Document/ExhibitDescriptionPagesSize 1: 10-Q Quarterly Report HTML 2.05M
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 1.44M
6: EX-99.1 Miscellaneous Exhibit HTML 79K
7: EX-99.2 Miscellaneous Exhibit HTML 152K
3: EX-31.1 Certification -- §302 - SOA'02 HTML 29K
4: EX-31.2 Certification -- §302 - SOA'02 HTML 29K
5: EX-32.1 Certification -- §906 - SOA'02 HTML 28K
13: R1 Cover HTML 77K
14: R2 Condensed Consolidated Balance Sheets HTML 139K
15: R3 Condensed Consolidated Balance Sheets HTML 41K
(Parenthetical)
16: R4 Condensed Consolidated Statements of Operations HTML 97K
17: R5 Condensed Consolidated Statements of Operations HTML 27K
(Parenthetical)
18: R6 Condensed Consolidated Statements of Comprehensive HTML 84K
Income
19: R7 Condensed Consolidated Statements of Stockholders' HTML 96K
Deficiency
20: R8 Condensed Consolidated Statements of Stockholders' HTML 26K
Deficiency (Parenthetical)
21: R9 Condensed Consolidated Statements of Cash Flows HTML 128K
22: R10 Summary of Significant Accounting Policies HTML 94K
23: R11 Revenue Recognition HTML 38K
24: R12 Inventories HTML 41K
25: R13 Investment Securities HTML 113K
26: R14 New Valley LLC HTML 75K
27: R15 Notes Payable, Long-Term Debt and Other HTML 72K
Obligations
28: R16 Contingencies HTML 145K
29: R17 Income Taxes HTML 39K
30: R18 Investments and Fair Value Measurements HTML 139K
31: R19 Segment Information HTML 62K
32: R20 Summary of Significant Accounting Policies HTML 39K
(Policies)
33: R21 Summary of Significant Accounting Policies HTML 100K
(Tables)
34: R22 Revenue Recognition (Tables) HTML 34K
35: R23 Inventories (Tables) HTML 41K
36: R24 Investment Securities (Tables) HTML 113K
37: R25 New Valley LLC (Tables) HTML 67K
38: R26 Notes Payable, Long-Term Debt and Other HTML 66K
Obligations (Tables)
39: R27 Contingencies (Tables) HTML 89K
40: R28 Income Taxes (Tables) HTML 36K
41: R29 Investments and Fair Value Measurements (Tables) HTML 138K
42: R30 Segment Information (Tables) HTML 59K
43: R31 Summary of Significant Accounting Policies - Net HTML 51K
Income for Purposes of Determining Basic and
Diluted EPS (Details)
44: R32 Summary of Significant Accounting Policies - Basic HTML 33K
and Diluted Earnings Per Share (Details)
45: R33 Summary of Significant Accounting Policies - HTML 31K
Antidilutive Securities Excluded from Earnings Per
Share (Details)
46: R34 Summary of Significant Accounting Policies - HTML 34K
Schedule of Other, Net (Details)
47: R35 Summary of Significant Accounting Policies - Other HTML 34K
Assets (Details)
48: R36 Summary of Significant Accounting Policies - Other HTML 41K
Current Liabilities (Details)
49: R37 Summary of Significant Accounting Policies - HTML 34K
Reconciliation of Cash, Cash Equivalents, and
Restricted Cash (Details)
50: R38 Summary of Significant Accounting Policies - HTML 38K
Related Party Transactions (Details)
51: R39 Revenue Recognition - Disaggregation of Revenue HTML 36K
(Details)
52: R40 Inventories - Schedule of Inventories (Details) HTML 48K
53: R41 Inventories - Narrative (Details) HTML 35K
54: R42 Investment Securities - Schedule of Investment HTML 51K
Securities (Details)
55: R43 Investment Securities - Schedule of Net Gains HTML 32K
(Losses) Recognized on Investment Securities
(Details)
56: R44 Investment Securities - Components of Debt HTML 37K
Securities Available for Sale (Details)
57: R45 Investment Securities - Maturity Dates of HTML 51K
Marketable Debt Securities (Details)
58: R46 Investment Securities - Gross Realized Gains and HTML 33K
Losses on Debt Securities Available for Sale
(Details)
59: R47 Investment Securities - Schedule of Unrealized and HTML 31K
Realized Net (Losses) and Gains Recognized
(Details)
60: R48 Investment Securities - Narrative (Details) HTML 43K
61: R49 Investment Securities - Equity-Method Investments HTML 30K
(Details)
62: R50 Investment Securities - Equity in (Losses) HTML 31K
Earnings of Investments (Details)
63: R51 New Valley LLC - Investment in Real Estate HTML 70K
Ventures (Details)
64: R52 New Valley LLC - Narrative (Details) HTML 53K
65: R53 Notes Payable, Long-Term Debt and Other HTML 54K
Obligations - Components of Debt (Details)
66: R54 Notes Payable, Long-Term Debt and Other HTML 62K
Obligations - Senior Notes, Revolving Credit
Facility, and Other (Details)
67: R55 Notes Payable, Long-Term Debt and Other HTML 40K
Obligations - Schedule of Non-cash Interest
Expense (Details)
68: R56 Notes Payable, Long-Term Debt and Other HTML 43K
Obligations - Fair Value of Notes Payable and Long
Term Debt (Details)
69: R57 Contingencies - Overview and Bonds (Details) HTML 34K
70: R58 Contingencies - Individual Actions (Details) HTML 47K
71: R59 Contingencies - Cautionary Statement About Engle HTML 37K
Progeny Cases (Details)
72: R60 Contingencies - Engle Progeny Cases and HTML 51K
Settlements (Details)
73: R61 Contingencies - Judgments Paid in Engle Progeny HTML 40K
Cases, Maryland Cases and Liggett Only Cases
(Details)
74: R62 Contingencies - Class Actions and Health Care Cost HTML 37K
Recovery Actions (Details)
75: R63 Contingencies - MSA and Other State Settlement HTML 62K
Agreements (Details)
76: R64 Contingencies - Certain MSA Disputes (Details) HTML 44K
77: R65 Contingencies - Other State Settlements (Details) HTML 54K
78: R66 Contingencies - Schedule of Litigation Activity HTML 69K
(Details)
79: R67 Contingencies - Other Matters (Details) HTML 27K
80: R68 Income Taxes (Details) HTML 35K
81: R69 Investments and Fair Value Measurements - Fair HTML 114K
Value Measurements (Details)
82: R70 Investments and Fair Value Measurements - HTML 39K
Nonrecurring Measurements (Details)
83: R71 Investments and Fair Value Measurements - HTML 27K
Narrative (Details)
84: R72 Segment Information (Details) HTML 60K
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(Address, including zip code and telephone number, including area code,
of the principal executive offices)
Securities Registered Pursuant to 12(b) of the Act:
Title of each class:
Trading
Name of each exchange
Symbol(s)
on
which registered:
iCommon stock, par value $0.10 per share
iVGR
iNew
York Stock Exchange
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 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.
xiYesoNo
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
xiYesoNo
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,”“accelerated filer,”“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
☒
iLarge
accelerated filer
☐
Accelerated filer
☐
Non-accelerated filer
i☐
Smaller reporting company
i☐
Emerging
Growth Company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
☐Yes ixNo
At
May 5, 2023, Vector Group Ltd. had i155,976,547 shares of common stock outstanding.
Distributions
from investments in real estate ventures
i—
i3,310
Increase
in cash surrender value of life insurance policies
(i272)
(i765)
Increase
in restricted assets
(i3)
i—
Capital
expenditures
(i5,983)
(i1,222)
Paydowns
of investment securities
i33
i63
Net
cash provided by investing activities
i380
i2,705
Cash
flows from financing activities:
Repurchase and repayments of debt
(i6,700)
(i11)
Borrowings
under revolving credit facility
i87,294
i67,298
Repayments
on revolving credit facility
(i109,329)
(i67,298)
Dividends
on common stock
(i31,680)
(i31,658)
Withholding
of shares as payment of payroll tax liabilities in connection with restricted stock vesting and exercise of stock options
(i3,188)
i—
Other
i—
(i938)
Net
cash used in financing activities
(i63,603)
(i32,607)
Net
increase in cash, cash equivalents and restricted cash
i57,559
i44,894
Cash,
cash equivalents and restricted cash, beginning of period
i250,374
i194,849
Cash,
cash equivalents and restricted cash, end of period
$
i307,933
$
i239,743
The
accompanying notes are an integral part of the condensed consolidated financial statements.
7
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
1. iSUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
(a)iBasis of Presentation:
The condensed consolidated financial statements of Vector Group Ltd. (the “Company” or “Vector”) include the accounts of Liggett Group LLC (“Liggett”), Vector Tobacco LLC (“Vector Tobacco”), Liggett Vector Brands LLC (“Liggett Vector Brands”), New Valley LLC (“New Valley”) and other less significant subsidiaries.
All significant intercompany balances and transactions have been eliminated.
Liggett and Vector Tobacco are engaged in the manufacture and sale of cigarettes in the United States. Liggett Vector Brands coordinates Liggett and Vector Tobacco’s sales and marketing efforts. Certain references to “Liggett” refer to the Company’s tobacco operations, including the business of Liggett and Vector Tobacco, unless otherwise specified. New Valley is engaged in the real estate business.
iThe
unaudited, interim condensed consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) for interim financial information and, in management’s opinion, contain all adjustments, consisting only of normal recurring items, necessary for a fair statement of the results for the periods presented. Accordingly, they do not include all of the information and footnotes required by U.S. GAAP for complete financial statements. These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 filed with the Securities and Exchange Commission (“SEC”). 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)iDistributions and Dividends on Common Stock:
The Company records distributions on its common stock as dividends in its condensed consolidated statements of stockholders’ deficiency to the extent of retained earnings
and net income for the respective fiscal year. Any amounts exceeding retained earnings and net income are recorded as a reduction to additional paid-in capital to the extent paid-in-capital is available and then to accumulated deficit.
(c)Earnings Per Share (“EPS”):
iNet income for purposes of determining basic
and diluted EPS applicable to common shares was as follows:
Incremental
shares related to stock options and non-vested restricted stock
i147,499
i158,353
Weighted-average
shares for diluted EPS
i153,160,436
i152,745,253
/
8
VECTOR
GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
i
The following non-vested restricted stock were outstanding during the three months ended March
31, 2023 and 2022 and were not included in the computation of diluted EPS because the impact of the per share expense associated with the stock options and the restricted stock was greater than the average market price of the common shares during the respective periods.
Restricted
cash and cash equivalents included in other assets
i26,065
i25,794
Total
cash, cash equivalents, and restricted cash shown in the condensed consolidated statements of cash flows
$
i307,933
$
i250,374
//
(h)Related
Party Transactions:
Agreements with Douglas Elliman.The Company received $i1,050 and $i1,050
under the Transition Services Agreement and $i562 and $i491 under the Aircraft Lease Agreement during the three months ended March 31, 2023 and 2022,
respectively.
Real estate venture investments.Douglas Elliman has been engaged by the developers as the sole broker or the co-broker for several of the real estate development projects that New Valley owns an interest in through its real estate venture investments. Douglas Elliman had gross commissions from these projects of approximately $i842 and $i900
for the three months ended March 31, 2023 and 2022, respectively.
(i)iNew Accounting Pronouncements:
Accounting Standards Updates (“ASUs”) adopted in 2023:
In October 2021, the Financial Accounting
Standards Board (“FASB”) issued ASU 2021-08, Business Combinations (Topic 805), Accounting for Contract Assets and Contract Liabilities from Contracts with Customers. The ASU requires that an acquirer recognize and measure contract assets and contract liabilities in a business combination in accordance with Topic 606. The ASU is effective for fiscal years beginning after December 15, 2022, including interim periods within
those fiscal years. Adoption of this update did not have a material impact on the Company’s condensed consolidated financial statements.
SEC Proposed Rules
On March 21, 2022, the SEC proposed rule changes that would require registrants to provide certain climate-related information in their registration statements and annual reports. The proposed rules would require information about a registrant's climate-related risks that are reasonably likely to have a material impact on its business, results of operations, or financial condition. The required information about climate-related risks would also include disclosure of a registrant's greenhouse gas emissions, which have become a commonly used metric to assess a registrant's exposure to such risks.
In addition, under the proposed rules, certain climate-related financial metrics would be required in a registrant's audited financial statements. The Company is currently evaluating the impact of the proposed rule changes.
10
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
Tobacco. Tobacco segment revenues are not disaggregated because all revenues are generated from the discount segment of the U.S. cigarette industry.
i
Real Estate. Real
Estate segment revenues are disaggregated in the table below. The Real Estate segment includes the Company’s investment in New Valley, investments in real estate ventures and, prior to April 2022, when Escena was sold, included investments in real estate. After the sale of Escena, the Company has no revenues from its real estate segment.
The amount of capitalized Master Settlement Agreement (“MSA”) cost in “Finished goods” inventory was $i23,280 and $i23,084
at March 31, 2023 and December 31, 2022, respectively. Federal excise tax capitalized in inventory was $i25,222 and $i26,423
at March 31, 2023 and December 31, 2022, respectively.
At March 31, 2023, Liggett had tobacco purchase commitments of approximately $i7,305. Liggett has a single-source supply agreement for reduced ignition propensity cigarette paper through December 2025.
11
VECTOR
GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(1) These
assets are measured at net asset value (“NAV”) as a practical expedient under ASC 820.
(2) These assets are without readily determinable fair values that do not qualify for the NAV practical expedient and are included in Other assets on the condensed consolidated balance sheets.
