As filed with the Securities and Exchange Commission on February 2, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
RJR Nabisco Holdings Corp.
(Exact name of registrant as specified in its charter)
Delaware 13-3490602
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
1301 Avenue of the Americas
New York, New York 10019
(212) 258-5600
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Jo-Ann Ford, Esq.
Vice President, Assistant
General Counsel and Secretary
RJR Nabisco Holdings Corp.
1301 Avenue of the Americas
New York, New York 10019
(212) 258-5600
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Jeffrey Small, Esq. Charles I. Cogut,
Davis Polk & Wardwell Esq.
450 Lexington Avenue Simpson Thacher &
New York, New York Bartlett
10017 425 Lexington Avenue
New York, New York
10017-3954
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration
statement as determined by market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. /X/
CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
Title of each class of Proposed maximum Proposed maximum Amount of
securities Amount to be offering price aggregate offering registration
to be registered registered per share(1) price(1) fee
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share . . . . . . . 70,000,000 $5.875 $411,250,000 $141,810.34
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) on the basis of the average of the
high and low reported sales prices on January 31, 1995.
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file an amendment which specifically states that
this registration statement shall thereafter become effective in
accordance with section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the
Commission acting pursuant to said section 8(a), may determine.
<PAGE>
Subject to Completion, Dated February 2, 1995
PROSPECTUS
[Logo]
70,000,000 Shares
RJR Nabisco Holdings Corp.
Common Stock
(par value $.01 per share)
________________
Borden, Inc. ("Borden" or the "Selling Stockholder") may offer
from time to time up to 70,000,000 shares of common stock, par value
$.01 per share (the "Common Stock"), of RJR Nabisco Holdings Corp.
(the "Company" or "Holdings"). When an offering of all or part of
the Common Stock offered hereby is made, a supplement to this
Prospectus (the "Prospectus Supplement") will be delivered with this
Prospectus. The Prospectus Supplement will set forth the terms of
the offering of the Common Stock, the initial offering price and the
net proceeds to the Selling Stockholder of the sale thereof.
The Common Stock is traded on the New York Stock Exchange, Inc.
("NYSE") under the symbol "RN."
See "Certain Significant Considerations" in the Prospectus
Supplement for a description of certain factors that should be
considered by purchasers of the Common Stock offered hereby.
________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The Common Stock offered hereby may be sold directly to purchasers
(including, in the event that the Selling Stockholder sells
securities of its own which are convertible, exchangeable or
redeemable into or for the Common Stock, upon conversion, exchange or
redemption of such securities of the Selling Stockholder) or through
agents designated from time to time by the Selling Stockholder or to
or through one or more underwriters. If any agents of the Selling
Stockholder or any underwriters are involved in the sale of Common
Stock in respect of which this Prospectus is being delivered, the
names of such agents or underwriters and any applicable commissions
or discounts will be set forth in the Prospectus Supplement.
________________
The date of this Prospectus
is _________ __, 1995
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
2
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). The reports, proxy statements and other information
filed by Holdings with the Commission can be inspected and copied at
the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and should be
available at the Commission's Regional Offices at 7 World Trade
Center, 13th Floor, New York, New York 10048, and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, material filed by Holdings can be
inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration Statement
filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus omits
certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the
Common Stock. Statements contained herein concerning the provisions
of any document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Holdings
(File No. 1-10215) pursuant to the Exchange Act or the Securities Act,
as applicable, are incorporated by reference in this Prospectus:
1. Holdings' Annual Report on Form 10-K for the year ended
December 31, 1993 (which incorporates by reference certain information
from Holdings' Proxy Statement relating to the 1994 Annual Meeting of
Stockholders);
2. Holdings' Quarterly Reports on Form 10-Q for the three
months ended March 31, 1994, the six months ended June 30, 1994 and
the nine months ended September 30, 1994;
3. Holdings' Current Report on Form 8-K/A filed April 27,
1994;
4. The Consolidated Financial Statements of Holdings as of
December 31, 1993 and 1992 and for each of the years in the three year
period ended December 31, 1993 and the related notes thereto, and
Management's Discussion and Analysis of Financial Condition and
Results of Operations, included in the Registration Statement on Form
<PAGE>
3
S-3 (Registration No. 33-52381), at the time such Registration
Statement was declared effective by the Commission; and
5. The Selected Pro Forma Consolidated Financial Data
included in Post-Effective Amendment No. 2 to the Registration
Statement on Form S-4 (Registration No. 33-55767), at the time such
Registration Statement was declared effective by the Commission.
Each document filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering of the
Common Stock pursuant hereto shall be deemed to be incorporated by
reference in this Prospectus and to be a part of this Prospectus from
the date of filing of such document. Any statement contained in this
Prospectus or in a document incorporated or deemed to be incorporated
by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained in this Prospectus
or the Prospectus Supplement, or in any subsequently filed document
that also is or is deemed to be incorporated by reference in this
Prospectus, 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 the Registration Statement or
this Prospectus.
The Company will provide without charge to each person to
whom this Prospectus is delivered, upon the written or oral request of
any such person, a copy of any or all of the documents that are
incorporated by reference in this Prospectus, other than exhibits to
such documents (unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to RJR
Nabisco, Inc., 1301 Avenue of the Americas, New York, New York 10019
(telephone number (212) 258-5600), Attention: Investor Relations
Department.
<PAGE>
4
The Registration Statement is being filed by Holdings at the
request of the Selling Stockholder pursuant to the terms of a
Registration Rights Agreement among Holdings, certain affiliates of
Kohlberg Kravis Roberts & Co. ("KKR") and others dated as of February
9, 1989.
THE COMPANY
As used herein, "Holdings" means RJR Nabisco Holdings Corp. and
its consolidated subsidiaries unless the context otherwise requires.
RJR Nabisco Holdings Corp.
The operating subsidiaries of Holdings owned through RJR Nabisco,
Inc. ("RJRN") comprise one of the largest tobacco and food companies
in the world. In the United States, the tobacco business is conducted
by R.J. Reynolds Tobacco Company ("RJRT"), the second largest
manufacturer of cigarettes, and the packaged foods business is
conducted by Nabisco Holdings Corp. through Nabisco, Inc., a wholly
owned subsidiary of Nabisco Holdings Corp. ("Nabisco"), the largest
manufacturer and marketer of cookies and crackers. RJRN owns
approximately 80.5% of the economic interest and approximately 97.6%
of the voting power of Nabisco. Tobacco operations outside the United
States are conducted by R.J. Reynolds Tobacco International, Inc.
("Tobacco International") and packaged food operations outside the
United States and Canada are conducted by Nabisco International, Inc.
("Nabisco International"), a subsidiary of Nabisco. Together, RJRT's
and Tobacco International's tobacco products are sold around the world
under a variety of brand names. Food products are sold in the United
States, Canada, Latin America and certain other international markets.
Tobacco
RJRT's largest selling cigarette brands in the United States
include WINSTON, DORAL, CAMEL, SALEM, MONARCH and VANTAGE. RJRT's
other cigarette brands, including MORE, NOW, BEST VALUE, STERLING,
MAGNA and CENTURY, are marketed to meet a variety of smoker
preferences. All RJRT brands are marketed in a variety of styles.
Tobacco International operates in over 160 markets around the world
and is the second largest of two international cigarette producers
that have significant positions in the American Blend segment of the
international tobacco market.
Food
Nabisco's domestic operations represent one of the largest
packaged food businesses in the world. Through its domestic
divisions, Nabisco manufactures and markets cookies, crackers, snack
foods, hard and bite-size candy, gum, nuts, hot cereals, margarine,
pet foods, dry-mix dessert products and other grocery products under
established and well-known trademarks, including OREO, CHIPS AHOY!,
NEWTONS, SNACKWELL'S, RITZ, PREMIUM, LIFE SAVERS, PLANTERS, A.1, GREY
POUPON, MILK-BONE, ORTEGA, CREAM OF WHEAT, FLEISCHMANN'S and BLUE
<PAGE>
5
BONNET. Nabisco International is also a leading producer of powdered
dessert and drink mixes, biscuits, baking powder and other grocery
items, industrial yeast and bakery ingredients in many of the 17 Latin
American countries in which it has operations.
RJRN was acquired in 1989 by an indirect, wholly owned subsidiary
of Holdings at the direction of KKR. KKR is a private investment firm
organized as a Delaware limited partnership.
The principal executive office of Holdings is located at 1301
Avenue of Americas, New York, New York 10019; its telephone number is
(212) 258-5600.
<PAGE>
6
RECENT DEVELOPMENTS
Nabisco Initial Public Offering and Related Transactions. On January 26,
1995, Nabisco completed its initial public offering of 51,750,000
shares of Class A Common Stock at an initial offering price of $24.50 per share
(the "Nabisco Public Offering"). The net proceeds to Nabisco from the offering
were approximately $1.2 billion. Following the public offering, Holdings
beneficially owned 100% of Nabisco's outstanding Class B Common Stock, which
represents approximately 80.5% of the economic interest in Nabisco. Holders
of Class A Common Stock of Nabisco generally have identical rights to
holders of Class B Common Stock except that holders of Class A Common Stock
are entitled to one vote per share while holders of Class B Common Stock
are entitled to ten votes per share on all matters submitted to a vote of
stockholders.
The Nabisco Public Offering was part of a broader proposed initiative of
Holdings designed to reduce consolidated debt of Holdings by approximately
$1 billion and establish a separately traded common stock for Nabisco.
Holdings also anticipates commencing a quarterly cash dividend on its
common stock of $.075 per share or $.30 per share on an annualized basis.
See "Price Range of Common Stock and Dividends."
Following the public offering, Nabisco had approximately $4.0 billion of
intercompany debt and approximately $149 million of borrowings under a
short-term bank credit agreement. The net proceeds of the public offering were
used by Nabisco to repay a portion of the borrowings under its bank facility.
As part of the initiative, RJRN redeemed approximately $ 1.9 billion of debt
securities with borrowings under its existing credit facilities, proceeds from
Holdings' Series C Conversion Preferred Stock (the "Series C Preferred Stock")
offering completed on May 6, 1994 and internally generated cash flow.
As another part of the initiative, RJRN expects to seek to restructure
approximately $6 billion of its domestic publicly held debt which currently
limits the ability of Nabisco to incur long-term debt other than intercompany
debt. The restructuring, which would require consent of public debtholders and
lenders under bank facilities, may include one or more offers to exchange
Nabisco debt securities for a portion of such debt. The goal of the exchange
offers would be to permit Nabisco to establish long-term borrowing capacity
independent of its parent and to reduce its intercompany debt. No assurance can
be given that any such restructuring will be consummated.
<PAGE>
7
Termination of Agreement in Principle Relating to Borden. On October 25,
1994, Holdings and KKR concluded that they were unable to reach a definitive
agreement for the transaction contemplated by their agreement in principle for
Holdings to acquire a minority interest in Borden, as had been previously
announced on September 12, 1994. The September 12, 1994 announcement indicated
that, following KKR's successful acquisition of Borden, Holdings would issue to
Borden approximately $500 million of newly issued common shares of Holdings for
newly issued shares of Borden common stock representing a 20% pro forma interest
in Borden and a warrant to acquire an additional 10% pro forma interest in
Borden. The inability to reach agreement resulted from various complexities
affecting the transaction, including certain accounting issues. In particular,
because Holdings would have been required to account for its investment in
Borden using the equity method (thereby being required to reflect a portion of
Borden's potentially low or volatile earnings in its financial statements) and
to amortize a substantial amount of goodwill resulting from the transaction, the
proposed transaction would likely have had a dilutive effect on Holdings'
near-term earnings. Attempts to resolve these issues by restructuring the
transaction were unsuccessful. Holdings could in the future explore a basis on
which it or its Nabisco subsidiary may acquire a minority equity interest in
Borden in exchange for common stock of Holdings. However, Holdings is not
currently engaged in any such negotiations, and there is no assurance that
Holdings will seek to pursue any such negotiations or that any such negotiations
will be successful.
Results of Operations for 1994
Overview. Holdings' net sales for 1994 increased 2 percent to $15.4 billion
from $15.1 billion in 1993. Operating income for 1994 increased 85 percent to
$2.6 billion from $1.4 billion in 1993. Net income for 1994 amounted to $519
million compared to a net loss of $145 million in 1993. Earnings per share for
1994 amounted to $.25 per common share on a primary basis compared to a net loss
of $.15 per primary common share in 1993 after including Series A Depositary
Shares as common stock equivalents. Earnings per primary common share in 1993
after excluding Series A Depositary Shares as common stock equivalents would
have amounted to a net loss of $.34 per share. Included in the 1994 results is
a pre-tax charge of $65 million ($42 million after-tax) related to the
realignment and decentralization of corporate headquarters' functions. Also
included in the 1994 results is an extraordinary loss of $245 million related
to the early extinguishment of debt, net of income taxes. Included in the 1993
results were a pre-tax restructuring expense of $730 million ($467 million
after-tax) and an extraordinary loss of $142 million related to the early
extinguishment of debt, net of income taxes. Full-year comparisons of per share
results reflect a higher number of average shares outstanding from the issuance
of Series C Preferred Stock in May 1994 and an increase in preferred
dividend payments during 1994.
Fourth Quarter Results. Holdings' fourth quarter net income was $62 million
or $.02 per primary common share in 1994, compared with a net loss of $461
million or $.36 per primary common share in
<PAGE>
8
1993 after including Series A Depositary Shares as common stock equivalents.
Earnings per primary common share for the fourth quarter of 1993 after excluding
Series A Depositary Shares as common stock equivalents would have amounted to a
net loss of $.47 per share.
