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Securities And Exchange Commission
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2003
VECTOR GROUP LTD.
(Exact name of registrant as specified in its charter)
DELAWARE 1-5759 65-0949535
(State or other jurisdiction of Commission File Number (I.R.S. Employer Identification No.)
incorporation or organization)
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 Registrant (1) has 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 Registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days. [ X ] Yes
[ ] No
Indicate by check mark whether the Registrant is an accelerated filer as
defined in Rule 12b-2 of the Exchange Act. [X] Yes [ ] No
At November 12, 2003, Vector Group Ltd. had 38,857,056 shares of common
stock outstanding.
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VECTOR GROUP LTD.
FORM 10-Q
TABLE OF CONTENTS
Page
----
PART I. FINANCIAL INFORMATION
Item 1. VECTOR GROUP LTD. CONSOLIDATED FINANCIAL STATEMENTS:
Vector Group Ltd. Consolidated Balance Sheets as of September 30, 2003 and
December 31, 2002............................................................................. 2
Vector Group Ltd. Consolidated Statements of Operations for the three and nine months
ended September 30, 2003 and September 30, 2002............................................... 3
Vector Group Ltd. Consolidated Statement of Stockholders' Equity (Deficit) for the nine
months ended September 30, 2003............................................................... 4
Vector Group Ltd. Consolidated Statements of Cash Flows for the nine months ended
September 30, 2003 and September 30, 2002..................................................... 5
Notes to Consolidated Financial Statements.......................................................... 6
Item 2 .MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.............................................. 34
Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK..................................... 53
Item 4. CONTROLS AND PROCEDURES........................................................................ 53
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS.............................................................................. 54
Item 2. CHANGES IN SECURITIES AND USE OF PROCEEDS...................................................... 54
Item 6. EXHIBITS AND REPORTS ON FORM 8-K............................................................... 54
SIGNATURE 56
- 1 -
VECTOR GROUP LTD. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
September 30, December 31,
2003 2002
------------- ------------
ASSETS:
Current assets:
Cash and cash equivalents .............................................. $ 69,935 $ 100,027
Investment securities available for sale ............................... 76,194 128,430
Accounts receivable - trade ............................................ 8,630 13,395
Other receivables ...................................................... 2,267 3,853
Inventories ............................................................ 123,481 104,649
Assets held for sale ................................................... 9,438 --
Restricted assets ...................................................... 11,190 --
Deferred income taxes .................................................. 25,308 12,825
Other current assets ................................................... 6,780 17,912
--------- ---------
Total current assets ................................................. 333,223 381,091
Property, plant and equipment, net ....................................... 146,091 181,972
Long-term investments, net ............................................... 2,561 3,150
Investments in non-consolidated real estate businesses ................... 17,274 7,811
Restricted assets ........................................................ 5,609 4,857
Deferred income taxes .................................................... 12,121 12,501
Intangible asset ......................................................... 107,511 107,511
Pension assets ........................................................... -- 1,225
Other assets ............................................................. 7,995 8,377
--------- ---------
Total assets ......................................................... $ 632,385 $ 708,495
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT):
Current liabilities:
Current portion of notes payable and long-term debt .................... $ 29,875 $ 31,277
Accounts payable ....................................................... 13,927 17,046
Accrued promotional expenses ........................................... 25,920 24,998
Accrued taxes payable, net ............................................. 34,961 39,370
Settlement accruals .................................................... 35,026 40,528
Deferred income taxes .................................................. 5,277 5,277
Accrued interest ....................................................... 3,183 7,556
Other accrued liabilities .............................................. 17,886 18,332
--------- ---------
Total current liabilities ............................................ 166,055 184,384
Notes payable, long-term debt and other obligations, less current portion 301,189 307,028
Noncurrent employee benefits ............................................. 12,187 11,121
Deferred income taxes .................................................... 140,537 134,762
Other liabilities ........................................................ 4,506 4,866
Minority interests ....................................................... 43,846 44,037
Commitments and contingencies
Stockholders' equity (deficit):
Preferred stock, par value $1.00 per share, authorized 10,000,000 shares
Common stock, par value $0.10 per share, authorized 100,000,000
shares, issued 42,103,276 and 41,507,470 and outstanding 38,857,056
and 38,261,249 ....................................................... 3,885 3,643
Additional paid-in capital ............................................. 265,859 279,305
Deficit ................................................................ (284,147) (236,718)
Accumulated other comprehensive loss ................................... (9,229) (11,630)
Less: 3,246,220 shares of common stock in treasury, at cost ........... (12,303) (12,303)
--------- ---------
Total stockholders' equity (deficit) ............................... (35,935) 22,297
Total liabilities and stockholders' equity (deficit) ............... $ 632,385 $ 708,495
========= =========
The accompanying notes are an integral part
of the consolidated financial statements.
- 2 -
VECTOR GROUP LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
Three Months Ended Nine Months Ended
------------------------------ ------------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
2003 2002 2003 2002
------------ ------------ ------------ ------------
Revenues:
Tobacco* .............................................. $ 141,053 $ 141,714 $ 401,796 $ 378,285
Real estate leasing ................................... 1,797 -- 5,373 661
------------ ------------ ------------ ------------
Total revenues ...................................... 142,850 141,714 407,169 378,946
Expenses:
Cost of goods sold* ................................... 92,711 100,442 262,512 262,617
Operating, selling, administrative and general expenses 38,367 40,958 132,262 132,451
Restructuring and impairment charges .................. 20,079 -- 20,079 3,460
------------ ------------ ------------ ------------
Operating (loss) income ............................. (8,307) 314 (7,684) (19,582)
Other income (expenses):
Interest and dividend income .......................... 844 2,342 3,416 7,743
Interest expense ...................................... (7,422) (7,112) (23,087) (19,417)
Gain (loss) on investments, net ....................... 806 (62) 1,076 1,715
Gain on sale of assets ................................ -- 345 -- 9,029
Equity income from non-consolidated New Valley real
estate businesses ................................... 1,527 -- 636 --
Provision for uncollectibility of notes receivable .... -- (13,198) -- (13,198)
Other, net ............................................ 4 757 21 206
------------ ------------ ------------ ------------
Loss from operations before benefit for income taxes
and minority interests .............................. (12,548) (16,614) (25,622) (33,504)
Benefit for income taxes .............................. (3,240) (1,972) (4,482) (5,643)
Minority interests .................................... (72) 6,476 1,981 4,490
------------ ------------ ------------ ------------
Net loss .................................................. $ (9,380) $ (8,166) $ (19,159) $ (23,371)
============ ============ ============ ============
Per basic common share:
Net loss applicable to common shares .................. $ (0.24) $ (0.22) $ (0.50) $ (0.64)
============ ============ ============ ============
Basic weighted average common shares outstanding .......... 38,845,172 36,666,147 38,698,104 36,660,864
============ ============ ============ ============
Per diluted common share:
Net loss applicable to common shares .................. $ (0.24) $ (0.22) $ (0.50) $ (0.64)
============ ============ ============ ============
Diluted weighted average common shares outstanding ........ 38,845,172 36,666,147 38,698,104 36,660,864
============ ============ ============ ============
- ----------------------
* Revenues and Cost of goods sold include excise taxes of $51,132, $51,668,
$149,468 and $144,858, respectively.
The accompanying notes are an integral part
of the consolidated financial statements.
- 3 -
VECTOR GROUP LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
Accumulated
Common Stock Additional Other
---------------------- Paid-In Treasury Comprehensive
Shares Amount Capital Deficit Stock Loss Total
---------- ---------- ---------- ---------- ---------- ------------- ----------
Balance, December 31, 2002 ............... 36,439,285 $ 3,643 $ 279,305 $ (236,718) $ (12,303) $ (11,630) $ 22,297
Net loss ................................. -- -- -- (19,159) -- -- (19,159)
Unrealized gain on investment securities -- -- -- -- -- 2,401 2,401
----------
Total other comprehensive gain ..... -- -- -- -- -- -- 2,401
----------
Total comprehensive loss ................. -- -- -- -- -- -- (16,758)
Distributions on common stock ............ -- -- (44,371) -- -- -- (44,371)
Effect of stock dividend ................. 1,850,126 185 28,085 (28,270) -- -- --
Exercise of warrants and options ......... 567,645 57 1,049 -- -- -- 1,106
Tax benefit of options exercised ......... -- -- 1,329 -- -- -- 1,329
Amortization of deferred compensation, net -- -- 387 -- -- -- 387
Effect of New Valley share repurchase .... -- -- 75 -- -- -- 75
---------- ---------- ---------- ---------- ---------- ---------- ----------
Balance, September 30, 2003 .............. 38,857,056 $ 3,885 $ 265,859 $ (284,147) $ (12,303) $ (9,229) $ (35,935)
========== ========== ========== ========== ========== ========== ==========
The accompanying notes are an integral part
of the consolidated financial statements.
- 4 -
VECTOR GROUP LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
Nine Months Ended
-----------------------------------
Sept. 30, Sept. 30,
2003 2002
--------- ----------
Net cash used in operating activities: .................... $ (9,660) $ (35,602)
--------- ---------
Cash flows from investing activities:
Proceeds from sale of assets, net ....................... 3,871 2,642
Sale or maturity of investment securities ............... 109,341 70,161
Purchase of investment securities ....................... (49,127) (46,024)
Sale (purchase) of long-term investments ................ 679 (50,103)
Investment in non-consolidated real estate businesses ... (9,500) --
Distribution from non-consolidated real estate businesses 670 20,461
Increase in restricted assets ........................... (13,691) --
Issuance of note receivable, net ........................ -- (4,000)
Payment of prepetition claims ........................... (19) (2,025)
New Valley repurchase of common shares .................. (1,346) --
Capital expenditures .................................... (7,691) (39,284)
--------- ---------
Net cash provided by (used in) investing activities ....... 33,187 (48,172)
--------- ---------
Cash flows from financing activities:
Proceeds from debt ...................................... -- 37,635
Repayments of debt ...................................... (26,764) (10,355)
Borrowings under revolver ............................... 487,105 467,016
Repayments on revolver .................................. (470,878) (467,016)
Deferred financing charges .............................. -- (930)
Increase in cash overdraft .............................. 183 --
Distributions on common stock ........................... (44,371) (39,906)
Repayment of participating loan ......................... -- (12,400)
Proceeds from exercise of options and warrants .......... 1,106 1,196
--------- ---------
Net cash used in financing activities ..................... (53,619) (24,760)
--------- ---------
Net decrease in cash and cash equivalents ................. (30,092) (108,534)
Cash and cash equivalents, beginning of period ............ 100,027 217,761
--------- ---------
Cash and cash equivalents, end of period .................. $ 69,935 $ 109,227
========= =========
The accompanying notes are an integral part
of the consolidated financial statements.
- 5 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts)
(Unaudited)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) BASIS OF PRESENTATION:
The consolidated financial statements of Vector Group Ltd. (the
"Company" or "Vector") include the accounts of VGR Holding Inc. ("VGR
Holding"), Vector Tobacco Inc. ("Vector Tobacco"), Liggett Group Inc.
("Liggett"), New Valley Corporation ("New Valley") and other less
significant subsidiaries. The Company owned 58.1% of New Valley's
common shares at September 30, 2003. All significant intercompany
balances and transactions have been eliminated.
Vector Tobacco is engaged in the development and marketing of low
nicotine, nicotine-free and reduced carcinogen cigarette products.
Liggett is engaged primarily in the manufacture and sale of
cigarettes, principally in the United States. New Valley is currently
engaged in the real estate business and is seeking to acquire
additional operating companies.
As discussed in Note 4, a subsidiary of the Company acquired The
Medallion Company, Inc. on April 1, 2002.
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 in the Company's Annual Report on Form 10-K for the
year ended December 31, 2002, 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.
(b) ESTIMATES AND ASSUMPTIONS:
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America
requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities, 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 restructuring and impairment charges, inventory
valuation, deferred tax assets, allowance for doubtful accounts,
promotional accruals, sales returns and allowances, actuarial
assumptions of pension plans, settlement accruals and litigation and
defense costs. Actual results could differ from those estimates.
(c) RECLASSIFICATIONS:
Certain amounts in the 2002 consolidated financial statements have
been reclassified to conform to the 2003 presentation.
- 6 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
(d) EARNINGS PER SHARE:
Information concerning the Company's common stock has been adjusted
to give effect to the 5% stock dividends paid to Company stockholders
on September 29, 2003 and September 27, 2002. In connection with the
stock dividends, the Company increased the number of stock options by
5% and reduced the exercise prices accordingly. All share amounts
have been presented as if the stock dividends had occurred on January
1, 2002.
The Company had a net loss for the three and nine months ending
September 30, 2003 and September 30, 2002. Therefore, the effect of
the common stock equivalents and convertible securities is excluded
from the computation of diluted net loss per share since the effect
is anti-dilutive for the three and nine months ended September 30,
2003 and September 30, 2002.
(e) COMPREHENSIVE LOSS:
Comprehensive loss is a component of stockholders' equity (deficit)
and includes such items as the unrealized gains and losses on
investment securities and minimum pension liability adjustments.
Total comprehensive loss was $16,758 for the nine months ended
September 30, 2003 and $25,935 for the nine months ended September
30, 2002.
(f) NEW ACCOUNTING PRONOUNCEMENTS:
In December 2002, the FASB issued SFAS No. 148, "Accounting for
Stock-Based Compensation - Transition and Disclosure, an amendment of
SFAS No. 123." SFAS No. 148 amends SFAS No. 123 to provide
alternative methods of transition for a voluntary change to that
statement's fair value method of accounting for stock-based employee
compensation. SFAS No. 148 also amends the disclosure provisions of
SFAS No. 123 and APB No. 28, "Interim Financial Reporting," to
require disclosure in the summary of significant accounting policies
of the effects of an entity's accounting policy with respect to
stock-based employee compensation on reported net income and earnings
per share in annual and interim financial statements. The transition
and disclosure provisions of this statement are effective for
financial statements for fiscal years ending after December 15, 2002
and for interim financial statements commencing after that date. The
Company has not elected the fair value-based method of accounting for
stock-based compensation under SFAS No. 123, as amended by SFAS No.
148. (See Note 9.)
In June 2002, the FASB issued SFAS 146, "Accounting for Costs
Associated with Exit or Disposal Activities." SFAS 146 addresses
financial accounting and reporting for costs associated with exit or
disposal activities and nullifies EITF 94-3, "Liability Recognition
for Certain Employee Termination Benefits and Other Costs to Exit an
Activity (including Certain Costs Incurred in a Restructuring)." SFAS
146 requires that a liability for a cost associated with an exit or
disposal activity be recognized when the liability is incurred as
opposed to EITF 94-3, which allowed a cost to be recognized when a
commitment to an exit plan was made. The provisions of SFAS 146 are
effective for exit or disposal activities that are initiated after
December 31, 2002. Restructuring costs discussed in Note 2 have been
accounted for in accordance with SFAS 146.
- 7 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
In November 2002, the FASB issued Interpretation No. 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, Including
Indirect Guarantees of Indebtedness of Others." FIN No. 45 requires
that upon issuance of a guarantee, the guarantor must recognize a
liability for the fair value of the obligation it assumes under the
guarantee and expanded disclosure of certain guarantees existing at
December 31, 2002. The adoption of this statement did not impact the
Company's consolidated financial statements.
In January 2003, FIN No. 46, "Consolidation of Variable Interest
Entities" was issued. This interpretation clarifies the application
of Accounting Research Bulletin No. 51, "Consolidated Financial
Statements," to certain entities in which equity investors do not
have the characteristics of a controlling financial interest or do
not have sufficient equity at risk for the entity to finance its
activities without additional subordinated financial support from
other parties. FIN No. 46 is effective February 1, 2003 for variable
interest entities created after January 31, 2003, and December 15,
2003 for variable interest entities created prior to February 1,
2003. The Company does not believe this interpretation will have a
material impact on its consolidated financial statements.
In April 2003, SFAS No. 149, "Amendment of Statement 133 on
Derivative Instruments and Hedging Activities" was issued. SFAS No.
149 amends and clarifies accounting for derivative instruments,
including certain derivative instruments embedded in other contracts,
and for hedging activities under SFAS No. 133. SFAS No. 149 is
effective for contracts entered into or modified after June 30, 2003
and for hedging relationships designated after June 30, 2003. The
adoption of this statement did not impact the Company's consolidated
financial statements.
In May 2003, the FASB issued SFAS No. 150, "Accounting for Certain
Financial Instruments with Characteristics of both Liabilities and
Equity." SFAS No. 150 establishes standards for how companies
classify and measure certain financial instruments with
characteristics of both liabilities and equity. It requires companies
to classify a financial instrument that is within its scope as a
liability (or an asset in some circumstances). SFAS No. 150 is
effective immediately for financial instruments entered into or
modified after May 15, 2003 and in the first interim period after
June 15, 2003 for all other financial instruments. The adoption of
this statement did not impact the Company's consolidated financial
statements.
2. VECTOR TOBACCO RESTRUCTURING
On October 8, 2003, the Company announced that it will close Vector
Tobacco's Timberlake, North Carolina cigarette manufacturing facility in
order to reduce excess tobacco production capacity and improve operating
efficiencies company-wide. Production of the QUEST line of no-nicotine and
reduced nicotine cigarettes, as well as production of Vector Tobacco's
other cigarette brands, will be moved to Liggett's state-of-the-art
manufacturing facility in Mebane, North Carolina.
The Mebane facility currently produces in excess of 9 billion units per
year, but maintains the capacity to produce 16 billion units per year.
Vector Tobacco will contract with Liggett Group to produce its cigarettes
and has begun transitioning production from Timberlake to Mebane,
- 8 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
with all production ceasing at Timberlake by December 31, 2003. As part of
the transition, Vector will be eliminating approximately 150 positions in
Timberlake and Durham, North Carolina.
As a result of these actions, Vector Group will take pre-tax restructuring
and impairment charges currently estimated to total approximately $21,522,
of which $20,079 has been taken in the third quarter of 2003,
approximately $1,222 will be taken in the fourth quarter of 2003 and
approximately $221 will be taken in the first quarter of 2004.
Approximately $2,045 relate to employee severance and benefits, $725 to
contract termination and exit and moving costs and $18,752 to non-cash
asset impairment charges. Machinery and equipment to be disposed of was
reduced to estimated fair value less costs to sell and is being carried on
the accompanying consolidated balance sheets as assets held for sale. The
asset impairment charges are based on management's current estimates of
the values the Company will be able to realize on sales of the excess
machinery and equipment, and may be adjusted in future periods based on
the actual amounts realized.
3. LIGGETT VECTOR BRANDS
In 2002, the Company approved a plan to combine the sales and marketing
functions of its Liggett and Vector Tobacco subsidiaries into a new
entity, Liggett Vector Brands Inc., in order to enhance the effectiveness
of the Company's sales and marketing operations. This company coordinates
and executes the sales and marketing efforts for all of the Company's
tobacco operations. As a result of this plan, during the first quarter of
2002, the Company recognized a pre-tax restructuring charge of
approximately $3,460, consisting of approximately $2,000 in involuntary
severance and other exit costs and an impairment charge of approximately
$1,500 related to certain long-lived assets. The Company had substantially
completed all of these restructuring activities as of March 31, 2003.