/
i
Net
losses recognized on investment securities were as follows:
Net
gains (losses) recognized on equity securities
$
i218
$
(i1,874)
Net
losses recognized on debt securities available for sale
(i180)
i—
Impairment
expense
(i44)
(i1,165)
Net
losses recognized on investment securities
$
(i6)
$
(i3,039)
/
(a) Debt Securities Available for Sale:
The components of debt securities available for sale at March 31, 2023 were as follows:
Cost
Gross Unrealized Gains
Gross Unrealized Losses
Fair Value
Marketable
debt securities
$
i71,580
$
i44
$
i—
$
i71,624
12
VECTOR
GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
i
The table below summarizes the maturity dates of debt securities available for sale at March 31, 2023.
Investment
Type:
Fair Value
Under 1 Year
1 Year up to 5 Years
More than 5 Years
U.S. Government securities
$
i788
$
i788
$
i—
$
i—
Corporate
securities
i30,593
i18,003
i12,590
i—
U.S.
mortgage-backed securities
i26,235
i13,260
i12,975
i—
U.S.
treasury bills
i14,008
i14,008
i—
i—
Total
debt securities available for sale by maturity dates
$
i71,624
$
i46,059
$
i25,565
$
i—
/
The
components of debt securities available for sale at December 31, 2022 were as follows:
Cost
Gross Unrealized Gains
Gross Unrealized Losses
Fair Value
Marketable
debt securities
$
i81,629
$
i14
$
i—
$
i81,643
There
were no available-for-sale debt securities with continuous unrealized losses for less than 12 months and 12 months or greater at March 31, 2023 and December 31, 2022, respectively.
Gross realized gains and losses on debt securities available for sale were as follows:
Net
losses recognized on debt securities available for sale
$
(i180)
$
i—
Impairment
expense
$
(i44)
$
(i1,165)
Although
management generally does not have the intent to sell any specific securities at the end of the period, in the ordinary course of managing the Company’s investment securities portfolio, management may sell securities prior to their maturities for a variety of reasons, including diversification, credit quality, yield and liquidity requirements.
(b) Equity Securities at Fair Value:
The following is a summary of unrealized and realized net gains and losses recognized in net income on equity securities at fair value during the three months ended March 31, 2023 and 2022, respectively:
Net gains (losses) recognized on equity securities
$
i218
$
(i1,874)
Less:
Net gains recognized on equity securities sold
i116
i293
Net
unrealized gains (losses) recognized on equity securities still held at the reporting date
$
i102
$
(i2,167)
The
Company’s investments in mutual funds that invest in debt securities are classified as Level 1 under the fair value hierarchy disclosed in Note 9. Their fair values are based on quoted prices for identical assets in active markets or inputs that
13
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
are based upon quoted prices for similar instruments in active markets. The Company
has unfunded commitments of $i514 related to long-term investment securities at fair value as of March 31, 2023.
The Company received ino
cash distributions for the three months ended March 31, 2023 and $i202 of cash distributions for the three months ended March 31, 2022. The Company classified all cash distributions as investing cash inflows.
(c) Equity-Method Investments:
i
Equity-method
investments consisted of the following:
At
March 31, 2023, the Company’s ownership percentages in the mutual fund and hedge funds accounted for under the equity method ranged from i6.45% to i38.51%.
The Company’s ownership percentage in these investments meets the threshold for equity-method accounting.
(d)
Equity Securities Without Readily Determinable Fair Values That Do Not Qualify for the NAV Practical Expedient
Equity securities without readily determinable fair values that do not qualify for the NAV practical expedient consisted of investments in various limited liability companies at March 31, 2023 and December 31, 2022, respectively. The total carrying value of these investments was $i2,755
as of March 31, 2023 and $i2,755 as of December 31, 2022, and was included in “Other assets” on the condensed consolidated balance sheets. iiNo/
impairment or other adjustments related to observable price changes in orderly transactions for identical or similar investments were identified for the three months ended March 31, 2023 and 2022, respectively.
5. iNEW VALLEY LLC
Investments
in real estate ventures:
i
The components of “Investments in real estate ventures” were as follows:
(1) The
Range of Ownership reflects New Valley’s estimated current ownership percentage. New Valley’s actual ownership percentage as well as the percentage of earnings and cash distributions may ultimately differ as a result of a number of factors including potential dilution, financing or admission of additional partners.
/
14
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
Contributions:
The components of New Valley’s contributions to its investments in real estate ventures were as follows:
For
ventures where New Valley previously held an investment, New Valley contributed its proportionate share of additional capital along with contributions by the other investment partners during the three months ended March 31, 2023 and 2022. New Valley’s direct investment percentage for these ventures did not significantly change.
Distributions:
The components of distributions received by New Valley from its investments in real estate ventures were as follows:
Of
the distributions received by New Valley from its investment in real estate ventures, $i70 and $i733 were from distributions of earnings for the three months
ended March 31, 2023 and 2022, respectively, and $i3,310 were a return of capital for the three months ended March 31, 2022. Distributions from earnings are included in cash from operations in the condensed consolidated statements of cash flows, while distributions from return of capital are included in cash flows
from investing activities in the condensed consolidated statements of cash flows.
Equity in Earnings (losses) from Real Estate Ventures:
New Valley recognized equity in losses from real estate ventures as follows:
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
The Company recorded impairment expense of $i1,202 for the three months ended March 31,
2023. The expense related to one hotel venture. As a result of the Company recording impairment charges on certain of its investments in real estate ventures, the impaired real estate venture was recorded at fair value as of the period when the impairment charge was recorded. The impaired real estate venture was measured at fair value on a nonrecurring basis as a result of recording an other-than-temporary impairment charge.
Investment in Real Estate Ventures Entered Into During the Three Months Ended March 31, 2023:
In January 2023, New Valley invested $i700
for an approximate i27% interest in 353 6th LLC. The joint venture plans to develop a condominium complex. The venture is a variable interest entity (“VIE”); however, New Valley is not the primary beneficiary. New Valley accounts for this investment under the equity method of accounting. New Valley's maximum exposure to loss as a result of its investment in 353 6th LLC was $i707
at March 31, 2023.
VIE Consideration:
The Company has determined that the entities in the real restate ventures were VIEs but New Valley was not the primary beneficiary. Therefore, New Valley’s investment in such real estate ventures has been accounted for under the equity method of accounting.
Maximum Exposure to Loss:
New Valley’s maximum exposure to loss from its investments in real estate ventures consisted of the net carrying value of the venture adjusted for any future capital commitments and/or guarantee
arrangements. The maximum exposure to loss was as follows:
New Valley capitalized $i1,056
and $i3,716 of interest costs into the carrying value of its ventures whose projects were currently under development for the three months ended March 31, 2023 and 2022, respectively.
Investments in Real Estate, net:
Escena. New Valley recorded operating income of $i1,239
for the three months ended March 31, 2022 from Escena. Escena is a master planned community, golf course, and club house in Palm Springs, California. In April 2022, New Valley sold Escena.
16
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
6.iNOTES
PAYABLE, LONG-TERM DEBT AND OTHER OBLIGATIONS
i
Notes payable, long-term debt and other obligations consisted of:
i10.5%
Senior Notes due 2026, net of unamortized discount of $i2,092 and $i2,209
i533,383
i539,926
Liggett:
Revolving
credit agreement
i—
i22,035
Equipment
loans
i30
i37
Notes
payable, long-term debt and other obligations
i1,408,413
i1,436,998
Less:
Debt
issuance costs
(i23,549)
(i24,672)
Total
notes payable, long-term debt and other obligations
i1,384,864
i1,412,326
Less:
Current
maturities
(i30)
(i22,065)
Amount
due after one year
$
i1,384,834
$
i1,390,261
/
i5.75%
Senior Secured Notes due 2029 — Vector:
As of March 31, 2023, the Company was in compliance with all debt covenants related to its i5.75% Senior Secured Notes due 2029.
i10.5%
Senior Notes due 2026 — Vector:
In March 2023, the Company repurchased in the market $i6,660 in aggregate principal amount of its i10.5%
Senior Notes outstanding and recorded a loss of $i141 associated with the repurchase. In April 2023, the Company repurchased in the market $i1,692
in aggregate principal amount of its i10.5% Senior Notes outstanding and recorded a loss of $i40 associated with the repurchase. The i10.5%
Senior Notes that were repurchased have been retired.
As of March 31, 2023, the Company was in compliance with all debt covenants related to its i10.5% Senior Notes due 2026.
Revolving Credit Agreement — Liggett:
On May 8, 2023, Liggett,
100 Maple LLC (“Maple”) and Vector Tobacco entered into Amendment No. 5 to the Third Amended and Restated Credit Agreement (the “Credit Agreement”) with Wells Fargo Bank, National Association, as agent and lender. The existing credit agreement was amended to replace LIBOR with the Secured Overnight Financing Rate (“SOFR”) as the applicable reference rate and to reduce the unused line fee. Following the amendment, loans under the Credit Agreement will bear interest at a rate equal to, at the borrower’s option, (a) the base rate (which is the highest of (i) i0%,
(ii) the federal funds rate plus i0.50%, (iii) the prime rate of Wells Fargo or (iv) Term SOFR for a one month interest period), (b) Term SOFR for the applicable interest period plus i2.25%
or (c) Daily Simple SOFR plus i2.25%. The amendment also reduced the unused line fee applicable to the average undrawn commitments to i0.25%,
regardless of the amount borrowed under the facility.
As of March 31, 2023, there was ino outstanding balance due under the Credit Agreement. Availability, as determined under the Credit Agreement, was approximately $i84,500
based on eligible collateral at March 31, 2023. As of March 31, 2023, Liggett, Maple, and Vector Tobacco were in compliance with all debt covenants under the Credit Agreement.
17
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
Notes
payable and long-term debt are recorded on the condensed consolidated balance sheets at amortized cost. The fair value determinations disclosed above would be classified as Level 2 under the fair value hierarchy disclosed in Note 9 if such liabilities were recorded on the condensed consolidated balance sheets at fair value. The estimated fair value of the Company’s notes payable and long-term debt has been determined by the Company using available market information and appropriate valuation methodologies including the evaluation of the Company’s credit risk. The Company used a derived price based upon quoted market prices and trade activity
as of March 31, 2023 to determine the fair value of its publicly-traded notes and debentures. The carrying value of the revolving Credit Agreement is equal to fair value. The fair value of the equipment loans and other obligations was determined by calculating the present value of the required future cash flows. However, considerable judgment is required to develop the estimates of fair value and, accordingly, the estimate presented herein is not necessarily indicative of the amount that could be realized in a current market exchange.
7. iCONTINGENCIES
Tobacco-Related
Litigation:
Overview. Since 1954, Liggett and other United States cigarette manufacturers have been named as defendants in numerous direct, third-party and purported class 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. The cases have generally fallen into the following categories: (i) smoking and health cases alleging personal injury brought on behalf of individual plaintiffs (“Individual Actions”); (ii) lawsuits by individuals requesting the benefit of the Engle ruling (“Engle progeny cases”); (iii) smoking and health cases primarily alleging personal injury or seeking court-supervised programs for ongoing medical monitoring, as well
as cases alleging that use of the terms “lights” and/or “ultra lights” constitutes a deceptive and unfair trade practice, common law fraud or violation of federal law, purporting to be brought on behalf of a class of individual plaintiffs (“Class Actions”); and (iv) health care cost recovery actions brought by various foreign and domestic governmental plaintiffs and non-governmental plaintiffs seeking reimbursement for health care expenditures allegedly caused by cigarette smoking and/or disgorgement of profits (“Health Care Cost Recovery Actions”). The future financial impact of the risks and expenses of litigation are not quantifiable. For the three months ended March 31, 2023 and 2022, Liggett incurred tobacco product liability legal expenses and costs totaling $i2,173
and $i1,645, respectively. Legal defense costs are expensed as incurred.
18
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
Litigation
is subject to uncertainty and it is possible that there could be adverse developments in pending cases. With the commencement of new cases, the defense costs and the risks relating to the unpredictability of litigation increase. Management reviews on a quarterly basis with counsel all pending litigation and evaluates the probability of a loss being incurred and whether an estimate can be made of the possible loss or range of loss that could result from an unfavorable outcome. An unfavorable outcome or settlement of pending tobacco-related litigation could encourage the commencement of additional litigation. Damages awarded in tobacco-related litigation can be significant.
Bonds. Although Liggett has been able to obtain required bonds or relief from bonding requirements in order to prevent plaintiffs from seeking to collect judgments while adverse verdicts are on appeal, there remains a risk that such
relief may not be obtainable in all cases. This risk has been reduced given that a majority of states now limit the dollar amount of bonds or require no bond at all. As of March 31, 2023, other than the bond regarding the Mississippi litigation (described below), there are no other litigation bonds posted.
In June 2009, Florida amended its existing bond cap statute by adding a $i200,000 bond cap that applies to all Florida tobacco litigation in the aggregate and establishes
individual bond caps in amounts that vary depending on the number of judgments in effect at a given time. The maximum amount of any such bond for an appeal in the Florida state courts will be no greater than $i5,000. In several cases, plaintiffs challenged the constitutionality of the bond cap statute, but to date the courts have upheld the constitutionality of the statute. It is possible that the Company’s consolidated financial position, results of operations, and cash flows could be materially adversely affected
by an unfavorable outcome of such challenges.
Accounting Policy. The Company and its subsidiaries record provisions in their consolidated financial statements for pending litigation when they determine that an unfavorable outcome is probable and the amount of loss can be reasonably estimated. At the present time, while it is reasonably possible that an unfavorable outcome in a case may occur, except as discussed in this Note 7: (i) management has concluded that it is not probable that a loss has been incurred in any of the pending tobacco-related cases; or (ii) management is unable to reasonably estimate the possible loss or range of loss that could result from an unfavorable outcome of any of the pending tobacco-related cases and,
therefore, management has not provided any amounts in the condensed consolidated financial statements for unfavorable outcomes, if any.
