SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) February 8, 2001
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GBI CAPITAL MANAGEMENT CORP.
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(Exact Name of Registrant as Specified in Charter)
Florida 1-15799 65-0701248
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(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
1055 Stewart Avenue, Bethpage, New York 11714
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (516) 470-1000
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Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
Items 1 and 2. Changes in Control of Registrant and Acquisition or Disposition
of Assets
On February 8, 2001, GBI Capital Management Corp. ("Company") entered
into a Stock Purchase Agreement ("Purchase Agreement") with New Valley
Corporation ("New Valley"), Ladenburg, Thalmann Group Inc., a Delaware
corporation and wholly-owned subsidiary of New Valley ("LTGI"), Berliner
Effektengesellschaft AG, a German corporation ("Berliner") and Ladenburg,
Thalmann & Co. Inc. ("Ladenburg"), the common stock of which is owned 80.1% by
LTGI and 19.9% by Berliner, and an officer of the Company entered into a stock
purchase agreement with LTGI. As a result of the transactions contemplated
thereby, upon closing, (i) New Valley will acquire ownership of approximately
50.1% of the common stock of the Company to be outstanding upon the closing of
the transactions contemplated by such agreements and (ii) Ladenburg will become
a wholly-owned subsidiary of the Company. These agreements are summarized below.
The summary is qualified in its entirety by reference to these agreements, as
well as other agreements entered into in connection therewith, copies or forms
of which are included in the exhibits to this report.
Under the terms of the Purchase Agreement, the Company will purchase
all of the common stock of Ladenburg ("Ladenburg Stock"). As consideration for
the Ladenburg Stock, the Company will issue to LTGI and Berliner (together, the
"Sellers") an aggregate of:
o 18,181,818 million shares of the Company's common stock ("GBI
Stock");
o $10 million principal amount of the Company's senior
convertible notes ("Notes"), the payment of which will be
secured by the Ladenburg Stock; and
o $10 million cash, which the Company intends to fund from the
proceeds of a loan ("Loan") to the Company from Frost-Nevada,
Limited Partnership, a Nevada limited partnership ("Lender"),
as described below under "Terms of the Frost-Nevada Loan." Of
the $10 million cash, $500,000 will be placed in escrow
pursuant to an Escrow Agreement between the Company, Berliner
and Continental Stock Transfer & Trust Company, as escrow
agent.
All payments shall be made in the proportion of 80.1% to LTGI and 19.9% to
Berliner. Additionally, in the event that, on the closing date of the Purchase
Agreement ("Closing Date"), the net worth of Ladenburg and its subsidiaries on a
consolidated basis ("Closing Net Worth") is less than $28.6 million, New Valley
and Berliner will contribute to Ladenburg an amount in cash equal to the
difference between the Closing Net Worth and $28.6 million. In the event that
the Closing Net Worth is greater than $30.6 million, the Company shall pay to
the Sellers, in cash, the difference between the Closing Net Worth and $30.6
million.
Concurrently with execution of the Purchase Agreement, Joseph Berland
("Berland"), the Company's Chairman of the Board and Chief Executive Officer,
entered into a stock purchase agreement with LTGI, pursuant to which he will
sell, on the Closing Date, all of the 3,945,060 million shares of GBI Stock he
currently owns to LTGI for $3,945,060 in cash, or $1.00 per share.
In addition, certain officers of the Company have entered into
individual stock sale agreements, pursuant to which they have agreed to sell, on
the Closing Date, an aggregate of 550,000 shares of GBI Stock currently owned by
them to the Lender at $1.00 per share as follows:
o Richard J. Rosenstock ("Rosenstock"), the Company's President
and Chief Operating Officer, has agreed to sell up to 255,814
shares of GBI Stock;
o Vincent Mangone ("Mangone"), the Company's Executive Vice
President, has agreed to sell up to 98,062 shares of GBI
Stock;
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o Mark Zeitchick ("Zeitchick"), the Company's Executive Vice
President, has agreed to sell up to 98,062 shares of GBI
Stock; and
o David Thalheim ("Thalheim" and together with Berland,
Rosenstock, Mangone and Zeitchick, collectively, the
"Principals"), the Company's Administrator, has agreed to sell
up to 98,062 shares of GBI Stock.