For the fourth quarter of 1994, a pre-tax charge of approximately $65
million ($42 million after-tax) is included in corporate administrative
expenses, reflecting a streamlining of the holding company. This action is a
result of expectations for a lower level of financing and other activities as
Holdings concludes the post-leveraged buyout period. Holdings believes the
headquarters changes are consistent with its ongoing commitment to decentralized
management.
Holdings recorded operating income of $565 million in the fourth quarter of
1994 compared with an operating loss of $318 million in the fourth quarter of
1993.
Tobacco Results. Holdings' worldwide tobacco businesses reported profit
gains in 1994, although sales and volume performance was mixed. Worldwide
operating company contribution (operating income before amortization of
trademarks and goodwill and excluding the restructuring expense in 1993)
increased 21 percent in 1994, to $2.23 billion from $1.84 billion in 1993.
Worldwide tobacco volume was level with 1993 and net sales were $7.67 billion, a
5 percent decline from net sales of $8.08 billion last year.
For Tobacco International, full-year operating company contribution was $755
million, a 17 percent gain from the prior year, due to volume gains, lower
product costs and reduced promotional spending. Volume increased 6 percent with
notably strong gains in the former Soviet Union, Turkey, Malaysia, and Spain.
Net sales were $3.10 billion, a slight decline from the year-earlier period.
For RJRT, operating company contribution of $1.48 billion was 23 percent
greater than the $1.20 billion reported last year. Full-year net sales of $4.57
billion were 8 percent less than the $4.95 billion reported in 1993. RJRT's
volume declined 7 percent primarily due to RJRT's de-emphasis on lower-margin
savings brands.
RJRT's product mix improved in 1994, with higher-margin, full-price brands
representing 60 percent of RJRT's product sold, compared to 56 percent during
the prior year. RJRT's total retail share declined about 2.0 points for the
year. However, RJRT's core brands' share either improved or stabilized, with
CAMEL and DORAL, in particular, showing strong gains for the year. RJRT's
overall domestic share declined, mainly due to its de-emphasis on certain
lower-margin savings brands.
For the fourth quarter, operating company contribution for the worldwide
tobacco businesses of $498 million increased 73 percent compared to the prior
year. Fourth quarter 1994 net sales of $1.90 billion were 9 percent less than in
the comparable 1993 period.
For Tobacco International, fourth quarter operating company contribution was
$198 million, a 25 percent gain over the prior year's quarter primarily
attributable to reduced product costs and lower marketing and selling expense.
For the quarter, international volume and net sales were both down 16 percent
compared to 1993 due to trade inventory adjustments, mix, and a change in fiscal
year end. Adjusting for the change in fiscal year end, volume and net sales rose
11 percent and 5 percent, respectively.
RJRT's fourth quarter operating company contribution of $300 million
increased 131 percent from the prior year's quarter. Net sales for the same
period of $1.08 billion declined 1 percent, as favorable pricing and a more
favorable product mix only partially offset a volume decline of 10 percent.
Food Results. For full-year 1994, worldwide net sales for the Nabisco food
businesses were $7.70 billion, up 10 percent from net sales of $7.03 billion in
1993. Full-year operating company contribution for the food businesses exceeded
the billion-dollar mark for the first time: $1.16 billion or 16 percent higher
than the $995 million reported in 1993.
<PAGE>
9
The food business posted strong gains in U.S. markets, which account for the
majority of Nabisco's sales and operating company contribution, during the year.
Nabisco Biscuit Company, the company's largest operating unit, posted record
results with volume up 7 percent versus 1993.
Total U.S. cookie and cracker market share increased to 47 percent from 46
percent in 1993. The company's SNACKWELL'S brand family of reduced-fat and
fat-free products, first introduced in 1992, generated more than $375 million in
sales in 1994.
Including the Canadian operations, Nabisco's international sales grew 28
percent in 1994, reaching the $2 billion level. Operating company contribution
was up 26 percent.
In Brazil, a strong, second-half economic recovery spurred a turnaround of
Nabisco's business there. In Colombia, Nabisco launched a new biscuit business,
capturing almost 10 percent of the market in just over one year. In Argentina,
Nabisco acquired the remaining interest in Establecimiento Modelo Terrabusi
S.A., a leading biscuit and pasta company.
Recent improvements in Nabisco's Mexican operations were hampered by
negative developments toward year-end in that country's economy and devaluation
of its currency. The peso devaluation's cost to earnings was not material.
Worldwide food businesses' fourth quarter operating company contribution was
$359 million, an increase of 17 percent compared with $308 million in 1993. Net
sales of $2.15 billion were an increase of 9 percent over the prior year's net
sales of $1.98 billion.
<PAGE>
10
The following table sets forth certain operating data for Holdings and
should be read in conjunction with the other financial information and the notes
thereto included or incorporated by reference herein.
<TABLE>
<CAPTION>
THREE MONTHS ENDED TWELVE MONTHS ENDED
DECEMBER 31, DECEMBER 31,
------------------------ ------------------------
(UNAUDITED)
(DOLLARS IN MILLIONS, EXCEPT PER SHARE
AMOUNTS) 1994 1993 1994 1993
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
NET SALES:
Tobacco--Domestic.......................... $ 1,075 $ 1,091 $ 4,570 $ 4,949
- --International............................ 822 984 3,097 3,130
---------- ---------- ---------- ----------
Total Tobacco.............................. 1,897 2,075 7,667 8,079
Total Food................................. 2,147 1,976 7,699 7,025
---------- ---------- ---------- ----------
Consolidated............................. $ 4,044 $ 4,051 15,366 $ 15,104
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
OPERATING COMPANY CONTRIBUTION:
Tobacco--Domestic.......................... $ 300 $ 130 $ 1,475 $ 1,200
- --International............................ 198 158 755 644
---------- ---------- ---------- ----------
Total Tobacco.............................. 498 288 2,230 1,844
Total Food................................. 359 308 1,156 995
Headquarters (1)........................... (132) (25) (207) (106)
---------- ---------- ---------- ----------
Operating company contribution........... 725 571 3,179 2,733
Amortization of trademarks and goodwill.... (160) (159) (629) (625)
Restructuring expense (2).................. 0 (730) 0 (730)
---------- ---------- ---------- ----------
Operating income......................... 565 (318) 2,550 1,378
Interest and debt expense.................. (237) (299) (1,065) (1,209)
Other (expense) income, net................ (29) (54) (110) (58)
---------- ---------- ---------- ----------
Income before income taxes............... 299 (671) 1,375 111
Provision for income taxes................. 137 (242) 611 114
---------- ---------- ---------- ----------
Income before extraordinary item......... 162 (429) 764 (3)
Extraordinary item--loss on early
extinguishments of debt, net of income
taxes.................................... (100) (32) (245) (142)
---------- ---------- ---------- ----------
Net income (2)........................... 62 (461) 519 (145)
Less preferred stock dividends............. 33 35 131 68
---------- ---------- ---------- ----------
Net income applicable to common stock.. $ 29 $ (496) $ 388 $ (213)
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
Net income (loss) per common and common
equivalent share on a primary basis:
Income before extraordinary item (3)..... $ 0.08 $ (0.34) $ 0.41 $ (0.05)
Extraordinary item....................... (0.06) (0.02) (0.16) (0.10)
---------- ---------- ---------- ----------
Net income............................. $ 0.02 $ (0.36) $ 0.25 $ (0.15)
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
Average number of common and common
equivalent shares outstanding (in
thousands)............................... 1,634,999 1,350,668 1,538,127 1,349,196
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
</TABLE>
- ------------
(1) 1994 includes the effect of the realignment and decentralization of
corporate headquarters' functions of $65 million ($42 million after tax).
(2) 1993 includes the effect of a restructuring expense of $730 million ($467
million after tax).
(3) If calculated on a fully diluted basis, income before extraordinary item per
common and common equivalent share amounted to $.08 and ($.33) for the three
months ended December 31, 1994 and 1993, respectively, and $.42 and ($.02)
for the twelve months ended December 31, 1994 and 1993, respectively.
<PAGE>
11
RJR Nabisco Holdings Corp.
Summary Historical Consolidated Financial Data
The summary consolidated financial data presented below as of
September 30, 1994 and for the nine months ended September 30, 1994
and 1993 were derived from Holdings consolidated condensed financial
statements incorporated herein by reference. The summary consolidated
financial data presented below as of December 31, 1993 and 1992 and
for each of the years in the three-year period ended December 31, 1993
for Holdings were derived from the historical consolidated financial
statements of Holdings and notes thereto (the "Holdings Consolidated
Financial Statements"), incorporated herein by reference, which have
been audited by Deloitte & Touche LLP, independent auditors. In
addition, the summary consolidated financial data as of December 31,
1991, 1990 and 1989, for the year ended December 31, 1990 and for the
period from February 9, 1989 through December 31, 1989 for Holdings
and for the period from January 1, 1989 through February 8, 1989 for
RJRN were derived from the audited consolidated financial statements of
Holdings and RJRN as of December 31, 1991, 1990 and 1989, for the
year ended December 31, 1990 and for each of the periods within the one-
year period ended December 31, 1989, and are not presented or
incorporated herein by reference. The data should be read in conjunction
with the Holdings Consolidated Financial Statements and the historical
consolidated condensed financial statements of Holdings and notes
thereto (the "Holdings Consolidated Condensed Financial Statements")
incorporated herein by reference.
<TABLE><CAPTION>
Holdings RJRN
--------------------------------------------------------------------- --------
For the Nine
Months Ended
September 30, For the Years Ended December 31,
------------------- ----------------------------------------------------------
(Dollars in Millions
Except Per
Share Amounts)
1994 1993 1993 1992 1991 1990 1989
--------- --------- --------- -------- -------- --------- -------------------
2/9 to 1/1 to
12/31 2/8
--------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Results of Operations
Net sales . . . . . . $11,322 $11,053 $15,104 $15,734 $14,989 $13,879 $12,114 $650
------- ------- ------- ------- ------- ------- ------- -----
Cost of products sold 5,079 4,709 6,640 6,326 6,088 5,652 5,241 332
Selling,
advertising,
administrative and
general expenses . 3,789 4,182 5,731 5,788 5,358 4,801 4,276 295
Amortization of
trademarks and
goodwill . . . . . 469 466 625 616 609 608 557 10
Restructuring expense -- -- 730 106 -- -- -- --
------- ------- ------- ------- ------- ------- ------- -----
Operating income(1) 1,985 1,696 1,378 2,898 2,934 2,818 2,040 13
Interest and debt
expense . . . . . . . (828) (910) (1,209) (1,449) (2,217) (3,176) (3,340) (44)
Change in control
costs . . . . . . . . -- -- -- -- -- -- -- (247)
Other income
(expense), net . . . (81) (4) (58) 7 (69) (44) 169 15
------- ------- ------- ------- ------- ------- ------- -----
Income (loss) from
continuing
operations
before income
taxes . . . . . . 1,076 782 111 1,456 648 (402) (1,131) (263)
Provision (benefit)
for income taxes . 474 356 114 680 280 60 (156) (66)
------- ------- ------- ------- ------- ------- ------- -----
Income (loss) from
continuing
operations . . . 602 426 (3) 776 368 (462) (975) (197)
</TABLE>
<PAGE>
<TABLE><CAPTION>
12
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Income (loss) from
operations of
discontinued
businesses, net of
income taxes(2) . . -- -- -- -- -- -- (1) 24
Extraordinary
item--(loss) gain
on early
extinguishments of
debt, net of
income taxes . . . (145) (110) (142) (477) -- 33 -- --
------- ------- ------- ------- ------- ------- ------- -----
Net income (loss) . . 457 316 (145) 299 368 (429) (976) (173)
Preferred stock
dividends . . . . . . 98 33 68 31 173 50 -- 4
------- ------- ------- ------- ------- ------- ------- -----
Net income (loss)
applicable to
common stock . . . $ 359 $ 283 $ (213) $ 268 $ 195 $ (479) $ (976) $(177)
======= ======= ======= ======= ======= ======= ======= =======
Per Share Data
Income (loss) from
continuing
operations per
common and common
equivalent share . $ .33 $ .29 $ (.05) $ .55 $ .22 $ (1.19) $ (3.21) $(.89)
Dividends per share
of Series A
Preferred Stock(3) 2.51 2.51 3.34 3.34 .49 -- -- --
Dividends per share
of Series C
Preferred Stock(3) 2.44 -- -- -- -- -- -- --
Balance Sheet Data
(at end of periods)
Working capital . . . $ 358 -- $ 202 $ 730 $ 165 $(1,089) $ 106 --
Total assets . . . . 31,851 -- 31,295 32,041 32,131 32,915 36,412 --
Total debt . . . . . 11,205 -- 12,448 14,218 14,531 18,918 25,159 --
Redeemable preferred
stock(4) . . . . . -- -- -- -- -- 1,795 -- --
Stockholders'
equity(5) . . . . . . 10,957 -- 9,070 8,376 8,419 2,494 1,237 --
Book value per
common share after
conversion of
Series A Preferred
Stock and Series C
Preferred Stock . . 5.94 -- 5.77 -- -- -- -- --
</TABLE>
(1) The 1992 amount includes a gain of $98 million on the sale of
the ready-to-eat cold cereal business.
(2) The 1989 amount for Holdings includes $237 million of
interest expense allocated to discontinued operations.
(3) On November 8, 1991, Holdings issued 52,500,000 shares of
Series A Preferred Stock and sold 210,000,000 Series A
Depositary Shares. On May 6, 1994, Holdings issued
26,675,000 shares of Series C Preferred Stock and sold
266,750,000 Series C Depositary Shares. Because Series A
Preferred Stock and Series C Preferred Stock mandatorily
convert into Holdings Common Stock, dividends on such shares
are reported similar to common equity dividends.