4. MEDALLION ACQUISITION
On April 1, 2002, a subsidiary of the Company acquired 100% of the stock
of The Medallion Company, Inc. ("Medallion"), and related assets from
Medallion's principal stockholder. Following the purchase of the Medallion
stock, Vector Tobacco merged into Medallion and Medallion changed its name
to Vector Tobacco Inc. The total purchase price consisted of $50,000 in
cash and $60,000 in notes, with the notes guaranteed by the Company and
Liggett. (See Note 7.) Medallion, a discount cigarette manufacturer, is a
participant in the Master Settlement Agreement between the state Attorneys
General and the tobacco industry. Medallion has no payment obligations
under the Master Settlement Agreement except to the extent its market
share exceeds approximately 0.28% of total cigarettes sold in the United
States. The results of operations of Medallion are included in the
Company's financial statements beginning April 1, 2002.
The following table summarizes the estimated fair values of the assets
acquired and liabilities assumed at the date of acquisition.
- 9 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
At April 1, 2002
----------------
Receivable from seller...................... $ 3,189
Inventory................................... 1,019
Property, plant and equipment............... 2,181
Intangible asset............................ 107,511
-------
Total assets acquired................... 113,900
-------
Accrued merger costs........................ 300
Allowance for sales returns................. 500
Accrued MSA liability....................... 3,100
---------
Total liabilities assumed............... 3,900
---------
Net assets acquired..................... $110,000
=======
The $107,511 intangible asset, which is not subject to amortization,
relates to Medallion's exemption under the Master Settlement Agreement and
has been included with the Liggett segment for segment reporting purposes.
The following table presents unaudited pro forma results of operations as
if the Medallion acquisition had occurred immediately prior to January 1,
2002. These pro forma results have been prepared for comparative purposes
only and do not purport to be indicative of what would have occurred had
these transactions been consummated as of such date.
Nine Months
Ended
Sept. 30, 2002
--------------
Revenues ................. $ 393,807
===========
Net loss ................. $ (24,535)
===========
Net loss per common share:
Basic ................ $ (0.67)
===========
Diluted .............. $ (0.67)
===========
5. INVENTORIES
Inventories consist of:
September 30, December 31,
2003 2002
------------- ------------
Leaf tobacco ................. $ 79,329 $ 63,196
Other raw materials .......... 4,433 5,438
Work-in-process .............. 2,017 2,888
Finished goods ............... 35,383 30,014
Replacement parts and supplies 4,851 4,878
--------- ---------
Inventories at current cost .. 126,013 106,414
LIFO adjustments ............. (2,532) (1,765)
--------- ---------
$ 123,481 $ 104,649
========= =========
- 10 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
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 date of the commitment. At September 30, 2003, Liggett had leaf
tobacco purchase commitments of approximately $8,257 and Vector Tobacco
had leaf tobacco purchase commitments of approximately $1,624.
LIFO inventories represent approximately 62.8% and 61.4% of total
inventories at September 30, 2003 and December 31, 2002, respectively.
Included in the above table is approximately $45,000 and $38,000 at
September 30, 2003 and December 31, 2002, respectively, of inventory
associated with Vector Tobacco's new product initiatives. The
recoverability of the costs of such inventory is dependent upon market
conditions and customer demands for the products.
6. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of:
September 30, December 31,
2003 2002
------------ ------------
Land and improvements ....... $ 10,019 $ 10,019
Buildings ................... 74,137 72,811
Machinery and equipment ..... 103,590 136,738
Leasehold improvements ...... 1,238 2,147
Construction-in-progress .... 2,006 3,566
--------- ---------
190,990 225,281
Less accumulated depreciation (44,899) (43,309)
--------- ---------
$ 146,091 $ 181,972
========= =========
On July 16, 2003, Liggett granted an unaffiliated third party an option to
purchase Liggett's former manufacturing facility and other excess real
estate in Durham, North Carolina with a net book value at September 30,
2003 of approximately $1,373. The option agreement permits the purchaser
to acquire the property, during a period of up to two years, at a purchase
price of $14,000 if the closing occurs by August 23, 2004 and $15,000 if
the closing occurs thereafter during the term of the option. Liggett has
received option fees of $750, of which $550 is refundable if the purchaser
terminates the agreement prior to January 12, 2004. Liggett will be
entitled to receive additional option fees of up to $750 during the
remaining option period. The option fees will generally be creditable
against the purchase price and are refundable in part upon termination of
the agreement. The purchaser is currently conducting due diligence, and
there can be no assurance the sale of the property will occur.
The Company took an $18,752 non-cash asset impairment charge during the
third quarter of 2003 in conjunction with the closing of Vector Tobacco's
Timberlake, North Carolina facility of which $17,968 relates to machinery
and equipment. (See Note 2.)
- 11 -
VECTOR GROUP LTD.
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:
September 30, December 31,
2003 2002
------------- ------------
Vector:
6.25% Convertible Subordinated Notes due 2008 ............ $ 132,500 $ 132,500
VGR Holding:
10% Senior Secured Notes due 2006, net of
unamortized discount of $7,456 and $10,751 ............ 62,544 71,249
Liggett:
Revolving credit facility ................................ 16,227 --
Term loan under credit facility .......................... 5,190 5,190
Other notes payable ...................................... 10,646 13,195
Vector Tobacco:
Notes payable ............................................ 6,372 7,357
Equipment loans .......................................... 116 452
Notes payable - Medallion acquisition .................... 41,250 50,625
V.T. Aviation:
Notes payable ............................................ 16,201 17,237
New Valley:
Notes payable - operating real estate .................... 40,018 40,500
--------- ---------
Total notes payable, long-term debt and other obligations 331,064 338,305
Less:
Current maturities ................................. (29,875) (31,277)
--------- ---------
Amount due after one year ................................ $ 301,189 $ 307,028
========= =========
6.25% CONVERTIBLE SUBORDINATED NOTES DUE JULY 15, 2008 - VECTOR:
In July 2001, Vector completed the sale of $172,500 (net proceeds of
approximately $166,400) of its 6.25% convertible subordinated notes due
July 15, 2008 through a private offering to qualified institutional
investors in accordance with Rule 144A under the Securities Act of 1933.
The notes pay interest at 6.25% per annum and are convertible into
Vector's common stock, at the option of the holder, at a conversion price
of $27.91 per share at September 30, 2003. The conversion price is subject
to adjustment for various events, and any cash distribution on Vector's
common stock will result in a corresponding decrease in the conversion
price. In December 2001, $40,000 of the notes were converted into Vector's
common stock, and $132,500 of the notes were outstanding at September 30,
2003.
The notes may be redeemed by Vector, in whole or in part, between July 15,
2003 and July 15, 2004, if the closing price of Vector's common stock
exceeds 150% of the conversion price then in effect for a period of at
least 20 trading days in any consecutive 30 day trading period, at a price
equal to 100% of the principal amount, plus accrued interest and a "make
whole" payment. Vector may redeem the notes, in whole or in part, at a
price of 103.125% in the year beginning July 15, 2004, 102.083% in the
year beginning July 15, 2005, 101.042% in the year beginning July 15, 2006
and 100% in the year
- 12 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
beginning July 15, 2007, together with accrued interest. If a change of
control occurs, Vector will be required to offer to repurchase the notes
at 101% of their principal amount, plus accrued interest and, under
certain circumstances, a "make whole" payment.
10% SENIOR SECURED NOTES DUE MARCH 31, 2006 - VGR HOLDING:
In May 2001, VGR Holding issued at a discount $60,000 principal amount of
10% senior secured notes due March 31, 2006 in a private placement. VGR
Holding received net proceeds from the offering of approximately $46,500.
In April 2002, VGR Holding issued at a discount an additional $30,000
principal amount of 10% senior secured notes due March 31, 2006 in a
private placement and received net proceeds of approximately $24,500. The
notes were priced to provide the purchasers with a 15.75% yield to
maturity. The new notes are on the same terms as the $60,000 principal
amount of senior secured notes previously issued. All of the notes have
been guaranteed by the Company and by Liggett.
The notes are collateralized by substantially all of VGR Holding's assets,
including a pledge of VGR Holding's equity interests in its direct
subsidiaries, including Brooke Group Holding, Brooke (Overseas), Vector
Tobacco and New Valley Holdings, Inc. ("NV Holdings"), as well as a pledge
of the shares of Liggett and all of the New Valley securities held by VGR
Holding and NV Holdings. The purchase agreement for the notes contains
covenants, which among other things, limit the ability of VGR Holding to
make distributions to the Company to 50% of VGR Holding's net income,
unless VGR Holding holds an amount in cash equal to the then principal
amount of the notes outstanding ($70,000 at September 30, 2003) after
giving effect to the payment of the distribution, and limit additional
indebtedness of VGR Holding, Liggett and Vector Tobacco to 250% of EBITDA
(as defined in the purchase agreements) for the trailing 12 months plus,
for periods through December 31, 2003, additional amounts including up to
$100,000 during the period commencing on June 30, 2003 and ending on
September 29, 2003 and $50,000 during the period commencing on September
30, 2003 and ending on December 31, 2003. The covenants also restrict
transactions with affiliates subject to exceptions which include payments
to Vector not to exceed $9,500 per year for permitted operating expenses,
and limit the ability of VGR Holding to merge, consolidate or sell certain
assets. In November 2002, in connection with an amendment to the note
purchase agreement, VGR Holding repurchased $8,000 of the notes at a price
of 100% of the principal amount plus accrued interest. The Company
recognized a loss of $1,320 in the fourth quarter 2002 on the early
extinguishment of debt.
In connection with an additional amendment to the note purchase agreement,
VGR Holding repurchased a total of $8,000 of the notes in the second
quarter of 2003 and $4,000 of the notes on September 30, 2003, at a price
of 100% of the principal amount plus accrued interest. The Company
recognized losses of $1,197 in the second quarter and $524 in the third
quarter of 2003 on the early extinguishment of debt.
VGR Holding has the right (which it has not exercised) under the purchase
agreement for the notes to elect to treat Vector Tobacco as a "designated
subsidiary" and exclude the losses of Vector Tobacco in determining the
amount of additional indebtedness permitted to be incurred. If VGR Holding
were to make this election, future cash needs of Vector Tobacco would be
required to be funded directly by Vector or by third-party financing as to
which neither VGR Holding nor Liggett could provide any guarantee or
credit support.
- 13 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
VGR Holding may redeem the notes, in whole or in part, at a redemption
price of 100% of the principal amount. During the term of the notes, VGR
Holding is required to offer to repurchase all the notes at a purchase
price of 101% of the principal amount, in the event of a change of
control, and to offer to repurchase notes, at 100% of the principal
amount, with the proceeds of material asset sales.
REVOLVING CREDIT FACILITY - LIGGETT:
Liggett has a $40,000 credit facility, under which $16,227 was outstanding
at September 30, 2003. Availability under the credit facility was
approximately $23,583 based on eligible collateral at September 30, 2003.
The facility is collateralized by all inventories and receivables of
Liggett. Borrowings under the facility, whose interest is calculated at a
rate equal to 1.0% above Wachovia's (the indirect parent of Congress
Financial Corporation, the lead lender) prime rate, bore a rate of 5.25%
at September 30, 2003. The facility requires Liggett's compliance with
certain financial and other covenants including a restriction on the
payment of cash dividends unless Liggett's borrowing availability under
the facility for the 30-day period prior to the payment of the dividend,
and after giving effect to the dividend, is at least $5,000. In addition,
the facility, as amended, imposes requirements with respect to Liggett's
adjusted net worth (not to fall below $8,000 as computed in accordance
with the agreement) and working capital (not to fall below a deficit of
$17,000 as computed in accordance with the agreement). At September 30,
2003, Liggett was in compliance with all covenants under the credit
facility; Liggett's adjusted net worth was $45,635 and net working capital
was $55,279, as computed in accordance with the agreement. The facility
expires on March 8, 2004 subject to automatic renewal for an additional
year unless a notice of termination is given by the lender at least 60
days prior to such date or the anniversary of such date.
In November 1999, 100 Maple LLC, a new company formed by Liggett to
purchase an industrial facility in Mebane, North Carolina, borrowed $5,040
from the lender under Liggett's credit facility. In July 2001, Maple
borrowed an additional $2,340 under the loan, and a total of $5,190 was
outstanding at September 30, 2003. In September 2002, the lender agreed
that no further regularly scheduled principal payments would be due under
the Maple loan until March 1, 2004. Thereafter, the loan is payable in 27
monthly installments of $77 with a final payment of $3,111. Interest is
charged at the same rate as applicable to Liggett's credit facility, and
borrowings under the Maple loan reduce the maximum availability under the
credit facility. Liggett has guaranteed the loan, and a first mortgage on
the Mebane property and equipment collateralizes the Maple loan and
Liggett's credit facility.
In April 2003, the credit facility was amended to increase the maximum
credit available under the facility to $45,000 for the period through
October 15, 2003. Vector guaranteed $10,000 of borrowings under the
facility and collateralized the guarantee with $10,000 in cash which was
reflected in current restricted assets at September 30, 2003. Vector's
guarantee was terminated, and the pledge of the cash collateral released,
on October 16, 2003.
EQUIPMENT LOANS - LIGGETT:
In March 2000, Liggett purchased equipment for $1,000 through the issuance
of a note, payable in 60 monthly installments of $21 with an effective
annual interest rate of 10.14%. In April 2000, Liggett purchased equipment
for $1,071 through the issuance of notes, payable in 60 monthly
installments of $22 with an effective interest rate of 10.20%.
- 14 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
In October and December 2001, Liggett purchased equipment for $3,204 and
$3,200, respectively, through the issuance of notes guaranteed by the
Company, each payable in 60 monthly installments of $53 with interest
calculated at the prime rate.
In March 2002, Liggett purchased equipment for $3,023 through the issuance
of a note, payable in 30 monthly installments of $62 and then 30 monthly
installments of $51 with an effective annual interest rate of 4.68%.
In May 2002, Liggett purchased equipment for $2,871 through the issuance
of a note, payable in 30 monthly installments of $59 and then 30 monthly
installments of $48 with an effective annual interest rate of 4.64%.
In September 2002, Liggett purchased equipment for $1,573 through the
issuance of a note guaranteed by the Company, payable in 60 monthly
installments of $26 plus interest calculated at LIBOR plus 4.31%.
NOTES PAYABLE - VECTOR TOBACCO:
In June 2001, Vector Tobacco purchased for $8,400 an industrial facility
in Timberlake, North Carolina. Vector Tobacco financed the purchase with
an $8,200 loan, payable in 60 monthly installments of $85, plus annual
interest at 4.85% above LIBOR with a final payment of approximately
$3,160. The loan, which is collateralized by a mortgage and a letter of
credit of $1,750, is guaranteed by VGR Holding and Vector.
During December 2001, Vector Tobacco borrowed an additional $1,159 from
the same lender to finance building improvements. This loan is payable in
30 monthly installments of $39 plus accrued interest, with an annual
interest rate of LIBOR plus 5.12%.
NOTES FOR MEDALLION ACQUISITION - VECTOR TOBACCO:
The purchase price for the acquisition of Medallion included $60,000 in
notes of Vector Tobacco, guaranteed by the Company and Liggett. Of the
notes, $25,000 bear interest at a 9.0% annual rate and mature $3,125 per
quarter commencing June 30, 2002 and continuing through March 31, 2004. At
September 30, 2003, $6,250 of these notes were outstanding. The remaining
$35,000 of notes bear interest at 6.5% per year, payable semiannually, and
mature on April 1, 2007.
NOTES PAYABLE - V.T. AVIATION:
In February 2001, V.T. Aviation LLC, a subsidiary of Vector Research Ltd.,
purchased an airplane for $15,500 and borrowed $13,175 to fund the
purchase. The loan, which is collateralized by the airplane and a letter
of credit from the Company for $775, is guaranteed by Vector Research, VGR
Holding and the Company. The loan is payable in 119 monthly installments
of $125, including annual interest of 2.31% above the 30-day commercial
paper rate, with a final payment of $6,125.
- 15 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
In February 2002, V.T. Aviation purchased an airplane for $6,575 and
borrowed $6,150 to fund the purchase. The loan is guaranteed by the
Company. The loan is payable in 119 monthly installments of $40, including
annual interest of 2.75% above the 30-day average commercial paper rate,
with a final payment of $2,793. During the fourth quarter of 2003, the
Company plans to transfer this airplane to a direct subsidiary of the
Company which will assume the debt.
NOTE PAYABLE - NEW VALLEY:
In December 2002, New Valley financed a portion of its purchase of two
office buildings in Princeton, N.J. with a mortgage loan of $40,500 from
HSBC Realty Credit Corporation (USA). The loan has a term of four years,
bears interest at a floating rate of 2% above LIBOR, and is secured by a
first mortgage on the office buildings, as well as by an assignment of
leases and rents. Principal is amortized to the extent of $54 per month
during the term of the loan. The loan may be prepaid without penalty and
is non-recourse against New Valley, except for various specified
environmental and related matters, misapplications of tenant security
deposits and insurance and condemnation proceeds, and fraud or
misrepresentation by New Valley in connection with the indebtedness.
8. CONTINGENCIES
SMOKING-RELATED LITIGATION:
OVERVIEW. Since 1954, Liggett and other United States cigarette
manufacturers have been named as defendants in numerous direct and
third-party actions predicated on the theory that cigarette manufacturers
should be liable for damages alleged to have been caused by cigarette
smoking or by exposure to secondary smoke from cigarettes. These cases are
reported here as though having been commenced against Liggett (without
regard to whether such cases were actually commenced against Brooke Group
Holding Inc., the Company's predecessor and a wholly-owned subsidiary of
VGR Holding, or Liggett). There has been a noteworthy increase in the
number of cases commenced against Liggett and the other cigarette
manufacturers in recent years. The cases generally fall into the following
categories: (i) smoking and health cases alleging injury brought on behalf
of individual plaintiffs ("Individual Actions"); (ii) smoking and health
cases alleging injury and purporting to be brought on behalf of a class of
individual plaintiffs ("Class Actions"); (iii) health care cost recovery
actions brought by various foreign and domestic governmental entities
("Governmental Actions"); and (iv) health care cost recovery actions
brought by third-party payors including insurance companies, union health
and welfare trust funds, asbestos manufacturers and others ("Third-Party
Payor Actions"). As new cases are commenced, defense costs and the risks
attendant to the inherent unpredictability of litigation continue to
increase. The future financial impact of the risks and expenses of
litigation and the effects of the tobacco litigation settlements discussed
below are not quantifiable at this time. For the nine months ended
September 30, 2003, Liggett incurred counsel fees and costs totaling
approximately $3,373 compared to $4,103 for the nine months ended
September 30, 2002.
INDIVIDUAL ACTIONS. As of September 30, 2003, there were approximately 390
cases pending against Liggett, and in most cases the other tobacco
companies, where one or more individual plaintiffs allege injury resulting
from cigarette smoking, addiction to cigarette smoking or
- 16 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
exposure to secondary smoke and seek compensatory and, in some cases,
punitive damages. Of these, 114 were pending in Maryland, 94 in Florida,
52 in New York, 34 in Mississippi and 21 in California. The balance of the
individual cases were pending in 22 states. There are seven individual
cases pending where Liggett is the only named defendant. In addition to
these cases, an action against cigarette manufacturers involving
approximately 1,260 named individual plaintiffs has been consolidated
before a single West Virginia state court and is scheduled for trial in
November 2003. Liggett is a defendant in most of the cases pending in West
Virginia. In January 2002, the court severed Liggett from the trial of the
consolidated action.
