UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934
 
(Amendment No. 5)*
 
REYNOLDS AMERICAN INC.
(Name of Issuer)
 
Common stock (par value $0.0001 per share)
(Title of Class of Securities)
 
761713106
(CUSIP Number)
 
Paul McCrory
Company Secretary
British American Tobacco p.l.c.
Globe House
4 Temple Place
London WC2R 2PG
United Kingdom
+44 (0) 20 7845 1000

With a copy to:

Philip A. Gelston, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
+1 (212) 474-1000

(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
 
June 8, 2017
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See Rule 13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other  provisions of the Act  (however, see the Notes).

 
 
 
 
CUSIP No. 761713106
 
1
NAMES OF REPORTING PERSONS
 
 
 
 
 
Brown & Williamson Holdings, Inc.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☐
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
0
 
 
 
 
8
SHARED VOTING POWER
 
 
446,668,038
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
0
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
446,668,038
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
446,668,038
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
31.3%
 
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
CO
 
 
 
 
 
 
 
CUSIP No. 761713106
 
1
NAMES OF REPORTING PERSONS
 
 
 
 
 
Louisville Securities Limited
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☐
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
AF, WC, BK and OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
England and Wales
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
0
 
 
 
 
8
SHARED VOTING POWER
 
 
601,368,171*
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
0
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
601,368,171*
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
601,368,171*
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
42.2%
 
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
CO
 
 
 
 
 
* Consists of an aggregate of 446,668,038 shares of common stock (“Common Stock”) of Reynolds American Inc. (the “Issuer”) held by Brown & Williamson Holdings, Inc. (“B&W”) and 154,700,133 shares of Common Stock held by Louisville Securities Limited (“Louisville”). B&W is a wholly owned subsidiary of BATUS Holdings Inc., which is a wholly owned subsidiary of Louisville.
 
 
CUSIP No. 761713106
 
1
NAMES OF REPORTING PERSONS
 
 
 
 
 
British American Tobacco p.l.c.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☐
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
AF, WC, BK and OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
England and Wales
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
0
 
 
 
 
8
SHARED VOTING POWER
 
 
601,368,171*
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
0
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
601,368,171*
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
601,368,171*
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
42.2%
 
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
CO
 
 
 
 
 
* Consists of an aggregate of 446,668,038 shares of common stock (“Common Stock”) of Reynolds American Inc. (the “Issuer”) held by Brown & Williamson Holdings, Inc. (“B&W”) and 154,700,133 shares of Common Stock held by Louisville Securities Limited (“Louisville”). B&W is a wholly owned subsidiary of BATUS Holdings Inc., which is a wholly owned subsidiary of Louisville. Louisville is a wholly owned subsidiary of British-American Tobacco (Holdings) Limited, which is a wholly owned subsidiary of B.A.T. Industries p.l.c., which is a wholly owned subsidiary of Weston (2009) Limited, which is a wholly owned subsidiary of British American Tobacco (2009) Limited, which is a wholly owned subsidiary of British American Tobacco (1998) Limited, which is a wholly owned subsidiary of British American Tobacco p.l.c.
 
 
 
 
This statement constitutes Amendment No. 5 (“Amendment No. 5”) to the Schedule 13D (the “Original Schedule 13D” and, as amended, the “Amended Schedule 13D”) filed with the U.S. Securities and Exchange Commission (“SEC”) on June 19, 2015, amended by Amendment No. 1 filed on July 26, 2016, Amendment No. 2 filed on September 15, 2016 and Amendment No. 3 filed on October 21, 2016 and Amendment No. 4 filed on January 17, 2017, relating to shares of the common stock, par value $0.0001 per share (the “Common Stock”), of Reynolds American Inc. (the “Issuer”), a North Carolina corporation, beneficially owned by Brown & Williamson Holdings, Inc. (“B&W”), Louisville Securities Limited (“Louisville”) and British American Tobacco p.l.c. (“BAT”).  This Amendment No. 5 amends the Amended Schedule 13D on behalf of the undersigned to furnish the information set forth herein. Except as set forth below, all Items of the Amended Schedule 13D remain unchanged.  Capitalized terms used but not defined in this Amendment No. 5 have the meanings assigned to them in the Amended Schedule 13D.