In connection with these sales, the Company waived certain lock-up agreements
between the Company and the Principals pursuant to which the Principals had
agreed that they would not, without the prior written consent of the Company's
Board of Directors, sell, transfer or otherwise dispose of any of their GBI
Stock prior to August 2001. As a result of its purchase of such stock and the
convertible note it will be issued in making the Loan (as described below), the
Lender will beneficially own approximately 14.9% of the Company's common stock
to be outstanding on the Closing Date.
The foregoing transactions are expected to be consummated in the second
quarter of 2001 after the satisfaction of certain closing conditions described
below under "Conditions to Closing," including approval of the transactions by
the shareholders of the Company.
Exclusivity
Under the terms of the Purchase Agreement, the Company and its
subsidiaries and affiliates cannot, except in limited circumstances, discuss
with third parties other offers to acquire or merge with the Company.
Specifically, the Purchase Agreement prohibits the Company and all such persons
from doing anything to initiate, solicit or engage, directly or indirectly, any
inquiries or the making or implementation of any proposal or offer (including,
without limitation, any proposal or offer to the Company's shareholders) with
respect to a merger, consolidation, or other business combination involving the
Company or any of its subsidiaries, or any acquisition or similar transaction,
including, without limitation, any tender offer or exchange offer, involving the
purchase of all or any significant portion of the assets of the Company and its
subsidiaries taken as a whole or 20% or more of the Company's outstanding common
stock or the issuance of the Company's common stock which would constitute,
after issuance, 20% or more of the Company's then outstanding common stock (each
an "Alternative Transaction") or engage in any negotiations concerning, or
provide any confidential information or data to or have any discussions with any
person relating to, or otherwise facilitate any effort or attempt to make or
implement, an Alternative Transaction.
If the Company receives an unsolicited written proposal for any
Alternative Transaction from a third party, the Company will be entitled to
communicate with such third party and give such third party any information
about the Company if, and only to the extent that, (A) the Company's Board of
Directors concludes in good faith that such proposal is likely to result in a
superior transaction to the Purchase Agreement, (B) the Company's Board of
Directors, based upon the advice of outside counsel, determines in good faith
that such action is required for the Board of Directors to comply with its
fiduciary duties to the Company's shareholders imposed by law, (C) the Company
shall have entered into a confidentiality agreement in customary form and having
terms and conditions no less favorable than the one entered into in connection
with the Purchase Agreement, (D) prior to furnishing such information to, or
entering into discussions or negotiations with, such person, the Company
provides written notice to the Sellers to the effect that it is furnishing
information to, or entering into discussions or negotiations with, such person,
which notice shall identify such person and the proposed terms of the
Alternative Transaction in reasonable detail, and (E) the Company keeps the
Sellers informed of the status and all material information with respect to any
such discussions or negotiations.
