Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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FORTUNE BRANDS, INC.
(Exact Name of Registrant as specified in its charter)
Delaware 13-3295276
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
300 Tower Parkway, Lincolnshire, Illinois 60069
(Address of Principal Executive Offices) (Zip Code)
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Fortune Brands, Inc.
1999 Long-Term Incentive Plan
(Full Title of the Plan)
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MARK A. ROCHE, ESQ. Copy to:
Senior Vice President, General Counsel and Secretary EDWARD P. SMITH, ESQ.
FORTUNE BRANDS, INC. CHADBOURNE & PARKE LLP
300 Tower Parkway 30 Rockefeller Plaza
Lincolnshire, Illinois 60069 New York, New York 10112
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (847) 484-4400
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------- -------------------- ---------------- ----------------- ----------------
Proposed Proposed
maximum maximum
Title of securities Amount to offering price aggregate Amount of
to be registered be registered** per share*** offering registration
price*** fee
- ------------------------------------- -------------------- ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $3.125 per
share, and Preferred Share
Purchase 12,000,000 shares $28.71875 $344,625,000 $90,981
Rights*...........................
- ------------------------------------- -------------------- ---------------- ----------------- ----------------
</TABLE>
* The Preferred Share Purchase Rights are attached to and trade with the Common
Stock. The value, if any, attributed to such Rights is reflected in the market
price of the Common Stock.
** There are also registered hereunder such indeterminate number of additional
shares as may become subject to awards under the Plan as a result of the
antidilution provisions contained therein.
*** Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act"), on the basis of the average of the high and low per share
market price ($29.0625 and $28.375, respectively) of the Common Stock on January
26, 2000, as reported on the New York Stock Exchange Composite Transactions.
<PAGE>
EXPLANATORY NOTE
The prospectus, containing information required by Part I of Form S-8
and related to this Registration Statement, is omitted from this Registration
Statement in accordance with the Note to Part I of Form S-8. The prospectus will
also be used in connection with the offer and sale of shares of Fortune Brands
common stock registered under the Registration Statements on Form S-8 of Fortune
Brands bearing Registration Nos. 33-58865 (as amended by Post-Effective
Amendment No. 1 on Form S-8) and 33-39855 for the Fortune Brands, Inc. 1990
Long-Term Incentive Plan and Registration No. 33-7823 for the Fortune Brands,
Inc. 1986 Stock Option Plan.
Fortune Brands changed its name from American Brands, Inc. to Fortune
Brands, Inc. on May 30, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant with the Securities and
Exchange Commission (the "Commission") are specifically incorporated herein by
reference and made a part hereof:
(i) Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which incorporates by reference certain information, including
the Company's 1998 consolidated financial statements contained in its
1998 Annual Report to Stockholders;
(ii) all other reports filed by Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1998;
(iii) the description of Registrant's Common Stock, par value
$3.125 per share, set forth under the headings "Description of Fortune
Brands Capital Stock" and "Comparative Rights of Shareholders" on pages
94-105 of Registrant's Proxy Statement for the 1997 Annual Meeting of
Stockholders of Fortune Brands, Inc.;
(iv) the description of Registrant's Preferred Share Purchase
Rights, set forth on Registrant's Application for Registration on Form
8-A dated December 22, 1997; and
(v) Registrant's Registration Statements on Form S-8
(Registration Nos. 33-7823, 33-39855 and 33-58865 (as amended by
Post-Effective Amendment No. 1 on Form S-8)).
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and 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 subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Registration Statement.
Item 4. Description of Securities.
This Item is not applicable as Registrant's Common Stock is registered
under Section 12 of the Exchange Act.
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Item 5. Interests of Named Experts and Counsel.
This Item is not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides in part
as follows:
"(a) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection
with such action, suit or proceeding if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which the person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that the person's
conduct was unlawful.
"(b) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of
such action or suit if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
"(c) To the extent that a present or former director or
officer of a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, such person shall be indemnified
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against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or
agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination
(1) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal counsel
in a written opinion, or (4) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the
corporation deems appropriate.
"(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as
to action in another capacity while holding such office.
"(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability under this
section.
"(h) For purposes of this section, references to 'the
corporation' shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as such person would
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have with respect to such constituent corporation if its separate
existence had continued.
"(i) For purposes of this section, references to 'other
enterprises' shall include employee benefit plans; references to
'fines' shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to 'serving at the
request of the corporation' shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner 'not opposed to the best interests of
the corporation' as referred to in this section.
"(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
"(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees)."
Article XIII of Registrant's By-laws provides as follows:
"Section 1. (A) Each person (an 'indemnitee') who was or is made or
threatened to be made a party to or was or is involved (as a witness or
otherwise) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a 'proceeding'), by reason of the
fact that he or she or a person of whom he or she is the legal representative
was or is a director, officer or employee of [Registrant] or was or is serving
at the request of [Registrant] as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding was or is alleged action in an official capacity as
a director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held harmless
by [Registrant] to the fullest extent permitted by the General Corporation Law
of the State of Delaware as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
[Registrant] to provide broader indemnification rights than said law permitted
[Registrant] to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees and retainers therefor, judgments, fines,
excise taxes or penalties under the Employee Retirement Income Security Act of
1974, as amended, and amounts paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in Section 3 of this
Article XIII with respect to proceedings seeking to enforce rights to
indemnification, [Registrant] shall indemnify any such person seeking
indemnification in connection with
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a proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of [Registrant].
(B) The right to indemnification conferred in this Article XIII is and
shall be a contract right. The right to indemnification conferred in this
Article XIII shall include the right to be paid by [Registrant] the expenses
(including attorneys' fees and retainers therefor) reasonably incurred in
connection with any such proceeding in advance of its final disposition, such
advances to be paid by [Registrant] within 20 days after the receipt by
[Registrant] of a statement or statements from the indemnitee requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to [Registrant] of an undertaking
by or on behalf of such director or officer, to repay all amounts so advanced if
it shall ultimately be determined that such director or officer is not entitled
to be indemnified under this Article XIII or otherwise.
"Section 2. (A) To obtain indemnification under this Article XIII, an
indemnitee shall submit to [Registrant] a written request, including therein or
therewith such documentation and information as is reasonably available to the
indemnitee and is reasonably necessary to determine whether and to what extent
the indemnitee is entitled to indemnification. Upon written request by an
indemnitee for indemnification pursuant to the first sentence of this Section
2(A), a determination, if required by applicable law, with respect to the
indemnitee's entitlement thereto shall be made as follows: (1) if requested by
the indemnitee, by Independent Counsel (as hereinafter defined), or (2) if no
request is made by the indemnitee for a determination by Independent Counsel,
(a) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (b) if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the indemnitee, or (c) by the stockholders of
[Registrant]. In the event the determination of entitlement to indemnification
is to be made by Independent Counsel at the request of the indemnitee, the
Independent Counsel shall be selected by the indemnitee unless the indemnitee
shall request that such selection be made by the Board of Directors, in which
event the Independent Counsel shall be selected by the Board of Directors. If it
is so determined that the indemnitee is entitled to indemnification, payment to
the indemnitee shall be made within 10 days after such determination.
