As filed with the Securities and Exchange Commission on June 14, 1999
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
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) 741-5000
(Address of principal executive offices)
-----------------------
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
CAPITAL INVESTMENT PLAN
SAVINGS AND INVESTMENT PLAN FOR EMPLOYEES
OF R.J. REYNOLDS TOBACCO COMPANY IN PUERTO RICO
(Full title of the plans)
-----------------------
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) 741-5000
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
===================================================================================================================================
Proposed
Maximum Proposed Maximum
Title of Securities Amount to Be Offering Price Aggregate Amount of
To Be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
COMMON STOCK
(PAR VALUE $0.01 PER SHARE) 4,000,000 SHARES $32.75 $131,000,000 $36,418
===================================================================================================================================
</TABLE>
(1) 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. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plans described herein.
(2) 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 June 9, 1999.
===============================================================================
This Registration Statement Includes a Total of 23 Pages.
Exhibit Index on Page 10.
<PAGE>
EXPLANATORY NOTE
On or about June 14, 1999, RJR Nabisco Holdings Corp. ("Holdings") will
distribute (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
4,000,000 shares of the Registrant's Common Stock, par value $.01 per share
("Common Stock"), for issuance pursuant to the Registrant's Capital Investment
Plan (the "CIP") and the Savings and Investment Plan for Employees of R.J.
Reynolds Tobacco Company in Puerto Rico (the "SIP-PR", together with the CIP,
the "Plans").
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 or the
Plans 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 and May 27, 1999;
(3) The CIP's Annual Report on Form 11-K for the plan year ended
December 30, 1997;
(4) The SIP-PR's Annual Report on Form 11-K for the plan year ended
December 30, 1997;
(5) All documents filed with the Commission by the Registrant, the
CIP or the SIP-PR 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
(6) The description of the Registrant's Common Stock 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.
2
<PAGE>
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 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(7) 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
3
<PAGE>
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.
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.
4.2 By-laws of R.J. Reynolds Tobacco Holdings, Inc., as amended effective
June 14, 1999
5.1 Opinion of Charles A. Blixt, Esq. regarding the legality of any
original issuance securities being registered
5.2 Opinion of Pietrantoni Mendez & Alvarez LLP regarding the
compliance of the SIP-PR with the provisions of the Employee
Retirement Income Security Act of 1974, as amended
23.1 Consents of Deloitte & Touche LLP
23.2 Consent of Charles A. Blixt, Esq. (included in Exhibit 1)
23.3 Consent of Pietrantoni Mendez & Alvarez LLP (contained in Exhibit 5.2)
24 Powers of Attorney (included on the signature page of this
registration statement)
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
4
<PAGE>
(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.
(d) The undersigned Registrant hereby undertakes to submit the CIP and any
amendment thereto to the Internal Revenue Service (the "IRS") in a timely
manner and will make all changes required by the IRS in order to qualify the
CIP under Section 401 of the Internal Revenue Code.
5
<PAGE>
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 NEW YORK, STATE OF NEW YORK, ON THIS
14TH DAY OF JUNE, 1999.
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
By: /s/ Charles A. Blixt
--------------------------------------------
Charles A. Blixt
Executive Vice President and General Counsel
6
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW, CONSTITUTES AND APPOINTS CHARLES A. BLIXT, GUY M. BLYNN AND MICHAEL O.