The plaintiffs' allegations of liability in those cases in which
individuals seek recovery for injuries allegedly caused by cigarette
smoking are based on various theories of recovery, including negligence,
gross negligence, breach of special duty, 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, property damage, invasion
of privacy, mental anguish, emotional distress, disability, shock,
indemnity and violations of deceptive trade practice laws, the Federal
Racketeer Influenced and Corrupt Organization Act ("RICO"), state RICO
statutes and antitrust statutes. In many of these cases, in addition to
compensatory damages, plaintiffs also seek other forms of relief including
treble/multiple damages, medical monitoring, 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.
Jury awards in various states have been entered against other cigarette
manufacturers. The awards in these individual actions are for both
compensatory and punitive damages and represent a material amount of
damages. In 1999, a jury awarded $800 in compensatory damages and $79,500
in punitive damages in an Oregon state court case involving Philip Morris.
The trial court later determined that the punitive damage award was
excessive and reduced it to $32,000. In June 2002, an Oregon intermediate
appellate court reinstated the jury's punitive damages award, and the
Oregon Supreme Court refused to hear Philip Morris' appeal of the
appellate court ruling in December 2002. Philip Morris appealed to the
United States Supreme Court, which, in October 2003, vacated the judgment
and remanded the case to the Oregon appellate court for further
consideration in light of the recent STATE FARM decision by the United
States Supreme Court limiting punitive damages. In June 2001, a jury
awarded $5,500 in compensatory damages and $3,000,000 in punitive damages
in a California state court case involving Philip Morris. In March 2002, a
jury awarded $169 in compensatory damages and $150,000 in punitive damages
in an Oregon state court case also involving Philip Morris. The punitive
damages awards in both the California and Oregon actions were subsequently
reduced to $100,000 by the trial courts. In September 2002, a jury awarded
$850 in compensatory damages and $28,000,000 in punitive damages in a
California state court case involving Philip Morris. In December 2002, the
trial court reduced the punitive damages award to $28,000. Both the
verdict and damage awards in these cases are being appealed. In November
2001, in another case, a $25,000 punitive damages judgment against Philip
Morris was affirmed by a California intermediate appellate court. In
October 2002, the California Supreme Court vacated the decision and
remanded the case to the intermediate appellate court for reconsideration
in light of its August 2002 ruling that a state statute in effect from
January 1988 to December 1997 conferred immunity to cigarette
manufacturers for
- 17 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
conduct during that ten-year period. In March 2003, the appellate court
reaffirmed its earlier decision approving the jury's verdict, and Philip
Morris appealed to the California Supreme Court. In June 2003, the
California Supreme Court remanded the case to the appellate court to
reconsider its ruling in light of the STATE FARM decision. In September
2003, the California appellate court ordered a new trial unless the
plaintiff accepts a reduced punitive damage award of $9,000. During 2001,
as a result of a Florida Supreme Court decision upholding the award,
another cigarette manufacturer paid $1,100 in compensatory damages and
interest to a former smoker and his spouse for injuries they allegedly
incurred as a result of smoking. In December 2001, in an individual action
involving another cigarette manufacturer, a Florida jury awarded a smoker
$165 in compensatory damages. The defendant has appealed the verdict. In
February 2002, a federal district court jury in Kansas awarded a smoker
$198 in compensatory damages from two other cigarette manufacturers and,
in June 2002, the trial court assessed punitive damages of $15,000 against
one of the defendants. The defendant has appealed the verdict. In April
2003, in an individual Florida state court action involving two other
cigarette manufacturers, a jury awarded compensatory damages of $6,500
(reduced by the court to $3,250). The defendants have appealed the
verdict. In May 2003, a federal district court jury in Arkansas awarded
compensatory damages of $4,025 and punitive damages of $15,000 in an
individual action involving another cigarette manufacturer. The defendant
intends to appeal the verdict.
CLASS ACTIONS. As of September 30, 2003, there were approximately 37
actions pending, for which either a class has been certified or plaintiffs
are seeking class certification, where Liggett, among others, was a named
defendant. Many of these actions purport to constitute statewide class
actions and were filed after May 1996 when the Fifth Circuit Court of
Appeals, in the CASTANO case, reversed a Federal district court's
certification of a purported nationwide class action on behalf of persons
who were allegedly "addicted" to tobacco products.
The extent of the impact of the CASTANO decision on smoking-related class
action litigation is still uncertain. The CASTANO decision has had a
limited effect with respect to courts' decisions regarding narrower
smoking-related classes or class actions brought in state rather than
federal court. For example, since the Fifth Circuit's ruling, a court in
Louisiana (Liggett is not a defendant in this proceeding) has certified
"addiction-as-injury" class actions that covered only citizens in those
states. Two other class actions, BROIN and ENGLE, were certified in state
court in Florida prior to the Fifth Circuit's decision. In April 2001, the
BROWN case was certified as a class action in California.
In May 1994, an action entitled ENGLE, ET AL. V. R.J. REYNOLDS TOBACCO
COMPANY, ET AL., Circuit Court, Eleventh Judicial Circuit, Miami-Dade
County, Florida, was filed against Liggett and others. The class consists
of all Florida residents and citizens, and their survivors, who have
suffered, presently suffer or have died from diseases and medical
conditions caused by their addiction to cigarettes that contain nicotine.
Phase I of the trial commenced in July 1998 and in July 1999, the jury
returned the Phase I verdict. The Phase I verdict concerned certain issues
determined by the trial court to be "common" to the causes of action of
the plaintiff class. Among other things, the jury found that: smoking
cigarettes causes 20 diseases or medical conditions, cigarettes are
addictive or dependence producing, defective and unreasonably dangerous,
defendants made materially false statements with the intention of
misleading smokers, defendants concealed or omitted material information
concerning the health effects and/or the addictive nature of smoking
cigarettes and agreed to misrepresent and conceal the health effects
and/or the addictive nature of smoking cigarettes, and
- 18 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
defendants were negligent and engaged in extreme and outrageous conduct or
acted with reckless disregard with the intent to inflict emotional
distress. The jury also found that defendants' conduct "rose to a level
that would permit a potential award or entitlement to punitive damages."
The court decided that Phase II of the trial, which commenced November
1999, would be a causation and damages trial for three of the class
representatives and a punitive damages trial on a class-wide basis, before
the same jury that returned the verdict in Phase I. Phase III of the trial
was to be conducted before separate juries to address absent class
members' claims, including issues of specific causation and other
individual issues regarding entitlement to compensatory damages. In April
2000, the jury awarded compensatory damages of $12,704 to the three
plaintiffs, to be reduced in proportion to the respective plaintiff's
fault. The jury also decided that the claim of one of the plaintiffs, who
was awarded compensatory damages of $5,831, was not timely filed. In July
2000, the jury awarded approximately $145,000,000 in the punitive damages
portion of Phase II against all defendants including $790,000 against
Liggett. The court entered a final order of judgment against the
defendants in November 2000. The court's final judgment, which provided
for interest at the rate of 10% per year on the jury's awards, also denied
various post-trial motions, including a motion for new trial and a motion
seeking reduction of the punitive damages award. Liggett appealed the
court's order.
In May 2003, Florida's Third District Court of Appeals decertified the
ENGLE class and set aside the jury's decision in the case against Liggett
and the other cigarette makers, including the $145,000,000 punitive
damages award. The intermediate appellate court ruled that there were
multiple legal bases why the class action trial, including the punitive
damages award, could not be sustained. The court found that the class
failed to meet the legal requirements for class certification and that
class members needed to pursue their claims on an individualized basis.
The court also ruled that the trial plan violated Florida law and the
appellate court's 1996 certification decision, and was unconstitutional.
The court further found that the proceedings were irretrievably tainted by
class counsel's misconduct and that the punitive damages award was
bankrupting under Florida law.
In October 2003, the Third District Court of Appeals denied class
counsel's motions seeking, among other things, a rehearing by the court.
Class counsel has filed a motion with the Florida Supreme Court to invoke
discretionary review on the basis that the Third District Court of Appeals
decision construes the due process provisions of the state and federal
constitutions and conflicts with other appellate and supreme court
decisions. If the appellate court's ruling is not upheld on further
appeal, it will have a material adverse effect on the Company.
In May 2000, legislation was enacted in Florida that limits the size of
any bond required, pending appeal, to stay execution of a punitive damages
verdict to the lesser of the punitive award plus twice the statutory rate
of interest, $100,000 or 10% of the net worth of the defendant, but the
limitation on the bond does not affect the amount of the underlying
verdict. In November 2000, Liggett filed the $3,450 bond required by the
Florida law in order to stay execution of the ENGLE judgment, pending
appeal. Similar legislation has been enacted in Arkansas, California,
Colorado, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan,
Mississippi, Missouri, Nevada, North Carolina, Ohio, Oklahoma, Oregon,
South Carolina, South Dakota, Tennessee, Texas, Virginia and West
Virginia.
In May 2001, Liggett, along with Philip Morris and Lorillard Tobacco Co.,
reached an agreement with the class in the ENGLE case, which provided
assurance of Liggett's ability to appeal the jury's July 2000 verdict. As
required by the agreement, Liggett paid $6,273 into an
- 19 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
escrow account to be held for the benefit of the ENGLE class, and
released, along with Liggett's existing $3,450 statutory bond, to the
court for the benefit of the class upon completion of the appeals process,
regardless of the outcome of the appeal. As a result, the Company recorded
a $9,723 pre-tax charge to the consolidated statement of operations for
the first quarter of 2001. The agreement, which was approved by the court,
assured that the stay of execution, in effect pursuant to the Florida
bonding statute, would not be lifted or limited at any point until
completion of all appeals, including an appeal to the United States
Supreme Court. If Liggett's balance sheet net worth fell below $33,781 (as
determined in accordance with generally accepted accounting principles in
effect as of July 14, 2000), the agreement provided that the stay granted
in favor of Liggett in the agreement would terminate and the ENGLE class
would be free to challenge the Florida bonding statute.
In June 2002, the jury in a Florida state court action entitled LUKACS V.
PHILIP MORRIS, ET AL. awarded $37,500 in compensatory damages in a case
involving Liggett and two other tobacco manufacturers. In March 2003, the
court reduced the amount of the compensatory damages to $25,100. The jury
found Liggett 50% responsible for the damages incurred by the plaintiff.
The LUKACS case was the first individual case to be tried as part of Phase
III of the ENGLE case; the claims of all other individuals who are members
of the class were stayed pending resolution of the appeal of the ENGLE
verdict. The LUKACS verdict, which was subject to the outcome of the Engle
appeal, has been overturned as a result of the appellate court's ruling.
As discussed above, class counsel in ENGLE is pursuing various appellate
remedies seeking reversal of the appellate court's decision.
Class certification motions are pending in a number of putative class
actions. Classes remain certified against Liggett in West Virginia
(BLANKENSHIP), in California (BROWN), in New York (SIMON), in Kansas
(SMITH) and in New Mexico (ROMERO). A number of class certification
denials are on appeal.
In August 2000, in BLANKENSHIP V. PHILIP MORRIS, INC., a West Virginia
state court conditionally certified (only to the extent of medical
monitoring) a class of present or former West Virginia smokers who desire
to participate in a medical monitoring plan. The trial of this case ended
in January 2001, when the judge declared a mistrial. In July 2001, the
court issued an order severing Liggett from the retrial of the case which
began in September 2001. In November 2001, the jury returned a verdict in
favor of the defendants. In January 2002, the trial court denied
plaintiffs' motion for a new trial, and plaintiffs have appealed.
In April 2001, the California state court in the case of BROWN V. THE
AMERICAN TOBACCO COMPANY, INC., ET AL., granted in part plaintiff's motion
for class certification and certified a class comprised of adult residents
of California who smoked at least one of defendants' cigarettes "during
the applicable time period" and who were exposed to defendants' marketing
and advertising activities in California. Certification was granted as to
plaintiff's claims that defendants violated California's unfair business
practices statute. The court subsequently defined "the applicable class
period" for plaintiff's claims, pursuant to a stipulation submitted by the
parties, as June 10, 1993 through April 23, 2001. The California Court of
Appeals denied defendants' writ application, which sought review of the
trial court's class certification orders. Defendants filed a petition for
review with the California Supreme Court, which was subsequently denied.
The defendants' summary judgment motions are pending before the court.
Liggett is a defendant in the case.
- 20 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
In September 2002, in IN RE SIMON II LITIGATION, the federal district
court for the Eastern District of New York granted plaintiffs' motion for
certification of a nationwide non-opt-out punitive damages class action
against the tobacco companies, including Liggett. The class is not seeking
compensatory damages, but was created to determine whether smokers across
the country may be entitled to punitive damages. In its order, the court
set a trial date of January 2003, but has since stayed the order pending
the tobacco companies' appeal to the U.S. Court of Appeals for the Second
Circuit. In February 2003, the Second Circuit agreed to review the
district court's class certification decision, and oral argument has been
scheduled for November 2003.
In March 2003, in a class action brought against Philip Morris on behalf
of smokers of light cigarettes, a state court judge in Illinois awarded
$7,100,000 in actual damages to the class members, $3,000,000 in punitive
damages to the State of Illinois (which was not a plaintiff in this
matter), and approximately $1,800,000 in attorney's fees and costs. Entry
of judgment has been stayed. Philip Morris has appealed the verdict.
Approximately 38 purported state and federal class action complaints have
been filed against the cigarette manufacturers, including Liggett, for
alleged antitrust violations. The actions allege that the cigarette
manufacturers have engaged in a nationwide and international conspiracy to
fix the price of cigarettes in violation of state and federal antitrust
laws. Plaintiffs allege that defendants' price-fixing conspiracy raised
the price of cigarettes above a competitive level. Plaintiffs in the 31
state actions purport to represent classes of indirect purchasers of
cigarettes in 16 states; plaintiffs in the seven federal actions purport
to represent a nationwide class of wholesalers who purchased cigarettes
directly from the defendants. The federal class actions were consolidated
and, in July 2000, plaintiffs filed a single consolidated complaint that
did not name Liggett as a defendant, although Liggett has complied with
discovery requests. In July 2002, the court granted defendants' motion for
summary judgment in the consolidated federal cases, which decision was
affirmed on appeal by the U.S. Court of Appeals for the Eleventh Circuit.
State court cases have been dismissed in Arizona, which dismissal was
reversed on appeal, and in New York and Florida. Class certification has
been denied by courts in Minnesota and Michigan. A Kansas state court in
the case of SMITH V. PHILIP MORRIS COMPANIES INC., ET AL. granted class
certification in November 2001. In April 2003, plaintiffs' motion for
class certification was granted in ROMERO V. PHILIP MORRIS COMPANIES INC.,
a case pending in New Mexico state court. Liggett is one of the defendants
in the Kansas and New Mexico cases.
GOVERNMENTAL ACTIONS. As of September 30, 2003, there were approximately
13 Governmental Actions pending against Liggett. In these proceedings,
both foreign and domestic governmental entities seek reimbursement for
Medicaid and other health care expenditures. 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, breach of 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.
- 21 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
In August 2003, following the refusal by the Florida Supreme Court to hear
the appeal of the Republic of Venezuela in connection with the dismissal
of its health care cost recovery action (which decision plaintiff has
appealed to the United States Supreme Court), the trial court hearing the
health care cost recovery actions brought in Florida by the Republic of
Tajikistan and the Brazilian State of Tocantins granted defendants'
motions to dismiss the cases. Subsequently, plaintiffs voluntarily
dismissed additional heath care cost recovery cases brought in Florida by
various foreign governmental entities.
THIRD-PARTY PAYOR ACTIONS. As of September 30, 2003, there were
approximately five Third-Party Payor Actions pending against Liggett. The
claims in these cases are similar to those in the Governmental Actions but
have been commenced by insurance companies, union health and welfare trust
funds, asbestos manufacturers and others. Nine United States Circuit
Courts of Appeal have ruled that Third-Party Payors did not have standing
to bring lawsuits against the cigarette manufacturers. The United States
Supreme Court has denied petitions for certiorari in the cases decided by
five of the courts of appeal. However, a number of Third-Party Payor
Actions, including an action brought by 24 Blue Cross/Blue Shield Plans,
remain pending.
In June 2001, a jury in a third party payor action brought by Empire Blue
Cross and Blue Shield in the Eastern District of New York rendered a
verdict awarding the plaintiff $17,800 in damages against the major
tobacco companies. As against Liggett, the jury awarded the plaintiff
damages of $89. In February 2002, the court awarded plaintiff's counsel
$37,800 in attorneys' fees, without allocating the fee award among the
several defendants. Liggett has appealed both the jury verdict and the
attorneys' fee award. In September 2003, the United States Court of
Appeals for the Second Circuit certified two questions relating to
plaintiff's direct claims of deceptive business practices to the New York
Court of Appeals. The Second Circuit reversed the portion of the judgment
relating to the verdict returned against defendants under plaintiff's
subrogation claim, and deferred its ruling on defendants' appeal of the
attorneys' fees award until such time as the New York Court of Appeals
rules on the certified questions.
In other Third-Party Payor Actions claimants have set forth several
additional theories of relief sought: funding of corrective public
education campaigns relating to issues of smoking and health; funding for
clinical smoking cessation programs; disgorgement of profits from sales of
cigarettes; restitution; treble damages; and attorneys' fees.
Nevertheless, no specific amounts are provided. It is understood that
requested damages against the tobacco company defendants in these cases
might be in the billions of dollars.
FEDERAL GOVERNMENT ACTION. In September 1999, the United States government
commenced litigation against Liggett and the other tobacco companies in
the United States District Court for the District of Columbia. The action
seeks to recover an unspecified amount of health care costs paid for and
furnished, and to be paid for and furnished, by the Federal Government for
lung cancer, heart disease, emphysema and other smoking-related illnesses
allegedly caused by the fraudulent and tortious conduct of defendants, to
restrain defendants and co-conspirators from engaging in fraud and other
unlawful conduct in the future, and to compel defendants to disgorge the
proceeds of their unlawful conduct. The complaint alleges that such costs
total more than $20,000,000 annually. The action asserted claims under
three federal statutes, the Medical Care Recovery Act ("MCRA"), the
Medicare Secondary Payer
- 22 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
provisions of the Social Security Act ("MSP") and RICO. In September 2000,
the court dismissed the government's claims based on MCRA and MSP,
reaffirming its decision in July 2001. In the September 2000 decision, the
court also determined not to dismiss the government's claims based on
RICO, under which the government continues to seek court relief to
restrain the defendant tobacco companies from allegedly engaging in fraud
and other unlawful conduct and to compel disgorgement. In May 2003, the
court denied the industry's partial summary judgment motion which sought
summary judgment as to the government's advertising, marketing, promotion
and warning claims on the basis that these claims are within the exclusive
jurisdiction of the Federal Trade Commission. Additional motions for
summary judgment have been filed by the government and defendants, and
those motions are pending before the court.
