UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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): July 25, 2017
Reynolds American Inc.
(Exact Name of Registrant as Specified in Charter)
| North Carolina | 1-32258 | 20-0546644 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer
Identification No.) |
401 North Main Street
Winston-Salem, North Carolina 27101
(Address of Principal Executive Offices) (ZIP Code)
Registrant’s telephone number, including area code: (336) 741 2000
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
| ☐ | Emerging growth company |
| ☐ | If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. |
| Item 1.01 | Entry into a Material Definitive Agreement. |
As previously reported, Reynolds American Inc., referred to as RAI, entered into an indenture, dated as of May 31, 2006, as supplemented, referred to as the RAI Indenture, with The Bank of New York Mellon Trust Company, N.A., as trustee, and certain subsidiaries of RAI as guarantors. There is approximately $12.7 billion aggregate principal amount of unsecured RAI debt securities, referred to as the RAI Notes, outstanding under the RAI Indenture.
In addition, RAI’s indirect, wholly owned subsidiary, R. J. Reynolds Tobacco Company, referred to as RJRT, is the issuer (as a successor to Lorillard Tobacco Company) under an indenture dated June 23, 2009, as supplemented, referred to as the RJRT Indenture, with The Bank of New York Mellon Trust Company, N.A., as trustee, and RAI and R.J. Reynolds Tobacco Holdings, Inc., a direct, wholly owned subsidiary of RAI, referred to as RJR, as guarantors. There is approximately $284 million aggregate principal amount of unsecured RJRT debt securities, referred to as the RJRT Notes, outstanding under the RJRT Indenture.
On July 25, 2017, British American Tobacco p.l.c., referred to as BAT, became a guarantor, on an unsecured basis, of the RAI Notes under the RAI Indenture pursuant to the Sixth Supplemental Indenture thereto, and became a guarantor of the RJRT Notes under the RJRT Indenture pursuant to the Ninth Supplemental Indenture thereto and a related Guarantee Agreement.
The foregoing description of the guarantees of the RAI Notes and RJRT Notes does not purport to be a complete description and is qualified in all respects by reference to the complete text of the Sixth Supplemental Indenture to the RAI Indenture, the Ninth Supplemental Indenture to the RJRT Indenture and the Guarantee Agreement related thereto, which are filed as Exhibits 4.2, 4.3 and 4.4 hereto, respectively, and are incorporated by reference herein.
The trustee under the RAI and RJRT Indentures, The Bank of New York Mellon Trust Company, N.A., or its affiliates have engaged in, and may in the future engage in, commercial or investment banking, corporate trust or other commercial dealings in the ordinary course of business with RAI or its affiliates. Such trustee or its affiliates have received, or may in the future receive, customary fees and commissions for these transactions.
| Item 1.02 | Termination of a Material Definitive Agreement. |
Termination of Credit Agreement and Related Subsidiary Guarantee Agreements
As previously reported, RAI entered into a credit agreement, dated as of December 18, 2014, among RAI, as borrower, the various agents thereunder and the lenders party thereto from time to time, as amended, referred to as the Credit Agreement. RAI’s obligations under the Credit Agreement were guaranteed by certain subsidiaries of RAI pursuant to subsidiary guarantee agreements.
In connection with the closing of the Merger described in Item 2.01 below, RAI terminated the Credit Agreement on July 25, 2017. No borrowed amounts nor letters of credit were outstanding under the Credit Agreement as of such date. The subsidiary guarantee agreements and the guarantees provided thereby automatically terminated as a result of the termination of the Credit Agreement.
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Termination of Guarantees of RAI Notes
The RAI Notes were guaranteed by the same subsidiaries that guaranteed the Credit Agreement. The RAI Indenture provides that a guarantor that is released from its guarantee of the Credit Agreement (or any successor) will also be released from its guarantee of the RAI Notes. Consequently, in connection with the termination of the Credit Agreement, the guarantees of the RAI Notes of the following RAI subsidiaries were automatically released on July 25, 2017: American Snuff Company, LLC, Conwood Holdings, Inc., Lorillard Licensing Company LLC, Reynolds Finance Company, Reynolds Innovations Inc., R. J. Reynolds Global Products, Inc., R. J. Reynolds Tobacco Co., RJRT, RAI Services Company, Rosswil LLC and Santa Fe Natural Tobacco Company, Inc.
Although the guarantee of RAI’s direct, wholly owned subsidiary, RJR, was automatically released, it was simultaneously replaced by a new guarantee pursuant to the Fifth Supplemental Indenture to the RAI Indenture, dated as of July 25, 2017, in order to comply with a covenant of the RAI Indenture. The foregoing description of RJR’s guarantee of the RAI Notes does not purport to be a complete description and is qualified in all respects by reference to the complete text of the Fifth Supplemental Indenture to the RAI Indenture, which is filed as Exhibit 4.1 hereto and incorporated by reference herein.
The information set forth in the fifth paragraph of Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
As previously reported on January 16, 2017, RAI, BAT, BATUS Holdings Inc., an indirect, wholly owned subsidiary of BAT, referred to as BATUS, and Flight Acquisition Corporation, an indirect, wholly owned subsidiary of BAT, referred to as Merger Sub, entered into an Agreement and Plan of Merger, as it and the plan of merger contained therein were amended as of June 8, 2017, referred to as the Merger Agreement, pursuant to which, subject to the satisfaction or waiver of certain conditions, Merger Sub would merge with and into RAI, referred to as the Merger, with RAI surviving as an indirect, wholly owned subsidiary of BAT.
On July 25, 2017, referred to as the Closing Date, pursuant to the Merger Agreement, Merger Sub merged with and into RAI, with RAI surviving as an indirect, wholly owned subsidiary of BAT. Prior to the closing of the Merger, BAT owned approximately 42% of RAI’s outstanding common stock, par value $0.0001 per share, referred to as RAI common stock, through its wholly owned subsidiaries.
Pursuant to the terms of the Merger Agreement and at the effective time of the Merger, referred to as the Effective Time, each share of RAI common stock (other than shares of RAI common stock owned by BAT and its subsidiaries or excluded holders (as defined in RAI’s Definitive Proxy Statement filed with the U.S. Securities and Exchange Commission, referred to as the SEC, on June 14, 2017)), was automatically converted into the right to receive (1) a number of BAT American depositary shares, referred to as BAT ADSs, representing 0.5260 of an ordinary share, nominal value 25 pence, of BAT, referred to as a BAT ordinary share, plus (2)
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$29.44 in cash, without interest, collectively referred to as the Merger Consideration. No fractional BAT ADSs were issued in the Merger, and RAI shareholders will receive cash in lieu of any fractional BAT ADSs. Based on the per share closing price of a BAT ADS of $69.25, as quoted on NYSE American (formerly known as NYSE MKT) on July 24, 2017 at the time of NYSE American market close, the implied per share value of the Merger Consideration was approximately $65.87.
Following the closing of the Merger, the shares of RAI common stock, which previously traded under the ticker symbol “RAI” on the New York Stock Exchange, referred to as the NYSE, were suspended from trading on the NYSE and are in the process of being formally delisted from the NYSE.
The foregoing description of the Merger and the Merger Agreement does not purport to be a complete description and is qualified in all respects by reference to the Merger Agreement, which was filed as Exhibit 2.1 to RAI’s Current Report on Form 8-K filed with the SEC on January 17, 2017, and is incorporated by reference herein, and the Amendment to Agreement and Plan of Merger, which was filed as Exhibit 2.1 to RAI’s Current Report on Form 8-K filed with the SEC on June 8, 2017, and is incorporated by reference herein.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
In connection with the closing of the Merger, RAI notified the NYSE that each share of RAI common stock (other than shares of RAI common stock owned by BAT and its subsidiaries or excluded holders) was automatically converted into the right to receive the Merger Consideration, as described in Item 2.01 above. All shares of RAI common stock, which traded under the symbol “RAI”, were suspended from trading on the NYSE prior to the opening of trading on July 25, 2017. RAI has requested that the NYSE file with the SEC a notification of removal from listing and registration on Form 25 to effect the delisting of RAI common stock from the NYSE and the deregistration of RAI common stock under Section 12(b) of the Securities Exchange Act of 1934, referred to as the Exchange Act. The NYSE filed the Form 25 with respect to RAI common stock on July 25, 2017. RAI intends to file a Form 15 with the SEC with respect to RAI common stock, requesting the termination of registration under Section 12(g) of the Exchange Act and suspension of reporting obligations under Sections 13 and 15(d) of the Exchange Act.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference herein.
| Item 3.03 | Material Modification to Rights of Security Holders. |
Conversion of RAI Common Stock
As described in Item 2.01 above, pursuant to the terms of the Merger Agreement and at the Effective Time, each share of RAI common stock (other than shares of RAI common stock owned by BAT and its subsidiaries or excluded holders) was automatically converted into the right to receive the Merger Consideration, as further described above in Item 2.01. At the Effective Time, RAI shareholders immediately prior to the Effective Time (other than BAT and its subsidiaries or excluded holders) ceased to have any rights as RAI shareholders other than the right to receive the Merger Consideration.
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The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference herein.
Equity-Based Compensation
Pursuant to the Merger Agreement, at the Effective Time, RAI’s equity-based compensation awards were cancelled and converted into the right to receive either (1) the Merger Consideration, (2) a cash payment in an amount equal to the value of the Merger Consideration or (3) in the case of each Rollover RSU (as defined in the Merger Agreement) outstanding immediately prior to the Effective Time, either (a) a restricted stock unit of BAT or (b) a performance-based stock unit of BAT, as applicable, with respect to a target number of BAT ADSs determined by multiplying the target number of shares of RAI common stock subject to such Rollover RSU prior to the Effective Time by the RSU Exchange Ratio (as defined in the Merger Agreement), subject in each case to any required withholding taxes.
The foregoing description of certain compensation and benefit arrangements made in connection with the Merger is not complete and is qualified in its entirety by reference to the Merger Agreement, which was filed as Exhibit 2.1 to RAI’s Current Report on Form 8-K filed with the SEC on January 17, 2017, and is incorporated by reference herein, and the Amendment to Agreement and Plan of Merger, which was filed as Exhibit 2.1 to RAI’s Current Report on Form 8-K filed with the SEC on June 8, 2017, and is incorporated by reference herein.
Guarantees
The information set forth in Item 1.01 and in Item 1.02 under the heading “ Termination of Guarantees of RAI Notes ” of this Current Report on Form 8-K is incorporated by reference herein.
| Item 5.01 | Changes in Control of Registrant. |
As a result of the closing of the Merger, a change in control of RAI occurred when Merger Sub merged with and into RAI, with RAI surviving as an indirect, wholly owned subsidiary of BAT.
BAT financed the cash portion of the Merger Consideration—totaling approximately $24.0 billion—and related fees and expenses in connection with the transactions contemplated by the Merger Agreement with drawings under the acquisition facility, pursuant to the term loan facilities agreement, dated as of January 16, 2017, among B.A.T. International Finance p.l.c., referred to as BATIF, and B.A.T Capital Corporation, referred to as BATCAP, as original borrowers, BAT, as guarantor, HSBC Bank plc, as agent, HSBC Bank USA, National Association, as U.S. agent and the lenders and financial institutions party thereto. It is currently expected that the funded acquisition facility will be refinanced by bond issuances in due course.
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Pursuant to Section 6.17 of the Merger Agreement, the BAT board of directors appointed Luc Jobin, Holly Keller Koeppel and Lionel L. Nowell, III to the BAT board of directors as of the Effective Time.
The information set forth in Item 2.01 and Item 5.02 of this Current Report on Form 8-K is incorporated by reference herein.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Directors and Officers
In connection with the Merger and pursuant to the Merger Agreement, each member of the RAI board of directors resigned as of the Effective Time. The members of RAI’s board of directors immediately prior to the Effective Time were: Jerome B. Abelman, John A. Boehner, Susan M. Cameron, Debra A. Crew, Martin D. Feinstein, Luc Jobin, Murray S. Kessler, Holly K. Koeppel, Jean-Mark Lévy, Nana Mensah, Lionel L. Nowell, III, Ricardo Oberlander, Ronald S. Rolfe and John J. Zillmer. In connection with the Merger and pursuant to Section 1.07 of the Merger Agreement, as of the Effective Time, the following individuals, who were the directors of Merger Sub immediately prior to the Effective Time, became the directors of RAI: L. Brent Cotton and Michael J. Walter. Following the closing of the Merger, Debra A. Crew, McDara P. Folan, III, and Martin L. Holton III were appointed to the RAI board of directors effective as of 11:59 p.m. New York City time on the Closing Date. L. Brent Cotton and Michael J. Walter have each submitted a letter providing for their resignations as directors of RAI effective as of 11:59 p.m. New York City time on the Closing Date.