JOHNSON, AND EACH OF THEM, OUR TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS,
WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, TO DO ANY AND ALL ACTS AND
THINGS AND EXECUTE, IN THE NAME OF THE UNDERSIGNED, ANY AND ALL INSTRUMENTS
WHICH SAID ATTORNEYS-IN-FACT AND AGENTS MAY DEEM NECESSARY OR ADVISABLE IN
ORDER TO ENABLE THE REGISTRANT TO COMPLY WITH THE SECURITIES ACT OF 1933 AND
ANY REQUIREMENTS OF THE SECURITIES AND EXCHANGE COMMISSION IN RESPECT THEREOF,
IN CONNECTION WITH THE FILING WITH THE SECURITIES AND EXCHANGE COMMISSION OF
THE REGISTRATION STATEMENT ON FORM S-8 UNDER THE SECURITIES ACT OF 1933,
INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION, POWER AND AUTHORITY TO SIGN THE
NAME OF THE UNDERSIGNED TO SUCH REGISTRATION STATEMENT, AND ANY AMENDMENTS TO
SUCH REGISTRATION STATEMENT (INCLUDING POST-EFFECTIVE AMENDMENTS), AND TO FILE
THE SAME WITH ALL EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH,
WITH THE SECURITIES AND EXCHANGE COMMISSION, TO SIGN ANY AND ALL APPLICATIONS,
REGISTRATION STATEMENTS, NOTICES OR OTHER DOCUMENTS NECESSARY OR ADVISABLE TO
COMPLY WITH APPLICABLE STATE SECURITIES LAWS, AND TO FILE THE SAME, TOGETHER
WITH OTHER DOCUMENTS IN CONNECTION THEREWITH WITH THE APPROPRIATE STATE
SECURITIES AUTHORITIES, GRANTING UNTO SAID ATTORNEYS-IN-FACT AND AGENTS, AND
EACH OF THEM, FULL POWER AND AUTHORITY TO DO AND TO PERFORM EACH AND EVERY ACT
AND THING REQUISITE OR NECESSARY TO BE DONE IN AND ABOUT THE PREMISES, AS FULLY
AND TO ALL INTENTS AND PURPOSES AS THE UNDERSIGNED MIGHT OR COULD DO IN PERSON,
HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-IN-FACT AND AGENTS, AND
ANY OF THEM, OR THEIR SUBSTITUTES, MAY LAWFULLY DO OR CAUSE TO BE DONE BY
VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES ON JUNE 14, 1999.
SIGNATURE TITLE
- ---------
/s/ Steven F. Goldstone Chairman of the Board and Chief Executive
- ---------------------------- Officer, Director
Steven F. Goldstone
/s/ David B. Rickard Senior Vice President and Chief Financial
- ---------------------------- Officer
David B. Rickard
/s/ Richard G. Russell Senior Vice President and Controller
- ----------------------------
Richard G. Russell
/s/ John T. Chain, Jr. Director
- ----------------------------
John T. Chain, Jr.
- ----------------------------- Director
Julius L. Chambers
7
<PAGE>
SIGNATURE TITLE
- ---------
/s/ John L. Clendenin Director
- ----------------------------
John L. Clendenin
/s/ Ray J. Groves Director
- ----------------------------
Ray J. Groves
/s/ Fred H. Langhammer Director
- ----------------------------
Fred H. Langhammer
- ----------------------------- Director
H. Eugene Lockhart
- ----------------------------- Director
Theodore E. Martin
- ----------------------------- Director
Rozanne L. Ridgway
8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plans) have caused this
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this
14th day of June, 1999.
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
CAPITAL INVESTMENT PLAN
By: /s/ H. Colin McBride
---------------------------------------
H. Colin McBride
Secretary, Employee
Benefits Committee
SAVINGS AND INVESTMENT PLAN FOR
EMPLOYEE OF R.J. REYNOLDS TOBACCO
COMPANY IN PUERTO RICO
By: /s/ H. Colin McBride
---------------------------------------
H. Colin McBride
Secretary, Employee
Benefits Committee
9
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibits Pages
------- -------- ------------
4.1 -- Certificate of Incorporation 11
4.2 -- By-laws 16
5.1 -- Opinion of Charles A. Blixt, Esq. 21
5.2 -- Opinion of Pietrantoni Mendez & Alvarez LLP 22
23.1 -- Consents of Deloitte & Touche LLP 23
23.2 -- Consent of Charles A. Blixt, Esq (contained in
Exhibit 5.1) 21
23.3 -- Consent of Pietrantoni Mendez & Alvarez LLP
(contained in Exhibit S.2) 23
24 -- Power of Attorney (included on the signature
page of this registration statement) 7
10
EXHIBIT 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
*****
Pursuant to Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware
The undersigned H. Colin McBride, Secretary of R.J. Reynolds Tobacco
Holdings, Inc. (the "Corporation"), certifies as follows:
1. (a) The name of the Corporation is currently R.J. Reynolds Tobacco
Holdings, Inc.