ITEM 4. PURPOSE OF TRANSACTION

Item 4 of the Amended Schedule 13D is hereby amended to add the following at the end thereof:

On June 8, 2017, BAT, BATUS, Merger Sub and the Issuer entered into an amendment (the “Amendment”) to the Merger Agreement, which amends the previously-announced Merger Agreement.  Under the terms of the Amendment, upon the completion of the Merger, the Amended and Restated Articles of Incorporation of the Issuer will be amended to provide for a minimum of one director instead of a minimum of nine directors.  In addition, the Amendment amends the Merger Agreement to provide that, as of the Effective Time (as defined in the Merger Agreement), BAT, on behalf of BATUS, will provide irrevocable written instruction to cause the BAT ADSs to be issued as the stock portion of the Merger Consideration (as defined in the Merger Agreement) to be deposited with or provided to the Exchange Agent (as defined in the Merger Agreement), instead of requiring deposit of such BAT ADSs with the Exchange Agent as of the Effective Time. Further, the Amendment amends the Merger Agreement to grant the Exchange Agent an additional two business days, for a total of five business days, to mail out to certain holders of shares of Common Stock held in book-entry form: (1) a notice of the effectiveness of the merger, (2) a statement reflecting the whole number of BAT ADSs in the name of such holder that such holder has the right to receive as Merger Consideration, and (3) an amount in cash that such holder has the right to receive as Merger Consideration.

Other than as expressly modified pursuant to the Amendment, the Merger Agreement, which was filed as Exhibit 99.12 to Amendment No. 4 filed on January 17, 2017, remains in full force and effect as originally executed on January 16, 2017. This summary of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment filed as Exhibit 99.15 to this Amendment No. 5, and is incorporated by reference in its entirety into this Item 4.

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

Item 6 of the Schedule 13D is hereby supplemented by incorporating by reference in its entirety the description of the Amendment set forth in Item 4 above.

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS

Exhibit 99.15  Amendment to Agreement and Plan of Merger, dated as of June 8, 2017, among British American Tobacco p.l.c., BATUS Holdings Inc., Flight Acquisition Corporation and Reynolds American Inc.
 
 
 
 
SIGNATURE
 
 
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
 
 
June 8, 2017
 
 
Brown & Williamson Holdings, Inc.
 
       
 
By:
/s/  Timothy J. Hazlett  
    Name:  Timothy J. Hazlett  
    Title:    President  
       
 
 
 
Louisville Securities Limited
 
       
 
By:
/s/  Steve Dale  
    Name:  Steve Dale  
    Title:    Director  
       
 
 
British American Tobacco p.l.c.
 
       
 
By:
/s/  Robert Casey  
   
Name:  Robert Casey
 
    Title:    Assistant General Counsel - Corporate  
       
 
 
 
EXHIBIT INDEX
 
Exhibit
Number
 
Description
     
99.15
 
Amendment to Agreement and Plan of Merger, dated as of June 8, 2017, among British American Tobacco p.l.c., BATUS Holdings Inc., Flight Acquisition Corporation and Reynolds American Inc.
Exhibit 99.15
 
 
 
AMENDMENT TO AGREEMENT AND PLAN OF MERGER

This AMENDMENT, dated as of June 8, 2017 (this “ Amendment ”) to the Agreement and Plan of Merger (the “ Agreement ”), dated as of January 16, 2017, among British American Tobacco p.l.c., a public limited company incorporated under the laws of England and Wales (“ Parent ”), BATUS Holdings Inc., a Delaware corporation and an indirect wholly owned subsidiary of Parent (“ BATUS ” and, together with Parent, the “ Parent Entities ”), Flight Acquisition Corporation, a North Carolina corporation and an indirect wholly owned subsidiary of Parent (“ Sub ”), and Reynolds American Inc., a North Carolina corporation (the “ Company ”), is made by and among the Parent Entities, Sub and the Company.

WHEREAS, subject to the terms and conditions set forth in this Amendment, and pursuant to Section 8.03 of the Agreement, the parties hereto desire to amend certain terms of the Agreement by entering into, and as set forth in, this Amendment.

NOW, THEREFORE, for and in consideration of the aforesaid premises and of the mutual representations, warranties and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the parties hereto hereby agree as set forth below:

Section 1.   Definitions .  Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Agreement unless otherwise indicated.

Section 2.   Amendments to Agreement .