Andrew D. Gilchrist, as Executive Vice President and Chief Financial Officer of RAI and as a Named Executive Officer and Principal Financial Officer of RAI, has indicated that he intends to resign from his positions on August 4, 2017.
Transition Agreements
On July 24, 2017, in connection with and contingent upon the closing of the Merger, RAI entered into a transition agreement, each referred to as a Transition Agreement and collectively the Transition Agreements, with each of Andrew D. Gilchrist, RAI’s Executive Vice President and Chief Financial Officer, and Martin L. Holton III, RAI’s Executive Vice President, General Counsel and Assistant Secretary. The Transition Agreements modify certain terms of Mr. Gilchrist’s and Mr. Holton’s letter agreements with RAI, each dated November 12, 2007, regarding special severance benefits and change of control protections. These two original letter agreements are referred to as the 2/3 Agreements. Similar transition agreements were entered into with certain of RAI’s other executive officers.
The Transition Agreements provide that, following the closing of the Merger, RAI or an affiliate or successor of RAI, collectively referred to as the Company throughout this Item 5.02, will continue Mr. Gilchrist’s or Mr. Holton’s, as applicable, service until August 4, 2017 or December 31, 2018, respectively, each referred to as the Departure Date. The Transition Agreements provide that the applicable Departure Date can be deferred to a later date if mutually
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agreed to by the Company and Mr. Gilchrist or Mr. Holton, as applicable. The period beginning on the Closing Date, and ending on the applicable Departure Date is referred to as the Transition Period.
In addition to certain non-material clarification and consistency changes, the modifications to the 2/3 Agreements contained in the Transition Agreements are as described below. Prior to the modifications described below, each 2/3 Agreement provided that, in general, a termination of employment entitling Mr. Gilchrist or Mr. Holton, as applicable, to “Special Severance Benefits” (as defined in the 2/3 Agreements) would occur only upon, as applicable, a termination of Mr. Gilchrist’s or Mr. Holton’s employment by RAI without “Cause” (as defined in the 2/3 Agreements), by Mr. Gilchrist or Mr. Holton for “General Good Reason” (as defined in the 2/3 Agreements), or, within the 24-month period following a change of control such as the Merger, by Mr. Gilchrist or Mr. Holton for “Change of Control Good Reason” (as defined in the 2/3 Agreements and which Mr. Gilchrist and Mr. Holton could claim as of the Effective Time).
| • | The Transition Agreements provide that any termination of Mr. Gilchrist’s or Mr. Holton’s employment, as applicable, other than for Cause, during the applicable Transition Period, will be a termination of employment entitling Mr. Gilchrist or Mr. Holton (or, in the event of Mr. Gilchrist’s or Mr. Holton’s death, Mr. Gilchrist’s or Mr. Holton’s estate or Pension Beneficiaries (as defined in the Transition Agreements)), as applicable, to Special Severance Benefits under the 2/3 Agreements. |
| • | The Transition Agreements provide that upon a termination of employment entitling Mr. Gilchrist or Mr. Holton, as applicable, to Special Severance Benefits under the 2/3 Agreements, subject to the execution of a release of claims, the Company will provide the following payments and benefits to Mr. Gilchrist or Mr. Holton (or, in the event of Mr. Gilchrist’s or Mr. Holton’s death, Mr. Gilchrist’s or Mr. Holton’s estate or Pension Beneficiary), as applicable (subject to applicable withholding): |
| • | A lump-sum cash payment equal to two times base salary plus target bonus at the time of such termination, referred to as the Base Severance Amount; |
| • | Continued coverage of Mr. Gilchrist or Mr. Holton, and each of his eligible dependents, as applicable, under the Company’s medical, life, dental and vision insurance benefit plans during the three-year period following the date of such termination, referred to as the Post-Termination Period, at the same cost structure as for active employees; |
| • | A lump-sum cash payment equal to the matching contributions and/or retirement enhancement contributions (if any) that would have been contributed by the Company under any RAI qualified defined contribution plan and nonqualified defined contribution plan if Mr. Gilchrist or Mr. Holton, as applicable, had continued employment with the Company during the Post-Termination Period, calculated based on the Base Severance Amount and as if Mr. Gilchrist or Mr. Holton, as applicable, would have been entitled to the maximum matching contributions during the Post-Termination Period; |
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| • | An additional defined benefit pension plan benefit determined as if Mr. Gilchrist or Mr. Holton, as applicable, had continued employment during the Post-Termination Period, calculated based on the Base Severance Amount; |
| • | If eligible as of the date of such termination, additional age and service credit towards eligibility for retiree health and life insurance coverage determined as if Mr. Gilchrist or Mr. Holton, as applicable, had continued employment during the Post-Termination Period; |
| • | A lump-sum cash payment equal to the annual executive supplemental payment that would have been made to Mr. Gilchrist or Mr. Holton, as applicable, during the Post-Termination Period; |
| • | A lump-sum cash payment equal to the maximum contributions the Company would have made to Mr. Gilchrist’s or Mr. Holton’s notional account, as applicable, under the Company’s MedSave plan during the Post-Termination Period; and |
| • | Continued participation during the Post-Termination Period in any of the Company’s voluntary, employee pay-all plans or programs that Mr. Gilchrist or Mr. Holton, as applicable, participate in on the date of such termination. |
| • | The Transition Agreements provide that any termination of employment entitling Mr. Gilchrist or Mr. Holton, as applicable, to Special Severance Benefits under the 2/3 Agreements would be considered a termination of employment entitling Mr. Gilchrist or Mr. Holton, as applicable, to severance benefits for purposes of any annual bonus or equity arrangements of the Company that provide special benefits upon such a termination. |
| • | The Transition Agreements provide that the Company will pay to Mr. Gilchrist or Mr. Holton, or Mr. Gilchrist’s or Mr. Holton’s eligible dependents, estate, or Pension Beneficiary, as applicable, all legal and accounting fees as incurred in seeking to obtain or enforce any right or benefit under the Transition Agreement, unless the claim is determined to be frivolous. |
| • | As a condition to entering into each of their 2/3 Agreements, each of Mr. Gilchrist and Mr. Holton executed a restrictive covenants agreement, covering non-competition, non-disclosure and cooperation matters, that will apply for a three-year period following a termination of Mr. Gilchrist’s or Mr. Holton’s employment, as applicable. Payments under the Transition Agreements are subject to a reaffirmation of such restrictive covenant obligations following a termination of employment. |
The foregoing description of the Transition Agreements does not purport to be a complete description of the terms of the Transition Agreements, and is qualified in all respects by reference to the complete text of the form Transition Agreement, a copy of which is being filed as Exhibit 10.1 hereto and is incorporated by reference herein.
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| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
At the Effective Time, RAI filed with the Secretary of State of the State of North Carolina the articles of merger relating to the Merger. At the Effective Time, the Restated Articles of Incorporation of Reynolds American Inc., as amended, as in effect immediately prior to the Effective Time, referred to as the Restated Articles of Incorporation of RAI, remained the articles of incorporation of RAI as the surviving corporation in the Merger, except that the Restated Articles of Incorporation were amended to provide for a minimum of one director instead of a minimum of nine directors. In addition, the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, became the bylaws of RAI as the surviving corporation in the Merger, except that all references to Merger Sub were replaced with the name of RAI.
After the Effective Time on the Closing Date, RAI further amended the Restated Articles of Incorporation of RAI, referred to as the Amended and Restated Articles of Incorporation of RAI, and the bylaws of RAI, referred to as the Second Amended and Restated Bylaws of RAI.
A copy of the Amended and Restated Articles of Incorporation of RAI is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference herein, and a copy of the Second Amended and Restated Bylaws of RAI is filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated by reference herein.
The information regarding the Merger and the Merger Agreement set forth in Item 2.01 of this Current Report on 8-K is incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits .
The following are filed as Exhibits to this Current Report on Form 8-K.
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Exhibit
|
Description |
|
| 2.1 | Agreement and Plan of Merger, dated as of January 16, 2017, among British American Tobacco p.l.c., BATUS Holdings Inc., Flight Acquisition Corporation and Reynolds American Inc. (incorporated by reference to Exhibit 2.1 to Reynolds American Inc.’s Form 8-K, dated January 17, 2017) and 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. (incorporated by reference to Exhibit 2.1 to Reynolds American Inc.’s Form 8-K, dated June 8, 2017). | |
| 3.1 | Amended and Restated Articles of Incorporation of Reynolds American Inc., dated July 25, 2017. | |
| 3.2 | Second Amended and Restated Bylaws of Reynolds American Inc., dated July 25, 2017. | |
| 4.1 | Fifth Supplemental Indenture, dated July 25, 2017, to Reynolds American Inc. Indenture dated May 31, 2006. | |
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|
Exhibit
|
Description |
|
| 4.2 | Sixth Supplemental Indenture, dated July 25, 2017, to Reynolds American Inc. Indenture dated May 31, 2006. | |
| 4.3 | Ninth Supplemental Indenture, dated July 25, 2017, to R. J. Reynolds Tobacco Company Indenture dated June 23, 2009. | |
| 4.4 | Guarantee Agreement of British American Tobacco p.l.c. dated July 25, 2017 related to the Ninth Supplemental Indenture, dated July 25, 2017, to R. J. Reynolds Tobacco Company Indenture dated June 23, 2009. | |
| 10.1 | Form of Transition Agreement between Reynolds American Inc. and the executive officer named therein. | |
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SIGNATURE
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 thereunto duly authorized.
Date: July 25, 2017
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REYNOLDS AMERICAN INC. |
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By: |
/s/ McDara P. Folan, III |
|
| Name: | McDara P. Folan, III | |
| Title: |
Senior Vice President, Deputy
General Counsel and Secretary |
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EXHIBIT INDEX
|
Exhibit
|
Description |
|
| 2.1 | Agreement and Plan of Merger, dated as of January 16, 2017, among British American Tobacco p.l.c., BATUS Holdings Inc., Flight Acquisition Corporation and Reynolds American Inc. (incorporated by reference to Exhibit 2.1 to Reynolds American Inc.’s Form 8-K, dated January 17, 2017) and 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. (incorporated by reference to Exhibit 2.1 to Reynolds American Inc.’s Form 8-K, dated June 8, 2017). | |
| 3.1 | Amended and Restated Articles of Incorporation of Reynolds American Inc., dated July 25, 2017. | |
| 3.2 | Second Amended and Restated Bylaws of Reynolds American Inc., dated July 25, 2017. | |
| 4.1 | Fifth Supplemental Indenture, dated July 25, 2017, to Reynolds American Inc. Indenture dated May 31, 2006. | |
| 4.2 | Sixth Supplemental Indenture, dated July 25, 2017, to Reynolds American Inc. Indenture dated May 31, 2006. | |
| 4.3 | Ninth Supplemental Indenture, dated July 25, 2017, to R. J. Reynolds Tobacco Company Indenture dated June 23, 2009. | |
| 4.4 | Guarantee Agreement of British American Tobacco p.l.c. dated July 25, 2017 related to the Ninth Supplemental Indenture, dated July 25, 2017, to R. J. Reynolds Tobacco Company Indenture dated June 23, 2009. | |
| 10.1 | Form of Transition Agreement between Reynolds American Inc. and the executive officer named therein. | |
Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
REYNOLDS AMERICAN INC.
ARTICLE FIRST
The name of the corporation is Reynolds American Inc. (the “Corporation”).
ARTICLE SECOND
The address of the registered office of the Corporation in the State of North Carolina is 2626 Glenwood Avenue, Suite 550, Raleigh, Wake County, North Carolina 27608. The name of the registered agent is Corporation Service Company.
ARTICLE THIRD
The name and address of the incorporator is Scott J. Reiners, Jones Day, 222 East 41st Street, New York, NY 10017.
ARTICLE FOURTH
The address of the Corporation’s principal office is 401 North Main Street, Winston-Salem, Forsyth County, North Carolina 27102-2990.
ARTICLE FIFTH
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the North Carolina Business Corporation Act as the same exists or may hereafter be amended (the “NCBCA”).
ARTICLE SIXTH
The total number of shares of capital stock that the Corporation is authorized to issue is 3,300,000,000 shares of which 3,200,000,000 shares are Common Stock, par value $.0001 each (“Common Stock”), and 100,000,000 shares are Preferred Stock, par value $.01 each (“Preferred Stock”). The Corporation may issue Preferred Stock from time to time in one or more series with such distinctive designations as may be stated in the resolution or resolutions providing for the issue of such stock from time to time adopted by the Board of Directors, after which the Corporation shall amend these Articles of Incorporation to the extent required by the NCBCA. The resolution or resolutions providing for the issue of shares of a particular series shall fix, subject to applicable laws and the provisions of this ARTICLE SIXTH, for each such series the number of shares constituting such series and the designations and powers, preferences and relative participating, optional or other special rights and qualifications, limitations or restrictions thereof, including, without limiting the generality of the foregoing, such provisions as may be desired concerning voting, redemption, dividends, dissolution or the distribution of assets, conversion or exchange, and such other subjects or matters as may be fixed by resolution or resolutions of the Board of Directors or a duly authorized committee thereof in accordance with applicable law.
