EX-10.1






Exhibit 10.1




REYNOLDS AMERICAN INC.

LONG-TERM INCENTIVE PLAN





 







PERFORMANCE SHARE AGREEMENT





 





DATE OF GRANT: March 2, 2009




     1. Grant. Pursuant to the provisions of the Reynolds American Inc. Long-Term
Incentive Plan (the “Plan”), Reynolds American Inc. (the “Company”) on the date set forth above,
has granted to



<insert name> (the “Grantee”),



subject to the terms and conditions which follow and the terms and conditions of the Plan, an
initial grant (the “Target Number”) of




<insert number> Performance Shares.



A copy of the Plan has been provided to the Grantee and is made part of this Performance Share
Agreement (this “Agreement”) with the same force and effect as if set forth in this Agreement
itself. All capitalized terms used in this Agreement shall have the meaning set forth in the Plan,
unless otherwise defined in this Agreement.




     2. Value. Each Performance Share shall be equal in value to one share of common
stock, par value $0.0001 per share, of the Company or any security or other consideration into
which such share may be changed by reason of any transaction or event of the type referred to in
Section 8 of the Plan (each, a “Share”).



     3. Scoring. (a) Subject to the terms and conditions of this Agreement, the
Performance Shares shall have a three-year performance period, consisting of the Company’s fiscal
years 2009, 2010 and 2011 (the “Performance Period”), after which the number of Performance Shares
earned (the “Earned Number”) will be determined as provided below, and when vested, will be paid in
Shares.



          (b) If the Company fails to pay to its shareholders cumulative dividends of at least $10.20
per Share (the “Dividend Threshold”) for the Performance Period (which would exclude the dividend
paid on January 2, 2009, but would include the dividend paid on January 2, 2012), then the Target
Number shall be reduced by an amount equal to three times the percentage of the dividend
underpayment for the Performance Period, up to a maximum Target Number reduction of 50% (the
“Revised Target Number”).




          (c) At the end of the Performance Period, after determining if the Dividend Threshold has
been met, the Earned Number shall be determined by multiplying the Target









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Number, or Revised Target Number if the Dividend Threshold has not been met, by the average score
for the Company under the Reynolds American Inc. Annual Incentive Award Plan (such plan, and any
successor plan or program thereto, “AIAP”) for fiscal years 2009, 2010 and 2011; provided, however,
that such three-year average score shall in no event be greater than 150%; and
provided, further, that the value of the Earned Number of Performance Shares that
vest as provided in Section 4 of this Agreement, and are paid as provided in Section 5 of this
Agreement, shall not exceed any maximum limits set by the Board of Directors pursuant to its
resolutions adopted on February 3, 2009, or otherwise contained in the Plan.




          (d) Notwithstanding anything in Section 3 of this Agreement to the contrary, in the event of a
Change of Control prior to the end of the Performance Period, the Earned Number shall be equal to
the product of (i) the Target Number and (ii) the average of the following: (x) the score for the
Company under the AIAP for each fiscal year of the Performance Period ending prior to the date of
such Change of Control, and (y) a score of 100% for each fiscal year of the Performance Period
ending after the date of such Change of Control (the “Change of Control Earned Number”).




     4. Vesting. (a) Subject to the terms and conditions of this Agreement, the Earned
Number of Performance Shares shall vest on March 2, 2012 (the “Normal Vesting Date”) if the Grantee
remains employed by the Company or a subsidiary of the Company on such date.



