PAGE> 8
(2) cooperate in and facilitate reasonable non-party
discovery from Settling Defendants in connection with the
Action;
(3) actively assist the Attorney General of the State
of Nevada in identifying and locating any and all persons
known to such Settling Defendant to have documents or
information that is discoverable in such proceedings, to
actively assist said counsel in interviewing and obtaining
documents and information from all such persons, and to
encourage such person to cooperate with the Attorney General;
and shall actively assist the Attorney General in interpreting
documents relating to Attorney General Actions against
Non-settling Tobacco Companies; and
(4) insofar as such Settling Defendant has or obtains
any material information concerning any fraudulent or illegal
conduct on the part of any parties, including Non-settling
Tobacco Companies, their agents, or their co-defendants
designed to frustrate or defeat the claims of the State of
Nevada against such parties, companies, agents or
co-defendants, or which have the effect of unlawfully
suppressing evidence relevant to smoking claims, disclose such
information to the appropriate judicial and regulatory
agencies.
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<PAGE> 9
4.3.2. Subject to, and promptly after, the entry of a
Protective Order or a Stipulation Regarding Liggett Documents by the court in
which the Action is pending, each Settling Defendant shall:
(1) promptly provide all documents and information
that are relevant to the subject matter of the Action or which
are likely to lead to admissible evidence in connection with
claims asserted in the Action, subject to the provisions of
Section 4.3.2(2) hereof;
(2) waive any and all applicable attorney-client
privileges and work product protections with respect to such
documents and information. Such waiver shall not extend to (a)
documents and information not relevant to the subject matter
of the Action or not likely to lead to admissible evidence in
connection with such an action or (b) documents subject to a
joint defense or other privilege or protection which Settling
Defendants cannot legally waive unilaterally, except that the
waiver by the Settling Defendant shall apply, to the extent
permitted by law, to its own joint defenses or other
privileges. To the extent that a Settling Defendant has a good
faith belief, or one or more Non-settling Tobacco Companies
claims, that documents to be provided pursuant to Section
4.3.2(1) hereof may be subject to a joint defense or other
privilege (or a
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<PAGE> 10
claim of such privilege) of one or more of the Non-settling
Tobacco Companies, such documents shall be deposited under
seal for in camera inspection by the court in which the Action
is pending, together with a statement to such court that such
Settling Defendant has concerns as to whether some or all of
such documents should be protected from discovery, and the
Parties agree to request that such court shall retain
jurisdiction to resolve that issue. Liggett will participate
in proceedings, including by way of court appearances or
declarations, concerning issues of whether such documents are
discoverable;
(3) offer their employees, and any and all other
individuals over whom they have control, and help locate
former employees, to provide witness interviews of such
employees and to testify, in depositions and at trial; it
being understood and agreed that Liggett will waive and hereby
does waive any and all applicable confidentiality agreements
to the extent such confidentiality agreements would restrict
testimony under this Agreement, if any, to which such
witnesses may be subject; and
(4) demand from its past or current national legal
counsel all documents and information obtained by them in the
course of representation of any Settling Defendant which in
any way relates to the cooperation
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<PAGE> 11
required in paragraphs 4.3.1(1) - 4.3.2(3) above, which should
be provided to the Settling States as provided under this
paragraph.
4.3.3. Section 4.3.3 of the Attorneys General
Settlement is incorporated herein by reference.
4.3.4. Section 4.3.4 of the Attorneys General
Settlement is incorporated herein by reference.
4.4. Section 4.4 of the Attorneys General Settlement is
incorporated herein by reference.
4.5. Section 4.5 of the Attorneys General Settlement and
subparts 4.5.1, 4.5.2, 4.5.3, and 4.5.4 thereof are incorporated herein by
reference.
4.6. Section 4.6 of the Attorneys General Settlement is
incorporated herein by reference.
4.7. Section 4.7 of the Attorneys General Settlement is
incorporated herein by reference.
4.8. Section 4.8 of the Attorneys General Settlement is
incorporated herein by reference.
4.9. Section 4.9 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 12
5. Global Settlement.
5.1. Section 5.1 of the Attorneys General Settlement is
incorporated herein by reference.
5.2. Section 5.2 of the Attorneys General Settlement is
incorporated herein by reference.
5.3. Subject to and in accordance with applicable law, in the
event of a Global Settlement which does not impose financial terms, financial
obligations or financial conditions as to Brooke Group and Liggett which are
more onerous on, or less favorable to, Brooke Group and Liggett than those of
this Settlement Agreement (at least to the extent Liggett's Market Share does
not exceed 3%; such Market Share limitation being included solely for purposes
of this Section 5.3), and pursuant to which Brooke Group and Liggett receive a
limitation of liability for smoking-related claims, and any other benefits
conferred thereunder, at least to the same extent as received by the
Non-settling Tobacco Companies, Liggett agrees to abide by the provisions of
such Global Settlement that pertain to the pricing of Cigarettes.
6. Settlement Fund.
6.1. Section 6.1 of the Attorneys General Settlement is
incorporated herein by reference.
6.2. Section 6.2 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 13
6.3. Section 6.3 of the Attorneys General Settlement and
subparts 6.3.1 and 6.3.2 thereof are incorporated herein by reference.
6.4. Section 6.4 of the Attorneys General Settlement is
incorporated herein by reference.
6.5. Section 6.5 of the Attorneys General Settlement is
incorporated herein by reference.
6.6. Section 6.6 of the Attorneys General Settlement is
incorporated herein by reference.
6.7. Section 6.7 of the Attorneys General Settlement is
incorporated herein by reference.
6.8. Section 6.8 of the Attorneys General Settlement is
incorporated herein by reference.
6.9. Section 6.9 of the Attorneys General Settlement is
incorporated herein by reference.
6.10. Section 6.10 of the Attorneys General Settlement is
incorporated herein by reference.
6.11. Section 6.11 of the Attorneys General Settlement is
incorporated herein by reference.
6.12. Section 6.12 of the Attorneys General Settlement is
incorporated herein by reference.
6.13. Section 6.13 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 14
7. Release.
7.1. Section 7.1 of the Attorneys General Settlement is
incorporated herein by reference.
7.2. Section 7.2 of the Attorneys General Settlement is
incorporated herein by reference.
7.3. Section 7.3 of the Attorneys General Settlement is
incorporated herein by reference.
7.4. Section 7.4 of the Attorneys General Settlement is
incorporated herein by reference.
8. Exclusive Remedy; Dismissal of Action;
Jurisdiction of Court.
8.1. Section 8.1 of the Attorneys General Settlement is
incorporated herein by reference.
8.2. Section 8.2 of the Attorneys General Settlement is
incorporated herein by reference.
8.3. Section 8.3 of the Attorneys General Settlement is
incorporated herein by reference.
9. Term.
Section 9 of the Attorneys General Settlement is incorporated herein by
reference, except as modified below.
9.1. Section 9.1 of the Attorneys General Settlement is
incorporated herein by reference.
9.2. Section 9.2 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 15
9.3. Section 9.3 of the Attorneys General Settlement is
incorporated herein by reference.
9.4. Section 9.4 of the Attorneys General Settlement is
incorporated herein by reference.
9.5. Section 9.5 of the Attorneys General Settlement is
incorporated herein by reference.
9.6. Section 9.6 of the Attorneys General Settlement is
incorporated herein by reference.
9.7. The duration of this Agreement shall be co-extensive with
the duration of the Attorneys General Settlement. The exercise of any right
under the Attorneys General Settlement to terminate the Attorneys General
Settlement with respect to the State of Nevada shall also be a termination of
this Agreement.
10. Continuing Enforceability.
Section 10 of the Attorneys General Settlement is incorporated herein
by reference.
11. Entry of Good Faith Bar Order on Contribution and Indemnity Claims.
11.1. Section 11.1 of the Attorneys General Settlement is
incorporated herein by reference.
11.2. Section 11.2 of the Attorneys General Settlement is
incorporated herein by reference.
11.3. Section 11.3 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 16
11.4. Section 11.4 of the Attorneys General Settlement is
incorporated herein by reference.
12. Tax Status of Settlement Fund.
12.1. Section 12.1 of the Attorneys General Settlement is
incorporated herein by reference.
12.2. Section 12.2 of the Attorneys General Settlement is
incorporated herein by reference.
12.3. Section 12.3 of the Attorneys General Settlement is
incorporated herein by reference.
13. Effect of Default of Settling Defendant.
Section 13 of the Attorneys General Settlement is incorporated herein
by reference.
14. Representations and Warranties.
14.1. Section 14.1 of the Attorneys General Settlement is
incorporated herein by reference.
14.2. Section 14.2 of the Attorneys General Settlement is
incorporated herein by reference.
15. Arbitration.
Section 15 of the Attorneys General Settlement is incorporated
herein by reference.
16. Most Favored Nation.
16.1. Section 16.1 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 17
16.1.1. Section 16.1.1 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.2. Section 16.1.2 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.3. Section 16.1.3 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.4. Section 16.1.4 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.5. Section 16.1.5 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.6. Section 16.1.6 of the Attorneys General Settlement is
incorporated herein by reference.
16.2. Section 16.2 of the Attorneys General Settlement is
incorporated herein by reference.
16.3. Section 16.3 of the Attorneys General Settlement is
incorporated herein by reference.
17. Future Affiliate.
17.1. Section 17.1 of the Attorneys General Settlement is
incorporated herein by reference.
17.2. Section 17.2 of the Attorneys General Settlement and
subparts (a) and (b) thereof are incorporated herein by reference.
17.3. Section 17.3 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 18
17.4. Section 17.4 of the Attorneys General Settlement is
incorporated herein by reference.
17.5. Section 17.5 of the Attorneys General Settlement is
incorporated herein by reference.
17.6. Section 17.6 of the Attorneys General Settlement is
incorporated herein by reference.
17.7. Section 17.7 of the Attorneys General Settlement is
incorporated herein by reference.
17.8. Section 17.8 of the Attorneys General Settlement is
incorporated herein by reference.
17.9. Section 17.9 of the Attorneys General Settlement is
incorporated herein by reference.
18. Miscellaneous.
18.1. Section 18.1 of the Attorneys General Settlement is
incorporated herein by reference.
18.2. Section 18.2 of the Attorneys General Settlement is
incorporated herein by reference.
18.3. Section 18.3 of the Attorneys General Settlement is
incorporated herein by reference.
18.4. Section 18.4 of the Attorneys General Settlement is
incorporated herein by reference.
18.5. Section 18.5 of the Attorneys General Settlement is
incorporated herein by reference.
18.6. Section 18.6 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 19
18.7. Section 18.7 of the Attorneys General Settlement is
incorporated herein by reference.
18.8. Section 18.8 of the Attorneys General Settlement is
incorporated herein by reference.
18.9. Section 18.9 of the Attorneys General Settlement is
incorporated herein by reference.
18.10. Section 18.10 of the Attorneys General Settlement is
incorporated herein by reference.
18.11. Section 18.11 of the Attorneys General Settlement is
incorporated herein by reference.
18.12. Section 18.12 of the Attorneys General Settlement is
incorporated herein by reference.
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the day and date first written above.
BROOKE GROUP LTD. STATE OF Nevada
By /s/ Bennett S. LeBow By /s/ Frankie Sue Del Papa
------------------------------- --------------------------------------
Bennett S. LeBow Frankie Sue Del Papa
Attorney General
Date: 9/15/97 Date: 9/17/97
---------------------------- -----------------------------------
LIGGETT GROUP, INC.
By /s/ Bennett S. LeBow
-------------------------------
Bennett S. LeBow
Date: 9/15/97
----------------------------
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<PAGE> 1
EXHIBIT 10.2
STATE OF OREGON SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT is entered into this 9th day of June, 1997
by and among the State of Oregon and Brooke Group Ltd., a Delaware corporation
("Brooke Group"), Liggett & Myers Inc., a Delaware corporation ("Myers"), and
Liggett Group, Inc., a Delaware corporation (which, with Myers, is hereinafter
referred to as "Liggett").
RECITALS
WHEREAS,
A. The State of Oregon, by and through its Attorney General (the
"Attorney General"), contemplates bringing a civil action (a "Contemplated
Action", as defined in Section 1 hereof) against, among others, the American
Tobacco Company, Inc., BAT Industries, Plc, British American Tobacco Company,
R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, Philip
Morris, Inc., Liggett & Myers, Inc., Lorillard Tobacco Company, Inc., and United
States Tobacco Company and their various parent and related companies
("Defendants"), asserting claims for, among other things, expenses allegedly
arising from tobacco-related matters and injunctive relief concerning sales of
cigarettes to minors.
B. Because of the importance of the agreements and undertakings
by Liggett and Brooke Group herein to the goals of the State of Oregon,
including the prosecution of the Contemplated Action against other Defendants,
the State of Oregon has agreed to extend financial settlement terms to Liggett
and
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<PAGE> 2
Brooke Group which will not be offered to any other Defendant, all as set forth
in this Settlement Agreement.
C. On March 20, 1997, seventeen States, by and through their
Attorneys General, and Liggett and Brooke Group entered into a settlement (the
"Attorneys General Settlement") of the actions brought by such States, pursuant
to which Liggett agreed to make certain payments, comply with certain proposed
regulations restricting the marketing and sale of cigarettes to minors and to
offer certain significant cooperation in connection with the prosecution of
their respective actions against the other Defendants; all in accordance with
the terms of the Attorneys General Settlement, a copy of which is annexed hereto
as Appendix A.
D. The State of Oregon and Liggett and Brooke Group wish to
provide in this Settlement Agreement for the State of Oregon to become a
Subsequent Settling State under the Attorneys General Settlement, all in
accordance with the terms of this Settlement Agreement.
E. The State of Oregon acknowledges and agrees that this
Settlement Agreement, including the cooperation provisions thereof, are
important to the prosecution of its Contemplated Action against non-settling
Defendants.
F. The State of Oregon and Liggett and Brooke Group recognize and
support the public interest in preventing smoking by, and preventing the
promotion of smoking to, children and adolescents.
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G. Liggett and Brooke Group have denied, and continue to deny any
wrongdoing or any legal liability of any kind in all of the above-mentioned
actions.
H. The tobacco industry has for many years acted in concert to
seek to deny, refute or dilute warnings concerning smoking issued by the United
States Surgeon General, the Environmental Protection Agency and other respected
health authorities. Liggett and Brooke Group have determined, in entering into
agreements settling smoking-related litigation, that they will not be party to
this industry activity.
I. The State of Oregon recognizes and acknowledges that the
cooperation being provided for in this Settlement Agreement would be valuable to
the prosecution of claims against the tobacco industry. Further, the State of
Oregon acknowledges that the change in warning labels provided for in this
Settlement Agreement is a step towards properly informing consumers more fully
of the truth about cigarettes and the consequences of smoking, as is the
statement by Liggett also provided for herein.
NOW, THEREFORE, in consideration of the foregoing and of the promises
and covenants set forth in this Agreement, the undersigned Attorney General, on
behalf of the State of Oregon, and Liggett and Brooke Group hereby stipulate and
agree that any and all smoking-related claims, including any Contemplated
Action, of the State of Oregon shall be settled as against Liggett and Brooke
Group all on the terms contained herein, as follows:
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1. Definitions.
Capitalized terms used herein shall have the meanings assigned to them
in Section 1 of the Attorneys General Settlement, except as set forth below or
defined elsewhere in this Agreement:
"Agreement" means this Settlement Agreement.
"Attorneys General" means those State Attorneys General or other
parties who have brought or may bring Attorney General Actions.
"Attorney General Actions" means those actions settled pursuant to the
Attorneys General Settlement or any similar action commenced by or on behalf of
a State against the Defendants, including Contemplated Actions.
"Attorneys General Settlement" means the settlement agreement entered
into on March 20, 1997 by seventeen Settling States and Settling Defendants, a
copy of which is annexed hereto as Exhibit A.
"Contemplated Action" means an action which may be commenced by or on
behalf of the State of Oregon against Non-settling Tobacco Companies and/or
other defendants seeking relief similar to that sought in those actions listed
in Appendix A to the Attorneys General Settlement, and shall be deemed to be an
Attorney General Action under the Attorneys General Settlement.
"Potential Defendants" means Defendants, as defined in the Attorneys
General Settlement.
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"Parties" means the State of Oregon and Brooke Group and Liggett.
"Protective Order" or "Stipulation Regarding Liggett Documents" means,
with respect to privileged documents produced by a Settling Defendant in or to
the State of Oregon, an order by a Oregon court of competent jurisdiction: (a)
protecting the confidentiality of such documents; (b) providing that such
documents may be used only in an action by the State of Oregon and, to the
extent permitted by law, only under seal; (c) providing that, to the extent such
documents are or may be subject to the attorney/client privilege or the attorney
work product doctrine, such production or use of the documents does not
constitute a waiver of such privilege, doctrine or protection with respect to
any party other than the State of Oregon. The provisions of the order shall not
apply to documents claimed to be privileged but which are determined by a court
not to be privileged for reasons other than waiver due to production pursuant to
this Agreement.
"Settling Defendants" means Brooke Group and/or Liggett.
"Settling States" means the States listed in Appendix A to the
Attorneys General Settlement and Subsequent Settling States.
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2. Settlement Purposes Only.
This Agreement is for settlement purposes only, and neither the fact
of, or any provision contained in, this Agreement nor any action taken hereunder
shall constitute, be construed as, or be admissible in evidence against the
Settling Defendants as, any admission of the validity of any claim, any argument
or any fact alleged or which could be alleged by the State of Oregon as to their
standing or as to any jurisdictional, constitutional or any other legal or
factual issue in any Contemplated Action by the State of Oregon or alleged or
which could have been alleged in any other action or proceeding of any kind or
of any wrongdoing, fault, violation of law, or liability of any kind on the part
of the Settling Defendants or any admission by them of any claim or allegation
made or which could have been made in any action by the State of Oregon or in
any other action or proceeding of any kind, or as an admission by the State of
Oregon of the validity of any fact or defense asserted against them in any
Contemplated Action or in any other action or proceeding of any kind.
3. Parties.
Section 3 of the Attorneys General Settlement is incorporated herein by
reference, with the addition of Section 3.3. below.
3.1. Section 3.1 of the Attorneys General Settlement is
incorporated herein by reference.
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3.2. Section 3.2 of the Attorneys General Settlement is
incorporated herein by reference.
3.3. The Parties agree that, even though the State of Oregon
has not as of the date of this Settlement Agreement filed a Contemplated Action,
the State of Oregon is a Subsequent Settling State under the Attorneys General
Settlement, the terms and conditions of which are incorporated herein, except
as specifically modified by this Settlement Agreement because of unique
circumstances relating to the State of Oregon.
4. Public Statement; Cooperation; Advertising Limitations.
Section 4 of the Attorneys General Settlement is incorporated herein by
reference, except as modified below.
