VGR Vector Group Ltd

 

Exhibit (a)(1)(F)

 

This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made only by the Offer to Purchase dated September 4, 2024, and the related Letter of Transmittal and Notice of Guaranteed Delivery (each as defined below) and any amendments, supplements or other modifications to such documents, and is being made to all holders of Shares. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Merger Sub (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Merger Sub.

 

Notice of Offer to Purchase

 

All Outstanding Shares of Common Stock
of

 

VECTOR GROUP LTD.

 

at

 

$15.00 per share in cash

 

by

 

VAPOR MERGER SUB INC.

 

a wholly owned subsidiary of

 

JTI (US) HOLDING INC.

 

an indirect wholly owned subsidiary of

 

JT INTERNATIONAL HOLDING B.V.

 

Vapor Merger Sub Inc., a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of JTI (US) Holding Inc., a Delaware corporation (“Parent”), is offering to purchase all of the outstanding shares of common stock, par value $0.10 per share (the “Shares”), of Vector Group Ltd., a Delaware corporation (the “Company”), in exchange for $15.00 per Share in cash, subject to applicable withholding taxes and without interest (the “Offer Price”), on the terms and subject to the conditions set forth in the Offer to Purchase (as it may be amended, supplemented or otherwise modified from time to time, the “Offer to Purchase”) and in the related Letter of Transmittal (as it may be amended, supplemented or otherwise modified from time to time, the “Letter of Transmittal”) and the related Notice of Guaranteed Delivery (as it may be amended, supplemented or otherwise modified from time to time, the “Notice of Guaranteed Delivery”) (which three documents, together with other related materials, collectively constitute the “Offer”), including the Minimum Condition (as such term is defined in the Offer to Purchase).

 

Tendering stockholders who are record owners of their Shares and who tender directly to Equiniti Trust Company, LLC (the “Depository”) will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Merger Sub pursuant to the Offer. Stockholders who hold their Shares through a broker, banker, or other nominee should consult such institution as to whether it charges any service fees or commissions.

 

 

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M., NEW YORK CITY TIME, ON OCTOBER 1, 2024, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.

 

The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of August 21, 2024 (as it may be amended, supplemented or otherwise modified from time to time, the “Merger Agreement”), by and among the Company, Parent and Merger Sub, pursuant to which, as soon as practicable following (but in any event no later than one business day after) the consummation of the Offer, subject to the satisfaction or waiver of the No Legal Prohibition Condition (as defined below), Merger Sub will merge with and into the Company (the “Merger”), and the Company will survive the Merger (the “Surviving Corporation”) as a wholly owned subsidiary of Parent, on the terms and subject to the conditions set forth in the Merger Agreement. If Merger Sub consummates the Offer, the Merger Agreement contemplates that the parties will effect the closing of the Merger without a vote of the stockholders of the Company in accordance with Section 251(h) of the Delaware General Corporation Law (the “DGCL”) as soon as practicable following the consummation of the Offer, subject to the satisfaction or the condition that no governmental authority of competent and applicable jurisdiction will have enacted, issued or promulgated any law or issued or granted any order that is in effect as of immediately prior to the Effective Time and has the effect of (a) making the Merger illegal or (b) prohibiting or otherwise preventing the consummation of the Merger (the “No Legal Prohibition Condition”).

 

At the effective time of the Merger (being the time and day of the filing of the certificate of merger with the Secretary of State of the State of Delaware or at such later time and date as may be agreed in writing by Parent and the Company and specified in the certificate of merger in accordance with the DGCL, the “Effective Time”), each Share issued and outstanding immediately prior to the Effective Time (excluding (a) Shares owned by Parent, Merger Sub or the Company (or held in the Company’s treasury), or by any direct or indirect wholly owned subsidiary of Parent, Merger Sub or the Company, in each case, immediately prior to the Effective Time, (b) any Shares irrevocably accepted for payment pursuant to the Offer, (c) any Shares held by stockholders who are entitled to demand, and who shall have properly and validly demanded their statutory rights of appraisal in respect of such Shares in compliance with Section 262 of the DGCL) and (d) any Shares subject to Company Restricted Share Awards (as defined below) shall be canceled and extinguished and automatically converted into the right to receive the Offer Price (the “Merger Consideration”), without interest thereon and subject to any applicable withholding tax. As a result of the Merger, the Company will cease to be a publicly traded company and will become a wholly owned subsidiary of Parent.

 

Pursuant to the terms of the Merger Agreement, at the Effective Time, (i) each stock option to purchase Shares (each, a “Company Option”) with a per Share exercise price less than $15.00 (each, an “In-the-Money Option”) that is outstanding and unexercised as of immediately prior to the Effective Time, whether vested or unvested, will be canceled and converted into the right to receive, subject to the terms and conditions of the Merger Agreement, an amount in cash (without interest) equal to the product of (a) the aggregate number of Shares subject to such In-the-Money Option immediately prior to the Effective Time, and (b) the excess, if any, of (1) the Merger Consideration over (2) the per Share exercise price of such In-the-Money Option, and (ii) each Company Option with a per Share exercise price equal to or greater than $15.00 (each, an “Out-of-the-Money Option”) that is outstanding and unexercised as of immediately prior to the Effective Time, whether vested or unvested, will be canceled for no consideration. The amounts described in this paragraph are referred to as the “Option Consideration.”

 

Pursuant to the terms of the Merger Agreement, at the Effective Time, (i) except as set forth in clause (iii) below, each award of Shares that is subject to a transfer restriction, repurchase option or obligation, risk of forfeiture or other condition, excluding any Company PRSA (as defined below) (each, a “Company TRSA”) that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be canceled and converted into the right to receive, subject to the terms of the Merger Agreement, an amount in cash (without interest) equal to the product of (a) the aggregate number of Shares subject to such Company TRSA immediately prior to the Effective Time and (b) the Merger Consideration, together with any accrued and unpaid dividends corresponding to the Shares subject to such Company TRSA immediately prior to the Effective Time (to the extent provided under the applicable award agreement), (ii) each award of Shares that is subject to a performance-based transfer restriction, performance-based repurchase option or obligation, performance-based risk of forfeiture or other performance-based condition, excluding any Company TRSA (each, a “Company PRSA”, and, together with the Company TRSAs, the “Company Restricted Share Awards”) that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be canceled and converted into the right to receive, subject to the terms of the Merger Agreement, an amount in cash (without interest) equal to the product of (a) the aggregate number of Shares subject to such Company PRSA immediately prior to the Effective Time (based on the full number of Shares subject to such Company PRSA) and (b) the Merger Consideration, together with any accrued and unpaid dividends corresponding to the Shares subject to such Company PRSA immediately prior to the Effective Time (to the extent provided under the applicable award agreement), and (iii) notwithstanding the foregoing clause (i), each Company TRSA granted in 2025 (if any) that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be canceled and converted into the right to receive, subject to the terms of the Merger Agreement, an amount in cash (without interest) equal to the product of (a) a prorated amount of the Shares subject to such Company TRSA immediately prior to the Effective Time (determined based on the number of full months of the four-year vesting period for such Company TRSA that has elapsed through the date on which the Effective Time occurs) and (b) the Merger Consideration. The amounts described in this paragraph are referred to as the “TRSA/PRSA Consideration.”