(b) The Corporation was originally incorporated under the name R.J.
Reynolds Industries, Inc. The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
March 4, 1970.
2. The Certificate of Incorporation is hereby amended by striking out
Articles I through VI thereof and by substituting new Articles First through
Ninth which are set forth in the Restated Certificate of Incorporation below.
3. The provisions of the Certificate of Incorporation of the Corporation
as heretofore amended and/or supplemented, and as herein amended, are hereby
restated and integrated into the single instrument entitled "Restated
Certificate of Incorporation of R.J. Reynolds Tobacco Holdings, Inc." set forth
below.
4. The amendments and the restatement of the Restated Certificate of
Incorporation certified herein have been duly adopted by the sole stockholder
of the Corporation in accordance with the provisions of Sections 228, 242 and
245 of the General Corporation Law of the State of Delaware.
11
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
OF
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
(Originally incorporated under the name of
R.J. Reynolds Industries, Inc. on March 4, 1970)
ARTICLE FIRST
The name of the Corporation is R.J. Reynolds Tobacco Holdings, Inc.
ARTICLE SECOND
The address of its registered office in the State of Delaware is 1013
Centre Road, City of Wilmington, County of New Castle, Delaware 19805. The name
of its registered agent at such address is The Prentice-Hall Corporation
System, Inc.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended (the
"DGCL").
ARTICLE FOURTH
The total number of shares of capital stock that the Corporation is
authorized to issue is 340,000,000 shares of which 290,000,000 shares are
Common Stock, par value $.01 each, and 50,000,000 shares are Preferred Stock,
par value $.01 each (hereinafter referred to as "Preferred Stock"). The
Corporation may issue the 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 or a duly authorized committee thereof. 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 FOURTH, 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 under the DGCL. The number of authorized
shares of any class or classes of stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the Common Stock of the Corporation irrespective
of the provisions of Section 242(b)(2) of the DGCL or any corresponding
provision hereafter enacted.
ARTICLE FIFTH
The Board of Directors of the Corporation, acting by majority vote, may
alter, amend or repeal the By-Laws of the Corporation. The stockholders may
adopt, amend or repeal the By-Laws only with the affirmative vote of the
holders of not less than 80% of the outstanding securities of the Corporation
then entitled to vote thereon, voting together as a single class.
12
<PAGE>
ARTICLE SIXTH
(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.
(2) The Board of Directors shall consist of not less than five nor more
than twelve directors, with the exact number of directors to be determined from
time to time by resolution adopted by the Board of Directors.
(3) The members of the Board of Directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may reasonably be possible, of one-third of the total number of
directors constituting the Board of Directors. Each director shall serve for a
term ending on the date of the third annual meeting of stockholders next
following the annual meeting at which such director was elected, provided that
directors initially designated as Class I directors shall serve for a term
ending on the date of the year 2000 annual meeting, directors initially
designated as Class II directors shall serve for a term ending on the date of
the year 2001 annual meeting, and directors initially designated as Class III
directors shall serve for a term ending on the date of the year 2002 annual
meeting. Notwithstanding the foregoing, each director shall hold office until
such director's successor shall have been duly elected and qualified or until
such director's earlier death, resignation or removal. In the event of any
change in the number of directors, the Board of Directors shall apportion any
newly-created directorships among, or reduce the number of directorships in,
such class or classes as shall equalize, as nearly as may reasonably be
possible, the number of directors in each class. In no event will a decrease in
the number of directors shorten the term of any incumbent director.
