Contract
Exhibit 4.22
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (“INSTITUTIONAL ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ONE OF ITS SUBSIDIARIES, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE),
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (F) OUTSIDE
THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IS A PURCHASER WHO IS NOT A U.S.
PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER
OF THIS NOTE PURSUANT TO CLAUSE 2(E) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION PROVIDED BY RULE 144(k) UNDER THE
SECURITIES ACT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[FACE OF U.S. GLOBAL NOTE]
RJR NABISCO, INC.
77/8% Note due 2009
[CUSIP] [CINS] [ISIN] [ ]
| No. | $200,000,000 |
RJR NABISCO, INC., a Delaware corporation (the “Company”, which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to pay to or
its registered assigns, the principal sum of $200,000,000 on May 15, 2009.
Interest Payment Dates: May 15 and November 15, commencing November 15, 1999.
Record Dates: May 1 and November 1.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.
Date: May 18, 1999
| RJR NABISCO, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
(Trustee’s Certificate of Authentication)
This is one of the 77/8% Notes due 2009 described in the within-mentioned Indenture.
Dated: May 18, 0000
| XXX XXXX XX XXX XXXX, as Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
3
[REVERSE SIDE OF U.S. GLOBAL NOTE]
RJR NABISCO, INC.
77/8% Note due 2009
| 1. | Principal and Interest |
The Company will pay the principal of this Note on May 15, 2009.
The Company promises to pay interest on the principal amount of this Note on each Interest
Payment Date, as set forth below, at the rate per annum shown above.
Interest will be payable semiannually (to the holders of record of the Notes at the close of
business on the May 1 or November 1 immediately preceding the Interest Payment Date) on each
Interest Payment Date, commencing November 15, 1999. Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from May 18,
1999, provided that, if there is no existing default in the payment of interest and this Note is
authenticated between a Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest
on overdue installments of interest and Additional Interest, if any (without regard to applicable
grace periods), from time to time on demand at the same rate to the extent lawful.
The Holder of this Note is entitled to the benefits of the Registration Rights Agreement dated
May 18, 1999 among the Company, RJRT, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce,
Xxxxxx and Xxxxx Incorporated.
| 2. | Method of Payment |
The Company will pay interest on the principal amount of the Notes as provided above on each
May 15 and November 15, commencing November 15, 1999 to the persons who are Holders (as reflected
in the Note Register at the close of business on the May 1 or November 1 immediately preceding the
Interest Payment Date), in each case, even if the Note is canceled on registration of transfer or
registration of exchange after such record date.
The Company will pay principal, premium, if any, and as provided above, interest in money of
the United States that at the time of payment is legal tender for payment of public and private
debts. However, the Company may pay principal, premium, if any, and interest by its check payable
in such money. It may mail an interest check to a Holder’s registered address (as reflected in the
Note Register). If a payment date is a date other than a Business Day at a place
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of payment, payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
| 3. | Paying Agent and Registrar. |
Initially, the Trustee will act as authenticating agent, Paying Agent and the Registrar. The
Company may change any authenticating agent, Paying Agent, Registrar or Transfer Agent without
notice. The Company, any Subsidiary or any Affiliate of any of them may act as a Paying Agent,
Registrar or Transfer Agent.
| 4. | Indenture; Limitations. |
The Company issued the Notes under an Indenture dated as of May 15, 1999 (the “Indenture”),
among the Company, RJRT and The Bank of New York, as trustee (the
“Trustee”). Capitalized terms herein are used as defined in the Indenture unless otherwise
indicated. The terms of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted
by applicable law, in the event of any inconsistency between the terms of this Note and the terms
of the Indenture, the terms of the Indenture shall control. The Notes are general unsecured
obligations of the Company.
| 5. | Optional Redemption. |
The Notes are redeemable, in whole or in part, at any time or from time to time,
at the option of the Company, at a redemption price equal to the greater of (i) 100% of the
principal amount of such Notes and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest, discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 37.5 basis
points, plus accrued interest thereon to the date of redemption.