Although Liggett has generally been successful in managing the litigation filed against it, litigation is subject to uncertainty and significant challenges remain. There can be no assurances that Liggett’s past litigation experience will be representative of future results. Judgments have been entered against Liggett in the past, in Individual Actions and Engle progeny cases, and several of those judgments were affirmed on appeal and satisfied by Liggett. It is possible that the consolidated financial position, results of operations and cash flows of the Company could be materially adversely affected by an unfavorable outcome or settlement of any of the remaining
smoking-related litigation. Liggett believes, and has been so advised by counsel, that it has valid defenses to the litigation pending against it. All such cases are and will continue to be vigorously defended. Liggett has entered into settlement discussions in individual cases or groups of cases where Liggett has determined it was in its best interest to do so, and it may continue to do so in the future. As cases proceed through the appellate process, the Company will consider accruals on a case-by-case basis if an unfavorable outcome becomes probable and the amount can be reasonably estimated.
Individual Actions
As of March 31, 2023, there were i56Individual Actions pending against Liggett, where one or more individual plaintiffs allege injury resulting from cigarette smoking, addiction to cigarette smoking or exposure to secondary smoke and seek compensatory and, in some cases, punitive damages. These cases do not include the remaining Engle progeny cases. iThe following table lists the number of Individual Actions by state:
19
VECTOR
GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
State
Number of Cases
Massachusetts
i16
Florida
i14
Illinois
i10
Hawaii
i5
Nevada
i4
New
Mexico
i3
Louisiana
i2
South
Carolina
i1
California
i1
The
plaintiffs’ allegations of liability in 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, concealment, 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, violations of deceptive trade practice laws, the federal Racketeer Influenced and Corrupt Organizations 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. Although alleged damages often are
not determinable from a complaint, and the law governing the pleading and calculation of damages varies from state to state and jurisdiction to jurisdiction, compensatory and punitive damages have been specifically pleaded in a number of cases, sometimes in amounts ranging into the hundreds of millions and even billions of dollars.
Defenses raised in Individual Actions include lack of proximate cause, assumption of the risk, comparative fault and/or contributory negligence, lack of design defect, statute of limitations, statute of repose, equitable defenses such as “unclean hands” and lack of benefit, failure to state a claim and federal preemption.
Engle Progeny Cases
In May 1994, the Engle case was filed as a class action against Liggett and others in Miami-Dade County, Florida.
The class consisted of all Florida residents who, by November 21, 1996, “have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarette smoking.” A trial was held and the jury returned a verdict adverse to the defendants (approximately $i145,000,000 in punitive damages, including $i790,000
against Liggett). Following an appeal to the Third District Court of Appeal, the Florida Supreme Court in July 2006 decertified the class on a prospective basis and affirmed the appellate court’s reversal of the punitive damages award. Former class members had until January 2008 to file individual lawsuits. As a result, Liggett and the Company, and other cigarette manufacturers, were sued in thousands of Engle progeny cases in both federal and state courts in Florida.
Cautionary Statement About Engle Progeny Cases. Since 2009, judgments have been entered against Liggett and other cigarette manufacturers in Engle progeny cases. A number of the judgments were affirmed on appeal and satisfied by the defendants. Many were overturned
on appeal. As of March 31, 2023, i25 Engle progeny cases, where Liggett was a defendant at trial, resulted in verdicts.
There have been i16
verdicts returned in favor of the plaintiffs and inine in favor of Liggett. In ifive
of the cases, punitive damages were awarded against Liggett. Several of the adverse verdicts were overturned on appeal and new trials were ordered. In certain cases, the judgments were entered jointly and severally with other defendants and Liggett faces the risk that one or more co-defendants decline or otherwise fail to participate in the bonding required for an appeal or to pay their proportionate or jury-allocated share of a judgment. As a result, under certain circumstances, Liggett may have to pay more than its proportionate share of any bonding or judgment related amounts. Except as discussed in this Note 7, management is unable to estimate the possible loss or range of loss from the remaining Engle progeny cases as there are currently multiple defendants in each case, except as discussed herein and, in most of the remaining cases, discovery has not occurred or is limited. As a result, the
Company lacks information about whether plaintiffs are in fact Engle class members, the relevant smoking history, the nature of the alleged injury and the availability of various defenses, among other things. Further, plaintiffs typically do not specify the amount of their demand for damages.
20
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
Engle Progeny Settlements.
In
October 2013, the Company and Liggett entered into a settlement with approximately i4,900Engle progeny plaintiffs and their counsel. Pursuant to the terms of the settlement, Liggett agreed to pay a total of approximately $i110,000,
with $i61,600 paid in an initial lump sum and the balance to be paid in installments over i14 years starting in February 2015. The
Company’s future payments will be approximately $i4,000 per annum through 2028, including an annual cost of living increase that began in 2021. In exchange, the claims of these plaintiffs were dismissed with prejudice against the Company and Liggett.
Liggett subsequently entered into itwo
separate settlement agreements with a total of i152 Engle progeny plaintiffs where Liggett paid a total of $i23,150.
On an individual basis, Liggett settled an additional i210Engle progeny cases for approximately $i8,240 in the
aggregate.
As of March 31, 2023, i17Engle progeny cases remain pending in state court. Therefore, the Company and Liggett may still be subject to periodic adverse judgments which could have a material adverse effect on the Company’s consolidated financial position, results of operations
and cash flows.
Judgments Paid in Engle Progeny Cases.
As of March 31, 2023, Liggett paid in the aggregate $i40,111, including interest and attorneys’ fees, to satisfy the judgments in the following Engle progeny cases: Lukacs, Campbell, Douglas,
Clay,Tullo, Ward, Rizzuto, Lambert,Buchanan and Santoro.
Liggett Only Cases
There are currently ithree cases where Liggett is the sole defendant: Cowart and Watson
are Individual Actions and Forbing is an Engle progeny case. It is possible that cases where Liggett is the only defendant could increase as a result of the remaining Engle progeny cases and newly filed Individual Actions.
Upcoming Trials
As of March 31, 2023, there was ioneEngle
progeny case (Stein) and inine Individual Actions (Bennett, Geist, Grace, Lopez, H., Martinez, Manious, McMakin, Mier and Silva) scheduled for trial through March 31, 2024, where Liggett is a named defendant. Trial dates are subject to change and additional cases could be set for trial during this time.
Maryland
Cases
Liggett was a defendant in i16 multi-defendant personal injury cases in Maryland alleging claims arising from asbestos and tobacco exposure (“synergy cases”). In June 2017, after the Court of Appeals (Maryland’s highest court) ruled that joinder of tobacco and asbestos cases may be possible in certain circumstances and then remanded the case, the trial court dismissed all synergy cases against the tobacco company defendants, including Liggett, without prejudice. Plaintiffs may seek appellate review or file new cases against the tobacco
companies.
In December 2022, the Mayor and City Council of Baltimore sued Liggett and others, claiming, among other things, that defendants’ failure to use biodegradable filters on their cigarette products resulted in littering by smokers of the city’s streets, sidewalks, beaches, parks, lawns and waterways, which in turn resulted in contamination of the soil and water, increased costs of clean-up and disposal of this litter, as well as the reduction of property values and tourism to the city. Plaintiffs seek compensatory damages, punitive damages, penalties, fines, disgorgement of profits and equitable relief.
Class Actions
As of March 31, 2023, itwo
actions were pending for which either a class had been certified or plaintiffs were seeking class certification where Liggett is a named defendant. Other cigarette manufacturers are also named in these itwo cases.
In November 1997, in Young v. American Tobacco Co., a purported class action was brought on behalf of plaintiff and all similarly situated residents in Louisiana who, though not themselves cigarette smokers, allege they were exposed to and suffered injury from secondhand smoke from cigarettes. The plaintiffs
seek an unspecified amount of compensatory and punitive damages. The case has been stayed since March 2016 pending completion of the smoking cessation program ordered by the court in Scott v. The American Tobacco Co.
In February 1998, in Parsons v. AC & S Inc., a purported class action was brought on behalf of plaintiff and all West Virginia residents who allegedly have claims arising from their exposure to cigarette smoke and asbestos fibers and seeks compensatory and punitive damages. The case has been stayed since December 2000 as a result of bankruptcy petitions filed by ithree
co-defendants.
21
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
Plaintiffs’ allegations of liability in class action cases are based on various theories of recovery, including negligence, gross negligence, strict liability, fraud, misrepresentation, design defect, failure to warn, nuisance, breach of express and implied warranties, breach of special duty, conspiracy, concert of action, violation of deceptive trade practice laws and consumer protection statutes
and claims under the federal and state anti-racketeering statutes. Plaintiffs in the class actions seek various forms of relief, including compensatory and punitive damages, treble/multiple damages and other statutory damages and penalties, creation of medical monitoring and smoking cessation funds, disgorgement of profits, and injunctive and equitable relief.
Defenses raised in these cases include, among others, lack of proximate cause, individual issues predominate, assumption of the risk, comparative fault and/or contributory negligence, statute of limitations and federal preemption.
Health Care Cost Recovery Actions
As of March 31, 2023, ione
Health Care Cost Recovery Action was pending against Liggett where the plaintiff seeks to recover damages from Liggett and other cigarette manufacturers based on various theories of recovery as a result of alleged sales of tobacco products to minors. The case is dormant.
The claims asserted in health care cost recovery actions vary, but can 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. Although no specific damage amounts are typically pleaded, it is possible that requested damages might be in the billions of dollars. In these cases, plaintiffs have asserted equitable claims that the tobacco industry was
“unjustly enriched” by their payment of health care costs allegedly attributable to smoking and seek reimbursement of those costs. Relief sought by some, but not all, plaintiffs include punitive damages, multiple damages and other statutory damages and penalties, injunctions prohibiting alleged marketing and sales to minors, disclosure of research, disgorgement of profits, funding of anti-smoking programs, additional disclosure of nicotine yields, and payment of attorney and expert witness fees.
Department of Justice Lawsuit
In September 1999, the United States government commenced litigation against Liggett and other cigarette manufacturers in the United States District Court for the District of Columbia. The action sought to recover, among other things, an unspecified amount of health care costs paid and to be paid by the federal government for
smoking-related illnesses allegedly caused by the fraudulent and tortious conduct of defendants. In August 2006, the trial court entered a Final Judgment against each of the cigarette manufacturing defendants, except Liggett. The judgment was affirmed on appeal. As a result, the cigarette manufacturing defendants, other than Liggett, are now subject to the trial court’s Final Judgment which ordered, among other things, the issuance of “corrective statements” in various media regarding the adverse health effects of smoking, the addictiveness of smoking and nicotine, the lack of any significant health benefit from smoking “low tar” or “lights” cigarettes, defendants’ manipulation of cigarette design to ensure optimum nicotine delivery and the adverse health effects of exposure to environmental tobacco smoke.
MSA and Other State Settlement Agreements
In March 1996,
March 1997 and March 1998, Liggett entered into settlements of smoking-related litigation with i45 states and territories. The settlements released Liggett from all smoking-related claims made by those states and territories, including claims for health care cost reimbursement and claims concerning sales of cigarettes to minors.
In November 1998, Philip Morris, R.J. Reynolds and two other companies (the “Original Participating Manufacturers” or “OPMs”) and Liggett and Vector Tobacco (together with any
other tobacco product manufacturer that becomes a signatory, the “Subsequent Participating Manufacturers” or “SPMs”) (the OPMs and SPMs are hereinafter referred to jointly as “PMs”) entered into the Master Settlement Agreement (the “MSA”) with i46 states, the District of Columbia, Puerto Rico, Guam, the United States Virgin Islands, American Samoa and the Northern Mariana Islands (collectively, the “Settling States”) to settle the asserted and unasserted health care cost recovery and certain other claims of the Settling States.
The MSA received final judicial approval in each Settling State.
22
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
As a result of the MSA, the Settling States released Liggett and Vector Tobacco from:
•all claims of the Settling States and their respective political subdivisions and other recipients of state health care funds, relating to: (i) past conduct arising out of the use, sale, distribution,
manufacture, development, advertising and marketing of tobacco products; (ii) the health effects of, the exposure to, or research, statements or warnings about, tobacco products; and
•all monetary claims of the Settling States and their respective subdivisions and other recipients of state health care funds relating to future conduct arising out of the use of, or exposure to, tobacco products that have been manufactured in the ordinary course of business.
The MSA restricts tobacco product advertising and marketing within the Settling States and otherwise restricts the activities of PMs. 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 PM to ione
tobacco brand name sponsorship during any i12-month period; bans all outdoor advertising, with certain limited exceptions; prohibits payments for tobacco product placement in various media; bans gift offers based on the purchase of tobacco products without sufficient proof that the intended recipient is an adult; prohibits PMs from licensing third parties to advertise tobacco brand names in any manner prohibited under the MSA; and prohibits PMs 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.
The
MSA also requires PMs to affirm corporate principles to comply with the MSA and to reduce underage use of tobacco products and imposes restrictions on lobbying activities conducted on behalf of PMs. In addition, the MSA provides for the appointment of an independent auditor to calculate and determine the amounts of payments owed pursuant to the MSA.
Under the payment provisions of the MSA, PMs are required to make annual payments of $i9,000,000 (subject to applicable adjustments, offsets and reductions
including a “Non-Participating Manufacturers Adjustment” or “NPM Adjustment”). These annual payments are allocated based on unit volume of domestic cigarette shipments. The payment obligations under the MSA are the several, and not joint, obligations of each PM and are not the responsibility of any parent or affiliate of a PM.