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Termination
The Purchase Agreement may be terminated only under limited
circumstances, including:
(i) by mutual written consent of the Company and the Sellers;
(ii) by the Company or New Valley if any competent regulatory
authority shall have issued an order making illegal or
otherwise restricting, preventing, prohibiting or refusing to
approve the transactions contemplated by the Purchase
Agreement, and such order shall have become final and
non-appealable;
(iii) by the Company or New Valley if the closing of the Purchase
Agreement has not occurred by September 30, 2001 for any
reason other than by breach by the party seeking to terminate
unless the parties have agreed to an extension in writing;
(iv) by New Valley if the Company's Board of Directors (or any
committee thereof) shall have (a) failed to recommend or
withdrawn or modified in a manner adverse to the Sellers its
approval or recommendation of the Purchase Agreement and any
of the transactions contemplated thereby, (b) recommended or
taken no position with respect to a proposal for an
Alternative Transaction or (c) following the public
announcement of a proposal for an Alternative Transaction,
failed to reconfirm its recommendation of the Purchase
Agreement and any of the transactions contemplated thereby
within five business days following a written request for such
reconfirmation by New Valley; and
(v) by the Company if its Board of Directors shall have determined
in good faith, based upon advice of outside legal counsel,
that failure to terminate the Purchase Agreement is reasonably
likely to result in the Board breaching its fiduciary duties
to the Company's shareholders under applicable law by reason
of the pendency of an unsolicited, bona fide written proposal
for a superior transaction, but only if the Company and its
subsidiaries and other representatives shall have complied
with their obligations under the termination provisions of the
Purchase Agreement. The Company may not terminate the Purchase
Agreement under this clause (v), however, unless (a) 48 hours
shall have elapsed after delivery to New Valley of a written
notice of such determination by the Company's Board of
Directors and (b) the Company shall have paid to New Valley
the termination fee described below.
If:
o New Valley terminates the Purchase Agreement pursuant to
clause (iv) above or the Company terminates the Purchase
Agreement pursuant to clause (v) above; or
o either New Valley or the Company terminates the Purchase
Agreement pursuant to clause (iii) above following the public
announcement of a proposal for an Alternative Transaction by
any person, and, within one year after such termination, the
Company has entered into a binding agreement providing for the
consummation of, or shall have consummated, an Alternative
Transaction,
the Company will be required to pay the Sellers a $1.75 million termination fee
and such further amount as to reimburse the Sellers for its out-of-pocket
expenses incurred in connection with the Purchase Agreement.
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Closing Conditions
The Purchase Agreement is subject to a number of conditions, including
the requirement that the sale and certain ancillary matters be approved by the
Company's shareholders, that Ladenburg have cash held at banks, marketable
securities and net cash balances in proprietary accounts at clearing brokers in
an amount not less than $18,000,000 and that all necessary regulatory approvals
are obtained, including the approval of the New York Stock Exchange, the
American Stock Exchange, NASD Regulation, Inc. and the Department of Justice and
the Federal Trade Commission.
Terms of the Convertible Notes
The Notes to be issued to the Sellers will bear interest at a rate of
7-1/2% per annum, payable quarterly, and will be secured by a pledge of the
Ladenburg Stock pursuant to a pledge and security agreement ("Pledge Agreement")
between the Sellers, the Lender and The U.S. Bank Trust National Association.
Principal on the Notes will be payable on December 31, 2005, subject to the
conversion and change of control provisions described below and other customary
acceleration and default provisions contained in the Notes.
Conversion
The principal and accrued interest on the Notes will be convertible, in
whole or in part, at any time, at the election of the holder, into that number
of shares of common stock determined by dividing the principal and interest to
be converted by the conversion price. The "conversion price" will be initially
set at $2.60, subject to "structural" anti-dilution adjustment for stock splits,
dividends and similar events.
In addition, if, during any period of twenty (20) consecutive trading
days, the closing sale price of the Company's common stock is at least $8.00,
the principal and all accrued interest on the notes shall be automatically
converted into shares of common stock at the conversion price then in effect.
Change of Control
In the event of a change of control as defined in the Notes ("Change of
Control"), the Company shall commence an offer to purchase all of the
outstanding Notes at a purchase price equal to the unpaid principal amount of
the Notes and the accrued interest thereon.
Terms of the Frost-Nevada Loan
Concurrently with the signing of the Purchase Agreement, the Company
entered into a loan agreement with the Lender ("Loan Agreement") pursuant to
which the Lender committed to lend the Company $10 million to pay the cash
portion of the purchase price for the Ladenburg Stock. The Loan is to be
evidenced by a senior convertible promissory note ("Frost-Nevada Note") which
ranks pari passu in all respects to the Notes issued to the Sellers. The
Frost-Nevada Note bears interest at a rate of 8-1/2% per annum, payable
quarterly, and is due on December 31, 2005. The Frost-Nevada Note has the same
conversion and Change of Control features as the Notes issued to the Sellers,
except that the conversion price of the Frost-Nevada Note will initially be
$2.00. The Frost-Nevada Note is also secured by a pledge of the Ladenburg Stock
pursuant to the Pledge Agreement.
