Contract
Exhibit 10.2
EXECUTION COPY
EXECUTION COPY
AMENDMENT No. 2, dated as of April 29, 2008, (this “Amendment”)
to the GOVERNANCE AGREEMENT, dated as of July 30, 2004 (the
“Agreement”), among BRITISH AMERICAN TOBACCO p.l.c., a public
limited company incorporated under the laws of England and Wales
(“BAT”), XXXXX & XXXXXXXXXX HOLDINGS, INC. (f/k/a Xxxxx & Xxxxxxxxxx
Tobacco Corporation), a Delaware corporation (“B&W”), and XXXXXXXX
AMERICAN INC., a North Carolina corporation (“Xxxxxxxx American”).
WHEREAS, the Board of Directors of Xxxxxxxx American has authorized a share repurchase program
(the “Share Repurchase Program”) for the purchase of outstanding shares of common stock of
Xxxxxxxx American, par value $0.0001 per share, pursuant to which Xxxxxxxx American may spend up to
$350,000,000 over one year to repurchase shares;
WHEREAS, B&W and Xxxxxxxx American have entered into a share repurchase agreement dated as of
April 29, 2008 pursuant to which B&W shall participate in the Share Repurchase Program subject to
the terms and conditions set forth therein;
WHEREAS, the parties desire to enter into this Amendment in order to amend Sections 1.01, 4.01
and 4.03(a) of the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to the Agreement.
(a) Section 4.01 of the Agreement is hereby amended by replacing such 4.01 in its entirety
with the following new Section 4.01:
“Purchases of Equity Securities. Except for the acquisition of shares of Common Stock
pursuant to the Combination Agreement or pursuant to or as contemplated by the Share Repurchase
Agreement and subject to the exceptions set forth in Section 4.03, during the Standstill Period,
the Investor Parties shall not, directly or indirectly, acquire, agree to acquire or make a
proposal to acquire beneficial ownership of any shares of Equity Securities. Equity Securities
acquired pursuant to this Article IV shall be subject to all of the terms, covenants and conditions
of this Agreement.”
(b) Section 4.03(a) of the Agreement is hereby amended by replacing such Section 4.03(a) in
its entirety with the following new Section 4.03(a):
“(a) during the Standstill Period, the Investor Parties may acquire beneficial
ownership of additional Equity Securities if, after giving effect to any such acquisition
(other than any acquisition pursuant to or as contemplated by the
Share Repurchase
Agreement), B&W’s Percentage Interest would not exceed the Standstill Percentage
less the percentage of Voting Power (calculated as of the date of disposition)
associated with any Equity Securities disposed of by any Investor Party (other than to
another Investor Party or to Xxxxxxxx American pursuant to the Share Repurchase Agreement)
following the date of this Agreement;
(c) Section 1.01 of the Agreement is hereby amended by inserting the following
definitions in the appropriate alphabetical order:
“Share Repurchase Program” means the share repurchase program for the repurchase of
outstanding shares of common stock of Xxxxxxxx American, par value $0.0001 per share, pursuant to
which Xxxxxxxx American may spend up to $350,000,000 over one year to repurchase shares;
“Share Repurchase Agreement” means the Share Repurchase Agreement, dated as of April 29, 2008,
between B&W and Xxxxxxxx American, pursuant to which B&W shall participate in the Share Repurchase
Program subject to the terms and conditions set forth therein, and any other agreement entered
into by B&W and Xxxxxxxx American which by its terms provides that it shall constitute a “Share
Repurchase Agreement” within the meaning of this Agreement;
SECTION 2. Amendment Part of the Agreement. This Amendment shall be considered to be
a part of the Agreement and shall be subject to the provisions thereof, including Article VI
thereof (but excluding Section 6.10 thereof). Except as expressly set forth herein, the Agreement
shall continue in full force and effect without waiver, modification or amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties hereto as of the date
first above written.
| BRITISH AMERICAN TOBACCO P.L.C., | ||||||
| by | ||||||
| /s/ Xxxxxx Xxxxx | ||||||
| Title: Company Secretary | ||||||
| XXXXX & XXXXXXXXXX HOLDINGS, INC., | ||||||
| By | ||||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||||
| Title: President | ||||||
| XXXXXXXX AMERICAN INC., | ||||||
| by | ||||||
| /s/ Xxxxxx X. Xxxxxx | ||||||
| Title: Senior Vice President and Treasurer | ||||||
[Signature Page to the Amendment No. 2 to the Governance Agreement]