(4) On December 16, 1991, an amendment to the Amended and
Restated Certificate of Incorporation of Holdings was filed
which deleted the provisions providing for the mandatory
redemption of the redeemable preferred stock of Holdings on
November 1, 2015. Accordingly, such securities were
presented as a component of Holdings' stockholders' equity as
of December 31, 1992 and 1991. Such securities were redeemed
on December 6, 1993.
(5) Holdings' stockholders' equity at September 30, 1994 and
December 31 of each year from 1993 to 1989 includes non-cash
expenses related to accumulated trademark and goodwill
amortization of $3.484 billion, $3.015 billion, $2.390
billion, $1.774 billion, $1.165 billion and $557 million,
respectively.
See Notes to Holdings Consolidated Financial Statements and Holdings
Consolidated Condensed Financial Statements incorporated herein by
reference.
<PAGE>
13
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Common Stock is listed and principally traded on the NYSE
(Symbol: RN). The following table sets forth the high and low sales
prices per share of the Common Stock as reported on the NYSE Composite
Tape.
Fiscal Year High Low
----------- ---- -----
1993
First Quarter . . . . . . . . . . . $ 9 1/4 $ 7 5/8
Second Quarter . . . . . . . . . . . 8 1/8 5 1/8
Third Quarter . . . . . . . . . . . 5 7/8 4 1/2
Fourth Quarter . . . . . . . . . . . 7 3/8 4 3/8
1994
First Quarter . . . . . . . . . . . $ 8 1/8 $ 5 5/8
Second Quarter . . . . . . . . . . . 7 5 1/2
Third Quarter . . . . . . . . . . . 7 1/8 5 5/8
Fourth Quarter . . . . . . . . . . . 7 1/4 5 5/16
1995
First Quarter (through
February 1, 1995) . . . . . . . . $ 6 $ 5 3/8
At December 31, 1994, there were 1,361,656,883 shares of Common
Stock outstanding held by approximately 63,000 stockholders of record.
A recent closing sale price for shares of the Common Stock will be set
forth on the cover page of the Prospectus Supplement.
Holdings has not paid any cash dividends on shares of the Common
Stock. Holdings has indicated that it anticipates commencing payment
of a quarterly cash dividend on the Common Stock of Holdings of $.075
per share or $.30 per share on an annualized basis after the
completion of the Nabisco Public Offering, which was completed on
January 26, 1995.
In addition, Holdings has announced certain policies affecting
dividends on the Common Stock. One policy provides that Holdings will
limit, until December 31, 1998, the aggregate amount of cash dividends
on its capital stock. Under this policy, during that period Holdings
will not pay any extraordinary cash dividends and will limit the
amount of its cash dividends, cash distributions and repurchases for
cash of capital stock and subordinated debt to an amount equal to the
sum of $500 million plus (i) 65% of Holdings' cumulative consolidated
net income before extraordinary gains or losses and restructuring
charges and (ii) net cash proceeds of up to $250 million in any year
from the sale of capital stock of Holdings or its subsidiaries (other
than proceeds from the Nabisco Public Offering) to the extent used to
repay, purchase or redeem debt or preferred stock. Another policy
provides that Holdings will not declare a dividend or distribution to
its stockholders of the shares of capital stock of a subsidiary before
December 31, 1996. Another policy sets forth the intention of
<PAGE>
14
Holdings that it will not make such a distribution prior to
December 31, 1998 if that distribution would cause the ratings of the
senior indebtedness of RJRN to be reduced from investment grade to
non-investment grade or if, after giving effect to such distribution,
any publicly held senior indebtedness of the distributed company would
not be rated investment grade. There is no assurance that any such
distribution will take place. Additional policies provide that an
amount equal to the net cash proceeds from any issuance and sale of
equity by Holdings or from any sale outside the ordinary course of
business of material assets owned or used by subsidiaries in the
tobacco business, in each case before December 31, 1998, will be used
either to repay, purchase or redeem consolidated indebtedness or to
acquire properties, assets or businesses to be used in existing or new
lines of business and that an amount equal to the net cash proceeds of
any secondary sale of shares of Nabisco before December 31, 1998 will
be used to repay, purchase or redeem consolidated debt. No assurance
can be given that Holdings will issue or sell any equity or sell any
material assets outside the ordinary course of business. See
"Description of Holdings Capital Stock--Contractual and Policy
Restrictions on Payment of Dividends."
RJRN's credit agreement, dated as of December 1, 1991, as amended
(the "1991 Credit Agreement") and its credit agreement, dated as of
April 5, 1993, as amended (the "1993 Credit Agreement" and, together
with the 1991 Credit Agreement, the "Credit Agreements") restrict cash
dividends and other distributions on the Common Stock. In addition,
the $1.5 billion short-term credit facility (the "Nabisco Credit
Agreement") of Nabisco, Inc., Nabisco's immediate subsidiary,
restricts the payment of dividends to RJRN. See "Description of
Holdings Capital Stock--Contractual and Policy Restrictions on Payment
of Dividends."
The timing, amount and form of future dividends, if any, will
depend, among other things, upon the effect of applicable restrictions
on the payment of dividends, results of operations, financial
condition, cash requirements, prospects and other factors deemed
relevant by the Board of Directors of Holdings.
<PAGE>
15
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of
the Common Stock offered by the Selling Stockholder.
DESCRIPTION OF HOLDINGS CAPITAL STOCK
The authorized capital stock of Holdings consists of
2,200,000,000 shares of Common Stock and 150,000,000 shares of
preferred stock, par value $.01 per share (the "Preferred Stock"). As
of December 31, 1994, 1,361,656,883 shares of Common Stock were
outstanding. As of such date, 42,047,114 shares of Preferred Stock
were outstanding, of which 50,000 shares were Series B Cumulative
Preferred Stock (the "Series B Preferred Stock"), 26,675,000 shares
were Series C Preferred Stock and 15,322,114 shares were ESOP
Convertible Preferred Stock (the "ESOP Preferred Stock").
The following is a description of the terms of the capital stock
of Holdings. This description does not purport to be complete and is
qualified in its entirety by reference to Holdings' Amended and
Restated Certificate of Incorporation, as amended (the "Holdings
Certificate of Incorporation"), which has been incorporated by
reference as an exhibit to the Registration Statement of which this
Prospectus is a part and is incorporated by reference herein.
Holdings believes that the summaries of the Holdings Certificate of
Incorporation set forth below are accurate and complete summaries of
the material terms of such instruments.
Common Stock
Each share of Common Stock is entitled to one vote at all
meetings of stockholders of Holdings for the election of directors of
Holdings and on all other matters. Dividends may be paid to the
holders of Common Stock when, as and if declared by the Board of
Directors of Holdings out of funds legally available therefor. The
Common Stock has no preemptive or similar rights. Holders of Common
Stock are not liable to further call or assessment. Upon liquidation,
dissolution or winding up of the affairs of Holdings, any assets
remaining after provision for payment of creditors (and any
liquidation preference of any outstanding preferred stock) would be
distributed pro rata among holders of the Common Stock.
Holdings has not paid any cash dividends on shares of the Common
Stock. Holdings has indicated that it anticipates commencing payment
of a quarterly cash dividend on the Common Stock of Holdings of $.075
per share or $.30 per share on an annualized basis after the
completion of the Nabisco Public Offering, which was completed on
January 26, 1995. The timing, amount and form of future dividends, if
any, will depend, among other things, upon the effect of applicable
restrictions on the payment of dividends, results of operations,
financial condition, cash requirements, prospects and other factors
deemed relevant by the board of directors of Holdings. See
"Description of Holdings Capital Stock--Contractual and Policy
Restrictions on Payment of Dividends."
<PAGE>
16
The Common Stock is listed on the NYSE. First Chicago Trust
Company of New York is the registrar and transfer agent for the Common
Stock.
Preferred Stock
Series B Preferred Stock
Each share of Series B Preferred Stock is entitled to receive,
when, as and if declared by the Board of Directors of Holdings, out of
funds legally available therefor, cumulative preferential cash
dividends at the rate per annum of 9.25%, payable quarterly in
arrears. On and after August 19, 1998, Holdings, at its option upon
not less than 30 nor more than 60 days' notice, may redeem shares of
the Series B Preferred Stock, as a whole or in part, at any time, at a
redemption price equivalent to $25,000 per share, plus accrued and
unpaid dividends thereon to the date fixed for redemption, without
interest, to the extent Holdings will have funds legally available
therefor.
The Series B Preferred Stock has no stated maturity and is not
subject to any sinking fund or mandatory redemption. The Series B
Preferred Stock is not convertible into, or exchangeable for, shares
of any other class or series of stock of Holdings.
The holders of the Series B Preferred Stock do not have any
voting rights, except as otherwise provided by law and under certain
other limited circumstances.
Upon any voluntary or involuntary liquidation, dissolution or
winding up of Holdings, holders of Series B Preferred Stock will be
entitled to receive $25,000 per share, plus an amount equal to any
accrued and unpaid dividends, before any distribution is made on any
class of junior securities, including Common Stock.
Series C Preferred Stock
Each share of Series C Preferred Stock is entitled to receive,
when, as and if declared by the Board of Directors of Holdings, out of
funds legally available therefor, cumulative preferential cash dividends
accruing at a rate of $6.012 per annum, payable quarterly in arrears.
Each share of Series C Preferred Stock will mandatorily convert into
ten shares of Common Stock on May 15, 1997, subject to adjustment in
certain events (the "Series C Common Stock Equivalent"), plus accrued
and unpaid dividends on the Series C Preferred Stock until the date of
conversion. In addition, each share of Series C Preferred Stock may be
redeemed by Holdings, in whole or in part, at any time or from time to
time prior to the mandatory conversion date at a redemption price to
be paid in shares of Common Stock (or following certain circumstances,
other consideration), plus accrued and unpaid dividends. The optional
redemption price declines from $112.286 per share by $.01656 per share
on each day following May 6, 1994 to $95.246 per share on March 15,
1997, and is $94.25 thereafter (the "Call Price").
<PAGE>
17
Immediately prior to a merger or consolidation of Holdings (other
than a merger or consolidation of Holdings with or into a wholly owned
subsidiary of Holdings) that results in the conversion or exchange of
Common Stock into other securities or property, outstanding Series C
Preferred Stock may be converted at the option of Holdings into (i)
shares of Common Stock at a rate equal to the Series C Common Stock
Equivalent (currently ten shares for each share of Series C Preferred
Stock), in effect immediately prior to such merger or consolidation,
plus (ii) the right to receive an amount in cash (which may, at the
option of Holdings, be payable in shares of Common Stock) equal to all
accrued and unpaid dividends on such Series C Preferred Stock to and
including the Settlement Date, plus (iii) the right to receive an amount
of cash (which may, at the option of Holdings, be payable in shares of
Common Stock) initially equal to $18.036 per share, declining by $.01656
on each day following May 6, 1994 to $.996 on March 15, 1997 and equal
to zero thereafter. The shares of Common Stock issuable under clause (i)
above will be reduced, if necessary, so that the value of the aggregate
consideration described in clauses (i) and (iii) above does not exceed
the Call Price on the Settlement Date. Alternatively, Holdings may
cause the Series C Preferred Stock to remain outstanding or convert
into a substantially similar security of Holdings or of the entity
issuing the consideration in such merger or consolidation. In that
event, each holder of a share of Series C Preferred Stock may elect to
convert the Series C Preferred Stock into Common Stock at a rate equal
to the Series C Common Stock Equivalent immediately prior to the merger
or consolidation (provided that the number of shares of Common Stock
issuable will be reduced, if necessary, so that the value of such
shares does not exceed the Call Price on the Settlement Date), plus
the right to receive an amount of cash (which may, at the option of
Holdings, be payable in shares of Common Stock) equal to all accrued
and unpaid dividends on such Series C Preferred Stock to and including
the Settlement Date.
If Holdings has recommended acceptance of (or has expressed no
opinion and is remaining neutral toward) a tender offer which would
result in the ownership by the bidder (or an affiliate of the bidder)
of more than 50% of the then outstanding Common Stock, then each
holder of Series C Preferred Stock will have the option to convert
such shares, in whole (but not in part), into Common Stock at the
Series C Common Stock Equivalent in effect at the close of business on
the day prior to the date of expiration or termination of such tender
offer; provided that the number of shares of Common Stock issuable
upon such conversion will be reduced if necessary, so that the value
of such shares does not exceed the Call Price on such date.
If Holdings distributes to holders of Common Stock the capital
stock of a subsidiary representing all or substantially all of either
of Holdings' two present principal lines of business (the "Spinoff
Company"), Holdings will (subject to the final sentence of this
paragraph) convert each share of Series C Preferred Stock into one-half
of a share of the existing Series C Preferred Stock and one-half of a
share of a substantially equivalent security of the Spinoff Company.
In such case, the conversion rate per share of the new Series C
Preferred Stock will be equal to a fraction, of which the numerator
will be the product of the market price of Common Stock prior to the
distribution and the Series C Common Stock Equivalent and of which
the denominator will be the
<PAGE>
18
excess of the market price of Common Stock prior to the distribution
over the market value of a share of the Spinoff Company. The
conversion rate per share of the new security of the Spinoff Company
will be equal to a fraction, of which the numerator will be the
product of the market price of Common Stock prior to the distribution
and the Series C Common Stock Equivalent and of which the denominator
will be the market value of a share of the Spinoff Company.
Alternatively, Holdings may elect to distribute to each holder of
Series C Preferred Stock the number of shares of capital stock of the
Spinoff Company that such holder would have been entitled to receive
if the Series C Preferred Stock had been converted to Common Stock
immediately prior to the distribution at the Series C Common Stock
Equivalent then in effect. In the event that either (a) the fair value
of the shares of the Spinoff Company distributed are greater than or
equal to 95% of the market price of Common Stock prior to the
distribution or (b) the record date for the distribution is fixed less
than twenty-one trading days prior to such record date, then Holdings
must elect to distribute the shares of the Spinoff Company to the
holders of the shares of Series C Preferred Stock in accordance with
the preceding sentence.