          (b) Notwithstanding anything in Section 4(a) of this Agreement to the contrary, in the event
of (i) the Grantee’s Retirement (as such term is defined below) or (ii) the Grantee’s involuntary
Termination of Employment without Cause (as such terms are defined in Section 6 of this Agreement),
in either case, prior to the end of the Performance Period, the number of Performance Shares that
will vest on the Normal Vesting Date shall be equal to the product of (x) the Earned Number and (y)
a fraction, the numerator of which shall be the number of days between the Date of Grant and the
date of the Grantee’s Retirement or Termination of Employment without Cause, as applicable, and the
denominator of which shall be the number of days between the Date of Grant and the Normal Vesting
Date, and the remaining Performance Shares will be forfeited and cancelled on the Normal Vesting
Date. For purposes of this Agreement, the term “Retirement” shall mean an employee’s voluntary
Termination on or after his or her 65th birthday, on or after his or her 55th
birthday with 10 or more years of service with the Company or a subsidiary of the Company, or on or
after his or her 50th birthday with 20 or more years of service with the Company or a
subsidiary of the Company.




          (c) Notwithstanding anything in Section 4(a) of this Agreement to the contrary, in the event
of (i) the Grantee’s death or (ii) the Grantee’s Permanent Disability (as such term is defined in
the Company’s Long-Term Disability Plan), the number of Performance Shares that will vest on the
date of the Grantee’s death or Permanent Disability, as applicable, shall be equal to the product
of (x) the Target Number and (y) a fraction, the numerator of which shall be the number of days
between the Date of Grant and the date of the Grantee’s death or Permanent Disability, as
applicable, and the denominator of which shall be the number of days between the Date of Grant and
the Normal Vesting Date, and the remaining Performance Shares will be forfeited and cancelled on
the date of the Grantee’s death or Permanent Disability, as applicable.








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          (d) Notwithstanding anything in Section 4(a) of this Agreement to the contrary, in the event
of a Change of Control, the number of Performance Shares that will vest on the date of such Change
of Control shall be equal to the product of (i) the higher of (x) the Target Number and (y) the
Change of Control Earned Number, and (ii) a fraction, the numerator of which shall be the number of
days between the Date of Grant and the date of the Change of Control, and the denominator of which
shall be the number of days between the Date of Grant and the Normal Vesting Date, and the
remaining Performance Shares will be forfeited and cancelled on the date of such Change of Control.




          (e) Notwithstanding anything in Section 4 of this Agreement to the contrary, in the event of
the Grantee’s voluntary Termination of Employment (other than at Retirement) or Termination of
Employment for Cause (as such terms are defined in Section 6 of this Agreement), the Performance
Shares shall be immediately forfeited and cancelled.




     5. Payment. (a) Payment of vested Performance Shares shall be made only in Shares.
At the Company’s sole discretion, such Shares may be issued in certificated or book-entry form.



          (b) Except as set forth in Section 5(c) of this Agreement, or except under such other
circumstances as the Compensation and Leadership Development Committee of the Company’s Board of
Directors (the “Compensation Committee”) deems appropriate for participants other than a “Covered
Employee” within the meaning of Section 162(m) of the Internal Revenue Code, no payment of vested
Performance Shares shall be made to the Grantee prior to the end of the Performance Period. Except
as otherwise provided by this Agreement, payment of vested Performance Shares shall be made as soon
as practicable following the Normal Vesting Date, and in any event no later than March 15, 2013.




          (c) In the event of a Change of Control, the Grantee’s death or the Grantee’s Permanent
Disability, the payment of vested Performance Shares shall be paid as soon as practicable after
such event occurs, and in any case no later than March 15 after the end of the year in which such
event occurs.




          (d) In the event of the death of a Grantee, any payment to which such Grantee is entitled
under this Agreement shall be made to the beneficiary designated by the Grantee to receive the
proceeds of any noncontributory group life insurance coverage provided for the Grantee by the
Company or a subsidiary of the Company (“Group Life Insurance Coverage”). If no designation of
beneficiary has been made by a Grantee under the Group Life Insurance Coverage, distribution upon
such Grantee’s death shall be made in accordance with the provisions of the Group Life Insurance
Coverage. If a Grantee is no longer an employee of the Company at the time of death or no longer
has any Group Life Insurance Coverage, distribution upon such Grantee’s death shall be made to the
Grantee’s estate.