 

 

The Offer is subject to the conditions set forth in Section 15 of the Offer to Purchase (collectively, the “Offer Conditions”), including (i) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) (and any extension thereof) applicable to the transactions contemplated by the Merger Agreement and any voluntary agreements with the U.S. Federal Trade Commission (“FTC”) or the U.S. Department of Justice (“DOJ”) not to consummate the Offer or the Merger and obtaining all required Consents applicable to the Offer, the Merger and the other transactions contemplated by the Merger Agreement (the “Transactions”) under the Law on Protection of Competition (Zakon o zastiti konkurencije “Official Gazette of the RS”, no. 51/2009 and 95/2013) of the Republic of Serbia (“Foreign Antitrust Law” and, together with the HSR Act, the “Antitrust Laws”) (such condition, the “Antitrust Clearance Condition”), (ii) no governmental authority of competent jurisdiction having brought any legal proceedings under any Antitrust Laws which remain pending and which seek to make illegal, prohibit or otherwise prevent the consummation of the Offer, the acquisition of the Shares by Parent or Merger Sub or the Merger (the “No Antitrust Proceedings Condition”), (iii) there having been validly tendered and not validly withdrawn in accordance with the terms of the Offer, and “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL), a number of Shares that, together with the other Shares then owned by Parent, Merger Sub and their respective affiliates (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL)) represents at least one more Share than 50% of the total number of outstanding Shares as of immediately prior to the expiration of the Offer (the “Minimum Condition”) and (iv) no governmental authority of competent and applicable jurisdiction having (A) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the Offer, the acquisition of Shares by Parent or Merger Sub, or the Merger illegal or having the effect of prohibiting or otherwise preventing the consummation of the Offer, the acquisition of Shares by Parent or Merger Sub, or the Merger, or (B) issued or granted any order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the Offer or the Merger illegal or that has the effect of prohibiting or otherwise preventing the consummation of the Merger (the “No Legal Restraint Condition”). The Offer is not subject to any financing condition.

 

The term “Expiration Time” means one minute after 11:59 p.m., New York City time, on October 1, 2024, unless the Offer is extended pursuant to and in accordance with the Merger Agreement. In the event that the Offer is extended pursuant to and in accordance with the Merger Agreement, then the term “Expiration Time” means such subsequent time.

 

The board of directors of the Company has unanimously (1) determined that the Merger Agreement and the Transactions are fair to, and in the best interests of the Company and its stockholders, (2) declared it advisable for the Company to enter into the Merger Agreement and consummate the Transactions, (3) authorized and approved the execution and delivery by the Company of the Merger Agreement, the performance by the Company of its covenants and agreements contained therein and the consummation of the Transactions upon the terms and subject to the conditions contained in the Merger Agreement, (4) resolved that the Merger shall be governed and effected under Section 251(h) of the DGCL and be effected without a vote of the Company’s stockholders and (5) resolved, subject to the terms and conditions set forth in the Merger Agreement, to recommend that the holders of the Shares accept the Offer and tender their Shares to Merger Sub pursuant to the Offer.

 

 

The Merger Agreement contains provisions that govern the circumstances under which Merger Sub is required or permitted to extend the Offer. Specifically, the Merger Agreement provides that:

 

·

Merger Sub shall extend the Offer for the minimum period required by any applicable law or order or any rule, regulation, interpretation or position of the SEC or its staff or NYSE or as may be necessary to resolve any comments of the SEC or NYSE or the staff of the SEC or NYSE, in each case, as applicable to the Offer, the Schedule 14D-9 or the Offer Documents;

 

·

if, as of any then-scheduled Expiration Time, any Offer Condition is not satisfied and has not been waived by Parent or Merger Sub (if permitted by the Merger Agreement), Merger Sub may (and, if requested by the Company, Merger Sub shall and Parent shall cause Merger Sub to) extend the Offer for one or more successive extension periods of up to ten business days each (or any longer period as may be agreed in writing by Parent and the Company) in order to permit the satisfaction of all of the conditions to the Offer; however, if the sole then-unsatisfied condition to the Offer is the Minimum Condition, Merger Sub may (and if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer for one or more successive extension periods of ten business days each (or any longer period as may be agreed in writing by Parent and the Company), but Merger Sub shall not be required to extend the Offer for more than two occasions in consecutive periods of ten business days, but may, in its sole discretion, elect to do so; and

 

·

neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to the then scheduled expiration of the Offer unless the Merger Agreement is validly terminated, in which case Merger Sub shall (and Parent shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one business day) after termination of the Merger Agreement.

 

The Merger Agreement provides that Parent and Merger Sub are not required to extend the Offer beyond the Termination Date. The “Termination Date” means August 21, 2025, unless otherwise extended to November 19, 2025 or February 17, 2026, in each case, pursuant to the terms of the Merger Agreement.

 

If the Offer is consummated, Parent and Merger Sub are not required to and will not seek the approval of the Company’s remaining stockholders before effecting the Merger.

 

Parent and Merger Sub expressly reserve the right, at any time and from time to time, to waive, in whole or in part, any of the conditions to the Offer, to make any change in the terms of or conditions to the Offer in a manner consistent with the terms of the Merger Agreement or to increase the Offer Price, except that, without the prior written consent of the Company, Parent and Merger Sub may not: (1) waive or modify certain conditions to the offer, including the Minimum Condition, the No Legal Restraint Condition, the No Antitrust Proceedings Condition or the Termination Condition; (2) make any change in the terms of or conditions to the Offer that (A) changes the form of consideration to be paid in the Offer; (B) decreases the Offer Price or the number of Shares sought in the Offer; (C) extends the Offer or the Expiration Time or terminates the Offer (except as permitted or required by the Merger Agreement); (D) imposes conditions or requirements on the Offer other than the Offer Conditions; or (E) amends any term or condition of the Offer in any manner that would reasonably be expected to materially and adversely affect the Company stockholders (as a group and in their capacity as such) or would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions; or (3) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.

 

Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by a public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date of the Offer.

 

Stockholders wishing to tender their shares must follow the procedures set forth in Section 3 of the Offer to Purchase and in the Letter of Transmittal. Stockholders wishing to tender their shares but who are unable to deliver them physically or by book-entry transfer prior to the Expiration Time, or who are unable to make delivery of all required documents to the Depository prior to the Expiration Time, may tender their shares by complying with the procedures set forth in Section 3 of the Offer to Purchase for tendering by Notice of Guaranteed Delivery.