In June 2001, the United States Attorney General assembled a team of three
Department of Justice ("DOJ") lawyers to work on a possible settlement of
the federal lawsuit. The DOJ lawyers met with representatives of the
tobacco industry, including Liggett, in July 2001. No settlement was
reached, and no further meetings are planned. In a January 2003 filing
with the court, the government alleged that disgorgement by defendants of
approximately $289,000,000 is an appropriate remedy in the case. Trial has
been scheduled for September 2004.
SETTLEMENTS. In March 1996, Brooke Group Holding and Liggett entered into
an agreement, subject to court approval, to settle the CASTANO class
action tobacco litigation. The CASTANO class was subsequently decertified
by the court.
In March 1996, March 1997 and March 1998, Brooke Group Holding and Liggett
entered into settlements of smoking-related litigation with the Attorneys
General of 45 states and territories. The settlements released both Brooke
Group Holding and Liggett from all smoking-related claims, including
claims for health care cost reimbursement and claims concerning sales of
cigarettes to minors.
In November 1998, Philip Morris, Brown & Williamson Tobacco Corporation,
R.J. Reynolds Tobacco Company and Lorillard Tobacco Company (collectively,
the "Original Participating Manufacturers" or "OPMs") and Liggett
(together with the OPMs and any other tobacco product manufacturer that
becomes a signatory, the "Participating Manufacturers") entered into the
Master Settlement Agreement (the "MSA") with 46 states, the District of
Columbia, Puerto Rico, Guam, the United States Virgin Islands, American
Samoa and the Northern Marianas (collectively, the "Settling States") to
settle the asserted and unasserted health care cost recovery and certain
other claims of those Settling States. The MSA received final judicial
approval in each settling jurisdiction.
The MSA restricts tobacco product advertising and marketing within the
Settling States and otherwise restricts the activities of Participating
Manufacturers. Among other things, the MSA prohibits the targeting of
youth in the advertising, promotion or marketing of tobacco products; bans
the use of cartoon characters in all tobacco advertising and promotion;
limits each Participating Manufacturer to one tobacco brand name
sponsorship during any 12-month period; bans all outdoor advertising, with
the exception of signs, 14 square feet or less, at retail establishments
that sell tobacco products; prohibits payments for tobacco product
placement in various media; bans gift offers based on the purchase of
tobacco products without sufficient
- 23 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
proof that the intended recipient is an adult; prohibits Participating
Manufacturers from licensing third parties to advertise tobacco brand
names in any manner prohibited under the MSA; prohibits Participating
Manufacturers from using as a tobacco product brand name any nationally
recognized non-tobacco brand or trade name or the names of sports teams,
entertainment groups or individual celebrities; and prohibits
Participating Manufacturers from selling packs containing fewer than 20
cigarettes.
The MSA also requires Participating Manufacturers to affirm corporate
principles to comply with the MSA and to reduce underage usage of tobacco
products and imposes requirements applicable to lobbying activities
conducted on behalf of Participating Manufacturers.
Liggett has no payment obligations under the MSA except to the extent its
market share exceeds a base share of 125% of its 1997 market share, or
approximately 1.65% of total cigarettes sold in the United States. As a
result of the Medallion acquisition on April 1, 2002, Vector Tobacco has
no payment obligations under the MSA, except to the extent its market
share exceeds a base amount of approximately 0.28% of total cigarettes
sold in the United States. During 1999 and 2000, Liggett's market share
did not exceed the base amount. Based on published industry sources,
domestic shipments by Liggett and Vector Tobacco accounted for
approximately 2.2% of the total cigarettes shipped in the United States
during 2001 and 2.5% during 2002. On April 15 of any year following a year
in which Liggett's and Vector Tobacco's market shares exceed their base
shares, Liggett and Vector Tobacco will pay on each excess unit an amount
equal (on a per-unit basis) to that due during the same following year by
the OPMs under the annual and strategic contribution payment provisions of
the MSA, subject to applicable adjustments, offsets and reductions. In
March and April 2002, Liggett and Vector Tobacco paid a total of $31,130
for their 2001 MSA obligations. In March and April 2003, Liggett and
Vector Tobacco paid a total of $37,541 for their 2002 MSA obligations.
Liggett and Vector Tobacco have expensed $27,567 for their estimated MSA
obligations for the first nine months of 2003 as part of cost of goods
sold. Under the annual and strategic contribution payment provisions of
the MSA, the OPMs (and Liggett and Vector Tobacco to the extent their
market shares exceed their base shares) are required to pay the following
annual amounts (subject to certain adjustments):
Year Amount
---- ------
2003 ........................................... $6,500,000
2004 - 2007 .................................... $8,000,000
2008 - 2017 .................................... $8,139,000
2018 and each year thereafter................... $9,000,000
These annual payments will be allocated based on relative unit volume of
domestic cigarette shipments. The payment obligations under the MSA are
the several, and not joint, obligations of each Participating Manufacturer
and are not the responsibility of any parent or affiliate of a
Participating Manufacturer.
The MSA replaces Liggett's prior settlements with all states and
territories except for Florida, Mississippi, Texas and Minnesota. Each of
these four states, prior to the effective date of the MSA, negotiated and
executed settlement agreements with each of the other major tobacco
companies, separate from those settlements reached previously with
Liggett. Because these states' settlement agreements with Liggett provided
for "most favored nation" protection for
- 24 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
both Brooke Group Holding and Liggett, the payments due these states by
Liggett (with certain possible exceptions) have been eliminated, other
than a $100 a year payment to Minnesota starting in 2003 during any year
cigarettes manufactured by Liggett are sold in the state. With respect to
all non-economic obligations under the previous settlements, both Brooke
Group Holding and Liggett are entitled to the most favorable provisions as
between the MSA and each state's respective settlement with the other
major tobacco companies. Therefore, Liggett's non-economic obligations to
all states and territories are now defined by the MSA.
Copies of the various settlement agreements are filed as exhibits to the
Company's Annual Report on Form 10-K and the discussion herein is
qualified in its entirety by reference thereto.
TRIALS. Cases currently scheduled for trial during the next six months
include two individual actions in Florida state court scheduled for
January 2004 and March 2004, and an individual action in New Jersey
federal court scheduled for January 2004. Liggett is the sole defendant in
each of these cases. Trial dates, however, are subject to change.
Management is not able to predict the outcome of the litigation pending
against Brooke Group Holding or Liggett. Litigation is subject to many
uncertainties. In May 2003, a Florida intermediate appellate court
overturned a $790,000 punitive damages award against Liggett and
decertified the ENGLE smoking and health class action. Class counsel in
ENGLE is pursuing various appellate remedies seeking reversal of the
appellate court's decision. If the appellate court's ruling is not upheld
on further appeal, it will have a material adverse effect on the Company.
In November 2000, Liggett filed the $3,450 bond required under the bonding
statute enacted in 2000 by the Florida legislature which limits the size
of any bond required, pending appeal, to stay execution of a punitive
damages verdict. In May 2001, Liggett reached an agreement with the class
in the ENGLE case, which provided assurance to Liggett that the stay of
execution, in effect pursuant to the Florida bonding statute, would not be
lifted or limited at any point until completion of all appeals, including
to the United States Supreme Court. As required by the agreement, Liggett
paid $6,273 into an escrow account to be held for the benefit of the ENGLE
class, and released, along with Liggett's existing $3,450 statutory bond,
to the court for the benefit of the class upon completion of the appeals
process, regardless of the outcome of the appeal. As a result, the Company
recorded a $9,723 pre-tax charge to the consolidated statement of
operations for the first quarter of 2001. In June 2002, the jury in an
individual case brought under the third phase of the ENGLE case awarded
$37,500 (subsequently reduced by the court to $25,100) of compensatory
damages against Liggett and two other defendants and found Liggett 50%
responsible for the damages. The verdict, which was subject to the outcome
of the ENGLE appeal, has been overturned as a result of the appellate
court's ruling. It is possible that additional cases could be decided
unfavorably and that there could be further adverse developments in the
ENGLE case. Management cannot predict the cash requirements related to any
future settlements and judgments, including cash required to bond any
appeals, and there is a risk that those requirements will not be able to
be met. An unfavorable outcome of a pending smoking and health case could
encourage the commencement of additional similar litigation. Management is
unable to make a meaningful estimate with respect to the amount or range
of loss that could result from an unfavorable outcome of the cases pending
against Brooke Group Holding or Liggett or the costs of defending such
cases. The complaints filed in these cases rarely detail alleged damages.
Typically, the claims set forth in an individual's complaint against the
tobacco industry pray for money damages in an amount to be determined by a
jury, plus punitive damages and costs. These damage claims are typically
stated as being for the minimum necessary to invoke the jurisdiction of
the court.
- 25 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
It is possible that the Company's consolidated financial position, results
of operations or cash flows could be materially adversely affected by an
unfavorable outcome in any such smoking-related litigation.
Liggett's and Vector Tobacco's management are unaware of any material
environmental conditions affecting their existing facilities. Liggett's
and Vector Tobacco's management believe that current operations are
conducted in material compliance with all environmental laws and
regulations and other laws and regulations governing cigarette
manufacturers. 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, results of operations or competitive
position of Liggett or Vector Tobacco.
Liggett has been served in three reparations actions brought by
descendants of slaves. Plaintiffs in these actions claim that defendants,
including Liggett, profited from the use of slave labor. Seven additional
cases have been filed in California, Illinois and New York. Liggett is a
named defendant in only one of these additional cases, but has not been
served.
There are several other proceedings, lawsuits and claims pending against
the Company and certain of its consolidated subsidiaries 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.
LEGISLATION AND REGULATION:
Many cities and states have recently enacted legislation banning smoking
in public places including offices, restaurants, public buildings and
bars. Efforts to limit smoking in public places could have a material
adverse effect on the Company and Liggett.
In January 1993, the Environmental Protection Agency ("EPA") released a
report on the respiratory effect of secondary smoke which concludes that
secondary smoke 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 secondary smoke, 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 secondary smoke was arbitrary and capricious. In July
1998, a federal district court vacated those sections of the report
relating to lung cancer, finding that the EPA may have reached different
conclusions had it complied with relevant statutory requirements. The
federal government appealed the court's ruling. In December 2002, the
United States Court of Appeals for the Fourth Circuit rejected the
industry challenge to the EPA report ruling that it was not subject to
court review. Issuance of the report may encourage efforts to limit
smoking in public areas.
- 26 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
In February 1996, the United States Trade representative issued an
"advance notice of proposed rule making" concerning how tobacco is
imported under a previously established tobacco tariff rate quota ("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 based on domestic market share. Such an
approach, if adopted, could have a material adverse effect on the Company
and Liggett.
In August 1996, the Food and Drug Administration (the "FDA") filed in the
Federal Register a Final Rule classifying tobacco as a "drug" or "medical
device", asserting jurisdiction over the manufacture and marketing of
tobacco products and imposing restrictions on the sale, advertising and
promotion of tobacco products. Litigation was commenced challenging the
legal authority of the FDA to assert such jurisdiction, as well as
challenging the constitutionality of the rules. In March 2000, the United
States Supreme Court ruled that the FDA does not have the power to
regulate tobacco. Liggett supported the FDA Rule and began to phase in
compliance with certain of the proposed FDA regulations.
Since the Supreme Court decision, various proposals and recommendations
have been made for additional federal and state legislation to regulate
cigarette manufacturers. Congressional advocates of FDA regulations have
introduced legislation that would give the FDA authority to regulate the
manufacture, sale, distribution and labeling of tobacco products to
protect public health, thereby allowing the FDA to reinstate its prior
regulations or adopt new or additional regulations. The ultimate outcome
of these proposals cannot be predicted.
In August 1996, Massachusetts enacted legislation requiring tobacco
companies to publish information regarding the ingredients in cigarettes
and other tobacco products sold in that state. In December 1997, the
United States District Court for the District of Massachusetts
preliminarily enjoined this legislation from going into effect on the
grounds that it is preempted by federal law. In November 1999, the United
States Court of Appeals for the First Circuit affirmed this ruling. In
September 2000, the federal district court permanently enjoined
enforcement of the law. In October 2001, the First Circuit reversed the
district court's decision, ruling that the ingredients disclosure
provisions are valid. The entire court, however, agreed to re-hear the
appeal, reinstating the district court's injunction in the meantime. In
December 2002, the First Circuit ruled that the ingredients disclosure
provisions violated the constitutional prohibition against unlawful
seizure of property by forcing firms to reveal trade secrets. The decision
was not appealed by the state. Notwithstanding the foregoing, in December
1997, Liggett began voluntarily complying with this legislation by
providing ingredient information to the Massachusetts Department of Public
Health. Several other states have enacted, or are considering, legislation
similar to that enacted in Massachusetts.
Cigarettes are subject to substantial federal, state and local excise
taxes which, in general, have been increasing. The federal excise tax on
cigarettes is currently $0.39 per pack. State and local sales and excise
taxes vary considerably and, when combined with sales taxes, local taxes
and the current federal excise tax, may currently be as high as $4.10 per
pack. Proposed further tax increases in various jurisdictions are
currently under consideration or pending. In 2002, 21 states passed excise
tax increases, ranging from $0.07 per pack in Tennessee to as much as
$1.81 per pack in New York City and New York State combined. In addition,
since January 1, 2003, 14 states and the District of Columbia approved
increases in
- 27 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
excise taxes. Congress has considered significant increases in the federal
excise tax or other payments from tobacco manufacturers, and significant
increases in excise and other cigarette-related taxes have been proposed
or enacted at the state and local levels. In the opinion of the Company,
increases in excise and similar taxes have had an adverse impact on sales
of cigarettes.
In August 2000, the New York state legislature passed legislation charging
the state's Office of Fire Prevention and Control ("OFPC") with developing
standards for "fire safe" or self-extinguishing cigarettes. On August 22,
2003, the OFPC issued revised proposed standards for public comment. The
public comment period ended on November 2, 2003, and final standards have
not yet been issued. Six months from the issuance of the final standards,
all cigarettes offered for sale in New York state will be required to be
manufactured to those standards. It is not possible to predict the impact
of this law on the Company until the final standards are published.
Similar legislation is being considered by other state governments and at
the federal level.
Federal or state regulators may object to Vector Tobacco's reduced
carcinogen and low nicotine and nicotine-free cigarette products as
unlawful or allege they bear deceptive or unsubstantiated product claims,
and seek the removal of the products from the marketplace, or significant
changes to advertising. Various concerns regarding Vector Tobacco's
advertising practices have been expressed to Vector Tobacco by certain
state attorneys general. Vector Tobacco has been negotiating in an effort
to resolve these concerns. Allegations by federal or state regulators,
public health organizations and other tobacco manufacturers that Vector
Tobacco's products are unlawful, or that its public statements or
advertising contain misleading or unsubstantiated health claims or product
comparisons, may result in litigation or governmental proceedings. Vector
Tobacco's business may become subject to extensive domestic and
international governmental regulation. Various proposals have been made
for federal, state and international legislation to regulate cigarette
manufacturers generally, and reduced constituent cigarettes specifically.
It is possible that laws and regulations may be adopted covering issues
like the manufacture, sale, distribution, advertising and labeling of
tobacco products as well as any express or implied health claims
associated with reduced carcinogen and low nicotine and nicotine-free
cigarette products and the use of genetically modified tobacco. A system
of regulation by agencies like the FDA, the Federal Trade Commission or
the United States Department of Agriculture may be established. In
addition, a group of public health organizations have submitted a petition
to the FDA, alleging that the marketing of the OMNI product is subject to
regulation by the FDA under existing law. Vector Tobacco has filed a
response in opposition to the petition. The FTC has also expressed
interest in the regulation of tobacco products made by tobacco
manufacturers, including Vector Tobacco, which bear reduced carcinogen
claims. The ultimate outcome of any of the foregoing cannot be predicted,
but any of the foregoing could have a material adverse impact on the
Company.
In addition to the foregoing, there have been a number of other
restrictive regulatory actions, adverse legislative and political
decisions and other unfavorable developments concerning cigarette smoking
and the tobacco industry. These developments may negatively affect the
perception of potential triers of fact with respect to the tobacco
industry, possibly to the detriment of certain pending litigation, and may
prompt the commencement of additional similar litigation or legislation.
- 28 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
OTHER MATTERS:
In March 1997, a stockholder derivative suit was filed in Delaware
Chancery Court against New Valley, as a nominal defendant, its directors
and Brooke Group Holding by a stockholder of New Valley. The suit alleges
that New Valley's purchase of the BrookeMil Ltd. shares from Brooke
(Overseas) Ltd., which was then an indirect subsidiary of Brooke Group
Holding, in January 1997 constituted a self-dealing transaction which
involved the payment of excessive consideration by New Valley. The
plaintiff seeks a declaration that New Valley's directors breached their
fiduciary duties and Brooke Group Holding aided and abetted such breaches
and that damages be awarded to New Valley. In December 1999, another
stockholder of New Valley commenced an action in Delaware Chancery Court
substantially similar to the March 1997 action. This stockholder alleges,
among other things, that the consideration paid by New Valley for the
BrookeMil shares was excessive, unfair and wasteful, that the special
committee of New Valley's board lacked independence, and that the
appraisal and fairness opinion were flawed. By order of the court, both
actions were consolidated. In January 2001, the court denied a motion to
dismiss the consolidated action. Brooke Group Holding and New Valley
believe that the allegations in the case are without merit. Discovery in
the case is ongoing.
In July 1999, a purported class action was commenced on behalf of New
Valley's former Class B preferred shareholders against New Valley, Brooke
Group Holding and certain directors and officers of New Valley in Delaware
Chancery Court. The complaint alleges that the recapitalization, approved
by a majority of each class of New Valley's stockholders in May 1999, was
fundamentally unfair to the Class B preferred shareholders, the proxy
statement relating to the recapitalization was materially deficient and
the defendants breached their fiduciary duties to the Class B preferred
shareholders in approving the transaction. The plaintiffs seek class
certification of the action and an award of compensatory damages as well
as all costs and fees. The Court has dismissed six of plaintiff's nine
claims alleging inadequate disclosure in the proxy statement. Brooke Group
Holding and New Valley believe that the remaining allegations are without
merit and recently filed a motion for summary judgment on the remaining
three claims.
Although there can be no assurances, Brooke Group Holding and New Valley
believe, after consultation with counsel, that the ultimate resolution of
these matters will not have a material adverse effect on the Company's or
New Valley's consolidated financial position, results of operations or
cash flows.
As of September 30, 2003, New Valley had $655 of remaining prepetition
bankruptcy-related claims and restructuring accruals including claims for
lease rejection damages. The remaining claims may be subject to future
adjustments based on potential settlements or decisions of the court.
In May 1999, in connection with the Philip Morris brand transaction, Eve
Holdings Inc., a subsidiary of Liggett, guaranteed a $134,900 bank loan to
Trademarks LLC. The loan is secured by Trademarks' three premium cigarette
brands and Trademarks' interest in the exclusive license of the three
brands by Philip Morris. The license provides for a minimum annual royalty
payment equal to the annual debt service on the loan plus $1,000. The
Company believes that the fair value of Eve's guarantee is negligible at
September 30, 2003.
