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EXHIBIT 10(a)
High River Limited Partnership
100 South Bedford Road
Mount Kisco, New York 10549
November 5, 1995
Brooke Group Ltd.
BGLS Inc.
100 S. E. Second Street
Miami, Florida 33131
Attn: Bennett S. LeBow
Dear Bennett:
By executing this letter in the space provided below, Brooke
Group Ltd., a Delaware corporation ("BGL"), BGLS Inc., a Delaware
corporation and a direct wholly-owned subsidiary of BGL ("BGLS")
and High River Limited Partnership, a Delaware limited partnership
("High River"), each hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Agreement by and
among BGL, BGLS and High River, dated October 17, 1995 (the "BGL
Agreement").
2. Section 1(a) of the BGL Agreement is deleted in its entirety
and all reference thereto in the BGL Agreement is likewise deleted.
3. Section 1(c)(ii)(B) of the BGL Agreement is hereby amended to
delete the subsection in its entirety and to substitute in lieu thereof
the following:
"(B) Prior to the consummation of the Spinoff, the BGL Group
will (I) not directly or indirectly exercise any management
control over Nabisco or Nabisco, Inc., a Delaware corporation
("Nabisco, Inc."), (II) refrain from becoming involved in the ordinary
course of business of Nabisco or Nabisco, Inc. and (III) use its best
efforts to ensure that a majority of the directors of Nabisco
and Nabisco, Inc. consists of individuals who are presently
members of the board of directors of Nabisco and Nabisco,
Inc., respectively and"
4. Section 3(c)(ix)(C) of the BGL Agreement is hereby amended to
delete the subsection in its entirety and to substitute in lieu thereof
the following:
"(C) fail to file the Solicitation Statement relating to the
Annual Meeting preliminarily with the SEC prior to the earlier of
(I) February 15, 1996 and (II) sixty (60) days following the
record date for the solicitation of Written Consents with
respect to the Spinoff Proposal and the By-Law Amendment
Proposal,"
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5. In the event that prior to February 1, 1996 (i) the BGL
Group provides High River Group with notice of termination of the BGL
Agreement or New Valley Group (as defined below) provides High River Group
with notice of termination of the Agreement by and among New Valley
Corporation, ALKI Corp. and High River, dated October 17, 1995 (the "New
Valley Agreement") at a time when a Termination Event set forth in
Section 3(c)(vii) or 3(c)(viii) of the BGL Agreement has occurred
or (ii) High River Group provides BGL Group with notice of
termination of the BGL Agreement or provides New Valley Group with
notice of termination of the New Valley Agreement at a time when a
Termination Event set forth in Section 3(c)(ix)(A) of the BGL Agreement
has occurred, BGL Group shall not transfer any Shares beneficially owned
by BLG Group until February 1, 1996 in consequence of or in reliance
upon such notice of termination. If the notice of termination specified
in clause (i) of the preceding sentence is provided after January 16,
1996, and the aggregate number of shares of common stock, par value $.01
per share, of RJR Nabisco Holdings Corp. ("Shares") beneficially owned
by High River Group exceeds the aggregate number of Shares beneficially
owned by (A) New Valley Corporation, ALKI Corp. and any assignee of the
foregoing ("New Valley Group") plus (B) BGL Group (collectively,
the "Aggregate LeBow Shares"), BGL Group shall not Transfer any
Shares beneficially owned by BGL Group for fifteen (15) days
following receipt by High River Group of BGL Group's or New Valley
Group's notice of termination; provided, however, that on such date
not before February 1, 1996 that the aggregate number of Shares
beneficially owned by High River Group is equal to or less than the
Aggregate LeBow Shares, and thereafter, BGL Group may Transfer any
Shares beneficially owned by BGL Group.
6. In the event that High River Group provides BGL
Group with notice of termination of the BGL Agreement or provides
New Valley Group with notice of termination of the New Valley Agreement
at a time when a Termination Event under any of Sections 3(c)(ix)(B)
through (E) of the BGL Agreement has occurred and the aggregate number
of shares beneficially owned by High River Group exceeds the Aggregate
LeBow Shares, BGL Group shall not Transfer any Shares beneficially owned
by BGL Group in consequence of or in reliance upon such notice of
termination until the earlier of (i) fifteen (15) days following receipt
by BGL Group or New Valley Group of High River Group's notice of
termination specified in the preceding sentence and (ii) the date that
the aggregate number of Shares beneficially owned by High River Group is
equal to or less than the Aggregate LeBow Shares.
7. BGLS shall promptly make any payments due under Section 4(c) of
the BGL Agreement. In the event that the High River Group believes that
BGLS has breached any of its obligations under Section 4(c) of the BGL
Agreement, the parties shall promptly follow the procedures set forth in
Section 1(c)(v) of the New Valley Agreement in order to resolve the
dispute. If the Arbitrator (as defined in the New Valley Agreement)
determines that BGLS is required to make a payment pursuant to Section
4(c) of the BGL Agreement, BGLS shall make or cause to be made to High
River Group such payment within twenty (20) days after receiving the
Arbitrator's notice of decision. In the event that BGLS fails to make such
payment within twenty (20) days after receipt of the Arbitrator's notice
of decision, BGLS shall immediately pay or cause to be paid to High River
Group an additional sum in the amount of $50 million.
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8. Section 9(k) shall be added to the BGL Agreement
to read as follows:
"(k) Anything in this agreement to the contrary
notwithstanding, High River shall have no obligation with
respect to the selection of the BGL Nominees or the
solicitation of Written Consents or Proxies."
9. Nothing herein contained shall be construed to
otherwise abrogate the rights and obligations of the parties to
this letter agreement with respect to all other provisions of the
BGL Agreement, the New Valley Agreement and the letter agreement by
and among New Valley, ALKI Corp. and High River, dated October 17,
1995 ("the Letter Agreement").
If the foregoing reflects your understanding, please
sign this letter below. Upon your execution hereof, this letter
agreement will become a binding contract between us.
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP., INC.
Its: General Partner
By:__________________________________
Name:
Title:
Agreed to and Accepted:
BROOKE GROUP LIMITED
By:_____________________________
Name:
Title:
BGLS INC.
By:_____________________________
Name:
Title:
[Signature page for letter agreement by and among Brooke Group
Limited, BGLS Inc. and High River Limited Partnership, dated
November 5, 1995]