Liggett has ino payment obligations under the MSA except to the extent its market share exceeds a market share exemption of approximately i1.65%
of total cigarettes sold in the United States. Vector Tobacco has ino payment obligations under the MSA except to the extent its market share exceeds a market share exemption of approximately i0.28%
of total cigarettes sold in the United States. Liggett and Vector Tobacco’s domestic shipments accounted for approximately i5.7% of the total cigarettes sold in the United States in the first three months of 2023. If Liggett’s or Vector Tobacco’s market share exceeds their respective market share exemption in a given year, then on April 15 of the following year, Liggett and/or Vector Tobacco, as the case may be, must pay on each excess unit an amount equal (on a per-unit basis) to that due from the OPMs for that year. On December 29, 2022, Liggett
and Vector Tobacco pre-paid $i268,250 of their approximate $i285,000 2022 MSA obligation. The remaining balance of $ii16,780/
was paid in April 2023.
Certain MSA Disputes
NPM Adjustment. Liggett and Vector Tobacco contend that they are entitled to an NPM Adjustment for 2003-2022. The NPM Adjustment is a potential adjustment to annual MSA payments, available when PMs suffer a market share loss to NPMs for a particular year and an economic consulting firm selected pursuant to the MSA determines (or the parties agree) that the MSA was a “significant factor contributing to” that loss. A Settling State that has “diligently enforced” its qualifying escrow statute in the year in question may be able to avoid its allocable share of the NPM Adjustment. For 2003 - 2022, Liggett and Vector Tobacco, as applicable, disputed that they owed the Settling States the NPM Adjustments as calculated by the independent auditor. As permitted by the MSA, Liggett and Vector Tobacco either
paid subject to dispute, withheld payment, or paid into a disputed payment account, the amounts associated with these NPM Adjustments.
In June 2010, after the PMs prevailed in i48 of i49
motions to compel arbitration, the parties commenced the arbitration for the 2003 NPM Adjustment. That arbitration concluded in September 2013. It was followed by various challenges filed in state courts by states that did not prevail in the arbitration. Those challenges resulted in reductions, but not elimination of, the amounts awarded. Since then, the PMs have settled the NPM Adjustment dispute with i39 states representing approximately i80%
of the MSA allocable share.
The 2004 NPM Adjustment arbitration commenced in 2016, with the arbitration panel eventually finding three states liable for the NPM Adjustment. Two of these states have since filed motions in applicable state courts and with the arbitration
23
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
panels challenging these determinations and several issues remain to be resolved by the arbitration
panels that will affect the final amount of the 2004 NPM Adjustment. Individual state hearings with respect to the NPM Adjustments for 2005 - 2007 are ongoing.
As a result of the settlements described above, Liggett and Vector Tobacco reduced cost of sales for the three months ended March 31, 2023 and 2022 by $i3,585 and $i4,781
respectively. Liggett and Vector Tobacco may be entitled to further adjustments. As of March 31, 2023, Liggett and Vector Tobacco had accrued approximately $i9,200 related to the disputed amounts withheld from the non-settling states for 2005 - 2010, which may be subject to payment, with interest, if Liggett and Vector Tobacco lose the disputes for those years.
Other State Settlements. The MSA replaced Liggett’s prior settlements
with all states and territories except for Florida, Mississippi, Texas and Minnesota. Each of these ifour 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. Except as described below, Liggett’s agreements with these states remain in full force and effect. These states’ settlement agreements with Liggett contained most favored nation provisions which
could reduce Liggett’s payment obligations based on subsequent settlements or resolutions by those states with certain other tobacco companies. Beginning in 1999, Liggett determined that, based on settlements or resolutions with United States Tobacco Company, Liggett’s payment obligations to those ifour states were eliminated. With respect to all non-economic obligations under the previous settlements, Liggett believes it is 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.
In 2003, as a result of a dispute with Minnesota regarding its settlement agreement, Liggett agreed to pay $i100 a year in any year cigarettes manufactured by Liggett are sold in that state. In November 2022, Minnesota advised Liggett that the settlement agreement had terminated pursuant to its terms and that statutory fee-in-lieu of settlement payments will be collected from
wholesalers distributing Liggett’s products in Minnesota. Further, the Attorneys General for Florida, Mississippi and Texas advised Liggett that they believed Liggett had failed to make payments under the respective settlement agreements with those states. In 2010, Liggett settled with Florida and agreed to pay $i1,200 and to make further annual payments of $i250
for a period of i21 years, starting in March 2011, with the payments in 2022 through the duration of the agreement subject to an inflation adjustment.
Mississippi Litigation. In January 2016, the Attorney General for Mississippi filed a motion in Chancery Court in Jackson County, Mississippi to enforce the March 1996 settlement agreement among Liggett, Mississippi and other states (the “1996 Agreement”) alleging that Liggett owes Mississippi at least $i27,000
in compensatory damages and interest. In April 2017, the Chancery Court ruled, over Liggett’s objections, that the 1996 Agreement should be enforced as Mississippi claims and referred the matter first to arbitration and then to a Special Master for further proceedings to determine the amount of damages, if any, to be awarded. In April 2021, following confirmation of the final arbitration award, the parties stipulated that the unpaid principal (exclusive of interest) purportedly due from Liggett to Mississippi pursuant to the 1996 Agreement was approximately $i16,700,
subject to Liggett’s right to litigate and/or appeal the enforceability of the 1996 Agreement (and all issues other than the calculation of the principal amount allegedly due).
In September 2019, the Special Master held a hearing regarding Mississippi’s claim for pre- and post-judgment interest. In August 2021, the Special Master issued a final report with proposed findings and recommendations that pre-judgment interest, in the amount of approximately $i18,800, is due from Liggett from April 2005 - August
3, 2021. In April 2022, the Mississippi Chancery Court affirmed the Special Master’s findings and a final judgment was entered by the court on June 1, 2022. Additional interest amounts will accrue if the judgment is not overturned on appeal. Liggett continues to assert that the April 2017 Chancery Court order is in error because the most favored nations provision in the 1996 Agreement eliminated all of Liggett’s payment obligations to Mississippi. In June 2022, Liggett appealed the final judgment and posted a bond of $i24,000. Briefing on the appeal is
underway.
Liggett may be required to make additional payments to Mississippi and/or Texas which could have a material adverse effect on the Company’s consolidated financial position, results of operations and cash flows.
24
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
Cautionary Statement
Management
is not able to reasonably predict the outcome of the litigation pending or threatened against Liggett or the Company. Litigation is subject to many uncertainties. Liggett has been found liable in multiple Engle progeny cases and Individual Actions, several of which were affirmed on appeal and satisfied by Liggett. It is possible that other cases could be decided unfavorably against Liggett and that Liggett will be unsuccessful on appeal. Liggett may attempt to settle particular cases if it believes it is in its best interest to do so.
Management cannot predict the cash requirements related to any future defense costs, settlements or judgments, including cash required to bond any appeals, and there is a risk that Liggett may not be able to meet those requirements. An unfavorable outcome of a pending
smoking-related case could encourage the commencement of additional litigation. Except as discussed in this Note 7, management is unable to estimate the loss or range of loss that could result from an unfavorable outcome of the cases pending against Liggett or the costs of defending such cases and as a result has not provided any amounts in its condensed consolidated financial statements for unfavorable outcomes.
The tobacco industry is subject to a wide range of laws and regulations regarding the marketing, sale, taxation and use of tobacco products imposed by local, state and federal governments. There have been a number of 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 litigation or legislation.
It is possible that the Company’s consolidated financial position, results of operations and cash flows could be materially adversely affected by an unfavorable outcome in any of the smoking-related litigation.
The activity in the Company’s accruals for the MSA and tobacco litigation for the three months ended March 31, 2023 was as follows:
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 impact on the capital expenditures, results of operations or competitive position of Liggett or Vector Tobacco.
Liggett and the Company have received ithree
separate demands for indemnification from Altria Client Services, on behalf of Philip Morris, relating to lawsuits alleging smokers’ use of L&M cigarettes. The indemnification demands are purportedly issued in connection with Eve Holdings’ 1999 sale of certain trademarks to Philip Morris.
Management is of the opinion that the liabilities, if any, resulting from other proceedings, lawsuits and claims pending against the Company and its consolidated subsidiaries, unrelated to tobacco product liability, should not materially affect the Company’s consolidated financial position, results of operations or cash flows.
8. iINCOME
TAXES
The Company’s effective income tax rate is based on expected income, statutory rates, valuation allowances against deferred tax assets, and any tax planning opportunities available to the Company. For interim financial reporting, the Company estimates the annual effective income tax rate based on full year projections and applies the annual effective income tax rate against year-to-date pretax income to record income tax expense, adjusted for discrete items, if any. The Company refines annual estimates as new information
becomes available. The Company’s tax rate does not bear a relationship to statutory tax rates due to permanent differences, which are primarily related to nondeductible compensation and state taxes.
26
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
i
The
Company’s income tax expense consisted of the following:
Quoted
Prices in Active Markets for Identical Assets (Level 1)
Significant Other Observable Inputs (Level 2)
Significant Unobservable Inputs (Level 3)
Assets:
Money market funds (1)
$
i211,828
$
i211,828
$
i—
$
i—
Commercial
paper (1)
i55,173
i—
i55,173
i—
Money
market funds securing legal bonds (2)
i24,000
i24,000
i—
i—
Investment
securities at fair value
Equity securities at fair value
Marketable equity securities
i12,973
i12,973
i—
i—
Mutual
funds invested in debt securities
i22,438
i22,438
i—
i—
Total
equity securities at fair value
i35,411
i35,411
i—
i—
Debt
securities available for sale
U.S. government securities
i788
i—
i788
i—
Corporate
securities
i30,593
i—
i30,593
i—
U.S.
government and federal agency
i26,235
i—
i26,235
i—
Index-linked
U.S. bonds
i14,008
i—
i14,008
i—
Total
debt securities available for sale
i71,624
i—
i71,624
i—
Total
investment securities at fair value
i107,035
i35,411
i71,624
i—
Long-term
investments
Long-term investment securities at fair value (3)
i29,177
i—
i—
i—
Total
$
i427,213
$
i271,239
$
i126,797
$
i—
(1)
Amounts included in Cash and cash equivalents on the condensed consolidated balance sheets.
(2) Amounts included in non-current restricted assets on the condensed consolidated balance sheets.
(3) In accordance with Subtopic 820-10, investments that are measured at fair value using the NAV practical expedient are not classified in the fair value hierarchy.
/
27
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
Quoted
Prices in Active Markets for Identical Assets (Level 1)
Significant Other Observable Inputs (Level 2)
Significant Unobservable Inputs (Level 3)
Assets:
Money market funds (1)
$
i155,411
$
i155,411
$
i—
$
i—
Commercial
paper (1)
i54,526
i—
i54,526
i—
Money
market funds securing legal bonds (2)
i24,000
i24,000
i—
i—
Investment
securities at fair value
Equity securities at fair value
Marketable equity securities
i12,724
i12,724
i—
i—
Mutual
funds invested in debt securities
i22,069
i22,069
i—
i—
Total
equity securities at fair value
i34,793
i34,793
i—
i—
Debt
securities available for sale
U.S. government securities
i779
i—
i779
i—
Corporate
securities
i53,814
i—
i53,814
i—
U.S.
government and federal agency
i27,050
i—
i27,050
i—
Total
debt securities available for sale
i81,643
i—
i81,643
i—
Total
investment securities at fair value
i116,436
i34,793
i81,643
i—
Long-term
investments
Long-term investment securities at fair value (3)
i28,919
i—
i—
i—
Total
$
i379,292
$
i214,204
$
i136,169
$
i—
(1)
Amounts included in Cash and cash equivalents on the condensed consolidated balance sheets.
(2) Amounts included in non-current restricted assets on the condensed consolidated balance sheets.
(3) In accordance with Subtopic 820-10, investments that are measured at fair value using the NAV practical expedient are not classified in the fair value hierarchy.
The fair value of investment securities at fair value included in Level 1 is based on quoted market prices from various stock exchanges. The Level 2 investment securities at fair value are based on quoted market prices of securities that are thinly traded, quoted prices for identical or similar assets in markets that are not active or inputs other than quoted prices such as interest rates and yield curves.
The
long-term investments are based on NAV per share provided by the partnerships based on the indicated market value of the underlying assets or investment portfolio. In accordance with Subtopic 820-10, these investments are not classified under the fair value hierarchy disclosed above because they are measured at fair value using the NAV practical expedient.
In addition to assets and liabilities that are recorded at fair value on a recurring basis, the Company is required to record assets and liabilities at fair value on a nonrecurring basis. Generally, assets and liabilities are recorded at fair value on a nonrecurring basis as a result of impairment charges. The Company had no nonrecurring nonfinancial assets subject to fair value measurements as of March 31,
2023 and December 31, 2022, respectively, except for investments in real estate ventures that were impaired as of March 31, 2023 and December 31, 2022.
28
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
i
The
Company’s investment in real estate ventures subject to nonrecurring fair value measurements are as follows:
Quoted Prices in Active Markets for Identical Assets (Level 1)
Significant Other Observable Inputs (Level 2)
Significant Unobservable Inputs (Level 3)
Description
Impairment Charge
Total
Assets:
Investments
in real estate ventures
$
i1,202
$
i—
$
i—
$
i—
$
i—
/
The
Company estimated the fair value of its investments in real estate ventures using observable inputs such as market pricing based on recent events, however, significant judgment was required to select certain inputs from observed market data. The decline in the investment in real estate ventures was attributed to the decline in the projected return on the venture based on the viability of the real estate venture. The $i1,202 of impairment charges were included in equity in losses from real estate ventures for the three months ended March 31,
2023.
