-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WIxCZU8sCkev0IpXGVuS0w4sTdoPYiBfS7iij6h0HZLvqFbLrgcn1ba0S6B0p7xk h9b6AfEjRRIJ4HDgrCROoA== 0000950144-99-005368.txt : 19990507 0000950144-99-005368.hdr.sgml : 19990507 ACCESSION NUMBER: 0000950144-99-005368 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990506 EFFECTIVENESS DATE: 19990506 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BROWN FORMAN CORP CENTRAL INDEX KEY: 0000014693 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] IRS NUMBER: 610143150 STATE OF INCORPORATION: DE FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-77903 FILM NUMBER: 99612500 BUSINESS ADDRESS: STREET 1: 850 DIXIE HWY CITY: LOUISVILLE STATE: KY ZIP: 40210 BUSINESS PHONE: 5025851100 MAIL ADDRESS: STREET 1: P O BOX 1080 CITY: LOUISVILLE STATE: KY ZIP: 40201 FORMER COMPANY: FORMER CONFORMED NAME: BROWN FORMAN INC DATE OF NAME CHANGE: 19870816 FORMER COMPANY: FORMER CONFORMED NAME: BROWN FORMAN DISTILLERS CORP DATE OF NAME CHANGE: 19840807 FORMER COMPANY: FORMER CONFORMED NAME: BROWN FORMAN DISTILLERY CO DATE OF NAME CHANGE: 19670730 S-8 1 BROWN-FORMAN CORPORATION 1 REGISTRATION NO.__________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------------- FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 -------------------------------- BROWN-FORMAN CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 61-0143150 (State of incorporation) (I.R.S. Employer Identification No.) 850 DIXIE HIGHWAY, LOUISVILLE, KENTUCKY 40210 (Address of Principal Executive Offices and Zip Code) - ------------------------------------------------------------------------------ Brown-Forman Omnibus Compensation Plan - ------------------------------------------------------------------------------ MICHAEL B. CRUTCHER Senior Vice President General Counsel and Secretary Brown-Forman Corporation 850 Dixie Highway Louisville, Kentucky 40210 (502) 585-1100 OGDEN NEWELL & WELCH Attention: James S. Welch 1700 Citizens Plaza 500 West Jefferson Street Louisville, Kentucky 40202-2874 (502) 582-1601 (Names, addresses and telephone numbers of agents for service) Approximate date of commencement of proposed sale to public: From time to time following the effectiveness of the Registration Statement. 2 CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------- Title of Securities To Amount Proposed Proposed Amount Of Be Registered To Be Maximum Maximum Registration Registered Offering Aggregate Fee (1) Price Offering Per Share (2) Price Fee - ----------------------------------------------------------------------------------------------------- Class B Common 1,500,000 $70.375 $105,562,500.00 $29,346.38 Stock (non voting) par value $0.15 per share
- ------------------------------------------------------------------------------- (1) Pursuant to Rule 416(a) of the Securities Act, includes an indeterminate number of additional shares that may be offered and issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. (2) Estimated solely for purpose of calculating amount of registration fee which, calculated pursuant to Rule 457(h)(1) and (2) of the Securities Act, is based on the average of the high and low prices for shares of Class B Common Stock of Brown-Forman Corporation on the New York Stock Exchange consolidated tape on May 5, 1999. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION* ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION* *As allowed by Rule 428(b)(1) under the Securities Act and the Note to Part l of Form S-8, the information specified in Items 1 and 2 of Form S-8 will be contained in a document sent or given to plan participants. This information is not filed as part of this Registration Statement. 1 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE Brown-Forman Corporation (the "Registrant"), by this reference hereby incorporate into this Registration Statement the following documents filed by the Registrant: (a) Annual Report of the Registrant on Form 10-K for the year ended April 30, 1998, filed on July 17, 1998; (b) Quarterly Report of the Registrant on Form 10-Q for the fiscal quarter ended July 31, 1998, filed on September 3, 1998; (c) Quarterly Report of the Registrant on Form 10-Q for the fiscal quarter ended October 31, 1998, filed on December 10, 1998; (d) Quarterly Report of the Registrant on Form 10-Q for the fiscal quarter ended January 31, 1999, filed on March 5, 1999; (e) The description of the Registrant's Class B Common Stock, $0.15 par value per share, contained in the Registrant's Registration Statement on Form 8-A, filed on April 11, 1991, including any amendment or report filed for the purpose of updating such description. In addition, all documents filed by the Registrant with the Securities and Exchange Commission pursuant to Sections 13(a), 13(d), 14 or 15(d) of the Securities Exchange Act of 1934 after the effective date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and shall be deemed to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document which is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. 