Exhibit 2.2
AMENDMENT No. 1, dated as of January 9, 2004 (this
"Amendment"), to the BUSINESS COMBINATION AGREEMENT, dated as
of October 27, 2003 (the "Agreement"), between XXXXX &
XXXXXXXXXX TOBACCO CORPORATION, a Delaware corporation, and
X.X. XXXXXXXX TOBACCO HOLDINGS, INC., a Delaware corporation,
with XXXXXXXX AMERICAN INC., a North Carolina corporation,
becoming a party to such agreement pursuant to a JOINDER
AGREEMENT, dated as of January 9, 2004.
WHEREAS the parties hereto have previously entered into the Agreement
and, subject to the terms and conditions set forth in the Agreement, have agreed
to engage in the Transactions (such term and each other capitalized term used,
but not defined, in this Amendment having the meaning assigned to such term in
the Agreement); and
WHEREAS the parties hereto desire to make certain amendments to the
Agreement and the exhibits and schedules thereto.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the Agreement. The Agreement is hereby amended
as follows:
(a) Each reference to the par value of Xxxxxxxx American Common Stock
in the Agreement and any exhibit or schedule thereto is hereby amended to read
"$0.0001" in lieu of "$0.01".
(b) The third WHEREAS clause is hereby amended by replacing the number
"50" with the number "65,000,000".
(c) Section 1.01(a) is hereby amended by replacing the amount "$10" and
the number "50" appearing in the penultimate line thereof with the amount
"$6,500" and the number "65,000,000", respectively.
(d) Section 1.03(a) is hereby amended by replacing the first sentence
thereof with the following three sentences:
On the Closing Date, immediately following the Asset Contribution and
the Assumption of Liabilities and simultaneously with the occurrence of
the Effective Time, B&W shall contribute, transfer and deliver to
Xxxxxxxx American the B&W Opco Common Stock in exchange for that number
(rounded up to the nearest whole share) of fully paid and nonassessable
shares of Xxxxxxxx American Common Stock equal to (x) the product of
(i) 0.724138 (i.e., 42% divided by 58%) and (ii) the RJR Share
Calculation less (y) 65,000,000. If the number calculated in the
preceding sentence is negative, such excess number of shares (the "B&W
Excess Share Calculation") owned by B&W shall be canceled as set forth
in Section 2.01(d). The Xxxxxxxx American Common Stock received by B&W
pursuant to Section 1.01(a) and this Section 1.03(a), less any Xxxxxxxx
American Common Stock canceled pursuant to Section 2.01(d), if
applicable, is referred to as the "Xxxxxxxx American Stock
Consideration".
(e) Section 2.01 of the Agreement is hereby amended by inserting the
following new paragraph at the end thereof:
(d) Cancelation of B&W Excess Shares. If the B&W Excess Share
Calculation is greater than zero, (i) the number of shares of Xxxxxxxx
American Common Stock (owned by B&W) that is equal to the B&W Excess
Share Calculation shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and
(ii) notwithstanding anything in Section 1.03(b) to the contrary, no
consideration shall be delivered or deliverable to B&W pursuant to
Section 1.03(a) in connection with the B&W Opco Stock Contribution.