(4) Initial Directors. The names and mailing addresses of the persons who
are to serve initially as directors in each Class are:
Name Mailing Address
Class I John T. Chain, Jr. R. J. Reynolds Tobacco
Thomas C. Wajnert Company
401 North Main Street
Winston-Salem, NC 27102
Class II A. D. Frazier R. J. Reynolds Tobacco
John G. Medlin, Jr. Company
Nana Mensah 401 North Main Street
Winston-Salem, NC 27102
Class III Denise Ilitch R. J. Reynolds Tobacco
Andrew J. Schindler Company
Joseph P. Viviano 401 North Main Street
Winston-Salem, NC 27102
(5) There shall be no cumulative voting in the election of directors.
Election of directors need not be by written ballot unless the By-Laws of the
Corporation so provide. Directors need not be stockholders.
(6) 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
shall be filled only by a majority of the directors then in office (although
less than a quorum) or by the
13
<PAGE>
sole remaining director and not by the stockholders, and each director so
elected shall hold office for a term that shall coincide with the term of the
Class to which such director shall have been elected.
(7) Each member of the Board of Directors shall have one vote on all
matters presented to the Board of Directors, and a majority of the total number
of directors at any time shall constitute a quorum for the transaction of
business at that time. The Board of Directors may act by the unanimous written
consent of the directors.
(8) Notwithstanding the foregoing, 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 FOURTH applicable thereto, and such directors so elected
shall not be subject to the provisions of this ARTICLE SIXTH unless otherwise
provided in such resolution or resolutions.
ARTICLE SEVENTH
(1) To the fullest extent permitted by the DGCL as now in effect or as
hereafter amended, no director or Continuing Director of the Corporation shall
be liable for monetary damages for breach of fiduciary duty.
(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 is or was serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by the DGCL.
The right to indemnification conferred in this ARTICLE SEVENTH shall also
include the right to be paid by the Corporation the expenses incurred in
connection with any such proceeding in advance of its final disposition to the
fullest extent authorized by the DGCL. The right to indemnification conferred
in this ARTICLE SEVENTH 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 DGCL.
(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 DGCL.
(5) The rights and authority conferred in this ARTICLE SEVENTH shall not
be exclusive of any other right which any person may otherwise have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation or By-laws of the Corporation, agreement, vote of stockholders or
disinterested directors or otherwise.
(6) Neither the amendment nor repeal of this ARTICLE SEVENTH, nor the
adoption of any provision of this Certificate of Incorporation or the By-laws
of the Corporation, nor, to the fullest extent permitted by the DGCL, any
modification of law, shall eliminate or reduce the effect of this ARTICLE
SEVENTH in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
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ARTICLE EIGHTH
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only upon the vote of stockholders at an
annual or special meeting duly noticed and called in accordance with the DGCL
and may not be taken by written consent of stockholders without a meeting.
ARTICLE NINTH
Special meetings of the stockholders may be called by the Board of
Directors, the Chairman of the Board of Directors, the President or the
Secretary of the Corporation and may not be called by any other person.
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
FOURTH hereof, special meetings of holders of such Preferred Stock.
IN WITNESS WHEREOF, the undersigned has duly executed this Restated
Certificate of Incorporation as of June 14, 1999.
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
By:___________________________________
Name: H. Colin McBride
Title: Senior Vice President,
Secretary and General Counsel
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EXHIBIT 4.2
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
BY-LAWS
As Amended Effective June 14, 1999
* * * * *
ARTICLE 1
MEETINGS OF STOCKHOLDERS
SECTION 1.01. Place of Meetings. Meetings of stockholders of the
Corporation shall be held at such place either within or without the State of
Delaware as the Corporation's Board of Directors (the "Board") may determine.