Holders of Common Stock are entitled to the entire voting power and all net assets of the Corporation upon dissolution, subject to the rights and preferences, if any, of the holders of Preferred Stock to such voting power and assets upon dissolution pursuant to applicable law, these Articles of Incorporation and the resolution or resolutions of the Board of Directors providing for the issue of one or more series of Preferred Stock.
The following is a statement of the number, designation, powers, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions of the Series B Preferred Stock (the “Series B Preferred Stock”) of the Corporation:
(1) Designation and Number of Shares . The shares of such series shall be designated as “Series B Preferred Stock, par value $0.01 per share”, and the number of shares constituting such series shall be 1,000,000. Such number of shares of the Series B Preferred Stock may be increased or decreased by resolution of the Board of Directors.
(2) Dividends and Distributions . The holders of shares of Series B Preferred Stock will be entitled to receive cumulative dividends on the Series B Preferred Stock at a rate equal to 11.25% per annum. Such dividends will be payable in cash or, at the option of the Corporation, in additional shares of Series B Preferred Stock valued at the Liquidation Preference Amount (as defined below) per share of Series B Preferred Stock or in other non-cash consideration. Such dividends will accumulate commencing as of the original issuance date of such Series B Preferred Stock, compounded on January 1, April 1, July 1 and October 1 of each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of any such share or fraction of a share of Series B Preferred Stock, whether or not they have been declared and whether or not the Corporation may legally pay the dividends. Such dividends will become due and payable with respect to any shares of Series B Preferred Stock when, as and if declared by the Board of Directors and under the circumstances provided in Sections 4 and 6. Accrued but unpaid dividends shall not bear interest and shall not prevent the Corporation from paying dividends on Common Stock or any series of capital stock of the Corporation that shall be junior to, or pari passu with, the Series B Preferred Stock.
(3) Voting Rights . In addition to any other voting rights required by law, each share of Series B Preferred Stock shall entitle the holder thereof to one vote per share on all matters submitted to a vote of shareholders of the Corporation. Except as otherwise provided herein or by law, (i) the holders of shares of Series B Preferred Stock and the holders of shares of Common Stock (and any other class of Preferred Stock having the right to vote together as a single class with holders of shares of Common Stock) shall vote together as a single class on all matters submitted to a vote of shareholders of the Corporation and (ii) the holders of Series B Preferred Stock shall have no special voting rights and their consent shall not be required for taking any corporate action.
(4) Liquidation Preference . Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (in each case, a “Liquidation Event”), each holder of outstanding shares of Series B Preferred Stock will be entitled to be paid out of the assets of the Corporation legally available for distribution to shareholders, whether such assets are capital, surplus or earnings, and before any amount will be paid or distributed to the holders of Common Stock or other capital stock of the Corporation ranking junior to the Series B Preferred Stock, an amount in cash, equal to (A) $378.00 per share of Series B Preferred Stock held by such holder (adjusted appropriately for stock splits, stock dividends, recapitalizations and the like with respect to the Series B Preferred Stock) plus (B) any accumulated but unpaid dividends (as if such dividends had been declared) to which such holder of outstanding shares of Series B Preferred Stock is then entitled (the sum of clauses (A) and (B) being referred to herein as the “Liquidation Preference Amount”). After the payment or distribution to the holders of the Series B Preferred Stock of the aggregate Liquidation Preference Amount, the holders of all capital stock of the Corporation ranking junior to the Series B Preferred then outstanding will be entitled to receive all remaining assets of the Corporation as herein provided.
(5) Non-Cash Consideration . In the event the Corporation elects to make a payment under Section 2 or 4 to the holders of Series B Preferred Stock consisting of consideration other than cash or Series B Preferred Stock, any securities or other property to be delivered to the holders of the Series B Preferred Stock will be valued as follows:
(a) Securities will be valued as follows:
(i) if traded on a securities exchange, the value will be deemed to be the average of the closing prices of the securities on such exchange over the 20-day period ending three days prior to the date of payment;
(ii) if actively traded over-the-counter, the value will be deemed to be the average of the closing bid prices over the 20-day period ending three days prior to the date of payment; and
(iii) if there is no active public market, the value will be the fair market value thereof, as determined by the Board of Directors in good faith.
(b) All other property shall be valued at the fair market value thereof, as determined by the Board of Directors in good faith.
(6) Conversion . The holders of shares of Series B Preferred Stock will not be entitled to cause any of the outstanding shares of Series B Preferred Stock held by such holder to be converted into shares of Common Stock.
(7) Redemption .
(a) The Corporation, at its option, may redeem the Series B Preferred Stock, at any time or from time to time, in whole or in part, after August 1, 2024, at a redemption price of the Liquidation Preference Amount per share.
(b) If less than all of the outstanding shares of Series B Preferred Stock are to be redeemed, the shares to be redeemed shall be selected pro rata as nearly as practicable, by lot, or by such other method as the Corporation may determine to be fair and appropriate.
(c) Notice of any redemption shall be delivered by first class mail, postage prepaid, and mailed not less than 10 nor more than 60 days prior to the date fixed for redemption, to the holder(s) of record of the Series B Preferred Stock at their respective addresses appearing on the books of the Corporation. Notice so mailed shall be conclusively presumed to have been duly given whether or not actually received. Such notice shall state (i) the date fixed for redemption; (ii) the Liquidation Preference Amount; (iii) the number of shares of Series B Preferred Stock to be redeemed and, if less than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iv) the place where such shares are to be paid at the Liquidation Preference Amount; and (v) that after such date fixed for redemption, the shares to be redeemed shall not accrue dividends. If (A) such notice is mailed as aforesaid, and is on or before the date fixed for redemption and (B) funds sufficient to redeem the shares called for redemption are set aside by the Corporation in trust for the accounts of the holder(s) of the shares to be redeemed, on and after the redemption date the shares represented thereby so called for redemption shall be deemed to be no longer outstanding, distributions thereon shall cease to accrue, and all rights of the holder(s) of such shares shall cease, except the right to receive the Liquidation Preference Amount, without interest.
(d) At the option of the Corporation, if (A) notice of redemption is mailed as aforesaid and (B) prior to the date fixed for redemption funds sufficient to pay in full the aggregate Liquidation Preference Amount are deposited in trust, for the account of the holders of the shares to be redeemed, with a bank or trust company named in such notice on and after such date of deposit, the shares represented thereby called for redemption shall be deemed to be no longer outstanding and all rights of the holder(s) of such shares as stockholders of the Corporation shall cease, except the right of the holder(s) thereof to receive out of the funds deposited in trust the Liquidation Preference Amount, without interest. Any funds deposited with such bank or trust company that remain unclaimed by that holder of shares called for redemption at the end of two years after the redemption date shall be repaid to the Corporation, on demand, and thereafter the holder(s) of any such shares shall look only to the Corporation for payment, without interest, of the Liquidation Preference Amount.
(8) No Reissuance of Series B Preferred Stock . No share or shares of Series B Preferred Stock acquired by the Corporation by reason of purchase, conversion or otherwise will be reissued, and all such shares will be canceled, retired and eliminated from the shares which the Corporation will be authorized to issue.
(9) Amendment; Waiver . Except as expressly prohibited by law, the rights, qualifications, limitations and restrictions of the Series B Preferred Stock may be amended or waived with the approval of the holders of a majority of the Series B Preferred Stock and the Board of Directors. Any amendment or waiver so effected shall be binding upon each holder of Series B Preferred Stock.
(10) Rank . The Series B Preferred Stock shall rank senior (upon liquidation, dissolution and winding up, but not with respect to the payment of dividends) to all other series of the Corporation’s capital stock, except any series that by its terms ranks senior to or pari passu with the Series B Preferred Stock.
(11) Fractional Shares . Series B Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series B Preferred Stock.
ARTICLE SEVENTH
The Board of Directors of the Corporation, acting by the affirmative vote of a majority of the Whole Board (as defined below), may alter, adopt, amend or repeal the Bylaws of the Corporation. “Whole Board”, at any time, means the total number of directors of the Corporation at such time then in office.
ARTICLE EIGHTH
(1) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Officers of the Corporation shall be elected by, or in the manner approved by, the Board of Directors in accordance with the Bylaws.
(2) 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.
(3) There shall be no cumulative voting in the election of directors. Election of directors need not be by written ballot unless the Bylaws so provide. Directors need not be shareholders.
(4) Except as otherwise provided by law, vacancies on the Board of Directors resulting from death, resignation, removal or otherwise and newly-created directorships resulting from any increase in the number of directors may be filled for the unexpired term by a majority of the directors then in office (although less than a quorum) or by the sole remaining director or by the shareholders.
(5) Any director or directors may be removed from office, either with or without cause, by the affirmative vote of a majority of the holders of Common Stock and any holders of Preferred Stock entitled to vote thereon pursuant to ARTICLE SIXTH.
(6) In the event that any director who, at any time during such director’s term of office is employed by the Corporation or any of its affiliates, subsequently ceases to be so employed by the Corporation or such affiliate, such person shall automatically cease to be a director of the Corporation.
(7) Each member of the Board of Directors shall have one vote on all matters presented to the Board of Directors. A quorum of the Board of Directors consists of a majority of the number of directors determined pursuant to ARTICLE EIGHTH, Section 2 or, if no number is determined, a majority of the number of directors in office immediately before the meeting begins. The Board of Directors may act by the unanimous written consent of the directors.
(8) Whenever the holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of the resolution or resolutions adopted by the Board of Directors pursuant to ARTICLE SIXTH applicable thereto, and not the provisions of this ARTICLE EIGHTH unless otherwise provided in such resolution or resolutions.
ARTICLE NINTH
(1) To the fullest extent permitted by the NCBCA as it exists or may hereafter be amended, no person who is serving or who has served as a director of the Corporation shall be personally liable to the Corporation or any of its shareholders for monetary damages for breach of duty as a director. No amendment or repeal of this ARTICLE NINTH, nor the adoption of any provision to these Articles of Incorporation inconsistent with this ARTICLE NINTH, shall eliminate or reduce the protection granted herein with respect to any matter that occurred prior to such amendment, repeal or adoption.
(2) Each person who is or was a director or officer of the Corporation (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding (including an action, suit or proceeding by or in right of the Corporation), whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, shall be indemnified by the Corporation against liability in any such action, suit or proceeding to the fullest extent permitted by the NCBCA as it exists or may hereafter be amended. Expenses incurred in connection with any such action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of any action, suit or proceeding upon receipt of an unsecured written promise by or on behalf of any
such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the Corporation against such expenses. The right to indemnification conferred in this ARTICLE NINTH shall be a contract right.
(3) The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by the NCBCA.
(4) The Corporation shall have power to purchase and maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any expense, liability or loss incurred by such person in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person in any such capacity and whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the NCBCA.
(5) The rights and authority conferred in this ARTICLE NINTH shall not be exclusive of any other right which any person may otherwise have or hereafter acquire under any statute, provision of these Articles of Incorporation or the Bylaws of the Corporation, agreement, vote of shareholders or disinterested directors or otherwise.
(6) The rights granted herein shall not be limited by the provisions contained in Section 55-8-52 of the NCBCA or any successor statute.
(7) Neither the amendment nor repeal of this ARTICLE NINTH, nor the adoption of any provision of these Articles of Incorporation or the Bylaws of the Corporation, nor, to the fullest extent permitted by the NCBCA, any modification of law, shall eliminate or reduce the effect of this ARTICLE NINTH in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification.
ARTICLE TENTH
To the full extent then permitted by the NCBCA, any action which is required or permitted to be taken at a meeting of the shareholders may be taken by written consent without a meeting and without prior notice by shareholders having not less than the minimum number of votes that would be necessary to take such action at a meeting at which all shares entitled to vote thereon were present and voted. Such signed and dated written consent must be filed with the Secretary of the Corporation to be kept in the corporate minute book, whether done before or after the action so taken, but in no event later than sixty (60) days after the earliest dated consent delivered in accordance with this section. Delivery made to the Secretary of the Corporation shall be by hand or by certified or registered mail, return receipt requested. When corporate action is taken without a meeting by less than unanimous written consent, notice shall be given to those shareholders who have not consented in writing within ten (10) days after such action is taken.
Notwithstanding the provisions of Section 55-7-04(d) of the General Statutes of North Carolina, the Corporation is not required to give the shareholders written notice of the proposed action at least ten (10) days before the action is taken in the event that shareholder approval is required for (i) an amendment to these Articles of Incorporation; (ii) a plan of merger or share exchange; (iii) a plan of conversion; (iv) the sale, lease, exchange, or other disposition of all, or substantially all, of the Corporation’s property; or (v) a proposal for dissolution, and the approval is to be obtained through action without meeting.
