Exhibit 4.3
DECLARATION OF TRUST, dated as of June 20, 1995, between RJR
Nabisco Holdings Corp., a Delaware corporation, as Sponsor, and The Bank of
New York, a New York banking corporation and The Bank of New York (Delaware),
a Delaware banking corporation, not in their individual capacities but solely
as Trustees. The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "RJR Nabisco
Holdings Capital Trust I", 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 Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust
estate in trust 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. C. Sec. 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 Delaware Secretary of State in the form
attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form to be included as Exhibit 4.5 to the Registration
Statement referred to below, to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to 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 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-4 (the "Registration
Statement") and 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, (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 and (c) an Issuer
Tender Offer Statement on Schedule 13E-4 and any other tender offer statement
required to be filed by the Trust with the Commission (including, if
necessary, Schedule 14D-1) relating to the exchange offer (the "Offer")
described in the Registration Statement (collectively, the "Tender Offer
Schedules") and any amendment or supplement thereto; (ii) to 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
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorneys 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 execute on behalf of the Trust that certain Dealer
Manager Agreement among the Trust, the Sponsor and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Lehman Brothers, Morgan Stanley & Co.
Incorporated, PaineWebber Incorporated and Smith Barney Inc. relating to the
Offer, substantially in the form to be included as Exhibit 1.1 to the
Registration Statement. 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, the Sponsor is 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 Jo-Ann Ford, as his, her or its, as the case
may be, true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Sponsor or such Trustee or in the
Sponsor's or such Trustee's name, place and stead, in any and all capacities,
2
to sign any and all amendments (including post-effective amendments) to the
Registration Statement, the 1934 Act Registration Statement and the Tender
Offer Schedules and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent 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 attorney-in-fact and agent, 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 two (2) 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 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. Subject
to the foregoing, the Sponsor is entitled to appoint or remove without cause
any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor.
3
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:
--------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
---------------------------
Name:
Title:
THE BANK OF NEW YORK (Delaware),
not in its individual capacity
but solely as Trustee
By:
-----------------------------
Name:
Title:
4