SECTION 1.02. Annual and Special Meetings. Annual meetings of stockholders
shall be held, at a date, time and place fixed by the Board and stated in the
notice of meeting, to elect a Board and to transact such other business as may
properly come before the meeting. Special meetings of stockholders may be
called by the persons identified in the Corporation's Certificate of
Incorporation.
SECTION 1.03. Notice. Except as otherwise provided by law or by the
Certificate of Incorporation, written notice shall be given to each stockholder
entitled to vote at least 10 and not more than 60 days before each meeting of
stockholders, such notice to include the time, date and place of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called.
SECTION 1.04. Quorum. At any meeting of stockholders, the holders of
record, present in person or by proxy, of a majority of the Corporation's stock
issued and outstanding and entitled to vote shall constitute a quorum for the
transaction of business, except as otherwise provided by law or by the
Certificate of Incorporation. In the absence of a quorum, any officer entitled
to preside at or to act as secretary of the meeting shall have power to adjourn
the meeting from time to time until a quorum is present.
SECTION 1.05. Conduct of Meeting and Order of Business. The Chairman or,
at the Chairman's request, the Chief Executive Officer, shall act as chairman
at all meetings of stockholders. The Secretary of the Corporation or, in his or
her absence, an Assistant Secretary shall act as secretary at all meetings of
stockholders. The chairman of the meeting shall have the right and authority to
determine and maintain the rules, regulations and procedures for the proper
conduct of the meeting, including but not limited to restricting entry to the
meeting after it has commenced, maintaining order and the safety of those in
attendance, opening and closing the polls for voting, dismissing business not
properly submitted, and limiting time allowed for discussion of the business of
the meeting.
Business to be conducted at annual meetings of stockholders shall be
limited to that properly submitted to the meeting either by or at the direction
of the Board or by any stockholder of the Corporation who shall be entitled to
vote at such meeting and who complies with the notice requirements set forth in
Section 1.06. If the chairman of the meeting shall determine that any business
was not properly submitted in accordance with the terms of Section 1.06, he or
she shall declare to the meeting that such business was not properly submitted
and would not be transacted at that meeting.
SECTION 1.06. Advance Notice of Stockholder Proposals. In order to
properly submit any business to an annual meeting of stockholders, a
stockholder must give timely notice in writing to the Secretary of the
Corporation. To be considered timely, a stockholder's notice must be delivered
either in person or by United States certified mail, postage prepaid, and
received prior to the close of business at the principal executive offices of
the
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Corporation (a) not less than 120 days nor more than 150 days (unless, in
either case, such day is not a business day in which case the immediately
preceding business day) before the first anniversary of the Corporation's last
annual meeting of stockholders or (b) if no annual meeting was held in the
previous year or the date of the applicable annual meeting has been changed by
more than 30 days from such anniversary date, not less than a reasonable time,
as determined by the Board, prior to the date of the applicable annual meeting.
In no event shall the public announcement of a postponement or adjournment of
an annual meeting commence a new time period for the giving of a stockholder's
notice as described above.
Nomination of persons for election to the Board may be made by the Board
or any committee designated by the Board or by any stockholder entitled to vote
for the election of directors at the applicable meeting of stockholders.
However, nominations other than those made by the Board or its designated
committee must comply with the procedures set forth in this Section 1.06, and
no person shall be eligible for election as a director unless nominated in
accordance with the terms of this Section 1.06.
A stockholder may nominate a person or persons for election to the Board
by giving written notice to the Secretary of the Corporation in accordance with
the procedures set forth above. In addition to the timeliness requirements set
forth above for notice to the Corporation by a stockholder of business to be
submitted at an annual meeting of stockholders, with respect to any special
meeting of stockholders called for the election of directors, written notice
must be delivered in the manner specified above and not later than the close of
business on the seventh day following the date on which notice of such meeting
is first given to stockholders.
The Secretary of the Corporation shall deliver any stockholder proposals
and nominations received in a timely manner for review by the Board or a
committee designated by the Board.