Holders of Series C Preferred Stock have the right, voting
together with the holders of Common Stock (and any other class of
capital stock of Holdings entitled to vote together with the
Common Stock, including the ESOP Preferred Stock) as one class, to vote
in the election of directors and upon each other matter coming before
any meeting of the stockholders on the basis initially of one vote
(equal to one-tenth of the Series C Common Stock Equivalent) for each
Series C Preferred Stock held; provided that the holders of Series C
Preferred Stock are not entitled to vote on any increase or decrease in
the number of authorized shares of any class or classes of stock. In the
event dividends on all series of Preferred Stock, including the Series
C Preferred Stock, were in arrears and unpaid for six quarterly periods,
the holders of Series C Preferred Stock, together with the holders of
all other outstanding series of Preferred Stock entitled to vote
thereon, were entitled to elect two additional directors to the Board
of Directors of Holdings until all cumulative dividends on all series
of Preferred Stock, have been paid or declared and set aside for
payment; provided that such directors may not have exceeded 25% of the
total board of directors or be less than one director. While such
holders were entitled to elect two directors, they were not entitled to
participate with the holders of Common Stock in the election of any
other directors, but would have continued to vote with the holders
of Common Stock upon each other matter coming before any meeting of the
stockholders.
Upon any voluntary or involuntary liquidation, dissolution or
winding up of Holdings, holders of Series C Preferred Stock will be
entitled to receive $60.50 per share, plus an amount equal to any
accrued and unpaid dividends, before any distribution is made on any
class of junior securities, including Common Stock.
ESOP Preferred Stock
Each share of ESOP Preferred Stock is entitled to receive, when,
as and if declared by the Board of Directors of Holdings, out of funds
legally available therefor, cumulative cash dividends at a rate of
7.8125% of stated value per annum ($1.25 per annum) at least until
April 10, 1999, payable semi-annually in arrears. Each share of ESOP
Preferred Stock is convertible into one share of Common Stock, subject
to adjustment in certain events. The ESOP Preferred Stock is
redeemable at the option of Holdings, in whole or in part, at any time
on or after April 10, 1999, at an initial optional redemption price of
$16.25 per share, declining thereafter on an annual basis in the
amount of $.125 a year to $16 per share on April 10, 2001, plus
accrued and unpaid dividends. Under certain other circumstances, the
ESOP Preferred Stock is subject to redemption at any time. Holders of
ESOP Preferred Stock have voting rights which are generally consistent
with those of the holders of Series C Preferred Stock.
Upon any voluntary or involuntary liquidation, dissolution or
winding up of Holdings, holders of ESOP Preferred Stock will be
entitled to receive $16.00 per share, plus an amount equal to any
accrued and unpaid dividends, before any distribution is made on any
class of junior securities, including Common Stock.
<PAGE>
19
Contractual and Policy Restrictions on Payment of Dividends
Holdings is subject to various contractual restrictions on its
ability to pay dividends on its Preferred Stock and Common Stock.
Under the Credit Agreements, Holdings may (i) issue shares of
Common Stock upon the exercise of any warrants or options or upon the
conversion or redemption of any convertible or redeemable preferred
stock and, in connection with any such exercise, conversion or
redemption, Holdings may pay cash in lieu of issuing fractional shares
of Common Stock; (ii) if no event of default existed under the Credit
Agreements, repurchase Common Stock (and/or options or warrants in
respect thereof) pursuant to, and in accordance with the terms of,
management and/or employee stock plans; (iii) if no event of default
existed under the Credit Agreements, declare and pay, or otherwise
effect, any other cash dividend or other dividend or distribution, or
repurchase or redeem any capital stock, provided that the aggregate
amount of such dividends, distributions, repurchases and redemptions,
when added to all dividends, distributions, repurchases and
redemptions made in accordance with this clause (iii) after November
22, 1994, would not exceed an amount equal to the sum of (x) $1
billion plus (y) 50% of the sum of (A) consolidated net income of
Holdings and its subsidiaries for the period (taken as one accounting
period) from January 1, 1995 to the last day of the last fiscal
quarter of Holdings then ended plus (B) all losses from debt
retirement deducted in determining consolidated net income of Holdings
and its subsidiaries for the period referred to in clause (A) above
plus (z) the aggregate cash proceeds (net of underwriting discounts
and commissions) received by Holdings after November 22, 1994 from
issuances of its equity securities (provided that the aggregate amount
of such aggregate net cash proceeds received in any twelve-month
period shall be deemed not to exceed $250 million for purposes of this
clause (iii)(z)), in each case determined at the time of the
declaration thereof, provided that such dividend, distribution or
redemption payment was paid within 45 days of the making of such
declaration; (iv) issue and exchange shares of any class or series of
its common stock now or hereafter outstanding for shares of any other
class or series of its common stock now or hereafter outstanding; and
(v) in connection with any reclassification of its common stock and
any exchange permitted by clause (v) above, pay cash in lieu of
issuing fractional shares of any class or series of its common stock.
The Nabisco Credit Agreement also limits payment of dividends by
Nabisco, Inc. to $300 million plus 50% of the cumulative consolidated
net income of Nabisco, Inc. commencing January 1, 1995.
In addition to the contractual restrictions referred to above,
the Board of Directors of Holdings has adopted a policy, under which
Holdings will limit, until December 31, 1998, the aggregate amount of
cash dividends on its Capital Stock. Under this policy, Holdings:
(a) will not pay any extraordinary cash dividends;
(b) will not make any Restricted Payment if, after giving
effect to such Restricted Payment, the aggregate amount expended
for all Restricted Payments subsequent to December 31, 1994
exceeds the sum of (i) $500 million, plus (ii) 65% of
Consolidated Net Income of Holdings on a cumulative basis
subsequent to December 31, 1994, plus (iii) aggregate cash
<PAGE>
20
proceeds of up to $250 million received in any year subsequent to
December 31, 1994 by Holdings or a Subsidiary from the issuance
and sale (other than to a Subsidiary) of Holdings' or such
Subsidiary's Capital Stock (or of other securities that are
subsequently converted into or exchanged for Holdings' or such
Subsidiary's Capital Stock) (other than proceeds from the Nabisco
Public Offering), it being understood that any aggregate net cash
proceeds from any issuance and sale of any Capital Stock will be
counted only up to the amount of any indebtedness or preferred
stock of Holdings or any Subsidiary that has been repaid,
purchased, redeemed or otherwise acquired for value by Holdings
or any Subsidiary within one year before or after such issuance
and sale. If Holdings or a Subsidiary repays, purchases, redeems
or otherwise acquires for value indebtedness or preferred stock
of Holdings or a Subsidiary in exchange for Capital Stock of
Holdings or a Subsidiary, Holdings or such Subsidiary shall be
deemed to have received the net cash proceeds equal to the market
value of the Capital Stock so issued in exchange (such market
value to be determined by Holdings' Board of Directors, whose
good faith determination shall be conclusive);
(c) will use an amount equal to the net cash proceeds
received prior to December 31, 1998 from (i) the issuance and
sale by Holdings of any Capital Stock (other than to a Subsidiary
or current, future or former directors, officers or employees of
Holdings or any Subsidiary (or their estates or beneficiaries
under their estates)) or (ii) any sale outside the ordinary
course of business of material assets owned or used by any of its
Subsidiaries in the tobacco business (other than to another
Subsidiary) either to repay, purchase, redeem or otherwise
acquire for value indebtedness of Holdings or a Subsidiary or to
acquire properties, assets or businesses to be used in existing
or new lines of business of Holdings or its Subsidiaries; and
(d) will use an amount equal to the net cash proceeds
received by Holdings or RJRN prior to December 31, 1998 from the
sale to third parties of shares of common stock of Nabisco held
by either of them to repay, purchase, redeem or otherwise acquire
for value indebtedness of Holdings or a Subsidiary.
The foregoing policy will not prevent the payment of a cash
dividend within 90 days of its declaration if, at the time of
declaration, such payment would have complied with the foregoing
policy or the purchase, redemption, acquisition, cancellation or other
retirement for value of Capital Stock, options on Capital Stock, stock
appreciation rights or similar securities held by current, future or
former directors, officers or employees of Holdings or any Subsidiary
or certain trusts or estates for their benefit.
Holdings has also adopted a policy to the effect that it will not
declare a dividend or distribution on its Capital Stock prior to
December 31, 1996 that is paid in Capital Stock of a Subsidiary owned
by Holdings or a Subsidiary and that it is its intent not to make such
a distribution to its stockholders prior to December 31, 1998 if (a)
such distribution would cause the ratings of RJRN's publicly held
<PAGE>
21
senior indebtedness to be reduced from investment grade to
non-investment grade or (b) any publicly held senior indebtedness of
the distributed Subsidiary would, after giving effect to such
distribution, be rated non-investment grade.
For purposes of the foregoing policies:
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
capital stock and any rights (other than debt securities
convertible into capital stock), warrants or options to acquire
such Capital Stock.
"Consolidated Net Income" of Holdings means, for any period,
the aggregate consolidated net income of Holdings and its
Subsidiaries for such period, determined on a consolidated basis
in accordance with generally accepted accounting principles as in
effect from time to time, adjusted by excluding (to the extent
not otherwise excluded in calculating consolidated net income)
any net extraordinary gain or net extraordinary loss, as the case
may be, and any restructuring charges.
"Restricted Payment" means (i) any payment of any cash
dividend or distribution by Holdings on its Capital Stock, (ii)
any purchase, redemption or other acquisition for cash by
Holdings of its Capital Stock (other than any such purchase,
redemption or acquisition for value in exchange for, or in an
amount equal to the proceeds of, an offering of Capital Stock of
Holdings or any Subsidiary or, in the case of Holdings' Series B
Preferred Stock or any other non-convertible preferred stock of
Holdings outstanding from time to time), for indebtedness of
Holdings or any Subsidiary and (iii) any purchase, redemption or
other acquisition for cash by Holdings of any Subordinated Debt
prior to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment (other than any such purchase, redemption or
other acquisition for value in exchange for, or in an amount
equal to the proceeds of, an offering of Capital Stock or
Subordinated Debt of Holdings or any Subsidiary).
"Subordinated Debt" means any indebtedness of Holdings or
any Subsidiary which by its terms is expressly subordinated in
right of payment to any other indebtedness of Holdings or any
Subsidiary, provided, however, that the term Subordinated Debt
shall not include any intercompany indebtedness.
"Subsidiary" means any entity of which securities or other
ownership interests having ordinary voting power to elect a
majority of the Board of Directors or other persons performing
similar functions are at the time directly or indirectly owned by
Holdings.
Certain Statutory and By-law Provisions
Holdings is subject to the "business combination" statute of the
Delaware General Corporation Law (the "DGCL"). In general, Section
<PAGE>
22
203 of the DGCL prohibits a publicly held Delaware corporation from
engaging in a "business combination" with an "interested stockholder"
for a period of three years after the date of the transaction in which
the person became an "interested stockholder," unless (a) prior to
such date the Board of Directors of the corporation approved either
the "business combination" or the transaction which resulted in the
stockholder becoming an "interested stockholder," (b) upon
consummation of the transaction which resulted in the stockholder
becoming an "interested stockholder," the "interested stockholder"
owned at least 85% of the voting stock of the corporation outstanding
at the time the transaction commenced, excluding for purposes of
determining the number of shares outstanding those shares owned (i) by
persons who are directors and also officers and (ii) employee stock
plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer, or (c) on or subsequent to
such date the "business combination" is approved by the Board of
Directors and authorized at an annual or special meeting of
stockholders by the affirmative vote of at least 66 2/3% of the
outstanding voting stock which is not owned by the "interested
stockholder." A "business combination" includes mergers, certain stock
or asset sales and certain other transactions resulting in a financial
benefit to, or increase in voting power held by, the "interested
stockholders." An "interested stockholder" is a person who, together
with affiliates and associates, owns (or if such person is an
affiliate or associate of the corporation within three years, did own)
15% or more of the corporation's voting stock.
Holdings' By-laws establish an advance notice procedure for
stockholders to make nominations of candidates for election as
directors, or to bring other business before an annual meeting of
stockholders of Holdings. The By-laws provide that only persons who
are nominated by, or at the direction of, the Board of Directors of
Holdings or any committee designated by the Board of Directors of
Holdings, or by a stockholder who has given timely written notice to
the Secretary of Holdings prior to the meeting at which directors are
to be elected, will be eligible for election as directors of Holdings.
The By-laws also provide that in order to properly submit any business
to an annual meeting of stockholders, a stockholder must give timely
written notice to the Secretary of Holdings of such stockholder's
intention to bring such business before such meeting. Generally, for
notice of stockholder nominations or other business to be made at an
annual meeting to be timely under the By-laws, such notice must be
received by Holdings (i) not less than 120 days nor more than 150 days
before the first anniversary date of Holdings' proxy statement in
connection with the last annual meeting of stockholders or (ii) 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
the date contemplated at the time of the previous year's proxy
statement, not less than a reasonable time, as determined by the Board
of Directors of Holdings, prior to the date of the applicable annual
meeting. Under the By-laws, a stockholder's notice must also contain
certain information specified in the By-laws.
<PAGE>
23
The provisions described above, together with certain terms of
Holdings outstanding Preferred Stock and its ability to issue
additional Preferred Stock, may have the effect of delaying
stockholder actions with respect to certain business combinations and
the election of new members of the Board of Directors of Holdings. As
such, the provisions could have the effect of discouraging open market
purchases of Common Stock because they may be considered
disadvantageous by a stockholder who desires to participate in a
business combination or elect a new director.