(B) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that the indemnitee is entitled to indemnification
under this Article XIII, and [Registrant] shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
"Section 3.(A) If a claim under Section 1 of this Article XIII is not
paid in full by [Registrant] within 30 days after a written claim pursuant to
Section 2(A) of this Article XIII has been received by [Registrant], or if an
advance is not made within 20 days after a request therefor pursuant to Section
1(B) of this Article XIII has been received by [Registrant], the indemnitee may
at any time thereafter bring suit (or, at the indemnitee's option, an
arbitration proceeding before a single arbitrator pursuant to the rules of the
American Arbitration Association) against [Registrant] to recover the unpaid
amount of
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the claim or the advance and, if successful in whole or in part, the indemnitee
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such suit or proceeding (other than a suit or
proceeding brought to enforce a claim for expenses incurred in connection with
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to [Registrant]) that the
indemnitee has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for [Registrant] to
indemnify the indemnitee for the amount claimed or that such indemnification
otherwise is not permitted under the General Corporation Law of the State of
Delaware, but the burden of proving such defense shall be on [Registrant].
(B) Neither the failure of [Registrant] (including its Board of
Directors, Independent Counsel or stockholders) to have made a determination
prior to the commencement of such action that indemnification of the indemnitee
is proper in the circumstances because he or she has met the applicable standard
of conduct set forth in the General Corporation Law of the State of Delaware,
nor an actual determination by [Registrant] (including its Board of Directors,
Independent Counsel or stockholders) that the indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the indemnitee has not met the applicable standard of conduct.
(C) If a determination shall have been made pursuant to Section 2(A) of
this Article XIII that the indemnitee is entitled to indemnification,
[Registrant] shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to paragraph (A) of this Section 3.
(D) [Registrant] shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to paragraph (A) of this Section 3
that the procedures and presumptions of this Article XIII are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that [Registrant] is bound by all the provisions of this Article
XIII.
"Section 4. The right to indemnification and the payment of expenses
incurred in connection with a proceeding in advance of its final disposition
conferred in this Article XIII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-laws, agreement, vote of stockholders or
Disinterested Directors or otherwise.
"Section 5. [Registrant] may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of [Registrant] or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not [Registrant] would have
the power to indemnify such person against such expense, liability or loss under
the General Corporation Law of the State of Delaware. To the extent that
[Registrant] maintains any policy or policies providing such insurance, each
such director, officer or employee, and each such agent to which rights to
indemnification have been granted as provided in Section 6 of this Article XIII,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
"Section 6. [Registrant] may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and rights to
be paid by [Registrant] the expenses incurred in connection with any proceeding
in advance of its final disposition, to any agent of [Registrant] to the fullest
extent of the provisions of this
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Article XIII with respect to the indemnification and advancement of expenses of
directors, officers and employees of [Registrant].
"Section 7. If any provision or provisions of this Article XIII shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (A)
the validity, legality and enforceability of the remaining provisions of this
Article XIII (including without limitation, each portion of any Section of this
Article XIII containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (B) to the fullest extent
possible, the provisions of this Article XIII (including, without limitation,
each portion of any Section of this Article XIII containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
"Section 8. For purposes of this Article XIII:
(A) 'Disinterested Director' means a director of [Registrant] who is
not and was not a party to the matter in respect of which indemnification is
sought by the indemnitee.
(B) 'Independent Counsel' means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (1) [Registrant] or the
indemnitee in any matter material to either such party, or (2) any other party
to the matter giving rise to a claim for indemnification. Notwithstanding the
foregoing, the term 'Independent Counsel' shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either [Registrant] or the
indemnitee in an action to determine the indemnitee's rights under this Article
XIII.
"Section 9. Any notice, request or other communication required or
permitted to be given to [Registrant] under this Article XIII shall be in
writing and either delivered in person or sent by telecopy, telex, telegram or
certified or registered mail, postage prepaid, return receipt requested, to the
Secretary of [Registrant] and shall be effective only upon receipt by the
Secretary."
Registrant has procured insurance protecting it under its obligation to
indemnify officers and directors against certain types of liabilities (including
certain liabilities under the Securities Act) that may be incurred by them in
the performance of their duties and affording protection to such officers and
directors in certain areas to which the corporate indemnity does not extend, all
within specified limits and subject to specified deductions.
In addition, Registrant and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which Registrant
or such persons may be required to make in respect thereof.
Item 7. Exemption from Registration Claimed.
This Item is not applicable.
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Item 8. Exhibits.
4a1 - Restated Certificate of Incorporation of Registrant is
incorporated herein by reference to Exhibit 3(i) to the
Annual Report on Form 10-K of Registrant for the Fiscal
Year ended December 31, 1998.
4b1 - By-laws, as amended, of Registrant are incorporated
herein by reference to Exhibit 3(ii)b to the Quarterly
Report on Form 10-Q of Registrant dated November 12, 1999.
4c1 - 1986 Stock Option Plan of Fortune Brands, Inc., as
amended, is incorporated herein by reference to Exhibit
10b2 to the Annual Report on Form 10-K of Registrant for
the Fiscal Year ended December 31, 1992.
4c2 - Amendment to 1986 Stock Option Plan of Fortune Brands,
Inc. constituting Exhibit 4c1 hereto is incorporated herein
by reference to Exhibit 10b to the Quarterly Report on Form
10-Q of Registrant dated November 11, 1993.
4c3 - Amendment to 1986 Stock Option Plan of Fortune Brands,
Inc. constituting Exhibits 4c1 and 4c2 hereto is
incorporated herein by reference to Exhibit 10b to the
Quarterly Report on Form 10-Q of Registrant dated August
11, 1994.
4c4 - Amendment to the 1986 Stock Option Plan of Fortune
Brands, Inc. constituting Exhibits 4c1, 4c2 and 4c3 hereto
is incorporated herein by reference to Exhibit 10a2 to the
Quarterly Report on Form 10-Q of Registrant dated November
11, 1997.
4d1 - 1990 Long-Term Incentive Plan of Fortune Brands, Inc. (as
Amended and Restated as of January 1, 1994) is incorporated
herein by reference to Exhibit 10a to the Quarterly Report
on Form 10-Q of Registrant dated August 11, 1994.
4d2 - Amendment to 1990 Long-Term Incentive Plan of Fortune
Brands, Inc. constituting Exhibit 4d1 hereto is
incorporated herein by reference to Exhibit 10a1 to the
Quarterly Report on Form 10-Q of Registrant dated November
11, 1997.
4e1 - 1999 Long-Term Incentive Plan of Fortune Brands, Inc.
4f1 - Rights Agreement dated as of November 19, 1997 between
Registrant and First Chicago Trust Company of New York, as
Rights Agent, is incorporated herein by reference to
Exhibit 4a to the Current Report on Form 8-K of Registrant
dated December 2, 1997.
5a1 - Opinion of Chadbourne & Parke LLP, counsel to Registrant,
covering shares of Registrant's Common Stock issuable upon
the exercise of options or stock appreciation rights or
pursuant to other awards under the Fortune Brands, Inc.
1999 Long-Term Incentive Plan.
15a1 - Letter from PricewaterhouseCoopers LLP, independent
accountants, as to certain unaudited financial information.
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23a1 - Consent of PricewaterhouseCoopers LLP, independent
accountants.
23b1 - Consent of Chadbourne & Parke LLP, counsel to Registrant,
is contained in their opinion letter as Exhibit 5a1 to
this Registration Statement.
23c1 - Consent of Chadbourne & Parke LLP, counsel to Registrant.
24a1 - Power of Attorney authorizing certain persons to sign
this Registration Statement on behalf of certain directors
and officers of Registrant.
Item 9. Undertakings.
Registrant hereby undertakes:
(a) 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;
(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 clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities 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.
(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.
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of Registrant's annual report
pursuant to Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
Registrant pursuant to the
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foregoing provisions, or otherwise, Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by Registrant of expenses incurred or paid by a director, officer or
controlling person of Registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, 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 and will be governed by the final adjudication of such issue.
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Registrant 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 Village of Lincolnshire, State of Illinois on this 1st day of
February, 2000.
FORTUNE BRANDS, INC.