 

 

For purposes of the Offer, Merger Sub will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered to Merger Sub and not validly withdrawn as, if and when Merger Sub gives oral or written notice to the Depository of its acceptance for payment of such Shares pursuant to the Offer. On the terms and subject to the conditions of the Offer, payment for the Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with the Depository, which will act as agent for tendering stockholders for the purpose of receiving payments from Merger Sub and transmitting such payments to tendering stockholders whose Shares have been accepted for payment. If Merger Sub extends the Offer, is delayed in its acceptance for payment of Shares or is unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to Merger Sub’s rights under the Offer and the Merger Agreement, the Depository may retain tendered Shares on Merger Sub’s behalf, and such Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described in Section 4 of the Offer to Purchase and as otherwise required by Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Under no circumstances will Merger Sub pay interest on the Offer Price for Shares, including by reason of any extension of the Offer or any delay in making such payment.

 

In all cases, Merger Sub will pay for Shares validly tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depository of (1) the certificates evidencing such Shares (the “Share Certificates”), (2) confirmation of a book-entry transfer of such Shares into the Depository’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in Section 3 of the Offer to Purchase with respect to Shares held in “street” name, (3) in the case of Share Certificates, the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees and (4) any other documents required by the Letter of Transmittal or, in the case of a book-entry transfer of Shares held in “street” name, an “agent’s message” in lieu of the Letter of Transmittal and such other documents required by the Letter of Transmittal.

 

Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Time. Thereafter, tenders are irrevocable, except that if Merger Sub has not accepted your Shares for payment within 60 days after commencement of the Offer, you may withdraw them at any time after November 2, 2024, the 60th day after commencement of the Offer, until such time as Merger Sub accepts your Shares for payment.

 

For a withdrawal of Shares to be effective, the Depository must timely receive a written or facsimile transmission notice of withdrawal at one of its addresses set forth on the back cover of the Offer to Purchase. Any notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the names in which the Share Certificates are registered, if different from that of the person who tendered such Shares. The signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedures for book-entry transfer as set forth in Section 3 of the Offer to Purchase any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Shares. If Share Certificates representing the Shares to be withdrawn have been delivered or otherwise identified to the Depository, then, prior to the physical release of such Share Certificates, the name of the registered owners and the serial numbers shown on such Share Certificates must also be furnished to the Depository.

 

Withdrawals of tenders of Shares may not be rescinded and any Shares validly withdrawn will be deemed not validly tendered for purposes of the Offer. Withdrawn Shares may, however, be retendered by following one of the procedures for tendering Shares described in Section 3 of the Offer to Purchase at any time prior to the Expiration Time.

 

The information required to be disclosed by Rule 14d-6(d)(1) under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.

 

The Company has provided Merger Sub with the Company’s stockholder list and security position listings for the purpose of disseminating the Offer to holders of Shares. The Offer to Purchase and related Letter of Transmittal and Notice of Guaranteed Delivery, as well as the Schedule 14D-9, will be mailed to record holders of Shares whose names appear on the Company’s stockholder list and will be furnished for subsequent transmittal to beneficial owners of Shares to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.

 

 

The receipt of cash in exchange for Shares in the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes. See Section 5 of the Offer to Purchase for a more detailed discussion of the material U.S. federal income tax consequences of the Offer and the Merger. You are urged to consult with your own tax advisors to determine the tax consequences to you of tendering your Shares in the Offer or having your Shares exchanged for cash pursuant to the Merger in light of your particular circumstances (including the application and effect of any U.S. federal, state, local or non-U.S. income and other tax laws).

 

The Offer to Purchase and the related Letter of Transmittal and Notice of Guaranteed Delivery contain important information. Stockholders should carefully read both documents in their entirety before any decision is made with respect to the Offer.

 

Questions or requests for assistance may be directed to MacKenzie Partners, Inc. (the “Information Agent”) at the address and telephone numbers set forth below. Requests for copies of the Offer to Purchase and the related Letter of Transmittal may be directed to the Information Agent or to brokers, dealers, commercial banks or trust companies. Such copies will be furnished promptly at Merger Sub’s expense. Merger Sub will not pay any fees or commissions to any broker or dealer or any other person (other than the Information Agent or the Depository) for soliciting tenders of Shares pursuant to the Offer.

 

The Information Agent for the Offer is:

 

 

MacKenzie Partners, Inc.

1407 Broadway, 27^th Floor

New York, New York 10018

 

Stockholders may call toll free:
(800) 322-2885

 

Banks and Brokers may call:
(212) 929-5500

 

September 4, 2024

 

 

 

 

Exhibit (D)(4)

 

April 8, 2024

 

JT International Holding B.V.

Bella Donna 4

1181 RM Amstelveen

The Netherlands

 

Ladies and Gentlemen:

 

You have requested information from Vector Group Ltd. (together with its controlled affiliates, and including any successor thereto, the “Company” or “us”) in connection with your consideration of a possible mutually agreed transaction between us (a “Transaction”). The Company is willing to furnish or otherwise make available such information to you as it so determines in consideration of the covenants set forth in this letter agreement (this

 

“Agreement”).

 

1.             Confidentiality.

 

(a)           You agree to keep confidential and to use only for the purpose of evaluating, negotiating and obtaining debt financing for a Transaction all information that the Company or any of its Representatives (as hereinafter defined) furnishes or otherwise makes available to you or your Representatives, including any technical, scientific or other proprietary information of the Company with which you or your Representatives may come into contact in the course of your investigation, on or after April 3, 2024, and whether oral, written or electronic, together with any reports, analyses, summaries, interpretations, compilations, forecasts, financial statements, memoranda, notes, studies or any other written or electronic materials prepared by or for you or your Representatives that contain, reflect or are based upon or generated from such information (collectively, the “Evaluation Material”); provided, however, that you may disclose Evaluation Material (i) to those of your affiliates and your and such affiliates’ respective officers, directors, employees, accountants, counsel, financial advisors, debt financing sources (as provided below) and consultants (such persons in their capacity as such being generally referred to herein as “Representatives”), in each case, who need to know such information for the purpose of assisting you in your evaluation and pursuit of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in accordance with the terms hereof (it being understood that (x) you will be responsible for any breach of the terms of this Agreement by any of your Representatives and (y) unless otherwise agreed by the Company in writing, only those debt financing sources set forth on Schedule I hereto shall be permitted to be, and treated as, Representatives hereunder), (ii) to the extent that the Company so consents in writing and (iii) as provided in Section 1(d). Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) is or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided that such other source is not known by you after reasonable inquiry to be bound by a confidentiality obligation to the Company or is otherwise prohibited from disclosing the information to you, (B) is or becomes generally available to the public (other than as a result of a breach by you or your Representatives of this Agreement) or (C) is independently developed by you without use of any Evaluation Material. Nothing herein, and no disclosure pursuant hereto, is intended to vest in you any intellectual property rights whatsoever.

 

 

(b)          You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly, disclose to any other person other than your Representatives, (i) the fact that discussions or negotiations may take place, are taking place or have taken place concerning a Transaction or any of the terms or other facts relating thereto, including the status thereof, but not including any Evaluation Material, (ii) the existence or the terms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material (items (i), (ii) and (iii), collectively, “Transaction Information”); provided, however, that you may disclose Transaction Information to the extent required by, and pursuant to, Section 1(d); provided, further, that the requirement to make such disclosure does not arise from your breach of this Agreement. The Company agrees that, prior to entering into a Transaction, neither it nor any of its Representatives will, without your prior written consent, directly or indirectly, disclose to any other person other than its Representatives, any Transaction Information to the extent that such information discloses the identity of you or your affiliates and your evaluation of a Transaction; provided, however, that the Company may disclose such Transaction Information to the extent required by Applicable Law and Legal Process (as hereinafter defined).