ARTICLE ELEVENTH
Special meetings of the shareholders may be called by the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President or the Secretary of the Corporation upon the direction of the Board of Directors, and may not be called by any other person. At a special meeting of shareholders only such business may be conducted or considered as is properly brought before the meeting. To be properly brought before a special meeting, business must be specified in the notice of meeting (or supplement thereto) given by or at the direction of the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President. Notwithstanding the foregoing, whenever holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, such holders may call, pursuant to the terms of the resolution or resolutions adopted by the Board of Directors pursuant to ARTICLE SIXTH hereof, special meetings of holders of such Preferred Stock.
ARTICLE TWELFTH
The provisions of Article 9 and Article 9A of the NCBCA entitled “The North Carolina Shareholder Protection Act” and “The North Carolina Control Share Acquisition Act,” respectively, shall not be applicable to the Corporation.
Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF
REYNOLDS AMERICAN INC.
ARTICLE I
Meetings of Shareholders; Shareholders’ Consent in Lieu of Meeting
SECTION 1.01. Annual Meeting . The annual meeting of the shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held annually at such date, time and place, either within or without the State of North Carolina, as shall be fixed by the Board of Directors (the “ Board ”) or the Chairman of the Board and designated in the notice or waiver of notice thereof, except that no annual meeting need be held if all actions, including the election of directors, required by the North Carolina Business Corporation Act (the “ NCBCA ”) to be taken at an annual meeting of shareholders are taken by written consent in lieu of meeting pursuant to Section 1.03 hereof.
SECTION 1.02. Special Meetings . A special meeting of the shareholders for any purpose or purposes may be called by the Board, the Chairman of the Board, the Chief Executive Officer, the President, the Secretary or a shareholder or shareholders holding of record at least a majority of the shares of common stock of the corporation issued and outstanding, such meeting to be held at such place, date and hour as shall be designated in the notice or waiver of notice thereof.
SECTION 1.03. Shareholders’ Consent in Lieu of Meeting . To the extent permitted by the NCBCA, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting , without the consent of all of the shareholders and without prior notice if consents in writing, delivered to the corporation for inclusion in the minutes or filing in the corporate records, setting forth the action so taken and bearing the date of signatures, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shareholders entitled to vote thereon were present and voted. Notwithstanding anything herein to the contrary, an action to elect directors without a meeting is effective only if all the shareholders entitled to vote thereon deliver a signed consent to take action without a meeting. A shareholder’s consent to action taken without meeting may be by electronic mail or in any other electronic form and delivered by electronic means. Except as expressly set forth in the Amended and Restated Articles of Incorporation of the corporation (the “ Articles ”) or these Bylaws, if shareholder approval is obtained by action without meeting for (i) an amendment to the Articles, (ii) a plan of merger or share exchange, (iii) a plan of conversion, (iv) the sale, lease, exchange or other disposition of all, or substantially all, of the corporation’s property, or (v) a proposal for dissolution, the corporation shall not be required to give any shareholder notice of the proposed action at any time before the action is taken.
SECTION 1.04. Notice of Meetings . Written or printed notice stating the place, date and time of a meeting of shareholders shall be delivered not less than 10 nor more than 60 days before the date of any such meeting of shareholders, either in person, by electronic means or by mail or private carrier, by or at the direction of the Chairman of the Board, the Chief Executive Officer, the President, the Secretary or other person calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his or her address as it appears on the record of the shareholders of the corporation, with postage thereon prepaid. In the case of a special meeting of shareholders, the notice of meeting shall specifically state the purpose or purposes for which the meeting is called. In the case of an annual or substitute annual meeting of shareholders, the notice of meeting need not specifically state the business to be transacted unless such a statement is required by the NCBCA. When an annual or special meeting of shareholders is adjourned to a different date, time or place, it is not necessary to give any notice of the adjourned meeting other than by announcement at the meeting at which the adjournment is taken; provided , however , that, if a new record date for the adjourned meeting is or must be set, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date.
SECTION 1.05. Quorum, Adjourned Meetings . The holders of a majority of the shares outstanding and entitled to vote shall constitute a quorum for the transaction of business at any annual or special meeting of shareholders. If a quorum is not present at a meeting, those present shall adjourn to such day as they shall agree upon by majority vote of those present. Notice of any adjourned meeting need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken. At adjourned meetings at which a quorum is present, any business may be transacted that might have been transacted at the meeting as originally noticed. If a quorum is present, the shareholders may continue to transact business until adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
SECTION 1.06. Waiver of Notice . A shareholder may waive notice of any meeting either before or after such meeting. Such waiver shall be in writing, signed by the shareholder and filed with the minutes or corporate records. A shareholder’s attendance at a meeting of shareholders shall serve as a waiver of (i) any objection to lack of notice or defective notice of the meeting, unless the shareholder objects at the beginning of the meeting to holding the meeting or transacting business at the meeting, and (ii) any objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter before it is voted upon.
SECTION 1.07. Voting of Shares . Each shareholder of the corporation entitled to vote at a meeting of shareholders or entitled to express consent in writing to the corporate action without a meeting shall have one vote in person or by proxy for each share of stock having voting rights held by such shareholder. All questions at a meeting shall be decided by a majority vote of the number of shares entitled to vote represented at the meeting at the time of the vote except where otherwise required by statute, the Articles or these Bylaws. Any action to be taken by written consent without a meeting may be taken by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting in which all shares entitled to vote thereon were present and voted. For the election of directors, the persons receiving the largest number of votes (up to and including the number of directors to be elected) shall be directors. Except as set forth in the Articles, shares of the corporation are not entitled to vote if (i) they are owned, directly or indirectly, by the corporation, unless they are held by it in a fiduciary capacity; (ii) they are owned, directly or indirectly, by a second corporation in which the corporation owns a majority of the shares entitled to vote for directors; or (iii) (A) they are redeemable shares, (B) notice of redemption has been given, and (C) a sum sufficient to redeem the shares has been deposited with a bank, trust company or other financial institution under an irrevocable obligation to pay the holders of such shares the redemption price upon surrender of the shares.
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SECTION 1.08. Cumulative Voting . The shareholders of the corporation shall have no right to cumulate their votes for the election of directors.
ARTICLE II
Board of Directors
SECTION 2.01. General Powers . The business and affairs of the corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by law or by the Articles directed or required to be exercised or done by the shareholders.
SECTION 2.02. Number; Term of Office . The number of directors that shall constitute the whole Board (the “ whole Board ”) shall be determined from time to time by resolution of the shareholders or the Board, but in no event shall be less than one. Directors need not be shareholders. Directors need not be citizens or residents of the United States. Each director shall hold office until his or her successor is elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided. The initial number of directors shall be three.
SECTION 2.03. Resignation, Removal and Vacancies .
(a) Any director may resign at any time by giving written notice of his resignation to the Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
(b) Any director or the whole Board may be removed, with or without cause, at any meeting of the shareholders or at any time by written consent of the shareholders pursuant to Section 1.03 hereof, in each case upon the vote or written consent of the holders of a majority of shares then entitled to vote at an election of directors.
(c) Vacancies in the Board and newly-created directorships resulting from any increase in the authorized number of directors may be filled for the unexpired term by (i) a majority of the directors then in office, although less than a quorum, or by a sole remaining director or (ii) the shareholders. Each director so elected shall serve until his or her successor is elected by the shareholders at the next annual meeting or at a special meeting earlier called for that purpose.
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SECTION 2.04. Meetings .
(a) Regular Meetings. A regular meeting of the Board shall be held immediately after, and at the same place as, the annual meeting of the shareholders. In addition, the Board may provide, by resolution, the date, time and place, either within or without the State of North Carolina, for the holding of additional regular meetings.
(b) Special Meetings. Special meetings of the Board may be called by or at the request of the Chief Executive Officer, the President, the Secretary or any director. Such meetings may be held either within or without the State of North Carolina, as fixed by the person or persons calling the meeting.
(c) Notice of Meetings. Regular meetings of the Board may be held without notice. The person or persons calling a special meeting of the Board shall, at least two days before the meeting, give notice of the meeting by any usual means of communication, including in person, by electronic means or by mail or private carrier. Such notice may be oral and need not specify the purpose for which the meeting is called. Notwithstanding the foregoing, attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except when the director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. A written waiver of notice, signed by the director entitled thereto, whether before or after the time of the meeting stated therein, shall be deemed equivalent to notice.
(d) Organization. At each meeting of the Board, one of the following shall act as chairman of the meeting and preside, in the following order of precedence:
(i) the Chairman of the Board,
(ii) the Chief Executive Officer,
(iii) the President, or
(iv) any director chosen by a majority of the directors present.
The Secretary or, in the case of his absence, any person whom the chairman of the meeting shall appoint (who shall be an Assistant Secretary, if an Assistant Secretary is present) shall act as Secretary of such meeting and keep the minutes thereof.
SECTION 2.05. Directors’ Consent in Lieu of Meeting . Action that may be taken at a meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and the writing describes the action to be taken and is included in the minutes or filed with the corporate records. Such action shall be effective when the last director signs the consent, unless the consent specifies a different effective date. A director’s consent to action taken without meeting may be by electronic mail or in any other electronic form and delivered by electronic means.
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SECTION 2.06. Action by Means of Conference Telephone or Similar Communications Equipment . Any one or more members of the Board may participate in a meeting of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear and communicate to each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
SECTION 2.07. Committees of the Board . The Board may create an executive committee and other committees of the Board, each of which shall have at least two members, all of whom shall be directors. The creation of a committee and the appointment of members to it must be approved by a majority of all the directors in office when the action is taken. Each committee may, as specified by the Board, exercise some or all of the authority of the Board, except that a committee may not (i) authorize distributions, (ii) approve or propose to shareholders action that the NCBCA requires be approved by shareholders, (iii) fill vacancies on the Board or on any of its committees, (iv) amend the Articles, (v) adopt, amend or repeal the Bylaws, (vi) approve a plan of merger not requiring shareholder approval, (vii) authorize or approve a reacquisition of shares, except according to a formula or method prescribed by the Board, or (viii) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences and limitations of a class or series of shares, except that the Board may authorize a committee to do so within limits specifically prescribed by the Board. The other provisions of this Article II that govern meetings of the Board shall likewise apply to meetings of any committee of the Board.
SECTION 2.08. Compensation . The Board may compensate directors for their services as directors and may provide for the payment of all expenses incurred by directors in attending regular and special meetings of the Board or in performing their functions or fulfilling their duties as directors.
SECTION 2.09. Presumption of Assent . A director who is present at a meeting of the Board or a committee of the Board when corporate action is taken is deemed to have assented to the action unless (i) he objects at the beginning of the meeting, or promptly upon his arrival, to holding the meeting or transacting business at the meeting, (ii) his dissent or abstention from the action taken is entered in the minutes of the meeting, or (iii) he files written notice of his dissent or abstention with the presiding officer of the meeting before its adjournment or with the corporation immediately after adjournment of the meeting. Such right of dissent or abstention is not available to a director who votes in favor of the action taken.
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ARTICLE III
Officers
SECTION 3.01. Executive Officers . The executive officers of the corporation shall be a Chief Executive Officer, a President and a Secretary and may include a Chairman of the Board, a Treasurer, one or more Vice Presidents and one or more Assistant Secretaries or Assistant Treasurers or any such other officers, as determined by the Board. Any two or more offices may be held by the same person. The executive officers need not be shareholders of the corporation or, except for the Chairman of the Board, if any, the Chief Executive Officer and the President, directors.
SECTION 3.02. Authority and Duties . All officers, as between themselves and the corporation, shall have such authority and perform such duties in the management of the corporation as may be provided in these Bylaws or, to the extent not so provided, by the Board.
SECTION 3.03. Term of Office; Appointment, Resignation and Removal .
(a) All officers shall be elected or appointed by the Board and shall hold office for such term as may be prescribed by the Board. The Chairman of the Board, if any, and the Chief Executive Officer shall be elected or appointed from among the members of the Board. Each of the Chairman of the Board, the Chief Executive Officer and the President shall have the power to appoint officers, other than the Chairman of the Board, the Chief Executive Officer, the President, the Secretary and the Treasurer. Each officer shall hold office until his successor has been elected or appointed and qualified or his earlier death or resignation or removal in the manner hereinafter provided.
(b) Any officer may resign at any time by giving written notice to the Chief Executive Officer, the President or the Secretary, and such resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, at the time it is accepted by action of the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
(c) All officers and agents elected or appointed by the Board, the Chairman of the Board, the Chief Executive Officer or the President shall be subject to removal at any time by the Board with or without cause.
SECTION 3.04. Vacancies . If an office becomes vacant for any reason, the Board may fill such vacancy. Any officer so appointed or elected by the Board shall serve only until such time as the unexpired term of his or her predecessor shall have expired unless reelected or reappointed.
