<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 10, 1987
REGISTRATION NO. 33-12413
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
BROWN-FORMAN CORPORATION
(Exact name of Issuer as specified in its charter)
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DELAWARE 61-0143150
(State of incorporation) (I.R.S. Employer Identification No.)
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850 DIXIE HIGHWAY
LOUISVILLE, KENTUCKY 40210-1091
(502) 585-1100
(Address, including zip code, and telephone number, including area code, of
Issuer's principal executive offices)
MICHAEL B. CRUTCHER, SECRETARY
BROWN-FORMAN CORPORATION
850 DIXIE HIGHWAY
LOUISVILLE, KENTUCKY 40210-1091
(502) 585-1100
(Name, address, including zip code, and telephone number including area code, of
agent for service for Issuer)
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COPIES TO:
JAMES S. WELCH, ESQ. MARLENE ALVA, ESQ.
OGDEN NEWELL & WELCH DAVIS POLK & WARDWELL
1700 CITIZENS PLAZA 450 LEXINGTON AVENUE
LOUISVILLE, KENTUCKY 40202 NEW YORK, NEW YORK 10017
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined in
light of market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<PAGE> 2
PROSPECTUS
$220,000,000
Brown-Forman Corporation
DEBT SECURITIES
------------------------
Brown-Forman Corporation (the "Company") may offer from time to time, in
one or more series, debt securities ("Debt Securities") with an initial
aggregate offering price not to exceed $220,000,000 (or the equivalent in
foreign denominated currency or units based on or relating to currencies,
including European Currency Units). The Company will offer Debt Securities to
the public on terms determined by market conditions. Debt Securities may be sold
for U.S. dollars, foreign denominated currency, or currency units; principal of
and any interest on Debt Securities may likewise be payable in U.S. dollars,
foreign denominated currency, or currency units -- in each case, as the Company
specifically designates.
The accompanying Prospectus Supplement (the "Prospectus Supplement") sets
forth the specific designation, aggregate principal amount, designated currency
(or currency unit), purchase price, maturity, interest rate (or manner of
calculation thereof), time of payment of interest (if any), listing (if any) on
a securities exchange, and any other specific terms of the Debt Securities and
the name of and compensation to each dealer, underwriter, or agent (if any)
involved in the sale of Debt Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The Company may offer Debt Securities to or through dealers, underwriters,
or agents designated from time to time, as set forth in the Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a purchaser or dealer, the public offering price less discount in the case of
an underwriter, or the purchase price less commission in the case of an
agent -- in each case, less other expenses attributable to issuance and
distribution. See "Plan of Distribution" for possible indemnification
arrangements for dealers, underwriters, and agents.
------------------------
MORGAN STANLEY DEAN WITTER
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
J.P. MORGAN & CO.
August 19, 1998
<PAGE> 3
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR IN THE PROSPECTUS SUPPLEMENT IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS OR IN THE PROSPECTUS
SUPPLEMENT. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY BROWN-FORMAN CORPORATION, OR BY ANY
UNDERWRITER, DEALER, OR AGENT. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT
SHALL NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. THE DELIVERY
OF THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT
THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME AFTER THE DATE HEREOF.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE NOTES.
SPECIFICALLY, THE AGENTS MAY OVERALLOT IN CONNECTION WITH THE OFFERING, AND MAY
BID FOR, AND PURCHASE, THE NOTES IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "PLAN OF DISTRIBUTION".
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TABLE OF CONTENTS
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PAGE
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Available Information....................................... 2
Incorporation of Certain Documents by Reference............. 2
Brown-Forman Corporation.................................... 3
Ratios of Earnings to Fixed Charges......................... 4
Use of Proceeds............................................. 4
Description of Debt Securities.............................. 4
Plan of Distribution........................................ 11
Legal Matters............................................... 12
Experts..................................................... 12
</TABLE>
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AVAILABLE INFORMATION
The Company is required by the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), to file reports, proxy statements, and other information
("reports") with the Securities and Exchange Commission (the "Commission").
These reports can be inspected and copied at the Commission, Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, and at its regional offices at 7
World Trade Center, Suite 1300, New York, New York 10048 and Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60621-2511. These
reports can also be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005, on which the Company's equity securities
are listed. Copies may also be obtained from the Commission's Public Reference
Section, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding the Company at http://www.sec.gov.
This Prospectus does not contain all information set forth in the Registration
Statement, of which this Prospectus is a part, and Exhibits thereto which the
Company has filed with the Commission under the Securities Act of 1933 (the
"Act") and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates by reference into this Prospectus the following
report, filed with the Commission under the Exchange Act:
(a) its Annual Report on Form 10-K for the year ended April 30, 1998
(which incorporates by reference certain portions of the 1998 Annual Report
to Shareholders and the Proxy Statement for the Annual Meeting of
Shareholders held on July 23, 1998).
2
<PAGE> 4
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act after the date of this Prospectus and
before the termination of the offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part of it from the date such documents
are filed. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for the purposes of this Prospectus to the extent that a statement
contained in a subsequently filed document incorporated or deemed to be
incorporated by reference modifies or supersedes such statement. Any statements
so modified or superseded, except as so modified or superseded, shall not be
deemed to be a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED (INCLUDING ANY BENEFICIAL OWNER), ON WRITTEN OR ORAL
REQUEST, A COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED IN THIS PROSPECTUS
BY REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. REQUESTS SHOULD BE MADE TO
BROWN-FORMAN CORPORATION, SHAREHOLDER RELATIONS, P.O. BOX 1080, LOUISVILLE,
KENTUCKY 40201-1080, TELEPHONE (502) 585-1100.