- 29 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
9. EQUITY
The Company accounts for employee stock compensation plans under APB
Opinion No. 25, "Accounting for Stock Issued to Employees", with the
intrinsic value-based method permitted by SFAS No. 123, "Accounting for
Stock-Based Compensation" as amended by SFAS No. 148. Accordingly, no
compensation expense is recognized when the exercise price is equal to the
market price of the underlying common stock on the date of grant.
Awards under the Company's stock compensation plans generally vest over
periods ranging from four to five years from the date of grant. The
expense related to stock option compensation included in the determination
of net income for the three and nine months ended September 30, 2003 and
September 30, 2002 is less than that which would have been recognized if
the fair value method had been applied to all awards since the original
effective date of SFAS No. 123. The following table illustrates the effect
on net loss and loss per share if the Company had applied the fair value
provisions of SFAS No. 123:
Three Months Ended Nine Months Ended
----------------------- ------------------------
Sept. 30, Sept. 30, Sept. 30, Sept. 30,
2003 2002 2003 2002
-------- -------- -------- --------
Net loss ................................. $ (9,380) $ (8,166) $(19,159) $(23,371)
Add: stock option employee compensation
expense included in reported net loss,
net of related tax effects ........... 1,396 1,328 4,146 3,984
Deduct: total stock option employee
compensation expense determined
under the fair value method for all
awards, net of related tax effects ... (2,294) (2,569) (6,811) (7,706)
-------- -------- -------- --------
Pro forma net loss ....................... $(10,278) $ (9,407) $(21,824) $(27,093)
======== ======== ======== ========
Loss per share:
Basic and diluted - as reported ...... $ (0.24) $ (0.22) $ (0.50) $ (0.64)
Basic and diluted - pro forma ........ $ (0.26) $ (0.26) $ (0.56) $ (0.74)
For purposes of this pro forma presentation, the fair value of each option
grant was estimated at the date of the grant using the Black-Scholes
option pricing model. The Black-Scholes option valuation model was
developed for use in estimating the fair value of traded options which
have no vesting restrictions and are fully transferable. In addition,
option valuation models require the input of highly subjective assumptions
including expected stock price characteristics which are significantly
different from those of traded options, and because changes in the
subjective input assumptions can materially affect the fair value
estimate, the existing models do not necessarily provide a reliable single
measure of the fair value of stock-based compensation awards.
- 30 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
During the nine months ended September 30, 2003, 133,697 warrants,
exercisable at $3.79 per share, and 462,329 options, exercisable at prices
ranging from $4.70 to $12.70 per share, were exercised for $1,105 of cash
and the surrender of 236,657 options.
10. NEW VALLEY CORPORATION
In December 2002, New Valley purchased two office buildings in Princeton,
N.J. for a total purchase price of $54,000. New Valley financed a portion
of the purchase price through a borrowing of $40,500 from HSBC Realty
Credit Corporation (USA). (See Note 7.)
Also in December 2002, New Valley and the other owners of Prudential
Douglas Elliman Real Estate ("Realty"), formerly known as Prudential Long
Island Realty, contributed their interests in Realty to Douglas Elliman
Realty, LLC, formerly known as Montauk Battery Realty LLC, a newly formed
entity. New Valley acquired a 50% ownership interest in Douglas Elliman
Realty, LLC, an increase from its previous 37.2% interest in Realty as a
result of an additional investment of $1,413 by New Valley and the
redemption by Realty of various ownership interests.
In March 2003, Douglas Elliman Realty, LLC purchased the New York
City-based residential brokerage firm, Douglas Elliman, LLC, formerly
known as Insignia Douglas Elliman, and an affiliated property management
company for $71,250. New Valley invested an additional $9,500 in
subordinated debt and equity of Douglas Elliman Realty, LLC to help fund
the acquisition. The subordinated debt, which has a principal amount of
$9,500, bears interest at 12% per annum and is due in March 2013.
New Valley accounts for its interest in Douglas Elliman Realty, LLC and
another investment on the equity method and recorded income of $1,590 and
$901 for the three and nine months ended September 30, 2003.
11. INCOME TAXES
The consolidated balance sheets of the Company include deferred income tax
assets and liabilities, which represent temporary differences in the
application of accounting rules established by generally accepted
accounting principles and income tax laws. As of September 30, 2003, the
Company's deferred income tax liabilities exceeded its deferred income tax
assets by $108,385. The largest component of the Company's deferred tax
liabilities exists because of differences that resulted from a 1998 and
1999 transaction with Philip Morris Incorporated where a subsidiary of
Liggett contributed three of its premium cigarette brands to Trademarks
LLC, a newly-formed limited liability company. In such transaction, Philip
Morris acquired an option to purchase the remaining interest in Trademarks
for a 90-day period commencing in December 2008, and the Company has an
option to require Philip Morris to purchase the remaining interest for a
90-day period commencing in March 2010. For additional information
concerning the Philip Morris brand transaction, see Note 18 to the
consolidated financial statements included in the Company's Annual Report
on Form 10-K for the year ended December 31, 2002.
In connection with the transaction, the Company recognized in 1999 a
pre-tax gain of $294,078 in its consolidated financial statements and
established a deferred tax liability of $103,100
- 31 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
relating to the gain. Upon exercise of the options during the 90-day
periods commencing in December 2008 or in March 2010, the Company will be
required to pay tax in the amount of the deferred tax liability, which
will be offset by the benefit of any deferred tax assets, including any
net operating losses, available to the Company at that time. In connection
with an examination of the Company's 1998 and 1999 federal income tax
returns, the Internal Revenue Service issued to the Company in September
2003 a notice of proposed adjustment. The notice asserts that, for tax
reporting purposes, the entire gain should have been recognized in 1998
and in 1999 in the additional amounts of $150,000 and $129,900,
respectively, rather than upon the exercise of the options during the
90-day periods commencing in December 2008 or in March 2010. If the
Internal Revenue Service were to ultimately prevail with the proposed
adjustment, it would result in the potential acceleration of tax payments
of approximately $116,000, including interest, net of tax benefits,
through September 30, 2003. These amounts have been previously recognized
in the Company's consolidated financial statements as tax liabilities. As
of September 30, 2003, the Company believes amounts potentially due have
been fully provided for in its consolidated statements of operations.
The Company believes the positions reflected on its income tax returns are
correct and intends to vigorously oppose any proposed adjustments to its
returns. The Company has filed a protest with the Appeals Division of the
Internal Revenue Service. No payment is due with respect to these matters
during the appeal process. Interest currently is accruing on the disputed
amounts at a rate of 6%, with the rate adjusted quarterly based on rates
published by the U.S. Treasury Department. If taxing authorities were to
ultimately prevail in their assertion that the Company incurred a tax
obligation prior to the exercise dates of these options and it was
required to make such tax payments prior to 2009 or 2010, and if any
necessary financing were not available to the Company, its liquidity could
be adversely affected.
12. SEGMENT INFORMATION
The Company's significant business segments for the nine months ended
September 30, 2003 and 2002 were Liggett, Vector Tobacco and real estate.
The Liggett segment consists of the manufacture and sale of conventional
cigarettes and, for segment reporting purposes, includes the operations of
Medallion acquired on April 1, 2002 (which operations are held for legal
purposes as part of Vector Tobacco). The Vector Tobacco segment includes
the development and marketing of low nicotine, nicotine-free and reduced
carcinogen cigarette products and, for segment reporting purposes,
excludes the operations of Medallion.
Financial information for the Company's operations before taxes and
minority interest for the three and nine months ended September 30, 2003
and 2002 follows:
- 32 -
VECTOR GROUP LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts) -- (Continued)
(Unaudited)
Vector Real Corporate
Liggett Tobacco Estate and Other Total
------- ------- ------ --------- -----
Three Months Ended Sept. 30, 2003:
Revenues ......................... $ 135,716 $ 5,337 $ 1,797 $ -- $ 142,850
Operating income (loss) .......... 31,295 (34,474)(1) 959 (6,087) (8,307)(1)
Depreciation and amortization .... 1,649 1,572 321 633 4,175
Three Months Ended Sept. 30, 2002:
Revenues ......................... $ 139,875 $ 1,839 $ -- $ -- $ 141,714
Operating income (loss) .......... 27,255 (20,239) 484 (7,186) 314
Depreciation and amortization .... 1,560 1,327 -- 973 3,860
Nine Months Ended Sept. 30, 2003:
Revenues ......................... $ 381,398 $ 20,398 $ 5,373 $ -- $ 407,169
Operating income (loss) .......... 89,145 (79,980)(1) 2,867 (19,716) (7,684)(1)
Identifiable assets .............. 292,263 79,324 73,298 187,500 632,385
Depreciation and amortization .... 5,409 4,380 962 1,879 12,630
Capital expenditures ............. 4,600 2,288 -- 803 7,691
Nine Months Ended Sept. 30, 2002:
Revenues ......................... $ 372,688 $ 5,597 $ 661 $ -- $ 378,946
Operating income (loss) .......... 70,650(2) (64,876) (354) (25,002) (19,582)(2)
Identifiable assets .............. 272,697 94,706 9,500 298,184 675,087
Depreciation and amortization .... 4,281 3,407 191 2,066 9,945
Capital expenditures ............. 16,357 15,624 688 6,615 39,284
- ---------------------
(1) Includes restructuring and impairment charges of $20,079 in 2003.
(2) Includes restructuring charges of $3,460 in 2002.
- 33 -
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
INTRODUCTION
We are a holding company for a number of businesses. We are engaged
principally in:
o the development and marketing of the low nicotine and
nicotine-free QUEST cigarette products and the reduced
carcinogen OMNI cigarette products through our subsidiary
Vector Tobacco Inc. and
o the manufacture and sale of cigarettes in the United States
through our subsidiary Liggett Group Inc.
Our majority-owned subsidiary, New Valley Corporation, is currently
engaged in the real estate business and is seeking to acquire additional
operating companies. In December 2002, New Valley acquired two office buildings
in Princeton, N.J. and increased its ownership to 50% in Douglas Elliman Realty,
LLC, which owns the largest residential brokerage company in the New York
metropolitan area.
RECENT DEVELOPMENTS
QUEST INTRODUCTION. In January 2003, Vector Tobacco introduced QUEST,
its brand of low nicotine and nicotine-free cigarette products. QUEST is
designed for adult smokers who are interested in reducing their levels of
nicotine intake and is available in three different varieties, each with
decreasing amounts of nicotine - QUEST 1, 2 and 3. QUEST 1, the low nicotine
variety, contains 0.6 milligrams of nicotine. QUEST 2, the extra-low nicotine
variety, contains 0.3 milligrams of nicotine. QUEST 3, the nicotine-free
variety, contains only trace levels of nicotine - no more than 0.05 milligrams
of nicotine per cigarette. QUEST cigarettes utilize a proprietary process that
enables the production of nicotine-free tobacco that tastes and smokes like
tobacco in conventional cigarettes. All three QUEST varieties are being sold in
hard packs and are priced comparable to other premium brands.
QUEST is initially available in New York, New Jersey, Pennsylvania,
Ohio, Indiana, Illinois and Michigan. These seven states account for
approximately 30% of all cigarette sales in the United States. A multi-million
dollar advertising and marketing campaign, with advertisements running in
magazines and regional newspapers, supported the product launch. The brand
continues to be supported by significant point-of-purchase awareness campaigns,
as well as store related and periodic newspaper advertisements.
The premium segment of the industry is currently experiencing intense
competitive activity, with increased discounting of premium brands at all levels
of retail. Given these marketplace conditions, and the results that we have seen
to date with QUEST, we intend to take a measured approach to expanding the
market presence of the brand. In November 2003, we introduced a menthol version
of QUEST in the seven state market. In addition, we are utilizing the
information that we have obtained over the past nine months on the QUEST
non-menthol product to more specifically target our focus in the seven state
market in the coming months. Based upon those results, the success of the
menthol product and market conditions in the premium segment, we will make a
determination on the timing of a national launch of QUEST at a later date.
- 34 -
We plan to introduce QUEST and QUEST Menthol into an expansion market
in Arizona beginning in January 2004. QUEST will be available in Tucson and
Phoenix, which account for approximately 1% of the industry volume nationwide.
On October 6, 2003, Vector Tobacco announced Jed E. Rose, Ph.D.,
Director of Duke University Medical Center's Nicotine Research Program and
co-inventor of the nicotine patch, had conducted a study at Duke University
Medical Center to provide preliminary evaluation of the use of the QUEST
technology as a smoking cessation aid. In the preliminary study on QUEST, 33% of
QUEST 3 smokers were able to achieve four-week continuous abstinence, a standard
threshold for smoking cessation. Management believes these results show real
promise for the QUEST technology as a smoking cessation aid and has asked the
Food and Drug Administration to supply us with guidance as to the additional
research and regulatory filings necessary to market QUEST as a smoking cessation
product.
QUEST brand cigarettes are currently marketed solely to permit smokers
who wish to continue smoking to gradually reduce their intake of nicotine. The
products are not labeled or advertised for smoking cessation or as a safer form
of smoking.
VECTOR TOBACCO RESTRUCTURING. On October 8, 2003, we announced that we
will close Vector Tobacco's Timberlake, North Carolina cigarette manufacturing
facility in order to reduce excess tobacco production capacity and improve
operating efficiencies company-wide. Production of the QUEST line of no-nicotine
and reduced nicotine cigarettes, as well as production of Vector Tobacco's other
cigarette brands, will be moved to Liggett's state-of-the-art manufacturing
facility in Mebane, North Carolina.
The Mebane facility currently produces in excess of 9 billion units per
year, but maintains the capacity to produce 16 billion units per year. Vector
Tobacco will contract with Liggett Group to produce its cigarettes and has begun
transitioning production from Timberlake to Mebane, with all production ceasing
at Timberlake by December 31, 2003. As part of the transition, Vector will be
eliminating approximately 150 positions in Timberlake and Durham, North
Carolina.
As a result of these actions, we currently expect to realize annual
cost savings of $23,000 beginning in 2004. We will take pre-tax restructuring
and impairment charges currently estimated to total approximately $21,522, of
which $20,079 has been taken in the third quarter of 2003, approximately $1,222
will be taken in the fourth quarter of 2003 and approximately $221 will be taken
in the first quarter 2004. Approximately $2,045 relate to employee severance and
benefit costs, $725 to contract termination and exit and moving costs, and
$18,752 to non-cash asset impairment charges. Machinery and equipment to be
disposed of was reduced to fair value less costs to sell. The asset impairment
charges are based on management's current estimates of the values we will be
able to realize on sales of excess machinery and equipment, and may be adjusted
in future periods based on the actual amounts realized.
LIGGETT VECTOR BRANDS. During 2002, the sales and marketing functions,
along with certain support functions, of our Liggett and Vector Tobacco
subsidiaries were combined into a new entity, Liggett Vector Brands Inc. This
company coordinates and executes the sales and marketing efforts for all of our
tobacco operations. With the combined resources of Liggett and Vector Tobacco,
Liggett Vector Brands has approximately 440 salespersons, and enhanced
distribution and marketing capabilities. In connection with the formation of the
new Liggett Vector Brands entity, we took a charge of approximately $3,460 in
the first quarter of 2002, related to the reorganization of our business. As of
March 31, 2003, these restructuring activities had been substantially completed.
- 35 -
ACQUISITION OF MEDALLION. On April 1, 2002, a subsidiary of ours
acquired the stock of The Medallion Company, Inc., and related assets from
Medallion's principal stockholder. The total purchase price consisted of $50,000
in cash and $60,000 in notes, with the notes guaranteed by us and Liggett.
Medallion, a discount cigarette manufacturer, is a participant in the Master
Settlement Agreement between the state Attorneys General and the tobacco
industry. Medallion has no payment obligations under the Master Settlement
Agreement unless its market share exceeds approximately 0.28% of total
cigarettes sold in the United States.
VGR HOLDING NOTES. In connection with an amendment to the note purchase
agreement for VGR Holding's 10% senior secured notes due March 31, 2006, VGR
Holding repurchased a total of $8,000 of the notes in the second quarter of 2003
and $4,000 of the notes on September 30, 2003, at a price of 100% of the
principal amount plus accrued interest. We recognized losses of $1,197 in the
second quarter and $524 in the third quarter of 2003 on the early extinguishment
of debt.
TAX MATTERS. In connection with the 1998 and 1999 transaction with
Philip Morris Incorporated where a subsidiary of Liggett contributed three of
its premium cigarette brands to Trademarks LLC, a newly-formed limited liability
company, we recognized in 1999 a pre-tax gain of $294,078 in our consolidated
financial statements and established a deferred tax liability of $103,100
relating to the gain. In such transaction, Philip Morris acquired an option to
purchase the remaining interest in Trademarks for a 90-day period commencing in
December 2008, and we have an option to require Philip Morris to purchase the
remaining interest for a 90-day period commencing in March 2010. Upon exercise
of the options during the 90-day periods commencing in December 2008 or in March
2010, we will be required to pay tax in the amount of the deferred tax
liability, which will be offset by the benefit of any deferred tax assets,
including any net operating losses, available to us at that time. In connection
with an examination of our 1998 and 1999 federal income tax returns, the
Internal Revenue Service issued to us in September 2003 a notice of proposed
adjustment. The notice asserts that, for tax reporting purposes, the entire gain
should have been recognized in 1998 and in 1999 in the additional amounts of
$150,000 and $129,900, respectively, rather than upon the exercise of the
options during the 90-day periods commencing in December 2008 or in March 2010.
If the Internal Revenue Service were to ultimately prevail with the proposed
adjustment, it would result in the potential acceleration of tax payments of
approximately $116,000, including interest, net of tax benefits, through
September 30, 2003. These amounts have been previously recognized in our
consolidated financial statements as tax liabilities. As of September 30, 2003,
we believe amounts potentially due have been fully provided for in our
consolidated statements of operations.
We believe the positions reflected on our income tax returns are
correct and intend to vigorously oppose any proposed adjustments to our returns.
We have filed a protest with the Appeals Division of the Internal Revenue
Service. No payment is due with respect to these matters during the appeal
process. Interest currently is accruing on the disputed amounts at a rate of 6%,
with the rate adjusted quarterly based on rates published by the U.S. Treasury
Department. If taxing authorities were to ultimately prevail in their assertion
that we incurred a tax obligation prior to the exercise dates of these options
and we were required to make such tax payments prior to 2009 or 2010, and if any
necessary financing were not available to us, our liquidity could be adversely
affected.
REAL ESTATE ACQUISITIONS. In December 2002, New Valley purchased two
office buildings in Princeton, N.J. for a total purchase price of $54,000. New
Valley financed a portion of the purchase price through a borrowing of $40,500
from HSBC Realty Credit Corporation (USA).
The loan has a term of four years, bears interest at a floating rate of
2% above LIBOR, and is collateralized by a first mortgage on the office
buildings, as well as by an assignment of leases and rents. Principal is
amortized to the extent of $54 per month during the term of the loan. The loan
may be prepaid without penalty and is non-recourse against New Valley, except
- 36 -
for various specified environmental and related matters, misapplications of
tenant security deposits and insurance and condemnation proceeds, and fraud or
misrepresentation by New Valley in connection with the indebtedness.