By /s/ Mark A. Roche
-----------------------------------
(Mark A. Roche, Senior Vice President,
General Counsel and Secretary)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on this 1st day of February, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Norman H. Wesley* Chairman of the Board and Chief
- ----------------------------------------------------- Executive Officer (principal
(Norman H. Wesley) executive officer) and Director
/s/ Craig P. Omtvedt Senior Vice President and Chief
- ----------------------------------------------------- Financial Officer
(Craig P. Omtvedt) (principal financial officer)
/s/ Michael R. Mathieson Vice President and Chief
- ----------------------------------------------------- Accounting Officer
(Michael R. Mathieson) (principal accounting officer)
Eugene R. Anderson* Director
- -----------------------------------------------------
(Eugene R. Anderson)
Patricia O. Ewers* Director
- -----------------------------------------------------
(Patricia O. Ewers)
Thomas C. Hays* Director
- -----------------------------------------------------
(Thomas C. Hays)
John W. Johnstone, Jr.* Director
- -----------------------------------------------------
(John W. Johnstone, Jr.)
</TABLE>
II-11
<PAGE>
Signature Title
--------- -----
Sidney J. Kirschner* Director
- -----------------------------------------------------
(Sidney J. Kirschner)
Gordon R. Lohman* Director
- -----------------------------------------------------
(Gordon R. Lohman)
Charles H. Pistor, Jr.* Director
- -----------------------------------------------------
(Charles H. Pistor, Jr.)
Eugene A. Renna* Director
- -----------------------------------------------------
(Eugene A. Renna)
Anne M. Tatlock* Director
- -----------------------------------------------------
(Anne M. Tatlock)
Peter M. Wilson* Director
- -----------------------------------------------------
(Peter M. Wilson)
*By: /s/ A. Robert Colby
-----------------------------------------------
(A. Robert Colby, Attorney-in-Fact)
II-12
Exhibit 4e1
FORTUNE BRANDS, INC.
1999 LONG-TERM INCENTIVE PLAN
1. Purpose of Plan
The purpose of this 1999 Long-Term Incentive Plan (the "Plan") is
to aid Fortune Brands, Inc. and its Subsidiaries (the "Company") in securing and
retaining Key Employees of outstanding ability by making it possible to offer
them increased incentives, which may include a proprietary interest in the
Company, to join or continue in the service of the Company and to increase their
efforts for its welfare.
2. Definitions
As used in the Plan, the following words shall have the following
meanings:
(a) "Award" means an award or grant made to a Participant pursuant
to the Plan, including, without limitation, an award or grant of an
Option, Right, Restricted Stock, Performance Award or Other Stock-Based
Award, or any combination of the foregoing;
(b) "Award Agreement" means an agreement between the Company and a
Participant that sets forth the terms, conditions and limitations
applicable to an Award;
(c) "Board of Directors" means the Board of Directors of Fortune;
(d) "Committee" means the Compensation and Stock Option Committee
of the Board of Directors;
(e) "Common Stock" means common stock of Fortune;
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended;
(g) "Fortune" means Fortune Brands, Inc.;
(h) "Incentive Stock Option" means a stock option to purchase
shares of Common Stock which is intended to qualify as an incentive
stock option as defined in Section 422 of the Internal Revenue Code;
(i) "Key Employee" means any person, including an officer or
director, in the regular full-time employment of the Company who, in
the opinion of the Committee, is or is expected to be primarily
responsible for the management, growth or protection of some part or
all of the business of the Company;
(j) "Limited Right" means a right to receive cash in lieu of the
exercise of an Option or Right as set forth in Section 12(b);
(k) "Nonqualified Stock Option" means a stock option to purchase
shares of Common Stock which is intended not to qualify as an incentive
stock option as defined in Section 422 of the Internal Revenue Code;
(l) "Option" means an Incentive Stock Option, a Nonqualified Stock
Option or an option granted pursuant to Section 14(a);
1
<PAGE>
(m) "Other Stock-Based Award" means an Award pursuant to Section
8;
(n) "Participant" means a person to whom one or more Awards have
been granted that have not all been forfeited or terminated under the
Plan;
(o) "Performance Period" means the period specified with respect
to a Performance Award during which specified performance criteria are
to be measured;
(p) "Performance Award" means an Award granted pursuant to Section
7;
(q) "Restricted Stock" means shares of Common Stock granted
pursuant to Section 6 or as part of a Performance Award or an Other
Stock-Based Award;
(r) "Right" means a stock appreciation right to elect to receive
shares of Common Stock with a fair market value, at the time of any
exercise of such stock appreciation right, equal to the amount by which
the fair market value of all shares subject to the Option (or part
thereof) in respect of which such stock appreciation right was granted
exceeds the exercise price of said Option (or part thereof) or to
receive from Fortune, in lieu of such shares, the fair market value in
cash, or to receive a combination of such shares and cash, as provided
in Section 5, and shall also mean a stock appreciation right granted
pursuant to Section 14(b); and
(s) "Subsidiary" means any corporation, other than Fortune, in an
unbroken chain of corporations or other entities beginning with Fortune
if each of the corporations, or other entities other than the last
corporation or entity in the unbroken chain owns 50% or more of the
voting stock in one of the other corporations in such chain, except
that with respect to Incentive Stock Options, "Subsidiary" means
"subsidiary corporation" as defined in Section 424(f) of the Internal
Revenue Code.
3. Administration of Plan
The Plan shall be administered by the Committee whose members shall be
appointed by the Board of Directors and consisting of at least three members of
the Board of Directors. The members of the Committee shall qualify to administer
the Plan for purposes of Rule 16b-3 (and any other applicable rule) promulgated
under Section 16(b) of the Exchange Act. The Committee may adopt its own rules
of procedure, and the action of a majority of the Committee, taken at a meeting,
or taken without a meeting by unanimous written consent of the members of the
Committee, shall constitute action by the Committee. The Committee shall have
the power and authority to administer, construe and interpret the Plan, to make
rules for carrying it out and to make changes in such rules.
4. Awards
The Committee may from time to time make such Awards under the Plan to
such Key Employees and in such form and having such terms, conditions and
limitations as the Committee may determine. Awards may be granted singly, in
combination or in tandem. The terms, conditions and limitations of each Award
under the Plan shall be set forth in an Award Agreement, in a form approved by
the Committee, consistent, however, with the terms of the Plan.
2
<PAGE>
5. Awards of Options and Rights
(a) The terms and conditions with respect to each Award of Options
under the Plan shall be consistent with the following:
(i) The Option price per share shall not be less
than fair market value at the time the Option is granted.
(ii) Exercise of the Option shall be conditioned
upon the Participant named therein having remained in the
employ of the Company for at least one year after the date of
the grant of the Option; provided, however, that this
condition shall not be applicable in the event of the death of
the Participant or as otherwise provided in Section 12(b). The
Option shall be exercisable in whole or in part from time to
time during the period beginning at the completion of the
required employment time stated in the Option and ending at
the expiration of ten years from the date of grant of the
Option, unless an earlier expiration date shall be stated in
the Option or the Option shall cease to be exercisable
pursuant to Section 5(a)(iv) or because of the exercise of the
Limited Right pertaining thereto as provided in Section 12(b).
To the extent that the aggregate fair market value of shares
with respect to which Incentive Stock Options are exercisable
for the first time by any Participant during any calendar year
exceeds $100,000, such Options shall be treated as
Nonqualified Stock Options. The foregoing shall be applied by
taking Options into account in the order in which they were
granted. For purposes of the foregoing, the fair market value
of any share shall be determined at the time of the Award of
the Option. In the event the foregoing results in a portion of
an Incentive Stock Option exceeding the $100,000 limitation,
only such excess shall be treated as a Nonqualified Stock
Option.
