EXHIBIT 4.7
DECLARATION OF TRUST
OF
RJR NABISCO HOLDINGS CAPITAL TRUST III
DECLARATION OF TRUST, dated as of August 5, 1998, between RJR
Nabisco Holdings Corp., a Delaware corporation, as Sponsor, and The Bank of
New York, a New York banking corporation, not in its individual capacity but
solely as trustee (the "Institutional Trustee"), The Bank of New York
(Delaware), a Delaware corporation, not in its individual capacity but solely
as trustee (the "Delaware Trustee"), and Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx
and Xxxxx X. Xxxxxxxxx, each not in his or her individual capacity but solely
as trustee (the Institutional Trustee, Delaware Trustee and each such
individual as trustee, collectively the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "RJR Nabisco
Holdings Capital Trust III", in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10. The Trustees hereby acknowledge receipt of
such amount from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate for
the Sponsor. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate
of trust with the Secretary of State of the State of Delaware in the form
attached hereto. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities representing
undivided beneficial interests in the assets of the Trust ("Preferred
Securities") in exchange for cash and investing the proceeds thereof in junior
subordinated debentures of the Sponsor, (ii) issuing and selling common
securities representing undivided beneficial interest in the assets of the
Trust (the "Common Securities") to the Sponsor in exchange for cash and
investing the proceeds thereof in additional junior subordinated debentures of
the Sponsor and, (iii) engaging in such other activities as are necessary,
convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to above and therein.
Prior to the execution and delivery of such amended and restated Declaration
of Trust, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each
case on behalf of the Trust, (a) a Registration Statement on Form S-3 (the
"1933 Act Registration Statement") including any pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to prepare and file with the New York
Stock Exchange and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the New York Stock Exchange; (iii) to prepare and
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate the terms of and execute on behalf of the
Trust an underwriting agreement among the Trust, the Sponsor and any
underwriter, dealer or agent relating to the Preferred Securities. In the
event that any filing referred to in clauses (i)-(iii) above is required by
the rules and regulations of the Commission, the New York Stock Exchange or
state securities or Blue Sky laws, to be executed on behalf of the Trust by
the Trustees, Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxxx, and
each of them, in their capacities as Trustees of the Trust, are hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that The Bank of
New York and The Bank of New York (Delaware), in their capacities as Trustees
of the Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or Blue Sky laws. In connection with all of the foregoing, the Sponsor and
each Trustee, solely in its capacity as Trustee of the Trust, hereby
constitutes and appoints Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxxxx, and each of them, his, her or its, as the case may be, true and
lawful attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file
(i) any and all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement with all
exhibits thereto, and other documents in connection therewith, and (ii) a
registration statement, and any and all amendments thereto, relating thereto
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
with the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming 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.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided, however, that the number of
Trustees shall in no event be less than five (5); and provided further that to
the extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and meets other requirements imposed by applicable law. Subject to
the foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. A Trustee may resign upon thirty days prior notice to
the Sponsor.
7. The Trust shall terminate before the issuance of any
Preferred Securities at the election of the Sponsor.
8. The Delaware Trustee shall not have any of the powers or
duties of the Trustees set forth herein, except as required under the Business
Trust Act. The Delaware Trustee shall be a Trustee hereunder for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
RJR Nabisco Holdings Corp.,
as Sponsor
By: /s/ X. Xxxxx XxXxxxx
----------------------------------
Name: X. Xxxxx XxXxxxx
Title: Senior Vice President,
Associate General Counsel
and Secretary
The Bank of New York,
not in its individual capacity
but solely as Institutional Trustee
By: /s/ XxxxXxxx Xxxxxxx
----------------------------------
Name: XxxxXxxx Xxxxxxx
Title: Assistant Vice President
The Bank of New York (Delaware),
not in its individual capacity
but solely as Delaware Trustee
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Signatory
/s/ Xxxx X. Xxxxxxx
----------------------------------
Xxxx X. Xxxxxxx,
not in his individual capacity
but solely as Trustee
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx,
not in his individual capacity
but solely as Trustee
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx,
not in his individual capacity
but solely as Trustee
