EXHIBIT 4.1
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
AMENDMENT NO. 2 dated August 31, 2001 ("Amendment No. 2") to
STOCK PURCHASE AGREEMENT, dated February 8, 2001 ("Stock Purchase Agreement"),
among LADENBURG XXXXXXXX FINANCIAL SERVICES INC. (f/k/a GBI CAPITAL MANAGEMENT
CORP.), NEW VALLEY CORPORATION, NEW VALLEY CAPITAL CORPORATION (f/k/a LADENBURG,
XXXXXXXX GROUP INC.), BERLINER EFFEKTENGESELLSCHAFT AG and LADENBURG, XXXXXXXX &
CO., INC.
WHEREAS, the Parties have entered into the Stock Purchase
Agreement and the Amendment No. 1 to the Stock Purchase Agreement, dated April
25, 2001 ("Amendment No. 1") and desire to further amend the Stock Purchase
Agreement in certain respects as set forth herein (capitalized terms used herein
that are defined in the Stock Purchase Agreement or Amendment No. 1 shall have
the same meanings herein as in the Stock Purchase Agreement or Amendment No. 1);
IT IS AGREED:
1. Section 2.4 of the Stock Purchase Agreement is hereby amended in its
entirety to read as follows:
"2.4 Net Worth Adjustment.
(a) As used in this Section 2.4:
(i) "Initial Purchase Price Adjustment Percentage"
means the amount (expressed as a decimal) obtained by dividing the Net Closing
Book Differential by $21,263,080.
(ii) "Net Closing Book Differential" means the
amount obtained by subtracting the Ladenburg Book Differential from the GBI Book
Differential.
(iii) "GBI Book Differential" means the amount
obtained by subtracting the Adjusted Total Stockholders' Equity of the Purchaser
on the last day of the calendar month immediately preceding the month in which
the Closing occurs from $21,263,080.
(iv) "Ladenburg Book Differential" means the
amount obtained by subtracting the Total Ownership Equity of Ladenburg on the
last day of the calendar month immediately preceding the month in which the
Closing occurs from $29,642,000.
(v) "Adjusted Total Stockholders' Equity" means
the amount obtained by taking the sum of (1) the stockholders' equity of the
Purchaser as of the last day of the calendar month immediately preceding the
month in which the Closing occurs, based in part on the Total Ownership Equity
of the Purchaser's subsidiary, GBI Capital Partners Inc. ("GBICP"), and (2) all
out-of-pocket expenses incurred through such date by the Purchaser in connection
with the Stock Purchase Agreement and the related transactions to the extent
such expenses reduce the Purchaser's stockholders' equity.
(vi) "Total Ownership Equity" means the amount
referred to as "total ownership equity" in the Focus Reports referred to in
subparagraph (b) below.
(vii) "Final Purchase Price Adjustment Percentage"
means the amount (expressed as a decimal) obtained by dividing the Final Net
Closing Book Differential by $21,263,080.
(viii) "Final Net Closing Book Differential" means
the amount obtained by subtracting the Ladenburg Book Differential (as
determined in the Memorandum referred to below) from the Final GBI Book
Differential.
(ix) "Final GBI Book Differential" means the
amount obtained by subtracting the Final Adjusted Total Stockholders' Equity of
the Purchaser (as calculated as of May 7, 2003) from $21,263,080.
(x) "Final Adjusted Stockholders' Equity" means
the amount obtained by subtracting the sum of the litigation adjustments set
forth on the attached Schedule 2.4 from the Adjusted Total Stockholders' Equity.