BROWN-FORMAN CORPORATION
The Company was incorporated in Delaware in 1933, as successor to a
business founded in 1870 as a partnership and subsequently incorporated in
Kentucky in 1901. Its principal executive offices are located at 850 Dixie
Highway, Louisville, Kentucky 40210-1091 (mailing address: P.O. Box 1080,
Louisville, Kentucky 40201-1080), and its telephone number is (502) 585-1100.
The Company and its subsidiaries manufacture and market high quality,
consumer branded products in two business segments: wines and spirits and
consumer durables. These segments are summarized below.
WINES AND SPIRITS
The Company was founded as a spirits company more than a century ago, and
its principal business remains wines and spirits. Through its Brown-Forman
Beverages Worldwide division, the Company produces, imports, exports and markets
a wide variety of alcoholic beverage brands. Major brands include Jack Daniel's
Tennessee whiskey, Southern Comfort liqueur, Canadian Mist Canadian whisky,
Early Times Kentucky whisky, Jack Daniel's Country Cocktails, Fetzer Vineyards
California wines, Korbel California champagnes, and Bolla Italian wines.
Statistics based on case sales, published annually by a leading trade
publication, rank Jack Daniel's as the largest selling Tennessee whiskey in the
United States, Canadian Mist as the largest selling Canadian whisky in the
United States, and Southern Comfort as the largest selling domestic proprietary
liqueur in the United States.
In addition to having a large presence in the United States wines and
spirits market, the Company has established a growing overseas business. Jack
Daniel's Tennessee whiskey and Southern Comfort liqueur are the Company's
principal products exported by this segment.
CONSUMER DURABLES
The Company's consumer durables segment includes the manufacturing and/or
marketing of Lenox china and crystal; Lenox Collectibles; Dansk contemporary
tabletop, housewares and giftware; Gorham silver, stainless steel flatware and
crystal, and Hartmann luggage, business cases and personal leather goods.
The Company believes that it is the largest domestic manufacturer and
marketer of fine china dinnerware and the only significant domestic manufacturer
of fine quality china giftware. The Company is also a leading manufacturer and
distributor of fine quality luggage, business cases and personal leather
accessories.
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RATIOS OF EARNINGS TO FIXED CHARGES
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YEAR ENDED APRIL 30,
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1998 1997 1996 1995 1994
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Ratios of Earnings to Fixed Charges..................... 13.7 11.4 10.1 9.2 11.7
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
earnings equals income before income taxes and the cumulative effect of changes
in accounting principles, plus fixed charges. Fixed charges consist of interest
on all indebtedness and a portion of rental expense determined to be
representative of interest.
USE OF PROCEEDS
The Company expects to use the net proceeds from the sale of Debt
Securities for general corporate purposes. Further details relating to the use
of the net proceeds may be set forth in the applicable Prospectus Supplement.
DESCRIPTION OF DEBT SECURITIES
Debt Securities will be unsecured obligations issued under an Indenture
(the "Indenture") dated as of March 1, 1994, between the Company and The First
National Bank of Chicago, as trustee (the "Trustee"). The following summaries
are incomplete and are subject to the detailed provisions of the Indenture, a
copy of which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part. Wherever statements below refer to particular Indenture
provisions, such provisions are incorporated by reference as part of the
statements made, and such statements are qualified in their entirety by such
reference. Capitalized terms used below and not otherwise defined are used as
defined in the Indenture. Section references in italics are to sections of the
Indenture.
GENERAL
Debt Securities will rank equally with all other unsecured and
unsubordinated debt of the Company. Except as described in "Certain Covenants of
the Company -- Negative Pledge" below, the Indenture does not limit the amount
of debt, either secured or unsecured, which the Company may issue under the
Indenture or otherwise.
Under the Indenture, the Company may issue Debt Securities from time to
time with an aggregate initial offering price not to exceed $250,000,000 or the
equivalent thereof in foreign denominated currency or units based on or relating
to foreign currencies, including European Currency Units. Prior to the date of
this Prospectus, the Company issued $30,000,000 aggregate principal amount of
Notes. The Company will offer Debt Securities to the public on terms determined
by then prevailing market conditions. The Company may issue Debt Securities in
one or more series with the same or various maturities and may sell them at par,
at a premium, or at an original issue discount. Debt Securities sold at an
original issue discount may bear no interest or interest at a rate which is
below market rates.
Reference is made to the Prospectus Supplement for the following terms of
Debt Securities offered hereby (to the extent such terms apply to such Debt
Securities): (1) designation, aggregate principal amount, denomination, and
currency or currency unit; (2) the price or prices (generally expressed as a
percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (3) maturity date; (4) currency, currencies, or units
based on or relating to currencies for which Debt Securities may be purchased
and in which principal of, premium (if any) and any interest will or may be
payable; (5) interest rate(s) (or their manner of calculation); (6) the times at
which any such interest will be payable; (7) the place(s) where the principal of
and interest (if any) on Debt Securities will be payable; (8) redemption or
sinking fund provisions or analogous provisions; (9) whether Debt Securities
will be issuable in registered form or bearer form or both and, if in bearer
form, restrictions on the exchange of one form for another and on the offer,
sale, and delivery of Debt Securities in bearer form; (10) whether and under
what circumstances the
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Company will pay additional amounts on Debt Securities held by a person who is
not a U.S. person (as defined below) in respect of any tax, assessment, or
government charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Debt Securities rather than pay such additional
amounts; (11) federal income tax consequences; and (12) any other specific
terms, including any terms which may be required by or advisable under United
States laws or regulations.