4.1 Promptly after execution of this Settlement Agreement,
Liggett shall, by and through its Director, Bennett S. LeBow, issue in the State
of Oregon a public statement substantially in the following form and substance:
I am, and have been for a number of years, a Director of
Liggett Group Inc., a manufacturer of cigarettes. Cigarettes were identified as
a cause of lung cancer and other diseases as early as 1950. I, personally, am
not a scientist. But, like all of you, I am aware of the many reports concerning
the ill-effects of cigarette smoking. We at Liggett know and acknowledge that,
as the Surgeon General and respected medical researchers have found, cigarette
smoking causes health problems, including lung cancer, heart and vascular
disease and emphysema. We at Liggett
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also know and acknowledge that, as the Surgeon General, the Food and Drug
Administration and respected medical researchers have found, nicotine is
addictive.
Liggett will continue to engage in the legal activity of
selling cigarettes to adults, but will endeavor to ensure that these adult
smokers are aware of the health risks and addictive nature of smoking. As part
of our efforts, we will do the following:
1. In accordance with a court-approved settlement,
Liggett will set up a fund to compensate equitably those who claim to
have been injured by our products.
2. Liggett will add a prominent warning to each of
our packages of cigarettes and all of our cigarette advertising stating
that "Smoking is Addictive".
3. Liggett supports and will not challenge Food and Drug
Administration regulations concerning the sale and distribution of
nicotine-containing cigarettes and smokeless tobacco products to
children and adolescents. Accordingly, Liggett has agreed to comply
with many of these regulations even before they apply to the tobacco
industry generally.
4. Liggett has instructed its advertising and marketing
people to scrupulously avoid any and all advertising or marketing which
would appeal to children or adolescents. Liggett acknowledges that the
tobacco industry markets to "youth," which means those under 18 years
of age, and not just those 18-24 years of age. Liggett condemns
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this practice and will not market to children. Liggett agrees that if
it sees industry advertisements which in its view are aimed at
children, it will bring this to the attention of the Attorney General
of the State of Oregon.
5. In accordance with our settlement agreements, Liggett
agrees to fully cooperate with the State of Oregon in connection with
contemplated lawsuits against the other tobacco companies. To that end,
Liggett will make available to the State of Oregon all relevant
documents and information, including documents subject to Liggett's own
attorney-client privileges and work product protections, and will
assist the State of Oregon in obtaining prompt court adjudication of
the rest of the industry's joint privilege claims.
4.2 Section 4.2 of the Attorneys General Settlement is
incorporated herein by reference.
4.3.1. Upon execution of this Agreement, each Settling
Defendant shall:
(1) cooperate with the Attorney General of the
State of Oregon in that such Settling Defendant will take no
steps to impede or frustrate any investigation or preparation
leading to the filing of a Contemplated Action or any other
civil investigations into, or civil prosecutions of, any of
the Potential Defendants, so as to secure the just, speedy and
inexpensive
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determination of all such smoking-related claims against said
non-settling persons and entities;
(2) cooperate in and facilitate reasonable
non-party discovery from Settling Defendants in connection
with a Contemplated Action;
(3) actively assist the Attorney General of the
State of Oregon in identifying and locating any and all
persons known to such Settling Defendant to have documents or
information that is discoverable in such proceedings, to
actively assist said counsel in interviewing and obtaining
documents and information from all such persons, and to
encourage such person to cooperate with the Attorney General;
and shall actively assist the Attorney General in interpreting
documents relating to a Contemplated Action; and
(4) insofar as such Settling Defendant has or
obtains any material information concerning any fraudulent or
illegal conduct on the part of any parties, including
Non-settling Tobacco Companies, their agents, or their
co-defendants designed to frustrate or defeat the claims of
the State of Oregon against such parties, companies, agents or
co-defendants, or which have the effect of unlawfully
suppressing evidence relevant to smoking claims, disclose such
information to the appropriate judicial and regulatory
agencies.
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4.3.2. Subject to, and promptly after, the entry of a Protective
Order or a Stipulation Regarding Liggett Documents by a Oregon court of
competent jurisdiction, each Settling Defendant shall:
(1) promptly provide all documents and
information that are relevant to the subject matter of a
Contemplated Action or which are likely to lead to admissible
evidence in connection with claims asserted in a Contemplated
Action, subject to the provisions of Section 4.3.2(2) hereof;
(2) waive any and all applicable attorney-client
privileges and work product protections with respect to such
documents and information. Such waiver shall not extend to (a)
documents and information not relevant to the subject matter
of a Contemplated Action or not likely to lead to admissible
evidence in connection with such an action or (b) documents
subject to a joint defense or other privilege or protection
which Settling Defendants cannot legally waive unilaterally,
except that the waiver by the Settling Defendant shall apply,
to the extent permitted by law, to its own joint defenses or
other privileges. To the extent that a Settling Defendant has
a good faith belief, or one or more Non-settling Tobacco
Companies claims, that documents to be provided pursuant to
Section 4.3.2(1) hereof may be subject to a joint defense or
other
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<PAGE> 12
privilege (or a claim of such privilege) of one or more of the
Non-settling Tobacco Companies, such documents shall be
deposited under seal for in camera inspection by a Oregon
court of competent jurisdiction, together with a statement to
such court that such Settling Defendant has concerns as to
whether some or all of such documents should be protected from
discovery, and the Parties agree to request that such court
shall retain jurisdiction to resolve that issue. Liggett will
participate in proceedings, including by way of court
appearances or declarations, concerning issues of whether such
documents are discoverable;
(3) offer their employees, and any and all other
individuals over whom they have control, and help locate
former employees, to provide witness interviews of such
employees and to testify, in depositions and at trial; it
being understood and agreed that Liggett will waive and hereby
does waive any and all applicable confidentiality agreements
to the extent such confidentiality agreements would restrict
testimony under this Agreement, if any, to which such
witnesses may be subject; and
(4) demand from its past or current national
legal counsel all documents and information obtained by them
in the course of representation of any Settling Defendant
which in any way relates to the cooperation
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<PAGE> 13
required in paragraphs 4.3.1(1) - 4.3.2(3) above, which should
be provided to the Settling States as provided under this
paragraph.
4.3.3. Section 4.3.3 of the Attorneys General
Settlement is incorporated herein by reference.
4.3.4. Section 4.3.4 of the Attorneys General
Settlement is incorporated herein by reference.
4.4. Section 4.4 of the Attorneys General
Settlement is incorporated herein by reference.
4.5. Section 4.5 of the Attorneys General
Settlement and subparts 4.5.1, 4.5.2, 4.5.3, and 4.5.4 thereof are
incorporated herein by reference.
4.6. Section 4.6 of the Attorneys General
Settlement is incorporated herein by reference.
4.7. Section 4.7 of the Attorneys General
Settlement is incorporated herein by reference.
4.8. Section 4.8 of the Attorneys General
Settlement is incorporated herein by reference.
4.9. Section 4.9 of the Attorneys General
Settlement is incorporated herein by reference.
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5. Global Settlement.
5.1. Section 5.1 of the Attorneys General Settlement is
incorporated herein by reference.
5.2. Section 5.2 of the Attorneys General Settlement is
incorporated herein by reference.
6. Settlement Fund.
6.1. Section 6.1 of the Attorneys General Settlement is
incorporated herein by reference.
6.2. Section 6.2 of the Attorneys General Settlement is
incorporated herein by reference.
6.3. Section 6.3 of the Attorneys General Settlement
and subparts 6.3.1 and 6.3.2 thereof are incorporated herein by reference.
6.4. Section 6.4 of the Attorneys General Settlement is
incorporated herein by reference.
6.5. Section 6.5 of the Attorneys General Settlement is
incorporated herein by reference.
6.6. Section 6.6 of the Attorneys General Settlement is
incorporated herein by reference.
6.7. Section 6.7 of the Attorneys General Settlement is
incorporated herein by reference.
6.8. Section 6.8 of the Attorneys General Settlement is
incorporated herein by reference.
6.9. Section 6.9 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 15
6.10. Section 6.10 of the Attorneys General Settlement is
incorporated herein by reference.
6.11. Section 6.11 of the Attorneys General Settlement is
incorporated herein by reference.
6.12. Section 6.12 of the Attorneys General Settlement is
incorporated herein by reference.
6.13. Section 6.13 of the Attorneys General Settlement is
incorporated herein by reference.
6.14. Any sums distributed to the State of Oregon pursuant
to this Settlement Agreement shall be deposited to the Consumer Protection and
Education Revolving Account established pursuant to ORS 180.095. Said sum, if
any, shall be used by the Oregon Department of Justice as provided by law.
7. Release.
Section 7 of the Attorneys General Settlement is incorporated herein by
reference, except as modified below.
7.1. Upon the date of the execution of this Agreement, for
good and sufficient consideration as described herein, the State of Oregon shall
for the duration or term of this Agreement (whichever is shorter) be deemed to
and hereby does release, dismiss and discharge each and every civil claim,
right, and cause of action (including, without limitation, all claims for
damages, restitution, medical monitoring, or any other claim for legal or
equitable relief), known or unknown, asserted or unasserted, direct or indirect,
which it had, now has or may
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<PAGE> 16
hereafter have against each Settling Defendant (including its past and present
parents, subsidiaries, present affiliates, employees, directors and
shareholders, but only in such capacities, vis-a-vis, each such Settling
Defendant, and downstream distribution entities of Settling Defendant, but only
to the extent that such downstream distribution entities would have cross-claims
against Settling Defendant), which is smoking-related or otherwise arises out
of, or concerns, the acts, facts, transactions, occurrences, representations, or
omissions that would be set forth, alleged, referred to or otherwise embraced in
the complaint of the Contemplated Action, but does not in any fashion release
any Non-settling Tobacco Companies or other Potential Defendants except as
provided for in Section 17 of the Attorneys General Settlement.
Upon the execution of this Agreement, for good and sufficient
consideration as described herein, each such Settling Defendant shall for the
duration or term of this Agreement (whichever is shorter) be deemed to and
hereby does release, dismiss and discharge each and every claim, right, and
cause of action (including, without limitation, all claims for damages,
restitution, fees, expenses, or any other legal or equitable relief), whether
known or unknown, asserted or unasserted, which they had, now have or may
hereafter have against the State of Oregon, its public officials and employees
in connection with, arising out of or related to the acts, facts, transactions,
occurrences, representations, or omissions set forth, alleged or
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<PAGE> 17
referred to or otherwise embraced in the complaints of the Settling States'
Attorney General Actions.
Provided, however, as follows:
1) If this Agreement expires upon completion of its full term,
these releases set forth in this Section 7.1 shall continue and apply in full
force and effect with respect to all released claims which accrued or shall
accrue prior to, through and including the date of such expiration, such that
such claims shall be forever released, but only as to such claims through and
including such date; if this Agreement terminates for any reason prior to its
full term, these releases shall be of no further force and effect and Settling
Defendants shall be entitled to a credit to the extent otherwise provided in
this Agreement against all claims covered by the release for the full amount
paid by such Settling Defendants hereunder.
2) Except as specifically provided herein, these releases set
forth in this Section 7.1 do not pertain or apply to any other existing or
potential party in any Contemplated Action.
3) These releases set forth in this Section 7.1 do not in any
way release any releasee from claims which may be asserted by a releasor
involving conduct unrelated to the manufacture and/or sale of tobacco products.
4) With respect to the claims of any county, municipality or
subdivision within the State of Oregon that, as of the date of this agreement,
has brought an action against Settling Defendants separate and apart from the
action brought
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against Settling Defendants by the Settling State encompassing such county,
municipality or subdivision, these releases set forth in this Section 7.1 do not
release the claims of such county, municipality or subdivision except for the
exclusively State share of the Medicaid funds claimed in any such action.
7.2. Section 7.2 of the Attorneys General Settlement is
incorporated herein by reference.
8. Exclusive Remedy; Dismissal of Action;
Jurisdiction of Court.
Section 8 of the Attorneys General Settlement is incorporated herein by
reference, except as modified below.
8.1. Section 8.1 of the Attorneys General Settlement is
incorporated herein by reference.
8.2. If the State of Oregon brings a Contemplated Action,
the State of Oregon shall not name the Settling Defendants as defendants
therein, except only as may be necessary to effectuate Section 11.2 hereof.
8.3. Section 8.3 of the Attorneys General Settlement is
incorporated herein by reference.
9. Term.
Section 9 of the Attorneys General Settlement is incorporated herein by
reference, except as modified below.
9.1. Section 9.1 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 19
9.2. Section 9.2 of the Attorneys General Settlement is
incorporated herein by reference.
9.3. Section 9.3 of the Attorneys General Settlement is
incorporated herein by reference.
9.4. Section 9.4 of the Attorneys General Settlement is
incorporated herein by reference.
9.5. Section 9.5 of the Attorneys General Settlement is
incorporated herein by reference.
9.6. Section 9.6 of the Attorneys General Settlement is
incorporated herein by reference.
9.7. The duration of this Agreement shall be co-extensive with
the duration of the Attorneys General Settlement. The exercise of any right
under the Attorneys General Settlement to terminate the Attorneys General
Settlement with respect to the State of Oregon shall also be a termination of
this Agreement.
10. Continuing Enforceability.
Section 10 of the Attorneys General Settlement is incorporated herein
by reference.
11. Entry of Good Faith Bar Order on Contribution and Indemnity
Claims.
Section 11 of the Attorneys General Settlement is replaced with the
following provisions.
11.1. It is the intent of the parties that the payments to
be made by Liggett with respect to the claims and causes of action settled
hereby, be limited to those payments set
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forth in this Settlement Agreement, and that Settling Defendants not be
responsible for any payments relating to any contribution or indemnity claim
asserted, or to be asserted, by any non- settling defendant that may arise from
any Contemplated Action by the State of Oregon. In order to effectuate this
intent of the parties, and only in order to effectuate such intent, the parties
agree as follows in this Section 11.
11.2. As promptly as reasonably practicable after a
Contemplated Action is brought by the State of Oregon, the Parties shall request
that the court in which a Contemplated Action is brought by the State of Oregon
enter an order barring and prohibiting the commencement and prosecution of any
claim or action by any non-settling defendant against any Settling Defendant,
including but not limited to any contribution, indemnity and/or subrogation
claim seeking reimbursement for payments made or to be made to any Settling
State for claims settled under this Agreement. Settling Defendants shall be
entitled to dismissal with prejudice of any non-settling defendants' claims
against them which violate or are inconsistent with this bar, if granted.
11.3. The State of Oregon shall not seek to collect any
amount on any judgment in a Contemplated Action against a non-settling defendant
to the extent, and only to the extent, that such non-settling defendant has a
right of contribution or indemnification against the Settling Defendants. This
section will not apply to any agreement or understanding, known or
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unknown, written or otherwise, with any non-settling defendant or any other
party that entitles any non-settling defendant to indemnity or contribution from
Brooke Group or Liggett.
11.4. Should the State of Oregon receive a final monetary
judgment against a non-settling defendant in a Contemplated Action which then
results in the non-settling defendant being legally entitled to require a
Settling Defendant to make payment toward that judgment, the State of Oregon
shall seek court approval to reduce the judgment by an amount sufficient to
result in the Settling Defendant having no obligation toward the judgment.
12. Tax Status of Settlement Fund.
12.1. Section 12.1 of the Attorneys General Settlement is
incorporated herein by reference.
12.2. Section 12.2 of the Attorneys General Settlement is
incorporated herein by reference.
12.3. Section 12.3 of the Attorneys General Settlement is
incorporated herein by reference.
13. Effect of Default of Settling Defendant.
Section 13 of the Attorneys General Settlement is replaced with the
following.
In the event a Settling Defendant fails to make a payment due
and owing under the terms of this Agreement, or is in default of this Agreement
in any other respect, the Attorney General of the State of Oregon shall so
notify the defaulting
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<PAGE> 22
Settling Defendant, which shall then be given 60 calendar days to "cure" the
default. If the defaulting Settling Defendant does not "cure" the default in the
time provided in this Section 13, the State of Oregon may apply to a court of
competent jurisdiction for relief, in addition to any other remedies the State
may have hereunder.
14. Representations and Warranties.
14.1. Section 14.1 of the Attorneys General Settlement is
incorporated herein by reference.
14.2. Section 14.2 of the Attorneys General Settlement is
incorporated herein by reference.
15. Arbitration.
Section 15 of the Attorneys General Settlement is incorporated herein
by reference.
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<PAGE> 23
16. Most Favored Nation.
16.1. Section 16.1 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.1. Section 16.1.1 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.2. Section 16.1.2 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.3. Section 16.1.3 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.4. Section 16.1.4 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.5. Section 16.1.5 of the Attorneys General Settlement is
incorporated herein by reference.
16.1.6. Section 16.1.6 of the Attorneys General Settlement is
incorporated herein by reference.
16.2. Section 16.2 of the Attorneys General Settlement is
incorporated herein by reference.
16.3. Section 16.3 of the Attorneys General Settlement is
incorporated herein by reference.
17. Future Affiliate.
17.1. Section 17.1 of the Attorneys General Settlement is
incorporated herein by reference.
17.2. Section 17.2 of the Attorneys General Settlement and
subparts (a) and (b) thereof are incorporated herein by reference.
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<PAGE> 24
17.3. Section 17.3 of the Attorneys General Settlement is
incorporated herein by reference.
17.4. Section 17.4 of the Attorneys General Settlement is
incorporated herein by reference.
17.5. Section 17.5 of the Attorneys General Settlement is
incorporated herein by reference.
17.6. Section 17.6 of the Attorneys General Settlement is
incorporated herein by reference.
17.7. Section 17.7 of the Attorneys General Settlement is
incorporated herein by reference.
17.8. Section 17.8 of the Attorneys General Settlement is
incorporated herein by reference.
17.9. Section 17.9 of the Attorneys General Settlement is
incorporated herein by reference.
18. Miscellaneous.
18.1. Section 18.1 of the Attorneys General Settlement is
incorporated herein by reference.
18.2. Section 18.2 of the Attorneys General Settlement is
incorporated herein by reference.
18.3. Section 18.3 of the Attorneys General Settlement is
incorporated herein by reference.
18.4. Section 18.4 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 25
18.5. Section 18.5 of the Attorneys General Settlement is
incorporated herein by reference.
18.6. Section 18.6 of the Attorneys General Settlement is
incorporated herein by reference.
18.7. Section 18.7 of the Attorneys General Settlement is
incorporated herein by reference.
18.8. Section 18.8 of the Attorneys General Settlement is
incorporated herein by reference.
18.9. Section 18.9 of the Attorneys General Settlement is
incorporated herein by reference.
18.10. Section 18.10 of the Attorneys General Settlement is
incorporated herein by reference.
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<PAGE> 26
18.11. Section 18.11 of the Attorneys General Settlement is
incorporated herein by reference.
18.12. Section 18.12 of the Attorneys General Settlement is
incorporated herein by reference.
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the day and date first written above.
BROOKE GROUP LTD. STATE OF OREGON
By /s/ Bennett S. LeBow By /s/ Hardy Myers
------------------------ -------------------------
Bennett S. LeBow Hardy Myers
Attorney General
Date: 6/10/97 Date: 6/9/97
--------------------- -----------------------
LIGGETT GROUP, INC.