Shareholders' Meeting
To obtain shareholder approval, the Company will file a proxy statement
with the Securities and Exchange Commission ("SEC") and hold a special meeting
at which the shareholders will be asked to approve the sale and the issuances of
the common stock and Notes to the Sellers. Pursuant to the Purchase Agreement,
the Company is also obligated to include a number of additional items for the
Company's shareholders to consider including the election of new directors
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designated by the Sellers and a change of the Company's name to "Ladenburg
Thalmann Financial Services, Inc." The Sellers have designated Howard M. Lorber,
Victor M. Rivas, Bennett S. LeBow, Phillip Frost and two additional independent
directors for nomination to the Company's Board of Directors.
Fairness Opinion
Roth Capital Partners, financial advisor to the Company's board of
directors in connection with the Purchase Agreement, has delivered its opinion
to the Company's board of directors that, based on the various considerations
set forth in its opinion, the consideration the Company will pay in exchange for
the Ladenburg Stock is fair from a financial point of view. The Company's Board
of Directors relied on Roth Capital Partners' opinion in reaching its decision
to approve the Purchase Agreement and the related transactions.
Management and Employment Agreements
Following the consummation of the Purchase Agreement, Ladenburg and GBI
Capital Partners, Inc. ("GBI"), the Company's wholly-owned subsidiary, will
operate as two separate wholly-owned subsidiaries. Upon the Closing Date:
o Howard M. Lorber, President and Chief Operating Officer of New
Valley, will become Chairman of the Company;
o Victor M. Rivas, Chairman and Chief Executive Officer of
Ladenburg, will retain his role at Ladenburg and become the
Company's new President and Chief Executive Officer. In
connection with Mr. Rivas' employment agreement, on the
Closing Date, Mr. Rivas will be granted options to purchase
1,000,000 shares of the Company's common stock on such date.
The options shall vest in three annual installments commencing
on the first anniversary of the Closing Date.
o Berland will resign from his positions with the Company and
will become an Executive Vice President of the Company and
GBI;
o Rosenstock will remain as GBI's President and will become its
Chief Executive Officer and will become the Vice Chairman and
Chief Operating Officer of the Company; and
o Mangone, Zeitchick and Thalheim will each retain their current
respective positions with the Company and GBI.
In connection with the Purchase Agreement, each of the Principals has
entered into an amendment to his existing employment agreement with the Company,
each dated August 24, 1999, in order to effectuate the foregoing and make
certain changes in their compensation arrangements.
Proxy and Voting Agreement
Concurrently with the signing of the Purchase Agreement, the Company
entered into a Proxy and Voting Agreement with New Valley, the Sellers and the
Principals. Pursuant to the agreement, the Principals have agreed (i) not to
transfer a total of 12,426,939 shares of the Company's common stock owned by
them (representing approximately 66% of the Company's outstanding stock) prior
to the termination of the Purchase Agreement and (ii) to vote all such shares in
favor of the transactions contemplated by the Purchase Agreement and any other
matter that may be necessary for the consummation of the Purchase Agreement and
the related transactions. Each of the Principals delivered an irrevocable proxy
to LTGI to vote such shares in accordance with the agreement. The proxies expire
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upon the approval of the Purchase Agreement and the related transactions or upon
the earlier termination of the Purchase Agreement in accordance with its
provisions. Additionally, the Principals agreed not to initiate, solicit or
encourage any Alternative Transaction that may be proposed and to vote against
any such Alternative Transaction if such transaction is proposed; provided,
however, that the Principals may take any of the actions set forth in the
Purchase Agreement necessary to avoid breaching their fiduciary obligations to
the Company.