For purposes of this Prospectus, "U.S. person" means a citizen, national,
or resident of the United States of America, its territories, possessions, and
all areas subject to its jurisdiction (the "United States"), a corporation,
partnership, or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate or trust the
income of which is subject to United States federal income tax regardless of its
source.
Debt Securities may be presented for exchange, and registered Debt
Securities may be presented for transfer, in the manner, at the place(s), and
subject to the restrictions set forth in Debt Securities and the Prospectus
Supplement. Such services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but subject to the
limitations provided in the Indenture. Debt Securities in bearer form and their
coupons, if any, will be transferable by delivery.
Unless otherwise set forth in the Prospectus Supplement, the Debt
Securities will not contain any provisions which may afford holders of the Debt
Securities protection in the event of a change in control of the Company or in
the event of a highly leveraged transaction (whether or not such transaction
results in a change in control of the Company).
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued as book-entry debt in the
form of one or more fully registered global securities (a "Registered Global
Security") that will be deposited with a depositary ("Depositary") or its
nominee identified in the Prospectus Supplement relating to such series and
registered in the name of the Depositary or its nominee. In such case, one or
more Registered Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding Debt Securities of the series to be represented by such Registered
Global Security or Securities. Unless and until it is exchanged in whole or in
part for Debt Securities in definitive registered form, a Registered Global
Security may not be transferred except as a whole by the Depositary for such
Registered Global Security to a nominee of such Depositary, or by a nominee of
such Depositary to such Depositary or to another nominee of such Depositary, or
by such Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such series.
The Company anticipates that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons holding interests through
participants. Upon the issuance of a Registered Global Security, the Depositary
for such Registered Global Security will credit, on its book-entry registration
and transfer system, the participants' accounts with the respective principal
amounts of the Debt Securities represented by such Registered Global Security
beneficially owned by such participants. The accounts to be credited shall be
designated by any dealers, underwriters, or agents participating in the
distribution of such Debt Securities. Ownership of beneficial interests in such
Registered Global Security will be shown on, and the transfer of such ownership
interests will be effected only through, records maintained by the Depositary
for such Registered Global Security (with respect to interests of participants)
and on the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to own, transfer or
pledge beneficial interests in Registered Global Securities.
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So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under the Indenture. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture. Accordingly, each person owning a beneficial
interest in a Registered Global Security must rely on the procedures of the
Depositary for such Registered Global Security and, if such person is not a
participant, on the procedures of the participant through whom such person owns
its interest, to exercise any rights of a holder under the Indenture. The
Company understands that under existing industry practices, if the Company
requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder is
entitled to give or take under the Indenture, the Depositary for such Registered
Global Security would authorize the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning through such participants to give or take such action
or would otherwise act upon the instructions of beneficial owners holding
through them.
Payments of principal, premium, if any, and interest on Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as the
case may be, as the registered owner of such Registered Global Security. Neither
the Company, the Trustee, nor any other agent of the Company or agent of the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in
such Registered Global Security or for maintaining, supervising, or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium, if any, or interest in respect of such Registered Global Security, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in such Registered Global Security as
shown on the records of such Depositary. The Company also expects that payments
by participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary or
ceases to be a clearing agency registered under the Exchange Act, and a
successor Depositary registered as a clearing agency under the Exchange Act is
not appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Registered Global Security.
In addition, the Company may at any time and in its sole discretion determine
not to have any of the Debt Securities of a series represented by one or more
Registered Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for all of the Registered Global
Security or Securities representing such Debt Securities. Any Debt Securities
issued in definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depositary shall instruct the Trustee.
It is expected that such instructions will be based upon directions received by
the Depositary from participants with respect to ownership of beneficial
interests in such Registered Global Security.
6
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CERTAIN COVENANTS OF THE COMPANY
Negative Pledge. If the Company or any Subsidiary (as defined below) shall
incur, issue, assume or guarantee any debt secured by a Mortgage on any
Principal Property (as defined below) of the Company or any Subsidiary or on any
shares of capital stock or debt of any Subsidiary, the Company will secure, or
cause such Subsidiary to secure, the outstanding Debt Securities equally and
ratably with such secured debt, unless after giving effect thereto the aggregate
amount of all such secured debt together with all Attributable Debt (as defined
below) of the Company and its Subsidiaries in respect of sale and lease-back
transactions involving Principal Properties would constitute less than 10% of
the Consolidated Net Assets (as defined below) of the Company and its
consolidated Subsidiaries. This restriction will not apply in the case of:
(1) Mortgages affecting property of any corporation existing at the
time such corporation becomes a Subsidiary or at the time it is acquired by
the Company or a Subsidiary or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation's becoming a Subsidiary;
(2) Mortgages existing at the time of acquisition of the property
affected thereby, or Mortgages incurred to secure payment of all or part of
the purchase price of such property or to secure debt incurred prior to, at
the time of, or within 180 days after, the acquisition of such property for
the purpose of financing all or part of the purchase price thereof
