As filed with the Securities and Exchange Commission on July __, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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R.J. REYNOLDS TOBACCO HOLDINGS, INC.
(formerly RJR Nabisco, Inc.)
(Exact name of registrant as specified in its charter)
DELAWARE 56-0950247
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
401 North Main Street
Winston-Salem, NC 27102
(336) 741-5500
(Address of principal executive offices)
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EQUITY INCENTIVE AWARD PLAN FOR DIRECTORS OF
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
(Full title of the plan)
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Charles A. Blixt, Esq.
R.J. Reynolds Tobacco Holdings, Inc.
401 North Main Street
Winston-Salem, NC 27102
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (336) 741-5500
Copies to:
David W. Ferguson, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
<TABLE>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed
Maximum Proposed Maximum
Title of Securities Amount to Be Offering Price Aggregate Amount of
To Be Registered(1) Registered(2) Per Share(3) Offering Price(3) Registration Fee
- -------------------------------------------------------------------------------------------------------------------
COMMON STOCK
(PAR VALUE $0.01 PER SHARE) 500,000 SHARES $28.66 $14,330,000 $3,984
===================================================================================================================
(1) This Registration Statement also pertains to Rights to Purchase one
one-hundredth of a share of Series A Junior Participating Preferred Stock,
par value $0.01 per share, of the Registrant (the "Rights"). Until the
occurrence of certain prescribed events, the Rights are not exercisable,
are evidenced by the certificates for R.J. Reynolds Tobacco Holdings, Inc.
Common Stock, par value $0.01 per share, and will be transferred along with
and only with such securities. Thereafter, separate Rights certificates
will be issued representing one Right for each share of R.J. Reynolds
Tobacco Holdings, Inc. Common Stock held subject to adjustment pursuant to
anti-dilution provisions.
(2) Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(3) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of computing the registration fee, based on the average of
the high and low prices of the securities being registered hereby on the
New York Stock Exchange Composite Transaction Tape on July 23, 1999.
</TABLE>
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This Registration Statement Includes a Total of 11 Pages.
Exhibit Index on Page 9.
<PAGE>
EXPLANATORY NOTE
On or about June 14, 1999, RJR Nabisco Holdings Corp. ("Holdings")
distributed (the "Distribution") to Holdings' stockholders all the shares of
common stock of RJR Nabisco, Inc. ("RJRN") held by Holdings. In connection with
the Distribution, RJRN was renamed R.J. Reynolds Tobacco Holdings, Inc., (the
"Registrant" or "RJRTH"), which files this Registration Statement on Form S-8
with the Securities and Exchange Commission (the "Commission") to register
500,000 shares of the Registrant's Common Stock, par value $.01 per share
("Common Stock"), for issuance pursuant to the Equity Incentive Award Plan for
Directors of R.J. Reynolds Tobacco Holdings, Inc. (the"Plan").
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant
pursuant to the Securities Exchange Act of 1934 (the "1934 Act"), (Commission
1934 Act File Number 1-6388) are incorporated by reference herein:
(1) The Information Statement contained in the Registrant's 1934
Act registration statement on Form 8-A dated May 19, 1999 as Exhibit 99.1;
(2) Current Reports of RJRN and RJRTH on Form 8-K dated April 8,
1999, April 16, 1999, May 27, 1999 and June 15, 1999;
(3) All documents filed with the Commission by RJRN or RJRTH
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent
to the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered herein have been sold or which
deregisters all securities then remaining unsold; and
(4) The description of the Registrant's Common Stock and the Rights
contained in the Registrant's 1934 Act registration statement on Form 8-A
dated May 19, 1999, filed with the Commission pursuant to Section 13 of
the 1934 Act, including any amendment thereto or report filed for the
purpose of updating such description.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof or of the related prospectus to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed
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<PAGE>
to be incorporated herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
The Registrant will provide, without charge to each person, including any
beneficial owner, to whom this document is delivered, upon written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this document). Requests for
such documents should be submitted in writing, addressed to the office of the
Corporate Secretary, R.J. Reynolds Tobacco Holdings, Inc., 401 North Main
Street, Winston-Salem, NC 27102.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable, see Item 3(4) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with any original issuance of Common
Stock offered hereby are being passed upon for the Registrant by Charles A.
Blixt, Esq. Executive Vice President and General Counsel of the Registrant. Mr.
Blixt owns shares of Common Stock which represent less than 0.1% of the
currently outstanding shares of all classes of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors against expenses (including
attorney's fees) in connection with the defense or settlement of an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such an
officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Restated Certificate of
Incorporation of RJRTH contains a provision to limit the personal liability of
the directors of RJRTH for violations of their fiduciary duty. This provision
eliminates each director's liability to RJRTH or its stockholders for monetary
damages except (i) for any breach of the director's duty of loyalty to RJRTH or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware Law providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions, or (iv) for any
transaction from which a director derived an improper personal benefit. The
effect of this provision is to eliminate the personal liability of directors for
monetary damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence. In addition, the holders
of Common Stock are deemed to have consented to certain provisions of the
Restated Certificate of Incorporation under which certain allocations of
corporate opportunities are not deemed to breach a director's fiduciary duty of
loyalty.