(iii) Payment in full of the Option price shall be
made upon exercise of each Option and may be made in cash, by
the delivery of shares of Common Stock with a fair market
value equal to the Option price, provided the Participant has
held such shares for a period of at least one year, or by a
combination of cash and such shares that have been held by the
Participant for a period of at least one year whose fair
market value together with such cash shall equal the Option
price. The Committee may also permit Participants, either on a
selective or aggregate basis, simultaneously to exercise
Options and sell the shares of Common Stock thereby acquired
pursuant to a brokerage or similar arrangement, approved in
advance by the Committee, and use the proceeds from such sale
as payment of the purchase price of such shares.
(iv) If a Participant's employment with the Company
terminates other than by reason of the Participant's death,
disability or retirement under a retirement plan of the
Company, the Participant's Option shall terminate and cease to
be exercisable 30 days from the date of such termination
except as otherwise provided in Section 12(b). If a
Participant's employment with the Company terminates by reason
of death, disability or retirement under a retirement plan of
the Company, the Participant's Option shall continue to be
exercisable until the expiration date stated in the option,
provided that a Nonqualified Stock Option may be exercised
within one year from the date of death even if later than such
expiration date. In the case of a Participant whose principal
employer is a Subsidiary, then such Participant's employment
shall be deemed to be terminated for purposes of this Section
5 as of the date on which such principal employer ceases to be
a Subsidiary.
(v) Each Option shall contain a Limited Right to
receive cash in lieu of shares under the circumstances set
forth in Section 12(b).
3
<PAGE>
(b) The Committee, at the time of grant of an Option or at any
time prior to the expiration of its term, may also grant, subject to
the terms and conditions of the Plan, Rights in respect of all or part
of such Option to the Participant who has been granted the Option,
provided that at such time the Participant is a Key Employee. No Right
shall be exercisable prior to six months from the date of grant, except
as otherwise provided in Section 12(b).
(c) The holder of an Option or Right who decides to exercise the
Option or Right in whole or in part shall give notice to the Secretary
of Fortune of such exercise in writing on a form approved by the
Committee. A notice exercising a Right shall also specify the extent,
if any, to which the Participant elects to receive cash, and shall be
subject to the determination by the Committee as provided in Section
5(f). Any exercise shall be effective as of the date specified in the
notice of exercise, but not earlier than the date the notice of
exercise, together with, in the case of exercise of an Option, payment
in full of the Option price, is actually received and in the hands of
the Secretary of Fortune.
(d) To the extent an Option is exercised in whole or in part, any
Right granted in respect of such Option (or part thereof) shall
terminate and cease to be exercisable. To the extent a Right is
exercised in whole or in part, the Option (or part thereof) in respect
of which such Right was granted shall terminate and cease to be
exercisable.
(e) Subject to Sections 5(b) and 14, a Right granted with an
accompanying Option shall be exercisable only during the period in
which the Option (or part thereof) in respect of which such Right was
granted is exercisable.
(f) The Committee shall have sole discretion to determine the form
in which payment will be made following exercise of a Right. All or any
part of the obligation arising out of an exercise of a Right may be
settled
(i) by payment in shares of Common Stock with a
fair market value equal to the cash that would otherwise be
paid,
(ii) by payment in cash, or
(iii) by payment in a combination of such shares and
cash.
(g) To the extent that any Right that shall have become
exercisable shall not have been exercised or cancelled or, by reason of
any termination of employment, shall have become non-exercisable, it
shall be deemed to have been exercised automatically, without any
notice of exercise, on the last day on which its related Option is
exercisable, provided that any conditions or limitations on its
exercise (other than (i) notice of exercise and (ii) exercise or
election to exercise during the period prescribed in Section 5(e)) are
satisfied and the Right shall then have value. Such exercise shall be
deemed to specify that, subject to determination by the Committee as
provided in Section 5(f), the holder elects to receive cash and that
such exercise of a Right shall be effective as of the time of the
exercise.
6. Awards of Restricted Stock
The terms and conditions with respect to each Award of Restricted Stock
under the Plan shall be consistent with the following:
(a) The provisions of Awards of Restricted Stock need not be the
same with respect to each Participant. Each Award of Restricted Stock
shall be subject to forfeiture as set forth in the Plan and
4
<PAGE>
may be otherwise subject to forfeiture as set forth in the provisions
of such Award. Awards of Restricted Stock for up to 100,000 shares of
Common Stock may be granted pursuant to the Plan.
(b) Each Participant receiving an Award of Restricted Stock shall
be issued a certificate in respect of such shares of Restricted Stock.
Such certificate shall be registered in the name of such Participant
and shall bear an appropriate legend referring to the terms, conditions
and restrictions applicable to such Award. The Committee may require
that the certificates evidencing such shares be held in custody by
Fortune until the restrictions thereon shall have lapsed and that, as a
condition of any Award of Restricted Stock, the Participant shall have
delivered a stock power, endorsed in blank, relating to the Common
Stock covered by such Award.
(c) Shares of Restricted Stock shall be subject to the
restrictions set forth in this Section 6(c).
(i) Subject to the provisions of the Plan and the
applicable Award Agreement, during the period established by
the Committee commencing on the date of such Award (the
"Restriction Period"), the Participant shall not be permitted
to sell, assign, transfer, pledge or otherwise encumber such
shares of Restricted Stock. Within these limits, the Committee
may provide for the lapse of such restrictions in installments
and may accelerate or waive any or all of such restrictions,
in whole or in part, based on service, performance and such
other factors or criteria as the Committee may determine.
(ii) Subject to Section 10(e) and except as
provided in this Section 6(c), the Participant shall have,
with respect to shares of Restricted Stock issued to such
Participant under the Plan, all of the rights of a holder of
Common Stock of Fortune, including the right to vote the
shares and the right to receive any cash dividends. Unless
otherwise determined by the Committee, cash dividends shall be
automatically reinvested in additional shares of Common Stock
which shall be treated as Restricted Stock under this Section
6 and dividends payable in Common Stock shall be treated as
additional shares of Restricted Stock subject to the same
restrictions and other terms and conditions that apply to the
shares with respect to which such dividends are issued.
(iii) Except to the extent otherwise provided in
this Section 6(c), in Section 12(c) or 12(d) or in the
applicable Award Agreement, upon termination of a
Participant's employment with the Company for any reason
during the Restriction Period, all shares still subject to
restriction shall be forfeited by the Participant. Except to
the extent otherwise provided in the applicable Award
Agreement, if the Participant's employment shall terminate and
cease by reason of disability, retirement under a retirement
plan of the Company or death, the Restriction Period with
respect to any shares of Restricted Stock then held shall
expire as of the date of such disability, retirement or death.
(iv) Upon expiration of the Restriction Period with
respect to any shares of the Restricted Stock without a prior
forfeiture thereof, the holder of such shares shall have the
right to receive in exchange for the certificates representing
such shares unlegended certificates for such shares.