(provided such Mortgages are limited to such property and improvements
thereto);
(3) Mortgages placed into effect prior to, at the time of, or within
180 days of completion of construction of new facilities (or any
improvements to existing facilities) to secure all or part of the cost of
construction (or improvement) of such facilities, or to secure debt
incurred to provide funds for any such purpose (provided such Mortgages are
limited to the property or portion thereof upon which the construction
being so financed occurred and improvements the cost of construction of
which is being so financed);
(4) Mortgages which secure only debt owing by a Subsidiary to the
Company or to a wholly-owned Subsidiary;
(5) Mortgages required by any contract or statute in order to permit
the Company or a Subsidiary to perform any contract or subcontract made by
it with or at the request of the United States of America or any State, or
any department, agency, instrumentality or political subdivision of any of
the foregoing, and Mortgages in favor of such entities on property owned or
leased by the Company or a Subsidiary (a) to secure any debt incurred for
the purpose of financing (including any industrial development bond
financing) all or any part of the purchase price or the cost of
constructing, expanding or improving the property subject thereto (provided
such Mortgages are limited to the property or portion thereof upon which
the construction being so financed occurred and the improvements the cost
of construction of which is being so financed), or (b) required to permit
the attachment or removal of any equipment designed primarily for the
purpose of air or water pollution control, provided that such Mortgages
shall not extend to other property or assets of the Company or any
Subsidiary; and
(6) certain extensions, renewals or replacements of Mortgages referred
to in the foregoing clauses. (Section 3.6(a))
Restrictions on Sale and Lease-Back Transactions. Neither the Company nor
any Subsidiary may, after the effective date of the Indenture, enter into any
Sale and Lease-Back Transaction involving any Principal Property, acquired or
placed into service more than 180 days prior to such transaction, whereby such
property has been or is to be sold or transferred by the Company or any
Subsidiary, unless:
(1) the Company or such Subsidiary would at the time of entering into
such transaction be entitled to create debt secured by a Mortgage on such
property as described in "Certain Covenants of the Company -- Negative
Pledge" above in an amount equal to the Attributable Debt with respect to
the Sale and Lease-Back Transaction without equally and ratably securing
the outstanding Debt Securities; or
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(2) the Company applies to the retirement (other than any mandatory
retirement) of Funded Debt of the Company (as defined below) an amount
equal to the net proceeds from the sale of the Principal Property so leased
within 90 days of the effective date of any such Sale and Lease-Back
Transaction, provided that the amount to be applied to the retirement of
Funded Debt of the Company shall be reduced by (a) the principal amount of
any Debt Securities delivered by the Company to the Trustee within 90 days
after such Sale and Lease-Back Transaction for retirement and cancellation,
and (b) the principal amount of Funded Debt, other than Debt Securities
voluntarily retired by the Company within 90 days following such Sale and
Lease-Back Transaction. This restriction will not apply to any Sale and
Lease-Back Transaction (i) involving the taking back of a lease for a
period of three years or less; (ii) involving industrial development or
pollution control financing; or (iii) between the Company and a Subsidiary
or between Subsidiaries. (Section 3.6(b))
"Attributable Debt" means, with respect to any Sale and Lease-Back
Transaction, as of any particular time, the present value discounted at the rate
of interest implicit in the terms of the lease of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended or may, at the
option of the Company, be extended). (Section 1.1.)
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom all current liabilities (excluding any portion thereof constituting
Funded Debt by reason of being renewable or extendable), all as set forth on the
most recent balance sheet of the Person for which such determination is being
made and computed in accordance with generally accepted accounting principles.
(Section 1.1.)
"Funded Debt" means all indebtedness for money borrowed classified as
long-term debt on the most recent audited balance sheet (or if incurred
subsequent to the date of such balance sheet, would have been so classified) of
the Person for which the determination is being made. (Section 1.1.)
"Principal Property" means all property and equipment located within the
United States of America directly engaged in the manufacturing activities of the
Company and its Subsidiaries, including manufacturing and processing facilities,
except any such property and equipment which the Board of Directors of the
Company declares is not material to the business of the Company and its
Subsidiaries taken as a whole. (Section 1.1.)
"Subsidiary" means any corporation, partnership or other entity of which at
the time of determination the Company owns or controls directly or indirectly
more than 50% of the outstanding shares of voting stock or equivalent interest.
(Section 1.1.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not merge or consolidate with any other Person or sell,
lease or convey all or substantially all of its assets to any other Person,
unless: (1) either the Company is the continuing corporation or the successor
corporation or the Person which acquires by sale, lease or conveyance
substantially all the assets of the Company is a corporation organized under the
laws of the United States, any State thereof, or the District of Columbia, and
expressly assumes the Company's obligations under the Debt Securities and the
Indenture by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation; and (2) the Company, such
successor corporation, or such Person shall not, immediately after giving effect
to the transaction, be in default in the performance of any such covenant or
condition. (Section 9.1.) Upon any such consolidation, merger, sale, lease or
conveyance and following such assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company under
the Indenture and under the Debt Securities. (Section 9.2.)
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the Indenture with respect to Debt Securities of any series: (1) failure to pay
any interest on any Debt Security of that series when due and
8
<PAGE> 10
continuance of such default for 30 days; (2) failure to pay principal of or any
premium on any Debt Security of that series when due, either at maturity, upon
any redemption, by declaration, or otherwise; (3) failure to observe or perform
any other of the covenants or agreements of the Company in the Indenture (other
than a covenant the default or breach of which is otherwise specifically dealt
with in the Indenture) continued for 60 days after written notice as provided in
the Indenture; (4) certain events of bankruptcy, insolvency, or reorganization
of the Company; or (5) any other Event of Default provided in a supplemental
indenture with respect to Debt Securities of that series. (Section 5.1.)