 

(c)           It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to Ronald J. Bernstein, Non-Executive Chairman of Liggett Vector Brands and Director of and Senior Advisor to the Company, J. Bryant Kirkland, Senior Vice President, Treasurer & Chief Financial Officer of the Company, Marc N. Bell, Senior Vice President & General Counsel of the Company and such other persons as the Company may notify you in writing from time to time. You also agree that, without the prior express written consent of the Company, you will not (and you will cause your Representatives not to) initiate or maintain contact (except for those contacts, if any, made in the ordinary course of business and wholly unrelated to a Transaction) with any supplier, distributor, customer, officer, director, employee, agent or representative of the Company regarding a Transaction, participation in a Transaction or the Company’s business, operations, prospects or finances.

 

 

(d)           In the event that you or any of your Representatives are required to disclose any Transaction Information or Evaluation Material under applicable law, rule or regulation, or in connection with a judicial or administrative proceeding (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or similar process) (collectively, “Applicable Law and Legal Process”), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You also agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Transaction Information or Evaluation Material you intend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company to the extent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or administrative proceedings referred to above or to otherwise limit such disclosure. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable to allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required as advised by counsel in writing to disclose Transaction Information or Evaluation Material, you will limit such disclosure to that which is legally required and will use reasonable efforts to obtain assurances that confidential treatment will be accorded to any Transaction Information or Evaluation Material that you are so required to disclose, and thereafter you may disclose such information without liability hereunder.

 

(e)           Upon the request of the Company, you will (and you will cause your Representatives to) promptly, at your election, deliver to the Company or destroy all copies of the Evaluation Material without retaining any copy thereof, including, to the extent practicable, expunging all such Evaluation Material from any computer, server, data storage network, software, word processor or other device containing such information. If requested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, (i) your legal department and/or outside counsel may each keep one copy of the Evaluation Material (in electronic or paper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if required by bona fide policies and procedures implemented by such accounting firms in order to comply with Applicable Law and Legal Process, professional standards or reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged by using commercially reasonable efforts. Any and all duties and obligations existing under this Agreement shall remain in full force and effect, notwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your determination to cease to consider a Transaction.

 

2.             No Other Discussions or Arrangements. You represent that, other than as disclosed to the Company in writing, none of (a) you, (b) any of your affiliates or (c) any of your other Representatives that (i) is an officer, director or employee of you or your affiliates or (ii) is taking such action at your or your affiliates’ direction has entered into, directly or indirectly, any agreement, arrangement or understanding, or any discussions that might lead to an agreement, arrangement or understanding, with any person (other than with any of your Representatives) with respect to a Transaction or possible transaction involving any assets or securities of the Company, other than securities in de minimis amounts, (an “Acquisition Transaction”) or that would reasonably be likely to otherwise materially affect such third party’s decisions or actions with respect to an Acquisition Transaction. You agree that neither you nor any of your affiliates or other Representatives will, without the prior written consent of the Company, directly or indirectly, contact any person, other than the Company and its senior officers, counsel and financial advisors, with respect to an Acquisition Transaction, including the provision of financing with respect thereto, or enter into any agreement, arrangement or understanding, or any discussions that might lead to an agreement, arrangement or understanding, with any other person regarding an Acquisition Transaction, including the provision of financing with respect thereto; provided that the foregoing shall not limit you from discussing or entering into agreements with respect to obtaining debt financing for a Transaction with your Representatives that are permitted pursuant to Section 1(a)(y) of this Agreement.

 

 

3.             Standstill. In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period (as defined below), unless the Company’s Board of Directors (or any independent special committee thereof) otherwise so specifically requests in writing in advance, you shall not, and shall cause your directors, officers, employees and affiliates not to (and you and they will not assist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in concert or participate with or encourage other persons to), directly or indirectly, (a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership (within the meaning of Section 13(d)(1) of the Exchange Act) or constructive economic ownership, including through any security, contract right or derivative position the value of which to the “owner” increases with an increase in the value of any equity securities (or other securities derived from the value of any equity securities) of the Company, without regard to any hedge that may have been entered into with respect to such position, but not including any interests or rights set forth in Rule 16a-1(c)(1)-(5) or (7) under the Exchange Act, of any securities of the Company or assets of the Company (other than products sold by the Company and purchased by the acquirer in the ordinary course of business), including rights or options to acquire such ownership, (b) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments or policies or affairs of the Company or any of its affiliates, including by means of a solicitation of proxies (as such terms are defined in Rule 14a-1 under the Exchange Act, disregarding Rule 14a-1(l)(2)(iv) thereunder, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act), contacting any person relating to any of the matters set forth in this Agreement or seeking to influence, advise or direct the vote of any holder of voting securities of the Company or its affiliates or making a request to amend or waive this provision or any other provision of this Section 3 or of Section 1 or Section 2 or (c) make any public disclosure, or take any action that could be reasonably likely to require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the Company that you and your affiliates (other than individuals in their individual accounts and in de minimis amounts) do not beneficially own (within the meaning of Section 13(d)(1) of the Exchange Act or have constructive beneficial ownership (within the meaning of this Section 3) of any securities of the Company. For purposes of this Agreement, “Standstill Period” means the period commencing on the date hereof and ending on the earlier of (x) 18 months from the date of this Agreement or (y) upon the earliest to occur of: (i) any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) having entered into and announced a definitive agreement with the Company or any of its affiliates to acquire (by merger or otherwise) more than 40% of the outstanding voting securities of the Company or more than 40% of the consolidated total assets of the Company and its subsidiaries; or (ii) any person commencing a tender offer or exchange offer that, if consummated, would make such person (or any of its affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of more than 40% of the outstanding voting securities of the Company.

 

 

4.             Non-Solicitation and No-Hire of Employees. For a period of 18 months from the date hereof, you agree that you and your affiliates will not, directly or indirectly, hire or solicit any executive officer of the Company or other executive or managerial employee of the Company with whom you or your Representatives had contact in connection with a Transaction or any other employee of the Company identified to you in writing as being subject to the provisions of this Section 4 (other than through a generalized list of employees or employee census data), other than (i) a person who has not been an employee of the Company for at least 120 days and whom neither you nor any of your affiliates or other Representatives, directly or indirectly, solicited following the date hereof, (ii) an employee of the Company other than an executive or managerial employee who approaches you or your affiliates and whom neither you nor any of your affiliates or other Representatives has previously contacted following the date hereof or (iii) a person who was terminated by the Company prior to any solicitation; provided that nothing in this Section 4 shall apply to any employee who responds to general solicitations of employment not specifically directed toward employees of the Company, which general solicitations are expressly permitted.