A stockholder's notice to submit business to an annual meeting of
stockholders shall set forth (i) the name and address of the stockholder, (ii)
the class and number of shares of stock beneficially owned by such stockholder,
(iii) the name in which such shares are registered on the stock transfer books
of the Corporation, (iv) a representation that the stockholder intends to
appear at the meeting in person or by proxy to submit the business specified in
such notice, (v) any material interest of the stockholder in the business to be
submitted and (vi) a brief description of the business desired to be submitted
to the annual meeting, including the complete text of any resolutions to be
presented at the annual meeting, and the reasons for conducting such business
at the annual meeting. In addition, the stockholder making such proposal shall
promptly provide any other information reasonably requested by the Corporation.
In addition to the information required above to be given by a stockholder
who intends to submit business to a meeting of stockholders, if the business to
be submitted is the nomination of a person or persons for election to the Board
then such stockholder's notice must also set forth, as to each person whom the
stockholder proposes to nominate for election as a director, (a) the name, age,
business address and, if known, residence address of such person, (b) the
principal occupation or employment of such person, (c) the class and number of
shares of stock of the Corporation which are beneficially owned by such person,
(d) any other information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors or is otherwise
required by the rules and regulations of the Securities and Exchange Commission
promulgated under the Securities Exchange Act of 1934, as amended, (e) the
written consent of such person to be named in the proxy statement as a nominee
and to serve as a director if elected and (f) a description of all arrangements
or understandings between such stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by such stockholder.
Any person nominated for election as a director by the Board or any
committee designated by the Board shall, upon the request of the Board or such
committee, furnish to the Secretary of the Corporation all such information
pertaining to such person that is required to be set forth in a stockholder's
notice of nomination.
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In addition to the foregoing provisions of this Section 1.06, a
stockholder who seeks to have any proposal included in the Corporation's proxy
statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended.
SECTION 1.07. Voting. Except as otherwise provided by law or by the
Certificate of Incorporation, all matters submitted to a meeting of
stockholders shall be decided by vote of the holders of record, present in
person or by proxy, of a majority of the Corporation's stock issued and
outstanding and entitled to vote.
A proxy shall be executed in writing by the stockholder or by his or her
duly authorized attorney-in-fact and shall be delivered to the secretary of the
meeting at or prior to the time designated by the chairman of the meeting. No
stockholder may designate more than four persons to act on his or her behalf at
a meeting of stockholders.
SECTION 1.08. Inspectors of Election. Prior to any meeting of
stockholders, the Board shall appoint one or more inspectors to act at the
meeting and make a written report thereof in accordance with the Delaware
General Corporation Law. The Board may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. Each inspector,
before entering upon the discharge of his or her duties, shall take and sign an
oath to execute faithfully the duties of inspector with strict impartiality and
according to the best of his or her ability.
ARTICLE 2
DIRECTORS
SECTION 2.01. Meetings. Regular meetings of the Board shall be held at
such times and places as may from time to time be fixed by the Board or as may
be specified in a notice of meeting. Special meetings of the Board may be held
at any time upon the call of the Chairman or the Chief Executive Officer and
shall be called by the Chairman, the Chief Executive Officer or the Secretary
if directed by the Board. A meeting of the Board may be held without notice
immediately after the annual meeting of stockholders. No notice shall be
required for any regular meeting of the Board. Notice of the day, hour and
place of holding of each special meeting shall be given by delivering the same
at least two days before the date of the meeting or by causing the same to be
transmitted by telecopy or telegraph at least one day before the meeting to
each director.
SECTION 2.02. Quorum. Except as otherwise provided in the Certificate of
Incorporation, a majority of the total number of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at any
meeting of the Board, the directors present may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until such a
quorum is present.