If any Event of Default with respect to the Debt Securities of any series
occurs and is continuing, either the Trustee or the holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of each such
affected series, by written notice to the Company (and to the Trustee if given
by such holders of Debt Securities), may declare the principal amount (or, if
the Debt Securities of that series are Original Issue Discount Debt Securities,
such portion of the principal amount as may be specified in the Prospectus
Supplement relating to such series) and accrued interest of all the Debt
Securities of all such affected series to be due and payable immediately. At any
time after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before a judgment or decree based on such acceleration
has been obtained, the holders of a majority in aggregate principal amount of
outstanding Debt Securities of each such series may, under certain
circumstances, rescind and annul such acceleration. (Section 5.1.)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of that series notice of all defaults
known to it unless such default shall have been cured; except that in the case
of a default in payment of the principal of the Debt Securities of such series,
or in the payment of any sinking fund installment of such series, the Trustee
may withhold the notice if and so long as it in good faith determines that
withholding such notice is in the interests of the holders of the Debt
Securities of such series. (Section 5.11.)
The Indenture provides that the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of each series affected
(with all such series voting as a single class) may direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee for
such series, or exercising any trust or power conferred on such Trustee.
(Section 5.9.)
The holders of a majority in aggregate principal amount outstanding of any
series of Debt Securities by notice to the Trustee may waive, on behalf of the
holders of all Debt Securities of such series, any past default or Event of
Default with respect to such series and its consequences except in respect of a
covenant or provision of the Indenture, which cannot be modified or amended
without the consent of the holders of 100% of Debt Securities of all series
affected. (Section 5.10.)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate as to the Company's compliance with all conditions and
covenants of the Indenture. (Section 3.5.)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
holders of any of the Debt Securities in order to: (1) transfer or pledge any
property to the Trustee as security for the Debt Securities of any series; (2)
evidence the succession of another corporation to the Company and the assumption
of the covenants, agreements and obligations of the Company by a successor to
the Company; (3) add to the covenants of the Company such further covenants or
provisions so as to further protect the holders of Debt Securities; (4) cure any
ambiguity or correct or supplement any defective or inconsistent provisions or
to make any other provisions as the Company deems necessary or desirable,
provided such action does not materially adversely affect the interests of the
holders of Debt Securities of any series; (5) establish the form or terms of
Debt Securities; or (6) evidence and provide for a successor trustee. (Section
8.1.)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities affected by such supplemental
indenture (voting as one class), to execute supplemental indentures adding any
provisions to or
9
<PAGE> 11
changing or eliminating any of the provisions of the Indenture or any
supplemental indenture or modifying the rights of the holders of Debt Securities
of each such series, except that no such supplemental indenture may, without the
consent of the holders of 100% of Debt Securities of all series affected: (a) as
to any Debt Security, (i) extend its final maturity; (ii) reduce its principal
amount; (iii) reduce its rate or extend the time of payment of interest on it;
(iv) reduce its redemption premium; (v) change the currency or currency unit in
which it or any premium or interest is payable; (vi) reduce the amount of
principal payable upon acceleration of the maturity of any Original Issue
Discount Security; (vii) alter the provisions of Section 11.11 or 11.12 of the
Indenture; (viii) affect the right to institute suit for the enforcement of any
payment on or with respect to it or any right of repayment at the option of the
holder of it; or (b) reduce below a majority the percentage in principal amount
of the outstanding Debt Securities the consent of the holders of which is
required for any such supplemental indenture. (Section 8.2.)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company can discharge or defease its obligations under the Indenture
while Debt Securities remain Outstanding under three sets of circumstances:
(1) Outstanding Debt Securities Due within One Year. Paragraph (A)(c)
of Section 10.1 allows the Company, under terms satisfactory to the
Trustee, to discharge certain obligations (except for certain obligations
to register the transfer or exchange of such Debt Securities; to replace
temporary, mutilated, destroyed, lost, or stolen Debt Securities; or to
maintain an office or agency in respect of the Debt Securities) to holders
of Debt Securities not already delivered to the Trustee for cancellation
which have either become due and payable or are by their terms due and
payable within one year or scheduled for redemption within one year by
depositing irrevocably with the Trustee cash, U.S. Government Obligations,
or a combination thereof as trust funds in an amount certified to be
sufficient to pay at maturity or upon redemption the principal of, premium
(if any), and interest on such Debt Securities (and related unmatured
Coupons).
(2) Defeasance. Defeasance under paragraph (B) of Section 10.1 would
discharge the Company from any and all of its obligations to holders of any
series of Debt Securities under the Indenture (except for certain
obligations to register the transfer or exchange of such Debt Securities;
to replace temporary, mutilated, destroyed, lost, or stolen Debt
Securities; or to maintain an office or agency in respect of the Debt
Securities) by depositing irrevocably with the Trustee cash, U.S.
Government Obligations, or a combination thereof as trust funds in an
amount certified to be sufficient to pay at maturity or upon redemption the
principal of, premium (if any), and interest on such Debt Securities (and
related unmatured Coupons). A trust to effect defeasance under this
paragraph may be established only if, among other things, the Company
delivers to the Trustee an opinion of counsel to the effect that the
holders of such Debt Securities will not recognize income, gain, or loss
for Federal income tax purposes as a result of such defeasance and that
defeasance will not otherwise alter such holders' tax treatment of
principal, premium (if any), and interest payments on the Debt Securities;
such opinion must be based on a ruling of the Internal Revenue Service or a
change in Federal income tax law occurring after the Indenture's date, as
such a result would not occur under current tax law.