 

5.             No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied, on which you, your affiliates or your other Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your, your affiliates’ or your other Representatives’ purposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you with respect to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such a definitive agreement neither the Company nor its affiliates or Representatives shall have any liability whatsoever to you or any of your affiliates or other Representatives, including in contract, tort or under federal or state securities laws, arising out of, relating to, or resulting from, the use of the Evaluation Material or any errors therein or omissions therefrom.

 

6.             No Obligation. It is understood and agreed that unless and until the Company has entered into a definitive agreement with you with respect to a Transaction, if any, neither the Company nor you intends to be, or shall be, under any legal obligation of any kind whatsoever with respect to a Transaction or otherwise, except for the matters specifically agreed to in this Agreement.

 

7.             Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable relief, including injunction and/or specific performance, in the event of any breach or threatened breach of the provisions of this Agreement. You agree that you will not oppose the granting of such relief on the basis that the Company has an adequate remedy at law and that, if the injunctive relief is obtained, you will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the Evaluation Material and Transaction Information is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the Company.

 

 

8.             Compliance with Law. You hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.

 

9.            Miscellaneous.

 

(a)           Except as set forth in Section 3 and Section 4 with respect to the obligations set forth therein, each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement and (ii) the completion of a Transaction with you. The term “person” as used in this Agreement shall be broadly interpreted to include the media and any corporation, company, group, partnership, joint venture, limited liability company, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act; provided that, with respect to you, the term “affiliate” when used in Section 1 shall be deemed to include only (A) your controlled affiliates, (B) Japan Tobacco Inc. and (C) any controlled affiliate of Japan Tobacco Inc. that is, directly or indirectly, in control of you. The term “including” and any variation thereof shall be deemed to be followed by the words “without limitation” except where the meaning clearly indicates otherwise.

 

(b)           It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.

 

(c)           It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be invalid, illegal or unenforceable in any respect under any Applicable Law and Legal Process as determined by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other than those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby nor shall such determination impair in any way the validity, legality, enforceability or application of such provision in any other jurisdiction. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid or unenforceable provision and this Agreement.

 

(d)           This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware.

 

(e)           (i) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal courts of the United States of America located in the State of Delaware (the “Chosen Courts”), and solely in connection with claims arising under this Agreement (A) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (B) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (C) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice is given in accordance with Section 9(f).

 

 

(ii)           EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

(iii)          Each of the parties hereto agrees that a final judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the Chosen Courts shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject, by suit upon such judgment.

 

(f)           Any notice hereunder shall be made in writing by overnight courier, personal delivery or email (if telephonically confirmed), in each case to:

 

If to the Company:
	Vector Group Ltd.
	4400 Biscayne Boulevard; 10th Floor
	Miami, FL 33137-3212
	Attention: Marc Bell, Senior Vice President
	& General Counsel
	Telephone: +1 (305) 579-8018
	Email: mbell@vectorgroupltd.com
If to you:
	JT International Holding B.V.
	Bella Donna 4
	1181 RM Amstelveen
	The Netherlands
	Attention: Corporate Secretary
	Telephone: +31 20 721 36 86
	Email: andrew.binghamjti.com

 

(g)           This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof.

 

(h)           To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any of the Evaluation Material (including any such Evaluation Material related to pending or threatened litigation) to you or your Representatives.

 

 

(i)            This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by you without the prior written consent of the Company shall be void.

 

(j)            This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit thereof.

 

(k)           This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement. An executed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[The next page is the signature page]

 

 

If you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement will constitute our agreement with respect to the subject matter hereof.

 

	Very truly yours,
	VECTOR GROUP LTD.
	By:	/s/ Marc Bell
		Name:	Marc N. Bell
		Title:	Senior Vice President and General Counsel

 

CONFIRMED AND AGREED TO;

 

JT INTERNATIONAL HOLDING B.V.

 

By:	/s/ John Colton			By:	/s/ Biljana Ivosevic
	Name:	John Colton			Name:	Biljana Ivosevic
	Title:	Internal Audit Vice President			Title:	Finance Director

 

[Signature page to Confidentiality Agreement]

 

 

Schedule I

 

List of Debt Financing Sources Approved as Representatives

 

As and when needed, JTI shall propose such List by email to the Company (per section 9(f) above), and where applicable, the Company shall confirm its approval of such List by return email.

 

 

 

Exhibit (D)(5)

 

CONFIDENTIAL

 

August 27, 2024

 

Vector Group Ltd.
4400 Biscayne Boulevard, 10th Floor

Miami, FL 33137-3212

 

Ladies and Gentlemen:

 

Reference is made to the Agreement and Plan of Merger, dated as of August 21, 2024, by and among Vector Group Ltd. (“you” or “your”), JTI (US) Holding Inc. (“Parent”) and Vapor Merger Sub Inc. (the “Merger Agreement”). Pursuant to the Transactions (as defined in the Merger Agreement), Parent and its affiliates, including JT International Holding B.V. (the “Company” or “us”) may furnish or otherwise make available such information to you as it so determines in consideration of the covenants set forth in this letter agreement (this “Agreement”).

 

1.             Confidentiality.

 

(a)           You agree to keep confidential and to use only for the purposes of (x) consummating the Transactions and (y) reasonable integration planning (the “Permitted Uses”) all information that the Company or any of its Representatives (as hereinafter defined) furnishes or otherwise makes available to you or your Representatives, including any technical, scientific or other proprietary information of the Company with which you or your Representatives may come into contact in the course of your investigation, on or after August 21, 2024, and whether oral, written or electronic, together with any reports, analyses, summaries, interpretations, compilations, forecasts, financial statements, memoranda, notes, studies or any other written or electronic materials prepared by or for you or your Representatives that contain, reflect or are based upon or generated from such information (collectively, the “Evaluation Material”); provided, however, that you may disclose Evaluation Material (i) to those of your affiliates and your and such affiliates’ respective officers, directors, employees and counsel (such persons in their capacity as such being generally referred to herein as “Representatives”), in each case, who need to know such information for the purpose of assisting you with a Permitted Use so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in accordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your Representatives), (ii) to the extent that the Company so consents in writing and (iii) as provided in Section 1(b). Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) is or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided that such other source is not known by you after reasonable inquiry to be bound by a confidentiality obligation to the Company or is otherwise prohibited from disclosing the information to you, (B) is or becomes generally available to the public (other than as a result of a breach by you or your Representatives of this Agreement) or (C) is independently developed by you without use of any Evaluation Material. Nothing herein, and no disclosure pursuant hereto, is intended to vest in you any intellectual property rights whatsoever.

 

 

(b)           In the event that you or any of your Representatives are required to disclose any Evaluation Material under applicable law, rule or regulation, or in connection with a judicial or administrative proceeding (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or similar process) (collectively, “Applicable Law and Legal Process”), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You also agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company to the extent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or administrative proceedings referred to above or to otherwise limit such disclosure. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable to allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material, you will limit such disclosure to that which is legally required and will use reasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose, and thereafter you may disclose such information without liability hereunder.