<PAGE>
24
SELLING STOCKHOLDER
At January 26, 1995, Borden owned 51,106,768 shares of Common
Stock, or approximately 3.7% of the total number of shares of Common
Stock outstanding. Borden acquired such shares upon the exercise by
the Whitehall Associates, L.P. (the "Partnership") and KKR Partners
II, L.P. (collectively, the "Common Stock Partnerships"), affiliates
of KKR, of an option (the "Option") to purchase shares of common
stock, par value $.625 per share, of Borden (the "Borden Common
Stock") in exchange for shares of Common Stock. Moreover, in
connection with Borden obtaining certain credit facilities, the Common
Stock Partnerships agreed to make an additional equity investment in
Borden in the form of additional shares of Common Stock. Such
additional equity investment is expected to be made promptly following
the consummation of the merger of a subsidiary of the Partnership
("BAC") with and into Borden (the "Merger") pursuant to a merger
agreement (the "Merger Agreement") among the Partnership, BAC and
Borden. After giving effect to such additional equity investment,
Borden is expected to own up to the number of shares of Common Stock
registered for sale under the Registration Statement of which this
Prospectus forms a part. If Borden disposes of all the Common Stock
to be offered hereby, Borden will not own any shares of Common Stock.
However, Borden may issue securities which are convertible,
exchangeable or redeemable at some future date into or for all of the
shares of Common Stock owned by Borden. See "Plan of Distribution."
As of January 26, 1995, the Common Stock Partnerships held an
aggregate of approximately 69.6% of the total voting power of Borden.
The Merger will require the approval of holders of not less than
66-2/3% of the outstanding Borden Common Stock, including the shares
of Borden Common Stock held by the Common Stock Partnerships. The
Common Stock Partnerships intend to vote their shares of Borden Common
Stock in favor of approval of the Merger Agreement and the Merger.
The Common Stock Partnerships own sufficient shares of Borden Common
Stock to approve the Merger and, accordingly, no action by any other
shareholder is required to approve the Merger. Assuming the Merger
is approved, the Common Stock Partnerships will exchange approximately
118,500,000 shares of Common Stock for all of the outstanding shares
of Borden Common Stock not already held by the Common Stock
Partnerships. Accordingly, after completion of the proposed Merger,
the Common Stock Partnerships will be the sole shareholders of Borden.
As of December 31, 1994, the Common Stock Partnerships owned or
controlled an aggregate of approximately 25.7 % (approximately 20.3 % on
a fully diluted basis) of the total voting power of Holdings,
including the 51,106,768 shares of Common Stock owned by Borden
discussed above. After completion of the proposed Merger, the Common
Stock Partnerships are expected to own or control an aggregate of
approximately 16.6% (approximately 13.5% on a fully diluted basis) of
the total voting power of Holdings, including the 51,106,768 shares of
Common Stock owned by Borden. After the completion of an offering
by the Selling Stockholder of any of the Common Stock covered hereby,
the Common Stock Partnership's control of the voting power of Holdings
will be reduced in proportion to the number of shares of Common Stock
sold. Currently, seven of Holdings' sixteen directors are partners or
executives of KKR.
<PAGE>
25
PLAN OF DISTRIBUTION
The Company has been advised that the distribution of the Common
Stock by the Selling Stockholder may be effected in and/or outside the
United States: (i) through underwriters or dealers; (ii) directly to
a limited number of purchasers or to a single purchaser; (iii) through
agents; or (iv) in the event that the Selling Stockholder sells
securities of its own which are convertible, exchangeable or
redeemable into or for the Common Stock, upon the conversion, exchange
or redemption of such securities of the Selling Stockholder. The
Prospectus Supplement with respect to the Common Stock being offered
(the "Offered Shares") will set forth the terms of the offering of the
Offered Shares, including the name or names of any underwriters or
agents, the purchase price of the Offered Shares and the proceeds to
the Selling Stockholder from such sale, any delayed delivery
arrangements, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
The Company has been further advised that, if underwriters are
used in the sale, the Offered Shares will be acquired by the
underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the
time of sale. The Common Stock may be offered to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as underwriters.
The underwriter or underwriters with respect to a particular
underwritten offering of Common Stock will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate
is used, the managing underwriter or underwriters, will be set forth
on the cover of such Prospectus Supplement. Unless otherwise set
forth in the Prospectus Supplement relating thereto, the obligations
of the underwriters to purchase the Offered Shares will be subject to
conditions precedent and the underwriters will be obligated to
purchase all the Offered Shares if any are purchased.
If dealers are utilized in the sale of Offered Shares in respect
of which this Prospectus is delivered, the Company has been advised
that the Selling Stockholder will sell such Offered Shares to the
dealers as principals. The dealers may then resell such Offered
Shares to the public at varying prices to be determined by such
dealers at the time of resale. The names of the dealers and the terms
of the transaction will be set forth in the Prospectus Supplement
relating thereto.
In addition, the Company has been advised that the Common Stock
may be sold directly by the Selling Stockholder or through agents
designated by the Selling Stockholder from time to time. Any agent
involved in the offer or sale of the Offered Shares in respect of
which this Prospectus is delivered will be named, and any commissions
<PAGE>
26
payable by the Selling Stockholder to such agent will be set forth, in
the Prospectus Supplement.
Agents and underwriters may be entitled under agreements entered
into with the Company and the Selling Stockholder to indemnification
by the Company and the Selling Stockholder against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents or underwriters
may be required to make in respect thereof. Agents and underwriters
may be customers of, may engage in transactions with, or perform
services for, the Company and the Selling Stockholder in the ordinary
course of business.
In connection with the sale of the Common Stock, underwriters or
agents may be deemed to have received compensation from the Selling
Stockholder in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of the Common Stock for
whom they may act as agent. Underwriters or agents may sell the Common
Stock to or through dealers, and such dealers may receive compensation
in the form of discounts, concessions or commissions from the
underwriters or commissions from the purchasers for whom they may act
as agent.
Any underwriters, dealers or agents participating in the
distribution of the Common Stock may be deemed to be underwriters, and
any discounts and commissions received by them and any profit realized
by them on resale of the Common Stock may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933.
LEGAL MATTERS
The validity of the Common Stock being offered hereby will be
passed upon for Holdings by Jo-Ann Ford, Vice President, Assistant
General Counsel and Secretary of Holdings and for the underwriters,
brokers or agents by counsel to such underwriters, brokers or agents.
Ms. Ford owns options to purchase shares of Common Stock which
represent less than 0.1% of the currently outstanding shares of Common
Stock.
EXPERTS
The consolidated financial statements of Holdings as of
December 31, 1993 and 1992 and for each of the years in the three year
period ended December 31, 1993 incorporated in this Prospectus by
reference from (1) Holdings' Registration Statement No. 33-52381 on
Form S-3, at the time such Registration Statement was declared
effective and (2) Holdings' Annual Report on Form 10-K for the year
ended December 31, 1993 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in
reliance upon the reports of such firm given upon their authority as
experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection
with the issuance and distribution of the Common Stock being
registered, other than underwriting discounts and commissions. All of
the amounts shown are estimates, except the SEC registration fee.
Registration Fee . . . . . . $141,810.34
Blue Sky fees and expenses . 15,000.00
Printing and engraving
expenses . . . . . . . . . . 200,000.00
Legal fees and expenses . . . 25,000.00
Accounting fees and expenses 10,000.00
Miscellaneous . . . . . . . . 10,000.00
-----------
Total . . . . . . . . . . $401,810.34
===========
Item 15. 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 threatened, 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 attorneys' 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 or
director 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 officer or director actually and
reasonably incurred.
In accordance with the Delaware Law, the Certificate of
Incorporation of the Company contains a provision to limit the
personal liability of the directors of the Company for violations of
their fiduciary duty. This provision eliminates each director's
liability to the Company or its stockholders for monetary damages
II-1
<PAGE>
except (i) for any breach of the director's duty of loyalty to the
Company 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.
Article IV of the Amended and Restated By-Laws of the Company
provides for indemnification of the officers and directors of the
Company to the full extent permitted by applicable law.
Item 16. Exhibits.
Exhibit No. Description
----------- -----------
*1.1 Form of Purchase Agreement.
3.1 Amended and Restated Certificate of
Incorporation of RJR Nabisco Holdings
Corp., filed October 1, 1990
(incorporated by reference to Exhibit 3.1
to Amendment No. 4 filed on October 2,
1990, to the Registration Statement on
Form S-4 of RJR Nabisco Holdings Corp.,
Registration No. 33-36070, filed on July
25, 1990, as amended.
3.1(a) Certificate of Amendment to Amended and
Restated Certificate of Incorporation of
RJR Nabisco Holdings Corp., filed January
29, 1991 (incorporated by reference to
Exhibit 3.1(a) to Amendment No. 3, filed
on January 31, 1991, to the Registration
Statement on Form S-4 of RJR Nabisco
Holdings Corp., Registration No. 33-
38227).
3.1(b) Certificate of Designation of ESOP
Convertible Preferred Stock, filed April
10, 1991 (incorporated by reference to
Exhibit 3.1(b) to Amendment No. 2 filed
on April 11, 1991, to the Registration
Statement on Form S-1 of RJR Nabisco
Holdings Corp., Registration No. 33-
39532, filed on March 20, 1991).
II-2
<PAGE>
Exhibit No. Description
----------- -----------
3.1(c) Certificate of Designation of Series A
Conversion Preferred Stock, filed
November 7, 1991 (incorporated by
reference to Exhibit 3.1(c) to Amendment
No. 3, filed on November 1, 1991, to the
Registration Statement on Form S-1 of RJR
Nabisco Holdings Corp., Registration No.
33-43137, filed October 2, 1991).
3.1(d) Certificate of Amendment to Amended and
Restated Certificate of Incorporation of
RJR Nabisco Holdings Corp., filed
December 16, 1991 (incorporated by
reference to Exhibit 3.1(d) of the Annual
Report on Form 10-K of RJR Nabisco
Holdings Corp., RJR Nabisco Holdings
Group, Inc., RJR Nabisco Capital Corp and
RJR Nabisco, Inc. for the fiscal year
ended December 31, 1991, File Nos. 1-
10215, 1-10214, 1-10248 and 1-6388.
3.1(e) Certificate of Amendment to the Amended
and Restated Certificate of Incorporation
of RJR Nabisco Holdings Corp. (relating
to the authorization of the issuance of
additional shares of Common Stock) filed
April 6, 1993 (incorporated by reference
to Exhibit 3.3 of the Quarterly Report on
Form 10-Q of RJR Nabisco Holdings Corp.
and RJR Nabisco, Inc. for the fiscal
quarter ended March 31, 1993, filed April
30, 1993 (the "March 1993 Form 10-Q")).
3.1(f) Certificate of Designation of Series B
Cumulative Preferred Stock, filed August
16, 1993 (incorporated by reference to
Exhibit 3.1(f) of the Annual Report on
Form 10-K of RJR Nabisco Holdings Corp.
and RJR Nabisco, Inc. for the fiscal year
ended December 31, 1993, File Nos. 1-
10215 and 1-6388 (the "1993 Form 10-K")).
3.1(g) A composite of the Amended and Restated
Certificate of Incorporation of RJR
Nabisco Holdings Corp., as amended to
August 16, 1993 (incorporated by
reference to Exhibit 3.1(g) of the 1993
Form 10-K).
3.1(h) Certificate of Designation of Series C
Conversion Preferred Stock (incorporated
by reference to Exhibit 4.1(h) to the
Registration Statement on Form S-3 of RJR
II-3
<PAGE>
Exhibit No. Description
----------- -----------
Nabisco Holdings Corp., Registration No.
33-52381 filed on February 2, 1994, as
amended.
3.2 Amended and Restated By-laws of RJR
Nabisco Holdings Corp., as amended,
effective January 20, 1994 (incorporated
by reference to Exhibit 3.2 to the 1993
Form 10-K).
4.1 Credit Agreement dated as of December 1,
1991, among RJR Nabisco Holdings Corp.,
RJR Nabisco Holdings Group, Inc., RJR
Nabisco Capital Corp., RJR Nabisco, Inc.
and the lending institutions party
thereto (incorporated by reference to
Exhibit 4.1 of the 1991 Form 10-K)(the
"Credit Agreement").
4.1(a) Amendment No. 1 to Credit Agreement,
dated as of October 21, 1992
(incorporated by reference to Exhibit
4.1(a) of the Annual Report on Form 10-K
of RJR Nabisco Holdings Corp. and RJR
Nabisco, Inc. for the fiscal year ended
December 31, 1992, File Nos. 1-10215 and
1-6388).
4.1(b) Amendment No. 2 to Credit Agreement,
dated as of March 4, 1993 (incorporated
by reference to Exhibit 4.2 of the March
1993 Form 10-Q).
4.1(c) Amendment No. 3 to Credit Agreement,
dated as of October 12, 1993
(incorporated by reference to Exhibit
10.1 of the Quarterly Report on Form 10-Q
of RJR Nabisco Holdings Corp. and RJR
Nabisco, Inc. for the quarter ended
September 30, 1993 (the "September 1993
Form 10-Q").
4.1(d) Amendment No. 4 to Credit Agreement,
dated as of November 2, 1994
(incorporated by reference to Exhibit
4.1(d) to Post-Effective Amendment No. 2,
filed February 1, 1995, to the
Registration Statement on Form S-4 of RJR
Nabisco Holdings Corp., Registration No.
33-5567, filed October 5, 1994 (the "1995
Form S-4")).
