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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.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
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
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class B Common 1,500,000 $70.375 $105,562,500.00 $29,346.38
Stock (non voting)
par value $0.15
per share
</TABLE>
- -------------------------------------------------------------------------------
(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.
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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.
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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
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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
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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
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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.
<TABLE>
<S> <C>
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
</TABLE>
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<TABLE>
<S> <C>
- ----------------------------
* 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
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
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
</TABLE>
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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.
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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
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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
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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
<TABLE>
<S> <C>
/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
</TABLE>
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<TABLE>
<S> <C>
/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
</TABLE>
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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
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