(b) Promptly after the Closing, the individuals then serving
as the chief financial officers of Ladenburg and Purchaser ("Chief Financial
Officers") cooperated with each other to calculate the Initial Purchase Price
Adjustment Percentage. The Focus Reports for Ladenburg and GBICP were prepared,
and the stockholders' equity of the Purchaser was determined, in accordance with
GAAP, applied consistently as in the Financial Statements and the Purchaser
Financial Statements. Upon completion of the calculation of the Initial Purchase
Price Adjustment Percentage, the number of shares to be issued to the Sellers
and the conversion price of the Notes to be issued to the Sellers shall be
adjusted (the "Initial Issuance Adjustment") as follows:
(i) The number of shares of Purchaser Common Stock
to be issued to the Sellers shall be increased from 18,181,818 to the Total New
Shares and the Purchaser shall issue to the Sellers certificates representing
the Total New Shares less 18,181,818. "Total New Shares" shall mean the quotient
obtained by taking (x) a numerator of 25,000,000 over (y) a denominator of (1)
1.375 less (2) the product of 1.375 and the Initial Purchase Price Adjustment
Percentage. Notwithstanding the foregoing, if the issuance to LTGI of any
additional shares of Purchaser Common Stock pursuant to this Section 2.4(b)(i)
(and Section 2.4(e)) shall, when taken together with all other shares of
Purchaser Common Stock issued to LTGI as part of the Purchase Price, require
compliance with the notification provisions of the HSR Act, the Purchaser shall
issue to LTGI only that number of shares of Purchaser Common Stock as shall not
require such compliance and the Purchaser shall not be obligated to issue any
further additional shares of Purchaser Common Stock to LTGI until such
compliance has been effected.
(ii) The conversion price of the Notes, as amended
by Amendment No. 1 and hereby, a copy of which is annexed hereto as Exhibit A,
shall be decreased by the amount obtained by taking the product of $2.60 and the
Initial Purchase Price Adjustment Percentage. Notwithstanding the foregoing, the
conversion price of the Notes may not be decreased below a price that would
2
result in the total number of additional shares of Purchaser Common Stock being
issuable upon conversion of the Notes as a result of such adjustment, when added
to the additional number of shares of Purchaser Common Stock being issued to the
Sellers under subsection (i) above, exceeding 80% of the sum of (x) the number
of additional shares to be issued and issuable to the Sellers under this Section
2.4(b) and (y) the number of additional shares of Purchaser Common Stock
issuable to Frost as a result of the Conversion Price Adjustment (as such term
is defined in the Loan Agreement, dated as of February 8, 2001, as amended,
between the Purchaser and Frost).
(c) Upon completion of calculating the Initial Purchase Price
Adjustment Percentage and the Initial Issuance Adjustment, such calculations
were submitted to the Enforcement Committee, New Valley and Berliner.
(d) By execution of this Amendment No. 2, the Enforcement
Committee, New Valley and Berliner have approved such calculations of the
Initial Purchase Price Adjustment Percentage and the Initial Issuance
Adjustment. Accordingly, simultaneously herewith, Purchaser is issuing 4,034,462
shares of Purchaser Common Stock to LTGI and 1,002,319 shares of Purchaser
Common Stock to Berliner. Additionally, the conversion price of the Notes issued
to the Sellers is being decreased from $2.60 to $2.0836498.
(e) On or about May 7, 2003, the then Chief Financial Officers
of New Valley and Purchaser shall cooperate with each other to calculate the
Final Purchase Price Adjustment Percentage. Upon completion of the Final
Purchase Price Adjustment Percentage, such Chief Financial Officers shall then
re-calculate the number of shares to be issued to the Sellers and the conversion
price of the Notes to be issued to the Sellers as set forth in subparagraphs
(b)(i) and (b)(ii) of this Section 2.4, in each case using the Final Purchase
Price Adjustment Percentage as opposed to the Initial Purchase Price Adjustment
Percentage (the "Final Issuance Adjustment"). The Purchaser shall then:
(i) issue such additional number of shares of
Purchaser Common Stock as is obtained by subtracting 23,218,599 (the total
number of shares issued by the Purchaser to LTGI and Berliner using the Initial
Purchase Price Adjustment Percentage) from the number of shares to be issued by
the Purchaser using the Final Purchase Price Adjustment Percentage; and
(ii) lower the conversion price of the Notes
issued to Seller from $2.0836498 (the conversion price of the Notes using the
Initial Purchase Price Adjustment Percentage) to the conversion price using the
Final Purchase Price Adjustment Percentage. If any of the Notes issued to the
Sellers or Frost are converted prior to May 7, 2003, the conversion price of
such converted Notes shall not be decreased as a result of any adjustment that
may occur pursuant to this Section 2.4(e)(ii).