2 4 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL One of the directors of the Registrant, James S. Welch, is of counsel to and a former partner in Ogden Newell & Welch, the Louisville, Kentucky law firm providing the legal opinion upon the validity of the securities being registered pursuant to this Registration Statement. Mr. Welch has sole or shared voting and investment power over 6,600 shares of the Class A Common Stock of the Registrant. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant's Restated Certificate of Incorporation limits directors' liability for monetary damages to the extent permitted by the Delaware General Corporation Law, and reads as follows: A director shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that he may be liable (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. The provision affects only claims against directors for acts they perform as directors; it does not apply to acts they perform as officers of the Registrant or in other capacities. In addition, the Board of Directors has adopted a resolution which provides that the Registrant shall indemnify any person who was, is, or is threatened to be made a party to an action, suit, or proceeding, whether civil, criminal, administrative, or investigative by reason of the fact that he is a director, officer, employee, or agent of the Registrant, or is or was serving at the Registrant's request as a director, officer, employee, or agent of another entity. Indemnification of a person under this resolution is against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the Registrant's best interests (with respect to a criminal proceeding, the person must have had no reasonable cause to believe his conduct was unlawful). In any proceeding by or in the right of the Registrant, no indemnification may be made if the person is found to be liable for negligence or misconduct in the performance of his duty, and only to the extent of the Court of Chancery or such other court deems proper. An insurance policy insures the Registrant's directors and officers against certain liabilities, including certain liabilities arising under the Act, which might be incurred by them in such capacities and against which they cannot be indemnified by the Registrant. Insofar as indemnification for liabilities under the Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of such Registrant in the successful defense of any action, suit, or proceeding) is asserted against the 3 5 Registrant by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS 5 Opinion of Counsel, Ogden Newell & Welch, counsel to Registrant 23(a) Consent of PricewaterhouseCoopers LLP, independent accountants of Registrant 23(b) Consent of Ogden Newell & Welch, counsel to Registrant (included in Exhibit 5) 24(a) Power of attorney authorizing Steven B. Ratoff, Michael B. Crutcher or Garrison R. Cox to sign the Registration Statement in any and all capacities on behalf of Barry D. Bramley, George Garvin Brown III, Owsley Brown II, Donald G. Calder, Owsley Brown Frazier, Richard P. Mayer, Stephen E. O'Neil, William M. Street and James S. Welch 24(b) Certified resolution of Registrant's Board of Directors authorizing the execution of powers of Attorney The following items were filed previously: EXHIBIT NUMBER DESCRIPTION OF DOCUMENT 4(h) Restated Certificate of Incorporation of the Registrant, incorporated by reference to Exhibit 3(i)(b) of Registrant's 10-Q, filed on December 10, 1998 4(i) Certificate of Ownership and Merger of Brown-Forman Corporation into Brown-Forman, Inc., incorporated by reference to Registrant's 10-K, filed on July 19, 1994 4(j) Registrant's by-laws, as amended and restated on May 25, 1988, incorporated by reference to Registrant's 10-K, filed on July 26, 1993, as further amended and currently in effect, incorporated by reference to Registrant's Current Report on Form 8-K, filed June 3, 1998 4 6 4(k) Form of Indenture dated as of March 1, 1994, between the Registrant and The First National Bank of Chicago, as Trustee, incorporated by reference to Registrant's Form S-3 (Registration No. 33-52551), filed on March 8, 1994 ITEM 9. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; PROVIDED, HOWEVER, that (i) and (ii) do not apply if the Registration Statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by (i) or (ii) is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement; (2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and (4) that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual reports pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. If a director, officer or controlling person of the Registrant asserts a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) in connection 5 7 with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. SIGNATURES THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the Registrant, Brown-Forman Corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Louisville, Commonwealth of Kentucky, on May 6, 1999. BROWN-FORMAN CORPORATION *By: -------------------------------- Owsley Brown II Chairman and Chief Executive Officer Director Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. Signature Title - ---------------------------- Executive Vice President and Chief Financial Steven B. Ratoff Officer (Principal Financial Officer and Principal Accounting Officer) - ---------------------------- * Barry D. Bramley Director - ---------------------------- * George Garvin Brown III Director - ---------------------------- * Owsley Brown, II Director - ---------------------------- * Donald G. Calder Director - ---------------------------- * Owsley Brown Frazier Director - ---------------------------- * Richard P. Mayer Director
6 8 - ---------------------------- * Stephen E. O'Neil Director - ---------------------------- * William M. Street Director - ---------------------------- * James S. Welch Director *By /s/ Michael B. Crutcher ------------------------- Michael B. Crutcher Senior Vice President, General Counsel and Secretary Attorney-In-Fact For Each May 6, 1999
7 9 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION 5 Opinion of Counsel, Ogden Newell & Welch 23(a) Consent of PricewaterhouseCoopers LLP, independent accountants of Registrant 23(b) Consent of Ogden Newell & Welch, counsel to Registrant (included in Exhibit 5) 24(a) Power of attorney authorizing Garrison R. Cox, Steven B. Ratoff or Michael B. Crutcher to sign the Registration Statement in any and all capacities on behalf of Barry D. Bramley, Geo. Garvin Brown III, Owsley Brown II, Donald G. Calder, Owsley Brown Frazier, Richard P. Mayer, Stephen E. O'Neil, William M. Street and James S. Welch 24(b) Certified resolution of Registrant's Board of Directors authorizing the execution of powers of attorney
8 EX-5 2 OPINION OF COUNSEL 1 EXHIBIT 5 [Letterhead of Ogden Newell & Welch] May 6, 1999 Brown-Forman Corporation 850 Dixie Highway Louisville, Kentucky 40210 RE: BROWN-FORMAN CORPORATION OMNIBUS COMPENSATION PLAN REGISTRATION STATEMENT ON FORM S-8 FOR STOCK TO BE ISSUED Ladies and Gentlemen: We are acting as counsel for Brown-Forman Corporation, a Delaware corporation (the "Company") in connection with its registration under the Securities Act of 1933, as amended, of certain shares of Class A and Class B Common Stock (the "Shares") which are proposed to be issued pursuant to the Company's Omnibus Compensation Plan (the "Plan"). The Shares shall be registered on the Company's Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") with respect to the Shares. In rendering this opinion, we have examined instruments, documents, and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the following: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; and (c) the truth, accuracy and completeness of the information, representations and warranties contained in the documents. It is our opinion that: (a) the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; (b) the Shares are duly authorized by the Restated Certificate of Incorporation of the Company; and (C) upon the effectiveness of the Registration Statement, the Shares will be legally and validly issued, fully paid and non-assessable. 9 2 Insofar as this opinion relates to securities to be issued in the future, we have assumed that all applicable laws, rules and regulations in effect at the time of such issuance shall be the same as such laws, rules and regulations are in effect as of the date hereof. Nothing in this opinion is intended to apply to any disposition of the Shares which any recipient thereof may propose to make. We consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to any filing made by the Company under the Securities or "Blue Sky" laws of any state or jurisdiction. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose, except as expressly provided in the preceding paragraph, without our express written consent, and no party other than you is entitled to rely upon it. This opinion is rendered to you as of the date hereof, and we undertake no obligation to advise you of any change, whether legal or factual. Very truly yours, /s/ Ogden Newell & Welch --------------------------- OGDEN NEWELL & WELCH 10 EX-23.A 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23(a) CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 of Brown-Forman Corporation of our report dated May 27, 1998 relating to our audits of the consolidated financial statements and financial statement schedule of Brown-Forman Corporation as of April 30, 1998, 1997, and 1996, and for the years ended April 30, 1998, 1997, and 1996, which report is included in the Company's Annual Report on Form 10-K filed July 17, 1998. /s/ PricewaterhouseCoopers LLP Louisville, Kentucky May 6, 1999 11 EX-24.A 4 POWER OF ATTORNEY 1 EXHIBIT 24(a) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, as of the 11th day of July, 1996, the undersigned each constitutes and appoints Steven B. Ratoff, Michael B. Crutcher, and Garrison R. Cox, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities: (a) to sign and file with the Securities and Exchange Commission one or more Registration Statements on Form S-8 relating to the Brown-Forman Omnibus Compensation Plan, and any and all related amendments, exhibits, or appendices (including post-effective amendments); and (b) to prepare, execute and file with the appropriate securities commissions in states or other jurisdictions any forms or filings (including any amendments or exhibits) necessary or useful in complying with state or foreign securities laws in the issuance of shares under the Omnibus Compensation Plan, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she 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(s), may lawfully do or cause to be done by virtue of this power of attorney. BROWN-FORMAN CORPORATION By: /s/ Owsley Brown II Owsley Brown II Chairman & Chief Executive Officer /s/ Barry D. Bramley /s/ Geo. Garvin Brown III Barry D. Bramley Geo. Garvin Brown III Director Director /s/ Owsley Brown II /s/ Donald G. Calder Owsley Brown II Donald G. Calder Director Director /s/ Owsley Brown Frazier /s/ Richard P. Mayer Owsley Brown Frazier Richard P. Mayer Director Director
12 2 /s/ Stephen E. O'Neil /s/ William M. Street Stephen E. O'Neil William M. Street Director Director /s/ James S. Welch James S. Welch Director
13 EX-24.B 5 CERTIFIED RESOLUTION OF REGISTRANTS BOARD 1 EXHIBIT 24(B) RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS OF BROWN-FORMAN CORPORATION EFFECTIVE AS OF JULY 11, 1996 WHEREAS, the Securities Act of 1933 requires the filing of a registration statement (the "Registration Statement") on Form S-8 by the Company relating to the Brown-Forman Omnibus Compensation Plan (the "Plan"); NOW, THEREFORE, BE IT RESOLVED, that the appropriate officers of the Company, with the assistance of its accountants and counsel, are hereby authorized to prepare, execute, and file with the Securities and Exchange Commission on behalf of the Company the Registration Statement; BE IT FURTHER RESOLVED, that Michael B. Crutcher, Senior Vice President, General Counsel, and Secretary of the Company, be and hereby is appointed and designated as a person duly authorized to receive communications and notices from the Securities and Exchange Commission with respect to any documents relating to the Registration Statement; and BE IT FURTHER RESOLVED, that the Company and each director and officer who may be required to execute any filings or documents relating to the Registration Statement and any amendments thereof or appendices thereto be, and hereby is, authorized to execute a power of attorney appointing Steven B. Ratoff, Michael B. Crutcher, and Garrison R. Cox, and each of them, his or her true and lawful attorneys and agents: (a) to execute in his name, and on behalf of the Plan, any and all documents relating to the Plan, and to file the same with the Securities and Exchange Commission; and (b) to execute in his name, and on behalf of the Plan, any and all documents relating to the Plan, and to file the same with any state or foreign securities commissions; and I, Nelea A. Absher, being duly elected and acting Assistant Vice President and Assistant Secretary of Brown-Forman Corporation, do hereby certify that the above is a true and correct copy of resolutions adopted by unanimous written consent of the Board of Directors of said corporation, pursuant to Section 141(f) of the Delaware Corporation Code and that said resolutions are still in full force and effect. In testimony whereof, witness my hand this 6th day of May, 1999. /s/ Nelea A. Absher -------------------------- Nelea A. Absher Assistant Vice President and Assistant Secretary Brown-Forman Corporation 14 -----END PRIVACY-ENHANCED MESSAGE-----