7. Performance Awards
The terms and conditions with respect to each Performance Award under
the Plan shall be consistent with the following:
5
<PAGE>
(a) Performance Awards may be paid in cash, shares of Common Stock
(which may, but need not, be shares of Restricted Stock pursuant to
Section 6), or any combination thereof. The Committee shall determine
the nature, length and starting date of the Performance Period for each
Performance Award which shall be at least two years (subject to
Sections 12(c) and 12(d)) and shall determine the performance
objectives to be used in valuing Performance Awards and determining the
extent to which such Performance Awards have been earned. Performance
objectives may vary from Participant to Participant and between groups
of Participants and shall be based upon revenues, operating income,
operating company contribution, cash flow, income before income taxes,
net income, earnings per share, economic value added, return on equity
or assets or total return to stockholders, whether applicable to the
Company or any relevant Subsidiary or business unit, or any combination
thereof, as the Committee may deem appropriate. Performance Periods may
overlap and Participants may participate simultaneously with respect to
Performance Awards that are subject to different Performance Periods
and different performance factors and criteria. The terms of
Performance Awards need not be the same with respect to each
Participant. The Committee shall determine for each Performance Award
subject to such Performance Period the range of dollar values or number
of shares of Common Stock (which may, but need not, be shares of
Restricted Stock pursuant to Section 6), or combination thereof, to be
received by the Participant at the end of the Performance Period if and
to the extent that the relevant measures of performance for such
Performance Awards are met. The factors must include a minimum
performance standard below which no payment will be made and a maximum
performance level above which no increased payment will be made.
Performance Awards for up to 1,000,000 shares of Common Stock may be
granted pursuant to the Plan. No Performance Awards having an aggregate
maximum dollar value in excess of $5,000,000 or an aggregate maximum
amount of Common Stock in excess of 500,000 shares shall be granted to
any individual Participant.
(b) The Committee may adjust the performance goals and
measurements applicable to Performance Awards to take into account
changes in law and accounting and tax rules and to make such
adjustments as the Committee deems necessary or appropriate to reflect
the inclusion or exclusion of the impact of extraordinary or unusual
items, events or circumstances, provided that no adjustment shall be
made which would result in an increase in the compensation of any
Participant whose compensation is subject to the limitation on
deductibility under Section 162(m) of the Internal Revenue Code, as
amended, or any successor provision, for the applicable year. The
Committee also may adjust the performance goals and measurements
applicable to Performance Awards and thereby reduce the amount to be
received by any Participant pursuant to such Awards if and to the
extent that the Committee deems it appropriate, provided that no such
reduction shall be made on or after the date of a Change in Control (as
defined in Section 12(b)(iii)).
(c) Except as otherwise provided in the applicable Award
Agreement, if during a Performance Period a Participant's employment
with the Company terminates by reason of the Participant's death,
disability or retirement under a retirement plan of the Company, such
Participant shall be entitled to a payment with respect to each
outstanding Performance Award at the end of the applicable Performance
Period based on the terms of the Award. The Committee may provide for
an earlier payment in settlement of such Performance Award discounted
at a reasonable interest rate and otherwise in such amount and under
such terms and conditions as the Committee deems appropriate. Except as
otherwise provided in Section 12(c) or 12(d) or in the applicable Award
Agreement, if during a Performance Period a Participant's employment
with the Company terminates other than by reason of the Participant's
death, disability or retirement under a retirement plan of the Company,
then such Participant shall not be entitled to any payment with respect
to the Performance Awards relating to such Performance Period, unless
the Committee shall otherwise determine.
(d) The earned portion of a Performance Award may be paid
currently or on a deferred basis with such interest or earnings
equivalent as may be determined by the Committee. Payment shall be made
in
6
<PAGE>
the form of cash or whole shares of Common Stock, either in a single
payment or in annual installments, all as the Committee shall
determine.
(e) If a Participant engages in detrimental activity (as
hereinafter defined) at any time (whether before or after termination
of employment), any Performance Award that has not been paid to such
Participant (or is not payable as provided in Section 12(c) or 12(d))
prior to the date such activity has been determined by the Committee to
constitute detrimental activity shall be forfeited and shall never
become payable. For purposes of this Section 7(e), "detrimental
activity" shall mean willful, reckless or grossly negligent activity
that is determined by the Committee, on a case-by-case basis, to be
detrimental to or destructive of the business or property of Fortune or
any Subsidiary. Any such determination of the Committee shall be
conclusive and binding for the purposes of the Plan. Notwithstanding
the foregoing, no Performance Award shall be forfeited or become not
payable by virtue of Section 7(e) on or after the date of a Change in
Control (as defined in Section 12(b)(iii)).
8. Other Stock-Based Awards
The Committee may grant other Awards under the Plan pursuant to which
shares of Common Stock (which may, but need not, be shares of Restricted Stock
pursuant to Section 6) are or may in the future be acquired, or Awards
denominated in stock units, including ones valued using measures other than
market value. Such Other Stock-Based Awards may be granted alone, in addition to
or in tandem with any Award of any type granted under the Plan and must be
consistent with the purposes of the Plan. Such other Stock-Based Awards for up
to 100,000 shares of Common Stock may be granted pursuant to the Plan.
9. Dividend Equivalents
Any Awards (other than Awards of Options or Rights) under the Plan may,
in the discretion of the Committee, earn dividend equivalents. In respect of any
such Award which is outstanding on a dividend record date for Common Stock the
Participant may be credited with an amount equal to the cash or stock dividends
or other distributions that would have been paid on the shares of Common Stock
covered by such Award had such covered shares been issued and outstanding on
such dividend record date. The Committee shall establish such rules and
procedures governing the crediting of dividend equivalents, including the
timing, form of payment and payment contingencies of such dividend equivalents,
as it deems are appropriate or necessary.
10. Limitations and Conditions
(a) The total number of shares of Common Stock that may be made
subject to Awards under the Plan is 12,000,000 shares. Such total
number of shares may consist, in whole or in part, of unissued shares
or reacquired shares. Not more than 2,000,000 shares of Common Stock
may be made subject to Awards under the Plan to any individual
Participant, which limitation shall be applied in a manner consistent
with the requirements of Section 162(m) of the Internal Revenue Code,
as amended. The foregoing numbers of shares may be increased or
decreased by the events set forth in Section 12(a). In the event that
the Company makes an acquisition or is a party to a merger or
consolidation and Fortune assumes the options or other awards
consistent with the purpose of this Plan of the company acquired,
merged or consolidated which are administered pursuant to this Plan,
shares of Common Stock subject to the assumed options or other awards
shall not count as part of the total number of shares of Common Stock
that may be made subject to Awards under this Plan.
(b) Any shares that have been made subject to an Award that cease
to be subject to the Award (other than by reason of exercise or payment
of the Award to the extent that it is settled in shares) shall
7
<PAGE>
again be available for award and shall not be considered as having been
theretofore made subject to award. Any shares of Common Stock delivered
upon exercise of an Option in payment of all or part of the Option, or
delivered or withheld in satisfaction of withholding taxes with respect
to an Award, shall be additional shares available for award under the
Plan. Any shares subject to option under an Option (or part thereof)
that is cancelled upon exercise of a Right when settled wholly or
partially in shares shall to the extent of such settlement in shares be
treated as if the Option itself were exercised and such shares received
in settlement of the Right shall no longer be available for grant.
(c) No Awards shall be made under the Plan after December 31,
2004, but the terms of Awards granted on or before the expiration
thereof may extend beyond such expiration. At the time an Award is
granted or amended or the terms or conditions of an Award are changed,
the Committee may provide for limitations or conditions on such Award.
(d) No Award or portion thereof shall be transferable by the
Participant otherwise than by will or by the laws of descent and
distribution, except that an Option and related Right may be
transferred by gift to any member of the holder's immediate family or
to a trust or partnership solely for the benefit of such immediate
family members to the extent permitted in the applicable Award
Agreement. A Right shall never be transferred except to the transferee
of the related Option. During the lifetime of the Participant, an
Option or Right shall be exercisable only by the Participant unless it
has been transferred to a member of the holder's immediate family or to
a trust or partnership solely for the benefit of such immediate family
members, in which case it shall be exercisable only by such transferee.
For the purpose of this provision, a holder's "immediate family" shall
mean the holder's spouse, children and grandchildren.
