BROWN-FORMAN CORPORATION - FORM S-8
As Filed With the Securities and Exchange Commission
on July 28, 2005
Registration No. 333-________
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)
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| Delaware
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61-0143150 |
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(I.R.S. Employer Identification No.) |
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850 Dixie Highway
Louisville, Kentucky 40210
(Address of Principal Executive Offices)
BROWN-FORMAN CORPORATION
2004 OMNIBUS COMPENSATION PLAN
(Full title of the plan)
Michael B. Crutcher
Vice Chairman,
General Counsel and Secretary
Brown-Forman Corporation
850 Dixie Highway
Louisville, Kentucky 40210
(502) 585-1100
(Name, Address, and Telephone Number of Registrant’s agent for service)
Copy to:
Leigh Walton
Todd J. Rolapp
Bass, Berry & Sims PLC
315 Deaderick Street, Suite 2700
Nashville, Tennessee 37238-0002
CALCULATION OF REGISTRATION FEE
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Proposed |
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maximum offering |
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Proposed |
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Amount of |
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Title of securities |
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Amount to be |
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price per |
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maximum aggregate |
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registration |
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to be registered |
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registered(2) |
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share(3) |
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offering price |
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fee(4) |
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Common Stock,
$0.15 par value
(1) |
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9,932,713 |
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$61.03 |
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$606,193,475 |
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$12,051 |
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As provided under the Brown-Forman 2004 Omnibus Compensation Plan (the “Plan”), the shares of
common stock issued or issuable under the Plan may be either Class A Common Stock or Class B
Common Stock of the Registrant. |
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement includes an indeterminate number of additional shares which may be
offered and issued to prevent dilution resulting from stock splits, stock dividends or similar
transactions. |
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Pursuant to Rule 457(h)(1) under the Securities Act, the offering price is estimated solely
for the purpose of calculating the registration fee on the basis of the average of the high
and low prices of the Registrant’s Class A Common Stock
($61.03) and Class B Common Stock
($58.27) on the New York Stock Exchange on July 27, 2005. |
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In accordance with Rule 457(p) of the Securities Act, the aggregate total dollar amount of
the Registration Fee is being offset by the dollar amount of registration fees previously paid
in respect of unissued shares previously registered by the Company on Form S-8, which unissued
shares have been deregistered. The Company has filed a post-effective amendment to its Form
S-8 Registration Statement File No. 333-117630 to deregister 9,932,713 shares of the Company’s
Class B Common Stock that are not subject to outstanding awards under the Plan. The Amount of
the Registration Fee was calculated as the difference between (i) the aggregate registration
fee of $71,349 less (ii) the sum of (x) $9,537, which is the portion of the registration fee
associated with the 1,046,051 shares deregistered on July 23, 2004 (calculated to account for
the registrant’s January 2004 2-for-1 stock split) that was previously paid in connection with
the Form S-8 Registration Statement File No. 333-88925 filed on October 13, 1999 and (y)
$49,761, which is the portion of the registration fee associated with the 9,932,713 shares of
Class B Common Stock deregistered on July 28, 2005 that was previously paid in connection with
the Form S-8 Registration Statement File No. 333-117630 filed on July 23, 2004. |
TABLE OF CONTENTS
PART I
Information Required in the Section 10(a) Prospectus
Brown-Forman Corporation (the “Registrant”) has sent or given or will send or give documents
containing the information specified by Part I of this Form S-8 Registration Statement (the
“Registration Statement”) to participants in the plan to which this Registration Statement relates,
as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”). The Registrant is not filing
such documents with the SEC, but these documents constitute (along with the documents incorporated
by reference into the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the SEC, pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference and
shall be deemed to be a part hereof from the date of filing of such document:
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended April 30, 2005; |
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The Registrant’s Current Reports on Form 8-K filed on May 25, 2005, May 27, 2005, June 20,
2005, July 26, 2005 and July 27, 2005; and |
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The description of the Registrant’s Class A Common Stock, par value $0.15 per share, and
Class B Common Stock, par value $0.15 per share, contained in the Registrant’s Registration
Statement on Form 8-A filed with the SEC on April 11, 1991, including all other amendments and
reports filed for the purpose of updating such descriptions. |
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date hereof and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents. Any statements contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be
modified or replaced for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated or deemed to be incorporated by
reference herein) modifies or replaces such statement. Any statement so modified or replaced shall
not be deemed, except as so modified or replaced, to constitute a part hereof.
Notwithstanding the foregoing, information furnished under Items 2.02 and 7.01 of any Current
Report on Form 8-K, including the related exhibits, is not incorporated by reference in this
prospectus or the accompanying registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 145(a) and (b) of the Delaware General Corporation Law (the “DGCL”) provide generally
that a corporation has the power to indemnify its officers, directors, employees and agents against
expenses, including attorneys’ fees, judgments, fines and settlement amounts actually and
reasonably incurred by them in connection with the defense of any action by reason of being or
having been directors, officers, employees or agents of the corporation (or serving or having
served in such positions in another entity at the request of the corporation) if such person shall
have 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, had no reasonable
cause to believe the person’s conduct was unlawful), except that if such action shall be by or in
the right of the corporation, no such indemnification shall be provided as to any claim, issue or
matter as to which such person shall have been judged to have been liable to the corporation unless
and only to the extent that the Court of Chancery of the State of Delaware, or another court in
which the suit was brought, shall determine upon application that, despite the adjudication of
liability but in view of all of 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 deems
proper.