SECTION 3.05. Chairman of the Board . If there shall be a Chairman of the Board, he or she shall be a director of the corporation and shall preside at meetings of the Board and of the shareholders at which he is present. The Chairman of the Board shall give counsel and advice to the Board and the officers of the corporation on all subjects touching the welfare of the corporation and the conduct of its business. The Chairman of the Board shall also perform such other duties as the Board may from time to time determine. Except as otherwise provided by resolution of the Board, he or she shall be ex officio a member of all committees of the Board.
SECTION 3.06. Chief Executive Officer . The Chief Executive Officer shall be the chief executive officer of the corporation and, unless the Chairman of the Board be present or the Board has provided otherwise by resolution, he or she shall preside at all meetings of the Board and the shareholders at which he or she is present. The Chief Executive Officer shall have general and active management and control of the business and affairs of the corporation, subject to the control of the Board, except that the Chief Executive Officer may appoint the President and any Senior Vice Presidents, Vice Presidents or Assistant Officers at his or her discretion. The Chief Executive Officer shall see that all orders and resolutions of the Board are carried into effect.
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SECTION 3.07. President . The President, if separate from the Chief Executive Officer, shall, in the absence or disability of the Chief Executive Officer, perform the duties and exercise the powers of the Chief Executive Officer and shall generally assist the Chief Executive Officer and perform such other duties as the Board or the Chief Executive Officer shall prescribe.
SECTION 3.08. Vice Presidents . The Vice President or, if there be more than one, the Vice Presidents, in the order of their seniority or in any other order determined by the Board, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President and shall generally assist the Chief Executive Officer and the President and perform such other duties as the Board, the Chief Executive Officer and the President shall prescribe.
SECTION 3.09. Secretary . The Secretary shall, to the extent practicable, attend all meetings of the Board and all meetings of the shareholders, record all votes and the minutes of all proceedings in a book to be kept for that purpose and perform like duties for the standing committees when required. He or she shall give, or cause to be given, notice of all meetings of the shareholders and of the Board and shall perform such other duties as may be prescribed by the Board, the Chief Executive Officer and the President, under whose supervision he shall perform such duties. The Secretary shall keep in safe custody the certificate books and shareholder records and such other books and records as the Board may direct and shall perform all other duties as from time to time may be assigned to him or her by the Chairman of the Board, the Chief Executive Officer, the President or the Board.
SECTION 3.10. Assistant Secretaries . The Assistant Secretaries, if any, in order of their seniority or in any other order determined by the Board, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties as the Board or the Secretary shall prescribe.
SECTION 3.11. Treasurer . The Treasurer shall have the care and custody of the corporate funds and other valuable effects, including securities, keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and deposit all monies and other valuable effects to the name and to the credit of the corporation in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the corporation as may be ordered by the Board, taking proper vouchers for such disbursements, shall render to the Chief Executive Officer, the President and directors, at the regular meetings of the Board or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the corporation and shall, in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the Chief Executive Officer, the President or the Board.
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SECTION 3.12. Assistant Treasurers . The Assistant Treasurers, if any, in the order of their seniority or in any other order determined by the Board, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the Board or the Treasurer shall prescribe.
SECTION 3.13. Compensation . The officers, agents and employees of the corporation shall receive such compensation for their services as may be determined from time to time by the Board or as shall be set forth in a written agreement approved by the Board.
ARTICLE IV
Contracts; Checks; Drafts; Bank Accounts; etc.
SECTION 4.01. Execution of Documents . Except as set forth in Sections 3.06 and 3.07 hereof, the Board shall designate the officers, employees and agents of the corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the corporation, and, unless so designated or expressly authorized by these Bylaws, no officer or agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or to any amount.
SECTION 4.02. Deposits . All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation or otherwise as the Board or Treasurer or any other officer of the corporation shall select.
ARTICLE V
Shares and Their Transfer; Fixing Record Date
SECTION 5.01. Certificates for Shares . Shares may, but need not, be represented by certificates. If certificates are issued, they shall be in such form as the Board shall determine; provided , however , that, at a minimum, each certificate shall state on its face (i) the name of the corporation and that the corporation is organized under the laws of the State of North Carolina, (ii) the name of the person to whom the certificate is issued and (iii) the number and class of shares and the designation of the series, if any, that the certificate represents. If the corporation issues certificates for shares of preferred stock, (i) the designations, relative rights, preferences and limitations applicable to that class, and the variations in rights, preferences and limitations for each series within that class, and the authority of the Board to determine variations for future series, must be summarized on the front or back of each certificate or (ii) each certificate shall state conspicuously on its front or back that the corporation will furnish the shareholder such information in writing and without charge. Such certificates shall be signed, either manually or in facsimile, by the Chief Executive Officer, the President or any Vice President, and by the Secretary or any Assistant Secretary. Such certificates shall be consecutively numbered or otherwise identified, and the name and address of the persons to whom they are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation.
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SECTION 5.02. Record . A record (the “ stock record ”) in one or more counterparts shall be kept of the name of the person, firm or corporation owning the shares represented by each certificate for stock of the corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancelation, the date of cancelation. Except as otherwise expressly required by law, the person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the corporation.
SECTION 5.03. Issuance of Stock . The Board is authorized to cause to be issued stock of the corporation up to the full amount authorized by the Articles in such amounts and for such consideration as may be determined by the Board.
SECTION 5.04. Addresses of Shareholders . Each shareholder shall designate to the Secretary an address at which notices of meetings and all other corporate notices may be served or mailed to him or her. If any shareholder shall fail to designate such address, corporate notices may be served upon such shareholder by mail directed to him or her at his or her post office address, if any, as the same appears on the share record books of the corporation or at his or her last known post office address.
SECTION 5.05. Lost, Destroyed and Mutilated Certificates . The Board or a committee designated thereby with power so to act may, in its discretion, cause to be issued a new certificate or certificates for stock of the corporation in place of any certificate issued by it and reported to have been lost, destroyed or mutilated, upon the surrender of the mutilated certificates or, in the case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction, and the Board or such committee may, in its discretion, require the owner of the lost or destroyed certificate or his or her legal representative to give the corporation a bond in such sum and with such surety or sureties as it may direct to indemnify the corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate.
SECTION 5.06. Regulations . The Board may make such rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates for stock of the corporation.
SECTION 5.07. Fixing Date for Determination of Shareholders of Record . For the purpose of determining shareholders entitled to receive notice of a meeting of shareholders, to demand a special meeting of shareholders, to vote, to take any other action, to receive payment or for any other purpose, the Board may fix in advance a date as the record date for any such determination of shareholders, such record date in any case to be not more than 70 days and, in case of a meeting of shareholders, not less than 10 days before the date on which the particular action requiring such determination of shareholders is to be taken. When a determination of shareholders entitled to notice of or to vote at any meeting of shareholders has been made as provided in this Section 5.07, such determination shall apply to any adjournment of such meeting unless the Board fixes a new record date, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.
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ARTICLE VI
Miscellaneous
SECTION 6.01. Seal . The Board shall have no corporate seal, unless otherwise determined by the Board.
SECTION 6.02. Amendments . Any Bylaw (including this Bylaw) may be adopted, amended or repealed by the Board in any manner not inconsistent with the laws of the State of North Carolina or the Articles.
SECTION 6.03. Severability . Should any provision of these Bylaws become ineffective or be declared to be invalid for any reason, such provision shall be severable from the remainder of these Bylaws and all other provisions of these Bylaws shall continue to be in full force and effect.
SECTION 6.04. Distributions . The Board may from time to time declare, and the corporation may make, distributions on its outstanding shares in the manner and subject to the terms and conditions provided by the NCBCA and the Articles.
SECTION 6.05. Indemnification . If a claim under Section 1 or 2 of Article Ninth of the Corporation’s Articles is not paid in full by the Corporation within 60 calendar days after a written claim has been received by the Corporation, the person claiming indemnification may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, such claimant shall be entitled to be paid also the expense of prosecuting or defending such suit. In any case, it shall be a defense to such claims that, and the Corporation shall not be obliged to advance any such expense if, the claimant has not met any applicable standard for indemnification set forth in the NCBCA or the Corporation’s Articles. The Corporation shall not advance any such expenses to a claimant, unless the Corporation has previously received from such claimant an undertaking to repay the amount of such expenses in the event it is determined such claimant was not entitled to indemnification. A determination by the Corporation (including its Board of Directors, independent legal counsel or stockholders) to the effect that indemnification of the claimant is proper in the circumstances because the claimant has met the applicable standard of conduct or that the claimant has not met such applicable standard of conduct, or the failure by the Corporation to make any such determination, shall not create a presumption that the claimant has or has not met the applicable standard of conduct or be a defense to such suit.
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Exhibit 4.1
FIFTH SUPPLEMENTAL INDENTURE
(RJR Guarantee)
This Fifth Supplemental Indenture, dated as of July 25, 2017 (this “ Fifth Supplemental Indenture ”), is entered into by and among (i) Reynolds American Inc., a North Carolina corporation (the “ Company ”), as Issuer; (ii) R.J. Reynolds Tobacco Holdings, Inc., a Delaware corporation (“ RJR” ); and (iii) The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as Trustee under the Indenture referred to below (the “ Trustee ”).
WITNESSETH:
WHEREAS, the Company, the Trustee, RJR and Santa Fe Natural Tobacco Company, Inc., a New Mexico corporation, R. J. Reynolds Tobacco Company, a North Carolina corporation, R. J. Reynolds Tobacco Co., a Delaware corporation, Reynolds Innovations Inc. (f/k/a GMB, Inc.), a North Carolina corporation, Reynolds Finance Company (f/k/a FHS, Inc.), a Delaware corporation, Conwood Holdings, Inc., a Delaware corporation, American Snuff Company, LLC, a Delaware limited liability company, Rosswil LLC, a Delaware limited liability company, R. J. Reynolds Global Products, Inc., a Delaware corporation, RAI Services Company, a North Carolina corporation, and Lorillard Licensing Company LLC, a North Carolina limited liability company (such subsidiaries, the “ Prior Guarantors ”), have heretofore been parties to an Indenture, dated as of May 31, 2006, as supplemented by each of (i) the First Supplemental Indenture, dated as of September 30, 2006, (ii) the Second Supplemental Indenture, dated as of February 6, 2009, (iii) the Third Supplemental Indenture, dated as of September 17, 2013, and (iv) the Fourth Supplemental Indenture, dated as of September 2, 2015 (as amended, supplemented, waived or otherwise modified, the “ Indenture ”), which such Indenture provides for the issuance of the Company’s debentures, notes or other evidence of indebtedness to be issued in one or more series from time to time (the “ Securities ”);
WHEREAS, Section 10.2 of the Indenture provides that if a Guarantor ceases to be a Bank Credit Agreement Guarantor for any reason, such Guarantor will be deemed released from all of its obligations under the Indenture and its Guarantee of the Securities and such Guarantee will terminate;
WHEREAS, the Bank Credit Agreement will be cancelled on the date hereof;
WHEREAS, each of RJR and the Prior Guarantors will cease to be a Bank Credit Agreement Guarantor upon cancelation of the Bank Credit Agreement and will consequently be released from all of its obligations under the Indenture and its Guarantee of the Securities upon such cancellation;
WHEREAS, RJR is a guarantor of notes issued by R. J. Reynolds Tobacco Company under an Indenture dated June 23, 2009;
WHEREAS, Section 3.12 of the Indenture provides that the Company will not permit RJR, at any time that RJR is not a Guarantor, to create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any indebtedness to Persons other than the Company or any of the Guarantors (excluding accounts payable) other than the Securities, outstanding obligations of RJR as of May 31, 2006 and the Bank Credit Agreement;
WHEREAS, RJR, a direct, wholly owned subsidiary of the Company, has determined that it is desirable and would be a direct benefit to RJR for it, along with the Company, to execute and deliver to the Trustee a supplemental indenture pursuant to which RJR will unconditionally guarantee, on a joint and several basis, the full and prompt payment when due, whether at maturity, by acceleration, by redemption, by repurchase, or otherwise, of the principal of, premium, if any, and interest, on the Securities and all other Obligations of the Company to the Trustee and to the Securityholders under the Indenture, and become a party to the Indenture as a Guarantor;
WHEREAS, pursuant to Section 9.1(d) of the Indenture, the Company, RJR and the Trustee are authorized or permitted to execute and deliver this Fifth Supplemental Indenture to amend the Indenture, without the consent of any of the Securityholders; and
WHEREAS, the Company and RJR have duly authorized the execution and delivery of this Fifth Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms . Unless otherwise indicated, capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Indenture.