By /s/ Bennett S. LeBow
------------------------
Bennett S. LeBow
Date: 6/10/97
---------------------
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<PAGE> 1
Exhibit 10.4
AMENDMENT TO STANDSTILL AGREEMENT AND CONSENT
This Amendment to Standstill Agreement and Consent, dated as
of November 13, 1997 ("Amendment"), among BGLS INC., a Delaware corporation (the
"Company"), AIF II, L.P., a Delaware limited partnership ("AIF II"), ARTEMIS
AMERICA PARTNERSHIP, a Delaware partnership (as successor to Artemis America
LLC, a Delaware limited liability company) ("Artemis") and TORTOISE CORP., a New
York corporation ("Tortoise"; together with AIF II and Artemis, the
"Participating Holders") amends the Standstill Agreement and Consent among the
Company and the Participating Holders dated as of August 28, 1997 (the
"Standstill Agreement"). Capitalized terms not otherwise defined herein shall
have the meanings specified in the Standstill Agreement.
WHEREAS, the Company has requested that the Participating
Holders extend the termination date of the Standstill Agreement; and
WHEREAS, the Participating Holders have agreed to such an
extension on the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreement of the parties contained in this Amendment, the
parties hereto agree as follows:
1. AMENDMENT TO SECTION 7. Section 7 of the Standstill
Agreement is hereby amended by deleting the date "November 30, 1997" contained
in clause (iv) of such section and replacing it with the date "December 10,
1997".
2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall become effective upon the execution and delivery of this
Amendment by the Company and each of the Participating Holders.
3. ABSENCE OF WAIVER. The parties hereto agree that, except to
the extent expressly set forth herein, nothing contained herein shall be deemed
to:
(a) be a consent to, or waiver of, any Default or Event of
Default;
(b) prejudice any right or remedy which any of the
Participating Holders may now have or may in the future have under the
Indenture, the Series B Securities or otherwise, including, without limitation,
any right or remedy resulting from any Default or Event of Default; or
(c) constitute a waiver of the rights of any of the
Participating Holders under Section 2.12 of the Indenture.
4. REPRESENTATIONS. Each party hereto hereby represents and
warrants to the other parties that:
(a) such party is a corporation or partnership, as applicable,
duly organized, validly existing, and in good standing under the laws of the
state of its incorporation or formation, as applicable;
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<PAGE> 2
(b) the execution, delivery and performance of this Amendment
by such party is within its corporate or partnership powers, as applicable, has
been duly authorized by all necessary corporate or partnership action, as
applicable, has received all necessary consents and approvals (if any shall be
required), and does not and will not contravene or conflict with any provisions
of law or of the charter or by-laws, or partnership agreement, as applicable, of
such party or of any material agreement binding upon such party or its property;
and
(c) upon its effectiveness under Section 2, this Amendment
constitutes the legal, valid and binding obligation of such party, enforceable
against it in accordance with its terms.
In addition, the Company represents and warrants that the best of its knowledge,
except as set forth in the Standstill Agreement no Default or Event of Default
under the Indenture has occurred and is continuing.
5. CONTINUING EFFECT, ETC. Except as expressly provided
herein, the Company hereby agrees that the Standstill Agreement, the Indenture
and the Series B Securities shall continue unchanged and in full force and
effect, and all rights, powers and remedies of the Participating Holders
thereunder and under applicable law are hereby expressly reserved.
6. EXPENSES.
(a) The Company hereby agrees to reimburse each of the
Participating Holders for their reasonable attorneys fees and expenses incurred
in connection with this Amendment.
(b) The Company agrees that an actual or threatened or
potential claim, action or proceeding against or affecting an Indemnitee (as
defined in the Exchange Agreement dated as of November 21, 1995 among INTER ALIA
the Company and the Participating Holders) that at any time results from,
relates to or arises out of the execution, delivery or performance by the
Participating Holders of this Amendment is deemed to be an Indemnification Event
(as defined in the Exchange Agreement).
7. MISCELLANEOUS.
(a) This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same agreement.
(b) This Amendment shall be a contract made under the governed
by the laws of the State of New York.
(c) This Amendment shall be binding upon the Company, the
Participating Holders and their respective successors and assigns, and shall
inure to the benefit of the Company, the Participating Holders and their
respective successors and assigns.
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized representatives as of the date
first above written.
BGLS INC.
By: /s/ RICHARD J. LAMPEN
---------------------------------
Name: Richard J. Lampen
Title: Executive Vice President
AIF II, L.P.
By: APOLLO ADVISORS, L.P.
Managing General Partner
By: APOLLO CAPITAL MANAGEMENT, INC.
General Partner
By: /s/ JOHN J. HANNAN
---------------------------
Name: John J. Hannan
Title:
ARTEMIS AMERICA PARTNERSHIP
By: LION ADVISORS, L.P.
Attorney-in-Fact
By: LION CAPITAL MANAGEMENT, INC.
General Partner
By: /s/ JOHN J. HANNAN
---------------------------
Name: John J. Hannan
Title:
TORTOISE CORP.
By: /s/ EDWARD E. MATTNER
---------------------------------
Name: Edward E. Mattner
Title: President
3
<PAGE> 4
ACKNOWLEDGED, AGREED & CONSENTED TO
WITH RESPECT TO SECTION 6(b):
BROOKE GROUP LTD.
By: /s/ RICHARD J. LAMPEN
----------------------------------
Name: Richard J. Lampen
Title: Executive Vice President
4
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000059440
<NAME> BROOKE GROUP LTD
<MULTIPLIER> 1,000
<CURRENCY> DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<EXCHANGE-RATE> 1
<CASH> 2,361
<SECURITIES> 0
<RECEIVABLES> 13,317
<ALLOWANCES> 1,044
<INVENTORY> 41,360
<CURRENT-ASSETS> 71,888
<PP&E> 68,957
<DEPRECIATION> 32,237
<TOTAL-ASSETS> 121,888
<CURRENT-LIABILITIES> 151,391
<BONDS> 370,393
0
0
<COMMON> 1,850
<OTHER-SE> (464,961)
<TOTAL-LIABILITY-AND-EQUITY> 121,888
<SALES> 276,906
<TOTAL-REVENUES> 276,906
<CGS> 145,841
<TOTAL-COSTS> 145,841
<OTHER-EXPENSES> 21,488
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 46,757
<INCOME-PRETAX> (22,936)
<INCOME-TAX> 541
<INCOME-CONTINUING> (23,477)
<DISCONTINUED> 157
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (23,477)
<EPS-PRIMARY> (1.28)
<EPS-DILUTED> (1.28)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000927388
<NAME> BGLS INC.
<MULTIPLIER> 1,000
<CURRENCY> DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<EXCHANGE-RATE> 1
<CASH> 2,323
<SECURITIES> 0
<RECEIVABLES> 13,276
<ALLOWANCES> 1,044
<INVENTORY> 41,360
<CURRENT-ASSETS> 72,979
<PP&E> 68,362
<DEPRECIATION> 31,845
<TOTAL-ASSETS> 126,019
<CURRENT-LIABILITIES> 174,510
<BONDS> 370,973
0
0
<COMMON> 0
<OTHER-SE> 488,299
<TOTAL-LIABILITY-AND-EQUITY> 126,019
<SALES> 276,906
<TOTAL-REVENUES> 276,906
<CGS> 145,841
<TOTAL-COSTS> 145,841
<OTHER-EXPENSES> 21,488
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (49,542)
<INCOME-PRETAX> (24,912)
<INCOME-TAX> 539
<INCOME-CONTINUING> (25,451)
<DISCONTINUED> 153
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (25,298)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<PAGE> 1
Exhibit 99.1
LIGGETT GROUP INC.
CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
PAGE
----
PART I FINANCIAL INFORMATION
<S> <C>
Item 1. Financial Statements
Liggett Group Inc.:
-------------------
Consolidated Balance Sheets as of September 30, 1997 and
December 31, 1996 .............................................. 2
Consolidated Statements of Operations for
the three and nine months
ended September 30, 1997 and 1996 .............................. 4
Consolidated Statement of Stockholder's Equity (Deficit) for
the nine months ended September 30, 1997 ....................... 5
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1997 and 1996 .............................. 6
Notes to Consolidated Financial Statements ....................... 7
Eve Holdings Inc.:
-----------------
Balance Sheets as of September 30, 1997 and December 31, 1996 .... 19
Statements of Operations for the three and nine months ended
September 30, 1997 and 1996 .................................... 20
Statements of Cash Flows for the nine months ended September 30,
1997 and 1996 .................................................. 21
Notes to Financial Statements .................................... 22
</TABLE>
1
<PAGE> 3
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
LIGGETT GROUP INC.
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(Dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
ASSETS
<S> <C> <C>
Current assets:
Accounts receivable:
Trade, less allowances of $1,044 and
$1,280, respectively ................................. $11,001 $19,316
Other .................................................. 788 744
Inventories .............................................. 37,793 50,122
Other current assets ..................................... 996 1,205
------- -------
Total current assets ................................. 50,578 71,387
Property, plant and equipment, at cost, less accumulated
depreciation of $28,852 and $29,511, respectively ........ 17,288 18,705
Intangible assets, at cost, less accumulated amortization
of $18,679 and $17,388, respectively ..................... 2,040 3,327
Other assets and deferred charges, at cost, less accumulated
amortization of $8,620 and $7,410, respectively .......... 3,292 4,258
------- -------
Total assets ......................................... $73,198 $97,677
======= =======
</TABLE>
(continued)
2
<PAGE> 4
LIGGETT GROUP INC.
CONSOLIDATED BALANCE SHEETS (Continued)
(Unaudited)
(Dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
LIABILITIES AND STOCKHOLDER'S EQUITY (DEFICIT)
<S> <C> <C>
Current liabilities:
Current maturities of long-term debt .................... $37,391 $ 31,807
Cash overdraft .......................................... 1,422 6
Accounts payable:
Trade ................................................ 5,893 14,979
Affiliates ........................................... 2,482 216
Accrued expenses:
Promotional .......................................... 31,372 33,666
Compensation and related items ....................... 874 682
Taxes, principally excise taxes ...................... 1,688 7,565
Estimated allowance for sales returns ................ 5,000 5,000
Interest ............................................. 3,240 8,435
Other ................................................ 8,508 9,380
------- --------
Total current liabilities ......................... 97,870 111,736
Long-term debt, less current maturities .................... 138,542 144,698
Non-current employee benefits and other liabilities ........ 16,797 17,721
Commitments and contingencies (Notes 5 and 8)
Stockholder's equity (deficit):
Redeemable preferred stock (par value $1.00 per share;
authorized 1,000 shares; no shares issued and out-
standing)
Common stock (par value $0.10 per share; authorized
2,000 shares; issued and outstanding 1,000 shares)
and contributed capital ................................. 47,640 49,840
Accumulated deficit ...................................... (227,651) (226,318)
------- --------
Total stockholder's deficit ....................... (180,011) (176,478)
------- --------
Total liabilities and stockholder's equity (deficit) $73,198 $ 97,677
======= ========
</TABLE>
The accompanying notes are an integral part
of these financial statements.
3
<PAGE> 5
LIGGETT GROUP INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------- --------------------
1997 1996 1997 1996
-------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales* .................................... $ 79,368 $ 101,125 $ 223,811 $ 292,899
Cost of sales* ................................ 35,971 45,614 102,444 134,439
-------- --------- --------- ---------
Gross profit ............................ 43,397 55,511 121,367 158,460
Selling, general and administrative expenses... 38,721 51,709 110,061 148,357
Restructuring ................................. 95 425 1,926 1,180
-------- --------- --------- ---------
Operating income ........................ 4,581 3,377 9,380 8,923
Other income (expense):
Interest income ............................ -- 23 60 23
Interest expense ........................... (5,950) (5,982) (17,920) (17,831)
Equity in income (loss) of affiliate ....... 321 (740) 506 (740)
Sale of assets ............................. (302) -- 3,692 3,698
Retirement of debt ......................... -- -- 2,963 --
Miscellaneous, net ......................... (1) -- (14) --
-------- --------- --------- ---------
Net loss before income taxes ............ (1,351) (3,322) (1,333) (5,927)
Income tax provision .......................... -- 3,800 -- 3,800
-------- --------- --------- ---------
Net loss ................................ $ (1,351) $ (7,122) $ (1,333) $ (9,727)
======== ========= ========= =========
</TABLE>
*Net sales and cost of sales include federal excise taxes of $19,250, $26,074,
$55,263, and $76,758, respectively.
The accompanying notes are an integral part
of these financial statements.
4
<PAGE> 6
LIGGETT GROUP INC.
CONSOLIDATED STATEMENT OF STOCKHOLDER'S EQUITY (DEFICIT)
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Common
Stock and Total
Contributed Accumulated Stockholder's
Capital Deficit Deficit
----------- ----------- -------------
<S> <C> <C> <C>
Balance at December 31, 1996 ....................... $49,840 $(226,318) $(176,478)
Net loss ......................................... -- (1,333) (1,333)
Consideration for option to acquire affiliate
stock in excess of its net assets (Note 10) ..... (2,200) -- (2,200)
------- --------- ---------
Balance at September 30, 1997 ...................... $47,640 $(227,651) $(180,011)
======= ========= =========
</TABLE>
The accompanying notes are an integral part
of these financial statements.
5
<PAGE> 7
LIGGETT GROUP INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
-------------
1997 1996
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net loss ...................................................... $ (1,333) $ (9,727)
Adjustments to reconcile net loss to net
cash used in operating activities:
Depreciation and amortization ............................... 5,180 6,071
Deferred income taxes ....................................... 3,800
Gain on sale of property, plant and equipment ............... (3,692) (3,698)
Gain on retirement of notes ................................. (2,963) --
Deferred finance charges and debt discount written off ...... 130 --
Equity in income of affiliate ............................... (506) 740
Changes in assets and liabilities:
Accounts receivable ......................................... 8,271 5,537
Inventories ................................................. 12,329 3,977
Accounts payable ............................................ (6,864) (261)
Accrued expenses ............................................ (13,526) (6,141)
Non-current employee benefits ............................... (434) (246)
Other, net .................................................. (1,336) (914)
--------- ---------
Net cash used in operating activities ....................... (4,744) (862)
Cash flows from investing activities:
Proceeds from sale of property, plant and equipment ........... 4,589 4,415
Capital expenditures .......................................... (1,282) (2,983)
Purchase of an option in affiliate ............................ (2,200) (5,500)
--------- ---------
Net cash provided by (used in) investing activities ......... 1,107 (4,068)
Cash flows from financing activities:
Repayments of long-term debt .................................. (4,721) (191)
Borrowings under revolving credit facility .................... 209,822 264,473
Repayments under revolving credit facility .................... (202,880) (254,963)
Deferred finance charges -- (18)
Increase (decrease) in cash overdraft ......................... 1,416 (3,761)
--------- ---------
Net cash provided by financing activities ................... 3,637 5,540
Net increase in cash and cash equivalents ....................... 0 610
Cash and cash equivalents:
Beginning of period ........................................... 0 0
--------- ---------
End of period ................................................. $ 0 $ 610
========= =========
Supplemental cash flow information:
Cash payments during the period for:
Interest ...................................................... $ 22,616 $ 22,400
Income taxes .................................................. $ 118 $ 129
</TABLE>
The accompanying notes are an integral part
of these financial statements.
6
<PAGE> 8
LIGGETT GROUP INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands, except per share amounts)
1. The Company
Liggett Group Inc. ("Liggett" or the "Company") is a wholly-owned
subsidiary of BGLS Inc. ("BGLS"), a wholly-owned subsidiary of Brooke Group Ltd.
("BGL"). Liggett is engaged primarily in the manufacture and sale of cigarettes,
principally in the United States. Certain management and administrative
functions are performed by affiliates. (See Note 10.)
The consolidated financial statements included herein are unaudited and, in
the opinion of management, reflect all adjustments necessary (which are normal
and recurring) to present fairly the Company's consolidated financial position,
results of operations and cash flows. The December 31, 1996 balance sheet has
been derived from audited financial statements. These consolidated financial
statements should be read in conjunction with the consolidated financial
statements included in the Company's Annual Report on Form 10-K, as amended, for
the year ended December 31, 1996, as filed with the Securities and Exchange
Commission. The results of operations for interim periods should not be regarded
as necessarily indicative of the results that may be expected for the entire
year.
The accompanying consolidated financial statements have been prepared
assuming that the Company will continue as a going concern. Liggett had a net
capital deficiency of $180,011 as of September 30, 1997, is highly leveraged and
has substantial near-term debt service requirements. (See Note 7). Due to the
many risks and uncertainties associated with the cigarette industry and the
impact of tobacco litigation (see Note 8), there can be no assurance that the
Company will be able to meet its future earnings or cash flow goals.
Consequently, the Company could be in violation of certain debt covenants, and
if its lenders were to exercise acceleration rights under its revolving credit
facility (the "Facility") or the indenture for its Senior Secured Notes (the
"Liggett Notes") or refuse to lend under the Facility, the Company would not be
able to satisfy such demands or its working capital requirements.
As of September 30, 1997, the current maturities of the Liggett Notes of
$37,391 (net of unamortized discount) contribute substantially to the working
capital deficit of approximately $47,292. Further, the Liggett Notes require a
mandatory principal redemption of $37,500 on February 1, 1998 and a payment at
maturity on February 1, 1999 of $107,400. In November 1997, the Facility was
extended for an additional year until March 8, 1999.
While the Company has engaged in negotiations with its note holders to
restructure the terms of the Liggett Notes, there are no commitments to
restructure the Liggett Notes, and no assurances can be given in this regard.
Based on the Company's net loss for 1996 and anticipated 1997 operating results,
the Company does not anticipate it will be able to generate sufficient cash from
operations to make such payments. During such negotiations, the Company
postponed making the interest payment of approximately $9,700 due on August 1,
1997 on the Liggett Notes. On August 29, 1997, the Facility was amended to
permit the Company to borrow an additional $6,000 which was used on that date in
making the interest payment of $9,700 due on August 1, 1997 to the Liggett note
holders. BGLS guaranteed the additional $6,000 advance under the Facility and
collateralized the guarantee with $6,000 in cash, deposited with Liggett's
lenders.
If the Company is unable to restructure the terms of the Liggett Notes, or
otherwise make all payments thereon, substantially all of its long-term debt and
the Facility would be in default and holders of such debt could accelerate the
maturity of such debt. In such event, the Company may be forced to seek
protection from creditors under applicable laws. These matters raise substantial
doubt about the Company
7
<PAGE> 9
meeting its liquidity needs and its ability to continue as a going concern. The
consolidated financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
2. Estimates and Assumptions
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities and the reported amounts of
revenues and expenses. Significant estimates subject to material changes in the
near term include allowance for doubtful accounts, sales returns and allowances,
actuarial assumptions of pension plans and litigation and defense costs. Actual
results could differ from those estimates.
3. Per Share Data
All of the Company's common shares (1,000 shares, issued and outstanding
for all periods presented herein) are owned by BGLS. Accordingly, earnings and
dividends per share data are not presented in these consolidated financial
statements.
