EXHIBIT 1
STOCK PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into as of August __,
2000, by and between NEW VALLEY CORPORATION, a Delaware corporation ("Seller"),
and HIGH RIVER LIMITED PARTNERSHIP, a Delaware limited partnership
("Purchaser").
WHEREAS, Seller is the owner of 1,960,479 shares (the "Panaco
Shares") of Common Stock, $.01 par value per share ("Panaco Common Stock"), of
Panaco, Inc., a Delaware corporation ("Panaco");
WHEREAS, Seller desires to sell the Panaco Shares to Purchaser
and Purchaser desires to purchase the Panaco Shares from Seller, subject to the
provisions contained herein;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Agreement, and intending to be legally bound by the
terms and conditions of this Agreement, the parties hereto hereby agree as
follows:
1. Sale of Panaco Shares to Purchaser.
1.1. Sale and Purchase of Panaco Shares. Subject to the terms
and conditions of this Agreement, Seller hereby sells to Purchaser and Purchaser
hereby purchases from Seller, the Panaco Shares for $1.73 per share, an
aggregate purchase price of $3,391,628.67 (the "Purchase Price"), payable as set
forth in Section 2 of this Agreement.
2. Settlement. (a) Not later than the third NYSE trading day
following the date hereof, the Seller shall deliver 348,250 Panaco Shares (the
"DTC Shares") through the Depositary Trust Company facilities, to Purchaser's
account, against payment of $602,472.50. The account is as follows:
Merrill Lynch
DTC 161
Acct. Name - High River Limited Partnership
Acct. # - 329-33787
Attn. - Lenny Bomparella (201) 557-2715
(b) As promptly as practicable after the date hereof, the
Seller and Purchaser shall take such action as is necessary to complete the
transfer of the 1,612,229 Panaco Shares (the "Legended Shares") containing the
legend set forth in Section 3.2 hereof to Purchaser. Upon delivery to Purchaser
of certificates registered in the name of Purchaser representing the Legended
Shares, which may bear the same legend, Purchaser shall pay to Seller by wire
transfer $2,789,156.17.
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3. Representations and Warranties of Seller. In connection with
the purchase of the Panaco Shares, Seller hereby represents and warrants to
Purchaser as follows:
3.1. Title to Panaco Shares. Seller has good legal title to
the Panaco Shares, and has the full legal right, power and authority to sell,
assign and transfer complete ownership in the Panaco Shares to Purchaser, free
and clear of all liens, claims, restrictions, encumbrances, charges, options or
rights of third parties with respect thereto. The Panaco Shares are all of the
shares of Panaco Common Stock owned by Seller.
3.2. Legends. The Legended Shares do not include legends
of any kind except the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares have
been acquired for investment and may not be sold, transferred
or assigned in the absence of an effective registration
statement for these shares under the Securities Act of 1933 or
an opinion of the Company's counsel that registration is not
required under said Act."
3.3. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon any arrangement
made by or on behalf of Seller.
4. Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller as follows:
4.1. Independent Due Diligence Investigation. Purchaser has
relied solely upon the independent investigations made by it and its
representatives in making a decision to purchase the Panaco Shares and has a
full understanding and appreciation of the risks inherent in such a highly
speculative investment. In connection with such investigation, Purchaser and its
representatives and advisers, if any, (i) have been given an opportunity to ask,
and have to the extent Purchaser considered necessary, asked questions of, and
have received answers from, officers of Panaco concerning the Panaco Shares and
the affairs of Panaco and (ii) have been given or afforded access to all
documents, records, books and additional information which Purchaser has
requested regarding such matters.
4.2. Investment Intent. Purchaser is acquiring the Panaco
Shares solely for its own account for investment and not with a view to, or for
offer or resale in connection with, a distribution thereof in violation of any
applicable federal or state securities laws.
4.3. Status of Purchaser. Purchaser represents and warrants to
Seller that it has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Panaco Shares; it is an "accredited investor" as defined in
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Rule 501 of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act"). Purchaser is not aware of any facts or circumstances
applicable to Purchaser that would cause the sale of Panaco Shares
contemplated by this Agreement to fail to be exempt from registration under the
Securities Act.