Except as set forth above, the Notes will not be redeemable by the Company prior to maturity
and will not be entitled to the benefit of any sinking fund.
| 6. | Notice of Redemption |
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
redemption date by first-class mail to each Holder of Notes to be redeemed at his registered
address. Notes in denominations of principal amounts larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued
and unpaid interest on all Notes (or portions thereof) to be redeemed on the redemption date is
deposited with the Payment Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
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| 7. | Denominations; Transfer; Exchange. |
The Notes are in registered form without coupons in denominations of $1,000 of principal
amount and multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange
of Notes in accordance with the Indenture. The Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required
by law or permitted by the Indenture. The Registrar need not register the transfer or exchange of
any Notes selected for redemption. Also, it need not register the transfer or exchange of any
Notes for a period of 15 days before the day of mailing of a notice of redemption of Notes selected
for redemption.
| 8. | Persons Deemed Owners. |
A Holder shall be treated as the owner of a Note for all purposes.
| 9. | Unclaimed Money. |
If money for the payment of principal, premium, if any, or interest remains unclaimed for two
years, the Trustee and the Paying Agent shall pay the money back to the Company at its request
unless an abandoned property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Company or the Guarantors and not to the Trustee for
payment.
| 10. | Amendment; Supplement; Waiver. |
Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the Notes then
outstanding, and any existing default or compliance with any provision may be waived with the
consent of the Holders of at: least a majority in principal amount of the Notes then outstanding.
Without notice to or the consent of any Holder, the parties thereto may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make
any change that does not materially and adversely affect the rights of any Holder.
| 11. | Restrictive Covenants. |
The Indenture imposes certain limitations on the ability of each of the Company and its
Restricted Subsidiaries, among other things, to enter into certain Sale and Leaseback transactions,
mortgage or pledge certain assets or merge, consolidate or transfer substantially all of its
assets. Within 45 days after the end of each fiscal quarter (120 days after the end of the last
fiscal quarter of each year), the Company shall deliver to the Trustee an Officers’ Certificate
stating whether or not the signers thereof know of any Default or Event of Default under such
restrictive covenants.
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| 12. | Successor Persons. |
When a successor person or other entity assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor person will be released from those obligations.
| 13. | Defaults and Remedies. |
Any of the following events constitutes an “Event of Default” under the Indenture:
(a) default in the payment of any installment of interest upon any of the Notes as and when the
same shall become due and payable, and continuance of such default for a period of 30 days; or (b)
default in the payment of all or any part of the principal on any of the Notes as and when the same
shall become due and payable either at maturity, upon any redemption, by declaration or otherwise;
or (c) default in the payment of any sinking fund installment as and when the same shall become due
and payable by the terms of the Notes; or (d) default in the performance, or breach, of any
covenant or agreement of the Company or the Guarantors in respect of the Notes (other than a
covenant or agreement in respect of the Notes a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount
of the outstanding Notes affected thereby, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or (e)
a court having jurisdiction in the premises shall enter a decree or order for relief in respect of
the Company or the Guarantors in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the Company or for any
substantial part of its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (f) the
Company or any Restricted Subsidiary shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of
an order for relief in an involuntary case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or (g) any Guarantee ceases to be in full force and effect
(except as contemplated by the terms hereof), or any Guarantee is declared in a judicial proceeding
to be null and void, or any Guarantor denies or disaffirms in writing its obligations under the
terms of the Indenture or its Guarantee; or (h) any other Event of Default provided in the
supplemental indenture or Board Resolution under which the Notes are issued or in this Note.