     6. Termination of Employment. (a) For purposes of this Agreement, the term
“Termination of Employment” shall mean termination from active employment with the Company or a
subsidiary of the Company; it does not mean the termination of pay and benefits at the end of a
period of salary continuation (or other form of severance pay or pay in lieu of salary).








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          (b) For purposes of this Agreement, if the Grantee has an employment or severance agreement
or is covered under a severance plan of the Company or one of its subsidiaries, employment shall be
deemed to have been terminated for “Cause” only as such term is defined in such employment or
severance agreement or such severance plan. For purposes of this Agreement, if the Grantee does
not have an employment or severance agreement or is not covered under a severance plan of the
Company or one of its subsidiaries that defines the term “Cause,” the Grantee’s employment shall be
deemed to have been terminated for “Cause” if the Termination of Employment results from the
Grantee’s: (i) criminal conduct; (ii) deliberate and continual refusal to perform employment
duties on a substantially full-time basis; (iii) deliberate and continual refusal to act in
accordance with any specific lawful instructions of an authorized officer or employee more senior
than the Grantee or a majority of the Board of Directors of the Company; or (iv) deliberate
misconduct which could be materially damaging to the Company or any of its business operations
without a reasonable good faith belief by the Grantee that such conduct was in the best interests
of the Company. A Termination of Employment shall not be deemed for Cause hereunder unless the
chief human resources officer of the Company shall confirm that any such Termination of Employment
is for Cause; provided, however, that the chief executive officer of the Company
shall be required to confirm that a Termination of Employment of the chief human resources officer
of the Company is for Cause. Any voluntary Termination of Employment by the Grantee in
anticipation of an involuntary Termination of Employment for Cause shall be deemed to be a
Termination of Employment for Cause.




     7. Dividend Equivalent Payment. At the time of the payment of the vested Performance
Shares, the Grantee shall receive a cash dividend equivalent payment in an amount equal to the
product of (a) the Earned Number and (b) the aggregate amount of dividends per share declared and
paid to the Company’s shareholders on Shares during the period from the beginning of the
Performance Period through the date of the payment of the Performance Shares, without interest (the
“Actual Dividends Paid”); provided, however, that in the event of the Grantee’s
death or Permanent Disability or in the event of a Change of Control, the amount of the dividend
equivalent payment to the Grantee shall be equal to the product of (i) the Target Number (in the
case of death or Permanent Disability) or the Change of Control Earned Number (in the case of a
Change of Control), and (ii) the Actual Dividends Paid. Notwithstanding anything in Section 7 of
this Agreement to the contrary, to the extent the payment of the vested Performance Shares occurs
after both the date a dividend has been declared by the Company and the record date for
such dividend, but prior to the dividend payment date related thereto, the amount of the Actual
Dividend Paid also shall include such dividend. In the case of a dividend payment to be paid in
property, the dividend payment shall be deemed to be the fair market value of the property at the
time of distribution of the dividend payment to the Grantee, as determined by the Compensation
Committee.



     8. Rights as a Shareholder. The Grantee shall not be, nor have any of the rights or
privileges of, a shareholder of the Company with respect to the Performance Shares unless and
until, and to the extent, the Performance Shares vest and Shares have been paid to the Grantee in
accordance with Section 5 of this Agreement.








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     9. Transferability. Other than as specifically provided in this Agreement with regard
to the death of the Grantee, this Agreement and any benefit provided or accruing hereunder shall
not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge; and any attempt to do so shall be void. No such benefit shall, prior to
receipt thereof by the Grantee, be in any manner liable for or subject to the debts, contracts,
liabilities, engagements or torts of the Grantee.



     10. No Right to Employment. Neither the execution and delivery of this Agreement nor
the granting of the Performance Shares evidenced by this Agreement shall constitute any agreement
or understanding, express or implied, on the part of the Company or its subsidiaries to employ the
Grantee for any specific period or in any specific capacity or shall prevent the Company or its
subsidiaries from terminating the Grantee’s employment at any time with or without Cause.