(3) Covenant Defeasance. Paragraph (C) of Section 10.1 allows the
Company, under terms satisfactory to the Trustee, to be released from its
obligations with respect to all Outstanding Debt Securities restricted by
Sections 3.6 and 9.1 of the Indenture (which contain the covenants limiting
liens, sale and lease-back transactions, and consolidations, mergers, and
asset sales described above), and to omit to comply with such sections
without creating an Event of Default, by depositing irrevocably with the
Trustee cash, U.S. Government Obligations, or a combination thereof as
trust funds in an amount certified to be sufficient to pay at maturity or
upon redemption the principal of, premium (if any), and interest on all
Outstanding Debt Securities (and related unmatured Coupons) ("covenant
defeasance"). A trust to effect covenant defeasance may be established only
if, among other things, the Company delivers to the Trustee an opinion of
counsel to the effect that the holders of such Debt Securities will not
recognize income, gain, or loss for Federal income tax purposes as a result
of such covenant defeasance and that covenant defeasance will not otherwise
alter such holders' tax treatment of principal, premium (if any), and
interest payments on the Debt Securities.
10
<PAGE> 12
THE TRUSTEE
The First National Bank of Chicago is the Trustee under the Indenture. The
Company maintains banking and other commercial relationships with the Trustee in
the ordinary course of business.
The Indenture provides that in the event a corporation succeeds to the
corporate trust business of the Trustee, the Company may elect to remove such
successor to the Trustee. (Section 6.12.)
PLAN OF DISTRIBUTION
The Company may sell Debt Securities being offered by this Prospectus: (1)
directly to purchasers; (2) to or through agents; (3) to or through dealers; (4)
to or through underwriters; or (5) through a combination of such methods. Any
such agents, dealers, or underwriters may include Morgan Stanley & Co.,
Incorporated, Goldman, Sachs & Co., Lehman Brothers Inc. and J.P. Morgan
Securities Inc. (collectively, the "Underwriters").
The Company or designated agents may solicit offers to purchase Debt
Securities from time to time. The applicable Prospectus Supplement will set
forth the name of and commission payable to any such agent (which may be deemed
to be an "underwriter" as that term is defined in the Act) involved in the offer
or sale of Debt Securities. Unless the Prospectus Supplement indicates
otherwise, any such agent will be acting on a best efforts basis for the period
of its appointment.
If the Company uses a dealer to sell Debt Securities, the Company will sell
them to such dealer as principal. The dealer may then resell such Debt
Securities to the public at prices it determines at the time of resale. Any such
dealer may be deemed to be an "underwriter" as that term is defined in the Act.
The applicable Prospectus Supplement will set forth the name of any such dealer,
the amount of Debt Securities purchased, and the price paid.
If the Company uses one or more underwriters to sell Debt Securities, the
Company will enter into an underwriting agreement with such underwriters at the
time of sale to them. The applicable Prospectus Supplement will set forth any
such underwriter's name and the transaction's terms. The underwriter(s) will use
the Prospectus Supplement to make resales of Debt Securities.
Agents, dealers, or underwriters may enter into agreements with the Company
which require the Company to indemnify them against certain civil liabilities,
including liabilities under the Act. Such agents, dealers, or underwriters and
certain of their affiliates may engage in investment banking, commercial banking
or other transactions with, and perform services for, the Company and certain of
its affiliates in the ordinary course of business.
The Company may authorize agents and underwriters to solicit offers by
certain institutions to purchase Debt Securities from the Company pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and delivery on
the date stated in the Prospectus Supplement. Each Contract will be for an
amount not less than, and (unless the Company agrees otherwise) the aggregate
principal amount of Debt Securities sold pursuant to Contracts shall equal, the
respective amounts stated in the Prospectus Supplement. Contracts may be made
with commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions, but shall in all cases be subject to Company approval. Contracts
will be unconditional, except that any related sale of Debt Securities must at
the time of delivery be permitted under the laws of any jurisdiction in the
United States to which such institution is subject. The Prospectus Supplement
sets forth the commissions payable to underwriters and agents soliciting
purchases of Debt Securities pursuant to such Contracts.
The Company does not intend to list Debt Securities on any stock exchange.
The Company has, however, been advised by the Underwriters that they currently
intend to make a market in Debt Securities. No assurance can be given, however,
that the Underwriters will make such a market in Debt Securities or as to Debt
Securities' liquidity.
The accompanying Prospectus Supplement sets forth the place and time of
delivery for Debt Securities.
11
<PAGE> 13
LEGAL MATTERS
Certain matters relating to the legality of Debt Securities offered hereby
will be passed upon for the Company by Ogden Newell & Welch, Louisville,
Kentucky, and for any purchasers, agents, dealers, or underwriters by Davis Polk
& Wardwell, New York, New York. James S. Welch is a partner in the law firm of
Ogden Newell & Welch and is a director of the Company.
The Company is advised that as of August 1, 1998, members of Ogden Newell &
Welch owned 5,565 shares of Class A Common Stock and 2,585 shares of Class B
Common Stock of the Company.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-K for the year ended April
30, 1998, have been so incorporated in reliance on the reports of Coopers &
Lybrand, L.L.P., independent accountants, given on the authority of said firm as
experts in auditing and accounting.
The financial statements similarly incorporated in this Prospectus by
reference to all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act (before the filing of a
post-effective amendment which deregisters all securities then remaining unsold)
are or will be so incorporated in reliance upon the reports of
PricewaterhouseCoopers LLP (formerly Coopers & Lybrand, L.L.P.) and any other
independent accountants, relating to such financial statements and upon the
authority of such independent accountants as experts in auditing and accounting
in giving such reports to the extent that the particular firm has examined such
financial statements and consented to the use of their reports thereon.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company'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 Company officers or in
other capacities.