The Company’s investments in real estate ventures subject to nonrecurring fair value measurements are as follows:
Quoted Prices in Active Markets for Identical Assets (Level 1)
Significant Other Observable Inputs (Level 2)
Significant Unobservable Inputs (Level 3)
Impairment Charge
Total
Assets:
Investments
in real estate ventures
$
i490
$
i—
$
i—
$
i—
$
i—
The
Company estimated the fair value of its investments in real estate ventures using observable inputs such as market pricing based on recent events, however, significant judgment was required to select certain inputs from observed market data. The decline in the investments in real estate ventures was attributed to the decline in the projected sales prices and the duration of the estimated sell out of the respective real estate ventures. The $i490 of impairment charges were included in equity in losses from real estate ventures for the year ended December 31, 2022.
29
VECTOR GROUP LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS – (Continued)
(Dollars in Thousands, Except Per Share Amounts)
Unaudited
10. iSEGMENT
INFORMATION
The Company’s business segments for the three months ended March 31, 2023 and 2022 were Tobacco and Real Estate. The accounting policies of the segments are the same as those described in the summary of significant accounting policies.
i
Financial
information for the Company’s operations before taxes for the three months ended March 31, 2023 and 2022 were as follows:
(1) Operating
income includes $i311 received from a litigation settlement associated with the MSA (which reduced cost of sales) and $i270 of litigation settlement and judgment expense.
(2) Operating income includes $i2,123 received from a litigation settlement associated with the MSA (which reduced cost of sales) and $i72
of litigation settlement and judgment expense.
/
30
ITEM 2.MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Dollars in Thousands, Except Per Share Amounts)
Management’s
Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) is designed to provide a reader of Vector Group Ltd.’s financial statements with a narrative from our management’s perspective. Our MD&A is divided into the following sections:
•Overview
•Recent Developments
•Results of Operations
•Summary of Real Estate Investments
•Liquidity and Capital Resources
Please read this discussion along with our MD&A and audited financial statements as of and for the year ended December 31,
2022 and Notes thereto, included in our 2022 Annual Report on Form 10-K, and our Condensed Consolidated Financial Statements and related Notes as of and for the quarterly period ended March 31, 2023 and 2022.
Overview
We are a holding company and are engaged principally in two business segments:
•Tobacco: the manufacture and sale of discount cigarettes in the United States through our Liggett Group LLC and Vector Tobacco LLC subsidiaries, and
•Real Estate: the real estate investment business through our subsidiary, New Valley
LLC, which (i) has interests in numerous real estate projects across the United States and (ii) is seeking to acquire or invest in additional real estate properties or projects.
Our tobacco subsidiaries’ cigarettes are produced in 100 combinations of length, style and packaging. Liggett’s current brand portfolio includes:
•Montego
•Eagle 20’s
•Pyramid
•Grand Prix, Liggett Select, Eve, USA and various partner brands and private label brands.
The discount
segment is a challenging marketplace, with consumers having less brand loyalty and placing greater emphasis on price. Liggett’s competition is divided into two segments. The first segment consists of the three largest manufacturers of cigarettes in the United States: Philip Morris USA Inc., which is owned by Altria Group, Inc., RJ Reynolds Tobacco Company, which is owned by British American Tobacco Plc, and ITG Brands LLC, which is owned by Imperial Brands Plc. These three manufacturers, while primarily premium cigarette-based companies, also produce and sell discount cigarettes. The second segment of competition is comprised of a group of smaller manufacturers and importers, most of which sell deep discount cigarettes.
Recent Developments
Montego. From
August 2020 to February 2022, Liggett expanded the distribution of its Montego deep discount brand nationally. Montego became Liggett’s largest brand by volume during the second quarter of 2022. Prior to August 2020, Montego was sold in select targeted markets in four states. Montego’s unit volume represented approximately 59% for the three months ended March 31, 2023 compared to approximately 38% for the three months ended March 31, 2022.
Menthol and Flavorings. On May 4, 2022, FDA published a proposed rule to prohibit menthol as a characterizing flavor in cigarettes.
For the last twelve months ended March 31, 2023, approximately 20% of our cigarette unit sales were menthol flavored. A final rule is expected to be adopted by the FDA later this year. Once a final rule is published, it ordinarily would not
31
be expected to take effect until at least one year after the date of publication. In addition, if litigation is brought against FDA’s menthol regulation, the effective date may be extended beyond the one-year effective date. We cannot predict how a tobacco product standard or a restriction on the sale and distribution of tobacco products with menthol, if ultimately issued by FDA, will impact product sales, whether it will have a material adverse effect on Liggett or Vector Tobacco,
or whether it will impact Liggett and Vector Tobacco to a greater degree than other companies in the industry.
Nicotine. On June 21, 2022, FDA indicated it plans to publish a proposed rule that establishes a tobacco product standard reducing the level of nicotine in cigarettes to non-addictive levels. Currently, this proposed rule setting a maximum level of nicotine in cigarettes is expected to be published sometime later this year. The rulemaking process could take many months or years and once a final rule is published, it ordinarily would not be expected to take effect until at least one year after the date of publication. We cannot predict how a tobacco product standard reducing nicotine, if ultimately issued by FDA, will impact product sales, whether it will have a material adverse effect on Liggett or Vector Tobacco, or whether it will impact
Liggett and Vector Tobacco to a greater degree than other companies in the industry.
Repurchase of 10.5% Senior Notes due 2026. In March 2023, we repurchased in the market $6,660 in aggregate principal amount of our 10.5% Senior Notes outstanding and recorded a loss of $141 associated with the repurchase. The 10.5% Senior Notes that were repurchased have been retired.
Recent Developments in Tobacco-Related Litigation
The cigarette industry continues to be challenged on numerous fronts. Adverse litigation outcomes could have a negative impact on our ability to operate due to their impact on cash flows. It is possible that there could be adverse developments in pending
cases including the certification of additional class actions. An unfavorable outcome or settlement of pending tobacco-related litigation could encourage the commencement of additional litigation. New cases continue to be commenced against Liggett and other cigarette manufacturers. Liggett could be subjected to substantial liabilities and bonding requirements from litigation relating to cigarette products. In addition, an unfavorable outcome in any tobacco-related litigation could have a material adverse effect on our consolidated financial position, results of operations or cash flows.
Mississippi Litigation. In January 2016, the Attorney General for Mississippi filed a motion in Chancery Court in Jackson County, Mississippi to enforce the March 1996 settlement agreement among Liggett, Mississippi and other states (the “1996 Agreement”) alleging that Liggett owes Mississippi at least $27,000
in compensatory damages and interest. In April 2017, the Chancery Court ruled, over Liggett’s objections, that the 1996 Agreement should be enforced as Mississippi claims and referred the matter first to arbitration and then to a Special Master for further proceedings to determine the amount of damages, if any, to be awarded. In April 2021, following confirmation of the final arbitration award, the parties stipulated that the unpaid principal (exclusive of interest) purportedly due from Liggett to Mississippi pursuant to the 1996 Agreement was approximately $16,700, subject to Liggett’s right to litigate and/or appeal the enforceability of the 1996 Agreement (and all issues other than the calculation of the principal amount allegedly due).
In September 2019, the Special Master held a hearing regarding Mississippi’s claim for pre- and post-judgment interest. In August 2021, the Special Master issued a final report with proposed
findings and recommendations that pre-judgment interest, in the amount of approximately $18,800, is due from Liggett from April 2005 through August 3, 2021. In April 2022, the Mississippi Chancery Court affirmed the Special Master’s findings and a final judgment was entered by the court on June 1, 2022. Additional interest amounts will accrue if the judgment is not overturned on appeal. Liggett continues to assert that the April 2017 Chancery Court order is in error because the most favored nations provision in the 1996 Agreement eliminated all of Liggett’s payment obligations to Mississippi. Liggett appealed the final judgment and posted a $24,000 bond in June 2022. Briefing on the appeal is underway. We cannot predict the outcome of this matter but if the judgment is not overturned on appeal, it could have a material adverse effect on our consolidated financial position.
See
“Legislation and Regulation” in Item 2 of the MD&A for further information on litigation.
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 condensed consolidated financial statements included elsewhere in this report. The condensed consolidated financial statements include the accounts of Liggett, Vector Tobacco, Liggett Vector Brands, New Valley and other less significant subsidiaries.
For
purposes of this discussion and other consolidated financial reporting, our business segments for the three months ended March 31, 2023 and 2022 were Tobacco and Real Estate. The Tobacco segment consisted of the manufacture and sale of
32
cigarettes. The Real Estate segment includes our investment in New Valley, includes investments in real estate ventures and, prior to 2023, included investments in real estate.
(1) Operating
income includes $311 received from a litigation settlement associated with the MSA (which reduced cost of sales) and $270 of litigation settlement and judgment expense.
(2) Operating income includes $2,123 received from a litigation settlement associated with the MSA (which reduced cost of sales) and $72 of
litigation settlement and judgment expense.
Pricing actions
Since January 1, 2022, Liggett has taken the following pricing actions.
Revenues. Total revenues were $334,145 for the three months ended March 31, 2023 compared to $312,042 for the three months ended March 31, 2022. The $22,103 (7.1%) increase in revenues was primarily due to a $25,097 increase in Tobacco revenues related to increased unit volume and pricing, partially
offset by a $2,994 decline in Real Estate revenues due to the absence of revenues from investment in real estate as a result of the sale of the Escena investment in April 2022.
Cost of sales. Total cost of sales was $232,286 for the three months ended March 31, 2023 compared to $212,815 for the three months ended March 31, 2022. The $19,471 (9.1%) increase in cost of sales was primarily due to a $20,749 increase in Tobacco cost of sales primarily related to increased sales volume, partially offset by a $1,278 decline in Real Estate cost of sales.
33
Expenses. Operating
expenses were $27,562 for the three months ended March 31, 2023 compared to $24,101 for the same period last year. The $3,461 (14.4%) increase was due to a $3,388 increase in Tobacco expenses and an $876 increase in Corporate and Other expense, partially offset by an $803 decline in Real Estate expenses.
Operating income. Operating income was $74,297 for the three months ended March 31, 2023 compared to operating income of $75,126 for the same period last year as a result of a decline in Real Estate operating income of $913, which was associated with the absence of the operations of Escena in the current year, and an increase in Corporate and Other operating loss of $876. This was partially offset by an increase in Tobacco operating income of $960 due primarily to increases in
net pricing across all brands.
Other expenses. Other expenses were $26,047 for the three months ended March 31, 2023 compared to other expenses of $30,362 for the three months ended March 31, 2022. For the three months ended March 31, 2023, other expenses primarily consisted of interest expense of $27,474, equity in losses from real estate ventures of $1,893, equity in losses from investments of $159, and a loss of $141 recognized on the repurchase of the 10.5% Senior Notes. This was offset by other income of $3,620. For the three months ended March 31, 2022, other expenses primarily consisted of interest expense of $25,098, equity in losses from investments of $2,242, equity
in losses from real estate ventures $1,877 and other expenses of $1,145.
Income before provision for income taxes. Income before income taxes was $48,250 and $44,764 for the three months ended March 31, 2023 and 2022, respectively.
Income tax expense. Income tax expense was $13,509 for the three months ended March 31, 2023 compared to income tax expense of $12,222 for the three months ended March 31, 2022. Our provision for income taxes in interim periods is based on expected income, statutory rates, nontaxable differences, valuation allowances against deferred tax assets, and any tax
planning opportunities available to us. For interim financial reporting, we estimate the annual effective income tax rate based on full year projections and apply the annual effective income tax rate against year-to-date pretax income to record income tax expense, adjusted for discrete items, if any. We refine annual estimates as new information becomes available.
Tobacco.
Tobacco revenues. All of our Tobacco sales were in the discount category in 2023 and 2022. For the three months ended March 31, 2023, Tobacco revenues were $334,145 compared to $309,048 for the three months ended March 31, 2022. Revenues increased by $25,097 (8.1%) due primarily to price increases on our deep discount brand, Montego,and a 2.0% (46 million units) increase in unit sales volume, partially offset by changes in sales mix, which occurred as a result of the volume increase in Montego and volume declines in our other brands which are priced in the traditional discount category.
Montego became our largest brand in the second quarter of 2022. Prior to the third quarter of 2022, our strategy for Montego had been based on volume growth, while our strategy for our other brands was based on income growth. In the third quarter of 2022, management made the determination to gradually transition Montego’s growth from a volume-based strategy to an income-based growth strategy and the price of Montego was raised three
times between July 2022 and March 2023. For the three months ended March 31, 2023, Montego’s volume has increased to approximately 59% of Liggett’s total unit sales from approximately 38% for the three months ended March 31, 2022. Revenues have also increased as a result of price increases. See “Pricing actions” in Item 2 of the MD&A.
Due to the growth of Montego, Eagle 20’s is now our second-largest brand and its percentage of Liggett’s total unit sales has declined to approximately 29% for the three months ended March 31, 2023 from approximately 41% for the three months ended
March 31, 2022. Pyramid, Liggett’s third-largest brand, also declined to approximately 8% of Liggett’s total unit sales for the three months ended March 31, 2023 from approximately 16% for the three months ended March 31, 2022.
34
Tobacco cost of sales. The major components of our Tobacco cost of sales were as follows:
(1) Includes
$311 received from a litigation settlement associated with the MSA expense (which reduced cost of sales).
(2) Includes $2,123 received from a litigation settlement associated with the MSA expense (which reduced cost of sales)
The Tobacco segment’s MSA expense is the most volume-sensitive component (on a per-unit basis) of its cost of sales because, under the terms of the MSA, the Tobacco segment has no payment obligations except to the extent that its U.S. Cigarette market share exceeds 1.93%. We estimate MSA expense based on total U.S. taxable cigarette shipments, our taxable shipments and inflation. Based on assumptions discussed below, our MSA expense increased to $0.57 per pack for the three months ended March 31, 2023 from $0.47 per pack for the three months ended March 31,
2022. (We estimated our MSA expense was $0.53 per pack for the year ended December 31, 2022.)