 

(c)           Upon the request of the Company, you will (and you will cause your Representatives to) promptly, at your election, deliver to the Company or destroy all copies of the Evaluation Material without retaining any copy thereof, including, to the extent practicable, expunging all such Evaluation Material from any computer, server, data storage network, software, word processor or other device containing such information. If requested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, (i) your legal department and/or outside counsel may each keep one copy of the Evaluation Material (in electronic or paper form) and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged by using commercially reasonable efforts. Any and all duties and obligations existing under this Agreement shall remain in full force and effect, notwithstanding the delivery or destruction of the Evaluation Material required by this Section

 

2.             Non-Solicitation and No-Hire of Employees. In the event that the Merger Agreement is validly terminated in accordance with its terms, for a period of 18 months from the date hereof, you agree that you and your affiliates will not, directly or indirectly, hire or solicit any executive officer of the Company or other executive or managerial employee of the Company with whom you or your Representatives had contact in connection with the Transactions, other than (i) a person who has not been an employee of the Company for at least 120 days and whom neither you nor any of your affiliates or other Representatives, directly or indirectly, solicited following the date hereof, (ii) an employee of the Company other than an executive or managerial employee who approaches you or your affiliates and whom neither you nor any of your affiliates or other Representatives has previously contacted following the date hereof or (iii) a person who was terminated by the Company prior to any solicitation; provided that nothing in this Section 2 shall apply to any employee who responds to general solicitations of employment not specifically directed toward employees of the Company, which general solicitations are expressly permitted.

 

 

3.             No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied, on which you, your affiliates or your other Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your, your affiliates’ or your other Representatives’ purposes and that only those representations and warranties made by us in writing in the Merger Agreement have any legal effect. You agree that other than as may be set forth in the Merger Agreement neither the Company nor its affiliates or Representatives shall have any liability whatsoever to you or any of your affiliates or other Representatives, including in contract, tort or under federal or state securities laws, arising out of, relating to, or resulting from, the use of the Evaluation Material or any errors therein or omissions therefrom.

 

4.             Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable relief, including injunction and/or specific performance, in the event of any breach or threatened breach of the provisions of this Agreement. You agree that you will not oppose the granting of such relief on the basis that the Company has an adequate remedy at law and that, if the injunctive relief is obtained, you will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the Evaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the Company.

 

5.             Compliance with Law. You hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.

 

6.           Miscellaneous

 

(a)            Except as set forth in Section 2 with respect to the obligations set forth therein, each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement and (ii) the Effective Time (as defined in the Merger Agreement). The term “person” as used in this Agreement shall be broadly interpreted to include the media and any corporation, company, group, partnership, joint venture, limited liability company, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act; provided that, with respect to you, the term “affiliate” when used in Section 1 shall be deemed to include only (A) your controlled affiliates, (B) Japan Tobacco Inc. and (C) any controlled affiliate of Japan Tobacco Inc. that is, directly or indirectly, in control of you. The term “including” and any variation thereof shall be deemed to be followed by the words “without limitation” except where the meaning clearly indicates otherwise.

 

(b)            It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.

 

 

(c)            It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be invalid, illegal or unenforceable in any respect under any Applicable Law and Legal Process as determined by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other than those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby nor shall such determination impair in any way the validity, legality, enforceability or application of such provision in any other jurisdiction. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid or unenforceable provision and this Agreement.

 

(d)           This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware.

 

(i)            Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal courts of the United States of America located in the State of Delaware (the “Chosen Courts”), and solely in connection with claims arising under this Agreement (A) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (B) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (C) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice is given in accordance with Section 9(f).

 

(ii)            EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

(iii)          Each of the parties hereto agrees that a final judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the Chosen Courts shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject, by suit upon such judgment.

 

 

(f)           Any notice hereunder shall be made in writing by overnight courier, personal delivery or email (if telephonically confirmed), in each case to:

 

If to the Company:

 

JT International Holding B.V.
Bella Donna 4
1181 RM Amstelveen
The Netherlands
Attention: Corporate Secretary
Telephone: +31 20 721 36 86
Email: andrew.bingham@jti.com

 

If to you:

 

Vector Group Ltd.
4400 Biscayne Boulevard, 10th Floor
Miami, FL 33137-3212
Attention: Marc Bell, Senior Vice President
& General Counsel
Telephone: +1 (305) 579-8018
Email: mbell@vectorgroupltd.com

 

(g)           This Agreement, the Merger Agreement and the Confidentiality Agreement (as defined in the Merger Agreement) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof.

 

(h)           To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any of the Evaluation Material (including any such Evaluation Material related to pending or threatened litigation) to you or your Representatives.

 

(i)           This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by you without the prior written consent of the Company shall be void.

 

(j)           This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit thereof.

 

(k)           This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement. An executed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[The next page is the signature page]

 

 

If you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement will constitute our agreement with respect to the subject matter hereof.

 

	Very truly yours,
	JT International Holding B.V.
	By:	/s/ Christopher Hill
		Name:	Christopher Hill
		Title:	Authorized Signatory
	JT International Holding B.V.
	By:	/s/ Ana-Marina Schifferli
		Name:	Ana-Marina Schifferli
		Title:	Authorized Signatory

 

CONFIRMED AND AGREED

 

Vector Group Ltd.

 

By:	/s/ Marc Bell
	Name:	Marc N. Bell
	Title:	Senior Vice President and General Counsel

 

[Signature page to Confidentiality Agreement]

 

 

Exhibit (d)(6)

 

Clean Team Confidentiality Agreement

 

This Clean Team Confidentiality Agreement (the “Agreement”) is entered on July 3, 2024, by and between Vector Group Ltd. (“Vector”) and JT International Holding B.V. (“Acquiror”). Vector and Acquiror are together referred to as the “Parties” and individually as a “Party”.

 

Acquiror is evaluating a potential transaction with Vector (the “Transaction”). In connection with the Transaction, the Parties recognize that Acquiror will need access to competitively sensitive information of Vector in order to: (a) carry out commercial due diligence to evaluate the Transaction; (b) undertake a preliminary evaluation of regulatory matters, including antitrust approvals; (c) undertake the relevant regulatory processes including (but not limited to) the preparation of submissions to and responding to questions asked by antitrust or other regulatory authorities; and (d) engage in integration planning (the “Designated Matters”). Access to this information will be limited to (i) personnel at Freshfields Bruckhaus Deringer LLP (together with its associated entities, “Freshfields”)¹, (ii) other third-party advisors who have been engaged by Acquiror in connection with the Transaction as identified in Exhibit A, and (iii) individual employees of Acquiror or its affiliates identified in Exhibit A hereto; provided that such personnel, third-party advisors and individual employees shall have a justifiable need to know Clean Team Only Information, and shall have no day-to-day responsibilities in, shall not participate in, advise on, or provide consulting services related to sales, pricing, bidding, proposal-making, marketing, production, procurement, product or service innovation, research, development, strategic planning, business development, competitive analysis, salary or wage setting or any other commercially sensitive area with respect to any business lines, products or services of Acquiror or any of its affiliates that compete with or are vertically related to (x) any business lines, products or services of Vector or any of its affiliates or (y) any products or services in which Vector’s or any of its affiliates’ products or services are used (“Competitively Sensitive Activities”) and shall have signed and delivered to Vector a copy of the acknowledgement attached hereto as Exhibit B (each, a “Clean Team Member” and, collectively, the “Clean Team”). New members may be added to Exhibit A with the prior written approval (not to be unreasonably withheld, conditioned or delayed) of Vector’s Legal Contact. Acquiror agrees that it will be responsible for any violation of this Agreement by the Clean Team Members. The purpose of the Clean Team is to collect and analyze data that will be used solely for purposes of the Designated Matters to be undertaken in a manner that is fully consistent with and in compliance with all relevant antitrust and competition laws and regulations.