If an Event of Default described in clauses (a), (b), (c), (d) or (h) above (if the Event of
Default under clause (d) or (h) is with respect to less than all series of Notes then outstanding)
occurs and is continuing, then, and in each and every such case, except for any series of Notes
the principal of which shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Notes of each such affected series then
outstanding hereunder (voting as a single class) by notice in writing to the Company (and to the
7
Trustee if given by Noteholders), may declare the entire principal of all Notes of all such
affected series, and the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable. If an Event of
Default described in clause (d) or (h) (if the Event of Default under clauses (d) or (h), as the
case may be, is with respect to all series of Notes then outstanding), (e), (f) or (g) occurs and
is continuing, then and in each and every such case, unless the principal of all the Notes shall
have already become due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Notes then outstanding hereunder (treated as one class), by
notice in writing to the Company (and to the Trustee if given by Noteholders), may declare the
entire principal of all the Notes then outstanding and interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become immediately due and
payable.
| 14. | Trustee Dealings with the Company. |
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its affiliates with the same rights it would have if it were not Trustee.
| 15. | No Recourse Against Others. |
An incorporator, director, officer, employee, stockholder or controlling person, as such, of
each of the Company or any Guarantor shall not have any liability for any obligations of the
Company under the Notes, the Indenture or any Guarantees or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Note, each Noteholder waives
and releases all such liability. The waiver and release are part of the consideration for the
issue of the Notes. Such a waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against public policy.
| 16. | Authentications. |
This Note shall not be valid until the Trustee or authenticating agent signs the certificate
of authentication on the other side of this Note.
| 17. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to
Minors Act).
| 18. | Guarantees. |
This Note will be entitled to the benefit of certain Guarantees made for the benefit of the
Holders. Reference is made to the Indenture for a statement of the respective
8
rights, limitations of rights, duties and obligations thereunder of the Guarantors, the
Trustee and the Holders.
| 19. | Definitions. |
Terms not otherwise defined in this Note shall have the meanings given to such terms in the
Indenture.
| 20. | Governing Law. |
This Note shall be governed by and construed in accordance with the laws of the State of New
York.
The Company will furnish a copy of the Indenture to any Holder upon written request and
without charge. Requests may be made to:
RJR Nabisco, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto
Insert Taxpayer Identification No.
In connection with any transfer of this Note occurring prior to the date which is the earlier
of(i) the date the (a) Exchange Offer Registration Statement or (b) Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k) under the Securities
Act, the undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
| o(a) | this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933 provided by Ride l44A thereunder. |
or
| o(b) | this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture. |
If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to
register this Note in the name of any Person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Article II of the Indenture
shall have been satisfied.
Date:
|
Signature Guarantee:
10
Signature must be guaranteed by a participant in a recognized signature guaranty medallion program
or other signature guarantor acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account
or an account with respect to which it exercises sole investment discretion and that it and any
such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
Date:
|
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GUARANTEE
X.X. Xxxxxxxx Tobacco Company (hereinafter referred to as the “Guarantor”), which term
includes any successor or assign under the Indenture, dated as of May 15, 1999, among RJR Nabisco,
Inc., a Delaware corporation or any assignee or successor thereto (the “Obligor”), the Guarantor
and The Bank of New York, as trustee (the “Indenture”), hereby irrevocably and unconditionally
guarantees that: (i) the principal of, premium, if any, and interest, including Additional
Interest, on the Note upon which this Guarantee is endorsed will be duly and punctually paid in
full when due, whether at maturity, by acceleration, by redemption, by repurchase or otherwise, and
interest on overdue principal and (to the extent permitted by law) interest on any interest on the
Note upon which this Guarantee is endorsed and all other monetary obligations of the Obligor to the
Holders or the Trustee hereunder or under the Note upon which this Guarantee is endorsed (including
fees and expenses) will be promptly paid in full, all in accordance with the terms hereof and (ii)
in case of any extension of time of payment or renewal of the Note upon which this Guarantee is
endorsed or any of such other monetary obligations, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal.
The obligations of the Guarantor to the Holder and to the Trustee pursuant to this Guarantee
and the Indenture are expressly set forth in Article X of the Indenture and reference is hereby
made to such Indenture for the precise terms of this Guarantee.
No stockholder, officer, director or incorporator, as such, past, present or future of the
Guarantor shall have any liability under this Guarantee by reason of his or its status as such
stockholder, officer, director or incorporator.