Due to Liggett and Vector Tobacco’s cost exemption, our MSA expense is impacted by total U.S. taxable cigarette shipments. As of March 31, 2023, we estimate taxable shipments in the U.S. will decline by 7.5% in 2023 compared to our estimate as of March 31, 2022 of a decline of 7.0% in 2022. (The actual change in 2022 taxable shipments was a decline of 9.7%.) We estimate our 2023 projected annual MSA expense changes by approximately $1,700 for each 1% change in U.S. shipment volumes.
Inflationary pressures also impact Liggett’s MSA expense, which is subject to an annual inflation adjustment. The inflation adjustment is the greater of the
U.S. CPI rate or 3%. As of March 31, 2023, Liggett’s management assumed an inflation adjustment to MSA expense of 5.0% compared to an assumption of 7.0% as of March 31, 2022. (The actual inflation adjustment to the MSA in 2022 was 6.5%.) Our annual MSA expense increases by approximately $2,800 for each 1% increase in inflation more than 3%.
In addition to the MSA expense, we could experience inflationary impacts related to supply chain issues from manufacturing costs. The largest component of Liggett’s manufacturing costs is leaf tobacco and other raw materials. In recent years, due to declining prices of leaf tobacco as efficiencies gained from technological innovation in Liggett’s factory, Liggett’s raw material costs have been relatively flat and, therefore, prior to 2021, Liggett’s cost of sales had not been impacted by
inflation. During the three months ended March 31, 2023, Liggett experienced a 17.1% increase in leaf tobacco and raw materials (on a per-unit basis) compared to 4.1% during the three months ended March 31, 2022. Further, when including labor costs, manufacturing overhead and shipping costs with leaf tobacco and raw materials, Liggett experienced a 10.9% increase in production costs (on a per-unit basis) during the three months ended March 31, 2023, compared to a 2.1% increase in production costs during the three months ended March 31, 2022. The increase in costs per unit is the result of inflationary pressures as well as, in the case of leaf, recent interruptions in the supply chain. We believe that leaf costs have stabilized during the three months ended March 31,
2023. Nonetheless, the cost of leaf and raw materials represented approximately 9.5% and 9.0% of Liggett’s cost of sales for the three months ended March 31, 2023 and 2022, respectively.
Tobacco cost of sales was reduced by litigation settlements associated with the MSA expense of $311 during the three months ended March 31, 2023, compared to a reduction of $2,123 during the three months ended March 31, 2022. The decline in settlements resulted in an increase in cost of sales of $1,812.
Tobacco gross profit was $101,859 for the three months ended March 31, 2023
compared to $97,511 for the three months ended March 31, 2022, an increase of $4,348 (4.5%). This increase in gross profit for the three months ended March 31, 2023 was primarily attributable to a 2.0% increase in unit sales and increased pricing across all brands. As a percentage of revenue (excluding Federal Excise Taxes), Tobacco gross profit margin declined from 50.5% in the 2022 period to 47.1% in the 2023 period primarily due to the growth of the Montego brand.
35
Tobacco expenses. Tobacco operating, selling, general and administrative expenses, excluding settlements and
judgments, were $22,990 for the three months ended March 31, 2023 compared to $19,800 for the three months ended March 31, 2022. The increase of $3,190 was primarily due to Liggett’s triennial national sales meeting held in March 2023, higher professional fees and compensation expenses. Tobacco product liability legal expenses, including settlements and judgments, were $2,173 and $1,645 for the three months ended March 31, 2023 and 2022, respectively.
Tobacco operating income. Tobacco operating income was $78,599 for the three months ended March 31, 2023 compared to $77,639 for the three months ended March 31,
2022. The increase of $960 (1.2%) was attributable to increased gross profit offset by increased operating, selling, general and administrative expenses.
Real Estate.
Real Estate revenues. The Real Estate segment includes our investment in New Valley, investments in real estate ventures and, prior to April 2022, when Escena was sold, included investments in real estate. After the sale of Escena, we have no revenues from our real estate segment. Therefore, Real Estate revenues declined by $2,994 to $0 for the three months ended March 31, 2023 from $2,994 for the three months ended March 31, 2022.
Real Estate revenues, cost of sales, expenses and operating income for the three months ended
March 31, 2023 and 2022, respectively, were as follows:
Sales
on facilities located on investments in real estate
$
—
$
2,969
Revenues from investments in real estate
—
25
Total real estate revenues
$
—
$
2,994
Real
Estate Cost of Sales:
Cost of sales on facilities located on investments in real estate
$
—
$
1,278
Total real estate cost of sales
$
—
$
1,278
Operating,
selling, administrative and general expenses
$
(62)
$
741
Operating income
$
62
$
975
Corporate and Other.
Corporate and Other loss. The
operating loss at the Corporate and Other segment was $4,364 for the three months ended March 31, 2023 compared to $3,488 for the same period in 2022. The increase in Corporate and Other operating loss related to the timing of expenses in 2023 compared to 2022.
36
Summary of Real Estate Investments
We own and seek to acquire investment interests in various domestic and international real estate projects through debt and equity investments. Our real estate investments primarily include the following projects as of March 31,
2023:
(Dollars
in Thousands. Area and Unit Information in Ones)
Projected Number of Residential Lots, Units
and/or Hotel Rooms
Actual/Projected Construction Start Date
Projected Construction End Date
Investments in real estate ventures:
111 Murray Street
TriBeCa, Manhattan, NY
May 2013
9.5
%
$
7,636
$
(4,413)
$
3,223
$
—
330,000
SF
1,700
SF
157
R
September
2014
Completed
87 Park (8701 Collins Avenue)
Miami Beach, FL
December 2013
23.1
%
(6,646)
6,646
—
—
160,000
SF
TBD
70
R
October
2015
Completed
West Hollywood Edition (9040 Sunset Boulevard) (3)
West Hollywood, CA
October 2014
48.5
%
18,341
(18,941)
(600)
—
210,000
SF
—
20 190
R H
May
2015
Completed
Monad Terrace (1300 West Ave)
Miami Beach, FL
May 2015
19.6
%
7,635
(7,635)
—
—
160,000
SF
—
59
R
May
2016
Completed
Dime (209 Havemeyer St)
Brooklyn, NY
November 2017
16.5
%
9,145
(9,145)
—
—
100,000
SF
150,000
SF
177
R
May
2017
Completed
Meatpacking Plaza (44 Ninth Ave)
Meatpacking District, Manhattan, NY
April 2019
16.9
%
10,692
(3,055)
7,637
—
8,741
SF
76,919
SF
15
R
July
2021
September 2023
Five Park (500 Alton Road)
Miami Beach, FL
September 2019
38.9
%
18,098
3,727
21,825
—
472,000
SF
15,000
SF
234
R
April
2020
November 2024
The Brooklyn Tower (9 DeKalb Avenue)
Brooklyn, NY
April 2019
4.1
%
5,000
1,440
6,440
—
450,000
SF
120,000
SF
540
R
March
2019
September 2023
Natura Gardens (17351 NW 94th Court)
Miami, FL
December 2019
77.8
%
7,626
5,113
12,739
—
460,000
SF
—
460
R
December
2019
June 2023
Ritz-Carlton Villas (4701 Meridian Avenue)
Miami Beach, FL
December 2020
50.0
%
4,109
(247)
3,862
—
58,000
SF
—
15
R
October
2020
Completed
2000 N. Atlantic Ave.
Daytona Beach, FL
November 2021
75.0
%
2,388
129
2,517
—
TBD
TBD
TBD
Society
Nashville (915 Division St)
Nashville, TN
November 2021
49.7
%
21,500
2,425
23,925
—
335,000
SF
8,000
SF
502
R
July
2022
September 2025
3621 Collins Ave (4)
Miami Beach, FL
March 2022
2.5
%
1,000
—
1,000
—
TBD
TBD
TBD
Alchemy
Nash Square (303 S. Dawson St)
Raleigh, NC
June 2022
75.0
%
6,601
372
6,973
—
TBD
TBD
TBD
Aventura View (2999 NE
191st St)
Aventura, FL
June 2022
12.5
%
4,000
160
4,160
—
TBD
105,000
SF
N/A
N/A
2261
NE 164th St
North Miami Beach, FL
August 2022
35.0
%
4,000
132
4,132
—
TBD
TBD
TBD
353 6th Ave
Brooklyn,
NY
January 2023
27.0
%
700
7
707
—
5,360
SF
—
—
4
R
April 2023
October
2024
Condominium and Mixed Use Development
$
121,825
$
(23,285)
$
98,540
$
—
The
Park (500 Broadway)
Santa Monica, CA
March 2017
15.0
%
$
1,767
$
(1,269)
$
498
$
—
N/A
N/A
N/A
N/A
N/A
Riverchase
Landing
Hoover, AL
October 2021
50.0
%
$
11,350
$
(3,078)
$
8,272
$
—
746,000
SF
N/A
468
R
N/A
N/A
Apartment
Buildings
$
13,117
$
(4,347)
$
8,770
$
—
Park
Lane Hotel (36 Central Park South)
Central Park South, Manhattan, NY
November 2013
1.0
%
$
8,682
$
(8,323)
$
359
$
—
446,000
SF
—
628
H
N/A
N/A
215
Chrystie Street
Lower East Side, Manhattan, NY
December 2012
12.3
%
(1,328)
1,328
—
—
246,000
SF
—
367
H
June
2014
Completed
Coral Beach and Tennis Club
Coral Beach, Bermuda
December 2013
49.0
%
6,048
(6,048)
—
—
52
Acres
—
101
H
N/A
N/A
The
Thompson Central Park (119 W 56th St)
Midtown, Manhattan, NY
July 2019
0.4
%
1,000
(773)
227
—
470,000
SF
—
587 99
H R
May
2020
June 2023
Hotels
$
14,402
$
(13,816)
$
586
$
—
The
Plaza at Harmon Meadow
Secaucus, NJ
March 2015
49.0
%
$
12,270
$
(4,618)
$
7,652
$
—
—
—
219,000
SF
—
—
N/A
N
/A
Wynn Las Vegas Retail
Las Vegas, NV
December 2016
1.6
%
3,074
5,133
8,207
—
—
—
160,000
SF
—
—
N/A
N/A
Commercial
$
15,344
$
515
$
15,859
$
—
Total
Carrying Value
$
164,688
$
(40,933)
$
123,755
$
—
(1)
The Percentage Owned reflects our estimated current ownership percentage. Our actual ownership percentage as well as the percentage of earnings and cash distributions may ultimately differ as a result of a number of factors including potential dilution, financing or admission of additional partners.
(2) This column only represents capital commitments required under the various joint venture agreements. However, many of the operating agreements provide for the operating partner to call capital. If a joint venture partner, such as New Valley, declines to fund the capital call, then the partner’s ownership percentage could either be diluted or, in some situations, the character of a funding member’s contribution would be converted from a capital contribution to a member loan.
(3) Equity in losses in excess of the joint ventures' carrying value were
$600 as of March 31, 2023, and are classified in Other current liabilities.
(4) The 3621 Collins Ave venture is measured at cost, less impairment, following the guidance under ASC 821. The investment is included in Other Assets on the condensed consolidated balance sheets.
N/A - Not applicable
SF - Square feet
H - Hotel rooms
TBD -To be determined
R - Residential Units
R Lots - Residential lots
TBD
-To be determined
R - Residential Units
R Lots - Residential lots
37
New Valley capitalizes net interest expense into the carrying value of its ventures whose projects were under development. Net capitalized interest costs included in Carrying Value as of March 31, 2023 were $11,836. This amount is included in the “Cumulative Earnings (Losses)” column in the table above. During the three months ended March 31,
2023, New Valley capitalized $1,056 of interest costs and utilized (reversed) $15 of previously capitalized interest in connection with the recognition of equity in (losses) earnings, gains and liquidations from various ventures.
38
Liquidity and Capital Resources
Cash, cash equivalents and restricted cash increased by $57,559 and $44,894 for the three months ended March 31, 2023 and 2022, respectively.
Cash
provided by operations was $120,782 and $74,796 for the three months ended March 31, 2023 and 2022, respectively. The increase in cash provided from operations related primarily to the accrual of increased obligations due under the MSA (due to increased MSA expense on a per unit basis combined with increased market share as a result of the growth of Montego) and the decline in trade receivables as the result of the timing of certain promotional programs.
Cash provided by investing activities was $380 and $2,705 for the three months ended March 31, 2023 and 2022, respectively. In the first three months of 2023, cash provided by investing activities was from maturities of investment
securities of $18,459, the sale of investment securities of $9,455, and paydowns of investment securities of $33. This was offset by the purchase of investment securities of $18,389, capital expenditures of $5,983, investments in real estate ventures of $2,920, an increase in cash surrender value of life insurance policies of $272, and an increase in restricted assets of $3. In the first three months of 2022, cash provided by investing activities was from maturities of investments securities of $21,105, the sale of investment securities of $16,933, distributions from investments in real estate ventures of $3,310, and paydowns of investment securities of $63. This was offset by the purchase of investment securities of $27,231, investments in real estate ventures of $8,488, capital expenditures of $1,222, purchase of long-term investments of $1,000, and an increase in cash surrender value of life insurance policies of $765. Liggett has entered into purchase commitments
of approximately $14,000 related to factory modernization throughout 2022 and 2023 and has funded approximately $10,000 of these capital commitments as of March 31, 2023. The remaining $4,000 of capital expenditures will be incremental to Liggett’s recurring capital expenditure program.