(f) Upon completion of calculating the Final Purchase Price
Adjustment Percentage and the Final Issuance Adjustment, such calculations shall
be submitted to the Enforcement Committee, New Valley and Berliner and shall be
deemed conclusively accepted unless written objection thereto is given by any
Party to the other Parties within 30 days after submission.
3
(g) If, within the 30-day period specified in Section 2.4(f),
an objection is made, the Purchaser's Accountants and the Sellers' Accountants
shall jointly review the determination of the Final Purchase Price Adjustment
Percentage and the Final Issuance Adjustment (the "Final Determination") and
attempt to reach a mutually satisfactory determination of the Final Purchase
Price Adjustment Percentage and the Final Issuance Adjustment. If the
Purchaser's Accountants and the Sellers' Accountants are unable to reach such a
mutually satisfactory determination within 30 days after the Final Determination
has been submitted to them for their joint review, they shall promptly submit
the Final Determination to a firm of independent accountants jointly selected by
them. The independent third firm shall submit its determination of the Final
Purchase Price Adjustment Percentage and the Final Issuance Adjustment to New
Valley, Berliner and the Enforcement Committee within 30 days of its receipt of
the Final Determination, and the determination of the Final Purchase Price
Adjustment Percentage and the Final Issuance Adjustment by such third firm shall
be final and conclusive upon the Parties. The Purchaser shall pay the fees and
expenses of the Purchaser's Accountants and New Valley and Berliner shall pay
the fees and expenses of the Sellers' Accountants. The fees and expenses of any
independent third firm shall be paid 50% by the Purchaser and 50% by New Valley
and Berliner.
(h) The Purchaser shall issue all shares of Purchaser Common
Stock under this Section 2.4 in the proportion of 80.1% to LTGI and 19.9% to
Berliner. Any additional shares of Purchaser Common Stock to be issued to the
Sellers shall constitute consideration to the Sellers for the LTI Stock
additional to the Purchase Price."
2. The Parties hereby agree that, to the fullest extent permitted by
law, no further claims, suits, demands or equitable adjustments shall be made by
any of the Parties against the Purchaser, the Principals or Xxxxxx Xxxxxxx, or
any of their affiliates with respect to (and all such persons are hereby
released from any such claims, suits, demands and/or adjustments):
(i) any miscalculation or under-valuation of or relating
to the items set forth in the memorandum from Xxxxxx Xxxxxxxx to Xxxxxx X. Xxxxx
and Xxxxxxx Xxxxxx dated August 3, 2001 ("Memorandum");
(ii) a breach of the representations and warranties contained
in Article III and IV of the Stock Purchase Agreement, and of the covenants
contained in Article V of the Stock Purchase Agreement, with regard to any of
the items set forth in the Memorandum or on the attached Schedule 2.4;
(iii) any claim to further indemnification as set forth in
Article VII of the Stock Purchase Agreement with regard to any of the items set
forth in the Memorandum or on the attached Schedule 2.4; and
4
(iv) any claim against the Principals or Xxxxxx Xxxxxxx with
regard to the items set forth in the Memorandum or on the attached Schedule 2.4,
including, but not limited to, any claim that gives rise to such individual's
employment being terminated for "Cause" (as such term is defined in the
respective Employment Agreements, as amended) or for any other reason.
The Principals and Xxxxxx Xxxxxxx are deemed to be third party
beneficiaries of this Section 2, which may not be amended without their written
consent.
3. The Purchaser represents and warrants to the Selling Parties
as follows:
3.1 Authority and Corporate Action. The Purchaser has all
necessary corporate power and authority to enter into this Amendment No. 2 and
such other instruments to be executed and delivered by the Purchaser in
connection with the transactions contemplated by this Amendment No. 2
("Purchaser Amendment Documents") and to consummate the transactions
contemplated thereby. All corporate action necessary to be taken by the
Purchaser to authorize the execution, delivery and performance of the Purchaser
Amendment Documents has been, duly and validly taken. Each Purchaser Amendment
Document constitutes, or will constitute upon execution and delivery thereof,
the valid, binding and enforceable obligation of the Purchaser, enforceable in
accordance with its terms, except (i) as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws of general application now or hereafter in effect
affecting the rights and remedies of creditors and by general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity) and (ii) as enforceability of any indemnification provision may be
limited by federal and state securities laws and public policy.