In addition, the Company's Board of Directors has adopted a resolution
which provides that the Company 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 Company, or is or was serving at
the Company'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 Company'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 Company, 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 Company'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 Company.
The Underwriting Agreement relating to the sale of any Debt Securities may
entitle the Company's directors, officers, and controlling persons to
indemnification under certain conditions from the purchasers, dealers,
underwriters, or agents involved in the sale of such Debt Securities.
ITEM 16. EXHIBITS.
See Index to Exhibits.
ITEM 17. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Act;
(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; and
1
<PAGE> 15
(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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Sections 13 or 15(d) of the Exchange Act that
are incorporated by reference in this registration statement;
(b) that, for the purpose of determining any liability under the Act,
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; and
(c) 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.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Company's annual
report pursuant to Sections 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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.
(3) Insofar as indemnification for liabilities under the Act may be
permitted to directors, officers, and controlling persons of the registrant
under Item 15 above, 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 registrant by such
director, officer, or controlling person in connection with the securities being
registered, such 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.
2
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Brown-Forman
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
post-effective amendment no. 2 to this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Louisville and Commonwealth of Kentucky, on this 19th day of August, 1998.
BROWN-FORMAN CORPORATION
By: /s/ OWSLEY BROWN II*
------------------------------------
Owsley Brown II
Chief Executive Officer
*By: /s/ MICHAEL B. CRUTCHER
-----------------------------------
Michael B. Crutcher
Attorney-in-fact for
Owsley Brown II
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment no. 2 to registration statement No. 33-12413 has been
signed by the following persons in the capacities indicated on this 19th day of
August, 1998.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<C> <S>
Director
- -----------------------------------------------------
Barry D. Bramley
/s/ GEORGE GARVIN BROWN III* Director
- -----------------------------------------------------
George Garvin Brown III
/s/ OWSLEY BROWN II* Chief Executive Officer and Director
- ----------------------------------------------------- (Chairman) (Principal Executive Officer)
Owsley Brown II
/s/ DONALD G. CALDER* Director
- -----------------------------------------------------
Donald G. Calder
/s/ OWSLEY BROWN FRAZIER* Vice Chairman and Director
- -----------------------------------------------------
Owsley Brown Frazier
Director
- -----------------------------------------------------
Richard P. Mayer
/s/ STEPHEN E. O'NEIL* Director
- -----------------------------------------------------
Stephen E. O'Neil
/s/ LAWRENCE K. PROBUS Vice President
- ----------------------------------------------------- (Principal Accounting Officer)
Lawrence K. Probus
/s/ STEVEN B. RATOFF Executive Vice President
- ----------------------------------------------------- (Principal Financial Officer)
Steven B. Ratoff
/s/ WILLIAM M. STREET* Vice Chairman and Director
- -----------------------------------------------------
William M. Street
/s/ JAMES S. WELCH* Director
- -----------------------------------------------------
James S. Welch
*By: /s/ MICHAEL B. CRUTCHER
------------------------------------------------
Michael B. Crutcher
Attorney-in-fact for all of
the above persons
</TABLE>
3
<PAGE> 17
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER PAGE
- ------- ------------
<C> <C> <S> <C>
5 -- Opinion of Ogden Newell & Welch as to validity of Debt
Securities.................................................. 5
12 -- Computation of Ratios of Earnings to Fixed Charges.......... 6
23(a) -- Consent of PricewaterhouseCoopers LLP....................... 7
23(b) -- Consent of Ogden Newell & Welch (included in the opinion
filed as Exhibit (5) to this registration statement)........ 5
25(a) -- Certified copy of resolution of the Board of Directors of
Brown-Forman Corporation authorizing the corporation and its
officers to name Michael B. Crutcher, Steven B. Ratoff, and
Meredith M. Parente, to sign on their behalf this
post-effective amendment and any and all subsequent
post-effective amendments................................... 8
25(b) -- Power of attorney authorizing Michael B. Crutcher, Meredith
M. Parente, and Steven B. Ratoff, to sign this
post-effective amendment and any and all subsequent
post-effective amendments on behalf of the Company and its
directors................................................... 10
</TABLE>
4
<PAGE> 1
EXHIBIT 5
[ONW letterhead]
August 19, 1998
Brown-Forman Corporation
850 Dixie Highway
Louisville, Kentucky 40210-1091
Dear Sirs:
We have examined the Post-Effective Amendments to the Registration
Statements (the "Registration Statements") to which this opinion is an exhibit
and the Prospectus dated August 19, 1998 (the "Prospectus") included therein for
the registration under the Securities Act of 1933, as amended, of $220,000,000
in principal amount of Debt Securities (the "Debt Securities") of Brown-Forman
Corporation (the "Company"). We have also examined the form of Indenture by and
between the Company and the First National Bank of Chicago filed as an exhibit
to the Registration Statement (the "Indenture") under which the Debt Securities
are to be qualified and such other documents, records and matters of law, and
made such other examinations as we have deemed to be requisite in the premises.
Based on such examination, we are of the opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus.
2. The Debt Securities have been duly authorized by the Board of
Directors of the Company and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered by the Company against receipt by
it of the consideration therefor, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,in each case
enforceable in accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
We hereby consent to the use and filing of this opinion as an exhibit
to the Registration Statement and to the reference to our name in the Prospectus
under the caption "Legal Opinions."