4. Sale of Assets
On April 29, 1996, Liggett executed a definitive agreement (as amended)
with Blue Devil Ventures, a North Carolina limited liability partnership, for
the sale by Liggett to Blue Devil Ventures of certain surplus realty in Durham,
North Carolina, for a sale price of $2,200. The net book value of those assets
($309) for which the agreement was signed was classified as current assets on
the Company's Consolidated Balance Sheet as of December 31, 1996. The
transaction closed on March 11, 1997. A gain of $1,147 was recognized, net of
costs required to prepare the properties for sale and selling costs. (See Note
10 for sales to affiliates.)
5. Inventories
Inventories consist of the following:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
<S> <C> <C>
Finished goods ......................... $ 13,103 $ 15,304
Work-in-process ........................ 3,951 4,382
Raw materials .......................... 23,543 31,338
Replacement parts and supplies ......... 3,605 3,554
-------- --------
Inventories at current cost ............ 44,202 54,578
LIFO adjustment ........................ (6,409) (4,456)
-------- --------
Inventories at LIFO cost ............... $ 37,793 $ 50,122
======== ========
</TABLE>
The Company has a leaf inventory management program whereby, among other
things, it is committed to purchase certain quantities of leaf tobacco. The
purchase commitments are for quantities not in excess of anticipated
requirements and are at prices, including carrying costs, established at the
8
<PAGE> 10
date of the commitment. Liggett had leaf tobacco purchase commitments of
approximately $12,207 at September 30, 1997.
6. Property, Plant and Equipment
Property, plant and equipment consists of the following:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
<S> <C> <C>
Land and improvements ............ $ 455 $ 455
Buildings ........................ 6,150 5,848
Machinery and equipment .......... 39,535 41,913
-------- --------
Property, plant and equipment .... 46,140 48,216
Less accumulated depreciation .... (28,852) (29,511)
-------- --------
Property, plant and equipment, net $ 17,288 $ 18,705
======== ========
</TABLE>
7. Long-Term Debt
Long-term debt consists of the following:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
<S> <C> <C>
11.5% Senior Secured Notes due
February 1, 1999, net of unamortized
discount of $254 and $424, respectively .... $ 112,358 $ 119,688
Variable Rate Series C Senior Secured
Notes due February 1, 1999 ................. 32,279 32,279
Borrowings outstanding under revolving credit
facility .................................. 31,214 24,272
Other ....................................... 82 266
--------- ---------
175,933 176,505
Current portion ............................. (37,500) (31,807)
Unamortized discount, current portion ....... 109 0
--------- ---------
Amount due after one year ................... $ 138,542 $ 144,698
========= =========
</TABLE>
Senior Secured Notes
On February 14, 1992, Liggett issued $150,000 in Senior Secured Notes (the
"Series B Notes"). Interest on the Series B Notes is payable semiannually on
February 1 and August 1 at an annual rate of 11.5%. The Series B Notes and
Series C Notes referred to below (collectively, the "Liggett Notes") required
mandatory principal redemptions of $7,500 on February 1 in each of the years
1993 through 1997 and $37,500 on February 1, 1998 with the balance of the
Liggett Notes due on February 1, 1999. In February 1997, $7,500 of the Series B
Notes were purchased using revolver availability and credited against the
mandatory redemption requirements. The transaction resulted in a net gain of
$2,963. The Liggett Notes are collateralized by substantially all of the assets
of the Company, excluding inventories and
9
<PAGE> 11
receivables. Eve is a guarantor for the Notes. The Liggett Notes may be
redeemed, in whole or in part, at a price equal to 102% and 100% of the
principal amount in the years 1997 and 1998, respectively, at the option of the
Company. The Liggett Notes contain restrictions on Liggett's ability to declare
or pay cash dividends, incur additional debt, grant liens and enter into any new
agreements with affiliates, among others.
On January 31, 1994, the Company issued $22,500 of Variable Rate Series C
Senior Secured Notes (the "Series C Notes"). The Series C Notes have the same
terms (other than interest rate) and stated maturity as the Series B Notes. The
Series C Notes bore a 16.5% interest rate, which was reset on February 1, 1995
to 19.75%. The Company had received the necessary consents from the required
percentage of holders of its Series B Notes allowing for an aggregate principal
amount up to but not exceeding $32,850 of Series C Notes to be issued under the
Series C Notes indenture. In connection with the consents, holders of Series B
Notes received Series C Notes totaling two percent of their current Series B
Notes holdings. The total principal amount of such Series C Notes issued was
$2,842. On November 20, 1994, the Company issued the remaining $7,508 of Series
C Notes in exchange for an equal amount of Series B Notes and cash of $375. The
Series B Notes so exchanged were credited against the mandatory redemption
requirements for February 1, 1995.
Revolving Credit Facility
On March 8, 1994, Liggett entered into the Facility under which it can borrow up
to $40,000 (depending on the amount of eligible inventory and receivables as
determined by the lenders) from a syndicate of commercial lenders. Availability
under the Facility was approximately $2,809 based upon eligible collateral at
September 30, 1997. The Facility is collateralized by all inventories and
receivables of the Company. Borrowings under the Facility are charged interest
calculated at a rate equal to 1.5% above Philadelphia National Bank's (the
indirect parent of Congress Financial Corporation, the lead lender) prime rate.
Liggett's interest rate is currently 10.0%. The Facility contains certain
financial covenants similar to those contained in the Liggett Notes indenture,
including restrictions on Liggett's ability to declare or pay cash dividends,
incur additional debt, grant liens and enter into any new agreements with
affiliates, among others. In addition, the Facility currently imposes
requirements with respect to the Company's adjusted net worth (not to fall below
a deficit of $180,000 as computed in accordance with the agreement, this
computation is currently $173,602) and working capital (not to fall below a
deficit of $12,000 as computed in accordance with the agreement, this
computation is currently $3,492). The Company is currently in compliance with
these covenants.
During the first quarter of 1997, the Company violated the working capital
covenant contained in the Facility as a result of the 1998 mandatory redemption
payment on the Liggett Notes becoming due within one year. On March 19, 1997,
the lead lender agreed to waive this covenant default, and the Facility was
amended as follows: (i) the working capital definition was changed to exclude
the current portion of the Liggett Notes; (ii) the maximum permitted working
capital deficit, as defined, was reduced to $12,000; (iii) the maximum permitted
adjusted net worth deficit was increased to $180,000; and (iv) the permitted
advance rates under the Facility for eligible inventory were reduced by five
percent.
The Company has engaged in negotiations with a committee composed of a
majority of its note holders to restructure the terms of the Liggett Notes.
During such negotiations, the Company postponed making the interest payment of
approximately $9,700 due on August 1, 1997 on the Liggett Notes. On August 29,
1997, the Facility was amended to permit the Company to borrow an additional
$6,000 which was used on that date in making the interest payment of $9,700 due
on August 1, 1997 to the Liggett note holders. BGLS guaranteed the additional
$6,000 advance under the Facility and collateralized the guarantee with $6,000
in cash, deposited with Liggett's lenders. In November 1997, the Facility was
extended until March 8, 1999. The balance on the Facility, $31,214, was
reclassified from current to long-term debt as of September 30, 1997. For
information concerning Liggett's substantial near-term debt service requirements
and other related matters, see Note 1.
10
<PAGE> 12
8. Contingencies
Tobacco-Related Litigation
OVERVIEW. Since 1954, Liggett and other United States cigarette
manufacturers have been named as defendants in a number of direct and
third-party actions predicated on the theory that they should be liable for
damages from cancer and other adverse health effects alleged to have been caused
by cigarette smoking or by exposure to secondary smoke (environmental tobacco
smoke, "ETS") from cigarettes. These cases are reported hereinafter as though
having been commenced against Liggett (without regard to whether such cases were
actually commenced against Liggett or BGL). There has been a noteworthy increase
in the number of cases pending against both Liggett and the other tobacco
companies. The cases generally fall into three categories: (i) smoking and
health cases alleging personal injury brought on behalf of individual smokers
("Individual Actions"), (ii) smoking and health cases alleging personal injury
and purporting to be brought on behalf of a class of plaintiffs ("Class
Actions") and (iii) health care cost recovery actions brought by state and local
governments, although recently several health care cost recovery actions have
been commenced on behalf of other third-party payors including asbestos
manufacturers, unions and taxpayers ("Attorneys General Actions"). As new cases
are commenced, the costs associated with defending such cases and the risks
attendant to the inherent unpredictability of litigation continue to increase.
Liggett had been receiving assistance from others in the industry in defraying
the costs and other burdens incurred in the defense of smoking and health
litigation and related proceedings, but these benefits have ended. The future
financial impact on Liggett of the termination of this assistance and the
effects of the tobacco litigation settlements discussed below is not
quantifiable at this time.
On June 24, 1992, in an action entitled Cipollone v. Liggett Group Inc., et
al., the United States Supreme Court issued an opinion concluding that The
Federal Cigarette Labeling and Advertising Act did not preempt state common law
damage claims but that The Public Health Cigarette Smoking Act of 1969 (the
"1969 Act") did preempt certain, but not all, state common law damage claims.
The decision bars plaintiffs from asserting claims that, after the effective
date of the 1969 Act, the tobacco companies either failed to warn adequately of
the claimed health risks of cigarette smoking or sought to neutralize those
claimed risks in their advertising or promotion of cigarettes. Bills have been
introduced in Congress on occasion to eliminate the federal preemption defense.
Enactment of any federal legislation with such an effect could result in a
significant increase in claims, liabilities and litigation costs.
INDIVIDUAL ACTIONS. As of September 30, 1997, there were 218 cases pending
against Liggett, and in most cases the other tobacco companies, where individual
plaintiffs allege injury resulting from cigarette smoking, addiction to
cigarette smoking or exposure to ETS and seek compensatory and, in some cases,
punitive damages. Of these, 103 are pending in the State of Florida, 62 are
pending in the State of New York and 19 are pending in the State of Texas. The
balance of individual cases are pending in 15 states. Of the 218 individual
cases, there are five cases pending where Liggett is the only named
defendant.
The plaintiffs' allegations of liability in those cases in which
individuals seek recovery for personal injuries allegedly caused by cigarette
smoking are based on various theories of recovery, including negligence, gross
negligence, special duty, voluntary undertaking, strict liability, fraud,
misrepresentation, design defect, failure to warn, breach of express and implied
warranties, conspiracy, aiding and abetting, concert of action, unjust
enrichment, common law public nuisance, indemnity, market share liability, and
violations of deceptive trade practices laws, the Federal Racketeer Influenced
and Corrupt Organization Act ("RICO") and antitrust statutes. In many of these
cases, in addition to compensatory damages, plaintiffs also seek other forms of
relief including disgorgement of profits and punitive damages. Defenses raised
by defendants in these cases include lack of proximate cause, assumption of the
risk, comparative fault and/or contributory negligence, lack of design defect,
statute of limitations, equitable defenses such as "unclean hands" and lack of
benefit, failure to state a claim and federal preemption.
11
<PAGE> 13
On September 10, 1993, an action entitled Sackman v. Liggett Group Inc.,
United States District Court, Eastern District of New York, was filed against
Liggett alleging as injury lung cancer. On October 6, 1997, the parties settled
this matter.
CLASS ACTIONS. As of September 30, 1997, there were 39 actions pending, for
which either a class has been certified or plaintiffs are seeking class
certification, where Liggett, among others, was a named defendant. Two of these
cases, Fletcher, et al. v. Brooke Group Ltd., et al. and Walker, et al. v.
Liggett Group Inc., et al. have been settled, subject to court approval. These
two settlements are more fully discussed below under the "Settlements" section.
On October 31, 1991, an action entitled Broin, et al. v. Philip Morris
Incorporated, et al., Circuit Court of the Eleventh Judicial District in and for
Dade County, Florida, was filed against Liggett and others. This case has been
brought by plaintiffs on behalf of all flight attendants that have worked or are
presently working for airlines based in the United States and who have never
regularly smoked cigarettes but allege that they have been damaged by
involuntary exposure to ETS. On October 10, 1997, the other major tobacco
companies settled this matter, subject to a fairness hearing, which settlement
would provide for a full release on behalf of Liggett and BGL.
On March 25, 1994, an action entitled Castano, et al. v. The American
Tobacco Company Inc., et al., United States District Court, Eastern District of
Louisiana, was filed against Liggett and others. The class action complaint
sought relief for a nationwide class of smokers based on their alleged addiction
to nicotine. On February 17, 1995, the District Court granted plaintiffs' motion
for class certification. On May 23, 1996, the Court of Appeals for the Fifth
Circuit reversed the February 17, 1995, order of the District Court certifying
the Castano suit as a nationwide class action and instructed the District Court
to dismiss the class complaint.
ATTORNEYS GENERAL ACTIONS. As of September 30, 1997, 38 state Attorneys
General actions were filed and served on Liggett and BGL. As more fully
discussed below, Liggett has reached settlements in 26 of these actions. As of
September 30, 1997, there were 18 additional third-party payor actions pending.
In certain of the pending proceedings, state and local government entities and
others seek reimbursement for Medicaid and other health care expenditures
allegedly caused by use of tobacco products. The claims asserted in these health
care cost recovery actions vary. In most of these cases, plaintiffs assert the
equitable claim that the tobacco industry was "unjustly enriched" by plaintiffs'
payment of health care costs allegedly attributable to smoking and seek
reimbursement of those costs. Other claims made by some but not all plaintiffs
include the equitable claim of indemnity, common law claims of negligence,
strict liability, breach of express and implied warranty, violation of a
voluntary undertaking or special duty, fraud, negligent misrepresentation,
conspiracy, public nuisance, claims under state and federal statutes governing
consumer fraud, antitrust, deceptive trade practices and false advertising, and
claims under RICO.
SETTLEMENTS. On March 12, 1996, Liggett and BGL entered into an agreement,
subject to court approval, to settle the Castano class action tobacco
litigation. Under the Castano settlement agreement, upon final court approval of
the settlement, the Castano class would be entitled to receive up to five
percent of Liggett's pretax income (income before income taxes) each year (up to
a maximum of $50,000 per year) for the next 25 years, subject to certain
reductions provided for in the agreement. Liggett and BGL have the right to
terminate the Castano settlement under certain circumstances. On March 14, 1996,
BGL, the Castano Plaintiffs legal Committee and the Castano plaintiffs entered
into a letter agreement. According to the terms of the letter agreement, for the
period ending nine months from the date of Final Approval (as defined in the
letter), if granted, of the Castano settlement or, if earlier, the completion by
Liggett or BGL of a combination with any defendant in Castano, except Philip
Morris, the Castano plaintiffs and their counsel agree not to enter into any
more favorable settlement agreement with
12
<PAGE> 14
any Castano defendant which would reduce the terms of the Castano settlement
agreement. If the Castano plaintiffs or their counsel enter into any such
settlement during this period, they shall pay BGL $250,000 within 30 days of the
more favorable agreement and offer Liggett and BGL the option to enter into a
settlement on terms at least as favorable as those included in such other
settlement. The letter agreement further provides that during the same time
period, and if the Castano settlement agreement has not been earlier terminated
by BGL in accordance with its terms, BGL and its affiliates will not enter into
any business transaction with any third party which would cause the termination
of the Castano settlement agreement. If BGL or its affiliates enter into any
such transaction, then the Castano plaintiffs will be entitled to receive
$250,000 within 30 days from the transacting party. On May 11, 1996, the Castano
Plaintiffs Legal Committee filed a motion with the United States District Court
for the Eastern District of Louisiana seeking preliminary approval of the
Castano settlement. On September 6, 1996, shortly after the class was
decertified, the Castano plaintiffs withdrew the motion for approval of the
Castano settlement.
On March 15, 1996, Liggett and BGL entered into a settlement of
tobacco-related litigation with the Attorneys General of Florida, Louisiana,
Mississippi, West Virginia and Massachusetts (the "March 1996 Settlement"). The
March 1996 Settlement releases Liggett and BGL from all tobacco-related claims
including claims for health case cost reimbursement and claims concerning sales
of cigarettes to minors. The March 1996 Settlement provides that additional
states which commence similar actions may agree to be bound by the settlement
prior to six months from the date thereof (subject to extension of such period
by the settling defendants). Certain of the terms of the March 1996 Settlement
are summarized below.
Under the March 1996 Settlement, the five settling states would share an
initial payment by Liggett of $5,000 ($1,000 of which was paid on March 22,
1996, with the balance payable over nine years and indexed and adjusted for
inflation), provided that any unpaid amount will be due 60 days after either a
default by Liggett in its payment obligations under the settlement or a merger
or other similar transaction by Liggett or BGL with another defendant in the
lawsuits. In addition, Liggett will be required to pay the settling states a
percentage of Liggett's pretax income (income before income taxes) each year
from the second through the twenty-fifth year. This annual percentage is 2-1/2%
of Liggett's pretax income, subject to increase to 7-1/2% depending on the
number of additional states joining the settlement. No additional states have
joined this settlement to date. All of Liggett's payments are subject to certain
reductions provided for in the agreement. Liggett has also agreed to pay to the
settling states $5,000 if Liggett or BGL fails to consummate a merger or other
similar transaction with another defendant in the lawsuits within three years of
the date of the March 1996 Settlement.
Settlement funds received by the Attorneys General will be used to
reimburse the states for smoking-related health care costs. Liggett and BGL also
have agreed to phase in compliance with certain of the proposed interim FDA
regulations on the same basis as provided in the Castano settlement. Liggett and
BGL have the right to terminate the March 1996 Settlement with respect to any
settling state if any of the remaining defendants in the litigation succeed on
the merits in that state's respective Attorney General action. Liggett and BGL
may also terminate the March 1996 Settlement if they conclude that too many
states have filed Attorney General actions and have not settled such cases with
Liggett and BGL.
At December 31, 1995, Liggett had accrued approximately $4,000 for the
present value of the fixed payments under the March 1996 Settlement. No
additional amounts have been accrued with respect to the recent settlements
discussed below. BGL cannot quantify the future costs of the settlements at this
time as the amount Liggett must pay is based, in part, on future operating
results. Possible future payments based on a percentage of pretax income, and
other contingent payments based on the occurrence of a business combination,
will be expensed when considered probable.
On March 20, 1997, Liggett, together with BGL, entered into a comprehensive
settlement of tobacco litigation through parallel agreements with the Attorneys
General of 17 additional states (the "March 1997 Settlement") and with a
nationwide class of individuals and entities that allege smoking-related claims.
The settlements cover all smoking-related claims, including both addiction-based
and
13
<PAGE> 15
tobacco injury claims against Liggett and BGL, brought by the Attorneys General
and, upon court approval, the nationwide class.
As of September 30, 1997, settlements with a total of 26 Attorneys General
were reached, including the Attorneys General of Alaska, Arizona, California,
Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan,
Minnesota, Nevada, New Jersey, New York, Oklahoma, Oregon, Texas, Utah,
Washington and Wisconsin. The March 1996 Settlement remains in full force and
effect. Other states have either recently filed health care cost recovery
actions or indicated intentions to do so. Both Liggett and BGL will endeavor to
resolve those actions on substantially the same terms and conditions as the
March 1997 Settlement; however, there can be no assurance that any such
settlements will be completed.