ARTICLE II
Amendment to Definitions
SECTION 2.1 Definitions . The definition of “Guarantors” set forth in Section 1.1 of the Indenture is hereby deleted and replaced with the following:
“Guarantor” means (x) RJR and any Person who agrees to become a guarantor in a supplemental indenture to this Indenture, (i) until released pursuant to the provisions of this Indenture or (ii) until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean that successor Person until released pursuant to the provisions of this Indenture and (y) each Subsidiary of the Company other than RJR that is or becomes a Bank Credit Agreement Guarantor and any other Person that becomes a Bank Credit Agreement Guarantor; provided, that, to the extent that any or all of such Subsidiaries cease to be Bank Credit Agreement Guarantors, such Subsidiaries shall cease to be Guarantors.
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ARTICLE III
Agreement to be Bound; Guarantee
SECTION 3.1 Agreement to be Bound . RJR hereby becomes a party to the Indenture as a Guarantor, and will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture, except that RJR will not be deemed released from all of its obligations under the Indenture and its Guarantee of the Securities, and its Guarantee will not be deemed terminated, solely because it is not a Bank Credit Agreement Guarantor under Section 10.2 of the Indenture. RJR agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 3.2 Guarantee . RJR hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with the Company and the other Guarantors, to each Holder of the Securities and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption, by repurchase or otherwise, of all of the Obligations of the Company to the Trustee and to the Securityholders under the Indenture in accordance with Article X of the Indenture. This Guarantee shall be effective simultaneously with the release of RJR’s prior Guarantee pursuant to Section 10.2 of the Indenture.
SECTION 3.3 Release . In addition to the provisions for release, termination or discharge of its Guarantee as set forth in the Indenture (other than by virtue of no longer being a Bank Credit Agreement Guarantor), RJR will be deemed released from all of its obligations under the Indenture and its Guarantee of the Securities, and such Guarantee will automatically terminate, upon the release, termination or discharge of its guarantee of the indebtedness of R. J. Reynolds Tobacco Company, a North Carolina corporation.
ARTICLE IV
Miscellaneous
SECTION 4.1 Notices . All notices and other communications to the Guarantor or the Company shall be given as provided in the Indenture to the Guarantor or the Company, as the case may be, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company.
SECTION 4.2 Parties . Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Fifth Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 4.3 Governing Law . This Fifth Supplemental Indenture shall be governed by the laws of the State of New York, without regard to conflicts of law principles.
SECTION 4.4 Severability Clause . In case any provision in this Fifth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 4.5 Ratification of Indenture; Fifth Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Fifth
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Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 4.6 Counterparts . The parties hereto may sign one or more copies of this Fifth Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
SECTION 4.7 Headings . The headings of the Articles and the sections in this Fifth Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 4.8 Trustee . The Trustee makes no representations as to the validity or sufficiency of this Fifth Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and the Guarantor and not of the Trustee.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed as of the date first above written.
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Address: 401 North Main Street Winston-Salem, NC 27101 Fax No.: (336) 728-4495 Tel. No.: (336) 741-5162 Att’n.: Corporate Secretary |
REYNOLDS AMERICAN INC.,
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| By: | /s/ Daniel A. Fawley | |||||||||
| Name: | Daniel A. Fawley | |||||||||
| Title: | Senior Vice President and Treasurer | |||||||||
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Address: 401 North Main Street Winston-Salem, NC 27101 Fax No.: (336) 728-4495 Tel. No.: (336) 741-5162 Att’n.: Corporate Secretary |
R.J. REYNOLDS TOBACCO HOLDINGS, INC., as Guarantor |
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| By: | /s/ Daniel A. Fawley | |||||||||
| Name: | Daniel A. Fawley | |||||||||
| Title: | Senior Vice President and Treasurer | |||||||||
[SIGNATURE PAGE TO FIFTH SUPPLEMENTAL INDENTURE]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
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| By: | /s/ Richard Tarnas | |
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Name: Richard Tarnas Title: Vice President |
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[SIGNATURE PAGE TO FIFTH SUPPLEMENTAL INDENTURE]
Exhibit 4.2
SIXTH SUPPLEMENTAL INDENTURE
(BAT Guarantee)
This Sixth Supplemental Indenture, dated as of July 25, 2017 (this “ Sixth Supplemental Indenture ”), is entered into by and among (i) Reynolds American Inc., a North Carolina corporation (the “ Company ”), as Issuer; (ii) R.J. Reynolds Tobacco Holdings, Inc., a Delaware corporation (the “ Existing Guarantor ”); (iii) British American Tobacco p.l.c., a public limited company incorporated under the laws of England and Wales, (“ BAT ”), as the New Guarantor; and (iv) The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as Trustee under the Indenture referred to below (the “ Trustee ”).
WITNESSETH:
WHEREAS, the Company, the Trustee, the Existing Guarantor and Santa Fe Natural Tobacco Company, Inc., a New Mexico corporation, R. J. Reynolds Tobacco Company, a North Carolina corporation, R. J. Reynolds Tobacco Co., a Delaware corporation, Reynolds Innovations Inc. (f/k/a GMB, Inc.), a North Carolina corporation, Reynolds Finance Company (f/k/a FHS, Inc.), a Delaware corporation, Conwood Holdings, Inc., a Delaware corporation, American Snuff Company, LLC, a Delaware limited liability company, Rosswil LLC, a Delaware limited liability company, R. J. Reynolds Global Products, Inc., a Delaware corporation, RAI Services Company, a North Carolina corporation, and Lorillard Licensing Company LLC, a North Carolina limited liability company (such subsidiaries, the “ Prior Guarantors ”), have heretofore been parties to an Indenture, dated as of May 31, 2006, as supplemented by each of (i) the First Supplemental Indenture, dated as of September 30, 2006, (ii) the Second Supplemental Indenture, dated as of February 6, 2009, (iii) the Third Supplemental Indenture, dated as of September 17, 2013, (iv) the Fourth Supplemental Indenture, dated as of September 2, 2015, and (v) the Fifth Supplemental Indenture, dated as of July 25, 2017 (as amended, supplemented, waived or otherwise modified, the “ Indenture ”), which such Indenture provides for the issuance of the Company’s debentures, notes or other evidence of indebtedness to be issued in one or more series from time to time (the “ Securities ”);
WHEREAS, Section 10.2 of the Indenture provides that if a Guarantor ceases to be a Bank Credit Agreement Guarantor for any reason, such Guarantor will be deemed released from all of its obligations under the Indenture and its Guarantee of the Securities and such Guarantee will terminate;
WHEREAS, each of the Prior Guarantors has ceased to be a Bank Credit Agreement Guarantor and has consequently been released from all of its obligations under the Indenture and its Guarantee of the Securities;
WHEREAS, the Existing Guarantor extended a new Guarantee of the Indenture pursuant to the Fifth Supplemental Indenture, dated as of July 25, 2017;
WHEREAS, BAT, the indirect parent company of the Company, has determined that it is desirable and would be a direct benefit to BAT for it, along with the Company and the Existing Guarantor, to execute and deliver to the Trustee a supplemental indenture pursuant to which BAT will unconditionally guarantee, on a joint and several basis, the full and prompt payment when due, whether at maturity, by acceleration, by redemption, by repurchase, or otherwise, of the principal
of, premium, if any, and interest, on the Securities and all other Obligations of the Company to the Trustee and to the Securityholders under the Indenture, and become a party to the Indenture as a Guarantor;
WHEREAS, pursuant to Section 9.1(d) of the Indenture, the Company, BAT, the Existing Guarantor and the Trustee are authorized or permitted to execute and deliver this Sixth Supplemental Indenture to amend the Indenture, without the consent of any of the Securityholders; and
WHEREAS, the Company, the New Guarantor and the Existing Guarantor have duly authorized the execution and delivery of this Sixth Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms . Unless otherwise indicated, capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Indenture.
ARTICLE II
Amendment to Definitions
SECTION 2.1 Definitions . The definition of “Guarantors” set forth in Section 1.1 of the Indenture is hereby deleted and replaced with the following:
“Guarantor” means (x) RJR, British American Tobacco p.l.c., and any Person who agrees to become a guarantor in a supplemental indenture to this Indenture, (i) until released pursuant to the provisions of this Indenture or (ii) until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean that successor Person until released pursuant to the provisions of this Indenture and (y) each Subsidiary of the Company other than RJR that is or becomes a Bank Credit Agreement Guarantor and any other Person that becomes a Bank Credit Agreement Guarantor; provided, that, to the extent that any or all of such Subsidiaries cease to be Bank Credit Agreement Guarantors, such Subsidiaries shall cease to be Guarantors.
ARTICLE III
Agreement to be Bound; Guarantee
SECTION 3.1 Agreement to be Bound . BAT hereby becomes a party to the Indenture as a Guarantor, and will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture, except that (i) BAT will not be deemed released from all of its obligations under the Indenture and its Guarantee of the Securities, and its Guarantee will not be
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deemed terminated, solely because it is not a Bank Credit Agreement Guarantor under Section 10.2 of the Indenture, and (ii) BAT’s guarantee will not be deemed to be a primary obligation under Section 10.1 . Except as set form in the immediately preceding sentence, BAT agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 3.2 Guarantee . BAT hereby fully, unconditionally and irrevocably guarantees, not as primary obligor but as surety, jointly and severally with the Company and the other Guarantors, to each Holder of the Securities and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption, by repurchase or otherwise, of all of the Obligations of the Company to the Trustee and to the Securityholders under the Indenture in accordance with Article X of the Indenture.
ARTICLE IV
Miscellaneous
SECTION 4.1 Notices . All notices and other communications to the Guarantors or the Company shall be given as provided in the Indenture to the Guarantors or the Company, as the case may be, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company.
SECTION 4.2 Parties . Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Sixth Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 4.3 Governing Law . This Sixth Supplemental Indenture shall be governed by the laws of the State of New York, without regard to conflicts of law principles.
SECTION 4.4 Severability Clause . In case any provision in this Sixth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 4.5 Ratification of Indenture; Sixth Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Sixth Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 4.6 Counterparts . The parties hereto may sign one or more copies of this Sixth Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
SECTION 4.7 Headings . The headings of the Articles and the sections in this Sixth Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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SECTION 4.8 Trustee . The Trustee makes no representations as to the validity or sufficiency of this Sixth Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and the Guarantors and not of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed as of the date first above written.
| Address: | REYNOLDS AMERICAN INC., | |||||
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401 North Main Street Winston-Salem, NC 27101 Fax No.: (336) 728-4495 |
By: |
/s/ Daniel A. Fawley |
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| Tel. No.: (336) 741-5162 | Name: | Daniel A. Fawley | ||||
| Att’n.: Corporate Secretary | Title: | Senior Vice President and Treasurer | ||||
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Address: 401 North Main Street Winston-Salem, NC 27101 Fax No.: (336) 728-4495 Tel. No.: (336) 741-5162 Att’n.: Corporate Secretary |
R.J. REYNOLDS TOBACCO HOLDINGS, INC., as Guarantor |
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| By: |
/s/ Daniel A. Fawley |
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| Name: | Daniel A. Fawley | |||||
| Title: | Senior Vice President and Treasurer | |||||
[SIGNATURE PAGE TO SIXTH SUPPLEMENTAL INDENTURE]
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Address: Globe House 4 Temple Place London WC2R 2PG |
BRITISH AMERICAN TOBACCO P.L.C., as Guarantor |
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| United Kingdom | By: |
/s/ Ben Stevens |
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| Fax No.: +44 (0)20 7845 0555 | Name: | Ben Stevens | ||||
| Tel. No.: +44 (0)20 7845 1000 | Title: | Finance Director | ||||
| Att’n.: Company Secretary | ||||||
[SIGNATURE PAGE TO SIXTH SUPPLEMENTAL INDENTURE]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||
| By: |
/s/ Richard Tarnas |
|
| Name: | Richard Tarnas | |
| Title: | Vice President | |
[SIGNATURE PAGE TO SIXTH SUPPLEMENTAL INDENTURE]
Exhibit 4.3
R. J. REYNOLDS TOBACCO COMPANY
(as successor to Lorillard Tobacco Company, LLC (f/k/a Lorillard Tobacco Company))
as Issuer
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
(as successor to Lorillard, LLC (f/k/a Lorillard, Inc.))
REYNOLDS AMERICAN INC.
BRITISH AMERICAN TOBACCO P.L.C.
each, as a Guarantor
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
NINTH SUPPLEMENTAL INDENTURE
Dated July 25, 2017
to Indenture dated June 23, 2009
THIS NINTH SUPPLEMENTAL INDENTURE (the “ Ninth Supplemental Indenture ”) is made the 25th day of July, 2017, among R. J. REYNOLDS TOBACCO COMPANY, a North Carolina corporation (the “ Issuer ”), R.J. REYNOLDS TOBACCO HOLDINGS, INC., a Delaware corporation (“ RJR ”), REYNOLDS AMERICAN INC., a North Carolina corporation and the direct or indirect parent company of the Issuer and RJR (“ RAI ”, and together with RJR, the “ Existing Guarantors ”), BRITISH AMERICAN TOBACCO P.L.C., a public limited company incorporated under the laws of England and Wales and the indirect parent company of the Issuer and the Existing Guarantors (the “ New Guarantor ”, and together with the Existing Guarantors, the “ Guarantors ”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as Trustee (the “ Trustee ”).