     11. Application of Laws. The granting of Performance Shares under this Agreement
shall be subject to all applicable laws, rules and regulations and to such approvals of any
governmental agencies as may be required.



     12. Notices. Any notices required to be given hereunder to the Company shall be
addressed to the Corporate Secretary, Reynolds American Inc., Post Office Box 2990, Winston-Salem,
NC 27102-2990, and any notice required to be given hereunder to the Grantee shall be sent to the
Grantee’s address as shown on the records of the Company.



     13. Taxes. Any taxes required by federal, state or local laws to be withheld by the
Company in respect of the grant of Performance Shares or payment of vested Performance Shares
hereunder shall be paid to the Company by the Grantee by the time such taxes are required to be
paid or deposited by the Company. The Grantee hereby authorizes the
necessary withholding of Performance Shares by the
Company to satisfy the minimum statutory tax withholding amount prior to delivery of the vested
Performance Shares.



     14. Administration and Interpretation. In consideration of the grant of Performance
Shares hereunder, the Grantee specifically agrees that the Compensation Committee shall have the
power to interpret the Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan and Agreement as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations and determinations
made by the Compensation Committee shall be final, conclusive, and binding upon the Grantee, the
Company and all other interested persons. No member of the Compensation Committee shall be
personally liable for any action, determination or interpretation made in good faith with respect
to the Plan or this Agreement. The Compensation Committee may delegate its interpretive authority
as permitted by the provisions of the Plan.



     15. Compliance with Section 409A of the Code. This Agreement is intended to comply
with Section 409A of the Internal Revenue Code of 1986, as amended, and shall be construed and
interpreted in accordance with such intent.








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     16. Amendment. This Agreement is subject to the Plan, a copy of which has been
provided to the Grantee. The Board of Directors and the Compensation Committee, as applicable, may
amend the Plan, and the Compensation Committee may amend this Agreement, at any time in any way,
except that, other than for adjustments under Section 15 hereof and as otherwise provided by the
Plan, any amendment of the Plan or this Agreement that would impair the Grantee’s rights under this
Agreement may not be made without the Grantee’s written consent.



     17. Litigation Assistance. (a) In addition to any other obligations of the Grantee
under law or any other agreement with the Company or any of its subsidiaries, in consideration of
the grant of Performance Shares hereunder, the Grantee specifically agrees that during the
continuation of his or her employment by the Company or any of its subsidiaries and during the
one-year period commencing upon his or her Termination of Employment, for any reason, the Grantee:



          (i) will personally provide, at the Company’s cost, reasonable assistance and cooperation
to the Company and its subsidiaries in activities related to the prosecution or defense of any
pending or future lawsuits or claims involving the Company or any of its subsidiaries;




          (ii) will promptly notify the Company upon receipt of any requests from anyone other than an
employee or agent of the Company for information regarding the Company or any of it its
subsidiaries, or if the Grantee becomes aware of any potential claim or proposed litigation against
the Company or any of its subsidiaries;




          (iii) will refrain from providing any information related to any claim or potential
litigation against the Company or any of its subsidiaries to any non-Company representatives
without either the Company’s written permission or being required to provide information pursuant
to legal process;




          (iv) will not disclose or misuse any confidential information or material concerning the
Company or any of its subsidiaries; and




          (v) will not engage in any activity detrimental to the interests of the Company or any of
its subsidiaries, including, without limitation, an act of dishonesty, moral turpitude or other
misconduct that has or could have a detrimental impact on the business or reputation of the Company
or any of its subsidiaries.




     (b) In further consideration of the grant of Performance Shares hereunder, the Grantee
specifically agrees that if required by law to provide sworn testimony regarding any
Company-related matter: the Grantee will consult with and have Company designated legal counsel
present for such testimony (the Company will be responsible for the costs of such designated
counsel); the Grantee will limit his or her testimony to items about which the Grantee has
knowledge rather than speculation, unless otherwise directed by legal process; and the Grantee will
cooperate with the Company’s attorneys to assist their efforts, especially on matters the Grantee
has been privy to, holding all privileged attorney-client matters in strictest confidence.