As mentioned above, on March 20, 1997, Liggett, BGL and plaintiffs filed
the mandatory class settlement agreement in an action entitled Fletcher, et al.
v. Brooke Group Ltd., et al., Circuit Court of Mobile County, Alabama, where the
court granted preliminary approval and preliminary certification of the class,
and on May 15, 1997 a similar mandatory class settlement agreement was filed in
an action entitled Walker, et al. v. Liggett Group Inc., et al., United States
District Court, Southern District of West Virginia. The Walker court also
granted preliminary approval and preliminary certification of the nationwide
class; however, on August 5, 1997, the court vacated its preliminary
certification of the settlement class, which decision is currently on appeal.
In the Fletcher action, it is anticipated that class members will be
notified of the settlement and will have an opportunity to appear at a later
court hearing. Effectiveness of the mandatory settlement is conditioned on final
court approval of the settlement after a fairness hearing. There can be no
assurance as to whether, or when, such court approval will be obtained.
Pursuant to the above-mentioned settlements, Liggett and BGL agreed to
cooperate fully with the Attorneys General and the nationwide class in their
respective lawsuits against the tobacco industry. Liggett and BGL agreed to
provide to these parties all relevant tobacco documents in their possession,
other than those subject to claims of joint defense privilege, and to waive,
subject to court order, certain attorney-client privileges and work product
protections regarding Liggett's smoking-related documents to the extent Liggett
and BGL can so waive these privileges and protections. The Attorneys General and
the nationwide class agreed to keep Liggett's documents under protective order
and, subject to final court approval, to limit their use to those actions
brought by parties to the settlement agreements. Those documents that may be
subject to a joint defense privilege with other tobacco companies will not be
produced to the Attorneys General or the nationwide class, but will be, pursuant
to court order, submitted to the appropriate court and placed under seal for
possible in camera review. Additionally, under similar protective conditions,
Liggett and BGL agreed to offer their employees for witness interviews and
testimony at deposition and trial. Pursuant to both settlement agreements,
Liggett also agreed to place an additional warning on its cigarette packaging
stating that "smoking is addictive" and to issue a public statement, as
requested by the Attorneys General. Liggett has commenced distribution of
cigarette packaging which displays the new warning label.
Under the terms of the new settlement agreements, Liggett will pay on an
annual basis 25% of its pretax income for the next 25 years into a settlement
fund, commencing with the first full fiscal year starting after the date of the
agreements. Monies collected in the settlement fund will be overseen by a
court-appointed committee and utilized to compensate state health care programs
and settlement class members and to provide counter-market advertising. Liggett
also agreed to phase-in compliance with certain proposed FDA regulations
regarding smoking by children and adolescents, including a prohibition on the
use of cartoon characters in tobacco advertising and limitations on the use of
promotional materials and distribution of sample packages where minors are
present.
Under the recent settlement agreements, any other tobacco company
defendant, except Philip Morris, merging or combining with Liggett or BGL, prior
to the fourth anniversary of the settlements, would receive certain settlement
benefits, including limitations on potential liability for affiliates not
14
<PAGE> 16
engaged in domestic tobacco operations and a waiver of any obligation to post a
bond to appeal any future adverse judgment. In addition, within 120 days
following any such combination, Liggett would be required to pay the settlement
fund $25,000. The settling Attorneys General and the nationwide class have
agreed not to seek an injunction preventing a defendant tobacco company
combining with Liggett or BGL from spinning off any affiliate which is not
engaged in the domestic tobacco business.
Liggett and BGL are also entitled to most favored nation treatment in the
event any settling Attorney General reaches a settlement with any other
defendant tobacco company. In addition, in the event of a "global" tobacco
settlement enacted through Federal legislation or otherwise, the settling
Attorneys General and tobacco plaintiffs agreed to use their "best efforts" to
ensure that Liggett's and BGL's liability under such a plan should be no more
onerous than under these new settlements.
IMMINENT TRIALS. Although trial schedules are subject to change, the next
case scheduled for trial, where Liggett is a defendant, is State of Minnesota
by Hubert H. Humphrey, III, its Attorney General and Blue Cross and Blue Shield
of Minnesota v. Philip Morris Incorporated, et al., District Court of the
Second Judicial District, Ramsey County, Minnesota, which is scheduled for
trial in January, 1998. Liggett settled the claims of the State of Minnesota
on March 20, 1997, but still remains a defendant in the case with respect to
the State's co-plaintiff, Blue Cross and Blue Shield of Minnesota. In
addition, there is one class action, Engle, et al. v. R.J. Reynolds Tobacco
Company, et al., Circuit Court, 11th Judicial Circuit, Dade County, Florida and
one individual ETS case, Dunn and Wiley v. RJR Nabisco Holdings Corp., et al.,
Superior Court, Delaware County, Indiana, scheduled for trial in February 1998.
OTHER MATTERS. On June 20, 1997, Philip Morris Incorporated ("Philip
Morris"), R. J. Reynolds Tobacco Company ("RJR"), B&W, Lorillard Tobacco Company
("Lorillard") and the United States Tobacco Company, along with the Attorneys
General for the States of Arizona, Connecticut, Florida, Mississippi, New York
and Washington and the Castano Plaintiffs' Litigation Committee executed a
Memorandum of Understanding to support the adoption of federal legislation and
necessary ancillary undertakings, incorporating the features described in a
proposed resolution. The proposed resolution mandates a total reformation and
restructuring of how tobacco products are manufactured, marketed and distributed
in the United States. The proposals are currently being reviewed by the White
House, Congress and various public interest groups. Separately, the other
tobacco companies negotiated settlements with the Attorneys General for health
care cost recovery actions in Mississippi and Florida. Management is unable to
predict the ultimate effect, if any, of the enactment of legislation adopting
the proposed resolution. Management is also unable to predict the ultimate
content of any such legislation; however, adoption of any such legislation could
have a material adverse effect on the business of Liggett.
On March 20, 1997, RJR, Philip Morris, B&W, and Lorillard obtained a
temporary restraining order from a North Carolina state court preventing Liggett
and BGL and their agents, employees, directors, officers and lawyers from
turning over documents allegedly subject to the joint defense privilege in
connection with the settlements, which restraining order was converted to a
preliminary injunction by the court on April 9, 1997. This ruling is currently
on appeal by Liggett and BGL. On June 5, 1997, the North Carolina Supreme Court
denied Liggett's Motion to Stay the case pending appeal. On March 24, 1997, the
United States District Court for the Eastern District of Texas and state courts
in Mississippi and Illinois each issued orders enjoining the other tobacco
companies from interfering with Liggett's filing with the courts, under seal,
those documents.
Liggett understands that a grand jury investigation is being conducted by
the office of the United States Attorney for the Eastern District of New York
regarding possible violations of criminal law relating to the activities of The
Council for Tobacco Research - USA, Inc. (the "CTR"). Liggett was a sponsor of
the CTR at one time. In May 1996, Liggett received a subpoena from a Federal
grand jury sitting in the Eastern District of New York, to which Liggett has
responded. Liggett is unable, at this time, to predict the outcome of this
investigation.
In March 1996, March 1997, July 1997 and October 1997 Liggett and/or BGL
received subpoenas from a Federal grand jury in connection with an investigation
by the United States Department of Justice, relating to issues raised in
testimony provided by tobacco industry executives before Congress and other
related matters. Liggett has responded to the March 1996 and March 1997
subpoenas and is in the process of responding to the July and October 1997
subpoenas. Liggett and BGL are unable, at this time, to predict the outcome of
this investigation.
Liggett has been involved in certain environmental proceedings, none of
which, either individually or in the aggregate, rise to the level of
materiality. Liggett's current operations are conducted in material compliance
with all environmental laws and regulations. Management is unaware of any
material environmental conditions affecting its existing facilities. Compliance
with federal, state and local provisions regulating the discharge of materials
into the environment, or otherwise relating to the
15
<PAGE> 17
protection of the environment, has not had a material effect on the capital
expenditures, earnings or competitive position of Liggett.
Litigation is subject to many uncertainties, and it is possible that some
of the aforementioned actions could be decided unfavorably against Liggett. An
unfavorable outcome of a pending smoking and health case could encourage the
commencement of additional similar litigation. Liggett is unable to evaluate the
effect of these developing matters on pending litigation or the possible
commencement of additional litigation.
There are several other proceedings, lawsuits and claims pending against
Liggett unrelated to smoking or tobacco product liability. Management is of the
opinion that the liabilities, if any, ultimately resulting from such other
proceedings, lawsuits and claims should not materially affect Liggett's
financial position, results of operations or cash flows.
Liggett is unable to make a meaningful estimate of the amount or range of
loss that could result from an unfavorable outcome of the cases pending against
Liggett. It is possible that Liggett's financial position, results of operations
and cash flows could be materially adversely affected by an ultimate unfavorable
outcome in any of such pending litigation.
Legislation and Regulation
On August 28, 1996, the FDA filed in the Federal Register a Final Rule (the
"FDA Rule") classifying tobacco as a drug, asserting jurisdiction by the FDA
over the manufacture and marketing of tobacco products and imposing restrictions
on the sale, advertising and promotion of tobacco products. Litigation was
commenced in the United States District Court for the Middle District of North
Carolina challenging the legal authority of the FDA to assert such jurisdiction,
as well as challenging the constitutionality of the rules. The court, after
argument, granted plaintiffs' motion for summary judgment prohibiting the FDA
from regulating or restricting the promotion and advertising of tobacco products
and denied plaintiffs' motion for summary judgment on the issue of whether the
FDA has the authority to regulate access to, and labeling of, tobacco products.
The four major cigarette manufacturers and the FDA have filed notices of appeal.
Liggett and BGL support the FDA Rule and have begun to phase in compliance with
certain of the proposed interim FDA regulations. See discussions of the Castano
and Attorneys General settlements above.
In August 1996, the Commonwealth of Massachusetts enacted legislation
requiring tobacco companies to publish information regarding the ingredients in
cigarettes and other tobacco products sold in that state. On February 7, 1997,
the United States District Court for the District of Massachusetts denied an
attempt to block the new legislation on the ground that it is preempted by
federal law. Liggett and BGL support this proposed legislation.
On September 13, 1995, the President of the United States issued
Presidential Proclamation 6821, which established a tariff rate quota ("TRQ") on
certain imported tobacco, imposing extremely high tariffs on imports of
flue-cured and burley tobacco in excess of certain specified levels, which
levels vary by country. Management believes that the TRQ levels are sufficiently
high to allow Liggett to operate without material disruption to its business. On
February 20, 1996, the United States Trade representative issued an "advance
notice of rule making" concerning how tobaccos imported under the TRQ should be
allocated. Currently, tobacco imported under the TRQ is allocated on a
"first-come, first-served" basis, meaning that entry is allowed on an open basis
to those first requesting entry in the quota year. Others in the cigarette
industry have suggested an "end-user licensing" system under which the right to
import tobacco under the quota would be initially assigned on the basis of
domestic market share. Such an approach, if adopted, could have a material
adverse effect on Liggett.
In April 1994, the United States Occupational Safety and Health
Administration ("OSHA") issued a proposed rule that could ultimately ban smoking
in the workplace. Hearings were completed during
16
<PAGE> 18
1995. OSHA has not yet issued a final rule or a proposed revised rule. While
Liggett cannot predict the outcome, some form of federal regulation of smoking
in workplaces may result.
In January 1993, the United States Environmental Protection Agency ("EPA")
released a report on the respiratory effect of ETS which concludes that ETS is a
known human lung carcinogen in adults, and in children causes increased
respiratory tract disease and middle ear disorders and increases the severity
and frequency of asthma. In June 1993, the two largest of the major domestic
cigarette manufacturers, together with other segments of the tobacco and
distribution industries, commenced a lawsuit against the EPA seeking a
determination that the EPA did not have the statutory authority to regulate ETS,
and that given the current body of scientific evidence and the EPA's failure to
follow its own guidelines in making the determination, the EPA's classification
of ETS was arbitrary and capricious. Whatever the outcome of this litigation,
issuance of the report may encourage efforts to limit smoking in public areas.
As part of the budget agreement recently approved by Congress, federal
excise taxes on a pack of cigarettes, which are currently 24 cents, would rise
10 cents in the year 2000 and 5 cents more in the year 2002.
In a speech on September 17, 1997, President Clinton called for federal
legislation that, among other things, would raise cigarette prices by up to
$1.50 per pack. In November 1997, several bills were introduced in the Senate
that purport to propose legislation along these lines. Management is unable to
predict the ultimate content of any such legislation; however, adoption of any
such legislation could have a material adverse effect on the business of
Liggett and BGL.
In addition to the foregoing, there have been a number of other restrictive
regulatory actions, adverse political decisions and other unfavorable
developments concerning cigarette smoking and the tobacco industry, the effects
of which, at this time, Liggett is not able to evaluate.
9. Income Taxes
During the quarter ended September 30, 1996, Liggett increased its
valuation allowance for its deferred tax assets by $3,800 based on its current
determination that it is more likely than not that such future tax benefits may
not be realized.
10. Related Party Transactions
On July 5, 1996, Liggett purchased 140,000 shares (19.97%) of Liggett-Ducat
Ltd.'s ("Liggett-Ducat") tobacco operations from Brooke (Overseas) Ltd. ("BOL"),
an indirect subsidiary of BGL, for $2,100. Liggett-Ducat produces and markets
cigarettes in Russia. Liggett also acquired on that date for $3,400 a ten-year
option, exercisable by Liggett in whole or in part, to purchase from BOL at the
same per share price up to 292,407 additional shares of Liggett-Ducat, thereby
entitling Liggett to increase its interest in Liggett-Ducat to approximately
62%. On March 13, 1997, Liggett acquired a second ten-year option to purchase
BOL's remaining shares in Liggett-Ducat (an additional 33%) for $2,200 of which
$2,049 was paid in cash. Liggett accounted for its investment in Liggett-Ducat
under the equity method of accounting. Liggett's equity in the net income of
Liggett-Ducat amounted to $506 for the nine months ended September 30, 1997. The
excess of the cost of the option over carrying amount of net assets to be
acquired under the option has been charged to stockholder's deficit.
On April 28, 1997, BOL purchased excess production equipment from Liggett
for $3,000, for a gain of $2,578.
Liggett is party to a Tax-Sharing Agreement dated June 29, 1990 with BGL
and certain other entities pursuant to which Liggett has paid taxes to BGL as if
it were filing a separate company tax return,
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<PAGE> 19
except that the agreement effectively limits the ability of Liggett to carry
back losses for refunds. Liggett is entitled to recoup overpayments in a given
year out of future payments due under the agreement.
Liggett is a party to an agreement dated February 26, 1991, as amended
October 1, 1995, with BGL to provide various management and administrative
services to the Company in consideration for an annual management fee of $900
paid in monthly installments and annual overhead reimbursements paid in
quarterly installments.
Liggett has entered into an annually renewable Corporate Services Agreement
with BGLS wherein BGLS agreed to provide corporate services to the Company at an
annual fee paid in monthly installments. Corporate services provided by BGLS
under this agreement include the provision of administrative services related to
Liggett's participation in its parent company's multi-employer benefit plan,
external publication of financial results, preparation of consolidated financial
statements and tax returns and such other administrative and managerial services
as may be reasonably requested by Liggett. The charges for services rendered
under the agreement amounted to $830, $790, $2,489 and $2,370 for the three and
nine months ended September 30, 1997 and 1996, respectively. Since April 1994,
the Company has leased equipment from BGLS for $50 per month.
11. Restructuring Charges
In the first nine months of 1997, the Company reduced its headcount by 123
full-time positions and recorded a $1,926 restructuring charge to operations for
severance programs, primarily salary continuation and related benefits for
terminated employees. Approximately $285 in restructuring charges will be funded
in subsequent years. The Company expects to continue its cost reduction
programs.
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<PAGE> 20
EVE HOLDINGS INC.
BALANCE SHEETS
(Unaudited)
(Dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
---- ----
ASSETS
<S> <C> <C>
Cash .......................................................... $ 6 $ --
Office equipment .............................................. 1 2
Trademarks, at cost, less accumulated amortization of
$18,569 and $17,294, respectively ........................... 1,844 3,119
-------- --------
Total assets .......................................... $ 1,851 $ 3,121
======== ========
LIABILITIES AND STOCKHOLDER'S EQUITY (DEFICIT)
Federal income taxes currently payable to parent .............. $ 59 $ --
Dividends payable ............................................. 1,178 4,623
Cash overdraft ................................................ -- 92
Other current liabilities ..................................... -- 19
Deferred income taxes ......................................... 645 1,092
-------- --------
Total liabilities ..................................... 1,882 5,826
-------- --------
Stockholder's equity (deficit):
Common stock (par value $1.00 per share; authorized,
issued and outstanding 100 shares) and contributed
capital ................................................... 50,448 46,548
Receivables from parent:
Note receivable - interest at 14%, due no sooner
than February 1, 1999 ..................................... (44,520) (44,520)
Other ......................................................... (5,959) (4,733)
-------- --------
Total stockholder's equity (deficit) .................. (31) (2,705)
-------- --------
Total liabilities and stockholder's equity (deficit) .. $ 1,851 $ 3,121
======== ========
</TABLE>
The accompanying notes are an integral part
of these financial statements.
19
<PAGE> 21
EVE HOLDINGS INC.
STATEMENTS OF OPERATIONS
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------- ------------------------
1997 1996 1997 1996
-------- -------- --------- ---------
<S> <C> <C> <C> <C>
Revenues:
Royalties - parent .............. $1,830 $2,233 $ 5,137 $ 6,383
Interest - parent ............... 1,576 1,576 4,729 4,729
------ ------ ------- -------
3,406 3,809 9,866 11,112
Expenses:
Amortization of trademarks ...... 425 425 1,276 1,275
Miscellaneous, net .............. 18 227 82 286
------ ------ ------- -------
Income before income taxes .... 2,963 3,157 8,508 9,551
Income tax provision .............. 486 1,105 1,323 3,343
------ ------ ------- -------
Net income .................... $2,477 $2,052 $ 7,185 $ 6,208
====== ====== ======= =======
</TABLE>
The accompanying notes are an integral part
of these financial statements.
20
<PAGE> 22
EVE HOLDINGS INC.
STATEMENTS OF CASH FLOWS
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
-------------
1997 1996
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income .................................................... $ 7,185 $ 6,208
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization ............................... 1,276 1,275
Deferred income taxes ....................................... (447) (446)
Changes in assets and liabilities:
Federal income taxes currently payable to parent ............ 59 (160)
Other current liabilities ................................... (19) 200
------- -------
Net cash provided by operating activities ................. 8,054 7,077
------- -------
Cash flows from financing activities:
Dividends/capital distributions ............................... (6,730) (7,521)
Decrease (increase) in due from parent ........................ (1,226) 442
Decrease in cash overdraft .................................... (92) --
------- -------
Net cash used in financing activities ..................... (8,048) (7,079)
------- -------
Net increase in cash ............................................ 6 (2)
Cash:
Beginning of period ........................................... -- 8
------- -------
End of period ................................................. $ 6 $ 6
======= =======
Supplemental cash flow information:
Payments of income taxes through receivable from parent ....... $ 1,710 $ 3,949
Income taxes .................................................. 32 --
Dividends/capital distributions declared but not paid ......... 1,178 2,052
</TABLE>
The accompanying notes are an integral part
of these financial statements.