2.1      Section 1.06(a) of the Agreement is hereby amended by adding the following words to the end thereof “; provided that Article Eighth, Section 2 of the Company Charter shall be amended and restated in its entirety as follows: ‘The number of directors which shall constitute the Whole Board shall be determined from time to time by resolution of the shareholders or the Board of Directors, but in no event shall be less than one.’”.

2.2      Section 2.02(a)(i) of the Agreement is hereby amended and restated in its entirety as follows: “Parent, on behalf of BATUS, shall have provided irrevocable written instruction to cause the aggregate number of Parent ADSs (rounded up to the nearest whole number) to be issued as Merger Consideration to be deposited with or provided to the Exchange Agent, in escrow for the benefit of the holders of Company Common Stock, and”.

2.3      Section 2.02(b) of the Agreement is hereby amended by replacing the words “three Business Days following the Effective Time:” with “(x) in the case of clause (i) of this Section 2.02(b), three Business Days following the Effective Time, or (y) in the case of clause (ii) of this Section 2.02(b), five Business Days following the Effective Time:”.

Section 3.   Representations and Warranties .

3.1      The Company hereby represents and warrants to the Parent Entities and Sub as follows: The Company has all requisite corporate power and authority, and has taken all corporate action necessary, to execute and deliver this Amendment and to perform its obligations
 
 
 
 
hereunder. The Company has duly executed and delivered this Amendment and, assuming this Amendment constitutes a valid and binding obligation of the Parent Entities and Sub, this Amendment constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditor’s rights generally and by general principles of equity.

3.2      The Parent Entities and Sub hereby represent and warrant to the Company as follows: Each of the Parent Entities and Sub has all requisite corporate power and authority, and has taken all corporate or other action necessary, to execute and deliver this Amendment and to perform its obligations hereunder. Each of the Parent Entities, BATUS and Sub has duly executed and delivered this Amendment, and, assuming this Amendment constitutes a valid and binding obligation of the Company, this Amendment constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity.

Section 4.   General Provisions .

4.1      All of the provisions of this Amendment shall be effective as of the date of this Amendment. Except to the extent specifically amended hereby, all of the terms of the Agreement shall remain unchanged and in full force and effect, and, to the extent applicable, such terms shall apply to this Amendment as if it formed a part of the Agreement.

4.2      After giving effect to this Amendment, each reference in the Agreement to “this Agreement”, “hereof”, “herein,” “hereto,” and “hereunder” and words of similar import referring to the Agreement shall refer to the Agreement as amended by this Amendment and all references in the Company Disclosure Letter or the Parent Disclosure Letter to “the Agreement” shall refer to the Agreement as amended by this Amendment. All references in the Agreement, the Company Disclosure Letter or the Parent Disclosure Letter to “the date hereof” or “the date of this Agreement” shall refer to January 16, 2017.

4.3      This Amendment and the Agreement (including the Exhibits thereto), taken together with the Company Disclosure Letter, the Parent Disclosure Letter, the Clean Team Agreement, the Confidentiality Agreement and the Confidentiality/Antitrust Protocol (but excluding, for the avoidance of doubt, the Governance Agreement), constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the Transactions.

4.4      The provisions of Article IX (General Provisions) of the Agreement shall, to the extent not already set forth in this Amendment, apply mutatis mutandis to this Amendment, and to the Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby.

[Signature Page Follows]
 
 
2
 
 
IN WITNESS WHEREOF, Parent, BATUS, Sub and the Company duly executed and delivered this Amendment, all as of the date first above written.
 
 
 
BRITISH AMERICAN TOBACCO P.L.C.
 
     
  by     
 
 
/s/ Robert Casey  
    Name:  Robert Casey  
    Title:        Assistant General Counsel - Corporate  
 
 
 
 
BATUS HOLDINGS INC.
 
     
  by     
 
 
/s/ L. Brent Cotton  
    Name:  L. Brent Cotton  
    Title:      President  
 
 
 
 
FLIGHT ACQUISITION CORPORATION
 
     
  by     
 
 
/s/ L. Brent Cotton  
    Name:  L. Brent Cotton  
    Title:       President  
 
 
 
 
REYNOLDS AMERICAN INC.
 
     
  by     
 
 
/s/ McDara P. Folan, III  
    Name:  McDara P. Folan, III  
    Title:       Senior Vice President, Deputy General Counsel and Secretary