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     18. Noncompetition Agreement. (a) In addition to any other obligations of the
Grantee under law or any other agreement with the Company or any of its subsidiaries, in
consideration of the grant of Performance Shares hereunder, the Grantee specifically agrees that
during the continuation of his or her employment by the Company or any of its subsidiaries and
during the one-year period commencing upon his or her Termination of Employment, for any reason,
the Grantee will not:



          (i) be employed or retained as an employee or independent contractor in a sales-related
capacity, marketing role, strategic planning role, financial role or product research and
development role for any Competitive Business in the Territory;




          (ii) be employed by or consult with any Competitive Business in the Territory in any sort
of position or capacity related to the services the Grantee performed while an employee of the
Company or any of its subsidiaries;




          (iii) act as an officer or director of any Competitive Business in the Territory; or




          (iv) directly or indirectly, solicit, offer employment or hire any employee (other than
secretarial and clerical personnel) who was employed by the Company or any of its subsidiaries, at
the time of the Grantee’s Termination of Employment or who was employed by the Company or any of
its subsidiaries during the 90-day period preceding such date, to become employed by any person,
firm, entity or corporation, or approach any such person for any of the foregoing reasons.




     (b) For purposes of Section 18 of this Agreement, the terms set forth below have the following
definitions:



          (i) “Business” means the business of manufacturing, distributing, advertising, promoting,
marketing or selling any of the following products: (A) any cigarette, cigar, little cigar,
“roll-your-own” tobacco, smokeless or smoke-free tobacco product (including, without limitation,
moist snuff, dry snuff, snus, loose leaf, plug and twist tobacco and any other smokeless or
smoke-free tobacco, including dissolvable products, that may be invented); and (B) any other
product that the Company or any of its subsidiaries invent, develop and/or market.




          (ii) “Competitive Business” means any corporation, limited liability company, partnership,
person, firm, organization, entity, enterprise, business or activity that competes with the
Business; and




          (iii) “Territory” means the United States of America, its territories, commonwealths and
possessions (including, without limitation, duty-free stores or outlets located anywhere in any of
the foregoing places) and U.S. military installations located anywhere in the world.




     (c) Notwithstanding anything to the contrary contained in this Agreement, Section 18 of this
Agreement will not prohibit a Grantee from engaging in the authorized practice of law, whether for
a firm, corporation or otherwise, in any jurisdiction that prohibits agreements








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restricting the right of an individual to engage in such practice. A Grantee, however, will
continue to be bound by any and all applicable professional and ethical rules of conduct that
govern the use for disclosure of confidential information obtained during the course of any
representation of the Company or any of its subsidiaries. This Agreement does, however, prohibit a
Grantee from engaging in any of the activities outlined in Section 18(a) of this Agreement in a
non-legal, business role.




     (d) The Grantee agrees that any breach of the covenants contained in Section 18 of this
Agreement would irreparably injure the Company and that its remedies at law would be inadequate.
Accordingly, in the event of any breach or threatened breach of Section 18 of this Agreement, the
Company shall be entitled to an injunction (and/or other equitable relief), restraining such breach
or threatened breach, and to the reimbursement of court costs, attorneys’ fees and other costs and
expenses incurred in connection with enforcing this Agreement. The existence of any claim or cause
of action on the part of the Grantee against the Company or any of its subsidiaries shall not
constitute a defense to the enforcement of these provisions. The rights and remedies hereunder
provided to the Company shall be cumulative and shall be in addition to any other rights or
remedies available at law, in equity or under this Agreement.



     (e) If any of the provisions of Section 18 of this Agreement are determined by a court of law
to be excessively broad, whether as to geographical area, time, scope or otherwise, such provision
shall be reduced to whatever extent is reasonable and shall be enforced as so modified. Any
provisions of Section 18 of this Agreement not so modified shall remain in full force and effect.