21
<PAGE> 23
EVE HOLDINGS INC.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands, except per share amounts)
1. The Company
Eve Holdings Inc. ("Eve") is a wholly-owned subsidiary of Liggett Group
Inc. ("Liggett"). Eve, formed in June 1990, is the proprietor of, and has all
right, title and interest in, certain federal trademark registrations (the
"Trademarks"). Eve has entered into an exclusive licensing agreement with
Liggett (effective until 2010) whereby Eve grants the use of the Trademarks to
Liggett in exchange for royalties, computed based upon Liggett's annual net
sales, excluding excise taxes. The Trademarks are pledged as collateral for
Liggett's borrowings under the notes indentures (see Note 3).
2. Summary of Significant Accounting Policies
a. Going Concern
The accompanying financial statements have been prepared assuming that Eve
will continue as a going concern. Eve's revenues are comprised solely of
royalties and interest income from Liggett. In addition, Eve holds a note
receivable from Liggett for $44,520 due no sooner than February 1, 1999. Liggett
had a working capital deficiency of $47,292 and a net capital deficiency of
$180,011 as of September 30, 1997, is highly leveraged and has substantial
near-term debt service requirements. These matters raise substantial doubt about
Eve and Liggett meeting their liquidity needs and their ability to continue as
going concerns.
The financial statements do not include any adjustments that might result
from the outcome of this uncertainty.
b. Per Share Data
All of Eve's common shares (100 shares authorized, issued and outstanding
for all periods presented herein) are owned by Liggett. Accordingly, earnings
and dividends per share data are not presented in these financial statements.
3. Guarantee of Liggett Notes
On February 14, 1992, Liggett issued $150,000 of Senior Secured Notes (the
"Series B Notes"). In connection with the issuance of the Series B Notes, the
Trademarks were pledged as collateral. In addition, Eve is a guarantor for the
Series B Notes.
During 1994, Liggett issued $32,850 of Series C Senior Secured Notes (the
"Series C Notes"). Eve is a guarantor for the Series C Notes.
22
<PAGE> 24
4. Income Taxes
Eve qualifies as a company conducting operations exempt from income
taxation under Delaware General Statute Section 1903(b). In recent years, some
states have been aggressively pursuing companies exempt under this statute.
Eve's management believes that certain state income tax rulings supporting these
states' arguments will be ultimately reversed and that Eve's status as a company
not conducting business in these states will be respected. Consequently,
management has not provided a reserve for additional state income taxes. No
assurance can be given with regard to future state income tax rulings and audit
activity with respect to Eve.
23
<PAGE> 1
Exhibit 99.2
NEW VALLEY CORPORATION
CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
<PAGE> 2
NEW VALLEY CORPORATION AND SUBSIDIARIES
QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
TABLE OF CONTENTS
-----------------
PART I. FINANCIAL INFORMATION
<TABLE>
<CAPTION>
PAGE
Item 1. Consolidated Financial Statements:
<S> <C>
Consolidated Balance Sheets as of September 30, 1997 and
December 31, 1996............................................. 2
Consolidated Statements of Operations for the three months
and nine months ended September 30, 1997 and 1996............. 3
Consolidated Statement of Changes in Shareholders' Equity
(Deficit) for the nine months ended September 30, 1997........ 4
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1997 and 1996............................. 5
Notes to the Quarterly Consolidated Financial Statements.......... 6
</TABLE>
- 1 -
<PAGE> 3
NEW VALLEY CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
----------------- -----------------
September 30, December 31,
----------------- -----------------
1997 1996
----------------- -----------------
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents..................................... $ 16,707 $ 57,282
Investment securities available for sale...................... 65,407 61,454
Trading securities owned...................................... 51,920 29,761
Restricted assets............................................. 1,029 2,080
Receivable from clearing brokers.............................. 1,628 23,870
Other current assets.......................................... 3,774 9,273
---------- ---------
Total current assets..................................... 140,465 183,720
---------- ---------
Investment in real estate......................................... 261,597 179,571
Investment securities available for sale.......................... 2,074 2,716
Restricted assets................................................. 5,566 6,766
Long-term investments, net........................................ 19,921 13,270
Furniture and equipment, net...................................... 9,508 9,225
Other assets...................................................... 27,702 11,272
---------- ---------
Total assets............................................. $ 466,833 $406,540
========== =========
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable and accrued liabilities...................... $ 59,018 $ 44,888
Prepetition claims and restructuring accruals................. 15,723 15,526
Income taxes.................................................. 18,329 18,243
Securities sold, not yet purchased............................ 24,212 17,143
Note payable to related party................................. 12,000 --
Current portion of notes payable and long-term obligations ... 2,311 2,310
---------- ---------
Total current liabilities................................ 131,593 98,110
---------- ---------
Notes payable..................................................... 177,631 157,941
Other long-term obligations....................................... 16,409 12,282
Redeemable preferred shares....................................... 245,740 210,571
Shareholders' equity (deficit):
Cumulative preferred shares; liquidation preference of $69,769;
dividends in arrears, $133,248 and $115,944................ 279 279
Common Shares, $.01 par value; 850,000,000 shares
authorized; 9,577,624 shares outstanding................... 96 96
Additional paid-in capital.................................... 614,123 644,789
Accumulated deficit........................................... (743,798) (721,854)
Unearned compensation on stock options........................ (306) (731)
Unrealized gain on investment securities...................... 25,066 5,057
---------- ---------
Total shareholders' equity (deficit)..................... (104,540) (72,364)
---------- ---------
Total liabilities and shareholders' equity (deficit)..... $ 466,833 $406,540
========== =========
</TABLE>
See accompanying Notes to Quarterly Consolidated Financial Statements
- 2 -
<PAGE> 4
NEW VALLEY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
---------------------------------------------------------
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------------------------------------
1997 1996 1997 1996
---------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues:
Principal transactions, net................................ $ 6,131 $ 3,926 $ 11,857 $ 18,836
Commissions................................................ 4,235 4,700 11,059 13,383
Real estate leasing........................................ 7,079 5,941 19,664 17,605
Interest and dividends..................................... 2,554 4,230 6,677 14,056
Other income............................................... 6,449 2,479 21,348 19,830
---------- ---------- --------- ---------
Total revenues......................................... 26,448 21,276 70,605 83,710
---------- ---------- --------- ---------
Cost and expenses:
Operating, general and administrative...................... 30,149 24,371 79,967 88,424
Interest................................................... 4,229 4,627 12,134 13,890
Provision for loss on long-term investment................. -- -- 3,796 --
---------- ---------- --------- ---------
Total costs and expenses............................... 34,378 28,998 95,897 102,314
---------- ---------- --------- ---------
Loss from continuing operations before income taxes
and minority interest...................................... (7,930) (7,722) (25,292) (18,604)
Income tax provision (benefit).................................. 24 (233) 119 67
Minority interests in loss from continuing operations
of consolidated subsidiary................................. 1,124 384 3,098 1,082
---------- ---------- --------- ---------
Loss from continuing operations................................. (6,830) (7,105) (22,313) (17,589)
Discontinued operations:
Income (loss) from discontinued operations................. -- (5,339) 583 (4,501)
Income (loss) on sale of discontinued operations........... 256 -- (214) --
---------- ---------- --------- ---------
Total discontinued operations.............................. 256 (5,339) 369 (4,501)
---------- ---------- --------- ---------
Net loss........................................................ (6,574) (12,444) (21,944) (22,090)
Dividend requirements on preferred shares....................... (17,567) (15,400) (50,297) (46,508)
Excess of carrying value of redeemable preferred
shares over cost of shares purchased....................... -- -- -- 4,279
---------- ---------- --------- ---------
Net loss applicable to Common Shares............................ $ (24,141) $ (27,844) $ (72,241) $ (64,319)
========== ========== ========= =========
Loss per common share:
Continuing operations...................................... $ (2.55) $ (2.35) $ (7.58) $ (6.25)
Discontinued operations.................................... .03 (.56) .04 (.47)
------- ------- ------- -------
Net loss per Common Share.................................. $ (2.52) $ (2.91) $ (7.54) $ (6.72)
======= ======= ======= =======
Number of shares used in computation............................ 9,578 9,578 9,578 9,578
======= ======= ======= =======
</TABLE>
See accompanying Notes to Quarterly Consolidated Financial Statements
- 3 -
<PAGE> 5
NEW VALLEY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Unearned
Class B Compensation
Preferred Common Paid-In Accumulated on Stock Unrealized
Shares Shares Capital Deficit Options Gain
------ ------ ------- ------- ------- ----
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1996............ $279 $96 $644,789 $(721,854) $ (731) $ 5,057
Net loss........................... (21,944)
Undeclared dividends and accretion
on redeemable preferred shares... (32,996)
Unrealized gain on investment
securities....................... 20,009
Public sale of subsidiary's
common stock..................... 2,715
Adjustment to unearned
compensation on stock options.... (385) 385
Compensation expense on stock
option grants.................... 40
---- --- -------- --------- -------- --------
Balance, September 30, 1997........... $279 $96 $614,123 $(743,798) $ (306) $ 25,066
==== === ======== ========= ======== ========
</TABLE>
See accompanying Notes to Quarterly Consolidated Financial Statements
- 4 -
<PAGE> 6
NEW VALLEY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
------------------------------------
Nine Months Ended
September 30,
------------------------------------
1997 1996
------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net loss................................................................ $ (21,944) $ (22,090)
Adjustments to reconcile net loss to net cash
provided from (used for) operating activities:
Loss (income) from discontinued operations............................ (369) 4,501
Depreciation and amortization......................................... 6,635 3,507
Provision for loss on long-term investment............................ 3,796 --
Stock based compensation expense...................................... 2,213 --
Changes in assets and liabilities, net of effects from acquisitions:
Increase in receivables and other assets........................... (8,291) (5,963)
Decrease (increase) in income taxes................................ 86 (3,029)
Increase in accounts payable and accrued liabilities............... 5,951 8,786
--------- ---------
Net cash used for continuing operations.................................... (11,923) (14,288)
Net cash provided from (used for) discontinued operations.................. 1,779 (2,659)
--------- ---------
Net cash used for operating activities..................................... (10,144) (16,947)
--------- ---------
Cash flows from investing activities:
Sale or maturity of investment securities............................. 37,697 70,319
Purchase of investment securities..................................... (20,999) (17,644)
Sale or liquidation of long-term investments.......................... 2,807 14,500
Purchase of long-term investments..................................... (11,404) (2,639)
Purchase or improvements of real estate............................... (6,208) (24,882)
Sale of other assets.................................................. 5,561 --
Payment of prepetition claims......................................... (1,199) (6,723)
Return of prepetition claims paid..................................... 1,396 --
Decrease in restricted assets......................................... 2,251 29,011
Payment for acquisitions, net of cash acquired........................ (20,014) 1,915
--------- ---------
Net cash provided from (used for) investing activities..................... (10,112) 63,857
--------- ---------
Cash flows from financing activities:
Payment of preferred dividends........................................ -- (41,419)
Purchase of Class A preferred stock................................... -- (10,530)
Increase in margin loans payable...................................... -- 744
Sale of subsidiary's common stock..................................... 5,417 --
Proceeds from notes payable........................................... 19,993 --
Repayment of notes payable to related party........................... (21,500) --
Repayment of notes payable............................................ (20,703) --
Repayment of other obligations........................................ (3,526) (8,888)
--------- ---------
Net cash used for financing activities..................................... (20,319) (60,093)
--------- ---------
Net decrease in cash and cash equivalents.................................. (40,575) (13,183)
Cash and cash equivalents, beginning of period............................. 57,282 51,742
--------- ---------
Cash and cash equivalents, end of period................................... $ 16,707 $ 38,559
========= =========
</TABLE>
See accompanying Notes to Quarterly Consolidated Financial Statements
- 5 -
<PAGE> 7
NEW VALLEY CORPORATION AND SUBSIDIARIES
NOTES TO QUARTERLY CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
1. PRINCIPLES OF REPORTING
The consolidated financial statements include the accounts of New Valley
Corporation and Subsidiaries (the "Company"). The consolidated financial
statements as of September 30, 1997 presented herein have been prepared by
the Company without an audit. In the opinion of management, all
adjustments, consisting only of normal recurring adjustments, necessary to
present fairly the financial position as of September 30, 1997 and the
results of operations and cash flows for all periods presented have been
made. Results for the interim periods are not necessarily indicative of
the results for an entire year.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
These financial statements should be read in conjunction with the
consolidated financial statements in the Company's Annual Report on Form
10-K for the year ended December 31, 1996, as filed with the Securities
and Exchange Commission.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income"
(SFAS 130). SFAS 130 establishes standards for reporting and display of
comprehensive income. The purpose of reporting comprehensive income is to
present a measure of all changes in equity that result from recognized
transactions and other economic events of the period other than
transactions with owners in their capacity as owners. SFAS 130 requires
that an enterprise classify items of other comprehensive income by their
nature in the financial statement and display the accumulated balance of
other comprehensive income separately from retained earnings and
additional paid-in capital in the equity section of the balance sheet.
SFAS 130 is effective for fiscal years beginning after December 15, 1997,
with earlier application permitted. The Company has not yet determined the
impact of the implementation of SFAS 130.
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" (SFAS 131). SFAS 131 specifies revised
guidelines for determining an entity's operating segments and the type and
level of financial information to be disclosed. Once operating segments
have been determined, SFAS 131 provides for a two-tier test for
determining those operating segments that would need to be disclosed for
external reporting purposes. In addition to providing the required
disclosures for reportable segments, SFAS 131 also requires disclosure of
certain "second level" information by geographic area and for
products/services. SFAS 131 also makes a number of changes to existing
disclosure requirements. SFAS 131 is effective for fiscal years beginning
after December 15, 1997, with earlier application encouraged. The Company
has not yet determined the impact of the implementation of SFAS 131.
- 6 -
<PAGE> 8
NEW VALLEY CORPORATION AND SUBSIDIARIES
NOTES TO QUARTERLY CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
2. ACQUISITION
On January 31, 1997, the Company entered into a stock purchase agreement
(the "Purchase Agreement") with Brooke (Overseas) Ltd. ("Brooke
(Overseas)"), a wholly-owned subsidiary of Brooke Group Ltd. ("Brooke"), a
related party through the ownership of an approximate 42% voting interest
in the Company. Pursuant to the Purchase Agreement, the Company acquired
10,483 shares (the "BML Shares") of the common stock of BrookeMil Ltd.
("BML") from Brooke (Overseas) for a purchase price of $55,000, consisting
of $21,500 in cash and a $33,500 9% promissory note of the Company (the
"Note"). The BML Shares comprise 99.1% of the outstanding shares of BML, a
real estate development company in Russia. The Note is collateralized by
the BML Shares and, as of September 30, 1997, had a balance of $12,000
which is payable on December 31, 1997. The note was subsequently reduced
to a balance of $8,500 as of November 13, 1997.
BML is developing a three-phase complex on 2.2 acres of land in downtown
Moscow, for which it has a 49-year lease. In 1993, the first phase of the
project, Ducat Place I, a 46,500 sq. ft. Class-A office building, was
constructed and leased. On April 18, 1997, BML sold Ducat Place I to one
of its tenants for approximately $7,500, which purchase price has been
reduced to reflect prepayments of rent. In 1997, BML completed
construction of Ducat Place II, a 150,000 sq. ft. office building, which
has been substantially pre-leased to a number of leading international
companies. The third phase, Ducat Place III, is planned as a 400,000 sq.
ft. mixed-use complex, with construction anticipated to commence in 1999.
The Company is currently evaluating plans for financing the construction
of Ducat Place III.
The acquisition was treated as a purchase for financial reporting purposes
and, accordingly, these consolidated financial statements include the
operations of BML from the date of acquisition.
The purchase price was allocated as follows: current assets of
approximately $9,000, investment in real estate of $79,200, other assets
of $8,800, assumption of current liabilities of $35,146 and long-term
liabilities of $6,854. Current assets consisted primarily of an asset held
for sale of $6,400 related to the estimated proceeds from the sale of
Ducat Place I, net of $1,100 in accrued closing costs. Liabilities
included a $20,400 loan to a Russian bank for the construction of Ducat
Place II ("Construction Loan"). In addition, the liabilities of BML
included approximately $13,800 of rents and related payments prepaid by
tenants of Ducat Place II for periods generally ranging from 15 to 18
months. Proforma operating results for the nine months ended September 30,
1997 and 1996 are not presented herein as the historical operating results
of BML are not material to the historical operating results of the
Company.
In August 1997, BML refinanced all amounts due under the Construction Loan
with borrowings under a new credit facility with a Russian bank. The new
credit facility bears interest at 16% per year, matures no later than
August 2002, with principal payments commencing after the first year, and
is collateralized by a mortgage on Ducat Place II and guaranteed by the
Company. At September 30, 1997, borrowings under the new credit agreement
totaled $19,993.
- 7 -
<PAGE> 9
NEW VALLEY CORPORATION AND SUBSIDIARIES
NOTES TO QUARTERLY CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
The components of the Company's investment in real estate at September 30,
1997 are as follows:
<TABLE>
<CAPTION>
U.S. BML TOTAL
---- --- -----
<S> <C> <C> <C>
Land .................................. $ 36,162 $ 20,773 $ 56,935
Buildings............................... 147,033 65,000 212,033
Construction-in-progress................ 29 -- 29
--------- --------- ---------
Total............................. 183,224 85,773 268,997
Less: accumulated depreciation......... (6,994) (406) (7,400)
-------- --------- --------
Net investment in real estate..... $176,230 $ 85,367 $261,597
======== ========= ========
</TABLE>
On November 10, 1997, the Company sold one of its shopping centers located
in Marathon, Florida for $5,400 which resulted in a gain on sale of
approximately $1,200.
3. DISCONTINUED OPERATIONS
During the fourth quarter of 1996, Thinking Machines Corporation
("Thinking Machines") adopted a plan to terminate its parallel processing
computer sales and service business. Consequently, the operating results
of this segment have been classified as discontinued operations, and the
quarterly results for 1996 have been reclassified. Accordingly, the
financial statements reflect the financial position and the results of
operations of the discontinued operations of Thinking Machines separately
from continuing operations.