SECTION 2.03. Executive Committee. The Board, by resolution adopted by a
majority of the entire Board, may appoint from among its members an Executive
Committee consisting of the Chief Executive Officer, if such officer is a
member of the Board, or the Chairman, if the Chief Executive Officer is not a
member of the Board, and at least two other directors. Meetings of the
Executive Committee shall be held without notice at such dates, times and
places as shall be determined by the Executive Committee. The Executive
Committee shall have and may exercise all the powers and authority of the Board
in the management of the business and affairs of the Corporation that are
permitted by law to be exercised by a committee of the Board, including the
power to declare dividends, to authorize the issuance of stock and to adopt a
certificate of ownership and merger of parent corporation and subsidiary or
subsidiaries; provided, however, that the Executive Committee shall not have
the power or authority of the Board in reference to amending the Certificate of
Incorporation or any preferred stock rights plan, adopting an agreement of
merger or consolidation with respect to the Corporation, recommending to the
stockholders the sale, lease or exchange of all or substantially all the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, amending the
By-Laws of the Corporation or adopting a certificate of ownership and merger of
the Corporation (other than a certificate of ownership and merger of parent
corporation and subsidiary or subsidiaries). The majority of the members of the
Executive Committee shall constitute a quorum. Minutes shall be kept of the
proceedings of the Executive
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Committee, which shall be reported at meetings of the Board. The Executive
Committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of the
Corporation, fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other
class or classes of stock of the Corporation or fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of any
series.
SECTION 2.04. Other Committees of Directors. The Board may, by resolution
adopted by a majority of the Board, designate one or more other committees to
have and exercise such power and authority as the Board shall specify. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he, she or they constitute a quorum, may unanimously appoint another director
to act at the meeting in place of any such absent or disqualified member.
ARTICLE 3
OFFICERS
SECTION 3.01. Description and Terms. The officers of the Corporation shall
be the Chairman, the Chief Executive Officer, a President, a Treasurer, a
Secretary, who shall have the duty, among other things, to record the
proceedings of the meetings of stockholders and directors in a book kept for
that purpose, and such other additional officers with such titles as the Board
shall determine, all of whom shall be chosen by and serve at the pleasure of
the Board; provided that the Chief Executive Officer may appoint Senior Vice
Presidents, Vice Presidents or Assistant Officers at his or her discretion.
Subject to such limitations as may be imposed by the Board, the Chief Executive
Officer shall have full executive power and authority with respect to the
Corporation. The President, if separate from the Chief Executive Officer, shall
have such powers and authority as the Chief Executive Officer may determine. If
the Chief Executive Officer is absent or incapacitated, the Executive Committee
shall determine the person who shall have all the power and authority of the
Chief Executive Officer. Other officers shall have the usual powers and shall
perform all the usual duties incident to their respective offices. All officers
shall be subject to the supervision and direction of the Board. The authority,
duties or responsibilities of any officer of the Corporation may be suspended
by the Chief Executive Officer with or without cause. Any officer may be
removed by the Board with or without cause. Subject to such limitations as the
Board may provide, each officer may further delegate to any other officer or
any employee or agent of the Corporation such portions of his or her authority
as the officer shall deem appropriate, subject to such limitations as the
officer shall specify, and may revoke such authority at any time.
SECTION 3.02. Stockholder Consents and Proxies. The Chairman, the Chief
Executive Officer, each Vice Chairman, the President, the Secretary and the
Treasurer, or any one of them, shall have the power and authority on behalf of
the Corporation to execute any stockholders' consents or proxies and to attend
and act and vote in person or by proxy at any meetings of stockholders of any
corporation in which the Corporation may own stock, and at any such meetings
shall possess and may exercise any and all of the rights and powers incident to
the ownership of such stock which as the owner thereof the Corporation might
have possessed and executed if present. The Board by resolution from time to
time may confer like powers upon any other officer.
ARTICLE 4
GENERAL PROVISIONS
SECTION 4.01. Notices. Whenever any statute, the Certificate of
Incorporation or these By-Laws require notice to be given to any director or
stockholder, such notice is to be given in writing by mail, addressed to such
director or stockholder at his or her address as it appears on the records of
the Corporation, with postage thereon prepaid. Such notice shall be deemed to
have been given when it is deposited in the United States mail. Notice to
directors may also be given by telegram or facsimile transmission or be
delivered personally or by telephone.