This is a continuing Guarantee and shall remain in full force and effect and shall be binding
upon the Guarantor and its successors and assigns until full and final payment and performance of
all of the Obligor’s obligations under the Notes and the Indenture and shall inure to the benefit
of the successors and assigns of the Trustee and the Holders, and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon
that party shall automatically extend to and be vested in such transferee or assignee, all subject
to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Note upon which this Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized officers. This
Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
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Capitalized terms used herein have the same meanings given in the Indenture unless otherwise
indicated.
Dated: May 18, 1999
| RJ. XXXXXXXX TOBACCO COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[FACE OF EXCHANGE GLOBAL NOTE]
RJR NABISCO, INC.
7⅞% Note due 2009
[CUSIP] [CINS] [ISIN] [ ]
No.
|
$ | 200,000,000 |
RJR NABISCO, INC., a Delaware corporation (the “Company”, which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to pay to or
its registered assigns, the principal sum of $200,000,000 on May 15, 2009.
Interest Payment Dates: May 15 and November 15, commencing November 15, 1999.
Record Dates: May 1 and November 1.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.
Date: May _____, 1999
| RJR NABISCO, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
2
(Trustee’s Certificate of Authentication)
This is one of the 7⅞% Notes due 2009 described in the within-mentioned Indenture.
| Dated: May ___, 0000 XXX XXXX XX XXX XXXX, as Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
3
[REVERSE SIDE OF EXCHANGE GLOBAL NOTE]
RJR NABISCO, INC.
7 7/8% Note due 2009
| 1. | Principal and Interest |
The Company will pay the principal of this Note on May 15, 2009.
The Company promises to pay interest on the principal amount of this Note on each Interest
Payment Date, as set forth below, at the rate per annum shown above.
Interest will be payable semiannually (to the holders of record of the Notes at the close of
business on the May 1 or November 1 immediately preceding the Interest Payment Date) on each
Interest Payment Date, commencing November 15, 1999. Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from May 18,
1999, provided that, if there is no existing default in the payment of interest and this Note is
authenticated between a Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest
on overdue installments of interest and Additional Interest, if any (without regard to applicable
grace periods), from time to time on demand at the same rate to the extent lawful.
| 2. | Method of Payment |
The Company will pay interest on the principal amount of the Notes as provided above on each
May 15 and November 15, commencing November 15, 1999 to the persons who are Holders (as reflected
in the Note Register at the close of business on the May 1 or November 1 immediately preceding the
Interest Payment Date), in each case, even if the Note is canceled on registration of transfer or
registration of exchange after such record date.
The Company will pay principal, premium, if any, and as provided above, interest in money of
the United States that at the time of payment is legal tender for payment of public and private
debts. However, the Company may pay principal, premium, if any, and interest by its check payable
in such money. It may mail an interest check to a Holder’s registered address (as reflected in the
Note Register). If a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.
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| 3. | Paying Agent and Registrar. |
Initially, the Trustee will act as authenticating agent, Paying Agent and the Registrar. The
Company may change any authenticating agent, Paying Agent, Registrar or Transfer Agent without
notice. The Company, any Subsidiary or any Affiliate of any of them may act as a Paying Agent,
Registrar or Transfer Agent.
| 4. | Indenture; Limitations. |
The Company issued the Notes under an Indenture dated as of May 15, 1999 (the “Indenture”),
among the Company, RJRT and The Bank of New York, as trustee (the “Trustee”). Capitalized terms herein are used as defined in the Indenture unless otherwise
indicated. The terms of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted
by applicable law, in the event of any inconsistency between the terms of this Note and the terms
of the Indenture, the terms of the Indenture shall control. The Notes are general unsecured
obligations of the Company.
| 5. | Optional Redemption. |
The Notes are redeemable, in whole or in part, at any time or from time to time,
at the option of the Company, at a redemption price equal to the greater of (i) 100% of the
principal amount of such Notes and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest, discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 37.5 basis
points, plus accrued interest thereon to the date of redemption.