(f) Section 6.05(c) is hereby amended by replacing such Section 6.05(c)
in its entirety with the following new Section 6.05(c):
(c) Xxxxxxxx American agrees that (i) for all purposes
(including eligibility, vesting and benefit accrual) under the employee
benefit plans of Xxxxxxxx American and its subsidiaries providing
benefits to any Affected B&W Employees after the B&W Opco Stock
Contribution, each Affected B&W Employee shall be credited with his or
her years of service
with B&W and the B&W Subsidiaries (and any predecessor entities
thereof) before the B&W Opco Stock Contribution, to the same extent as
such Affected B&W Employee was entitled, before the B&W Opco Stock
Contribution, to credit for such service under any similar B&W Benefit
Plan and (ii) any early retirement subsidies, eligibilities and
features under any B&W Benefit Plan which cover Affected B&W Employees
as of the Closing Date shall remain available to each such employee who
is eligible for such right at the Closing Date (or who would be
eligible at the Closing Date if his or her age and/or eligible service
as of the Closing Date was combined with his or her additional age and
active service with Xxxxxxxx American and its subsidiaries following
the Closing Date), in each case, except for purposes of benefit accrual
under defined benefit pension plans to the extent such credit would
result in a duplication of accrued benefits in respect of the same
period of service; provided, however, that the immediately preceding
clause (ii) shall not apply to any welfare benefit plan of B&W or any
B&W Subsidiary providing retiree health benefits to Affected B&W
Employees (including, but not limited to, the Xxxxx & Xxxxxxxxxx Health
Care Plan for Salaried Employees) other than as required in respect of
certain Affected B&W Employees pursuant to Section 6.05(b) or as
otherwise required by the terms of such plan. Following the B&W Opco
Stock Contribution, Xxxxxxxx American shall, or shall cause its
subsidiaries to, (A) waive any pre-existing conditions, exclusions,
actively-at-work requirements and waiting periods under any welfare
benefit plan maintained by Xxxxxxxx American or any of its subsidiaries
in which Affected B&W Employees and their eligible dependents
participate (except to the extent that such pre-existing conditions,
exclusions, actively-at-work requirements and waiting periods would
have been applicable under the comparable B&W welfare benefit plans
immediately prior to the B&W Opco Stock Contribution), and (B) provide
each Affected B&W Employee with credit for any co-payments and
deductibles incurred prior to the B&W Opco Stock Contribution (or such
later transition date to new welfare benefits plans) for the calendar
year in which the B&W Opco Stock Contribution (or such later transition
date) occurs, in satisfying any applicable deductible or out-of-pocket
requirements under any
welfare plans that the Affected B&W Employees participate in after the
B&W Opco Stock Contribution. Nothing in this Section 6.05(c) shall
prohibit Xxxxxxxx American and its subsidiaries from amending,
modifying or terminating any employee benefit plan pursuant to, and in
accordance with, any reserved right, express or implied, to do so,
provided that Xxxxxxxx American otherwise complies with its obligations
under this Section 6.05(c) and the other provisions of Article VI.
SECTION 2. Amendments to the Noncompete Agreement. Exhibit E to the
Agreement is hereby amended as follows:
(a) Section 2(c)(i) is hereby amended by inserting the text "(provided
that any such noncompliance is not the result of acts taken by BAT or any of its
Controlled Affiliates)" after the word "jurisdiction" therein.
(b) Section 3(c)(i) is hereby amended by inserting the text "(provided
that any such noncompliance is not the result of acts taken by Xxxxxxxx American
or any of its Controlled Affiliates)" after the word "jurisdiction" therein.
SECTION 3. Amendments to the Governance Agreement. Exhibit F to the
Agreement is hereby amended as follows:
(a) Section 1.01 is hereby amended by replacing the definition of the
term "Independent Director" in its entirety with the following definition:
"Independent Director" means a Director of Xxxxxxxx American
who qualifies as an "independent director" of Xxxxxxxx American under
(a) (i) NYSE Rule 303A(2), as such rule may be amended, supplemented or
replaced from time to time, or (ii) if Xxxxxxxx American is not listed
on the NYSE, any comparable rule or regulation of the primary
securities exchange or quotation system on which the Common Stock is
listed or quoted (whether by final rule or otherwise) and (b) any other
applicable law, rule or regulation mandating, or imposing as a
condition to any material benefit to Xxxxxxxx American or any of its
Subsidiaries, the independence of one or
more members of the Board of Directors, excluding, in each case,
requirements that relate to "independence" only for members of a
particular Board committee or directors fulfilling a particular
function. In addition, in order for a Director to be deemed to be an
"Independent Director", (A) such Director shall not be, or at any time
during the previous three years have been, a director, officer or
employee of BAT or any of its subsidiaries (other than Xxxxxxxx
American and its subsidiaries, if applicable) and (B) assuming for this
purpose that such Director were a director of BAT (whether or not such
Director actually is or has been a director of BAT), such Director
would be considered to be an "independent director" of BAT under NYSE
Rule 303A(2), as such rule may be amended, supplemented or replaced
from time to time (provided that, with respect to this clause (B), (x)
BAT shall be deemed to be a NYSE listed company, (y) any permitted
delays for compliance or exceptions for foreign issuers under the NYSE
rules shall be inapplicable and (z) the fact that such Director is
serving as a Director of Xxxxxxxx American shall be disregarded). The
fact that a Person has been designated by B&W for nomination as an
Investor Director pursuant to this Agreement will not, by itself,
disqualify that person as an Independent Director if that person
otherwise meets the criteria of an Independent Director.