     19. Recoupment Provisions. (a) Subject to the clawback provisions of the
Sarbanes-Oxley Act of 2002, the Compensation Committee may, in its sole discretion, direct that the
Company recoup, and upon demand by the Company the Grantee agrees to return to the Company, all or
a portion of any Shares paid to the Grantee hereunder computed using financial information or
performance metrics later found to be materially inaccurate. The number of Shares to be recovered
shall be equal to the excess of the number of Shares paid out over the number of Shares that would
have been paid out had such financial information or performance metric been fairly stated at the
time the payout was made.



     (b) The Compensation Committee may direct recoupment of Shares pursuant to Section 19(a) of
this Agreement whether or not it directs recoupment of related AIAP payouts. The Compensation
Committee also may amend a yearly AIAP payout percent for purposes of recoupment of Shares under
this Agreement without directing recoupment of related AIAP payouts.



     (c) If the Company reasonably determines that the Grantee has materially violated any of the
Grantee’s obligations under Sections 17 or 18 of this Agreement, then effective the date on which
such violation began, (i) any Performance Shares that have not yet vested and been paid to the
Grantee under this Agreement shall be forfeited and cancelled, and (ii) the Company may, in its
sole discretion, recoup any and all of the Shares previously paid to the Grantee under this
Agreement.








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     (d) If after a demand for recoupment of Shares under Section 19 of this Agreement, the Grantee
fails to return such Shares to the Company, the Grantee acknowledges that the Company (or the
Company through the actions of any of its subsidiaries employing the Grantee, if applicable) has
the right to effect the recovery of the then current value of such Shares and the amount of its
court costs, attorneys’ fees and other costs and expenses incurred in connection with enforcing
this Agreement by (i) deducting (subject to applicable law and the terms and conditions of the
Plan) from any amounts the Company (and if applicable, any subsidiary of the Company employing the
Grantee) owes to the Grantee (including, but not limited to, wages or other compensation), (ii)
withholding payment of future increases in compensation (including the payment of any discretionary
bonus amount) or grants of compensatory awards that otherwise would have been made in accordance
with the Company’s or any of its subsidiaries’ otherwise applicable compensation practices, or
(iii) any combination of the foregoing. The right of recoupment set forth in the preceding
sentence shall not be the exclusive remedy of the Company, and the Company may exercise each and
every other remedy available to it under applicable law.



     20. GOVERNING LAWS. THE LAWS OF THE STATE OF NORTH CAROLINA SHALL GOVERN THE
INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT, REGARDLESS OF THE LAW THAT
MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF LAWS. ANY CONTROVERSY OR DISPUTE ARISING OUT OF
OR RELATED TO THIS AGREEMENT SHALL BE SETTLED EXCLUSIVELY IN THE COURTS (FEDERAL AND STATE)
SITUATED IN THE STATE OF NORTH CAROLINA, FORSYTH COUNTY. THE GRANTEE CONSENTS TO PERSONAL
JURISDICTION IN THE STATE OF NORTH CAROLINA AND IN THE COURTS THEREOF FOR THE ENFORCEMENT OF THIS
AGREEMENT, AND WAIVES ANY RIGHTS THE GRANTEE OTHERWISE MAY HAVE UNDER THE LAWS OF ANY JURISDICTION
TO OBJECT ON ANY BASIS TO JURISDICTION OR VENUE WITHIN THE STATE OF NORTH CAROLINA TO ENFORCE THIS
AGREEMENT.



     IN WITNESS WHEREOF, the Company, by its duly authorized officer, and the Grantee have executed
this Agreement as of the Date of Grant first above written.



	 	 	 	 	 
	 

	 	REYNOLDS AMERICAN INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signature
	 
	 	 	 	 
	 
	 	 	 	 
	Grantee’s Signature
	 	 	 	 
	 
	 	 	 	 
	Print Name: __________________
	 	 	 	 







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