Except as set forth above, the Notes will not be redeemable by the Company prior to maturity
and will not be entitled to the benefit of any sinking fund.
| 6. | Notice of Redemption |
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
redemption date by first-class mail to each Holder of Notes to be redeemed at his registered
address. Notes in denominations of principal amounts larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued
and unpaid interest on all Notes (or portions thereof) to be redeemed on the redemption date is
deposited with the Payment Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
| 7. | Denominations; Transfer; Exchange. |
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The Notes are in registered form without coupons in denominations of $1,000 of principal
amount and multiples of $1,000 in excess thereof. A Holder may register the transfer
6
or exchange of Notes in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Notes selected for redemption. Also, it need not register the transfer or
exchange of any Notes for a period of 15 days before the day of mailing of a notice of redemption
of Notes selected for redemption.
| 8. | Persons Deemed Owners. |
A Holder shall be treated as the owner of a Note for all purposes.
| 9. | Unclaimed Money. |
If money for the payment of principal, premium, if any, or interest remains unclaimed for two
years, the Trustee and the Paying Agent shall pay the money back to the Company at its request
unless an abandoned property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Company or the Guarantors and not to the Trustee for
payment.
| 10. | Amendment; Supplement; Waiver. |
Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the Notes then
outstanding, and any existing default or compliance with any provision may be waived with the
consent of the Holders of at: least a majority in principal amount of the Notes then outstanding.
Without notice to or the consent of any Holder, the parties thereto may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make
any change that does not materially and adversely affect the rights of any Holder.
| 11. | Restrictive Covenants. |
The Indenture imposes certain limitations on the ability of each of the Company and its
Restricted Subsidiaries, among other things, to enter into certain Sale and Leaseback transactions,
mortgage or pledge certain assets or merge, consolidate or transfer substantially all of its
assets. Within 45 days after the end of each fiscal quarter (120 days after the end of the last
fiscal quarter of each year), the Company shall deliver to the Trustee an Officers’ Certificate
stating whether or not the signers thereof know of any Default or Event of Default under such
restrictive covenants.
| 12. | Successor Persons. |
When a successor person or other entity assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor person will be released from those obligations.
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| 13. | Defaults and Remedies. |
Any of the following events constitutes an “Event of Default” under the Indenture:
(a) default in the payment of any installment of interest upon any of the Notes as and when the
same shall become due and payable, and continuance of such default for a period of 30 days; or (b)
default in the payment of all or any part of the principal on any of the Notes as and when the same
shall become due and payable either at maturity, upon any redemption, by declaration or otherwise;
or (c) default in the payment of any sinking fund installment as and when the same shall become due
and payable by the terms of the Notes; or (d) default in the performance, or breach, of any
covenant or agreement of the Company or the Guarantors in respect of the Notes (other than a
covenant or agreement in respect of the Notes a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of
the outstanding Notes affected thereby, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or (e)
a court having jurisdiction in the premises shall enter a decree or order for relief in respect of
the Company or the Guarantors in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the Company or for any
substantial part of its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (f)
the Company or any Restricted Subsidiary shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of
an order for relief in an involuntary case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or (g) any Guarantee ceases to be in full force and
effect (except as contemplated by the terms hereof), or any Guarantee is declared in a judicial
proceeding to be null and void, or any Guarantor denies or disaffirms in writing its obligations
under the terms of the Indenture or its Guarantee; or (h) any other Event of Default provided in
the supplemental indenture or Board Resolution under which the Notes are issued or in this Note.