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Section 145(c) of the DGCL provides that 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 Sections 145(a) and (b) of the DGCL, as described in the
preceding paragraph, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith.
As permitted by Section 102(b)(7) of the DGCL, the Registrant’s Certificate of Incorporation
provides that a director shall not be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except that a director may be liable
(i) for any breach of the director’s duty of loyalty to the Registrant 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 DGCL or (iv) for any transaction from which the
director derived an improper personal benefit.
In addition, the By-laws of the Registrant permit the Registrant’s board of directors to adopt
a resolution providing for the indemnification of the Registrant’s officers and directors to the
extent authorized by law.
A directors’ and officers’ insurance policy insures the Registrant’s directors and officers
against liabilities incurred in their capacity as such for which they are not otherwise
indemnified, subject to certain exclusions.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
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4.1 |
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Restated Certificate of Incorporation of the Registrant, incorporated by reference to Exhibit
3(i) of Registrant’s 10-Q, filed on March 4, 2004 |
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4.2 |
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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 |
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4.3 |
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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 May 27, 2005 |
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4.4 |
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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 |
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4.5 |
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Brown-Forman Corporation 2004 Omnibus Compensation Plan, incorporated by reference to
Registrant’s definitive proxy statement filed on June 30, 2004 in connection with its 2004
Annual Meeting of Stockholders |
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Opinion of Bass, Berry & Sims PLC, counsel to the Registrant |
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm |
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Consent of Bass, Berrry & Sims PLC, counsel to the Registrant (included in Exhibit 5) |
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Power of Attorney (included on the signature page to the Registration Statement) |
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
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(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;
(ii) To reflect in the prospectus any facts or events arising after the effective date
of this 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 this Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the undersigned registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) 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.
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of the employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities 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 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 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) is asserted
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 Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the 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 City of Louisville, State of Kentucky, on this 28th day of July, 2005.
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BROWN-FORMAN CORPORATION
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By: |
/s/ Owsley Brown II
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Owsley Brown II, Chairman and |
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Chief Executive Officer |
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KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below hereby constitutes
and appoints Phoebe A. Wood, Michael B. Crutcher and Nelea A. Absher and each of them, his or her
true and lawful attorneys-in-fact and agents, 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, to sign any and
all amendments (including post-effective amendments) to this Registration Statement, and to file
the same, with the SEC, 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 and necessary, 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 his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated below.
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Title |
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/s/ Owsley Brown II
Owsley Brown II |
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Chairman and Chief
Executive Officer
(Principal Executive Officer)
Director
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July 28, 2005 |
| /s/ Phoebe A. Wood
Phoebe A. Wood |
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Executive Vice President
and Chief Financial
Officer (Principal
Financial Officer)
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July 28, 2005 |
| /s/ William M. Street
William M. Street |
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Director
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July 28, 2005 |
| /s/ Jane C. Morreau
Jane C. Morreau |
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Vice President and
Controller (Principal
Accounting Officer)
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July 28, 2005 |
| /s/ Ina Brown Bond
Ina Brown Bond |
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Director
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July 28, 2005 |
| /s/ Barry D. Bramley
Barry D. Bramley |
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Director
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July 28, 2005 |
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Geo. Garvin Brown III |
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Director
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July 28, 2005 |
| /s/ Donald G. Calder
Donald G. Calder |
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Director
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July 28, 2005 |
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| Signature |
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Title |
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Owsley Brown Frazier |
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Director
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July 28, 2005 |
| /s/ Richard P. Mayer
Richard P. Mayer |
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Director
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July 28, 2005 |
| /s/ Stephen E. O’Neil
Stephen E. O’Neil |
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Director
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July 28, 2005 |
| /s/ Matthew R. Simmons
Matthew R. Simmons |
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Director
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July 28, 2005 |
| /s/ Dace Brown Stubbs
Dace Brown Stubbs |
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Director
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July 28, 2005 |
| /s/ Paul V. Varga
Paul V. Varga |
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Director
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July 28, 2005 |
| /s/ Patrick Bousquet-Chavenne
Patrick Bousquet-Chavenne |
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Director
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July 28, 2005 |
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EXHIBIT INDEX
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4.1 |
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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 |
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4.2 |
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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 |
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4.3 |
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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 May 27, 2005 |
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4.4 |
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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 |
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4.5 |
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Brown-Forman Corporation 2004 Omnibus Compensation Plan, incorporated by reference to
Registrant’s definitive proxy statement filed on June 30, 2004 in connection with its 2004
Annual Meeting of Stockholders |
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5 |
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Opinion of Bass, Berry & Sims PLC, counsel to the Registrant |
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm |
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Consent of Bass, Berry & Sims PLC, counsel to the Registrant (included in Exhibit 5) |
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Power of Attorney (included on the signature page to the Registration Statement) |
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