 

Vector and Acquiror executed a letter agreement, dated April 8, 2024 (the “Non-Disclosure Agreement”). Capitalized terms used but not defined herein shall have the respective meanings given to them in the Non-Disclosure Agreement.

 

“Clean Team Only Information” means any information provided by Vector that (a) is designated in writing as competitively sensitive or, if such information is not in writing, otherwise indicated at the time of disclosure to contain competitively sensitive information or (b) is provided in a virtual data room folder marked “Clean Room” or substantially similar words.

 

¹ Freshfields Bruckhaus Deringer LLP’s associated entities are Freshfields Bruckhaus Deringer LLP in the UK, Freshfields Bruckhaus Deringer Ireland LLP in Ireland, Freshfields Bruckhaus Deringer Rechtsanwälte Steuerberater PartG mbB in Germany and Spain, Freshfields Bruckhaus Deringer Rechtsanwälte PartG mbB in Austria, Freshfields Bruckhaus Deringer US LLP in the USA, the Freshfields Bruckhaus Deringer partnership registered in Hong Kong, the Freshfields Bruckhaus Deringer Law Office and Freshfields Bruckhaus Deringer Foreign Law Office in Japan, the Freshfields Bruckhaus Deringer Singapore Pte. Ltd. in Singapore, Studio Legale associato a Freshfields Bruckhaus Deringer in Italy and Freshfields Bruckhaus Deringer WLL in Bahrain.

 

 

Acquiror recognizes that Clean Team Only Information constitutes “Evaluation Material” as defined in the Non-Disclosure Agreement and acknowledges that its review is subject to the following terms and conditions:

 

1.

No Clean Team Member may share, discuss, or otherwise disclose any Clean Team Only Information with or to any other party or any other person (including, but not limited to, any of Acquiror’s personnel who are not Clean Team Members), other than other Clean Team Members who have access to such Clean Team Only Information.

 

2.

Acquiror shall not allow any Clean Team Member to engage in Competitively Sensitive Activities of Acquiror or any of its affiliates for a period of twelve (12) months from the date such Clean Team Member is provided access to Clean Team Only Information; provided that if Vector and Acquiror consummate the Transaction, all of the obligations hereunder shall terminate effective immediately following the consummation thereof.

 

3.

Clean Team Members will preserve the confidentiality of and disclose Clean Team Only Information in accordance with the provisions of this Agreement and the Non-Disclosure Agreement.

 

4.

The Clean Team Members may prepare for Acquiror’s directors, officers, employees and third-party advisors who need to know such information in order to evaluate the Transaction, summaries, compilations, extracts or other information, data or analyses derived, in whole or in part, from Clean Team Only Information (“Reports”) in which Clean Team Only Information has been redacted, aggregated, or otherwise masked in a manner that does not permit persons other than Clean Team Members to derive or infer specific details of Clean Team Only Information. For avoidance of doubt, the Clean Team Only Information contained in any such Report or other written or electronic materials prepared by or for a Clean Team Member remains subject to the terms and conditions of this Agreement, and any Reports thereon shall constitute Evaluation Material pursuant to the terms of the Non-Disclosure Agreement and shall be subject to the Non-Disclosure Agreement in addition to this Agreement. Any such Report prepared by a Party shall be reviewed and approved by Acquiror’s outside antitrust counsel prior to distribution to any individuals other than Clean Team Members.

 

5.

To the extent that any Clean Team Only Information includes materials subject to the attorney-client privilege, Vector is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Clean Team Only Information (including any such materials or information related to pending or threatened litigation).

 

6.

Clean Team Only Information shall not include information which: (i) is or becomes available to Acquiror on a non-confidential basis from a source other than Vector or its Representatives, provided that such other source is not known by Acquiror after reasonable inquiry to be bound by contractual, legal, fiduciary or other obligation of confidentiality to Vector or its affiliates or is otherwise prohibited from disclosing the information to Acquiror, (ii) is or becomes generally available to the public (other than as a result of a breach of this Agreement by the Acquiror or any Clean Team Member); or (iii) is independently developed by Acquiror without use of any Clean Team Only Information.

 

 

7.

All Clean Team Only Information will be kept secure and separate from other records, documents, or information, and all Clean Team Only Information (including copies and electronically stored information) will be maintained and used under conditions sufficient to ensure the security of the information and to prevent disclosure to or access by persons other than Clean Team Members (other than as disclosed pursuant to Reports). Any breach, attempted breach or suspected breach of any of these rules will be reported to Vector’s Legal Contact as soon as possible.

 

8.

Each Party will designate a Legal Contact for the Clean Team (“Legal Contact”). All requests for information, clarification or advice to or from the Clean Team Members will be managed by the Parties’ respective Legal Contacts.

 

The Legal Contact for Acquiror is:

 

Christopher Hill

Director – Legal Affairs – BD

JT International S.A.

+41-79-489-3661

christopher.hill@jti.com

 

With copy to:

 

Sebastian Fain

Freshfields Bruckhaus Deringer US LLP

+1-212-508-8806

sebastian.fain@freshfields.com

 

The Legal Contact for Vector is:

 

Marc N. Bell

Senior Vice President & General Counsel

Vector Group Ltd.

+1-305-579-8018

mbell@vectorgroupltd.com

 

With copy to:

 

Alan J. Fishman

Sullivan & Cromwell LLP

+1-212-558-4113

fishmana@sullcrom.com

 

The Parties may replace and/or specify additional Legal Contacts from time to time. Any change by a Party of the Legal Contacts will be communicated in writing to the Legal Contacts of the other Party.

 

9.

This Agreement shall be effective as of the date hereof. Except where expressly provided otherwise in the terms of this Agreement, the obligations under this Agreement will expire upon the earlier of (i) two years after the date of this Agreement and (ii) the completion of a Transaction with between Vector and Acquiror. Such expiry shall be without prejudice to any rights and liabilities which have accrued before termination.

 

10.

It is understood and agreed that if any provision contained in this Agreement or the application thereof to Acquiror, Vector, or any other person or circumstance shall be invalid, illegal or unenforceable in any respect under any Applicable Law and Legal Process as determined by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other than those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby nor shall such determination impair in any way the validity, legality, enforceability or application of such provision in any other jurisdiction. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid or unenforceable provision and this Agreement.

 

 

11.

Except as specifically provided herein, this Agreement shall not affect or supersede the confidentiality obligations of the Parties with respect to any other agreement(s) related to the Transaction (including the Non-Disclosure Agreement), all of which remain in full force and in effect.