Summarized operating results of the discontinued operations of Thinking
Machines are as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues......................... $ -- $ 3,318 $3,386 $12,115
========== ======= ===== ======
Operating income (loss).......... $ -- $ (9,409) $ 950 $ (8,044)
========== ======= ====== =======
Income (loss) before income
taxes and minority interests.. $ -- $ (9,409) $ 950 $ (8,044)
Minority interests............... $ -- 4,070 (367) 3,543
---------- ------- ------ -------
Net income (loss)................ $ -- $ (5,339) $ 583 $ (4,501)
========== ======= ====== =======
</TABLE>
In April 1997, Thinking Machines sold the remaining part of its
discontinued operations for $2,405 in cash and a percentage of certain
future operating profits. The sale resulted in the Company recording a
loss on disposal of discontinued operations of $470, after the recognition
of minority interests of $592 and the write-off of goodwill of $1,410. In
July 1997, Thinking Machines received its first installment on the
operating profits from the discontinued operations which the Company
recorded as a gain on discontinued operations of $256.
4. INCOME TAXES
At September 30, 1997, the Company had approximately $100,000 of
unrecognized net deferred tax assets, comprised primarily of net operating
loss carryforwards, available to offset future taxable income for federal
tax purposes. A valuation allowance has been provided against the amount
as it is deemed more likely than not that the benefit of the deferred tax
assets will not be utilized. The Company continues to evaluate the
realizability of the deferred tax assets and its estimate is subject to
change. The income tax provision (benefit), which principally represented
the effects of state income taxes, for the nine months ended September 30,
1997 and 1996, does not bear a customary relationship with pre-tax
accounting income principally as a consequence of the change in the
valuation allowance relating to deferred tax assets.
- 8 -
<PAGE> 10
NEW VALLEY CORPORATION AND SUBSIDIARIES
NOTES TO QUARTERLY CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
5. INVESTMENT SECURITIES AVAILABLE FOR SALE
Investment securities classified as available for sale are carried at fair
value, with net unrealized gains included as a separate component of
shareholders' equity (deficit). The Company had realized gains on sales of
investment securities available for sale of $1,466 and $8,518 for the
three and nine months ended September 30, 1997, respectively.
The components of investment securities available for sale at September
30, 1997 are as follows:
<TABLE>
<CAPTION>
GROSS GROSS
UNREALIZED UNREALIZED FAIR
COST GAIN LOSS VALUE
---- ---- ---- -----
<S> <C> <C> <C>
Marketable equity securities:
RJR Nabisco common stock................ $23,378 $ 2,838 $26,216
Other marketable equity securities...... 10,604 24,395 $ 557 34,442
------ ------ -------- ------
Total marketable equity securities... 33,982 27,233 557 60,658
Marketable debt securities (short-term)....... 4,749 -- -- 4,749
Marketable debt securities (long-term)........ 3,684 -- 1,610 2,074
------- ---------- ------- -------
Total securities available for sale........... 42,415 27,233 2,167 67,481
Less long-term portion of investment
securities.............................. 3,684 -- 1,610 2,074
------- ---------- ------- -------
Investment securities - current portion....... $38,731 $27,233 $ 577 $65,407
====== ====== ======== ======
</TABLE>
As of September 30, 1997, the long-term portion of investment securities
available for sale consisted of marketable debt securities which mature in
two years.
In October 1997, the Company sold certain appreciated securities and
recognized a gain of approximately $11,000.
6. LONG-TERM INVESTMENTS
At September 30, 1997, long-term investments consisted primarily of
investments in limited partnerships of $18,719 and an equity investment in
a company of $1,000. The Company determined that an other than temporary
impairment in the value of its investment in a joint venture had occurred
and wrote-down this investment to zero in March 1997 with a charge to
operations of $3,796. The fair value of the Company's long-term
investments approximates its carrying amount. The Company's estimates of
the fair value of its long-term investments are subject to judgment and
are not necessarily indicative of the amounts that could be realized in
the current market.
In January 1997, the Company converted an investment in preferred stock
made in 1995 into a majority equity interest in a small on-line directory
assistance development stage company and, accordingly, began consolidating
the results of this company. This long-term investment of $1,001 was
written off in 1996 due to continuing losses of this company. In May 1997,
this company completed an initial public offering and, as a result, the
Company recorded $2,715 as additional paid-in capital which represented
its 50.1% ownership in this company's shareholders' equity after this
offering.
- 9 -
<PAGE> 11
NEW VALLEY CORPORATION AND SUBSIDIARIES
NOTES TO QUARTERLY CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
The Company is required under certain limited partnership agreements to
make additional investments up to an aggregate of $13,000 as of September
30, 1997. The Company's investments in limited partnerships are illiquid
and the ultimate realization of these investments are subject to the
performance of the underlying partnership and its management by the
general partners.
7. REDEEMABLE PREFERRED SHARES
At September 30, 1997, the Company had authorized and outstanding
2,000,000 and 1,071,462, respectively, of its Class A Senior Preferred
Shares. At September 30, 1997 and December 31, 1996, respectively, the
carrying value of such shares amounted to $245,740 and $210,571, including
undeclared dividends of $150,871 and $117,117, or $140.81 and $109.31 per
share. As of September 30, 1997, the unamortized discount on the Class A
Senior Preferred Shares was $5,057.
For the nine months ended September 30, 1997, the Company recorded $2,173
in compensation expense related to certain Class A Senior Preferred Shares
awarded to an officer of the Company in 1996. At September 30, 1997, the
balance of the deferred compensation and the unamortized discount related
to these award shares was $4,302 and $2,870, respectively.
8. PREFERRED SHARES NOT SUBJECT TO REDEMPTION REQUIREMENTS
The undeclared dividends, as adjusted for conversions of Class B Preferred
Shares into Common Shares, cumulatively amounted to $133,248 and $115,944
at September 30, 1997 and December 31, 1996, respectively. These
undeclared dividends represent $47.75 and $41.55 per share as of the end
of each period. No accrual was recorded for such undeclared dividends as
the Class B Preferred Shares are not mandatorily redeemable.
9. PREPETITION CLAIMS UNDER CHAPTER 11 AND RESTRUCTURING ACCRUALS
Those liabilities that are expected to be resolved as part of the
Company's First Amended Joint Chapter 11 Plan of Reorganization, as
amended (the "Joint Plan"), are classified in the Consolidated Balance
Sheets as prepetition claims and restructuring accruals. On January 18,
1995, approximately $550 million of prepetition claims were paid pursuant
to the Joint Plan. The prepetition claims remaining as of September 30,
1997 of $15,723 may be subject to future adjustments depending on pending
discussions with the various parties and the decisions of the Bankruptcy
Court.
10. CONTINGENCIES
LITIGATION
On or about March 13, 1997, a shareholder derivative suit was filed
against the Company, as a nominal defendant, its directors and Brooke in
the Delaware Chancery Court, by a shareholder of the Company. The suit
alleges that the Company's purchase of the BML Shares constituted a
self-dealing transaction which involved the payment of excessive
consideration by the Company. The plaintiff seeks (i) a declaration that
the Company's directors breached their fiduciary duties, Brooke aided and
abetted such breaches and such parties are therefore liable to the
Company, and (ii) unspecified damages to be awarded to the Company. The
Company's time to respond to the complaint has not yet expired. The
Company believes that the allegations are without merit, and it intends to
defend the suit vigorously.
- 10 -
<PAGE> 12
NEW VALLEY CORPORATION AND SUBSIDIARIES
NOTES TO QUARTERLY CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
The Company is also a defendant in various other lawsuits and may be
subject to unasserted claims primarily in connection with its activities
as a securities broker-dealer and participation in public underwritings.
These lawsuits involve claims for substantial or indeterminate amounts and
are in varying stages of legal proceedings. In the opinion of management,
after consultation with counsel, the ultimate resolution of these matters
will not have a material adverse effect on the Company's consolidated
financial position, results of operations, or cash flows.
Risks and Uncertainties
BML's real estate development and management operations in Russia could be
affected by uncertainties in Russia which may include, among others,
political or diplomatic developments, regional tensions, currency
repatriation restrictions, foreign exchange fluctuations, inflation, and
an undeveloped system of commercial laws and legislative reform relating
to foreign ownership in Russia.
- 11 -
<PAGE> 1
Exhibit 99.3
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
<PAGE> 2
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Consolidated Balance Sheets as of September 30, 1997 and December 31, 1996.......................... 2
Consolidated Statements of Operations for the three months and nine months
ended September 30, 1997 and September 30, 1996............................................... 3
Consolidated Statement of Stockholder's Equity (Deficit) for the nine months
ended September 30, 1997...................................................................... 4
Consolidated Statements of Cash Flows for the nine months ended September 30, 1997
1997 and September 30, 1996................................................................... 5
Notes to Consolidated Financial Statements.......................................................... 6
</TABLE>
- 1 -
<PAGE> 3
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ...................................... $ 2,191 $ 1,875
Accounts receivable - trade .................................... 538 166
Receivables from affiliates .................................... 12,178
Inventories .................................................... 3,567 3,569
Prepaid expenses and other ..................................... 2,496 2,640
-------- ---------
Total current assets ........................................ 20,970 8,250
Property, plant and equipment, at cost, less
accumulated depreciation of $751 and $676 .................. 20,286 59,607
Goodwill, net .................................................... 1,031 1,094
Deferred finance costs ........................................... 2,805
Other ............................................................ 5 540
-------- ---------
Total assets ................................................ $ 42,292 $ 72,296
======== =========
LIABILITIES AND STOCKHOLDER'S EQUITY (DEFICIT)
Current liabilities:
Notes payable and current portion of long-term debt ............ $ 1,000 $ 21,658
Cash overdrafts ................................................ 973
Accounts payable - trade ....................................... 2,948 13,074
Due to affiliates .............................................. 56,851 48,875
Unearned revenue ............................................... 158 7,406
Accrued taxes .................................................. 7,812 8,474
Taxes due to affiliate ......................................... 11,741
Accrued interest ............................................... 597
Other accrued liabilities ...................................... 3,190 2,692
-------- ---------
Total current liabilities ................................... 83,673 102,776
Deferred gain .................................................... 2,253 1,494
Unearned revenue ................................................. 9,458
Other liabilities ................................................ 25,498
Commitments and contingencies
Stockholder's equity (deficit):
Common stock, par value $1 per share, 701,000 shares authorized,
authorized, issued and outstanding .......................... 701 701
Additional paid-in-capital ..................................... 5,600 3,400
Deficit ........................................................ (76,433) (45,533)
-------- ---------
Total stockholder's equity (deficit) ........................ (70,132) (41,432)
-------- ---------
Total liabilities and stockholder's equity (deficit) ........ $ 42,292 $ 72,296
======== =========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
- 2 -
<PAGE> 4
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
--------------------------------------------------------------
Three Months Ended Nine Months Ended
--------------------------------------------------------------
--------------------------------------------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
1997 1996 1997 1996
--------------- --------------- --------------- --------------
<S> <C> <C> <C> <C>
Net sales............................................. $ 20,940 $ 13,509 $ 53,095 $ 35,006
Cost of sales......................................... 17,224 12,897 43,847 33,070
-------- -------- ------- --------
Gross profit.......................................... 3,716 612 9,248 1,936
Operating, selling, administrative and
general expenses............................... 2,318 3,211 6,236 8,213
-------- -------- ------- --------
Operating income (loss)............................... 1,398 (2,599) 3,012 (6,277)
Other income (expense):
Interest income.................................... 273 2 1,424
Interest expense................................... (2,366) (1,859) (6,890) (5,806)
Gain on sale of stock.............................. 27,055
Gain on foreign currency exchange.................. 60 357 370 917
Other, net......................................... (21) (74) (121) (764)
-------- -------- ------- --------
(Loss) income before income taxes..................... (656) (4,173) 24,850 (11,930)
(Benefit) provision for income taxes.................. (248) 1,145 12,279 1,343
-------- -------- ------- --------
Net income (loss)..................................... $ (408) $ (5,318) $12,571 $(13,273)
======== ======== ======= ========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
- 3 -
<PAGE> 5
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDER'S EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Common Stock Additional
------------ Paid-in
Shares Amount Capital Deficit Total
------ ------ ---------- ------- -----
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1996 ..... 701,000 $ 701 $3,400 $(45,533) $(41,432)
Net income ..................... 12,571 12,571
Distributions to parent ........ (43,471) (43,471)
Capital contribution ........... 2,200 2,200
-------- -------- ------ -------- --------
Balance, September 30, 1997 .... 701,000 $ 701 $5,600 $(76,433) $(70,132)
======== ======== ====== ======== ========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
- 4 -
<PAGE> 6
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
--------------------------------------
Nine Months Ended
--------------------------------------
--------------------------------------
September 30, September 30,
1997 1996
--------------------------------------
<S> <C> <C>
Net cash provided by operating activities..................... $ 10,841 $ 4,506
-------- --------
Cash flows from investing activities:
Capital expenditures.................................... (11,574) (21,002)
Proceeds from sale of BML, net.......................... 41,502
Proceeds from sale of stock in Liggett-Ducat, net....... 1,600
Proceeds from sale of option to purchase
stock in Liggett-Ducat................................ 2,200 3,400
-------- --------
Net cash provided by (used in) investing activities........... 32,128 (16,002)
-------- --------
Cash flows from financing activities:
Proceeds from debt...................................... 4,723 12,442
Repayments of debt...................................... (3,905) (1,375)
Borrowings under credit facility........................ 644
Repayments on credit facility........................... (800)
Distributions paid to parent............................ (43,471)
-------- --------
Net cash (used in) provided by financing activities........... (42,653) 10,911
-------- --------
Net increase (decrease) in cash and cash equivalents.......... 316 (585)
Cash and cash equivalents, beginning of period................ 1,875 1,660
-------- --------
Cash and cash equivalents, end of period...................... $ 2,191 $ 1,075
======== ========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
- 5 -
<PAGE> 7
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
1. ORGANIZATION
Brooke (Overseas) Ltd. ("the Company"), a Delaware corporation, is a
wholly-owned subsidiary of BGLS Inc. ("BGLS") and an indirect
subsidiary of Brooke Group Ltd. ("Brooke"). The consolidated financial
statements of the Company include Liggett-Ducat Ltd. ("Liggett-Ducat"),
a Russian closed joint stock company engaged in the manufacture and
sale of cigarettes in Russia, Liggett-Ducat Tobacco Ltd. ("LDT"), a
wholly-owned subsidiary engaged in the construction of a new cigarette
factory, and, prior to January 31, 1997, BrookeMil Ltd. ("BML"), a
wholly-owned subsidiary engaged in construction of office buildings and
property management in Moscow, Russia.
On July 5, 1996, Liggett Group Inc. ("Liggett"), a wholly-owned
subsidiary of BGLS, purchased from the Company 140,000 shares (19.97%)
of the tobacco operations of Liggett-Ducat for $2,100. In addition,
Liggett acquired a ten-year option entitling Liggett to increase its
ownership in Liggett-Ducat to 95%. On March 13, 1997, Liggett acquired
a second option to purchase all remaining shares of Liggett-Ducat (an
additional 33%) from the Company for $2,200. Of that amount, $2,050 was
paid in cash and the Company recorded a receivable of $150.
In December 1996, the Company cancelled BML intercompany debt in
exchange for 10,483 shares of newly issued BML common stock. These
shares represent 99.1% of the outstanding shares of BML. On January 31,
1997, such shares were sold to New Valley Corporation ("New Valley").
(Refer to Note 3.)
The interim consolidated financial statements of the Company are
unaudited and, in the opinion of management, reflect all adjustments
necessary (which are normal and recurring) to present fairly the
Company's consolidated financial position, results of operations and
cash flows. These consolidated financial statements should be read in
conjunction with the consolidated financial statements and the notes
thereto included as Exhibit 99.4 in Brooke's and BGLS' Annual Report on
Form 10-K, as amended, for the year ended December 31, 1996, as filed
with the Securities and Exchange Commission. The consolidated results
of operations for interim periods should not be regarded as necessarily
indicative of the results that may be expected for the entire year.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosures of contingent assets and liabilities and
the reported amounts of revenues and expenses. Actual results could
differ from those estimates.
Certain amounts in the 1996 consolidated financial statements have been
reclassified to conform to the 1997 presentation.
- 6 -
<PAGE> 8
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
LIQUIDITY:
The Company has historically relied on Brooke and BGLS for sources of
financing. At September 30, 1997, the Company had net capital and
working capital deficiencies of $70,132 and $63,703, respectively. The
Company has upgraded the cigarette operations' tobacco processing
complex and significantly increased production while continuing to
implement cost-saving measures. Liggett-Ducat plans to begin the
manufacture and marketing of western style cigarettes in 1998.
Management believes that such activities will result in improved
operations and cash flow, but there can be no assurances in this
regard. In addition, the Company is in the process of constructing a
new tobacco factory as discussed in Note 5 and is actively pursuing
various potential financing alternatives related thereto.
3. SALE OF BROOKEMIL
On January 31, 1997, the Company sold its 99.1% of the outstanding
shares of BML to New Valley for $21,500 in cash and a promissory note
of $33,500, collateralized by the BML shares, payable during 1997 with
an annual interest rate of 9%. The consideration received exceeded the
carrying value of the Company's investment in BML by $52,500. The
Company recognized an immediate gain on the sale in the amount of
$25,500. The remaining $27,000 was deferred, reflecting recognition
that the Company's parent, BGLS, retains an interest in BML through its
42% equity ownership in New Valley, and that further, a portion of the
property sold is subject to a put option held by New Valley. This
option allows New Valley, under certain circumstances, to put a portion
of the property sold back to the Company at the greater of the
appraised fair value of the property at the date of exercise or
$13,600. The Company distributed the $21,500 cash proceeds received
from the sale of BML to BGLS on January 31, 1997. During the second
quarter 1997, New Valley paid $21,500 to BOL, representing a portion of
the promissory note together with accrued interest thereon. As of
September 30, 1997, the balance remaining on the note was $12,000,
subsequently reduced to $8,500. The balance is due on or before
December 31, 1997. As of September 30, 1997, BOL had distributed to
BGLS $21,500 in proceeds received from the New Valley note together
which accrued interest thereon.
On April 18, 1997, BML sold one of its office buildings, Ducat Place I,
to a third party. Accordingly, the Company recognized approximately
$1,490 of the deferred gain. At September 30, 1997, the balance of the
deferred gain was approximately $25,500.
In connection with the sale of the BML shares, certain specified
liabilities aggregating $40,800 remained with BML, including the
Vneshtorgbank loan with a balance of $20,418 which was paid in full
during the third quarter, 1997. Further, the Company, Brooke and BGLS
each contributed to the capital of BML, through cancellation of all
indebtedness of BML to each such entity, the aggregate amount of which
was $19,275 including accrued interest thereon. In addition,
Liggett-Ducat entered into a Use Agreement with BML whereby
Liggett-Ducat is permitted to continue to utilize the existing factory
site on the
- 7 -
<PAGE> 9
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
same basis as in the past which includes obligations for costs involved
in carrying the site. The Use Agreement is terminable by BML on 270
days' prior notice.