Cash used in financing activities was $63,603 and $32,607 for the three months ended March 31, 2023 and 2022, respectively. In the first three months of 2023, cash was used for the dividends on common stock of $31,680, net repayments of debt under the revolver of $22,035, the repurchase and repayments of debt of $6,700, and the tax benefit of options exercised of $3,188. Repurchases and repayments of debt for the three months ended March 31, 2023
included our repurchase in the market of $6,660 in aggregate principal amount of our 10.5% Senior Notes due 2026 at a price of $6,693 plus accrued interest. In April 2023, the Company repurchased in the market $1,692 in aggregate principal amount of its 10.5% Senior Notes due 2026. The 10.5% Senior Notes that were repurchased have been retired. In the first three months of 2022, cash was used for the dividends on common stock of $31,658, repayments of debt of $11, and other of $938.
We use dividends from our tobacco and real estate subsidiaries, as well as cash and cash equivalents maintained at the corporate level, to fund our significant liquidity commitments at the corporate level (not including our tobacco and real estate operations). These liquidity
commitments include cash interest expense of approximately $106,400, dividends on our outstanding common shares of approximately $126,500, which is based on an assumed quarterly cash dividend of $0.20 per share and other corporate expenses and income taxes.
As of March 31, 2023, we had cash and cash equivalents of $281,868 (including $52,105 of cash at Liggett), investment securities and long-term investments, which were carried at $152,094 (see Note 4 to condensed consolidated financial statements). As of March 31, 2023, our investments in real estate ventures were carried at $123,355.
In June 2022, Liggett appealed the final judgment related to the Mississippi litigation and posted a bond of $24,000. The amount of the bond, which was $24,599 at March 31,
2023, has been included as a component of restricted cash in our Balance Sheet as of March 31, 2023.
Limitation of interest expense deductible for income taxes. The amount of interest expense that is deductible in the computation of income tax liability is limited to 30% of taxable income before interest. However, interest expense allocable to a designated excepted trade or business is not subject to limitation. One such excepted trade or business is any electing real property trade or business, for which portions of our real estate businesses may qualify. If any interest expense is disallowed, we are permitted to carry forward the disallowed interest expense indefinitely. As a result of interest expense that is allocated to our real estate businesses (from the holding company) not being subject to the limitation, all of our interest expense to
date has been tax deductible; however, a portion of our interest expense in future years may not be deductible, which may increase the after-tax cost of any new debt financings as well as the refinancing of our existing debt. We evaluate the impact of the nondeductible interest on our operations and capital structure on an annual basis.
Tobacco Litigation. As of March 31, 2023, 16 verdicts were entered in Engle progeny cases against Liggett. Several of these verdicts have been affirmed on appeal and have been satisfied by Liggett. Liggett has paid $40,111, including interest and attorney’s fees, to satisfy the final judgments entered against it. It is possible that additional cases could be decided unfavorably.
39
Notwithstanding
the comprehensive nature of the Engle Progeny Settlements of more than 5,200 cases, 17 plaintiffs’ claims remain outstanding. Therefore, we and Liggett may still be subject to periodic adverse judgments that could have a material adverse effect on our consolidated financial position, results of operations and cash flows.
In June 2022, Liggett appealed the final judgment related to the Mississippi litigation and posted a bond of $24,000. Liggett may be required to make additional payments to Mississippi which could have an adverse effect on our consolidated financial position. The potential exposures for unpaid principal and pre-judgment interest were approximately $16,700 and $23,600 (as of March 31, 2023), respectively. See Recent Developments in Tobacco-Related Litigation.
Management
cannot predict the cash requirements related to any future settlements or judgments, including cash required to bond any appeals, and there is a risk that those requirements will not be able to be met. Management is unable to make a reasonable estimate of the amount or range of loss that could result from an unfavorable outcome of the cases pending against Liggett or the costs of defending such cases. It is possible that our consolidated financial position, results of operations or cash flows in any future period could be materially adversely affected by an unfavorable outcome in any such tobacco-related litigation.
Vector Indebtedness.
5.75% Senior Secured Notes due 2029. On January 28, 2021, we completed the sale of $875,000 in aggregate principal amount
of our 5.75% Senior Secured Notes due 2029 (“5.75% Senior Secured Notes”) to qualified institutional buyers and non-U.S. persons in a private offering pursuant to the exemptions from the registration requirements of the Securities Act of 1933, as amended, (the “Securities Act”) contained in Rule 144A and Regulation S thereunder. The aggregate net cash proceeds from the sale of the 5.75% Senior Secured Notes were approximately $855,500 after deducting the initial purchaser’s discount and estimated expenses and fees in connection with the offering. We used the net cash proceeds from the 5.75% Senior Secured Notes offering, together with cash on hand, to redeem all of our outstanding 6.125% Senior Secured Notes due 2025, including accrued interest and premium thereon, on January 28, 2021.
The 5.75% Senior Secured Notes pay interest on a semi-annual basis at a rate
of 5.75% per year and mature on the earlier of February 1, 2029 and the date that is 91 days before the final stated maturity date of our 10.5% Senior Notes due 2026 (“10.5% Senior Notes”) if such 10.5% Senior Notes have not been repurchased and cancelled or refinanced by such date. Prior to February 1, 2024, we may redeem some or all of the 5.75% Senior Secured Notes at any time at a make-whole redemption price. On or after February 1, 2024, we may redeem some or all of the 5.75% Senior Secured Notes at a premium that will decline over time, plus accrued and unpaid interest, if any, to the redemption date. In addition, any time prior to February 1, 2024, we may redeem up to 40% of the aggregate outstanding amount of the 5.75% Senior Secured Notes with the net proceeds
of certain equity offerings at 105.75% of the aggregate principal amount of the 5.75% Senior Secured Notes, plus accrued and unpaid interest, if any, to the redemption date, if at least 60% of the aggregate principal amount of the 5.75% Senior Secured Notes originally issued remains outstanding after such redemption, and the redemption occurs within 90 days of the closing of such equity offering. In the event of a change of control, as defined in the indenture governing the 5.75% Senior Secured Notes (the “2029 Indenture”), each holder of the 5.75% Senior Secured Notes may require us to repurchase some or all of our 5.75% Senior Secured Notes at a repurchase price equal to 101% of their aggregate principal amount plus accrued and unpaid interest, if any, to the date of purchase. If we sell
certain assets and do not apply the proceeds as required pursuant to the 2029 Indenture, we must offer to repurchase the 5.75% Senior Secured Notes at the prices listed in the 2029 Indenture.
The 5.75% Senior Secured Notes are fully and unconditionally guaranteed, subject to certain customary automatic release provisions, on a joint and several basis by all of our wholly-owned domestic subsidiaries that are engaged in the conduct of our cigarette businesses, which subsidiaries, as of the issuance date of the 5.75% Senior Secured Notes, were also guarantors under our outstanding
10.5% Senior Notes. The 5.75% Senior Secured Notes are not guaranteed by New Valley LLC, or any of our subsidiaries engaged in our real estate business conducted through our subsidiary, New Valley LLC. The guarantees provided by certain of the guarantors are secured by first priority or second priority security interests in certain collateral of such guarantors pursuant to security and pledge agreements, subject to certain permitted liens and exceptions as further described in the 2029 Indenture and the security documents relating thereto. Vector Group Ltd. does not provide any security for the 5.75% Senior Secured Notes.
The 2029 Indenture contains covenants that
restrict the payment of dividends if our consolidated earnings before interest, taxes, depreciation and amortization (“Consolidated EBITDA”), as defined in the 2029 Indenture, for the most recently ended four full quarters is less than $75,000. The 2029 Indenture also restricts the incurrence of debt if our Leverage Ratio and our Secured Leverage Ratio, each as defined in the 2029 Indenture, exceed 3.0 to 1.0 and 1.5 to 1.0, respectively. Our Leverage Ratio is defined in the 2029 Indenture as the ratio of our and our guaranteeing subsidiaries’
total debt less the fair market value of our cash, investment securities and long-term investments to Consolidated EBITDA, as defined in the 2029 Indenture. Our Secured Leverage Ratio is defined in the 2029 Indenture in the same manner as the Leverage Ratio, except that secured indebtedness is substituted for indebtedness. The following table summarizes the requirements of these financial tests and the extent to which we satisfied these requirements as of March 31, 2023.
As of March 31, 2023, we were in compliance with all debt covenants related to the 2029 Indenture.
10.5% Senior Notes due 2026. In 2018 and 2019, we sold $325,000 and $230,000, respectively, in aggregate principal amount of our 10.5% Senior Notes to qualified institutional buyers and non-U.S. persons pursuant to the exemptions from the registration requirements of the Securities Act contained in
Rule 144A and Regulation S thereunder. The 10.5% Senior Notes were fully and unconditionally guaranteed subject to certain customary automatic release provisions on a joint and several basis by all of our wholly-owned domestic subsidiaries that are engaged in the conduct of our cigarette businesses.
The 10.5% Senior Notes pay interest on a semi-annual basis at a rate of 10.5% per year and mature on November 1, 2026. We may presently redeem such bonds at price of 102.625%, as of November 1, 2022, and 100% on November 1, 2023. In addition, in the event of a change of control, as defined in the indenture
governing the 10.5% Senior Notes (the “2026 Indenture”), each holder of the 10.5% Senior Notes may require us to make an offer to repurchase some or all of our 10.5% Senior Notes at a repurchase price equal to 101% of their aggregate principal amount plus accrued and unpaid interest, if any, to the date of purchase. If we sell certain assets and do not apply the proceeds as required pursuant to the 2026 Indenture, we must offer to repurchase the 10.5% Senior Notes at the prices listed in the 2026 Indenture.
The indenture governing our 10.5% Senior Notes contains covenants
that restrict the payment of dividends and certain other distributions subject to certain exceptions, including exceptions for (1) dividends and other distributions in an amount up to 50% of our consolidated net income, plus certain specified proceeds received by us, if no event of default has occurred, and we are in compliance with a Fixed Charge Coverage Ratio (as defined in the indenture to our 10.5% Senior Notes) of at least 2.0 to 1.0, and (2) dividends and other distributions in an unlimited amount, if no event of default has occurred and we are in compliance with a Net Leverage Ratio (as defined in the indenture to our 10.5% Senior Notes) no greater than 4.0 to 1.0. As a result, absent an event of default, we can pay dividends if the Net Leverage ratio is below 4.0 to 1.0, regardless of
the value of the Fixed Charge Coverage Ratio at the time. The indenture to our 10.5% Senior Notes also restricts our ability to incur debt if our Fixed Charge Coverage Ratio is less than 2.0 to 1.0, and restricts our ability to secure debt to the extent doing so would cause our Secured Leverage Ratio (as defined in the indenture to our 10.5% Senior Notes) to exceed 3.75 to 1.0, unless our 10.5% Senior Notes are secured on an equal and ratable basis. Our Fixed Charge Coverage Ratio is defined in the indenture to our 10.5% Senior Notes as the ratio of our Consolidated EBITDA to our Fixed Charges (each as defined in the indenture
to our 10.5% Senior Notes). Our Net Leverage Ratio is defined in the indenture as the ratio of our and our guaranteeing subsidiaries’ total debt less our cash, cash equivalents, and the fair market value of our investment securities, long-term investments, investments in real estate, net, and investments in real estate ventures, to Consolidated EBITDA, as defined in the indenture to our 10.5% Senior Notes. Our Secured Leverage Ratio is defined in the indenture to our 10.5% Senior Notes as the ratio of our and our guaranteeing subsidiaries’
total secured debt to Consolidated EBITDA, as defined in the indenture to our 10.5% Senior Notes.
The following table summarizes the requirements of these financial tests and the extent to which we satisfied these requirements as of March 31, 2023.
As of March 31, 2023, we were in compliance with all of the debt covenants related to the 2026 Indenture.
During the three months ended
March 31, 2023, we repurchased in the market $6,660 in aggregate principal amount of our 10.5% Senior Notes. In April 2023, the Company repurchased in the market $1,692 in aggregate principal amount of its 10.5%
41
Senior Notes. In September 2022, we repurchased in the market $12,865 in aggregate principal amount of our 10.5% Senior Notes. All the repurchased 10.5% Senior Notes have been retired.
Guarantor Summarized Financial Information. Vector Group Ltd. (the “Issuer”) and its wholly-owned domestic subsidiaries
that are engaged in the conduct of its cigarette business (the “Subsidiary Guarantors”) have filed a shelf registration statement for the offering of debt and equity securities on a delayed or continuous basis and we are including this condensed consolidating financial information in connection therewith. Any such debt securities may be issued by us and guaranteed by our Subsidiary Guarantors. New Valley and any of its subsidiaries (the “Nonguarantor Subsidiaries”) will not guarantee any such debt securities. Both the Subsidiary Guarantors and the Nonguarantor Subsidiaries are wholly-owned by the Issuer. The Condensed Consolidating Balance Sheet as of March 31,
2023 and the related Condensed Consolidating Statements of Operations for the three months ended March 31, 2023 of the Issuer, Subsidiary Guarantors and Nonguarantor Subsidiaries are set forth in Exhibit 99.2.
Presented herein are the Summarized Combined Balance Sheets as of March 31, 2023 and December 31, 2022 and the related Summarized Combined Statements of Operations for the three months ended March 31, 2023 for the Issuer and the Subsidiary Guarantors (collectively, the “Obligor Group”). The summarized combined financial information is presented
after the elimination of: (i) intercompany transactions and balances among the Obligor Group, and (ii) equity in earnings from and investments in the Nonguarantor Subsidiaries.