4.1(e) Amendment No. 5 to Credit Agreement,
II-4
<PAGE>
Exhibit No. Description
----------- -----------
dated as of December 2, 1994
(incorporated by reference to Exhibit
4.1(e) of the 1995 Form S-4).
4.2 Credit Agreement dated as of April 5,
1993 among RJR Nabisco Holdings Corp.,
RJR Nabisco, Inc. and the lending
institutions party thereto (incorporated
by reference to Exhibit 4.3 of the March
1993 Form 10-Q)(the "1993 Credit
Agreement").
4.2(a) Amendment No. 1 to 1993 Credit Agreement,
dated October 12, 1993 (incorporated by
reference to Exhibit 10.1 of the
September 1993 10-Q).
4.2(b) Amendment No. 2 to 1993 Credit Agreement,
dated as of March 28, 1994 (incorporated
by reference to Exhibit 4.2 of the
Quarterly Report on Form 10-Q of RJR
Nabisco Holdings Corp. and RJR Nabisco,
Inc. for the quarter ended March 31,
1994).
4.2(c) Amendment No. 3 to 1993 Credit Agreement,
dated as of November 2, 1994
(incorporated by reference to Exhibit
4.2(c) of the 1995 Form S-4).
4.2(d) Amendment No. 4 to 1993 Credit Agreement,
dated as of December 2, 1994
(incorporated by reference to Exhibit
4.2(d) of the 1995 Form S-4).
*5.1 Opinion of Jo-Ann Ford regarding the
legality of the securities being
registered.
*23.1 Consent of Deloitte & Touche LLP,
Independent Auditors for RJR Nabisco
Holdings Corp. and RJR Nabisco, Inc.
*23.2 Consent of Jo-Ann Ford (included in her
opinion filed as Exhibit 5.1).
II-5
<PAGE>
Exhibit No. Description
----------- -----------
*24.1 Powers of Attorney of Charles M. Harper,
Stephen R. Wilson, Robert S. Roath,
Julius L. Chambers, John L. Clendenin,
H. John Greeniaus, Henry R. Kravis, John
G. Medlin, Jr., Lawrence R. Ricciardi,
Clifton S. Robbins, George R. Roberts,
Scott M. Stuart and Michael T. Tokarz.
_________________
* Filed herewith
II-6
<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (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 the 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 the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
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 in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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) (1) That, for purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) under the Securities Act
of 1933 shall be deemed to be part of this Registration Statement as
of the time it was declared effective.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
II-7
<PAGE>
(c) 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 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this 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.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
referred to in Item 15 of this Registration Statement, 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 the Securities Act of 1933 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 Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-8
<PAGE>
SIGNATURES
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-3 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, February 2, 1995.
RJR Nabisco Holdings Corp.
By /s/ Jo-Ann Ford
-----------------------
Title: Vice President,
Assistant General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons
in the capacities indicated on February 2, 1995.
Signature Title
--------- -----
*
............................ Chairman of the Board and Chief
(Charles M. Harper) Executive Officer (principal
executive officer) and Director
*
............................ Executive Vice President and Chief
(Stephen R. Wilson) Financial Officer (principal
financial officer)
*
............................ Senior Vice President and
(Robert S. Roath) Controller (principal accounting
officer)
............................ Director
(John T. Chain, Jr.)
*
............................ Director
(Julius L. Chambers)
*
............................ Director
(John L. Clendenin)
............................ Director
(James H. Greene, Jr.)
II-9
<PAGE>
*
............................ Director
(H. John Greeniaus)
............................ Director
(James W. Johnston)
*
............................ Director
(Henry R. Kravis)
*
............................ Director
(John G. Medlin, Jr.)
............................ Director
(Paul E. Raether)
*
............................ Director
(Lawrence R. Ricciardi)
............................ Director
(Rozanne L. Ridgway)
*
............................ Director
(Clifton S. Robbins)
*
............................ Director
(George R. Roberts)
*
............................ Director
(Scott M. Stuart)
*
............................ Director
(Michael T. Tokarz)
/s/ Jo-Ann Ford
By: ........................
Jo-Ann Ford
Attorney-in-fact
II-10
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
----------- ----------- ----
*1.1 Form of Purchase Agreement.
3.1 Amended and Restated Certificate of
Incorporation of RJR Nabisco Holdings
Corp., filed October 1, 1990
(incorporated by reference to Exhibit 3.1
to Amendment No. 4 filed on October 2,
1990, to the Registration Statement on
Form S-4 of RJR Nabisco Holdings Corp.,
Registration No. 33-36070, filed on July
25, 1990, as amended.
3.1(a) Certificate of Amendment to Amended and
Restated Certificate of Incorporation of
RJR Nabisco Holdings Corp., filed January
29, 1991 (incorporated by reference to
Exhibit 3.1(a) to Amendment No. 3, filed
on January 31, 1991, to the Registration
Statement on Form S-4 of RJR Nabisco
Holdings Corp., Registration No. 33-
38227).
3.1(b) Certificate of Designation of ESOP
Convertible Preferred Stock, filed April
10, 1991 (incorporated by reference to
Exhibit 3.1(b) to Amendment No. 2 filed
on April 11, 1991, to the Registration
Statement on Form S-1 of RJR Nabisco
Holdings Corp., Registration No. 33-
39532, filed on March 20, 1991).
3.1(c) Certificate of Designation of Series A
Conversion Preferred Stock, filed
November 7, 1991 (incorporated by
reference to Exhibit 3.1(c) to Amendment
No. 3, filed on November 1, 1991, to the
Registration Statement on Form S-1 of RJR
Nabisco Holdings Corp., Registration No.
33-43137, filed October 2, 1991).
3.1(d) Certificate of Amendment to Amended and
Restated Certificate of Incorporation of
RJR Nabisco Holdings Corp., filed
December 16, 1991 (incorporated by
reference to Exhibit 3.1(d) of the Annual
Report on Form 10-K of RJR Nabisco
Holdings Corp., RJR Nabisco Holdings
Group, Inc., RJR Nabisco Capital Corp and
RJR Nabisco, Inc. for the fiscal year
ended December 31, 1991, File Nos. 1-
10215, 1-10214, 1-10248 and 1-6388.
<PAGE>
Exhibit No. Description Page
----------- ----------- ----
3.1(e) Certificate of Amendment to the Amended
and Restated Certificate of Incorporation
of RJR Nabisco Holdings Corp. (relating
to the authorization of the issuance of
additional shares of Common Stock) filed
April 6, 1993 (incorporated by reference
to Exhibit 3.3 of the Quarterly Report on
Form 10-Q of RJR Nabisco Holdings Corp.
and RJR Nabisco, Inc. for the fiscal
quarter ended March 31, 1993, filed April
30, 1993 (the "March 1993 Form 10-Q")).
3.1(f) Certificate of Designation of Series B
Cumulative Preferred Stock, filed August
16, 1993 (incorporated by reference to
Exhibit 3.1(f) of the Annual Report on
Form 10-K of RJR Nabisco Holdings Corp.
and RJR Nabisco, Inc. for the fiscal year
ended December 31, 1993, File Nos. 1-
10215 and 1-6388 (the "1993 Form 10-K")).
3.1(g) A composite of the Amended and Restated
Certificate of Incorporation of RJR
Nabisco Holdings Corp., as amended to
August 16, 1993 (incorporated by
reference to Exhibit 3.1(g) of the 1993
Form 10-K).
3.1(h) Certificate of Designation of Series C
Conversion Preferred Stock (incorporated
by reference to Exhibit 4.1(h) to the
Registration Statement on Form S-3 of RJR
Nabisco Holdings Corp., Registration No.
33-52381 filed on February 2, 1994, as
amended.
3.2 Amended and Restated By-laws of RJR
Nabisco Holdings Corp., as amended,
effective January 20, 1994 (incorporated
by reference to Exhibit 3.2 to the 1993
Form 10-K).
4.1 Credit Agreement dated as of December 1,
1991, among RJR Nabisco Holdings Corp.,
RJR Nabisco Holdings Group, Inc., RJR
Nabisco Capital Corp., RJR Nabisco, Inc.
and the lending institutions party
thereto (incorporated by reference to
Exhibit 4.1 of the 1991 Form 10-K)(the
"Credit Agreement").
4.1(a) Amendment No. 1 to Credit Agreement,
dated as of October 21, 1992
(incorporated by reference to Exhibit
4.1(a) of the Annual Report on Form 10-K
of RJR Nabisco Holdings Corp. and RJR
Nabisco, Inc. for the fiscal year ended
<PAGE>
Exhibit No. Description Page
----------- ----------- ----
December 31, 1992, File Nos. 1-10215 and
1-6388).
4.1(b) Amendment No. 2 to Credit Agreement,
dated as of March 4, 1993 (incorporated
by reference to Exhibit 4.2 of the March
1993 Form 10-Q).
4.1(c) Amendment No. 3 to Credit Agreement,
dated as of October 12, 1993
(incorporated by reference to Exhibit
10.1 of the Quarterly Report on Form 10-Q
of RJR Nabisco Holdings Corp. and RJR
Nabisco, Inc. for the quarter ended
September 30, 1993 (the "September 1993
Form 10-Q").
4.1(d) Amendment No. 4 to Credit Agreement,
dated as of November 2, 1994
(incorporated by reference to Exhibit
4.1(d) to Post-Effective Amendment No. 2,
filed February 1, 1995, to the
Registration Statement on Form S-4 of RJR
Nabisco Holdings Corp., Registration No.
33-5567, filed October 5, 1994 (the "1995
Form S-4")).
4.1(e) Amendment No. 5 to Credit Agreement,
dated as of December 2, 1994
(incorporated by reference to Exhibit
4.1(e) of the 1995 Form S-4).
4.2 Credit Agreement dated as of April 5,
1993 among RJR Nabisco Holdings Corp.,
RJR Nabisco, Inc. and the lending
institutions party thereto (incorporated
by reference to Exhibit 4.3 of the March
1993 Form 10-Q)(the "1993 Credit
Agreement").
4.2(a) Amendment No. 1 to 1993 Credit Agreement,
dated October 12, 1993 (incorporated by
reference to Exhibit 10.1 of the
September 1993 10-Q).
4.2(b) Amendment No. 2 to 1993 Credit Agreement,
dated as of March 28, 1994 (incorporated
by reference to Exhibit 4.2 of the
Quarterly Report on Form 10-Q of RJR
Nabisco Holdings Corp. and RJR Nabisco,
Inc. for the quarter ended March 31,
1994).
<PAGE>
Exhibit No. Description Page
----------- ----------- ----
4.2(c) Amendment No. 3 to 1993 Credit Agreement,
dated as of November 2, 1994
(incorporated by reference to Exhibit
4.2(c) of the 1995 Form S-4).
4.2(d) Amendment No. 4 to 1993 Credit Agreement,
dated as of December 2, 1994
(incorporated by reference to Exhibit
4.2(d) of the 1995 Form S-4).
*5.1 Opinion of Jo-Ann Ford regarding the
legality of the securities being
registered.
*23.1 Consent of Deloitte & Touche LLP,
Independent Auditors for RJR Nabisco
Holdings Corp. and RJR Nabisco, Inc.
*23.2 Consent of Jo-Ann Ford (included in her
opinion filed as Exhibit 5.1).
*24.1 Powers of Attorney of Charles M. Harper,
Stephen R. Wilson, Robert S. Roath,
Julius L. Chambers, John L. Clendenin,
H. John Greeniaus, Henry R. Kravis, John
G. Medlin, Jr., Lawrence R. Ricciardi,
Clifton S. Robbins, George R. Roberts,
Scott M. Stuart and Michael T. Tokarz.
_________________
* Filed herewith
RJR NABISCO HOLDINGS CORP. EXHIBIT 1.1
BORDEN, INC.
FORM OF
PURCHASE AGREEMENT
STANDARD PROVISIONS
(COMMON STOCK)
_________ __, 1995
From time to time, Borden, Inc., a New Jersey
corporation (the "Selling Stockholder"), and RJR Nabisco Holdings
Corp., a Delaware corporation (the "Company"), may enter into one
or more purchase agreements that provide for the sale of up to
70,000,000 shares of Common Stock, par value $.01 per share (the
"Registered Shares"), of the Company by the Selling Stockholder
to the several underwriters named therein. The Registered Shares
involved in any such offering are hereinafter referred to as the
"Shares". The standard provisions set forth herein may be
incorporated by reference in any such purchase agreement (a
"Purchase Agreement"). The Purchase Agreement, including the
provisions incorporated therein by reference, is herein referred
to as this Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including
a prospectus, relating to the Shares and has filed with, or
transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement
(the "Prospectus Supplement") specifically relating to the Shares
pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means
the registration statement, including the exhibits thereto, as
amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement
specifically relating to the Shares together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein.
The terms "supplement" and "amendment" or "amend" as used herein
shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date
of the Basic Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
<PAGE>
1. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to each of the Underwriters
(as defined in the Purchase Agreement) that:
(a) The Registration Statement has become effective
under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or,
to the Company's knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference
in the Prospectus complied or will comply when so filed in
all material respects with the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply to
statements or omissions in the Registration Statement or the
Prospectus based upon information relating to (A) any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager (as defined in the Purchase
Agreement) expressly for use therein or (B) the Selling
Stockholder relating to the Selling Stockholder furnished to
the Company in writing by the Selling Stockholder expressly
for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the financial
condition or the results of operations of the Company and
its subsidiaries, taken as a whole.
-2-
<PAGE>
(d) Each of RJR Nabisco, Inc. ("RJRN"), R.J. Reynolds
Tobacco Company, R.J. Reynolds Tobacco International, Inc.
and Nabisco Holdings Corp. ("Nabisco") (collectively, the
"Principal Operating Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the financial condition or
the results of operations of the Company and its
subsidiaries, taken as a whole.