Also in December 2002, New Valley and the other owners of Prudential
Douglas Elliman Real Estate, formerly known as Prudential Long Island Realty,
contributed their interests in Douglas Elliman Real Estate to Douglas Elliman
Realty, LLC, formerly known as Montauk Battery Realty LLC, a newly formed
entity. New Valley acquired a 50% ownership interest in Douglas Elliman Realty,
LLC, an increase from its previous 37.2% interest in Douglas Elliman Real Estate
as a result of an additional investment of $1,413 by New Valley and the
redemption by Douglas Elliman Real Estate of various ownership interests.
In March 2003, Douglas Elliman Realty, LLC purchased the leading New
York City-based residential brokerage firm, Douglas Elliman, LLC, formerly known
as Insignia Douglas Elliman, and an affiliated property management company for
$71,250. With that acquisition, the combination of Prudential Douglas Elliman
Real Estate with Douglas Elliman has created the largest residential brokerage
company in the New York metropolitan area. New Valley invested an additional
$9,500 in subordinated debt and equity of Douglas Elliman Realty, LLC to help
fund the acquisition. The subordinated debt, which has a principal amount of
$9,500, bears interest at 12% per annum and is due in March 2013.
RECENT DEVELOPMENTS IN LEGISLATION, REGULATION AND LITIGATION
The cigarette industry continues to be challenged on numerous fronts.
New cases continue to be commenced against Liggett and other cigarette
manufacturers. As of September 30, 2003, there were approximately 390 individual
suits, 37 purported class actions and 18 governmental and other third-party
payor health care reimbursement actions pending in the United States in which
Liggett was a named defendant. A civil lawsuit has been filed by the United
States federal government seeking disgorgement of approximately $289,000,000
from various cigarette manufacturers, including Liggett. In addition to these
cases, during 2000, an action against cigarette manufacturers involving
approximately 1,260 named individual plaintiffs was consolidated before a single
West Virginia state court. Liggett is a defendant in most of the cases pending
in West Virginia. In January 2002, the court severed Liggett from the trial of
the consolidated action. Three individual actions where Liggett is the only
defendant are scheduled for trial between January 2004 and March 2004.
Approximately 38 purported class action complaints have been filed against the
cigarette manufacturers for alleged antitrust violations. As new cases are
commenced, the costs associated with defending these cases and the risks
relating to the inherent unpredictability of litigation continue to increase.
In May 2003, a Florida intermediate appellate court overturned a
$790,000 punitive damages award against Liggett and decertified the ENGLE
smoking and health class action. Class counsel is pursuing various appellate
remedies seeking to reverse the appellate court's decision. If the appellate
court's ruling is not upheld on further appeal, it will have a material adverse
effect on us. In November 2000, Liggett filed the $3,450 bond required under the
bonding statute enacted in 2000 by the Florida legislature which limits the size
of any bond required, pending appeal, to stay execution of a punitive damages
verdict. In May 2001, Liggett reached an agreement with the class in the ENGLE
case, which provided assurance to Liggett that the stay of execution, in effect
under the Florida bonding statute, would not be lifted or limited at any point
until completion of all appeals, including to the United States Supreme Court.
As required by the agreement, Liggett paid $6,273 into an escrow account to be
held for the benefit of the ENGLE class, and released, along with Liggett's
existing $3,450 statutory bond, to the court for the benefit of the class upon
completion of the appeals process, regardless of the outcome of the appeal. In
June 2002, the jury in an individual case brought under the third phase of the
ENGLE case awarded $37,500 (subsequently reduced by the court to $25,100) of
compensatory damages against Liggett and two other defendants and found Liggett
50% responsible for the
- 37 -
damages. The verdict, which is subject to the outcome of the ENGLE appeal, has
been overturned as a result of the appellate court's ruling. It is possible that
additional cases could be decided unfavorably and that there could be further
adverse developments in the ENGLE case. Management cannot predict the cash
requirements related to any future settlements and judgments, including cash
required to bond any appeals, and there is a risk that those requirements will
not be able to be met.
In recent years, there have been a number of restrictive regulatory
actions from various Federal administrative bodies, including the United States
Environmental Protection Agency and the Food and Drug Administration. There have
also been adverse political decisions and other unfavorable developments
concerning cigarette smoking and the tobacco industry, including the
commencement and certification of class actions and the commencement of
third-party payor actions. These developments generally receive widespread media
attention. We are not able to evaluate the effect of these developing matters on
pending litigation or the possible commencement of additional litigation, but
our consolidated financial position, results of operations or cash flows could
be materially adversely affected by an unfavorable outcome in any
smoking-related litigation. See Note 8 to our consolidated financial statements
for a description of legislation, regulation and litigation.
CRITICAL ACCOUNTING POLICIES
GENERAL. The preparation of financial statements in conformity with
accounting principles generally accepted in the United States of America
requires management to make estimates and assumptions that affect the reported
amounts of assets and liabilities, 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 restructuring and
impairment charges, inventory valuation, deferred tax assets, allowance for
doubtful accounts, promotional accruals, sales returns and allowances, actuarial
assumptions of pension plans, settlement accruals and litigation and defense
costs. Actual results could differ from those estimates.
REVENUE RECOGNITION. Revenues from sales of cigarettes are recognized
upon the shipment of finished goods to the customer, there is persuasive
evidence of an arrangement, the sale price is determinable and collectibility is
reasonably assured. We provide an allowance for expected sales returns, net of
related inventory cost recoveries. Since our primary line of business is
tobacco, our financial position and our results of operations and cash flows
have been and could continue to be materially adversely effected by significant
unit sales volume declines, litigation and defense costs, increased tobacco
costs or reductions in the selling price of cigarettes in the near term.
Effective January 1, 2002, we adopted new required accounting standards
mandating that certain sales incentives previously reported as operating,
selling, general and administrative expenses be shown as a reduction of
operating revenues. The adoption of the new accounting standards did not have an
impact on our net earnings or basic or diluted earnings per share.
MARKETING COSTS. We record marketing costs as an expense in the period
to which such costs relate. We do not defer the recognition of any amounts on
our consolidated balance sheets with respect to marketing costs. We expense
advertising costs as incurred, which is the period in which the related
advertisement initially appears. We record consumer incentive and trade
promotion costs as an expense in the period in which these programs are offered,
based on estimates of utilization and redemption rates that are developed from
historical information. As discussed above under "Revenue Recognition",
beginning January 1, 2002, we have adopted the previously mentioned revenue
recognition accounting standards that mandate that certain costs previously
reported as marketing expense be shown as a reduction of operating revenues. The
adoption of the new accounting standards did not have an impact on our net
earnings or basic or diluted earnings per share.
- 38 -
IMPAIRMENT OF LONG-LIVED ASSETS. We evaluate our long-lived assets for
possible impairment whenever events or changes in circumstances indicate that
the carrying value of the asset, or related group of assets, may not be fully
recoverable. Examples of such events or changes in circumstances include a
significant adverse charge in the manner in which a long-lived asset, or group
of assets, is being used or a current expectation that, more likely than not, a
long-lived asset, or group of assets, will be disposed of before the end of its
estimated useful life.
On October 8, 2003, we announced that we will close Vector Tobacco's
Timberlake, North Carolina cigarette manufacturing and produce its cigarette
products at Liggett's Mebane, North Carolina facility. We have evaluated the net
realizable value of the long-lived assets located at the Timberlake facility
which will no longer be used in operations. Based on management's current
estimates of the values we will be able to realize on sales of the excess
machinery and equipment, we have recognized non-cash asset impairment charges of
$18,752 in the third quarter of 2003. The estimate of fair value of these
long-lived assets is based on the best information available, including prices
for similar assets and the results of using other valuation techniques. Such
asset impairment charges may be adjusted in future periods based on the actual
amounts realized. Since judgment is involved in determining the fair value of
long-lived assets, there is a risk that the carrying value of our long-lived
assets may be overstated or understated.
CONTINGENCIES. As discussed in Note 8 of our consolidated financial
statements and above under the heading "Recent Developments in Legislation,
Regulation and Litigation", legal proceedings covering a wide range of matters
are pending or threatened in various jurisdictions against Liggett. Management
is unable to make a meaningful estimate with respect to the amount or range of
loss that could result from an unfavorable outcome of pending smoking-related
litigation or the costs of defending such cases, and we have not provided any
amounts in our consolidated financial statements for unfavorable outcomes, if
any. Litigation is subject to many uncertainties, and it is possible that our
consolidated financial position, results of operations or cash flows could be
materially adversely affected by an unfavorable outcome in any such
smoking-related litigation.
SETTLEMENT AGREEMENTS. As discussed in Note 8 to our consolidated
financial statements, Liggett and Vector Tobacco are participants in the MSA,
the 1998 agreement to settle governmental healthcare cost recovery actions
brought by various states. Liggett and Vector Tobacco have no payment
obligations under the MSA except to the extent their market shares exceed
approximately 1.65% and 0.28%, respectively, of total cigarettes sold in the
United States. Their obligations, and the related expense charges under the MSA,
are subject to adjustments based upon, among other things, the volume of
cigarettes sold by Liggett and Vector Tobacco, their relative market shares and
inflation. Since relative market shares are based on cigarette shipments, the
best estimate of the allocation of charges under the MSA is recorded in cost of
goods sold as the products are shipped. Settlement expenses under the MSA
recorded in the accompanying consolidated statements of operations were $27,567
and $29,037 for the nine months ended September 30, 2003 and 2002, respectively.
Adjustments to these estimates are recorded in the period that the change
becomes probable and the amount can be reasonably estimated.
INVENTORIES. Tobacco inventories are stated at lower of cost or market
and are determined primarily by the last-in, first-out (LIFO) method at Liggett
and the first-in, first-out (FIFO) method at Vector Tobacco. At September 30,
2003, approximately $45,000 of our inventory was associated with Vector
Tobacco's new product initiatives. Although portions of leaf tobacco inventories
may not be used or sold within one year because of time required for aging, they
are included in current assets, which is common practice in the industry. We
estimate an inventory reserve for excess quantities and obsolete items based on
specific identification and historical write-offs, taking into account future
demand and market conditions. If actual demand or market conditions in the
future are less favorable than those estimated, additional inventory write-downs
may be required.
- 39 -
EMPLOYEE BENEFIT PLANS. Since 1997, income from our defined benefit
pension plans, partially offset by the costs of postretirement medical and life
insurance benefits, have contributed to our reported operating income up to and
including 2002. The determination of our net pension and other postretirement
benefit income or expense is dependent on our selection of certain assumptions
used by actuaries in calculating such amounts. Those assumptions include, among
others, the discount rate, expected long-term rate of return on plan assets and
rates of increase in compensation and healthcare costs. In accordance with
accounting principles generally accepted in the United States of America, actual
results that differ from our assumptions are accumulated and amortized over
future periods and therefore, generally affect our recognized income or expense
in such future periods. While we believe that our assumptions are appropriate,
significant differences in our actual experience or significant changes in our
assumptions may materially affect our future net pension and other
postretirement benefit income or expense.
Based on the declines in the securities markets, we recorded a non-cash
charge of $11,090 net of tax to stockholders' equity in the fourth quarter of
2002 relating primarily to one of Liggett's defined benefit plans. The charge
was based on the extent to which our accumulated benefit obligations under the
pension plan on September 30, 2002 exceeded the fair value of the pension plan's
assets on that date. We also currently anticipate net pension expense for
defined benefit pension plans and other postretirement benefit expense
aggregating approximately $4,100 for 2003. In contrast, our funding obligations
under the pension plans are governed by ERISA. To comply with ERISA's minimum
funding requirements, we do not currently anticipate that we will be required to
make any funding to the pension plans for the pension plan year beginning on
January 1, 2003 and ending on December 31, 2003. Any additional funding
obligation that we may have for subsequent years is contingent on several
factors and is not reasonably estimable at this time.
RESULTS OF OPERATIONS
The following discussion provides an assessment of our results of
operations, capital resources and liquidity and should be read in conjunction
with our consolidated financial statements and related notes included elsewhere
in this report. The consolidated financial statements include the accounts of
VGR Holding, Liggett, Vector Tobacco, Liggett Vector Brands, New Valley and
other less significant subsidiaries. Our interest in New Valley's common shares
was 58.1% at September 30, 2003.
For purposes of this discussion and other consolidated financial
reporting, our significant business segments for the nine months ended September
30, 2003 and 2002 were Liggett, Vector Tobacco and real estate. The Liggett
segment consists of the manufacture and sale of conventional cigarettes and, for
segment reporting purposes, includes the operations of Medallion acquired on
April 1, 2002 (which operations are held for legal purposes as part of Vector
Tobacco). The Vector Tobacco segment includes the development and marketing of
reduced nicotine, nicotine-free and reduced carcinogen cigarette products and,
for segment reporting purposes, excludes the operations of Medallion.
- 40 -
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
2003 2002 2003 2002
--------- --------- --------- ---------
REVENUES:
Liggett ........................ $ 135,716 $ 139,875 $ 381,398 $ 372,688
Vector Tobacco ................. 5,337 1,839 20,398 5,597
--------- --------- --------- ---------
Total tobacco ............... 141,053 141,714 401,796 378,285
Real estate .................... 1,797 -- 5,373 661
--------- --------- --------- ---------
Total revenues .............. $ 142,850 $ 141,714 $ 407,169 $ 378,946
========= ========= ========= =========
OPERATING INCOME (LOSS):
Liggett ........................ $ 31,295 $ 27,255 $ 89,145 $ 70,650(2)
Vector Tobacco ................. (34,474)(1) (20,239) (79,980)(1) (64,876)
--------- --------- --------- ---------
Total tobacco ............... (3,179) 7,016 9,165 5,774
Real estate .................... 959 484 2,867 (354)
Corporate and other ............ (6,087) (7,186) (19,716) (25,002)
--------- --------- --------- ---------
Total operating income (loss) $ (8,307)(1) $ 314 $ (7,684)(1) $ (19,582)(2)
========= ========= ========= =========
- ---------------------
(1) Includes restructuring and impairment charges of $20,079 in 2003.
(2) Includes restructuring charges of $3,460 in 2002.
THREE MONTHS ENDED SEPTEMBER 30, 2003 COMPARED TO THREE MONTHS ENDED
SEPTEMBER 30, 2002
REVENUES. Total revenues were $142,850 for the three months ended
September 30, 2003 compared to $141,714 for the three months ended September 30,
2002. This 0.8% ($1,136) increase in revenues was due to a $4,159 or 3.0%
decrease in revenues at Liggett, offset by an increase of $3,498 in revenues at
Vector Tobacco and an increase of $1,797 in real estate revenues at New Valley.
TOBACCO REVENUES. In April 2002, the major manufacturers announced list
price increases of $1.20 per carton. Liggett matched the increase on its premium
brands only. In July 2002, Liggett announced a list price increase of $.60 per
carton on LIGGETT SELECT. In December 2002, Liggett announced a list price
increase of $.80 per carton on LIGGETT SELECT. In February 2003, Liggett
increased its net sales price for other selected discount brands by $.80 per
carton. In May 2003, Liggett increased its list price on USA by $.50 per carton.
In June 2003, Liggett increased its list price for LIGGETT SELECT by $1.10 per
carton.
Tobacco revenues at Liggett for the three months ended September 30,
2003 totaled $135,716, compared to $139,875 for the same period in 2002.
Revenues decreased by 3.0% ($4,159) due to a 2.5% decrease in unit sales volume
(approximately 66.8 million units) accounting for $3,558 in negative volume
variance, and to $689 in unfavorable sales mix partially offset by list price
increases. Tobacco revenues at Vector Tobacco were $5,337 and related primarily
to sales of QUEST compared to revenues of $1,839 which related to sales of OMNI
for the three months ended September 30, 2002.
Premium sales at Liggett for the third quarter of 2003 amounted to
$8,363 and represented 6.2% of total Liggett sales, compared to $14,571 and
10.4% of total sales for the third quarter of 2002. In the premium segment,
revenues decreased by 42.6% ($6,208) for the three months ended September 30,
2003, compared to the prior year third quarter, due to an unfavorable net price
variance of $5,338 associated with increased promotional spending and an
unfavorable volume variance of $870, reflecting a 6.0% decrease in unit sales
volume (approximately 9.1 million units).
- 41 -
The decline in Liggett's premium sales revenue during the 2002 and 2003
periods reflects both the decrease in sales volume of premium-priced cigarettes
and increased promotional spending on premium brands driven primarily by weak
economic conditions, substantial excise tax increases in many states, and
significant promotional and pricing activity among the major U.S. cigarette
manufacturers.
Discount sales at Liggett (comprising the brand categories of branded
discount, private label, control label, generic, international and contract
manufacturing) for the three months ended September 30, 2003 amounted to
$127,353 and represented 93.8% of total Liggett sales, compared to $125,304 and
89.6% of total Liggett sales for the three months ended September 30, 2002. In
the discount segment, revenues grew by 1.6% ($2,049) for the three months ended
September 30, 2003 compared to the prior year period, due to net price increases
of $5,425 offset by a 2.3% decrease in unit sales volume (approximately 57.7
million units) accounting for $2,923 in negative volume variance and $453 in
unfavorable product mix.
TOBACCO GROSS PROFIT. Tobacco gross profit was $48,342 for the three
months ended September 30, 2003 compared to $41,272 for the three months ended
September 30, 2002, an increase of $7,070 or 17.1% when compared to the same
period last year, due to lower estimated payment obligations under the Attorneys
General Master Settlement Agreement, lower overall promotional expenditures and
lower costs associated with the operations of Vector Tobacco. Liggett's brands
contributed 105.4% of our tobacco gross profit and Vector Tobacco's brand cost
5.4% for the three months ended September 30, 2003. Over the same period in
2002, Liggett's brands contributed 114.3% and Vector Tobacco's brands cost
14.3%.
Liggett's gross profit of $50,930 for the three months ended September
30, 2003 increased $3,743 from gross profit of $47,187 for the three months
ended September 30, 2002. As a percent of revenues (excluding federal excise
taxes), overall gross profit at Liggett increased to 59.3% for the three months
ended September 30, 2003 compared to 53.2% for the same period in 2002, with
gross profit for the premium segment increasing to 59.9% for the three months
ended September 30, 2003 compared to 24.4% in the same period in 2002 and gross
profit for the discount segment increasing to 59.3% in the three months ended
September 30, 2003 from 57.5% in the same period in 2002. The overall increase
in Liggett's gross profit is due primarily to lower estimated payment
obligations under the Attorneys General Master Settlement Agreement within cost
of goods sold, the reduction in promotional spending on discount brands
discussed above and the disproportionate volume of promotions-related product in
the 2002 quarter included in cost of goods sold.
REAL ESTATE REVENUES. New Valley's real estate revenues of $1,797 for
the three months ended September 30, 2003 represented rental revenues from New
Valley's two office buildings which were acquired in December 2002. There were
neither significant revenues nor expenses associated with real estate operations
for the three months ended September 30, 2002.