(e) No person who receives an Award under the Plan which includes
shares of Common Stock or the right to acquire shares of Common Stock
(which may include shares of Restricted Stock pursuant to Section 6)
shall have any rights of a stockholder (i) as to shares under option
until, after proper exercise of the Option, such shares have been
recorded on Fortune's official stockholder records as having been
issued or transferred, (ii) as to shares to be delivered following
exercise of a Right until, after proper exercise of the Right and
determination by the Committee to make payment therefor in shares, such
shares shall have been recorded on Fortune's official stockholder
records as having been issued or transferred, or (iii) as to shares
included in Awards of Restricted Stock, Performance Awards or Other
Stock-Based Awards, until such shares shall have been recorded on
Fortune's official stockholder records as having been issued or
transferred.
(f) Fortune shall not be obligated to deliver any shares until
they have been listed (or authorized for listing upon official notice
of issuance) upon each stock exchange upon which outstanding shares of
such class at the time are listed nor until there has been compliance
with such laws or regulations as Fortune may deem applicable. Fortune
shall use its best efforts to effect such listing and compliance. No
fractional shares shall be delivered.
(g) Nothing contained herein shall affect the right of the Company
to terminate any Participant's employment at any time or for any
reason.
11. Transfers and Leaves of Absence
For purposes of the Plan: (a) a transfer of a Participant's employment
without an intervening period from Fortune to a Subsidiary or vice versa, or
from one Subsidiary to another, shall not be deemed a termination of employment,
and (b) a Key Employee who is granted in writing a leave of absence shall be
deemed to have remained in the employ of the Company during such leave of
absence.
8
<PAGE>
12. Stock Adjustments, Change in Control and Divestitures
(a) In the event of any merger, consolidation, stock or other
non-cash dividend, extraordinary cash dividend, split-up, spin-off,
combination or exchange of shares, reorganization or recapitalization
or change in capitalization, or any other similar corporate event, the
Committee may make such adjustments in (i) the aggregate number of
shares subject to the Plan and the number of shares that may be made
subject to Awards to any individual Participant as set forth in
Sections 7(a) and 10(a) as well as the aggregate number of shares that
may be made subject to any type of Award, (ii) the number and kind of
shares that are subject to any Option (including any Option outstanding
after termination of employment) and the Option price per share without
any change in the aggregate Option price to be paid therefor upon
exercise of the Option, (iii) the number and kind of Rights granted or
that may be granted under the Plan, (iv) the number and kind of shares
of outstanding Restricted Stock, (v) the number and kind of shares of
Common Stock covered by a Performance Award or Other Stock-Based Award
and (vi) the number of outstanding dividend equivalents, as the
Committee shall deem appropriate in the circumstances. The
determination by the Committee as to the terms of any of the foregoing
adjustments shall be conclusive and binding.
(b)(i) In the event of a Change in Control (as
defined in Section 12(b)(iii)), then each Option or Right held
by a Participant that is not then exercisable shall become
immediately exercisable and shall remain exercisable as
provided in Section 5 notwithstanding anything to the contrary
in the first sentence of Section 5(a)(ii) or in Section 5(b).
In addition, unless the Committee otherwise determines at the
time of grant or at any time thereafter but prior to such
Change in Control, each Limited Right outstanding at the time
of such Change in Control shall be deemed to be automatically
exercised as of the date of such Change in Control or as of
such other date during the 60-day period beginning on the date
of such Change in Control as the Committee may determine prior
to such Change in Control. In the event that the Limited Right
is not automatically exercised, the Participant may during the
60-day period beginning on the date of the Change in Control
(such 60-day period being herein referred to as the "Limited
Right Exercise Period"), in lieu of exercising such Option or
Right in whole or in part, exercise the Limited Right (or part
thereof) pertaining to such Option. Such Participant, whether
the exercise is pursuant to his election or automatic pursuant
to the terms hereof shall be entitled to receive in cash an
amount determined by multiplying the number of shares subject
to such Option (or part thereof) by the amount by which the
exercise price of each share is exceeded by (A) if such Option
is an Incentive Stock Option, the fair market value of such
shares at the date of exercise or (B) if such Option is a
Nonqualified Stock Option, the greater of (x) the highest
purchase price per share paid for the shares of the Company
beneficially acquired in the transaction or series of
transactions resulting in the Change in Control by the person
or persons deemed to have acquired control pursuant to the
Change in Control and (y) the highest fair market value of
shares of Common Stock during the Limited Right Exercise
Period prior to the time of exercise. A Limited Right shall be
exercised in whole or in part by giving written notice of such
exercise on a form approved by the Committee to the Secretary
of Fortune, except that no such written notice shall be
required in the event such Limited Right is automatically
exercised pursuant to the terms hereof. The exercise shall be
effective as of the date specified in the notice of exercise,
but not earlier than the date the notice of exercise is
actually received and in the hands of the Secretary of
Fortune. In the event the last day of a Limited Right Exercise
Period shall fall on a day that is not a business day, then
the last day thereof shall be deemed to be the next following
business day. To the extent an Option or a Right pertaining
thereto is exercised in whole or in part, the Limited Right in
respect of such Option shall terminate and cease to be
exercisable. To the extent a Limited Right is exercised in
whole or in part, the Option (or part thereof) to which such
Limited Right pertains and the Right (or part thereof)
pertaining to such Option (or part thereof) shall terminate
and cease to be exercisable.
9
<PAGE>
(ii) Notwithstanding anything to the contrary in
the first sentence of Section 5(a)(ii) or in 5(a)(iv) or 5(b),
the provisions of this Section 12(b)(ii) will be applicable in
the event of a termination of a Participant's employment on or
after a Change in Control and prior to the expiration of the
Limited Right Exercise Period applicable thereto. No Option,
Right or Limited Right held by a Participant shall terminate
or cease to be exercisable as a result of his termination of
employment on or after a Change in Control and prior to the
expiration of the Limited Right Exercise Period applicable
thereto, but shall be exercisable throughout the Limited Right
Exercise Period applicable thereto; provided, however, that in
no event shall any Option or Right be exercisable after ten
years from its date of grant (except in the event of death as
provided in Section 5(a)(iv)). However, in the event such
Option or Right or the Option to which such Limited Right
pertains has not, on the date of termination, been held for
more than six months from the date of its grant, the preceding
sentence shall apply only if such Participant has been
terminated other than for just cause (as hereinafter defined)
or has voluntarily terminated his employment because he in
good faith believes that as a result of such Change in Control
he is unable effectively to discharge his duties or the duties
of the position he occupied immediately prior to such Change
in Control or because of a diminution in his aggregate
compensation or in his aggregate benefits below that in effect
immediately prior to such Change in Control. For purposes
hereof termination shall be for "just cause" only if such
termination is based on fraud, misappropriation or
embezzlement on the part of the Participant which results in a
final conviction of a felony. Nothing in this Section 12(b)
shall be in derogation of any rights otherwise provided in the
Plan in respect of a Participant's Options or Rights in the
event of his death, disability or retirement under a
retirement plan of the Company.