(e) (i) The authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus; (ii) except as set forth in the
Prospectus and except for 51,750,000 shares of Class A
Common Stock of Nabisco, all of the outstanding capital
stock of each of the Principal Operating Subsidiaries which
is owned by the Company is owned directly or indirectly by
the Company free and clear of any security interest, claim,
lien or other encumbrance or preemptive rights; and (iii)
except for (A) options to acquire common stock of Nabisco
granted to certain directors, officers and employees of the
Company and Nabisco and (B) the option granted to RJRN to
acquire shares of Class B Common Stock of Nabisco pursuant
to the Corporate Agreement between RJRN and Nabisco dated as
of January 26, 1995, there are no outstanding rights
(including, without limitation, preemptive rights), warrants
or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other
equity interest in any of the Principal Operating
Subsidiaries or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the
issuance of any such capital stock, any such convertible or
exchangeable securities or any such rights, warrants or
options.
(f) This Agreement has been duly authorized, executed
and delivered by the Company.
(g) The Shares have been duly authorized and are
validly issued, fully paid and nonassessable.
(h) The execution and delivery by the Company of, and
the performance by the Company of its obligations under,
this Agreement will not contravene any provision of
applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument
-3-
<PAGE>
binding upon the Company or any of its subsidiaries or any
judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any
subsidiary, except for such contraventions that would not
have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries
taken as a whole, and no consent, approval, authorization or
order of or qualification with any governmental body or
agency is required for the performance by the Company of its
obligations under this Agreement, except such as have been
obtained and except such as may be required by the
securities or Blue Sky laws of the various states or other
jurisdictions in connection with the offer and sale of the
Shares.
(i) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the financial condition or results of
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (including any
amendments or supplements thereto subsequent to the date of
this Agreement which have been agreed to by the Manager and
the Company).
(j) There are no legal or governmental proceedings
pending or, to the best of the Company's knowledge,
threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus
and are not so described or any statutes, regulations,
contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(k) Neither the Company nor RJRN is, or after giving
effect to the offering and sale of the Shares will be, and
neither the Company nor RJRN is directly or indirectly
controlled by, or acting on behalf of any person which is,
an investment company within the meaning of the Investment
Company Act of 1940, as amended.
(l) The Company has complied with all provisions of
Section 517.075 Florida Statutes (Chapter 92-198, Laws of
Florida).
2. Representations and Warranties of the Selling
---------------------------------------------
Stockholder. The Selling Stockholder represents and warrants to
-----------
each of the Underwriters that:
(a) The Selling Stockholder has been duly
incorporated, is validly existing as a corporation in good
-4-
<PAGE>
standing under the laws of the State of New Jersey, has the
corporate power and authority to own its property and to
conduct its business and is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or
leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
financial condition or results of operations of the Selling
Stockholder and its subsidiaries, taken as a whole.
(b) This Agreement has been duly authorized, executed
and delivered by the Selling Stockholder.
(c) The execution and delivery by the Selling
Stockholder of, and the performance by the Selling
Stockholder of its obligations under, this Agreement will
not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Selling
Stockholder or any agreement or other instrument binding
upon the Selling Stockholder or any of its subsidiaries or
any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Selling
Stockholder or any subsidiary, except for contraventions
that would not have a material adverse effect on the
financial condition or results of operations of the Selling
Stockholder and its subsidiaries taken as a whole, and no
consent, approval, authorization or order of or
qualification with any governmental body or agency is
required for the performance by the Selling Stockholder of
its obligations under this Agreement, except such as have
been obtained and except such as may be required by the
securities or Blue Sky laws of the various states or other
jurisdictions in connection with the offer and sale of the
Shares.
(d) The Selling Stockholder has good and valid title
to the Shares, free and clear of all liens, encumbrances,
equities or claims and the legal right and power to enter
into this Agreement.
(e) Upon delivery of the Shares and payment therefor
pursuant to this Agreement, the Selling Stockholder will
pass good and valid title to the Shares free and clear of
all liens, encumbrances, equities or claims.
(f) (i) Each part of the Registration Statement
relating to the Selling Stockholder furnished to the Company
in writing by the Selling Stockholder expressly for use
therein, when such part became effective, did not contain
and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to
-5-
<PAGE>
be stated therein or necessary to make the statements
therein not misleading and (ii) each part of the Prospectus
relating to the Selling Stockholder furnished to the Company
in writing by the Selling Stockholder expressly for use
therein does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. Public Offering. The Company and the Selling
---------------
Stockholder are advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of
the Shares as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public
offering of the Shares are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise
---------------------
provided in this Section 4, payment for the Shares shall be made
by certified or official bank check or checks payable to the
order of the Selling Stockholder in New York Clearing House funds
(or such other funds as are specified in the Purchase Agreement)
at the time and place set forth in the Purchase Agreement, upon
delivery to the Manager for the respective accounts of the
several Underwriters of the Shares, registered in such names and
in such denominations as the Manager shall request in writing not
less than two full business days prior to the date of delivery,
with any transfer taxes payable in connection with the transfer
of the Shares to the Underwriters duly paid.
5. Conditions to Closing. The several obligations of
---------------------
the Underwriters hereunder are subject to the following
conditions:
(a) Subsequent to the execution and delivery of the
Purchase Agreement and prior to the Closing Date, there
shall not have occurred any change, or any development
involving a prospective change, in the financial condition
or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus, that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of
the Manager, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(b) The Manager shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in
clause (a) above and to the effect that the representations
and warranties of the Company contained in this Agreement
are true and correct in all material respects as of the
Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its
-6-
<PAGE>
part to be performed or satisfied on or before the Closing
Date. The officer signing and delivering such certificate
may rely upon the best of such officer's knowledge as to
proceedings threatened.
(c) The Manager shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an
executive officer of the Selling Stockholder, to the effect
that the representations and warranties of the Selling
Stockholder contained in this Agreement are true and correct
in all material respects as of the Closing Date and that the
Selling Stockholder has complied with all of the agreements
and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date. The
officer signing and delivering such certificate may rely
upon the best of such officer's knowledge as to proceedings
threatened.
(d) The Manager shall have received on the Closing
Date an opinion of counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit A.
(e) The Manager shall have received on the Closing
Date an opinion of counsel for the Selling Stockholder,
dated the Closing Date, to the effect set forth in Exhibit
B.
(f) The Manager shall have received on the Closing
Date an opinion of counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit C.
(g) The Manager shall have received on the Closing
Date a letter, dated the Closing Date, in form and substance
satisfactory to the Manager, from the Company's independent
public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of the Company. In further
------------------------
consideration of the agreements of the Underwriters contained
herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed
copy of the Registration Statement (including exhibits
thereto) and for delivery to each other Underwriter a conformed
copy of the Registration Statement (without exhibits thereto)
and, during the period mentioned in paragraph (c) below, as many
copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto
-7-
<PAGE>
or to the Registration Statement as the Manager may
reasonably request.
(b) Prior to the termination of the offering of the
Shares pursuant to this Agreement, before amending or
supplementing the Registration Statement or the Prospectus
with respect to the Shares, to furnish to the Manager a copy
of each such proposed amendment or supplement and to file no
such proposed amendment or supplement to which the Manager
reasonably objects promptly after reasonable notice thereof;
provided, however, that the foregoing shall not apply to any
-------- -------
of the Company's filings with the Commission required to be
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, copies of which filings the Company will cause
to be delivered to the Manager promptly after being transmitted
for filing with the Commission.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel
for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters or in the opinion of the
Company, it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the
Underwriters, and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Shares may
have been sold by the Manager on behalf of the Underwriters
and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus, as
so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to
pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in
connection with any review of the offering of the Shares by
the National Association of Securities Dealers, Inc.,
provided that the Company shall not be obligated to so
--------
qualify the Shares if such qualification requires it to file
any general consent to service of process or to register or
qualify as a foreign corporation in any jurisdiction in
which it is not so registered or qualified.
-8-
<PAGE>
(e) To make generally available to the Company's
security holders and to the Manager as soon as practicable
an earning statement covering a twelve-month period
beginning on the first day of the first full fiscal quarter
after the date of this Agreement, which earning statement
shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the
Commission thereunder.
7. Indemnification and Contribution. (a) The
--------------------------------
Company agrees to indemnify and hold harmless each Underwriter,
the Selling Stockholder, the directors of the Selling Stockholder
and each person, if any, who controls such Underwriter or the
Selling Stockholder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission based (i) upon
information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for
use therein or (ii) upon information relating to the Selling
Stockholder furnished to the Company in writing by the Selling
Stockholder expressly for use therein; provided that the
--------
foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of
such Underwriter, to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the
sale of the Shares to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise
to such losses, claims, damages or liabilities.
(b) The Selling Stockholder agrees to indemnify and
hold harmless each Underwriter, the Company, the directors of the
Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls such Underwriter
or the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to the Selling
Stockholder, but in each case only with reference to such
information relating to the Selling Stockholder furnished to the
-9-
<PAGE>
Company by the Selling Stockholder in writing expressly for use
in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto; provided
--------
that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as
then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter, to such person, if required by
law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or
liabilities.
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company and the
Selling Stockholder, each of their directors, each of the
officers of the Company who signs the Registration Statement and
each person, if any, who controls the Company or the Selling
Stockholder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnities from the Company and the
Selling Stockholder to such Underwriter, but only with reference
to information relating to such Underwriter furnished to the
Company by such Underwriter in writing through the Manager
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements
thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either of
the three preceding paragraphs, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
-10-
<PAGE>
that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm acting on behalf of the
indemnified parties related to the Company shall be designated in
writing by the Company. Such firm acting on behalf of the
indemnified parties related to the Selling Stockholder shall be
designated in writing by the Selling Stockholder. Such firm
acting on behalf of the indemnified parties related to the
Manager shall be designated in writing by the Manager. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(e) If the indemnification provided for in paragraphs
(a), (b) or (c) of this Section 7 is unavailable to an
indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party
or parties on the one hand and the relative fault of the
indemnifying party or parties on the other hand in connection
with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company and the Selling Stockholder on the one hand and the
Underwriters on the other hand in connection with the offering of
the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Shares
(before deducting expenses) received by the Selling Stockholder
and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Shares. The relative fault of the Company,
the Selling Stockholder and the Underwriters shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company, by the Selling Stockholder or by the
Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in
-11-
<PAGE>
proportion to the respective number of shares of Common Stock
they have purchased hereunder, and not joint.
(f) The Company, the Selling Stockholder and the
Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified
party at law or in equity.
(g) The indemnity and contribution provisions
contained in this Section 7 and the representations and
warranties of the Company and the Selling Stockholder contained
herein shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the
Company or by or on behalf of the Selling Stockholder, its
directors or any person controlling the Selling Stockholder and
(iii) acceptance of and payment for any of the Shares.
8. Termination. This Agreement shall be subject to
-----------
termination, by notice given by the Manager to the Company and
the Selling Stockholder, if (a) after the execution and delivery
of the Purchase Agreement and prior to the Closing Date (i)
trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) trading of
any equity securities of the Company on the New York Stock
Exchange shall have been suspended, (iii) a general moratorium on
commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv)
-12-
<PAGE>
there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or
crisis, which event is material and adverse and (b) in the case
of any of the events specified in clauses (a)(i) through (iv),
such event, singly or together with any other such event, makes
it, in the reasonable judgment of the Manager, impracticable to
market the Shares on the terms and in the manner contemplated in
the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date,
-----------------------
any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which
such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
number of Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that
the aggregate number of Shares set forth opposite their
respective names in the applicable Purchase Agreement bears to
the aggregate number of Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Shares
which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no
--------
event shall the number of Shares that any Underwriter has agreed
to purchase pursuant to this Agreement be increased pursuant to
this Section 9 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If,
on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Shares and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth
of the aggregate number of Shares to be purchased on such date,
and arrangements satisfactory to the Manager and the Company and
the Selling Stockholder for the purchase of such Shares are not
made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholder. In any
such case either the Manager or the Selling Stockholder shall
have the right to postpone the Closing Date but in no event for
longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in
any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal
on the part of the Company or the Selling Stockholder to comply
with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason (other than termination due to
the preceding paragraph or Section 8 hereof) the Company or the
Selling Stockholder shall be unable to perform its obligations
-13-
<PAGE>
under this Agreement, the Company will reimburse the Underwriters
or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Shares, provided that the
--------
Company and the Selling Stockholder shall have no further
liability to any Underwriter except as provided in Section 7
hereof and with respect to the payment of expenses referred to in
paragraph (d) of Section 6 hereof.
10. Miscellaneous. The Purchase Agreement may be
-------------
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable New York
principles of conflicts of law and except as may otherwise be
required by mandatory provisions of law.
11. Headings. The headings of the sections of this
--------
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
-14-
<PAGE>
Exhibit A
Opinion of
Counsel for the Company
The opinion of counsel for the Company, to be delivered
pursuant to Section 5(d) of the Purchase Agreement, shall be to
the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to
transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries,
taken as a whole;
(ii) each Principal Operating Subsidiary has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iii) (a) The authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus; (b) except for 51,750,000
shares of Class A Common Stock of Nabisco, all of the
outstanding capital stock of each of the Principal Operating
Subsidiaries is owned directly or indirectly by the Company
free and clear of any security interest, claim, lien or
other encumbrance or preemptive rights; and (c) except for
(i) options to acquire common stock of Nabisco granted to
certain directors, officers and employees of the Company and
Nabisco and (ii) the option granted to RJRN to acquire
shares of Class B Common Stock of Nabisco pursuant to the
Corporate Agreement between RJRN and Nabisco dated as of
January 26, 1995, there are no outstanding rights
(including, without limitation, preemptive rights), warrants
or options to acquire, or instruments convertible into or
<PAGE>
exchangeable for, any shares of capital stock or other
equity interest in any of the Principal Operating
Subsidiaries or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the
issuance of any such capital stock, any such convertible or
exchangeable securities or any such rights, warrants or
options.