RECITALS
WHEREAS, the Existing Guarantors, the Issuer and the Trustee are parties to an Indenture, dated June 23, 2009, with the Trustee (the “ Original Indenture ”, and as amended, supplemented or otherwise modified on or prior to the date hereof, the “ Indenture ”) (all capitalized terms used in this Ninth Supplemental Indenture and not otherwise defined herein have the meanings assigned to such terms in the Indenture);
WHEREAS, the New Guarantor has determined that it is desirable and would be a direct benefit to the New Guarantor for it, along with the Issuer and the Existing Guarantors, to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor will unconditionally guarantee, on a joint and several basis with the Existing Guarantors, the due and punctual payment of the principal of (and premium, if any) and interest, if any (including all additional amounts, if any, payable pursuant to Section 515 of the Indenture), on all the Securities and the performance of every covenant of the Existing Guarantors with respect to such Guarantee to be performed or observed, other than with respect to Section 704 of the Indenture;
WHEREAS, pursuant to Section 901(12) of the Indenture, the Issuer, the Existing Guarantors (in the case of Guaranteed Securities) and the Trustee are permitted to execute and deliver this Ninth Supplemental Indenture to amend the Indenture, without the consent of any Holders of Securities, to, among other things, make any provisions with respect to matters arising under the Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any particular series in any material respect;
WHEREAS, the entry into this Ninth Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this Ninth Supplemental Indenture and to make it a valid and binding obligation of the Issuer and the Guarantors have been done or performed.
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NOW, THEREFORE, THIS NINTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the foregoing premises, it is mutually covenanted and agreed as follows:
Section 1 . Agreement to be Bound . The New Guarantor hereby becomes a party to the Indenture as a Guarantor, and will have all the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture, other than for purposes of Section 704 of the Indenture, the obligations of which section shall only apply to RJR, and of Section 1301 of the Indenture, the references to (i) the Guarantee being substantially in the form of the Guarantee Agreement attached as Exhibit B of which shall not apply to the New Guarantor and (ii) the terms and conditions of Exhibit B being incorporated by reference in Article Thirteen of which shall not apply to the New Guarantor.
Section 2 . Guarantee . The New Guarantor hereby fully, unconditionally and irrevocably guarantees, on a joint and several basis with the Existing Guarantors, the due and punctual payment of the principal of (and premium, if any) and interest, if any (including all additional amounts, if any, payable pursuant to Section 515 of the Indenture), on all the Securities and the performance of every covenant of the Existing Guarantors with respect to the Guarantee and the Indenture to be performed or observed, other than with respect to Section 704 and, as set forth in Section 1 above, Section 1301 of the Indenture, subject in each case to the terms of the Indenture and the guarantee agreement referred to in Section 4 below.
Section 3 . Guarantee Agreement . To further evidence the New Guarantor’s guarantee of the Securities, the New Guarantor shall execute and deliver to the Trustee a guarantee agreement substantially in the form attached hereto as Exhibit A .
Section 4 . Securities . Each Global Security representing the Notes, with effect on and from the date hereof and subject to becoming operative as provided herein, shall be deemed supplemented, modified and amended in such manner as necessary to make the terms of such Global Security consistent with the terms of the Indenture.
Section 5 . Trustee . The recitals and statements in this Ninth Supplemental Indenture are made by the Issuer and the Guarantors only and not by the Trustee, and the Trustee makes no representation as to the validity or sufficiency of this Ninth Supplemental Indenture (other than with respect to the due authorization, execution and delivery of this Ninth Supplemental Indenture by the Trustee). All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of each series of the Notes and of this Ninth Supplemental Indenture as fully and with like effect as if set forth herein in full.
Section 6 . Ratification of Indenture; Ninth Supplemental Indenture Part of Indenture . As amended and supplemented hereby, the Indenture is in all respects ratified and confirmed, and the Original Indenture, as supplemented prior to the date hereof, and this Ninth Supplemental Indenture shall be read, taken and construed as one and the same instrument and all references to “Securities” in the Original Indenture shall be deemed to refer also to the Notes unless the context otherwise provides.
Section 7 . Governing Law . This Ninth Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
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Section 8 . Conflicts . In the event of a conflict between the terms and conditions of the Original Indenture, as supplemented prior to the date hereof, and the terms and conditions of this Ninth Supplemental Indenture, then the terms and conditions of this Ninth Supplemental Indenture shall prevail; provided that if and to the extent that any provision of this Ninth Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included herein or in the Indenture by the Trust Indenture Act, such required provision shall control.
Section 9 . Successors . All covenants and agreements in this Ninth Supplemental Indenture by the parties shall bind their respective successors and assigns, whether so expressed or not.
Section 10 . Severability . In case any provision in this Ninth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired hereby.
Section 11 . Third Parties . Nothing in this Ninth Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties hereto and their successors under the Indenture, any benefit or any legal or equitable right, remedy or claim under this Ninth Supplemental Indenture.
Section 12 . Counterparts . This Ninth Supplemental Indenture may be simultaneously executed in several counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument.
Section 13 . Headings . The headings of the sections in this Ninth Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
Section 14 . Effectiveness; Operativeness . This Ninth Supplemental Indenture shall become effective upon the due execution and delivery of this Ninth Supplemental Indenture by the Issuer, the Guarantors and the Trustee.
( signature page follows )
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture dated July 25, 2017 to be duly executed.
| Address: | R. J. REYNOLDS TOBACCO COMPANY | |||||||
| 401 North Main Street | ||||||||
| Winston-Salem, NC 27101 | ||||||||
| Fax No.: (336) 728-4495 | ||||||||
| Tel. No.: (336) 741-5162 | By: |
/s/ Daniel A. Fawley |
||||||
| Att’n.: Corporate Secretary | Name: | Daniel A. Fawley | ||||||
| Title: | Treasurer | |||||||
| Address: | R.J. REYNOLDS TOBACCO HOLDINGS, INC. | |||||||
| 401 North Main Street | ||||||||
| Winston-Salem, NC 27101 | ||||||||
| Fax No.: (336) 728-4495 | ||||||||
| Tel. No.: (336) 741-5162 | By: |
/s/ Daniel A. Fawley |
||||||
| Att’n.: Corporate Secretary | Name: | Daniel A. Fawley | ||||||
| Title: | Senior Vice President and Treasurer | |||||||
| Address: | REYNOLDS AMERICAN INC. | |||||||
| 401 North Main Street | ||||||||
| Winston-Salem, NC 27101 | ||||||||
| Fax No.: (336) 728-4495 | ||||||||
| Tel. No.: (336) 741-5162 | By: |
/s/ Daniel A. Fawley |
||||||
| Att’n.: Corporate Secretary | Name: | Daniel A. Fawley | ||||||
| Title: | Senior Vice President and Treasurer | |||||||
[Signature Page to Ninth Supplemental Indenture to Indenture dated June 23, 2009]
| Address: | BRITISH AMERICAN TOBACCO P.L.C. | |||||||
|
Globe House 4 Temple Place |
||||||||
| London WC2R 2PG | ||||||||
| United Kingdom | By: |
/s/ Ben Stevens |
||||||
| Fax No.: +44 (0)20 7845 0555 | Name: | Ben Stevens | ||||||
| Tel. No.: +44 (0)20 7845 1000 | Title: | Finance Director | ||||||
| Att’n.: Company Secretary | ||||||||
[Signature Page to Ninth Supplemental Indenture to Indenture dated June 23, 2009]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., | ||
| Trustee | ||
| By: |
/s/ Richard Tarnas |
|
| Name: | Richard Tarnas | |
| Title: | Vice President | |
[Signature Page to Ninth Supplemental Indenture to Indenture dated June 23, 2009]
EXHIBIT A
FORM OF GUARANTEE AGREEMENT
Exhibit 4.4
GUARANTEE AGREEMENT
This GUARANTEE, entered into July 25, 2017 (as amended from time to time, this “ Guarantee ”), made by British American Tobacco p.l.c., a public limited company incorporated under the laws of England and Wales (the “ Guarantor ”), in favor of The Bank of New York Mellon Trust Company, N.A., as trustee (“ Trustee ”) for the registered holders (the “ Holders ”) of the series of Notes set forth below (collectively, the “ Debt Securities ”) of R. J. Reynolds Tobacco Company, a North Carolina corporation (as successor to Lorillard Tobacco Company, LLC (f/k/a Lorillard Tobacco Company), a Delaware limited liability company) (the “ Issuer ”):
| • | 8.125% Senior Notes due June 23, 2019 |
| • | 6.875% Senior Notes due 2020 |
| • | 8.125% Senior Notes due 2040 |
| • | 7.000% Senior Notes due 2041 |
| • | 2.300% Senior Notes due 2017 |
| • | 3.750% Senior Notes due 2023 |
WITNESSETH:
SECTION 1. Guarantee . (a) The Guarantor hereby unconditionally guarantees, jointly and severally with REYNOLDS AMERICAN INC., a North Carolina Corporation, and R.J. REYNOLDS TOBACCO HOLDINGS, INC., a Delaware corporation (the “ Existing Guarantors ”), the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of the principal of, premium, if any, and interest on the Debt Securities (the “ Obligations ”), according to the terms of the Debt Securities and as more fully described in the Indenture (as amended, modified or otherwise supplemented from time to time, the “ Indenture ”), dated June 23, 2009 among the Issuer, the Existing Guarantors, the Guarantor and the Trustee, and any other amounts payable by the Issuer under the Indenture.
(b) It is the intention of the Guarantor that this Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law in any relevant jurisdiction to the extent applicable to this Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Guarantor under this Guarantee shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guarantor that are relevant under such laws, result in the Obligations of the Guarantor under this Guarantee not constituting a fraudulent transfer or conveyance. For purposes hereof, “ Bankruptcy Law ” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors in any relevant jurisdiction.
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SECTION 2. Guarantee Absolute . The Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the Indenture, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Debt Securities with respect thereto. The liability of the Guarantor under this Guarantee shall be absolute and unconditional irrespective of:
| (a) | any lack of validity, enforceability or genuineness of any provision of the Indenture, the Debt Securities or any other agreement or instrument relating thereto; |
| (b) | any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from the Indenture; |
| (c) | any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guarantee, for all or any of the Obligations; or |
| (d) | any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Issuer or a guarantor. |
SECTION 3. Ranking . The Guarantor covenants and agrees that its obligation to make payments of the Obligations hereunder constitutes an unsecured obligation of the Guarantor ranking (a) pari passu with all existing and future senior indebtedness of the Guarantor and (b) senior in right of payment to all existing and future subordinated indebtedness of the Guarantor.
SECTION 4. Waiver; Subrogation . (a) The Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to this Guarantee and any requirement that the Trustee, or the Holders of any Debt Securities protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Issuer or any other Person or any collateral.
(b) The Guarantor shall be subrogated to all rights of the Holders of any Debt Securities and the Trustee against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however , that the Guarantor shall not exercise, or receive any payments arising out of or based upon, such right of subrogation which it may have at any time under this Guarantee and the Guarantor waives all rights of set off and counter-claim against the Issuer until the principal and interest on all Debt Securities issued under such Indenture shall have been paid in full. For the avoidance of doubt, the Guarantor’s agreement not to exercise its right of subrogation (or to receive any payments arising out of or based upon such right) shall not be construed as a waiver, as between the Guarantor and the Issuer, of such right. If any amount shall be paid to the Guarantor in violation of the preceding two sentences at any time prior to the cash payment in full of the Obligations and all other amounts payable under this Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Debt Securities and shall forthwith be paid to the Trustee, to be credited and applied to the Obligations and all other amounts payable under this Guarantee, whether matured or unmatured, in accordance with the terms of the Indenture and this Guarantee, or be held as collateral for any Obligations or other amounts payable under this Guarantee thereafter arising.
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SECTION 5. No Waiver; Remedies . No failure on the part of the Trustee or any Holder of the Debt Securities to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 6. Continuing Guarantee; Transfer of Interest . This Guarantee is a continuing guarantee and shall (a) remain in full force and effect until the earliest to occur of (i) the date, if any, on which the Guarantor shall consolidate with or merge into the Issuer or any successor thereto, (ii) the date, if any, on which the Issuer or any successor thereto shall consolidate with or merge into the Guarantor, and (iii) payment in full of the Obligations, (b) be binding upon the Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by any Holder of Debt Securities, the Trustee, and by their respective successors, transferees, and assigns.