SECTION 4.02. Fiscal Year. The fiscal year of the Corporation shall be
fixed by the Board.
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SECTION 4.03. Certificates of Stock. Any certificates which represent
shares of the Corporation shall be signed by the Chairman or the Chief
Executive Officer and by the Secretary or an Assistant Secretary. Any and all
signatures on any such certificates, including signatures of officers, transfer
agents and registrars, may be facsimile.
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EXHIBIT 5.1
R.J. REYNOLDS TOBACCO HOLDINGS, INC.
June 14, 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 (the "Company"), in connection with the accompanying
Registration Statement on Form S-8 (the "Registration Statement") for the
issuance and sale of up to 4,000,000 shares of Common Stock, par value $.01 per
share (the "Common Stock"), to participants ("Participants") in the Company's
Capital Investment Plan (the "CIP") and the Savings and Investment Plan for
Employees of R.J. Reynolds Tobacco Company in Puerto Rico (together with the
CIP, the "Plans").
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 Plans 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
21
EXHIBIT 5.2
June 11, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Square
Washington, DC 20549
Re: R.J. Reynolds Tobacco Holdings, Inc. Form S-8
Registration Statement
Ladies and Gentlemen:
We are counsel to R.J. Reynolds Tobacco Holdings, Inc. (formerly RJR
Nabisco, Inc.) (the "Company") and have acted as special counsel to the Company
in connection with the filing by the Company of its registration statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933 (the
"Act") and the rules and regulations promulgated thereunder (the "Rules and
Regulations"). The Registration Statement relates to four (4) million shares of
the common stock, par value $.01 per share of the Company (the "Company
Stock"), which may be allocated to the accounts of eligible employees
participating in the Savings and Investment Plan for Employees of R.J. Reynolds
Tobacco Company in Puerto Rico (the "Plan") and the R.J. Reynolds Tobacco
Holdings, Inc. Capital Investment Plan. The Plan is subject to the requirements
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
This opinion, given as of the date hereof, is based upon facts and
conditions presently known and laws and regulations presently in effect, and is
being delivered pursuant to Item 601 of Regulation S-K under the Act as
required by Item 8 of the Registration Statement.
As special counsel of the Company and in rendering this opinion we have
examined the Plan documents and other related written documentation as we have
deemed necessary or appropriate to provide a basis for the opinion set forth
below. In our examination, we have assumed the conformity to original documents
submitted to us as photostatic copies, the genuineness of all signatures and
the taking of all required corporate action in relation with the Plan.
On the basis of the foregoing, we are of the opinion that the provisions
of the written documents constituting the Plan are in compliance with the
requirements of ERISA pertaining to such provisions.
We are members of the bar of the Commonwealth of Puerto Rico and the
opinion set forth herein is limited to matters governed by the Federal laws of
the United States of America. This opinion is being furnished to you solely for
your benefit in connection with the filing of the Registration Statement
pursuant to the Act and the Rules and Regulations and is not to be used,
circulated, quoted, relied upon or otherwise referred to for any other purpose,
without our prior written consent. We hereby consent to the use of this opinion
as an exhibit to the Registration Statement and to the reference to this
opinion under the caption "Exhibits" therein.
Very truly yours,
Pietrantoni Mendez & Alvarez LLP
22
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 (i)
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 and (ii) our reports dated June 23, 1998 appearing in the Annual Reports
on Form 11-K of the R.J. Reynolds Tobacco Holdings, Inc. Capital Investment
Plan and the Savings and Investment Plan for Employees of R.J. Reynolds Tobacco
Company in Puerto Rico for the year ended December 31, 1997.
DELOITTE & TOUCHE LLP
New York, New York
June 10, 1999
23