Very truly yours,
OGDEN NEWELL & WELCH
/s/ Ogden Newell & Welch
5
<PAGE> 1
EXHIBIT 12
BROWN-FORMAN CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
YEAR ENDED APRIL 30,
--------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings before income taxes and cumulative effect of
accounting changes........................................ 296 273 257 247 257
Add: Fixed charges.......................................... 23 26 28 30 24
---- ---- ---- --- ----
Earnings available for fixed charges........................ 319 299 285 277 281
==== ==== ==== === ====
Fixed Charges:
Interest incurred......................................... 14 17 20 23 17
Portion of rent expense deemed to represent interest
factor................................................. 9 9 8 7 7
---- ---- ---- --- ----
Fixed charges............................................... 23 26 28 30 34
==== ==== ==== === ====
Ratio of earnings to fixed charges.......................... 13.7 11.4 10.1 9.2 11.7
==== ==== ==== === ====
</TABLE>
6
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Post-Effective Amendment
No. 2 to the registration statement of Brown-Forman Corporation on Form S-3
(File No. 33-12413) of our report dated May 27, 1998, on our audits of the
consolidated financial statements and financial statement schedule of
Brown-Forman Corporation and Subsidiaries. We also consent to reference to our
firm under the caption "Experts."
/s/ PricewaterhouseCoopers LLP
Louisville, Kentucky
August 19, 1998
7
<PAGE> 1
Exhibit 25(a)
CERTIFICATE OF RESOLUTION OF
THE BOARD OF DIRECTORS OF
BROWN-FORMAN CORPORATION
I, Michael B. Crutcher, hereby certify that I am Senior Vice President,
General Counsel and Secretary of Brown-Forman Corporation and that at a meeting
of said Corporation, held on May 28, 1998, the following Resolution was adopted:
WHEREAS, on February 24, 1994, the Corporation was authorized to issue from time
to time unsecured debentures, notes, and/or other debt obligations ("Debt
Securities") in an aggregate principal amount of up to $250 million (or, if Debt
Securities are issued at original issue discount, such greater amount as shall
result in aggregate proceeds of up to $250 million to the Corporation) (the
"Debt Facility"); and
WHEREAS, the authority of the Treasurer of the Corporation to make sure of this
Debt Facility expired on April 30, 1998; and
WHEREAS, it is in the best interests of the Corporation to continue and extend
the Treasurer's authority to make use of this Debt Facility.
RESOLVED, that the Treasurer's authority to make use of the Debt Facility is
hereby extended to April 30, 2002.
FURTHER RESOLVED, that the resolution adopted February 24, 1994 under the
heading "DECISION MAKERS FOR DEBT TERMS" is hereby repealed, and is replaced
with:
FURTHER RESOLVED, that within the limitations specified in these
resolutions, the terms of the Debt Securities and the decisions on whether
and when to issue them shall be made by the Chief Financial Officer, Vice
Chairman or Chairman, or their respective designee(s).
FURTHER RESOLVED, that the resolution adopted February 24, 1994 under the
heading "POWERS OF ATTORNEY" is hereby repealed, and is replaced with:
FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby
is, authorized, in the Corporation's name and on its behalf, to execute and
deliver a power of attorney, substantially in the form presented to a
8
<PAGE> 2
meeting of this Board of Directors, appointing Michael B. Crutcher,
Meredith M. Parente, or Steven B. Ratoff, or any of them to act as
attorneys-in-fact for the Corporation for the purpose of executing and
filing with the SEC, in its name and on its behalf, any such Registration
Statement and any and all amendments (including, without limitations,
post-effective amendments) or supplements thereto, with any exhibits
thereto and other documents in connection therewith.
FURTHER RESOLVED, that all other resolutions of this Board of February 24, 1994
relating to the Debt Facility are affirmed.
FURTHER RESOLVED, that any Authorized Officer, as such are defined in the
resolutions of February 24, 1994, are authorized, on behalf and in the name of
the Corporation, to execute and deliver such amendments to the Underwriting
Agreement, the Distribution Agreement, the Indenture, and other Debt Facility
documents as are deemed reasonable and appropriate.
/s/ Michael B. Crutcher
-----------------------------------
Michael B. Crutcher
Senior Vice President,
General Counsel & Secretary
COMMONWEALTH OF KENTUCKY )
) ss.
COUNTY OF JEFFERSON )
Subscribed and sworn to before me by Michael B. Crutcher this 13th
day of August, 1998.
My commission expires: 7/5/2002
------------------
/s/ Kathy Barker
-----------------------------------
Notary Public
KY State at Large
9
<PAGE> 1
Exhibit 25(b)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of the 19th day of August, 1998, the
undersigned each constitutes and appoints Michael B. Crutcher, Meredith M.
Parente and Steven B. Ratoff, and each of them, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him or her 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
post-effective amendments to Registration Statements on Form S-3,
Registration No. 33-52551 and Registration No. 33-12413, and any and all
related amendments and exhibits; 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 for compliance with state securities laws
relating to the aforementioned Registration Statements,
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 Barry D. Bramley, Director
Chairman & Chief Executive Officer
/s/ Geo. Garvin Brown III /s/ Owsley Brown II
- ------------------------------------- --------------------------------
Geo. Garvin Brown III, Director Owsley Brown II, Director
/s/ Donald G. Calder /s/ Owsley Brown Frazier
- ------------------------------------- --------------------------------
Donald G. Calder, Director Owsley Brown Frazier, Director
/s/ Stephen E. O'Neil
- ------------------------------------- --------------------------------
Richard P. Mayer, Director Stephen E. O'Neil, Director
/s/ William M. Street /s/ James S. Welch
- ------------------------------------- --------------------------------
William M. Street, Director James S. Welch, Director
10