 

12.

This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware.

 

13.

The Parties acknowledge and agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies that Vector may be entitled to, Vector shall be entitled to specific performance and injunctive or other equitable relief without the necessity of posting any bond or other security as a remedy for any such breach. In the event that Vector institutes any legal suit, action, or proceeding against Acquiror arising out of or relating to this Agreement, the prevailing Party in the suit, action, or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.

 

14.

(a)  Each Party agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement exclusively in the Chosen Courts, and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that service of process upon such Party in any such action or proceeding shall be effective if notice is given in accordance with Section 9(f) of the Non-Disclosure Agreement.

 

(b)    EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

(c)    Each Party agrees that a final judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the Chosen Courts shall be conclusive and binding upon each of the Parties and may be enforced in any other courts the jurisdiction of which each of the Parties is or may be subject, by suit upon such judgment.

 

15.

Failure to enforce any provisions of this Agreement shall not constitute a waiver of any of the terms and conditions hereof. No waiver by Vector shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

 

16.

This Agreement may only be amended by a separate writing signed by Vector and Acquiror expressly so amending this Agreement, except that new members may be added to the Clean Team as provided herein. Any provision of this Agreement may be waived by the Party entitled to the benefit thereof, if in writing and signed by the Party entitled to the benefit thereof. For purposes of this Agreement the terms “in writing” shall include electronic communication.

 

17.

At any time upon Vector’s written request, Acquiror shall, and shall cause each Clean Team Member to, promptly, and in any event no later than ten (10) business days after such notification or request, destroy or return all Clean Team Only Information (including all copies, extracts, or other reproductions) and, to the extent Clean Team Only Information is destroyed, certify in writing to Vector that such Clean Team Only Information (including any such information held electronically) has been destroyed.

 

18.

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. An executed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.

 

JT INTERNATIONAL HOLDING B.V.
/s/ Biljana Ivošević
By:	Biljana Ivošević
Title:	Finance Director
/s/ John Colton
By:	John Colton
Title:	Director
VECTOR GROUP LTD.
/s/ Marc N. Bell
By:	Marc N. Bell
Title:	Senior Vice President & General Counsel

 

[Signature Page to Clean Team Confidentiality Agreement]

 

 

Exhibit A

 

INITIAL CLEAN TEAM MEMBERS

 

Acquiror Employees
Name	Title
Antonina Marinova	JTI - Business Development VP
Thibaud Aguettaz	JTI - Business Development Director
Anano Salia	JTI - Business Development Director
Edoardo Marengo	JTI - Business Development Manager
Hirohito Asai	JTI - Business Development Manager
Christopher Hill	JTI - Legal Director
Siegert Slagman	JTI - Global Tax Vice President
Marc Crutzen	JTI - Global Tax Strategy Director
Andrea Talpo	JTI - Head of JT Group Treasury VP
Aline Schifferli	JTI - WEA Treasury, Sanctions & BD Director
Alison Thomas	JTI - Corporate Controller VP
Mehdi Keddari	JTI - Corporate Accounting & Reporting Director
Thomas Andre	JTI - Corporate Consolidation & Reporting Director
Hans Sleumer	JTI – Global VAT Director
Masahiro Sumida	JT - Global Tax Director
Paul Mewha	JTI – Manufacturing New Business Director
Philip Stalmann	JTI – Glob.Eng. Project & Capex Director
Jason Melling	JTI – P&C VP, Americas Region
James Boxford	JTI – Head of Corporate Strategy
Olivier Blanc	JTI – AGC VP
Alexander Rudnitskiy	JTI – Global Rewards VP
Marc-Olivier Pialoux	JTI – Senior Manager
Eric Jeanclaude	JTI – Manufacturing New Business Lead Director
John Colton	JTI – Internal Audit Vice President
Mark McGuinness	JTI – UK Marketing Director

 

Third-Party Advisors

 

·

J.P. Morgan Securities plc

·

Ernst & Young Ltd

 

 

Exhibit B

 

CLEAN TEAM ACKNOWLEDGMENT

 

1.

I have read and am familiar with the requirements of the Non-Disclosure Agreement, dated April 8, 2024, between Vector Group Ltd. and JT International Holding B.V. and the related Clean Team Confidentiality Agreement governing the establishment of a “Clean Team”, dated July 3, 2024 (the “Clean Team Agreement”), and agree to comply with the terms and conditions of those agreements. Capitalized terms used but not defined in this Clean Team Acknowledgment have the meanings given to them in the Clean Team Agreement.

 

2.

I understand that I have been designated by Acquiror as a Clean Team Member under the Clean Team Agreement. I further understand that as a Clean Team Member I may obtain access to highly confidential information relating to the business of Vector, and which could be viewed as competitively sensitive information.

 

3.

I understand and agree that Clean Team Only Information can be shared only with other Clean Team Members, and summaries of analyses derived from Clean Team Only Information can only be shared with Representatives of Acquiror or its affiliates who are not Clean Team Members in the form of a Report in accordance with the provisions of Section 4 of the Clean Team Agreement.

 

Executed as of __________________________.

 

 

	Name:
	Title:

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Schedule TO-T

 

(Rule 14d-100)

 

VECTOR GROUP LTD.

 

(Name of Subject Company (Issuer))

 

VAPOR MERGER SUB INC.

 

JTI (US) HOLDING INC.

 

JT INTERNATIONAL HOLDING B.V.

 

(Names of Filing Persons — Offerors)

 

Table 1 - Transaction Valuation

 

		Transaction Valuation*				Fee Rate				Amount of Filing Fee**
Fees to be Paid		$	2,362,969,005.00				0.00014760			$	348,774.23
Fees Previously Paid		$	—							$	—
Total Transaction Valuation		$	2,362,969,005.00
Total Fees Due for Filing										$	348,774.23
Total Fees Previously Paid										$	—
Total Fee Offsets										$	—
Net Fee Due										$	348,774.23

 

*Estimated solely for purposes of calculating the filing fee. The transaction valuation was calculated as the sum of: (i) 157,420,597 issued and outstanding shares of common stock, par value $0.10 per share, of Vector Group Ltd. (the “Company”) (including 1,757,000 shares of Company common stock subject to awards of shares of Company common stock that are subject to a transfer restriction, repurchase option or obligation, risk of forfeiture or other condition (other than those that are performance-based) and 1,860,500 shares of Company common stock subject to a performance-based transfer restriction, performance-based repurchase option or obligation, performance-based risk of forfeiture or other performance-based condition (assuming full level of performance is achieved)), multiplied by $15.00, which is the average of the high and low prices reported by the New York Stock Exchange on August 30, 2024; and (ii) (a) 406,875 shares of Company common stock subject to outstanding Company stock options with a per-share exercise price less than $15.00, multiplied by (b) the excess of $15.00 over $10.92 (the weighted average exercise price of such Company stock options).

 

**The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory for Fiscal Year 2024, effective October 1, 2023, issued August 25, 2023, by multiplying the transaction value by 0.00014760.

 

 

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