(iv) the Purchase Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Shares have been duly authorized and are
validly issued, fully paid and nonassessable;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
the Purchase Agreement will not contravene any provision of
applicable law or the certificate of incorporation or
by-laws of the Company or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries or, to the best of
such counsel's knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, except for such
contraventions that would not have a material adverse effect
on the financial condition or results of operations of the
Company and its subsidiaries taken as a whole, and no
consent, approval, authorization or order of or
qualification with any governmental body or agency is
required for the performance by the Company of its
obligations under the Purchase Agreement, except such as
have been obtained under the Securities Act and the Exchange
Act and except such as may be required by the securities or
Blue Sky laws of the various states or other jurisdictions
in connection with the offer and sale of the Shares;
(vii) the statements in the Prospectus under the
caption "Description of Holdings Capital Stock", insofar as
such statements constitute summaries of the legal matters or
documents referred to therein are accurate in all material
respects;
(viii) after due inquiry, such counsel does not know of
any legal or governmental proceeding pending or threatened
to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of
its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus and is not
so described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not
described or filed as required;
-2-
<PAGE>
(ix) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and
Prospectus (except for financial statements and schedules
and financial and statistical data included therein as to
which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission
thereunder, (2) has no reason to believe that (except for
financial statements and schedules and financial and
statistical data as to which such counsel need not express
any belief) the Registration Statement, on the date it
became effective contained any untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (except as
aforesaid), contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein in the light of the circumstances
under which they were made, not misleading, and (3) is of
the opinion that the Registration Statement and Prospectus
(except for financial statements and schedules included
therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of
the Commission thereunder.
In rendering such opinion, such counsel may rely as to
certain matters of fact on certificates of officers of the
Company and of public officials and with respect to matters
of New Jersey law, on a member of the Company's legal staff
admitted to practice in the State of New Jersey and may
state that such counsel expresses no opinion as to the laws
of any jurisdiction other than the State of New York, the
federal law of the United States and the Delaware General
Corporation Law.
The opinion of counsel for the Company (other than an
opinion of an officer of the Company) shall be rendered to
you at the request of the Company and shall so state
therein.
With respect to paragraph (ix) above, counsel for the
Company may state that such counsel's opinion and belief are
based upon such counsel's participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but
are without independent check or verification, except as
specified.
-3-
<PAGE>
Exhibit B
Opinion of
Counsel for the Selling Stockholder
The opinion of counsel for the Selling Stockholder, to
be delivered pursuant to Section 5(e) of the Purchase
Agreement, shall be to the effect that:
(i) the Selling Stockholder has been duly
incorporated, is validly existing as a corporation in
good standing under the laws of the State of New
Jersey, has the corporate power and authority to own
its property and to conduct its business and is duly
qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its
business or its ownership or leasing of property
requires such qualification, except to the extent that
the failure to be so qualified or be in good standing
would not have a material adverse effect on the
financial condition or results of operations of the
Selling Stockholder and its subsidiaries, taken as a
whole;
(ii) the Purchase Agreement has been duly
authorized, executed and delivered by the Selling
Stockholder;
(iii) the execution and delivery by the Selling
Stockholder of, and the performance by the Selling
Stockholder of its obligations under, the Purchase
Agreement will not contravene any provision of
applicable law or the certificate of incorporation or
by-laws of the Selling Stockholder or any agreement or
other instrument listed or referred to in Items 4 and
10 of the exhibits to the Selling Stockholder's Annual
Report on Form 10-K for the fiscal year ended December
31, 1993 or, to the best of such counsel's knowledge,
any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Selling
Stockholder or any subsidiary, except for
contraventions that would not have a material adverse
effect on the financial condition or results of
operations of the Selling Stockholder and its
subsidiaries taken as a whole, and no consent,
approval, authorization or order of or qualification
with any governmental body or agency is required for
the performance by the Selling Stockholder of its
obligations under the Purchase Agreement, except such
as have been obtained and except such as may be
required by the securities or Blue Sky laws of the
various states or other jurisdictions in connection
with the offer and sale of the Shares.
<PAGE>
(iv) Immediately prior to the delivery of the
certificates for the Shares at the Closing Date, the
Selling Stockholder was the sole registered owner of
the Shares and the Selling Stockholder had full power,
right and authority to sell the shares; assuming the
Underwriters purchase the Shares in good faith and
without notice of any adverse claim, upon delivery by
the Selling Stockholder to the Underwriters of
certificates for the Shares against payment therefor as
provided in the Purchase Agreement, the Underwriters
will acquire all of the rights of the Selling
Stockholder in the Shares free of any adverse claim.
In rendering such opinion, such counsel may rely as to
certain matters of fact on certificates of officers of the
Selling Stockholder and of public officials and with respect
to matters of New Jersey law, on a member of the Selling
Stockholder's legal staff or on such other counsel as it
believes to be reliable as to such matters and may state
that such counsel expresses no opinion as to the laws of
any jurisdiction other than the State of New York and the
federal law of the United States.
The opinion of counsel for the Selling Stockholder
(other than an opinion of an officer of the Selling
Stockholder) shall be rendered to you at the request of the
Selling Stockholder and shall so state therein.
-2-
<PAGE>
Exhibit C
Opinion of
Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be
delivered pursuant to Section 5(f) of the Purchase Agreement,
shall be to the effect that:
(i) the Purchase Agreement has been duly authorized,
executed and delivered by the Company;
(ii) the Shares have been duly authorized and are
validly issued, fully paid and nonassessable;
(iii) the statements in the Prospectus under the
caption "Description of Holdings Capital Stock", insofar as
such statements constitute summaries of the legal matters or
documents referred to therein, are accurate in all material
respects; and
(iv) such counsel (1) has no reason to believe that
(except for financial statements and schedules as to which
such counsel need not express any belief) each part of the
Registration Statement, when such part became effective
contained, and as of the date such opinion is delivered,
contains any untrue statement of a material fact or, when
such part became effective, omitted or, as of the date such
opinion is delivered, omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, (2) is of the opinion
that the Registration Statement and Prospectus (except for
financial statements and schedules and financial and
statistical data included therein as to which such counsel
need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (3)
has no reason to believe that (except for financial
statements and schedules and financial and statistical data
as to which such counsel need not express any belief) the
Prospectus as of the date such opinion is delivered contains
any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
With respect to clause (iv) above, such counsel may
state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement
and the Prospectus and any amendments or supplements thereto
(other than the documents incorporated by reference) and upon
review and discussion of the contents thereof (including
documents incorporated by reference) but are without independent
check or verification, except as specified.
<PAGE>
PURCHASE AGREEMENT
____________, 1995
RJR NABISCO HOLDINGS CORP.
1301 Avenue of the Americas
New York, New York 10019
BORDEN, INC.
180 East Broad Street
Columbus, Ohio 43215
Dear Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below
(such underwriter or underwriters being herein called the
"Underwriters"), and we understand that BORDEN, INC., a New
Jersey corporation (the "Selling Stockholder"), proposes to sell
______ shares of Common Stock (par value $.01 per share) of RJR
NABISCO HOLDINGS CORP. (the "Shares").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Selling Stockholder hereby
agrees to sell and the Underwriters agree to purchase, severally
and not jointly, the respective number of Shares set forth below
opposite their names at a purchase price of $_____ per share.
Name Number of Shares
---- ----------------
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<PAGE>
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The Underwriters will pay for the Shares upon delivery thereof at
the offices of
---------------------------------------------------
at __:00 a.m. (New York time) on
------------------------
__________, 1995, or at such other time, not later than
__:00 p.m. (New York time) on ___________, 1995, as shall be
agreed upon in writing by the Manager and the Selling
Stockholder. The time and date of such payment and delivery are
hereinafter referred to as the Closing Date.
The Shares have the terms set forth in the Prospectus
dated _________, 1995, and the Prospectus Supplement dated
__________, 1995, including the following:
All provisions contained in the document entitled
RJR NABISCO HOLDINGS CORP./BORDEN, INC. Purchase
Agreement Standard Provisions (Common Stock) dated
_________, 1995, a copy of which is attached hereto,
are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Agreement to
-2-
<PAGE>
the same extent as if such provisions had been set forth in
full herein.
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth
below.
Very truly yours,
[MANAGING UNDERWRITERS]
Acting severally on behalf of themselves and
the several Underwriters named herein
By: [Managing Underwriters]
By: ____________________________
Name:
Title:
Accepted:
BORDEN, INC.
By: ______________________________
Name:
Title:
RJR NABISCO HOLDINGS CORP.
By: ______________________________
Name:
Title:
-3-
EXHIBIT 5.1
February 2, 1995
RJR Nabisco Holdings Corp.
1301 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
I have acted as counsel for RJR Nabisco Holdings Corp.,
a Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-3 of the Company, filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"),
relating to the registration of up to 70,000,000 shares of the
Company's Common Stock, par value $.01 per share (the "Shares")
to be sold from time to time, by Borden, Inc. (the "Selling
Stockholder").
I have examined the Registration Statement and the
exhibits thereto and the Amended and Restated Certificate of
Incorporation of the Company, as further amended. I have also
examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, evidences of corporate
action and other instruments and have made such other
investigations of law and fact as I have deemed necessary or
appropriate for the purposes of this opinion. As to questions of
fact relevant to this opinion, I have relied upon certificates or
written statements from officers and other appropriate
representatives of the Company and its subsidiaries or public
officials. In all such examinations I have assumed the
<PAGE>
RJR Nabisco Holdings
Corp. -2- February 2, 1995
genuineness of all signatures, the authority to sign, and the
authenticity of all documents submitted to me as originals. I
have also assumed the conformity with originals of all documents
submitted to me as copies.
Based upon and subject to the foregoing, and to the
qualifications hereinafter specified, I am of the opinion that
the Shares to be sold by the Selling Stockholder have been duly
authorized and are validly issued, fully paid and nonassessable.
The opinion set forth herein relates solely to the
General Corporation Law of the State of Delaware.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of my name
under the heading "Legal Matters" in the Prospectus forming a
part of the Registration Statement.
Very truly yours,
/s/ Jo-Ann Ford
Jo-Ann Ford
Vice President and
Assistant General Counsel
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of RJR Nabisco Holdings Corp. ("Holdings")
on Form S-3 (the "Registration Statement") of (1) our report
dated February 1, 1994 (except with respect to the subsequent
events discussed in Note 17, as to which the date is April 13,
1994), included in Holdings' Registration Statement No. 33-52381
on Form S-3 ("Form S-3"), at the time such Form S-3 was declared
effective by the Commission and (2) our report dated February 1,
1994 (except with respect to the subsequent event discussed in
Note 17, as to which the date is February 24, 1994), appearing in
the Annual Report on Form 10-K of Holdings for the year ended
December 31, 1993.
We also consent to the reference to us under the headings
"Summary Historical Consolidated Financial Data" and "Experts" in
the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
January 31, 1995
Exhibit 24.1
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each of the
undersigned, being a director or officer, or both, of RJR NABISCO
HOLDINGS CORP., a Delaware corporation (the "Company"), do hereby
make, constitute and appoint Jo-Ann Ford, Joan E. Gmora and
Lawrence R. Ricciardi, and each of them, attorneys-in-fact and
agents of the undersigned with full power and authority of
substitution and resubstitution, in any and all capacities, to
execute for and on behalf of the undersigned the Registration
Statement on Form S-3 relating to the registration and offering
of shares of common stock of the Company by Borden, Inc., and any
and all pre-effective and post-effective amendments or
supplements to the foregoing Registration Statement and any other
documents and instruments incidental thereto, and to deliver and
file the same, with all exhibits thereto, and all documents and
instruments in connection therewith, with Securities and Exchange
Commission, and with each exchange on which any class of
securities of the Company is registered, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing that
said attorneys-in-fact and agents, and each of them, deem
advisable or necessary to enable the Company to effectuate the
intents and purposes hereof, and the undersigned hereby fully
ratify and confirm all that said attorneys-in-fact and agents, or
any of them, or their or his or her substitute or substitutes,
shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed
his or her name, this 2nd day of February, 1995.
/s/ Charles M. Harper Chairman of the Board and Chief
----------------------
Charles M. Harper Executive Officer, Director
/s/ Stephen R. Wilson Executive Vice President and Chief
----------------------
Stephen R. Wilson Financial Officer
/s/ Robert S. Roath Senior Vice Present and Controller
----------------------
Robert S. Roath
Director
----------------------
John T. Chain, Jr.
<PAGE>
2
/s/ Julius L. Chambers Director
----------------------
Julius L. Chambers
/s/ John L. Clendenin Director
----------------------
John L. Clendenin
Director
----------------------
James H. Greene, Jr.
/s/ H. John Greeniaus Director
----------------------
H. John Greeniaus
Director
----------------------
James W. Johnston
/s/ Henry R. Kravis Director
----------------------
Henry R. Kravis
/s/ John G. Medlin, Jr. Director
-----------------------
John G. Medlin, Jr.
Director
------------------------
Paul E. Raether
/s/Lawrence R. Ricciardi Director
------------------------
Lawrence R. Ricciardi
Director
-----------------------
Rozanne L. Ridgway
/s/ Clifton S. Robbins Director
-----------------------
Clifton S. Robbins
/s/ George R. Roberts Director
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George R. Roberts
/s/ Scott M. Stuart Director
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Scott M. Stuart
/s/ Michael T. Tokarz Director
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Michael T. Tokarz