LiggettCredit Facility. As of March 31, 2023, there was no outstanding balance under the Credit Agreement. Availability as determined under the Credit Agreement was approximately $84,500 based on eligible collateral at March 31,
2023. At March 31, 2023, Liggett was in compliance with all covenants under the Credit Agreement; Liggett’s EBITDA, as defined, were $353,891 for the last twelve months ended March 31, 2023. On May 8, 2023, Liggett, Maple and Vector Tobacco amended the Credit Agreement to replace LIBOR with SOFR as the applicable reference rate and to reduce the unused line fee. Following the amendment, loans under the Credit Agreement will bear interest at a rate equal to, at the borrower’s option, (a) the base rate (which is the highest of (i) 0%, (ii) the federal funds rate plus 0.50%, (iii) the prime rate of Wells Fargo or (iv) Term SOFR for a one month interest period), (b) Term SOFR for the applicable interest period plus 2.25% or (c) Daily Simple SOFR plus 2.25%. The amendment also reduced the unused line fee applicable to the
average undrawn commitments to 0.25%, regardless of the amount borrowed under the facility. The amendment to the Credit Agreement is being filed as an exhibit to this Quarterly Report on Form 10-Q and the summary above is qualified in all respects by the full language of the amendment.
42
Anticipated Liquidity Obligations. We and our subsidiaries have significant indebtedness and debt service obligations. As of March 31, 2023, we and our subsidiaries had total outstanding indebtedness of approximately
$1,410,500. Of this amount, $875,000 comprised the outstanding amount under our 5.75% Senior Secured Notes due 2029, and $535,475 comprised the outstanding amount under our 10.5% Senior Notes due 2026. There is a risk that we will not be able to generate sufficient funds to repay our debt. If we cannot service our fixed charges, it would have a material adverse effect on our business and results of operations.
We believe that our cigarette operations are a positive cash-flow-generating unit and will continue to be able to sustain its operations without any significant liquidity concerns. We had cash and cash equivalents of approximately $281,900, investment securities at fair value of approximately $107,000, long-term investments with an estimated value of approximately $45,100, and availability under Liggett’s credit facility of approximately $84,500 at March 31, 2023. We
currently anticipate that these amounts, as well as expected cash flows from our operations, proceeds from public and/or private debt and equity financing to the extent available, management fees and other payments from subsidiaries should be sufficient to meet our liquidity needs over the next 12 months.
We continue to evaluate our capital structure and current market conditions related to our capital structure. During the three months ended March 31, 2023, we repurchased in the market $6,660 in aggregate principal amount of our 10.5% Senior Notes for a purchase price of $6,693. In April 2023, the Company repurchased in the market $1,692 in aggregate principal amount of its 10.5% Senior Notes for a purchase
price of $1,705. The Senior Notes that were repurchased have been retired. Depending on market conditions, we may utilize our cash, investment securities and long-term investments to repurchase additional amounts of our 10.5% Senior Notes due 2026 in open-market purchases or privately negotiated transactions.
Furthermore, we may access the capital markets to refinance our 10.5% Senior Notes due 2026. As of November 1, 2022, we can presently redeem such bonds at price of 102.625% and the redemption price declines to 100% on November 1, 2023. There can be no assurance that we would be able to continue to issue debt at a lower interest rate than our historical borrowing levels in the future and if we pursue any capital markets activities, our ability to complete any debt or equity offering would be subject to market conditions.
We
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 our liquidity otherwise available.
Off-Balance Sheet Arrangements
We have various agreements in which we may be obligated to indemnify the other party with respect to certain matters. Generally, these indemnification clauses are included in contracts arising in the normal course of business under which we customarily agree to hold the other party harmless against losses arising from a breach of representations related to such matters as title to assets sold and licensed or certain intellectual property rights. Further, our obligations under these arrangements may be limited in terms of
time and/or amount, and in some instances, we may have recourse against third parties for certain payments made by us. It is not possible to predict the maximum potential amount of future payments under these indemnification agreements due to the conditional nature of our obligations and the unique facts of each particular agreement. Historically, payments made by us under these agreements have not been material. As of March 31, 2023, we were not aware of any indemnification agreements that would or are reasonably expected to have a current or future material adverse impact on our financial position, results of operations or cash flows.
We have a leaf inventory management program whereby, among other things, we are committed to purchase certain quantities of leaf tobacco. The purchase commitments are for quantities not exceeding anticipated requirements and are at prices, including
carrying costs, established at the commitment date. At March 31, 2023, Liggett had tobacco purchase commitments of approximately $7,305. We have a single source supply agreement for reduced ignition propensity cigarette paper through 2025.
Future machinery and equipment purchase commitments at Liggett were $7,448, including $3,904 for factory modernization at March 31, 2023.
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. Our market risk management procedures cover all market risk sensitive financial instruments.
43
As of March 31, 2023, there was no outstanding balance on the Liggett Credit Facility which also has variable interest rates. As of March 31, 2023, we had no interest rate caps or swaps. Based on a hypothetical 100 basis point increase or decline in interest rates (1%), our annual interest expense could increase or decline by approximately $0.
We held debt securities available for sale totaling $71,624 as of March 31,
2023. See Note 4 to our condensed consolidated financial statements. Adverse market conditions could have a significant impact on the value of these investments.
On a quarterly basis, we evaluate our debt securities available for sale and equity securities without readily determinable fair values that do not qualify for the NAV practical expedient to determine whether an impairment has occurred. If so, we also determine if such impairment is considered temporary or other-than-temporary. We believe that the assessment of temporary or other-than-temporary impairment is facts-and-circumstances driven. The impairment indicators that are taken into consideration as part of our analysis include (a) a significant deterioration in the earnings performance, credit rating, asset quality, or business prospects of the investee, (b) a significant adverse change in the regulatory, economic, or technological environment of the investee,
(c) a significant adverse change in the general market condition of either the geographical area or the industry in which the investee operates, and (d) factors that raise significant concerns about the investee’s ability to continue as a going concern, such as negative cash flows from operations, working capital deficiencies, or noncompliance with statutory capital requirements or debt covenants.
Equity Security Price Risk
As of March 31, 2023, we held various investments in equity securities with a total fair value of $64,588, of which $35,411 represents equity securities at fair value and $29,177 represents long-term investment securities at fair value. The latter securities represent long-term investments in various investment partnerships. These investments
are illiquid and their ultimate realization is subject to the performance of the underlying entities. See Note 4 to our condensed consolidated financial statements, respectively, for more details on equity securities at fair value and long-term investment securities at fair value. The impact to our condensed consolidated statements of operations related to equity securities fluctuates based on changes in their fair value.
We record changes in the fair value of equity securities in net income. To the extent that we continue to hold equity securities, our operating results may fluctuate significantly. Based on our equity securities held as of March 31, 2023, a hypothetical decrease of 10% in the price of these equity securities would reduce the fair value of the investments and, accordingly, our net income by approximately $6,459.
New
Accounting Pronouncements
Refer to Note 1, Summary of Significant Accounting Policies, to our financial statements for further information on New Accounting Pronouncements.
Legislation and Regulation
There are no material changes from the Legislation and Regulation section set forth inItem 7,“Management's Discussion and Analysis of Financial Condition and Results of Operations,” of our Annual Report on Form 10-K for the year ended December 31,
2022.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
In addition to historical information, this report contains “forward-looking statements” within the meaning of the federal securities law. Forward-looking statements include information relating to our intent, belief or current expectations, primarily with respect to, but not limited to:
•economic outlook,
•capital expenditures,
•cost reduction,
•competition,
•legislation and regulations,
•cash flows,
44
•operating
performance,
•litigation, and
•related industry developments (including trends affecting our business, financial condition and results of operations).
We identify forward-looking statements in this report by using words or phrases such as “anticipate,”“believe,”“continue,”“could,”“estimate,”“expect,”“intend,”“may be,”“objective,”“opportunistically,”“plan,”“potential,”“predict,”“project,”“prospects,”“seek,” or “will be” and similar words or phrases or their negatives.
The forward-looking information involves important risks and uncertainties that could cause our actual results, performance or achievements to differ
materially from our anticipated results, performance or achievements expressed or implied by the forward-looking statements. Factors that could cause actual results to differ materially from those suggested by the forward-looking statements include, without limitation, the following:
•general economic and market conditions and any changes therein, due to acts of war and terrorism or otherwise;
•impact of business combinations, including acquisitions and divestitures, both internally for us and externally in the tobacco industry;
•uncertainty related to product liability and other tobacco-related litigations including the Engle progeny cases pending in Florida and other individual and class action cases where certain
plaintiffs have alleged compensatory and punitive damage amounts ranging into the hundreds of million and even billions of dollars;
•governmental regulations and policies;
•adverse changes in global, national, regional and local economic and market conditions, including those related to pandemics and health crises;
•significant changes in the price, availability or quality of tobacco, other raw materials or component parts;
•impact of legislation on our results of operations and product costs, i.e., the impact of federal legislation providing for regulation of tobacco products by FDA;
•impact of substantial increases in federal,
state and local excise taxes;
•potential additional payment obligations for us under the MSA and other settlement agreements with the states;
•significant changes or disruptions to our supply or distribution chains or in the price, availability or quality of tobacco, other raw materials or component parts;
•potential dilution to our holders of or common stock as a result of issuances of additional shares of common stock to fund our financial obligations and other financing activities;
•effects of industry competition;
•the impacts of the tax deductibility of interest expense and the impact of the markets on our Real Estate segment;
•the
impacts of future income tax legislation in the U.S., including the impact of the markets on our Real Estate segment;
•failure to properly use and protect customer and employee information and data; and
•the effect of a material breach of security or other performance issues of any of our or our vendors’ systems.
Further information on the risks and uncertainties to our business includes the risk factors discussed above in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and under Item 1A, “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2022
filed with the Securities and Exchange Commission.
Although we believe the expectations reflected in these forward-looking statements are based on reasonable assumptions, there is a risk that these expectations will not be attained and that any deviations will be material. The forward-looking statements speak only as of the date they are made.
45
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
Evaluation of Disclosure 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 their evaluation, our principal executive officer and principal financial officer have concluded that these controls and procedures are effective.
Changes in Internal Control over Financial Reporting
There have not been any changes in our internal control over financial reporting that occurred during the first quarter of 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
46
PART
II
OTHER INFORMATION
Item 1. Legal Proceedings
Reference is made to Note 7, incorporated herein by reference, to our condensed consolidated financial statements included elsewhere in this report which contains a general description of certain legal proceedings to which our company, or its subsidiaries are a party and certain related matters. Reference is also made to Exhibit
99.1 for additional information regarding the pending smoking-related legal proceedings to which either Liggett or us is a party. A copy of Exhibit 99.1 will be furnished without charge upon written request to us at our principal executive offices, 4400 Biscayne Boulevard, 10th Floor, Miami, Florida33137, Attn. Investor Relations.
Item 1A. Risk Factors
There
are no material changes from the risk factors set forth in Part I, Item 1A, “Risk Factors,” of our Annual Report on Form 10-K for the year ended December 31, 2022, except as set forth below:
Our liquidity could be adversely affected by conditions in the financial markets or the negative performance of financial institutions.
Our available cash and cash equivalents are held in accounts with or managed by financial institutions and consist of cash in our operating accounts and cash and cash equivalents invested in money market funds. The amount of cash in our operating accounts exceeds the Federal Deposit Insurance Corporation (“FDIC”) insurance limits. While we monitor our accounts regularly and adjust our balances as appropriate, the valuation of or
our access to these accounts could be negatively impacted if the underlying financial institutions fail or become subject to other adverse conditions in the financial markets. The operations of U.S. and global financial services institutions are interconnected and the performance and financial strength of specific institutions are subject to rapid change, the timing and extent of which cannot be known. To date, we have experienced no material realized losses on or lack of access to our cash held in operating accounts or our invested cash or cash equivalents, however, we can provide no assurances that access to our cash held in operating accounts or our invested cash and cash equivalents will not be impacted by adverse conditions in the financial markets or the negative performance of financial institutions. Any material loss that we may experience in the future or inability for a material time period to access our cash and cash equivalents could have an adverse effect
on our ability to pay our operational expenses or make other payments, which could adversely affect our business.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
No equity securities of ours which were not registered under the Securities Act have been issued or sold by us during the three months ended March 31, 2023.
Issuer Purchase of Equity Securities
Our
purchases of our common stock during the three months ended March 31, 2023 were as follows:
Period
Total Number of Shares Purchased
Average Price Paid per Share
Total
Number of Shares Purchased as Part of Publicly Announced Plans or Programs
Maximum Number of Shares that May Yet Be Purchased Under the Plans or Programs
(1) Delivery
of shares to us in payment of exercise price and tax withholding in connection with stock option exercises by employees. The shares were immediately canceled.
(2) Represents withholdings of shares as payment of payroll tax liabilities incident to the vesting of certain employees’ shares of restricted stock. The shares purchased were immediately canceled.
Third
Amended and Restated Credit Agreement, dated as of January 14, 2015, among Liggett Group LLC, 100 Maple LLC, and, upon its accession thereto pursuant to Amendment No. 5 and Joinder, Vector Tobacco LLC, the lenders party thereto from time to time and Wells Fargo Bank, National Association, as administrative and collateral agent, as amended by Amendment No. 1 to Third Amended and Restated Credit Agreement, dated as of January 27, 2017, Amendment No. 2 to Third Amended and Restated Credit Agreement, dated as of October 30, 2018, Amendment No. 3 to Third Amended and Restated Credit Agreement, dated as of October 31, 2019, Amendment No. 4 and Joinder to Third Amended and Restated Credit Agreement, dated as of March 22, 2021,
and Amendment No. 5 and Joinder to Third Amended and Restated Credit Agreement, dated as of May 8, 2023.
Amendment to Letter Agreement, dated as of February 18, 2020, by and among Ronald J. Bernstein, Liggett Vector Brands LLC, Vector Group Ltd (incorporated by reference to Exhibit 10.1 of Vector’s Form 10-K/A for the year ended December 31, 2022).
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.
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.
Certifications of Chief Executive Officer and Chief Financial Officer, Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Condensed
Consolidating Financial Statements of Vector Group Ltd.
101.INS
XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.
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.