4. INVENTORIES
Inventories consist of:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
<S> <C> <C>
Finished goods........................... $ 5 $
Work-in-process.......................... 227 53
Raw materials............................ 2,394 2,664
Replacement parts and supplies........... 941 852
------ ------
$3,567 $3,569
====== ======
</TABLE>
The Company has a leaf inventory management program whereby, among
other things, it is committed to purchase certain quantities of leaf
tobacco. The purchase commitments are for quantities not in excess of
anticipated requirements and are at prices established at the date of
the commitment. At September 30, 1997, the Company had leaf tobacco
purchase commitments of approximately $23,900.
5. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consists of:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
<S> <C> <C>
Buildings................................ $ $ 8,064
Factory machinery and equipment.......... 10,564 4,419
Computers and software................... 308 289
Office furniture and equipment........... 245 129
Vehicles................................. 457 416
Construction-in-progress................. 9,463 46,966
------- -------
21,037 60,283
Less accumulated depreciation............ 751 676
------- -------
$20,286 $59,607
======= =======
</TABLE>
On May 6, 1997, LDT entered into two contracts for construction of a
new tobacco factory on the outskirts of Moscow which provide for
payments of $1,700 over a three-month period ending July 1997 and
$18,760 over a twelve-month period ending July 1998. A pre-construction
payment of $520 was paid in April 1997.
On September 9, 1997, the Company entered into a contract to purchase
cigarette manufacturing and processing equipment to be used in the new
factory for $15,000. Of
- 8 -
<PAGE> 10
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
this amount, $12,750 will be financed by a series of ten promissory
notes payable every six months at 6.71% per annum interest with the
first note due in 1999. Brooke is a guarantor of the notes.
On September 24, 1997, the Company entered into an additional contract
to purchase cigarette manufacturing and processing equipment to be used
in the new factory for $12,400, of which $10,500 will be financed by a
series of sixty promissory notes payable monthly at 7.5% per annum
interest. The first note will be due six months after delivery of the
equipment. Delivery is estimated to be completed by September 1998.
6. NOTES PAYABLE, LONG-TERM DEBT AND OTHER OBLIGATIONS
Notes payable, long-term debt and other obligations consist of:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
<S> <C> <C>
Bank loan................................... $ $ 20,418
Deferred financing fees..................... 1,240
Other obligations........................... 3,253
------- --------
Total....................................... 3,253 21,658
Less current maturities..................... 1,000 21,658
------- --------
Amount due after one year................... $ 2,253 $
======= ========
</TABLE>
In October 1995, Liggett-Ducat entered into a loan agreement with
Vneshtorgbank to borrow up to $20,418 to fund real estate development.
At December 31, 1996, BML had drawn down $20,418 of the loan. In
connection with the sale of BML to New Valley, the Russian bank loan
remained at BML and the Company and Brooke, as guarantor, were
indemnified by New Valley with respect to this liability. The loan was
repaid in full by BML in August 1997. (Refer to Note 3.)
REVOLVING CREDIT FACILITIES:
In February and March 1997, the Company obtained lines of credit in the
amounts of $1,000 at 28% per annum and $2,000 at 26%, respectively, in
order to secure tobacco commitment purchases. The lines of credit were
extended in May 1997 and interest rates reduced to 23%. Also in April
1997, an additional $1,000 line of credit was obtained. Lines of credit
expired in August and September 1997 and any balance outstanding was
paid in full.
7. RELATED PARTY TRANSACTIONS
The Company has obtained funding through a revolving credit facility
with Brooke and BGLS at an annual interest rate of 20% to cover certain
expenses including the cost of certain administrative services and
personnel, tobacco and material purchases and upgrades of factory
equipment. The amount due to Brooke and BGLS under this facility
- 9 -
<PAGE> 11
BROOKE (OVERSEAS) LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
at September 30, 1997 was $40,208 together with interest of $16,543. As
of such date, $19,513 together with interest of $8,067 is due to the
Company from Liggett-Ducat and LDT, which amounts are collateralized by
a pledge of the LDT stock.
On April 28, 1997, the Company purchased excess production equipment
from Liggett for $3,000.
8. INCOME TAXES
The entire 1996 and a portion ($538) of the 1997 provision for income
taxes is payable pursuant to Russian statutory requirements. Further,
the Company has recorded a provision for income taxes of $11,741
related to its sale of BML in 1997 in accordance with its tax sharing
agreement with Brooke.
The provision for taxes for the nine months ended September 30, 1997
and 1996 does not bear the customary relationship to the pretax
loss/income for the Company due principally to the effects of taxes
provided for foreign operations and an increase in the valuation
allowance related to deferred tax assets.
9. CONTINGENCIES
BGLS has pledged its ownership interest in the Company's Common Stock
as collateral in connection with the issuance of BGLS' 15.75% Senior
Secured Notes ("BGLS Notes") due 2001. Liggett has engaged in
negotiations with its note holders to restructure the terms of its
Senior Secured Notes. During such negotiations, BGLS postponed making
its interest payment due on July 31, 1997 of approximately $18,338 on
the BGLS Notes. A Standstill Agreement and Consent (the "Standstill
Agreement") was reached on August 28, 1997, as amended, among the
holders of more than 83% of the BGLS Notes and BGLS whereby each of
such principal holders of the BGLS Notes waived the right to receive on
August 29, 1997 its pro rata share of the July 31, 1997 interest
payment (in total, $15,340). On August 29, 1997, BGLS made the interest
payment on the BGLS Notes to all holders other than the principal
holders discussed above. Pending completion of the negotiations with
the principal holders, such holders have agreed with BGLS that they
will be entitled to receive their portion of the July 31, 1997 interest
payment only after giving BGLS 20 days' notice but in any event by
December 10, 1997.
- 10 -
<PAGE> 1
Exhibit 99.4
NEW VALLEY HOLDINGS, INC.
FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
<PAGE> 2
NEW VALLEY HOLDINGS, INC.
FINANCIAL STATEMENTS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
-----
<S> <C>
Balance Sheets as of September 30, 1997 and December 31, 1996.................................. 2
Statements of Operations for the three months and nine months ended
September 30, 1997 and September 30, 1996................................................. 3
Statement of Stockholder's Equity (Deficit) for the nine months ended
September 30,1997......................................................................... 4
Statements of Cash Flows for the nine months ended September 30, 1997
and September 30, 1996.................................................................... 5
Notes to Financial Statements.................................................................. 6
</TABLE>
- 1 -
<PAGE> 3
NEW VALLEY HOLDINGS, INC.
BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------ ------------
<S> <C> <C>
ASSETS
Cash and cash equivalents ...................................... $ 7 $ 1
Investment in New Valley: ...................................... -------- ---------
Redeemable preferred stock ................................... 56,886 72,962
Common stock ................................................. (56,886) (72,962)
-------- ---------
Total investment in New Valley ............................... -------- ---------
Total assets ................................................... $ 7 $ 1
======== =========
LIABILITIES AND STOCKHOLDER'S EQUITY (DEFICIT)
Payable to parent .............................................. $ 45 $ 4
Accrued expenses ............................................... 7
Current income taxes payable to parent ......................... 6,302 6,312
-------- ---------
Total liabilities .............................................. 6,347 6,323
-------- ---------
Commitments and contingencies
Common stock, $0.01 par value, 100 shares authorized,
issued and outstanding
Additional paid-in capital ..................................... 7,633 7,633
Deficit ........................................................ (21,973) (727)
Other .......................................................... 8,000 (13,228)
-------- ---------
Total stockholder's equity (deficit) ........................... (6,340) (6,322)
-------- ---------
Total liabilities and stockholder's equity (deficit) ........... $ 7 $ 1
======== =========
</TABLE>
The accompanying notes are an integral part
of the financial statements.
- 2 -
<PAGE> 4
NEW VALLEY HOLDINGS, INC.
STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
---------------------------------------------------------------------
Three Months Ended Nine Months Ended
---------------------------------------------------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
1997 1996 1997 1996
---------------------------------------------------------------------
<S> <C> <C> <C> <C>
Equity in loss of New Valley.............................. $(7,018) $ (4,836) $(21,343) $(7,818)
Interest income........................................... 7 6 55
General and administrative expenses ...................... (4) (13) (34) (17)
------- -------- -------- -------
Loss from continuing operations before
income taxes......................................... (7,022) (4,842) (21,371) (7,780)
------- -------- -------- -------
(Benefit) provision for income taxes:
Current................................................ (2) 1,297 (10) 1,745
Deferred............................................... (24) 7,212 (40) 4,004
------- -------- -------- -------
Income tax (benefit) provision............................ (26) 8,509 (50) 5,749
------- -------- -------- -------
Loss from continuing operations........................... (6,996) (13,351) (21,321) (13,529)
Income from discontinued operations of
New Valley, net of income taxes........................ 45 75
------- -------- -------- -------
Net loss.................................................. $(6,951) $(13,351) $(21,246) $(13,529)
======= ======== ======== ========
</TABLE>
The accompanying notes are an integral part
of the financial statements.
- 3 -
<PAGE> 5
NEW VALLEY HOLDINGS, INC.
STATEMENT OF STOCKHOLDER'S EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Additional
Common Stock Paid-In
Shares Amount Capital Deficit Other Total
------ ------ ------- ------- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1996.......... 100 $7,633 $ (727) $(13,228) $ (6,322)
Proportionate share of New
Valley's capital transactions..... 9,435 9,435
Unrealized holding gain on
investment in New Valley.......... 11,793 11,793
Net loss............................ (21,246) (21,246)
--- --------- ------ -------- -------- ------
Balance, September 30, 1997......... 100 $ $7,633 $(21,973) $ 8,000 $ 6,340
=== ========= ====== ======== ======== ========
</TABLE>
The accompanying notes are an integral part
of the financial statements.
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<PAGE> 6
NEW VALLEY HOLDINGS, INC.
STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
---------------------------------------------
Nine Months Ended
---------------------------------------------
September 30, September 30,
1997 1996
---------------------------------------------
<S> <C> <C>
Net cash provided by operating activities................................ $ 6 $ 49
--------- -----------
Cash flows from investing activities:
Dividends received from New Valley..................................... 24,733
--------- -----------
Net cash provided by investing activities................................ 24,733
--------- -----------
Cash flows from financing activities:
Distributions paid to parent........................................... (25,507)
--------- -----------
Net cash used in financing activities.................................... (25,507)
--------- -----------
Net increase (decrease) in cash and cash equivalents..................... 6 (725)
Cash and cash equivalents at beginning of period......................... 1 726
--------- -----------
Cash and cash equivalents at end of period............................... $ 7 $ 1
========= ===========
</TABLE>
The accompanying notes are an integral part
of the financial statements.
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<PAGE> 7
NEW VALLEY HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
1. PRINCIPLES OF REPORTING
Organization. New Valley Holdings, Inc. (the "Company") was formed on
September 9, 1994 by BGLS Inc. ("BGLS") to act as a holding company for
certain stock investments in New Valley Corporation ("New Valley"). BGLS
owns 100% of the authorized, issued and outstanding common stock of the
Company. BGLS is a wholly-owned subsidiary of Brooke Group Ltd.
("Brooke").
The interim financial statements of the Company are unaudited and, in the
opinion of management, reflect all adjustments necessary (which are normal
and recurring) to present fairly the Company's financial position, results
of operations and cash flows. These financial statements should be read in
conjunction with the financial statements and the notes thereto included
as Exhibit 99.3 in Brooke's and BGLS' Annual Report on Form 10-K, as
amended, for the year ended December 31, 1996, as filed with the
Securities and Exchange Commission. The results of operations for interim
periods should not be regarded as necessarily indicative of the results
that may be expected for the entire year.
Certain amounts in the 1996 financial statements have been reclassified to
conform to the 1997 presentation.
USE OF ESTIMATES AND ASSUMPTIONS:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities and the reported amounts
of revenues and expenses. Actual results could differ from those
estimates.
2. INVESTMENT IN NEW VALLEY CORPORATION
The Company's investment in New Valley at September 30, 1997 is summarized
below:
<TABLE>
<CAPTION>
Unrealized
Number of Fair Carrying Holding
Shares Value Amount Loss
--------- ------- --------- -----------
<S> <C> <C> <C> <C>
Class A Preferred Shares....... 618,326 $56,886 $ 56,886 $(13,089)
Common Shares.................. 3,969,962(A) 3,474 (56,886)
------- -------- --------
$60,360 $ $(13,089)
======= ======== ========
</TABLE>
(A) Gives effect to July 1996 one-for-twenty reverse stock split.
The $15.00 Class A Increasing Rate Cumulative Senior Preferred Shares
($100 Liquidation Value), $.01 par value (the "Class A Preferred Shares"),
are accounted for as debt securities pursuant to the requirements of
Statement of Financial Accounting Standards ("SFAS") No. 115, "Accounting
for Certain Investments in Debt and Equity Securities", and are classified
as available-for-sale. Through September 1996, earnings on the Class A
Preferred Shares were comprised of dividends accrued during the period and
the accretion of the difference between the Company's basis and their
mandatory redemption price. New Valley's Common Shares, $.01 par value
(the "Common Shares") were accounted for pursuant to APB No. 18, "The
Equity Method of Accounting for Investments in Common Stock".
- 6 -
<PAGE> 8
NEW VALLEY HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
During the quarter ended September 30, 1996, the decline in the market
value of the Class A Preferred Shares, the dividend received on the Class
A Preferred Shares and the Company's equity in losses incurred by New
Valley caused the carrying value of the Company's investment in New Valley
to be reduced to zero. Beginning in the fourth quarter of 1996, the
Company suspended the recording of its earnings on the dividends accrued
and the accretion of the difference between the Company's basis in the
Class A Preferred Shares and their mandatory redemption price.
At September 30, 1997, the Company's investment in New Valley consisted of
an approximate 42% voting interest. The Company's investment is
represented by 618,326 Class A Preferred Shares (57.7%) and 3,969,962
Common Shares (41.5%) after giving effect to a one-for-twenty reverse
stock split by New Valley in July 1996.
During the nine months ended September 30, 1996, New Valley repurchased
72,104 Class A Preferred Shares for a total amount of $10,530. The Company
has recorded its proportionate interest in the excess of the carrying
value of the shares over the cost of the shares repurchased as a credit to
additional paid-in capital in the amount of $1,773, along with other New
Valley capital transactions of $10,055 for this period. No such
repurchases have been made during the nine months ended September 30,
1997. The Company's share of other New Valley capital transactions were
$9,435 for the nine months ended September 30, 1997, which represents the
Company's portion of the unrealized gain on investment securities at New
Valley.
The Class A Preferred Shares of New Valley are required to be redeemed on
January 1, 2003 for $100.00 per share plus dividends accrued to the
redemption date. The shares are redeemable, at any time, at the option of
New Valley, at $100.00 per share plus accrued dividends. The holders of
Class A Preferred Shares are entitled to receive a quarterly dividend, as
declared by the Board of Directors, payable at the rate of $19.00 per
annum. At September 30, 1997, the accrued and unpaid dividends arrearage
was $150,871 ($140.81 per share). As of September 30, 1996, the Company
had received $24,733 ($40.00 per share) in dividend distributions.
3. NEW VALLEY CORPORATION
Summarized financial information for New Valley as of September 30, 1997
and December 31, 1996 and for the three and nine months ended September
30, 1997 and 1996 follows:
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
-------------------------------------
<S> <C> <C>
Current assets, primarily cash and marketable
securities................................... $ 140,465 $ 183,720
Non-current assets.............................. 326,368 222,820
Current liabilities............................. 131,593 98,110
Non-current liabilities......................... 194,040 170,223
Redeemable preferred stock...................... 245,740 210,571
Shareholders' equity (deficit).................. (104,540) (72,364)
</TABLE>
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<PAGE> 9
NEW VALLEY HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
<TABLE>
<CAPTION>
---------------------------------------------------------------
Three Months Ended Nine Months Ended
---------------------------------------------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
1997 1996 1997 1996
---------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues...................................... $26,448 $21,276 $70,605 $ 83,710
Costs and expenses............................ 34,378 28,998 95,897 102,314
Loss from continuing operations............... (6,830) (7,105) (22,313) (17,589)
Income (loss) from discontinued operations.... 256 (5,339) 369 (4,501)
Net loss applicable to common shares(A)....... (24,141) (27,844) (72,241) (64,319)
</TABLE>
(A)Considers all preferred accrued dividends, whether or not declared, and
the excess of carrying value of redeemable preferred shares over cost
of shares purchased.
ACQUISITION OF COMMON SHARES OF BML:
On January 31, 1997, New Valley acquired substantially all the common
shares of BrookeMil Ltd., a real estate investment company doing business
in Russia, from Brooke Overseas Ltd. ("BOL"), for $55,000, $21,500 payable
in cash and a promissory note of $33,500. During the second quarter 1997,
New Valley paid BOL $21,500, representing a portion of the promissory note
together with accrued interest thereon. As of September 30, 1997, the
balance remaining on the note was $12,000, subsequently reduced to $8,500
which is due on or before December 31, 1997.
RJR NABISCO HOLDINGS CORP.:
At September 30, 1997, New Valley held 762,650 shares of RJR Nabisco
Holdings Corp. ("RJR Nabisco") common stock with a market value of $26,216
(cost of $23,378). The unrealized gain on New Valley's investment in RJR
Nabisco common stock was $2,838 at September 30, 1997.
4. FEDERAL INCOME TAX
At September 30, 1997, the Company had $8,400 of unrecognized net deferred
tax assets, comprised primarily of future deductible temporary
differences. A valuation allowance has been provided against this deferred
tax asset as it is presently deemed more likely than not that the benefit
of the tax asset will not be utilized. The Company continues to evaluate
the realizability of its deferred tax assets and its estimate is subject
to change.
The provision for taxes for the nine-month period ended September 30, 1997
does not bear a customary relationship to the pretax income for the
Company due principally to the effects of the 80% dividends received
deduction for Federal taxes. The benefit for income taxes at September 30,
1997 is based on the current taxable loss.
5. CONTINGENCIES
BGLS has pledged its ownership interest in the Company's common stock and
the Company's investments in the New Valley securities as collateral in
connection with the issuance of BGLS'
- 8 -
<PAGE> 10
NEW VALLEY HOLDINGS, INC.
NOTES TO FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) - (CONTINUED)
(UNAUDITED)
15.75%Senior Secured Notes ("BGLS Notes") due 2001. Liggett Group Inc., a
subsidiary of BGLS, has engaged in negotiations with its note holders to
restructure the terms of its Senior Secured Notes. During such
negotiations, BGLS postponed its interest payment of approximately $18,338
due July 31, 1997, on the BGLS Notes. A Standstill Agreement and Consent
(the "Standstill Agreement") was reached on August 28, 1997, as amended,
among the holders of more than 83% of the BGLS Notes and BGLS whereby each
of such principal holders of the BGLS Notes waived the right to receive on
August 29, 1997 its pro rata share of the July 31, 1997 interest payment
(in total, $15,340). On August 29, 1997, BGLS made the interest payment on
the BGLS Notes to all holders other than the principal holders discussed
above. Pending completion of the negotiations with the principal holders,
such holders have agreed with BGLS that they will be entitled to receive
their portion of the July 31, 1997 interest payment only after giving BGLS
20 days' notice but in any event by December 10, 1997.
- 9 -