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The Restated Certificate of Incorporation of RJRTH provides for
indemnification of the officers and directors of RJRTH to the full extent
permitted by applicable law.
In addition, RJRTH will maintain directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Restated Certificate of Incorporation of R.J. Reynolds Tobacco
Holdings, Inc. (incorporated by reference to the Registrant's Current
Report on Form 8-K (Commission 1934 Act File No. 1- 6388), dated June
15, 1999 (the "Form 8-K"), Exhibit 3.1)
4.2 By-laws of R.J. Reynolds Tobacco Holdings, Inc. (incorporated by
reference to the Form 8-K, Exhibit 3.2)
4.3 R.J. Reynolds Tobacco Holdings, Inc. Rights Plan (incorporated by
reference to Form 8-K, Exhibit 3.3)
5 Opinion of Charles A. Blixt, Esq. regarding the legality of any
original issuance securities being registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Charles A. Blixt, Esq. (included in Exhibit 5)
24 Powers of Attorney (included on the signature page of this
registration statement)
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* Incorporated by reference
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in this Registration
Statement; and
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference into this Registration Statement;
(2) That for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of the Plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF
1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF WINSTON-SALEM, STATE OF NORTH CAROLINA, ON THIS
27TH DAY OF JULY, 1999.
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
By: /s/ Charles A. Blixt
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Charles A. Blixt
Executive Vice President and General Counsel
6
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below hereby constitutes and appoints CHARLES A. BLIXT, GUY M. BLYNN AND McDARA
P. FOLAN, III, and each of them, his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign the S-8
Registration Statement and any and all amendments (including post-effective
amendments) and supplements to the S-8 Registration Statement regarding the
Equity Incentive Award Plan for Directors of the R.J. Reynolds Tobacco Holdings,
Inc., and to file the same, with all exhibits thereto, and other documents in
connection therewith, the Securities and Exchange Commission, and hereby grants
to such attorneys-in-fact and agents, full power and authority to do and perform
each and every act and thing requisite or necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities on July 2, 1999.
SIGNATURE TITLE
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/s/ Andrew J. Schindler Chairman of the Board, Chief Executive
- --------------------------- Officer, President and Director
Andrew J. Schindler
/s/ Kenneth J. Lapiejko Executive Vice President and Chief Financial
- --------------------------- Officer (principal financial officer)
Kenneth J. Lapiejko
/s/ Thomas R. Adams Senior Vice President and Controller
- --------------------------- (principal accounting officer)
Thomas R. Adams
/s/ John T. Chain, Jr. Director
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John T. Chain, Jr.
/s/ A.D. Frazier Director
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A. D. Frazier
/s/ Denise Ilitch Director
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Denise Ilitch
/s/ John G. Medlin, Jr. Director
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John G. Medlin, Jr.
/s/ Nana Mensah Director
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Nana Mensah
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SIGNATURE TITLE
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/s/ Joseph P. Viviano Director
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Joseph P. Viviano
/s/ Thomas C. Wajnert Director
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Thomas C. Wajnert
8
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INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibits Pages
------- -------- ------------
4.1 -- Restated Certificate of Incorporation (1)
4.2 -- By-laws (1)
4.3 -- Rights Plan (1)
5 -- Opinion of Charles A. Blixt, Esq. 10
23.1 -- Consent of Deloitte & Touche, LLP 11
23.2 -- Consent of Charles A. Blixt, Esq.
(contained in Exhibit 5) 10
24 -- Power of Attorney (included on the signature
page of this registration statement) 7
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(1) Incorporated by reference
EXHIBIT 5
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
July 27, 1999
R.J. Reynolds Tobacco Holdings, Inc.
1301 Avenue of the Americas
New York, New York 10019-6013
Ladies and Gentlemen:
I have acted as counsel for R.J. Reynolds Tobacco Holdings, Inc., a
Delaware corporation, in connection with the accompanying Registration Statement
on Form S-8 (the "Registration Statement") for the issuance and sale of up to
500,000 shares of Common Stock, par value $.01 per share (the "Common Stock"),
to participants ("Participants") in the Equity Incentive Award Plan for
Directors of R.J. Reynolds Tobacco Holdings, Inc.
I have examined the Registration Statement, its exhibits and such other
documents and records, and made such other investigations as I have deemed
necessary and relevant for this opinion. Based on this review, I am of the
opinion that, upon the receipt of adequate consideration therefor, any Common
Stock distributed to Participants pursuant to the Plan will be duly authorized,
validly issued, fully paid and non-assessable.
The opinion set forth herein is limited to the General Corporation Law of
the State of Delaware and the federal laws of the United States.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Charles A. Blixt, Esq.
EXECUTIVE VICE PRESIDENT
AND GENERAL COUNSEL
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of R.J. Reynolds Tobacco Holdings, Inc. ("RJRTH") on Form S-8 of our
report dated May 19, 1999 appearing in the Information Statement contained in
RJRTH's registration statement on Form 8-A dated May 19, 1999 as Exhibit 99.1.
DELOITTE & TOUCHE LLP
New York, New York
July 27, 1999