(iii) A "Change in Control" shall be deemed to have
occurred if (A) any person (as that term is used in Sections
13(d) and 14(d) of the Exchange Act, as in effect on February
23, 1999) is or becomes the beneficial owner (as that term is
used in Section 13(d) of the Exchange Act, and the rules and
regulations promulgated thereunder, as in effect on February
23, 1999) of 20% or more of the combined voting power of the
then outstanding voting securities entitled to vote generally
in the election of directors ("Voting Securities") of Fortune,
excluding, however, the following: (1) any acquisition
directly from Fortune, other than an acquisition by virtue of
the exercise of a conversion privilege unless the security
being so converted was itself acquired directly from Fortune,
(2) any acquisition by Fortune, (3) any acquisition by an
employee benefit plan (or related trust) sponsored or
maintained by Fortune or entity controlled by Fortune, or (4)
any acquisition pursuant to a transaction that complies with
clauses (1), (2) and (3) of Section 12(b)(iii)(C), (B) more
than 50% of the members of the Board of Directors of Fortune
shall not be Continuing Directors (which term, as used herein,
means the directors of Fortune (1) who were members of the
Board of Directors of Fortune on February 23, 1999 or (2) who
subsequently became directors of Fortune and who were elected
or designated to be candidates for election as nominees of the
Board of Directors, or whose election or nomination for
election by Fortune's stockholders was otherwise approved, by
a vote of a majority of the Continuing Directors then on the
Board of Directors but shall not include, in any event, any
individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as
such terms are used in Rule 14(a)-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a person other than the Board of Directors), (C) Fortune
shall be merged or consolidated with, or, in any transaction
or series of transactions, substantially all of the business
or assets of Fortune shall be sold or otherwise acquired by,
another corporation or entity unless, as a result thereof, (1)
the stockholders of Fortune immediately prior thereto shall
beneficially own, directly or indirectly, at least 60% of the
combined Voting Securities of the surviving, resulting or
transferee corporation or entity (including, without
limitation, a corporation that as a result of such transaction
owns Fortune or
10
<PAGE>
all or substantially all of Fortune's assets either directly
or through one or more subsidiaries) ("Newco") immediately
thereafter in substantially the same proportions as their
ownership immediately prior to such corporate transaction,
(2) no person beneficially owns (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act, and the rules
and regulations promulgated thereunder (as in effect on
February 23, 1999)), directly or indirectly, 20% or more,
of the combined Voting Securities of Newco immediately after
such corporate transaction except to the extent that such
ownership of Fortune existed prior to such corporate
transaction and (3) more than 50% of the members of the Board
of Directors of Newco shall be Continuing Directors or (D) the
stockholders of Fortune approve a complete liquidation or
dissolution of Fortune.
(c) Notwithstanding any other provision of the Plan, in the event
that a Participant's employment is terminated on or after a Change in
Control (as defined in Section 12(b)(iii)) (x) by the Company other
than for just cause (as defined in Section 12(b)(ii)) or (y) by the
Participant because the Participant in good faith believes that as a
result of such Change in Control he is unable effectively to discharge
his duties or the duties of the position he occupied immediately prior
to such Change in Control or because of a diminution in his aggregate
compensation or in his aggregate benefits below that in effect
immediately prior to such Change in Control:
(i) with respect to shares of Restricted Stock
then outstanding, the Restriction Period with respect to such
shares shall be deemed satisfied as of the date such
Participant's employment is so terminated, but only as to that
portion of such shares as is equivalent to the portion of the
Restriction Period applicable thereto that has been satisfied
as of such date without regard to this Section 12(c)(i); as of
such date, the portion of such shares as to which the
Restriction Period is deemed satisfied pursuant to this
Section 12(c)(i) shall become nonforfeitable and all other of
such shares shall be forfeited; and
(ii) with respect to Performance Awards and Other
Stock-Based Awards, including shares of Common Stock covered
thereby, all such Performance Awards and Other Stock-Based
Awards shall become nonforfeitable and shall be paid out on
the date such Participant's employment is so terminated (A) as
if all Performance Periods or other conditions or restrictions
applicable thereto had been completed or satisfied, the
maximum performance or other objectives with respect thereto
had been attained and all Awards granted with respect thereto
had been fully earned, but (B) prorated for the portion of any
relevant Performance Period or other period ending on the date
such Participant's employment is so terminated, unless prior
to the Change in Control the Committee otherwise so provides.
(d) In the case of a Participant whose principal employer is a
Subsidiary, then such Participant's employment shall be deemed to be
terminated for purposes of Sections 6 through 9 as of the date on which
such principal employer ceases to be a Subsidiary (the "Divestiture
Date") and, except to the extent otherwise determined by the Committee
and set forth in the applicable Award Agreement:
(i) with respect to shares of Restricted Stock
held by such Participant, the Restriction Period shall be
deemed satisfied as of the Divestiture Date, but only as to
that portion of such shares as is equivalent to the portion of
the Restriction Period applicable thereto that has been
satisfied as of the Divestiture Date without regard to this
Section 12(d)(i); as of the Divestiture Date, the portion of
such shares as to which the Restriction Period is deemed
satisfied pursuant to this Section 12(d)(i) shall become
nonforfeitable and all other of such shares shall be
forfeited; and
(ii) with respect to Performance Awards and Other
Stock-Based Awards, including shares of Common Stock covered
thereby, all such Performance Awards and Other
11
<PAGE>
Stock-Based Awards shall become nonforfeitable and shall be
paid out on the Divestiture Date (A) as if all Performance
Periods or other conditions or restrictions applicable thereto
had been completed or satisfied, the maximum performance or
other objectives with respect thereto had been attained and
all Awards granted with respect thereto had been fully earned,
but (B) prorated for the portion of the relevant Performance
Period or other period ending on the Divestiture Date, all as
determined by the Committee.
In the event of a termination of the Plan, then each Participant's
employment shall be deemed to be terminated for purposes of Sections 6 through 9
as of the date of such termination of the Plan and, except to the extent
otherwise determined by the Committee and set forth in the applicable Award
Agreement, the foregoing provisions of clauses (i) and (ii) of this Section
12(d) shall apply to such Participant's shares of Restricted Stock, Performance
Awards and Other Stock-Based Awards with the same effect as if the date of such
termination of the Plan were a Divestiture Date.
13. Amendment and Termination
(a) The Board of Directors shall have the power to amend the Plan,
including the power to change the amount of the aggregate fair market
value of the shares subject to Incentive Stock Options first
exercisable in any calendar year under Section 5 to the extent provided
in Section 422, or any successor provision, of the Internal Revenue
Code. It shall not, however, except as otherwise provided in the Plan,
without approval of the stockholders of Fortune, increase the maximum
number of shares authorized for the Plan, nor change the class of
eligible employees to other than Key Employees, nor reduce the basis
upon which the minimum Option price is determined, nor extend the
period within which Awards under the Plan may be granted, nor provide
for an Option that is exercisable more than ten years from the date it
is granted except in the event of death. It shall have no power to
change the terms of any Award theretofore granted under the Plan so as
to impair the rights of a Participant without the consent of the
Participant whose rights would be affected by such change except to the
extent, if any, provided in the Plan or in the Award.
(b) The Board of Directors may suspend or terminate the Plan at
any time. No such suspension or termination shall affect Options,
Rights or Limited Rights then in effect.
14. Foreign Options and Rights
(a) The Committee may grant Awards to Key Employees who are
subject to the tax laws of nations other than the United States, which
Awards may have terms and conditions that differ from the terms thereof
as provided elsewhere in the Plan for the purpose of complying with the
foreign tax laws. Awards of Options may have terms and conditions that
differ from Incentive Stock Options and Nonqualified Stock Options for
the purposes of complying with the foreign tax laws.
(b) The Committee may grant stock appreciation rights to Key
Employees without the grant of an accompanying Option if the Key
Employees are subject at the time of grant to the laws of a
jurisdiction that prohibits them from owning Common Stock. The Rights
shall permit the Key Employees to receive, at the time of any exercise
of such Rights, cash equal to the amount by which the fair market value
of all shares of Common Stock in respect to which the Right was granted
exceeds the exercise price thereof.