EXPENSES. Operating, selling, general and administrative expenses, net
of the restructuring and impairment charges of $20,079, were $38,367 for the
three months ended September 30, 2003 compared to $40,958 for the same period
last year. The decrease of $2,591 was due primarily to a $2,786 decrease in
operating expenses at Vector Tobacco. Liggett's expenses decreased $297
primarily as a result of efficiencies realized relating to the formation of
Liggett Vector Brands in March 2002. The restructuring and impairment charges in
the third quarter 2003 relate to the closing of Vector Tobacco's Timberlake,
North Carolina facility and related impairment of fixed assets. Expenses at
Liggett were $19,635 for the three months ended September 30, 2003 compared to
$19,932 for the same period last year. Expenses at Vector Tobacco, net of the
restructuring and impairment charges, for the three months ended September 30,
2003 were
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$11,538, compared to expenses of $14,324 for the three months ended September
30, 2002. The decreases in normal operating expenses at Liggett and Vector
Tobacco were offset by an increase in New Valley's real estate expenses of
$1,186 and minimally offset by an increase at the corporate level.
For the quarter ended September 30, 2003, Liggett's operating income
increased by $4,040 to $31,295 compared to $27,255 in the prior year primarily
due to the reduction in overall promotional spending, increased gross profit
margins specifically on premium brands and product mix. Vector Tobacco's
operating loss, which includes the $20,079 in restructuring and impairment
charges, increased to $34,374 for the quarter ended September 30, 2003 when
compared to the operating loss of $20,239 for the same period in 2002.
OTHER INCOME (EXPENSES). For the three months ended September 30, 2003,
other income (expenses) was a loss of $4,241 compared to a loss of $16,928 for
the three months ended September 30, 2002. Interest and dividend income were
$844 for the 2003 period compared to $2,342 for the 2002 period and were offset
in the 2003 period by interest expense of $7,422 compared to $7,112 in the
quarter ended September 30, 2002. An additional expense in the 2002 period
pertained to a provision for loss on notes receivable of $13,198 established by
New Valley.
LOSS FROM CONTINUING OPERATIONS. The loss from continuing operations
before income taxes and minority interests for the three months ended September
30, 2003 was $12,548 compared to a loss of $16,614 for the three months ended
September 30, 2002. Income tax benefit was $3,240 and minority interests in
income of subsidiaries were $72 for the three months ended September 30, 2003.
Income tax benefit was $1,972 and minority interests in losses of subsidiaries
were $6,476 for the period ended September 30, 2002. The effective tax rates for
the three months ended September 30, 2003 do not bear a customary relationship
to pre-tax accounting income principally as a consequence of non-deductible
expenses and state income taxes.
NINE MONTHS ENDED SEPTEMBER 30, 2003 COMPARED TO NINE MONTHS ENDED
SEPTEMBER 30, 2002
REVENUES. Total revenues were $407,169 for the nine months ended
September 30, 2003 compared to $378,946 for the nine months ended September 30,
2002. This 7.4% ($28,223) increase in revenues was due to an $8,710 or 2.3%
increase in revenues at Liggett, a $14,801 increase in revenues at Vector
Tobacco and an increase of $4,712 in real estate revenues at New Valley.
TOBACCO REVENUES. In April 2002, the major manufacturers announced list
price increases of $1.20 per carton. Liggett matched the increase on its premium
brands only. In July 2002, Liggett announced a list price increase of $.60 per
carton on LIGGETT SELECT. In December 2002, Liggett announced a list price
increase of $.80 per carton on LIGGETT SELECT. In February 2003, Liggett
increased its net sales price for other selected discount brands by $.80 per
carton. In May 2003, Liggett increased its list price on USA by $.50 per carton.
In June 2003, Liggett increased its list price for LIGGETT SELECT by $1.10 per
carton.
For the nine months ended September 30, 2003, net sales at Liggett
totaled $381,398, compared to $372,688 for the first nine months of 2002.
Revenues increased by 2.3% ($8,710) due to net price increases of $9,589 and a
0.4% increase in unit sales volume (approximately 27.2 million units) accounting
for $1,375 in positive volume variance, partially offset by $2,254 in
unfavorable sales mix. Revenues at Vector Tobacco for the nine months ended
September 30, 2003 were $20,398 and related primarily to sales of QUEST compared
to revenues of $5,597, which related to sales of OMNI for the nine months ended
September 30, 2002.
- 43 -
Premium sales at Liggett for the nine months ended September 30, 2003
amounted to $23,356 and represented 6.1% of total Liggett sales, compared to
$37,199 and 10.0% of total sales for the same period of 2002. In the premium
segment, revenues decreased by 37.2% ($13,843) for the nine months ended
September 30, 2003, compared to the prior year period, due to an unfavorable
price variance of $8,881, primarily associated with promotional activities, and
an unfavorable volume variance of $4,962.
The decline in Liggett's premium sales revenue during the 2002 and 2003
periods reflects both the decrease in sales volume of premium-priced cigarettes
and increased promotional spending on premium brands driven primarily by weak
economic conditions, substantial excise tax increases in many states, and
significant promotional and pricing activity from the major U.S. cigarette
manufacturers.
Discount sales at Liggett for the nine months ended September 30, 2003
amounted to $358,042 and represented 93.9% of total Liggett sales, compared to
$335,489 and 90.0% of total Liggett sales for the nine months ended September
30, 2002. In the discount segment, revenues grew by 6.7% ($22,553) for the nine
months ended September 30, 2003 compared to the prior year period, due to net
price increases of $18,469 and to a 1.3% gain in unit sales volume
(approximately 87.5 million units) accounting for $4,243 in positive volume
variance, partially offset by an unfavorable product mix of $159.
TOBACCO GROSS PROFIT. Tobacco gross profit was $139,284 for the nine
months ended September 30, 2003 compared to $115,668 for the nine months ended
September 30, 2002, an increase of $23,616 or 20.4% when compared to the same
period last year, due primarily to the reduction in promotional spending and
volume and price increases discussed above at Liggett offset by costs associated
with the operations of Vector Tobacco. Liggett's brands contributed 105.4% to
our tobacco gross profit and Vector Tobacco cost 5.4% for the nine months ended
September 30, 2003. Over the same period in 2002, Liggett brands contributed
111.4% to our gross profit and Vector Tobacco's brands cost 11.4%.
Liggett's gross profit of $146,781 for the nine months ended September
30, 2003 increased $17,969 from gross profit of $128,812 for the nine months
ended September 30, 2002. As a percent of revenues (excluding federal excise
taxes), overall gross profit at Liggett increased to 61.9% for the nine months
ended September 30, 2003 compared to 56.2% for the same period in 2002, with
gross profit for the premium segment increasing to 63.2% for the nine months
ended September 30, 2003 compared to 44.6% in the same period in 2002 and gross
profit for the discount segment increasing to 61.8% in the nine months ended
September 30, 2003 from 57.8% in the same period in 2002. This increase in
Liggett's gross profit is due primarily to the inclusion of the lower estimated
payment obligations under the Attorneys General Master Settlement Agreement
within cost of goods sold, the decrease in overall promotional spending on
discount brands and the disproportionate volume of promotions-related product in
the 2002 period, leading to higher gross margin in the current year.
REAL ESTATE REVENUES. New Valley's real estate revenues were $5,373 for
the nine months ended September 30, 2003. This compares to revenues of $661 from
real estate activities for the nine months ended September 30, 2002, with the
increase primarily attributable to the acquisition of the two office buildings
in December 2002, offset by the absence of rental revenue from New Valley's
remaining shopping center disposed of in May 2002.
EXPENSES. Operating, selling, general and administrative expenses were
$132,262 for the nine months ended September 30, 2003 compared to $132,451 for
the same period last year. These expenses are net of restructuring and
impairment charges of $20,079 at Vector Tobacco taken in the third quarter of
2003 and restructuring charges of $3,460 at Liggett taken in the first
- 44 -
quarter of 2002. Expenses at Liggett were $57,636 for the nine months ended
September 30, 2003 compared to $54,702, an increase of $2,934 over the same
period in 2002, due to increased legal, marketing and pension expenses. Expenses
at Vector Tobacco for the nine months ended September 30, 2003 were $52,136,
compared to expenses of $51,732 for the nine months ended September 30, 2002, an
increase of $404.
New Valley's expenses for real estate operations increased $1,748 in
the 2003 period due primarily to higher expenses resulting from the acquisition
of the office buildings offset by the expense associated with the shopping
center and expenses associated with the closing of BrookeMil's Russian
operations.
For the nine months ended September 30, 2003, Liggett's operating
income increased to $89,145 compared to $70,650 for the prior year period due
primarily to the higher gross profit discussed above and the $3,460
restructuring charge in the 2002 period. Vector Tobacco's operating loss was
$79,980 including the restructuring and impairment charges of $20,079 for the
nine months ended September 30, 2003 compared to $64,876 in the 2002 period.
OTHER INCOME (EXPENSES). For the nine months ended September 30, 2003,
other income (expenses) was a loss of $17,938 compared to a loss of $13,922 for
the nine months ended September 30, 2002. In the 2003 period, interest expense
of $23,087 was offset by interest and dividend income of $3,416, a gain on sale
of investments of $1,076 and equity income from non-consolidated New Valley real
estate businesses of $636. In the 2002 period, interest expense of $19,417 and a
provision for uncollectibility of notes receivable at New Valley of $13,198 were
offset by interest and dividend income of $7,743, a gain on sale of assets,
which included $8,484 related to the gain on the sale of BrookeMil in April 2002
by New Valley, and a gain on sale of investments of $1,715.
LOSS FROM CONTINUING OPERATIONS. The loss from continuing operations
before income taxes and minority interests for the nine months ended September
30, 2003 was $25,622 compared to a loss of $33,504 for the nine months ended
September 30, 2002. Income tax benefit was $4,482 and minority interests in
income of subsidiaries was $1,981 for the nine months ended September 30, 2003.
This compared to tax benefit of $5,643 and minority interests in losses of
subsidiaries of $4,490 for the nine months ended September 30, 2002. The
effective tax rates for the nine months ended September 30, 2003 do not bear a
customary relationship to pre-tax accounting income principally as a consequence
of non-deductible expenses and state income taxes.
CAPITAL RESOURCES AND LIQUIDITY
Net cash and cash equivalents decreased $30,092 for the nine months
ended September 30, 2003 and decreased $108,534 for the nine months ended
September 30, 2002.
Net cash used in operations for the nine months ended September 30,
2003 was $9,660 compared to net cash used in operations of $35,602 for the
comparable period of 2002. Cash used in operations in 2003 resulted primarily
from a net loss of $19,159 and an increase in inventories of $16,972 offset by
non-cash restructuring charges and depreciation and amortization. Cash used in
operations for the nine months ended September 30, 2002 resulted primarily from
the nine month operating loss, increased inventories and increased current taxes
offset by a reduction in accounts receivable and the non-cash impact of
depreciation and amortization, non-cash stock-based expense and a provision for
uncollectibility of notes receivable.
Cash provided by investing activities of $33,187 in 2003 compares to
cash used of $48,172 in 2002. In the nine months ended September 30, 2003, cash
was provided primarily through the sale or maturity of investment securities,
sale of long-term investments and other assets for $113,891 offset primarily by
the purchase of investment securities for $49,127, the purchase of an investment
in real estate businesses at New Valley for $9,500, an increase in restricted
assets of $13,691 and
- 45 -
capital expenditures of $7,691. In the nine months ended September 30, 2002,
cash was used principally for acquisition of Medallion for $50,000 and for the
purchase of machinery and equipment for $39,284 as well as for the issuance of a
note receivable at New Valley for $4,000. These expenditures were offset
primarily by net proceeds received from the sale by New Valley of BrookeMil for
$20,461 and the net sale or maturity of investment securities of $24,137.
Cash used in financing activities was $53,619 in 2003 compared to cash
used of $24,760 in 2002. In the nine months ended September 30, 2003, cash was
used primarily for dividends of $44,371 and repayments on debt of $26,764 offset
by net borrowings of $16,227 under the revolver and proceeds from the exercise
of warrants and options of $1,106. In the nine months ended September 30, 2002,
cash was used primarily for dividends of $39,906, repayments of debt of $10,355
and New Valley's repayment of the participating loan to Apollo in connection
with the sale of BrookeMil, offset by proceeds from debt of $37,635, and
proceeds from the exercise of options of $1,196.
LIGGETT. Liggett has a $40,000 credit facility under which $16,227 was
outstanding at September 30, 2003. Availability under the facility was
approximately $23,583 based on eligible collateral at September 30, 2003. The
facility is collateralized by all inventories and receivables of Liggett.
Borrowings under the facility, whose interest is calculated at a rate equal to
1.0% above Wachovia's (the indirect parent of Congress Financial Corporation,
the lead lender) prime rate, bore a rate of 5.25% at September 30, 2003. The
facility requires Liggett's compliance with certain financial and other
covenants including a restriction on the payment of cash dividends unless
Liggett's borrowing availability under the facility for the 30-day period prior
to the payment of the dividend, and after giving effect to the dividend, is at
least $5,000. In addition, the facility, as amended, imposes requirements with
respect to Liggett's adjusted net worth (not to fall below $8,000 as computed in
accordance with the agreement) and working capital (not to fall below a deficit
of $17,000 as computed in accordance with the agreement). At September 30, 2003,
Liggett was in compliance with all covenants under the credit facility;
Liggett's adjusted net worth was $45,635 and net working capital was $55,279 as
computed in accordance with the agreement. The facility expires on March 8, 2004
subject to automatic renewal for an additional year unless a notice of
termination is given by the lender at least 60 days prior to such date or the
anniversary of such date.
In November 1999, 100 Maple LLC, a new company formed by Liggett to
purchase an industrial facility in Mebane, North Carolina, borrowed $5,040 from
the lender under Liggett's credit facility. In July 2001, Maple borrowed an
additional $2,340 under the loan, and a total of $5,190 was outstanding at
September 30, 2003. In September 2002, the lender agreed that no further
regularly scheduled principal payments would be due under the Maple loan until
March 1, 2004. Thereafter, the loan is payable in 27 monthly installments of $77
with a final payment of $3,111. Interest is charged at the same rate as
applicable to Liggett's credit facility, and borrowings under the Maple loan
reduce the maximum availability under the credit facility. Liggett has
guaranteed the loan, and a first mortgage on the Mebane property and equipment
collateralizes the Maple loan and Liggett's credit facility.
In April 2003, the credit facility was amended to increase the maximum
credit available under the facility to $45,000 for the period through October
15, 2003. We guaranteed $10,000 of borrowings under the facility and
collateralized the guarantee with $10,000 in cash. Our guarantee was terminated,
and the pledge of the cash collateral released, on October 16, 2003.
In March 2000, Liggett purchased equipment for $1,000 through the
issuance of a note, payable in 60 monthly installments of $21 with an effective
annual interest rate of 10.14%. In April 2000, Liggett purchased equipment for
$1,071 through the issuance of notes, payable in 60 monthly installments of $22
with an effective interest rate of 10.20%.
- 46 -
Beginning in October 2001, Liggett upgraded the efficiency of its
manufacturing operation at Mebane with the addition of four new state-of-the-art
cigarette makers and packers, as well as related equipment. The total cost of
these upgrades was approximately $20,000. Liggett took delivery of the first two
of the new lines in the fourth quarter of 2001 and financed the purchase price
of $6,404 through the issuance of notes, guaranteed by us and payable in 60
monthly installments of $106 with interest calculated at the prime rate. In
March 2002, the third line was delivered, and the purchase price of $3,023 was
financed through the issuance of a note, payable in 30 monthly installments of
$62 and then 30 monthly installments of $51 with an effective annual interest
rate of 4.68%. In May 2002, the fourth line was delivered, and Liggett financed
the purchase price of $2,871 through the issuance of a note, payable in 30
monthly installments of $59 and then 30 monthly installments of $48 with an
effective annual interest rate of 4.64%. In September 2002, Liggett purchased
additional equipment for $1,573 through the issuance of a note, guaranteed by
us, payable in 60 monthly installments of $26 plus interest rate calculated at
LIBOR plus 4.31%.
In May 1999, in connection with the Philip Morris brand transaction,
Eve Holdings Inc., a subsidiary of Liggett, guaranteed a $134,900 bank loan to
Trademarks LLC. The loan is secured by Trademarks' three premium cigarette
brands and Trademarks' interest in the exclusive license of the three brands by
Philip Morris. The license provides for a minimum annual royalty payment equal
to the annual debt service on the loan plus $1,000. We believe that the fair
value of Eve's guarantee is negligible at September 30, 2003.
On July 16, 2003, Liggett granted an unaffiliated third party an option
to purchase Liggett's former manufacturing facility and other excess real estate
in Durham, North Carolina with a net book value at September 30, 2003 of
approximately $1,373. The option agreement permits the purchaser to acquire the
property, during a period of up to two years, at a purchase price of $14,000 if
the closing occurs by August 23, 2004 and $15,000 if the closing occurs
thereafter during the term of the option. Liggett has received option fees of
$750, of which $550 is refundable if the purchaser terminates the agreement
prior to January 12, 2004. Liggett will be entitled to receive additional option
fees of up to $750 during the remaining option period. The option fees will
generally be creditable against the purchase price and are refundable in part
upon termination of the agreement. The purchaser is currently conducting due
diligence, and there can be no assurance the sale of the property will occur.
Liggett (and, in certain cases, Brooke Group Holding, our predecessor
and a wholly-owned subsidiary of VGR Holding) 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 from cigarettes. We believe, and have been so advised by counsel
handling the respective cases, that Brooke Group Holding and Liggett have a
number of valid defenses to claims asserted against them. Litigation is subject
to many uncertainties. In May 2003, a Florida intermediate appellate court
overturned a $790,000 punitive damages award against Liggett and decertified the
ENGLE smoking and health class action. Class counsel is pursuing various
appellate remedies seeking to reverse the appellate court's decision. If the
appellate court's ruling is not upheld on further appeal, it will have a
material adverse effect on us. In November 2000, Liggett filed the $3,450 bond
required under the bonding statute enacted in 2000 by the Florida legislature
which limits the size of any bond required, pending appeal, to stay execution of
a punitive damages verdict. In May 2001, Liggett reached an agreement with the
class in the ENGLE case, which provided assurance to Liggett that the stay of
execution, in effect pursuant to the Florida bonding statute, would not be
lifted or limited at any point until completion of all appeals, including to the
United States Supreme Court. As required by the agreement, Liggett paid $6,273
into an escrow account to be held for the benefit of the ENGLE class, and
released, along with Liggett's existing $3,450 statutory bond, to the court for
the benefit of the class upon completion of the appeals process, regardless of
the outcome of the appeal. In June 2002, the jury in an individual case
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brought under the third phase of the ENGLE case awarded $37,500 (subsequently
reduced by the court to $25,100) of compensatory damages against Liggett and two
other defendants and found Liggett 50% responsible for the damages. The verdict,
which was subject to the outcome of the ENGLE appeal, has been overturned as a
result of the appellate court's ruling. It is possible that additional cases
could be decided unfavorably and that there could be further adverse
developments in the ENGLE case. Management cannot predict the cash requirements
related to any future settlements and judgments, including cash required to bond
any appeals, and there is a risk that those requirements will not be able to be
met. An unfavorable outcome of a pending smoking and health case could encourage
the commencement of additional similar litigation. In recent years, there have
been a number of adverse regulatory, political and other developments concerning
cigarette smoking and the tobacco industry. These developments generally receive
widespread media attention. Neither we nor Liggett are able to evaluate the
effect of these developing matters on pending litigation or the possible
commencement of additional litigation or regulation. See Note 8 to our
consolidated financial statements.