3.2 Capitalization. Any additional shares of Purchaser Common
Stock to be issued pursuant to the revised Section 2.4 set forth above will be,
upon issuance in accordance with the terms of this Amendment No. 2, duly
authorized, validly issued, fully paid and nonassessable.
3.3 Knowledge of Claims. To the Purchaser's knowledge, based
on inquiries to Xxxxxxx X. Xxxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxx Xxxxxxx, except with respect to the items set forth in the Memorandum or
on the attached Schedule 2.4, there are no other circumstances or events that
could lead to a further claim, suit, demand or equitable adjustment with respect
to (i) a breach of the representations and warranties contained in Article IV of
the Stock Purchase Agreement, (ii) the covenants contained in Article V of the
Stock Purchase Agreement and (iii) further indemnification as set forth in
Article VII of the Stock Purchase Agreement.
4. The New Valley Companies, on the one hand, and Berliner, on
the other hand, severally and not jointly represent and warrant to the Purchaser
as follows:
4.1 Authority and Corporate Action. Such Selling Party has
all necessary corporate power and authority to enter into this Amendment No. 2
and the other instruments and agreements to be executed and delivered by such
Selling Party in connection with the transactions contemplated by this Amendment
No. 2 (collectively, the "Seller Amendment Documents") and to consummate the
transactions contemplated thereby. All corporate action necessary to be taken by
such Selling Party to authorize the execution, delivery and performance of the
Seller Amendment Documents has or will at Closing have been duly and validly
taken. Each of the Seller Amendment Documents to which it is a party
5
constitutes, or upon the execution and delivery by such Selling Party will
constitute, the valid, binding and enforceable obligation of such Selling Party,
enforceable in accordance with its terms, except (i) as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws of general application now or hereafter in
effect affecting the rights and remedies of creditors and by general principles
of equity (regardless of whether enforcement is sought in a proceeding at law or
in equity) and (ii) as enforceability of any indemnification provision may be
limited by federal and state securities laws and public policy.
4.2 Knowledge of Claims. To the Selling Parties' knowledge,
except with respect to the items set forth in the Memorandum or on the attached
Schedule 2.4, there are no other circumstances or events that could lead to a
further claim, suit, demand or equitable adjustment with respect to (i) a breach
of the representations and warranties contained in Article IV of the Stock
Purchase Agreement, (ii) the covenants contained in Article V of the Stock
Purchase Agreement and (iii) further indemnification as set forth in Article VII
of the Stock Purchase Agreement.
5. Miscellaneous.
5.1 Headings. The headings contained in this Amendment
No. 2 are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment No. 2.
5.2 Severability, Etc. As amended hereby, the Stock Purchase
Agreement shall continue in full force and effect. All references in the Stock
Purchase Agreement to the term "Agreement" shall hereafter mean the Stock
Purchase Agreement, as amended hereby. If any term or other provision of this
Amendment No. 2 is invalid, illegal or incapable of being enforced by any rule
of law or public policy, all other conditions and provisions of this Amendment
No. 2 shall nevertheless remain in full force and effect so long as the economic
or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any Party.
5.3 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the State of New York without
giving effect to principles of conflicts of law.
5.4 Counterparts. This Amendment No. 2 may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto were upon the same instrument. Delivery of
an executed counterpart of a signature page of this Amendment No. 2 by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment No. 2.
6
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 2 to the
Stock Purchase Agreement to be executed as of the date first written above.
LADENBURG XXXXXXXX FINANCIAL SERVICES INC.
(f/k/a GBI CAPITAL MANAGEMENT CORP.)
/s/ Xxxxxx X. Xxxxx
By: ______________________________
Name: Xxxxxx X. Xxxxx
Title: CEO
NEW VALLEY CORPORATION
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
BERLINER EFFEKTENGESELLSCHAFT AG
/s/ Xxxxxx Xxxx
By: ______________________________
Name: Xxxxxx Xxxx
Title: CEO
NEW VALLEY CAPITAL CORPORATION
(f/k/a LADENBURG, XXXXXXXX GROUP INC.)
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
LADENBURG, XXXXXXXX & CO. INC.
/s/ Xxxxxx X. Xxxxx
By: ______________________________
Name: Xxxxxx X. Xxxxx
Title: CEO
7