SECTION 7. Reinstatement . This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by any Holder of the Debt Securities or the Trustee upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, all as though such payment had not been made.
SECTION 8. Amendment . The Guarantor may amend this Guarantee at any time for any purpose without the consent of the Trustee or any Holder of the Debt Securities; provided, however, that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Debt Securities, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Debt Securities) shall be required.
SECTION 9. Governing Law . This Guarantee shall be governed by, and construed in accordance with the laws of the State of New York.
( signature page follows )
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed and delivered by its officer thereunto duly authorized.
| BRITISH AMERICAN TOBACCO P.L.C. | ||
| By: |
/s/ Ben Stevens |
|
| Name: | Ben Stevens | |
| Title: | Finance Director | |
| Address: | ||
|
Globe House 4 Temple Place |
||
| London WC2R 2PG | ||
| United Kingdom | ||
| Fax No.: +44 (0)20 7845 0555 | ||
| Tel. No.: +44 (0)20 7845 1000 | ||
| Att’n.: Company Secretary | ||
[Signature Page to Guarantee Agreement of British American Tobacco p.l.c.
with respect to Notes Issued Under Indenture dated June 23, 2009]
Exhibit 10.1
July , 2017
PERSONAL AND CONFIDENTIAL
[Name and Address]
Dear :
Reynolds American Inc. (“ RAI ”) is pleased to offer you this “ Transition Letter ” in connection with the completion of the transactions described in that certain Agreement and Plan of Merger, dated as of January 16, 2017, among British American Tobacco p.l.c. (“ BAT ”), BATUS Holdings Inc., Flight Acquisition Corporation and RAI (the “ Merger Agreement ”). This Transition Letter will be binding immediately upon its execution, but, notwithstanding any provision of this Transition Letter to the contrary, this Transition Letter will not become effective or operative (and neither party will have any obligation hereunder) until the occurrence of the “ Closing ” (as defined in the Merger Agreement). Notwithstanding any provision in this Transition Letter to the contrary, if the Merger Agreement is terminated (with the effect that the Closing will not occur), this Transition Letter will immediately terminate and you will not be entitled to any payments or benefits hereunder. Words and phrases used in this Transition Letter with initial capital letters that are not defined in this Transition Letter, and are defined in your letter agreement with RAI, dated , 200 , regarding special severance benefits and change of control protections (your “ 2/3 Agreement ”), are used herein as so defined.
| 1. | Continued Service Through the Departure Date . RAI has determined that your continued service to RAI or an affiliate of or successor to RAI (collectively, the “ Company ”) for a period of time following the “ Closing Date ” (as such term is defined in the Merger Agreement) will be important to the successful integration of RAI and BAT. It is currently anticipated that your services will be needed through , 201 (such date, or such later date as you and the Company mutually agree, the “ Departure Date ”). The Company agrees that it will release you from employment on the Departure Date, and that you may elect to end your employment on the Departure Date if the Company does not release you from employment on the Departure Date (either such termination, a “ Departure Date Termination ”). The period of time from the Closing Date through the Departure Date is referred to in this Transition Letter as the “ Transition Period ”. |
| 2. |
Termination of Employment During the Transition Period . Any Departure Date Termination and any other termination of your employment during the Transition Period (other than a termination due to your death, which is addressed in Section 3 of this Transition Letter, or a termination for Cause) will be treated as a Separation from Service that entitles you to the payments and benefits set forth in Section 1 and 2(a) of your 2/3 Agreement and, as a result, upon any such termination of your employment, the Company shall pay and provide to you, pursuant to your 2/3 Agreement, the Special Severance Benefits set forth in Section 1 of your 2/3 Agreement and any amounts to which you may be entitled under Section 2(a) of |
| your 2/3 Agreement, subject to your satisfaction of the requirements of Section 3(a) of your 2/3 Agreement, including execution of a general release and reaffirmation of your Non-Competition, Non-Disclosure of Confidential Information and Commitment to Provide Assistance Agreement. Your 2/3 Agreement and the RAI Non-Qualified Retirement Plan are hereby amended to reflect the preceding sentence. For the avoidance of doubt, any termination of employment under this Section 2 shall be considered a termination entitling you to severance benefits for purposes of any annual bonus or equity arrangements of the Company that provide special benefits upon such a termination. |
| 3. | Effect of Death During the Transition Period . |
| (a) | Eligibility . Your estate, your eligible dependents and your Pension Beneficiary (as defined below) will be entitled to receive the payments and benefits set forth in Section 3(b) of this Transition Letter in the event of your death while you are employed by the Company during the Transition Period. |
| (b) | Payments and Benefits . In the event that your employment with the Company terminates due to your death during the Transition Period, the following provisions shall apply, subject to the requirements of Section 3(c) of this Transition Letter: |
| i. | The Company shall pay your estate an amount equal to the Special Severance Benefits that would have been payable to you pursuant to Section 1(a)(i) of your 2/3 Agreement upon a termination of your employment under Section 2 of this Transition Letter on the date of your death. Such amount shall be paid in a lump sum in cash as soon as practicable (but in no event later than sixty (60) days) following the date of your death. |
| ii. | The Company shall provide continuation of the coverage of your eligible dependents under the Company’s medical, life, dental and vision insurance benefit plans for a period of up to three (3) years from the date of your death (the “ Subsidized Benefit Period ”) at the same cost structure as for active employees; provided, however, that during such Subsidized Benefit Period your eligible dependents will be covered by the fully insured medical, dental and vision plans maintained by the Company. The Subsidized Benefit Period will be included in the applicable COBRA continuation coverage period with respect to any group health plan. If your eligible dependents choose to continue COBRA continuation coverage under any group health plans after the Subsidized Benefit Period, such eligible dependents will be responsible for the entire premium payment for the remainder of the applicable COBRA continuation coverage period. |
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| iii. | The Company shall pay your estate an amount equal to the matching contributions and/or retirement enhancement contributions, if any, that would have been contributed by the Company on your behalf under the Company’s qualified defined contribution plan (the “ CIP ”) and nonqualified defined contribution plans assuming (i) you had continued to be employed as an active participant in the CIP throughout the three-year period following your death, (ii) your pay was equal to the amount of your base pay and target bonus as in effect immediately prior to your death and (iii) you contributed in an amount that would have provided for the maximum matching contributions during the three-year period following your death (without regard to any amendment to the CIP made subsequent to the date of your death which reduces the matching contributions and/or retirement enhancement contributions thereunder). Such amount shall be paid in a lump sum in cash as soon as practicable (but in no event later than sixty (60) days) following the date of your death. |
| iv. | If you are eligible to participate in the Company’s defined benefit pension plan as of the date of your death, the Company shall calculate an additional pension benefit, which shall be (i) determined as if your employment with the Company had continued throughout the three-year period following your death, and (ii) calculated as if your base pay and target bonus for such additional period remained at the level in effect on the date of your death. The additional pension benefit described in the preceding sentence shall be provided under and paid pursuant to the terms of the RAI Non-Qualified Retirement Plan, to the person or persons entitled under such plans to pension benefits payable in respect of you after your death (your “ Pension Beneficiary ”), and the RAI Non-Qualified Retirement Plan is hereby amended accordingly. |
| v. | If you are eligible for retiree health and life insurance coverage on the date of your death, additional age and service shall be credited towards eligibility for retiree health and life insurance coverage for your eligible dependents, determined as if your employment with the Company had continued throughout the three-year period following your death. |
| vi. | If you participate in an executive supplemental payment plan on the date of your death, your estate will be entitled to continue to receive the annual executive supplemental payment that you were entitled to receive on the date of your death until the end of the three-year period following your death. Such amount shall be paid in a lump sum in cash as soon as practicable (but in no event later than sixty (60) days) following the date of your death. |
| vii. |
If you are eligible to participate in the Company’s MedSave Plan as of the date of your death, the Company will pay your estate an amount equal to the contributions that would have been credited as Company contributions to your notional account under the MedSave Plan assuming (i) you had continued to be employed as an active participant in the MedSave Plan |
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| throughout the three-year period following your death and (ii) the Company had credited your notional account thereunder with the maximum amount of matching contributions each year during the three-year period following your death. Such amount shall be paid in a lump sum in cash as soon as practicable (but in no event later than sixty (60) days) following the date of your death. |
| (c) | General Release . As a condition to receiving any benefits or amounts payable pursuant to this Section 3 of this Transition Letter, your estate and Pension Beneficiary, as applicable, must satisfy the general release requirement of Section 3(a) of your 2/3 Agreement. |
| 4. | Tax Withholding . The Company shall withhold from any amounts payable under this Transition Letter all federal, state, city or other taxes as may be required to be withheld pursuant to any law or governmental regulation or ruling. |
| 5. | Code Section 409A . |
| (a) | Specified Employees . Notwithstanding anything in this Transition Letter to the contrary, in the event that you are deemed to be a “specified employee” on the date your employment with the Company terminates, determined pursuant to an identification methodology adopted by the Company in compliance with Section 409A, and if any portion of the payments or benefits to be received by you upon separation from service would constitute a “deferral of compensation” subject to Section 409A, then to the extent necessary to comply with Section 409A, amounts that would otherwise be payable pursuant to this Transition Letter or your 2/3 Agreement during the six (6) month period immediately following the date of your termination of employment and benefits that would otherwise be provided pursuant to this Transition Letter or your 2/3 Agreement during the six (6) month period immediately following the date of your termination of employment will instead be paid or made available on the earlier of (i) within ten (10) days following the first business day of the seventh month after the date of your termination of employment, provided that you shall not have the right to designate the payment date or (ii) your death. |
| (b) | General . The parties intend for this Transition Letter to either comply with, or be exempt from, Section 409A, and all provisions of this Transition Letter will be interpreted and applied accordingly. Each payment under this Transition Letter shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. |
| 6. | Legal Fees and Expenses . If your employment is terminated (a) for any reason other than death during the Transition Period (in the case of Section 1 or 2 of this Transition Letter) or (b) due to your death during the Transition Period (in the case of Section 3 of this Transition Letter), the Company will pay to you (in the case of Section 1 or 2 of this Transition Letter) your estate (in the case of Sections 3(b)(i), 3(b)(iii), 3(b)(vi) or 3(b)(vii) of this Transition Letter), your eligible dependents (in |
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| the case of Section 3(b)(ii) or 3(b)(v) of this Transition Letter) or your Pension Beneficiary (in the case of Section 3(b)(iv) of this Transition Letter) as incurred all legal and accounting fees and expenses incurred by you, your estate, your eligible dependents or your Pension Beneficiary as a result of such termination (including all such fees and expenses, if any, in seeking to obtain or enforce any right or benefit provided hereunder, unless your, your estate’s, your eligible dependents’ or your Pension Beneficiary’s claim is found by an arbitral tribunal of competent jurisdiction to have been frivolous. Any such payments shall be made no later than December 31 of the year following the year in which you, your estate, your eligible dependents or your Pension Beneficiary incur the expenses, provided that in no event will the amount of expenses eligible for reimbursement in one year affect the amount of expenses to be reimbursed, or in-kind benefits to be provided, in any other taxable year. Each provision of reimbursements pursuant to this Section 6 of this Transition Letter shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. |
| 7. | Applicable Law . The laws of North Carolina shall be the controlling law in all matters relating to this Transition Letter, without giving effect to principles of conflicts of laws. The Company shall apply and administer this Transition Letter in a manner such that the Employee Retirement Income Security Act of 1974, as amended, does not apply to this Transition Letter. |
| 8. | Amendments . This Transition Letter may only be amended if agreed to in writing by the Company and you (or after your death, (a) in the case of an amendment affecting Sections 3(b)(i), 3(b)(iii), 3(b)(vi) or 3(b)(vii) of this Transition Letter, your estate, (b) in the case of an amendment affecting Section 3(b)(ii) or 3(b)(v) of this Transition Letter, your eligible dependents and (c) in the case of an amendment affecting Section 3(b)(iv) of this Transition Letter, your Pension Beneficiary). |
| 9. | Complete Agreement . This Transition Letter embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way. For the avoidance of doubt, however, the parties agree that except as expressly set forth herein, nothing in this Transition Letter supersedes, preempts or amends your 2/3 Agreement or any other arrangement between you and the Company. |
| 10. | Counterparts . This Transition Letter may be executed in two or more counterparts (including by facsimile or PDF), each of which will be deemed an original but all of which together will constitute one and the same instrument. |
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Please be aware that this Transition Letter does not constitute an offer or guarantee of employment with the Company. Please indicate your agreement to the terms set forth herein by executing this Transition Letter in the space provided below.
| Very truly yours, | ||
| REYNOLDS AMERICAN INC. | ||
| By: |
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| Name: | ||
| Title: | ||
I hereby agree to the terms of this Transition Letter, including the amended terms with respect to my 2/3 Agreement.
| By: |
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| [Name] | ||
| Date: |
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