Investor Rights Agreement
Concurrently with the signing of the Purchase Agreement, the Company
entered into an Investor Rights Agreement with New Valley, the Sellers, Lender
and the Principals.
Registration Statement
The Company is obligated, no later than six months from the date of the
closing of the Purchase Agreement, to have declared effective a registration
statement under the Securities Act of 1933, as amended ("Act") with the SEC
registering for resale (i) the shares of common stock issued or issuable to the
Sellers under the Purchase Agreement, (ii) the shares of common stock underlying
the Notes and the Frost-Nevada Note and (iii) any additional shares of common
stock issued or distributed by reason of a dividend, stock split or other
distribution in respect of such shares. Additionally, the Principals have the
right to require the Company to include any of their shares on such registration
statement.
Tag Along Rights
Subject to certain limitations, in the event that LTGI proposes to sell
or otherwise transfer, directly or indirectly, more than 5% of the shares of GBI
Stock beneficially owned by LTGI to any entity or person not a party to the
agreement, each of the Lender and the Principals may participate in such
proposed sale on a pro-rata basis.
Holdback Agreement
In the event of a firm commitment underwriting of the Company's common
stock, and upon the request of the managing underwriter, the parties agreed that
they will not sell, assign, transfer or pledge any shares of the Company's
common stockholders for a period of not more than 180 days from the date the
registration statement becomes effective.
Board Nominees
Until such time as the Principals collectively own less than 10% of the
Company's common stock, the Principals have the right to nominate three
individuals for election to the Company's Board of Directors.
Right of First Refusal
Between the Closing Date and December 31, 2005, if either Berliner or
the Lender proposes to sell, transfer or otherwise dispose of any of its Note or
shares of common stock underlying the Note, LTGI shall have the right to
purchase any or all of such shares proposed to be sold or transferred.
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Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits
(a) Financial Statements of Business Acquired*
(b) Pro Forma Financial Information*
(c) Exhibits
Exhibit
Number Description
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4.1 Stock Purchase Agreement, dated February 8, 2001, by and among
the Company, New Valley Corporation, Ladenburg, Thalmann Group
Inc., Berliner Effektengesellshaft AG and Ladenburg, Thalmann &
Co. Inc.
4.2 Stock Purchase Agreement, dated as of February 8, 2001, by and
between Ladenburg, Thalmann Group Inc., Joseph Berland Revocable
Living Trust Dated 4/16/97 and Joseph Berland
4.3 Form of Stock Purchase Agreement, dated as of February 8, 2001,
by and between (A) each of (i) The Richard J. Rosenstock
Revocable Living Trust Dated 3/5/96, Richard J. Rosenstock, (ii)
The Vincent A. Mangone Revocable Living Trust Dated 11/5/96,
Vincent A. Mangone, (iii) Mark Zeitchick and (iv) The David
Thalheim Revocable Living Trust Dated 3/5/96, David Thalheim and
(B) Frost-Nevada, Limited Partnership
4.4 Form of Senior Convertible Promissory Note
4.5 Investor Rights Agreement, dated as of February 8, 2001, among
New Valley Corporation, Ladenburg, Thalmann Group Inc., Berliner
Effektengesellschaft AG, the Company, Frost- Nevada, Limited
Partnership and the Principals
4.6 Proxy and Voting Agreement, dated as of February 8, 2001, among
New Valley Corporation, Ladenburg, Thalmann Group Inc., Berliner
Effektengesellschaft AG, the Company and the individual
shareholders listed on Schedule A attached thereto
10.1 Loan Agreement, dated as of February 8, 2001, between the Company
and Frost-Nevada, Limited Partnership
10.2 Form of Pledge and Security Agreement, dated as of February 8,
2001, between the Company, Ladenburg, Thalmann Group Inc.,
Berliner Effektengesellschaft AG, Frost-Nevada, Limited
Partnership and U.S. Bank Trust National Association
10.3 Employment Agreement, dated as of February 8, 2001, between
Ladenburg, Thalmann & Co. Inc. and Victor Rivas
10.4 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Joseph Berland
10.5 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Richard J.