4.4. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon any arrangement
made by or on behalf of Purchaser.
4.5 Agreement with Panaco. On the date hereof, Purchaser is
entering into the Agreement with Panaco in the form of Exhibit A hereto.
5. Indemnity.
5.1. Purchaser shall defend, indemnify and save and hold
harmless Seller from and against all liabilities, losses, claims, demands,
suits, costs, expenses and damages of every kind and character, including,
without limitation, attorneys' fees, court costs, and costs of investigation,
which arise from or in connection with in any way a breach by Purchaser of its
representations and warranties contained in this Agreement or other breach of
this Agreement by Purchaser.
5.2. Seller shall defend, indemnify and save and hold harmless
Purchaser from and against all liabilities, losses, claims, demands, suits,
costs, expenses and damages of every kind and character, including, without
limitation, attorneys' fees, court costs, and costs of investigation, which
arise from or in connection with in any way a breach by Seller of its
representations and warranties contained in this Agreement or other breach of
this Agreement by Seller.
6. Assignment of Registration Rights.
6.1. Assignment. For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller hereby assigns,
delivers and sets over unto Purchaser all of Seller's registration rights with
respect to Panaco Common Stock, including, without limitation, all rights under
the Registration Rights Agreement dated as of July, 1997 by and between Panaco,
Leonard C. Tallerine, Jr. and Mark C. Licata and all rights under the
acknowledgment obtained by Seller from Panaco as set forth on the signature page
of the Stock Purchase Agreement, dated as of January 25, 1999, by and between
Seller and Mark C. Licata.
7. Miscellaneous.
7.1. Assignment; Successors and Assigns. The provisions of
this Agreement shall be binding upon, and inure to the benefit of, the
respective successors, assigns, heirs, executors and administrators of the
parties hereto.
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7.2. Survival of Representations and Warranties. All
indemnities, covenants, representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Closing of the
transactions contemplated hereby.
7.3. Expenses. Each party to this Agreement shall bear its own
costs and expenses, including, but not limited to, attorneys' fees and expenses,
in connection with the closing of the transactions contemplated hereby.
7.4. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be delivered
by hand, by telecopier, by overnight mail or mailed by first class certified or
registered mail, return receipt requested, postage prepaid:
(a) If to Seller:
New Valley Corporation
100 S.E. Second Street
32nd Floor
Miami, FL 33131
Attn: Richard J. Lampen
(or such other address as may have been furnished in writing by Seller to
Purchaser)
(b) If to Purchaser:
High River Limited Partnership
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attn: Carl C. Icahn
(or at such other address or addresses as may have been furnished to Seller in
writing by Purchaser)
with a copy to:
Icahn Associates Corp.
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attn: Marc Weitzen, Esq.
Notices provided in accordance with this Section 7.4 shall be
deemed delivered upon personal delivery, receipt by telecopy or overnight mail,
or 48 hours after deposit in the mail in accordance with the above.
7.5. Entire Agreement. This Agreement, together with the
instruments and other documents contemplated to be executed and delivered in
connection herewith, contains the entire
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agreement and understanding of the parties hereto, and supersedes any prior
agreements or understandings between or among them, with respect to the subject
matter hereof.
7.6. Amendments and Waivers. This Agreement may not be amended
or waived (either generally or in a particular instance and either retroactively
or prospectively) except by a written instrument signed by the party against
whom enforcement of such amendment, modification or waiver is sought. No waivers
of or exceptions to any term, condition or provision of this Agreement, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, condition or provision.
7.7. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.8. Captions. The captions of the sections, subsections and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
7.9. Governing Law. This Agreement shall be governed by and
interpreted and construed in accordance with the laws of the State of New York.
7.10 Further Assurances. Seller and Purchaser hereby agrees to
take such further action and execute and deliver such further documents and
instruments as may be necessary or appropriate to perfect the transactions,
assignments, transfers and conveyances contemplated in the Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as an instrument as of the date first above written.
NEW VALLEY CORPORATION
By:
Name:
Title:
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale LLC, its general partner
By:
Name: Robert Mitchell
Title: Manager
[Signature Page to Stock Purchase Agreement for 1,960,479
shares of Panaco Stock for $3,391,628.67 in the aggregate]
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