Management 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 Brooke Group Holding or Liggett or the costs of defending such cases. It
is possible that our consolidated financial position, results of operations or
cash flows could be materially adversely affected by an unfavorable outcome in
any such tobacco-related litigation.
V.T. AVIATION. In February 2001, V.T. Aviation LLC, a subsidiary of
Vector Research Ltd., purchased an airplane for $15,500 and borrowed $13,175 to
fund the purchase. The loan, which is collateralized by the airplane and a
letter of credit from us for $775, is guaranteed by Vector Research, VGR Holding
and us. The loan is payable in 119 monthly installments of $125 including annual
interest of 2.31% above the 30-day commercial paper rate, with a final payment
of $6,125.
In February 2002, V.T. Aviation purchased an airplane for $6,575 and
borrowed $5,800 to fund the purchase. The loan is guaranteed by us. The loan is
payable in 119 monthly installments of $40, including annual interest at 2.75%
above the 30-day commercial paper rate, with a final payment of $2,793. During
the fourth quarter of 2003, we plan to transfer this airplane to a direct
subsidiary of ours which will assume the debt.
VECTOR TOBACCO. In June 2001, Vector Tobacco purchased for $8,400 an
industrial facility in Timberlake, North Carolina. Vector Tobacco financed the
purchase with an $8,200 loan. The loan is payable in 60 monthly installments of
$85, plus interest at 4.85% above the LIBOR rate, with a final payment of
approximately $3,160. The loan, which is collateralized by a mortgage and a
letter of credit of $1,750, is guaranteed by us and by VGR Holding.
During December 2001, Vector Tobacco borrowed an additional $1,159 from
the same lender to finance building improvements. This loan is payable in 30
monthly installments of $39 plus accrued interest, with an annual interest rate
of LIBOR plus 5.12%.
On April 1, 2002, a subsidiary of ours acquired the stock of The
Medallion Company, Inc., a discount cigarette manufacturer, and related assets
from Medallion's principal stockholder. Following the purchase of the Medallion
stock, Vector Tobacco merged into Medallion and Medallion changed its name to
Vector Tobacco Inc. The total purchase price for the Medallion shares and the
related assets consisted of $50,000 in cash and $60,000 in notes, with the notes
guaranteed by us and by Liggett. Of the notes, $25,000 bear interest at a 9.0%
annual rate and mature $3,125 per quarter commencing June 30, 2002 and
continuing through March 31, 2004. At September 30, 2003, $6,250 of these notes
were outstanding. The remaining $35,000 of notes bear interest at 6.5% per year,
payable semiannually, and mature on April 1, 2007.
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VGR HOLDING. In May 2001, VGR Holding issued at a discount $60,000
principal amount of 10% senior secured notes due March 31, 2006 in a private
placement. VGR Holding received net proceeds from the offering of approximately
$46,500. In April 2002, VGR Holding issued at a discount an additional $30,000
principal amount of 10% senior secured notes due March 31, 2006 in a private
placement and received net proceeds of approximately $24,500. The notes were
priced to provide purchasers with a 15.75% yield to maturity. The notes are on
the same terms as the $60,000 principal amount of senior secured notes
previously issued. All of the notes have been guaranteed by us and by Liggett.
The notes are collateralized by substantially all of VGR Holding's
assets, including a pledge of VGR Holding's equity interests in its direct
subsidiaries, including Brooke Group Holding, Brooke (Overseas) Ltd., Vector
Tobacco and New Valley Holdings, Inc., as well as a pledge of the shares of
Liggett and all of the New Valley securities held by VGR Holding and New Valley
Holdings. The purchase agreement for the notes contains covenants, which among
other things, limit the ability of VGR Holding to make distributions to us to
50% of VGR Holding's net income, unless VGR Holding holds an amount in cash
equal to the then principal amount of the notes outstanding ($70,000 at
September 30, 2003) after giving effect to the payment of the distribution, and
limit additional indebtedness of VGR Holding, Liggett and Vector Tobacco to 250%
of EBITDA (as defined in the purchase agreements) for the trailing 12 months
plus, for periods through December 31, 2003, additional amounts including up to
$100,000 during the period commencing on June 30, 2003 and ending on September
29, 2003 and $50,000 during the period commencing on September 30, 2003 and
ending on December 31, 2003. The covenants also restrict transactions with
affiliates subject to exceptions which include payments to us not to exceed
$9,500 per year for permitted operating expenses, and limit the ability of VGR
Holding to merge, consolidate or sell certain assets. In November 2002, in
connection with an amendment to the note purchase agreement, VGR Holding
repurchased $8,000 of the notes at a price of 100% of the principal amount plus
accrued interest. We recognized a loss of $1,320 in 2002 on the early
extinguishment of debt.
In connection with an additional amendment to the note purchase
agreement, VGR Holding repurchased a total of $8,000 of the notes in the second
quarter of 2003 and $4,000 of the notes on September 30, 2003, at a price of
100% of the principal amount plus accrued interest. The Company recognized
losses of $1,197 in the second quarter and $524 in the third quarter of 2003 on
the early extinguishment of debt.
VGR Holding has the right (which it has not exercised) under the
purchase agreement for the notes to elect to treat Vector Tobacco as a
"designated subsidiary" and exclude the losses of Vector Tobacco in determining
the amount of additional indebtedness permitted to be incurred. If VGR Holding
were to make this election, future cash needs of Vector Tobacco would be
required to be funded directly by us or by third-party financing as to which
neither VGR Holding nor Liggett could provide any guarantee or credit support.
VGR Holding may redeem the notes, in whole or in part, at a redemption
price of 100% of the principal amount. During the term of the notes, VGR Holding
is required to offer to repurchase all the notes at a purchase price of 101% of
the principal amount, in the event of a change of control, and to offer to
repurchase notes, at 100% of the principal amount, with the proceeds of material
asset sales.
NEW VALLEY. In December 2002, New Valley financed a portion of its
purchase of two office buildings in Princeton, N.J. with a $40,500 mortgage loan
from HSBC Realty Credit Corporation (USA). The loan has a term of four years,
bears interest at a floating rate of 2% above LIBOR, and is secured by a first
mortgage on the office buildings, as well as by an assignment of leases and
rents. Principal is amortized to the extent of $54 per month during the term of
the loan. The loan may be prepaid without penalty and is non-recourse against
New
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Valley, except for various specified environmental and related matters,
misapplication of tenant security deposits and insurance and condemnation
proceeds, and fraud or misrepresentation by New Valley in connection with the
indebtedness.
VECTOR. We believe that we will continue to meet our liquidity
requirements through 2003, although the covenants in the purchase agreement for
VGR Holding's notes limit the ability of VGR Holding to make distributions to us
unless certain tests are met. Under the terms of these covenants, at September
30, 2003, VGR Holding was generally not permitted to pay distributions to us
except for tax sharing payments and specified amounts of operating expenses.
Corporate expenditures (exclusive of Liggett, Vector Research, Vector Tobacco
and New Valley) over the next twelve months for current operations include cash
interest expense of approximately $16,500, dividends on our outstanding shares
(currently at an annual rate of approximately $62,000) and corporate expenses.
In addition, VGR Holding repurchased in the second and third quarters of 2003 a
total of $12,000 of the notes at a price of 100% of the principal amount plus
accrued interest. We anticipate funding our expenditures for current operations
with available cash resources, proceeds from public and/or private debt and
equity financing, management fees from subsidiaries and tax sharing and other
payments from Liggett or 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.
In July 2001, we completed the sale of $172,500 (net proceeds of
approximately $166,400) of our 6.25% convertible subordinated notes due July 15,
2008 through a private offering to qualified institutional investors in
accordance with Rule 144A under the Securities Act of 1933. The notes pay
interest at 6.25% per annum and are convertible into our common stock, at the
option of the holder. The conversion price, which was $27.91 at November 13,
2003, is subject to adjustment for various events, and any cash distribution on
our common stock results in a corresponding decrease in the conversion price. In
December 2001, $40,000 of the notes were converted into our common stock, and
$132,500 principal amount of the notes were outstanding at September 30, 2003.
Our consolidated balance sheets include deferred income tax assets and
liabilities, which represent temporary differences in the application of
accounting rules established by generally accepted accounting principles and
income tax laws. As of September 30, 2003, our deferred income tax liabilities
exceeded our deferred income tax assets by $108,385. The largest component of
our deferred tax liabilities exists because of differences that resulted from a
1998 and 1999 transaction with Philip Morris Incorporated where a subsidiary of
Liggett contributed three of its premium brands to Trademarks LLC, a
newly-formed limited liability company. In such transaction, Philip Morris
acquired an option to purchase the remaining interest in Trademarks for a 90-day
period commencing in December 2008, and we have an option to require Philip
Morris to purchase the remaining interest commencing in March 2010. For
additional information concerning the Philip Morris brand transaction, see Note
18 to our consolidated financial statements in our Annual Report on Form 10-K
for the year ended December 31, 2002.
In connection with the transaction, we recognized in 1999 a pre-tax
gain of $294,078 in our consolidated financial statements and established a
deferred tax liability of $103,100 relating to the gain. Upon exercise of the
options during the 90-day periods commencing in December 2008 or in March 2010,
we will be required to pay tax in the amount of the deferred tax liability,
which will be offset by the benefit of any deferred tax assets, including any
net operating losses, available to us at that time. In connection with an
examination of our 1998 and 1999 federal income tax returns, the Internal
Revenue Service issued to us in September 2003 a notice of proposed adjustment.
The notice asserts that, for tax reporting purposes, the entire gain should have
been recognized in 1998 and in 1999 in the additional amounts of $150,000 and
$129,900, respectively, rather than upon the exercise of the options during the
90-day periods commencing in December 2008 or in March 2010. If the Internal
Revenue Service were to ultimately prevail
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with the proposed adjustment, it would result in the potential acceleration of
tax payments of approximately $116,000, including interest, net of tax benefits,
through September 30, 2003. These amounts have been previously recognized in our
consolidated financial statements as tax liabilities. As of September 30, 2003,
we believe amounts potentially due have been fully provided for in our
consolidated statements of operations.
We believe the positions reflected on our income tax returns are
correct and intend to vigorously oppose any proposed adjustments to our returns.
We have filed a protest with the Appeals Division of the Internal Revenue
Service. No payment is due with respect to these matters during the appeal
process. Interest currently is accruing on the disputed amounts at a rate of 6%,
with the rate adjust quarterly based on rates published by the U.S. Treasury
Department. If taxing authorities were to ultimately prevail in their assertion
that we incurred a tax obligation prior to the exercise dates of these options
and we were required to make such tax payments prior to 2009 or 2010, and if any
necessary financing were not available to us, our liquidity could be adversely
affected.
MARKET RISK
We are exposed to market risks principally from fluctuations in
interest rates, foreign currency exchange rates and equity prices. We seek to
minimize these risks through our regular operating and financing activities and
our long-term investment strategy. The market risk management procedures of us
and New Valley cover all market risk sensitive financial instruments.
As of September 30, 2003, approximately $89,139 of our outstanding debt
had variable interest rates, which increases the risk of fluctuating interest
rates. Our exposure to market risk includes interest rate fluctuations in
connection with our variable rate borrowings, which could adversely affect our
cash flows. As of September 30, 2003, we had no interest rate caps or swaps.
Based on a hypothetical 100 basis point increase or decrease in interest rates
(1%), our annual interest expense could increase or decrease by approximately
$815.
We held investment securities available for sale totaling $76,194 at
September 30, 2003. Adverse market conditions could have a significant effect on
the value of these investments.
New Valley also holds long-term investments in limited partnerships and
limited liability companies. These investments are illiquid, and their ultimate
realization is subject to the performance of the investee entities.
NEW ACCOUNTING PRONOUNCEMENTS
In December 2002, the FASB issued SFAS No. 148, "Accounting for
Stock-Based Compensation - Transition and Disclosure, an amendment of SFAS No.
123." SFAS No. 148 amends SFAS No. 123 to provide alternative methods of
transition for a voluntary change to that statement's fair value method of
accounting for stock-based employee compensation. SFAS No. 148 also amends the
disclosure provisions of SFAS No. 123 and APB No. 28, "Interim Financial
Reporting," to require disclosure in the summary of significant accounting
policies of the effects of an entity's accounting policy with respect to
stock-based employee compensation on reported net income and earnings per share
in annual and interim financial statements. The transition and disclosure
provisions of this statement are effective for financial statements for fiscal
years ending after December 15, 2002 and for interim financial statements
commencing after that date. We have not elected the fair value-based method of
accounting for stock-based compensation under SFAS No. 123, as amended by SFAS
No. 148. (See Note 9 to our consolidated financial statements.)
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In June 2002, the FASB issued SFAS 146, "Accounting for Costs
Associated with Exit or Disposal Activities." SFAS 146 addresses financial
accounting and reporting for costs associated with exit or disposal activities
and nullifies EITF 94-3, "Liability Recognition for Certain Employee Termination
Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred
in a Restructuring)." SFAS 146 requires that a liability for a cost associated
with an exit or disposal activity be recognized when the liability is incurred
as opposed to EITF 94-3, which allowed a cost to be recognized when a commitment
to an exit plan was made. The provisions of this SFAS are effective for exit or
disposal activities that are initiated after December 31, 2002. Restructuring
costs discussed in Note 2 to the consolidated financial statements have been
accounted for in accordance with SFAS 146.
In November 2002, the FASB issued Interpretation No. 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, Including Indirect
Guarantees of Indebtedness of Others." FIN No. 45 requires that upon issuance of
a guarantee, the guarantor must recognize a liability for the fair value of the
obligation it assumes under the guarantee and expanded disclosure of certain
guarantees existing at December 31, 2002. The adoption of this statement did not
impact our consolidated financial statements.
In January 2003, FIN No. 46, "Consolidation of Variable Interest
Entities", was issued. This interpretation clarifies the application of
Accounting Research Bulletin No. 51, "Consolidated Financial Statements," to
certain entities in which equity investors do not have the characteristics of a
controlling financial interest or do not have sufficient equity at risk for the
entity to finance its activities without additional subordinated financial
support from other parties. FIN No. 46 is effective February 1, 2003 for
variable interest entities created after January 31, 2003, and December 15, 2003
for variable interest entities created prior to February 1, 2003. We do not
believe this interpretation will have a material impact on our consolidated
financial statements.
In April 2003, SFAS No. 149, "Amendment of Statement 133 on Derivative
Instruments and Hedging Activities" was issued. SFAS No. 149 amends and
clarifies accounting for derivative instruments, including certain derivative
instruments embedded in other contracts, and for hedging activities under SFAS
No. 133. SFAS No. 149 is effective for contracts entered into or modified after
June 30, 2003 and for hedging relationships designated after June 30, 2003. The
adoption of this statement did not impact our consolidated financial statements.
In May 2003, the FASB issued SFAS No. 150, "Accounting for Certain
Financial Instruments with Characteristics of both Liabilities and Equity." SFAS
No. 150 establishes standards for how companies classify and measure certain
financial instruments with characteristics of both liabilities and equity. It
requires companies to classify a financial instrument that is within its scope
as a liability (or an asset in some circumstances). SFAS No. 150 is effective
immediately for financial instruments entered into or modified after May 15,
2003 and in the first interim period after June 15, 2003 for all other financial
instruments. The adoption of this statement did not impact our consolidated
financial statements.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
We and our representatives may from time to time make oral or written
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995, including any 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 our reports to stockholders, which
reflect our expectations or beliefs 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
Private Securities Litigation Reform Act, we have identified under "Risk
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Factors" in Item 1 of our Form 10-K for the year ended December 31, 2002 filed
with the Securities and Exchange Commission important factors that could cause
actual results to differ materially from those contained in any forward-looking
statement made by or on behalf of us.
Results actually achieved may differ materially from expected results
included in these forward-looking statements as a result of these or other
factors, including uncertainties and risks related to any potential costs or
savings associated with the closing of the Timberlake manufacturing facility and
related actions and our ability to realize estimated values on sales of excess
manufacturing equipment. 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. We do not undertake
to update any forward-looking statement that may be made from time to time by or
on behalf of us.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The information under the caption "Management's Discussion and Analysis
of Financial Condition and Results of Operations - Market Risk" is incorporated
herein by reference.
ITEM 4. CONTROLS AND PROCEDURES
Under the supervision and with the participation of our management,
including our principal executive officer and principal financial officer, we
have evaluated the effectiveness of our disclosure controls and procedures as of
the end of the period covered by this report, and, based on that evaluation, our
principal executive officer and principal financial officer have concluded that
these controls and procedures are effective. There were no changes in our
internal control over financial reporting during the period covered by this
report that have materially affected, or are reasonably likely to materially
affect, our internal control over financial reporting.
Disclosure controls and procedures are our controls and other
procedures that are designed to ensure that information required to be disclosed
by us in the reports that we file or submit under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the
Securities and Exchange Commission's rules and forms. Disclosure controls and
procedures include, without limitation, controls and procedures designed to
ensure that information required to be disclosed by us in the reports that we
file or submit under the Exchange Act is accumulated and communicated to our
management, including our principal executive officer and principal financial
officer, as appropriate to allow timely decisions regarding disclosure.
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PART II
OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
Reference is made to Note 8, incorporated herein by reference, to
our consolidated financial statements included elsewhere in this
report which contains a general description of certain legal
proceedings to which Brooke Group Holding, VGR Holding, New Valley
or their subsidiaries are a party and certain related matters.
Reference is also made to Exhibit 99.1 for additional information
regarding the pending smoking-related material legal proceedings
to which Brooke Group Holding and/or Liggett are party. A copy of
Exhibit 99.1 will be furnished to holders of our securities and
the securities of our subsidiaries without charge upon written
request to us at our principal executive offices, 100 S.E. Second
St., Miami, Florida 33131, Attn. Investor Relations.
Item 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
No securities of ours which were not registered under the
Securities Act of 1933 have been issued or sold by us during the
three months ended September 30, 2003, except for the issuance of
shares of our common stock in connection with our 5% stock
dividend paid on September 29, 2003. The issuance of these shares
did not involve a "sale" under the Securities Act of 1933.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
31.1 Certification of Chief Executive Officer, Pursuant to
Exchange Act Rule 13a-14(a), as Adopted Pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Chief Financial Officer, Pursuant to
Exchange Act Rule 13a-14(a), as Adopted Pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of Chief Executive Officer, Pursuant to
18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
32.2 Certification of Chief Financial Officer, Pursuant to
18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
99.1 Material Legal Proceedings.
*99.2 New Valley Corporation's Interim Consolidated
Financial Statements for the quarterly periods ended
September 30, 2003 and 2002 (incorporated by
reference to New Valley's Quarterly Report on Form
10-Q for the quarterly period ended September 30,
2003, Commission File No. 1-2493).
- ------------------------
* Incorporated by reference
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(b) REPORTS ON FORM 8-K
We filed the following Report on Form 8-K during the third
quarter of 2003:
Financial
Date Items Statements
---- ----- ----------
August 15, 2003 7, 12 None
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SIGNATURE
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.
VECTOR GROUP LTD.
(REGISTRANT)
By: /s/ Joselynn D. Van Siclen
-------------------------------------
Joselynn D. Van Siclen
Vice President and Chief
Financial Officer
Date: November 13, 2003
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