(c) The terms and conditions of Options and Rights granted under
Sections 14(a) and 14(b) may differ from the terms and conditions which
the Plan would require to be imposed upon Incentive Stock Options,
Nonqualified Stock Options and Rights if the Committee determines that
the grants are
12
<PAGE>
desirable to promote the purposes of the Plan for the Key Employees
identified in Sections 14(a) and 14(b); provided that the Committee may
not grant such Options or Rights that do not comply with the
limitations of Section 13(a).
15. Withholding Taxes
The Company shall have the right to deduct from any cash payment made
under the Plan any federal, state or local income or other taxes required by law
to be withheld with respect to such payment. It shall be a condition to the
obligation of Fortune to deliver shares upon the exercise of an Option or Right,
upon payment of a Performance Award, upon delivery of Restricted Stock or upon
exercise, settlement or payment of any Other Stock-Based Award that the
Participant pay to the Company such amount as may be requested by the Company
for the purpose of satisfying any liability for such withholding taxes. Any
Award Agreement may provide that the Participant may elect, in accordance with
any conditions set forth in such Award Agreement, to pay any withholding taxes
in shares of Common Stock.
16. Effective Date
The Plan shall be effective on and as of April 27, 1999 upon the
approval thereof by the stockholders of Fortune.
Exhibit 5a1
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
(212) 408-5100
February 1, 2000
Fortune Brands, Inc.
300 Tower Parkway
Lincolnshire, Illinois 60069
Ladies and Gentlemen:
We have acted as counsel for Fortune Brands, Inc. (the "Company") in
connection with the registration by the Company under the Securities Act of
1933, as amended (the "Act"), of 12,000,000 shares of the Company's Common
Stock, par value $3.125 per share (the "Common Stock"), issuable or transferable
upon exercise of stock options or stock appreciation rights or pursuant to
performance awards, awards of restricted stock or other stock-based awards under
the Fortune Brands, Inc. 1999 Long-Term Incentive Plan (the "Plan").
As counsel for the Company, we are familiar with the Restated
Certificate of Incorporation of the Company, the By-laws of the Company and the
Company's corporate proceedings in respect of the authorization for issuance of
Common Stock in connection with the Plan.
Based upon the foregoing and having regard for legal considerations
which we deem relevant, we are of the opinion that when the Registration
Statement on Form S-8 with respect to the shares of Common Stock issuable or
transferable upon exercise of stock options and stock appreciation rights or
pursuant to restricted stock awards, performance awards and other stock-based
awards under the Plan has become effective under the Act, any
<PAGE>
Fortune Brands, Inc. -2- February 1, 2000
and all of such shares of Common Stock, when issued or transferred in accordance
with the provisions of the Plan, will be legally and validly issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
We express no opinion herein as to any laws other than the General
Corporation Law of the State of Delaware, the applicable provisions of the
Delaware Constitution and any reported judicial decisions interpreting these
laws, and the Federal laws of the United States.
Very truly yours,
CHADBOURNE & PARKE LLP
Exhibit 15a1
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Fortune Brands, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We are aware that (a) our report dated May 13, 1999 on our review of
the interim financial information of Fortune Brands, Inc. and Subsidiaries for
the three-month period ended March 31, 1999 and 1998 and included in the
Company's Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1999, (b) our report dated August 16, 1999 on our review of interim financial
information of Fortune Brands, Inc. and Subsidiaries for the three-month and
six-month periods ended June 30, 1999 and 1998 and included in the Company's
Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1999 and
(c) our report dated November 12, 1999 on our review of interim financial
information of Fortune Brands, Inc. and Subsidiaries for the three-month and
nine-month periods ended September 30, 1999 and 1998 and included in the
Company's Quarterly Report on Form 10-Q for the quarterly period ended September
30, 1999 are being incorporated by reference in this Registration Statement on
Form S-8 of Fortune Brands, Inc., and the prospectus related thereto, relating
to securities to be offered under the Fortune Brands, Inc. 1999 Long Term
Incentive Plan. Pursuant to Rule 436(c) under the Securities Act of 1933, such
reports should not be considered a part of such Registration Statement or
prospectus prepared or certified by us within the meaning of Sections 7 or 11 of
that Act.
Very truly yours,
PRICEWATERHOUSECOOPERS LLP
New York, New York
February 1, 2000
Exhibit 23a1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 (this "Registration Statement") of Fortune
Brands, Inc. ("Registrant"), and the prospectus related hereto, of our report
dated February 3, 1999 relating to the consolidated financial statements,
appearing in the 1998 Annual Report to Stockholders of Registrant, which is
incorporated by reference in Registrant's Annual Report on Form 10-K for the
year ended December 31, 1998. We also consent to the incorporation by reference
of our report dated February 3, 1999 relating to the financial statement
schedule, which appears in such Annual Report on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
New York, New York
February 1, 2000
Exhibit 23c1
CONSENT OF COUNSEL
We consent to the reference to us and to the inclusion of the
summary of our opinion under the caption "Federal Income Tax Consequences" in
the Prospectus containing the information required by Part I of Form S-8 and
related to this Registration Statement on Form S-8 filed by Fortune Brands, Inc.
in respect of the Fortune Brands, Inc. 1999 Long-Term Incentive Plan.
CHADBOURNE & PARKE LLP
30 Rockefeller Plaza
New York, New York 10112
February 1, 2000
Exhibit 24a1
POWER OF ATTORNEY
The undersigned, acting in the capacity or capacities with respect to
Fortune Brands, Inc. stated with their respective names below, hereby constitute
and appoint MARK A. ROCHE, EDWARD P. SMITH and A. ROBERT COLBY, and each of them
severally, the attorneys-in-fact of the undersigned with full power to them and
each of them to sign for and in the name of the undersigned in the capacities
indicated below (a) the Registration Statement on Form S-8 of the Fortune
Brands, Inc. 1999 Long-Term Incentive Plan, (b) the Registration Statement on
Form S-8 of the Fortune Brands Retirement Savings Plan, (c) the Registration
Statement on Form S-8 of the Fortune Brands Hourly Employee Retirement Savings
Plan, (d) Post-Effective Amendment No. 1 to the Registration Statement on Form
S-8 (Registration No. 333-51173) of the Fortune Brands, Inc. Non-Employee
Director Stock Option Plan and (e) any and all amendments and supplements
thereto:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Norman H. Wesley Chairman of the Board and January 20, 2000
---------------------------- Chief Executive Officer
Norman H. Wesley (principal executive officer) and
Director
/s/ Craig P. Omtvedt Senior Vice President and Chief January 24, 2000
---------------------------- Financial Officer
Craig P. Omtvedt (principal financial officer)
/s/ Michael R. Mathieson Vice President and Chief January 21, 2000
---------------------------- Accounting Officer
Michael R. Mathieson (principal accounting officer)
/s/ Eugene R. Anderson Director January 25, 2000
----------------------------
Eugene R. Anderson
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Patricia O. Ewers Director January 25, 2000
----------------------------
Patricia O. Ewers
/s/ Thomas C. Hays Director January 24, 2000
----------------------------
Thomas C. Hays
/s/ John W. Johnstone, Jr. Director January 21, 2000
-----------------------------
John W. Johnstone, Jr.
/s/ Sidney J. Kirschner Director January 24, 2000
----------------------------
Sidney J. Kirschner
/s/ Gordon R. Lohman Director January 24, 2000
----------------------------
Gordon R. Lohman
/s/ Charles H. Pistor, Jr. Director January 25, 2000
----------------------------
Charles H. Pistor, Jr.
/s/ Eugene A. Renna Director January 24, 2000
----------------------------
Eugene A. Renna
/s/ Anne M. Tatlock Director January 25, 2000
----------------------------
Anne M. Tatlock
/s/ Peter M. Wilson Director January 24, 2000
----------------------------
Peter M. Wilson
2
</TABLE>