If an Event of Default described in clauses (a), (b), (c), (d) or (h) above (if the Event of
Default under clause (d) or (h) is with respect to less than all series of Notes then outstanding)
occurs and is continuing, then, and in each and every such case, except for any series of Notes
the principal of which shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Notes of each such affected series then
outstanding hereunder (voting as a single class) by notice in writing to the Company (and to the
Trustee if given by Noteholders), may declare the entire principal of all Notes of all such
affected series, and the interest accrued thereon, if any, to be due and payable immediately, and
8
upon any such declaration the same shall become immediately due and payable. If an Event of
Default described in clause (d) or (h) (if the Event of Default under clauses (d) or (h), as the
case
9
may be, is with respect to all series of Notes then outstanding), (e), (f) or (g) occurs and is
continuing, then and in each and every such case, unless the principal of all the Notes shall have
already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Notes then outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Noteholders), may declare the entire
principal of all the Notes then outstanding and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become immediately due and
payable.
| 14. | Trustee Dealings with the Company. |
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its affiliates with the same rights it would have if it were not Trustee.
| 15. | No Recourse Against Others. |
An incorporator, director, officer, employee, stockholder or controlling person, as such, of
each of the Company or any Guarantor shall not have any liability for any obligations of the
Company under the Notes, the Indenture or any Guarantees or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Note, each Noteholder waives
and releases all such liability. The waiver and release are part of the consideration for the
issue of the Notes. Such a waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against public policy.
| 16. | Authentications. |
This Note shall not be valid until the Trustee or authenticating agent signs the certificate
of authentication on the other side of this Note.
| 17. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to
Minors Act).
| 18. | Guarantees. |
This Note will be entitled to the benefit of certain Guarantees made for the benefit of the
Holders. Reference is made to the Indenture for a statement of the respective rights, limitations
of rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders.
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| 19. | Definitions. |
Terms not otherwise defined in this Note shall have the meanings given to such terms in the
Indenture.
| 20. | Governing Law. |
This Note shall be governed by and construed in accordance with the laws of the State of New
York.
The Company will furnish a copy of the Indenture to any Holder upon written request and
without charge. Requests may be made to:
RJR Nabisco, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto
Insert Taxpayer Identification No.
Date:
|
||
| NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
Signature Guarantee:
Signature must be guaranteed by a participant in a recognized signature guaranty medallion program
or other signature guarantor acceptable to the Trustee.
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GUARANTEE
X.X. Xxxxxxxx Tobacco Company (hereinafter referred to as the “Guarantor”), which term
includes any successor or assign under the Indenture, dated as of May 15, 1999, among RJR Nabisco,
Inc., a Delaware corporation or any assignee or successor thereto (the “Obligor”), the Guarantor
and The Bank of New York, as trustee (the “Indenture”), hereby irrevocably and unconditionally
guarantees that: (i) the principal of, premium, if any, and interest, including Additional
Interest, on the Note upon which this Guarantee is endorsed will be duly and punctually paid in
full when due, whether at maturity, by acceleration, by redemption, by repurchase or otherwise, and
interest on overdue principal and (to the extent permitted by law) interest on any interest on the
Note upon which this Guarantee is endorsed and all other monetary obligations of the Obligor to the
Holders or the Trustee hereunder or under the Note upon which this Guarantee is endorsed (including
fees and expenses) will be promptly paid in full, all in accordance with the terms hereof and (ii)
in case of any extension of time of payment or renewal of the Note upon which this Guarantee is
endorsed or any of such other monetary obligations, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal.
The obligations of the Guarantor to the Holder and to the Trustee pursuant to this Guarantee
and the Indenture are expressly set forth in Article X of the Indenture and reference is hereby
made to such Indenture for the precise terms of this Guarantee.
No stockholder, officer, director or incorporator, as such, past, present or future of the
Guarantor shall have any liability under this Guarantee by reason of his or its status as such
stockholder, officer, director or incorporator.
This is a continuing Guarantee and shall remain in full force and effect and shall be binding
upon the Guarantor and its successors and assigns until full and final payment and performance of
all of the Obligor’s obligations under the Notes and the Indenture and shall inure to the benefit
of the successors and assigns of the Trustee and the Holders, and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon
that party shall automatically extend to and be vested in such transferee or assignee, all subject
to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Note upon which this Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized officers. This
Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
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THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
14
Capitalized terms used herein have the same meanings given in the Indenture unless otherwise
indicated.
Dated:
| RJ. XXXXXXXX TOBACCO COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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