Rosenstock
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Exhibit
Number Description
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10.6 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Vincent Mangone
10.7 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Mark Zeitchick
10.8 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and David Thalheim
10.9 Form of Guarantee Agreement, dated February 8, 2001, between (A)
each of (i) Joseph Berland, (ii) Richard J. Rosenstock, (iii)
Vincent Mangone, (iv) Mark Zeitchick and (v) David Thalheim and
(B) GBI Capital Management Corp.
10.10 Form of Escrow Agreement, dated as of February 8, 2001, between
GBI Capital Management Corp., Berliner Effektengesellschaft AG
and Continental Stock Transfer & Trust Company
99.1 Press release, dated February 9, 2001
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*Financial statements of the business acquired for the periods specified in Rule
3-05 of Regulation S-X shall be filed by amendment not later than 60 days after
the date that the initial report on Form 8-K must be filed.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: February 21, 2001 GBI Capital Management Corp.
/s/ Richard J. Rosenstock
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By: Richard J. Rosenstock
President and Chief Operating Officer
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Stock Purchase Agreement, dated February 8, 2001, by and among
the Company, New Valley Corporation, Ladenburg, Thalmann Group
Inc., Berliner Effektengesellshaft AG and Ladenburg, Thalmann &
Co. Inc.
4.2 Stock Purchase Agreement, dated as of February 8, 2001, by and
between Ladenburg, Thalmann Group Inc., Joseph Berland Revocable
Living Trust Dated 4/16/97 and Joseph Berland
4.3 Form of Stock Purchase Agreement, dated as of February 8, 2001,
by and between (A) each of (i) The Richard J. Rosenstock
Revocable Living Trust Dated 3/5/96, Richard J. Rosenstock, (ii)
The Vincent A. Mangone Revocable Living Trust Dated 11/5/96,
Vincent A. Mangone, (iii) Mark Zeitchick and (iv) The David
Thalheim Revocable Living Trust Dated 3/5/96, David Thalheim and
(B) Frost-Nevada, Limited Partnership
4.4 Form of Senior Convertible Promissory Note
4.5 Investor Rights Agreement, dated as of February 8, 2001, among
New Valley Corporation, Ladenburg, Thalmann Group Inc., Berliner
Effektengesellschaft AG, the Company, Frost-Nevada, Limited
Partnership and the Principals
4.6 Proxy and Voting Agreement, dated as of February 8, 2001, among
New Valley Corporation, Ladenburg, Thalmann Group Inc., Berliner
Effektengesellschaft AG, the Company and the individual
shareholders listed on Schedule A attached thereto
10.1 Loan Agreement, dated as of February 8, 2001, between the Company
and Frost-Nevada, Limited Partnership
10.2 Form of Pledge and Security Agreement, dated as of February 8,
2001, between the Company, Ladenburg, Thalmann Group Inc.,
Berliner Effektengesellschaft AG, Frost-Nevada, Limited
Partnership and U.S. Bank Trust National Association
10.3 Employment Agreement, dated as of February 8, 2001, between
Ladenburg, Thalmann & Co. Inc. and Victor Rivas
10.4 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Joseph Berland
10.5 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Richard J.
Rosenstock
10.6 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Vincent Mangone
10.7 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and Mark Zeitchick
10.8 First Amendment to the Employment Agreement, dated August 24,
1999, between GBI Capital Partners, Inc. and David Thalheim
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Exhibit
Number Description
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10.9 Form of Guarantee Agreement, dated February 8, 2001, between (A)
each of (i) Joseph Berland, (ii) Richard J. Rosenstock, (iii)
Vincent Mangone, (iv) Mark Zeitchick and (v) David Thalheim and
(B) GBI Capital Management Corp.
10.10 Form of Escrow Agreement, dated as of February 8, 2001, between
GBI Capital Management Corp., Berliner Effektengesellschaft AG
and Continental Stock Transfer & Trust Company
99.1 Press release, dated February 9, 2001
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