(b) Section 2.02(b) is hereby amended by replacing the proviso to the
last sentence thereof in its entirety with the following proviso:
provided, however, that in the event the approval of B&W shall be
required with respect to such matter pursuant to Section 2.04(b) or
2.04(c) and such approval shall have been given, the Investor Parties
shall vote to approve such matter at any meeting of shareholders held
in connection therewith.
(c) Section 2.02(c) is hereby amended by inserting the text "or
pursuant to the proviso to the first sentence of Section 2.02(b)" after the
parenthetical in the last sentence thereof.
(d) Section 2.08 is hereby amended by replacing such Section 2.08 in
its entirety with the following new Section 2.08:
SECTION 2.08. Fiduciary Duties. Nothing in Section 2.01, 2.02,
2.03 or 2.06 shall be deemed to require the Board of Directors or any
committee or member thereof to take any action or refrain from taking
any action, or result in a breach of Sections 2.01, 2.02, 2.03 or 2.06
by reason of the failure to take such action or the failure to refrain
from taking such action, as the case may be, if the Board of Directors,
such committee or Director determines in good faith (after
consideration of specific written advice of outside legal counsel,
which advice will be provided to B&W) that taking such action or
refraining from taking such action, as the case may be, would cause a
violation of his or her fiduciary duties to shareholders, including B&W
and its affiliates, under applicable law. This Section 2.08 shall not
be interpreted to create any fiduciary obligation that would not exist
in the absence of this Section 2.08.
(e) Section 4.02(b) is hereby amended by inserting the text ", except
to the extent required by applicable law, rule, regulation or order (including
any applicable rule, regulation or order of a self-governing authority, such as
the New York Stock Exchange, the UK Listing Authority and the UK Panel on
Takeovers and Mergers)" prior to the semicolon at the end thereof.
(f) Section 6.12(b)(i) is hereby amended by inserting the text
"(including any applicable rule, regulation or order of a self-governing
authority, such as the New York Stock Exchange, the UK Listing Authority and the
UK Panel on Takeovers and Mergers)" after the word "authority" appearing on the
sixth line thereof.
SECTION 4. Organizational Documents of Xxxxxxxx American. The initial
Articles of Incorporation any By-laws of Xxxxxxxx American shall be in the forms
of Exhibits A-1 and A-2 to this Amendment, respectively. The Articles of
Incorporation and By-laws of Xxxxxxxx American shall be amended and restated
prior to Closing to be in the forms of Exhibits B-1 and B-2 to this Amendment,
respectively.
SECTION 5. 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 IX thereof. Except as expressly set
forth herein, the Agreement shall continue in full force and effect without
waiver, modification or amendment.
[THE REMAINDER OF THIS PAGE IS BLANK]
IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto all as of the date first above written.
XXXXX & XXXXXXXXXX TOBACCO CORPORATION,
by
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Vice President,
Secretary and
General Counsel
X.X. XXXXXXXX TOBACCO HOLDINGS, INC.,
by
/s/ XxXxxx X. Xxxxx, III
---------------------------------
Name: XxXxxx X. Xxxxx, III
Title:Vice President,
Deputy General
Counsel and Secretary
XXXXXXXX AMERICAN INC.,
by
/s/ XxXxxx X. Xxxxx, III
---------------------------------
Name: XxXxxx X. Xxxxx, III
Title:Vice President,
Deputy General
Counsel and Secretary
