SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
August 13, 2002
Brown-Forman Corporation
(Exact name of registrant as specified in its charter)
Delaware 1-123 61-0243150
(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
850 Dixie Highway, Louisville, Kentucky 40210
Registrant's telephone number, including area code: (502) 774-7631
Item 5.
On July 25, 2002, the Board of Directors approved an amendment to Section 2.1 of
the Registrant's by-laws, which amendment permits the Board, by a two-thirds
vote, to ask a director to remain on the Board for the balance of the year in
which the director reaches age 70, and for one additional year thereafter. The
full text of the by-laws, as amended on July 25, 2002, are attached hereto as
Exhibit 99.1. The text of Section 2.1 of the by-laws now reads as follows:
Section 2.1 Number; Qualification. The Board of Directors of the Corporation
shall consist of not less than three (3) and not more than seventeen (17)
persons, who shall hold office until the Annual Meeting of the Stockholders next
ensuing after their election, and until their respective successors are elected
and shall qualify. The number of Directors to serve from time to time shall be
fixed by the Board of Directors subject to being changed by the stockholders.
Directors shall retire from the Board upon attaining age 70, except that the
Board upon a two-thirds vote (and without the participation of the director
concerned) may ask a director to remain on the Board for the balance of the year
in which the director attains age 70 and for one additional year if it finds
that such service is of significant benefit to the corporation.
Item 9.
Pursuant to Commission Order No. 4-460, on August 13, 2002, Owsley Brown II,
the Chief Executive Officer of the Corporation, and Phoebe Wood, the Executive
Vice President, Chief Financial Officer of the Corporation, each delivered to
the Commission statements under oath regarding facts and circumstances relating
to certain of the Corporation's Exchange Act filings. The statements are
attached as Exhibits 99.2 and 99.3 hereto.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Brown-Forman Corporation
(Registrant)
August 13, 2002 /s/ Michael B. Crutcher
Michael B. Crutcher,
Senior Vice President,
General Counsel and Secretary
EXHIBIT 99.1
BY-LAWS OF BROWN-FORMAN CORPORATION
AS AMENDED
ARTICLE I.
STOCKHOLDERS.
SECTION 1.1 Annual Meetings. The annual meeting of the stockholders for the
purpose of electing directors and for the transaction of such other business as
may properly be brought before the meeting shall be held at such date, time and
place either within or without the State of Delaware as may be designated by
resolution of the Board of Directors, but no later than September 30 of each
year.
SECTION l.2 Special Meetings. Special meetings of the stockholders may be held
upon call of a majority of the Board of Directors, Executive Committee, Chairman
of the Board or President (and shall be called by the Chairman of the Board or
the President at the request in writing of stockholders owning a majority of the
outstanding shares of the corporation entitled to vote at the meeting) at such
time and at such place within or without the State of Delaware as shall be fixed
by the call for the meeting, and as may be stated in the notice setting forth
such call.
SECTION 1.3 Notice of Meeting; Waiver of Notice. Notice of the time, place and
purpose of every meeting of stockholders shall be mailed not less than ten (10)
nor more than fifty (50) days next preceding the date of said meeting to each
stockholder of record entitled to vote at the meeting, who shall have furnished
a written address to the Secretary of the corporation for the purpose. Notice of
any stockholders' meeting may be waived in writing by any stockholder entitled
to vote at the meeting. Attendance of a person at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice.
SECTION 1.4 Adjournments. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 1.5 Quorum. At each meeting of stockholders, except where otherwise
provided by law or the certificate of incorporation or these by-laws, the
holders of a majority of the outstanding shares of each class of stock entitled
to vote at the meeting, present in person or by proxy, shall constitute a
quorum. In the absence of a quorum the stockholders so present may, by majority
vote, adjourn the meeting from time to time in the manner provided by Section
1.4 of these by-laws until a quorum shall attend.
SECTION 1.6 Voting. Each stockholder entitled to vote at any meeting shall have
one vote in person or by proxy for each share of stock held by him which has
voting power upon the matter in question at the time. At all elections of
directors, the voting shall be by ballot and a majority of the votes cast shall
elect. Except where a date shall have been fixed as a record date for the
determination of the stockholders entitled to vote as hereinafter provided, no
share of stock shall be voted on at any election of directors which shall have
been transferred on the books of the corporation within twenty (20) days next
preceding such election.
SECTION 1.7 Record Date. The Board of Directors may fix in advance a date, not
exceeding forty (40) days preceding the date of any meeting of stockholders, or
the date for the payment of any dividend or distribution, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, as a record date for the determination of
the stockholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of any such dividend or distribution, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, and in such case only such stockholders
as shall be stockholders of record on the date so fixed shall be entitled to
notice of, and to vote at such meeting, or to receive payment of such dividend
or distribution, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of any stock on the
books of the corporation after any such record date fixed as aforesaid.
SECTION 1.8 Organization. Meetings of stockholders shall be presided over by the
Chairman of the Board, if any, or in his absence by the President, or in their
absence by a Vice President, or in the absence of the foregoing persons, by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting but in his absence the chairman of the meeting may appoint any person to
act as secretary of the meeting.
ARTICLE II.
BOARD OF DIRECTORS.
SECTION 2.1 Number; Qualification. The Board of Directors of the Corporation
shall consist of not less than three (3) nor more than seventeen (17) persons,
who shall hold office until the Annual Meeting of the Stockholders next ensuing
after their election, and until their respective successors are elected and
shall qualify. The number of Directors to serve from time to time shall be fixed
by the Board of Directors subject to being changed by the stockholders at any
Annual Meeting of Stockholders. Directors need not be stockholders. Directors
shall retire from the Board upon attaining age 70, except that the Board upon a
two-thirds vote (and without the participation of the director concerned) may
ask a director to remain on the Board for the balance of the year in which the
director attains age 70 and for one additional year if it finds that such
service is of significant benefit to the corporation.
SECTION 2.2 Vacancies. Vacancies in the Board of Directors shall be filled by a
majority of the remaining directors, and the directors so chosen shall hold
office until the next annual election and until their successors shall be duly
elected and shall qualify.
SECTION 2.3 Meetings. Meetings of the Board of Directors shall be held at such
place within or without the State of Delaware as may from time to time be fixed
by resolution of the Board or as may be specified in the call of any meeting.
Regular meetings of the Board of Directors shall be held at such times as may
from time to time be fixed by resolution of the Board, and special meetings may
be held at any time upon call of the Executive Committee, the Chairman of the
Board, if any, the President or a majority of the Board by telephonic or
telegraphic notice duly given to each director not less than three days before
the meeting or written notice sent or mailed to each director not less than five
days before the meeting. Such notice shall state the time and place of the
meeting, but need not specify the purpose thereof. A meeting of the Board may be
held without notice immediately after the annual meeting of stockholders at the
same place at which such meeting is held. Notice need not be given of regular
meetings of the Board held at the time fixed by resolution of the Board.
Meetings may be held at any time without notice if all directors are present or
if those not present waive notice of the meeting in writing. At all meetings of
the Board of Directors one-third of the entire Board of Directors shall
constitute a quorum for the transaction of business and the vote of a majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his absence by the
President, or in their absence by a chairman chosen at the meeting and the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
SECTION 2.4 Informal Action by Directors. Any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting if all members of the Board of Directors or of such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
SECTION 2.5 Executive Committee. The Board of Directors may, by resolution or
resolutions, passed by a majority of the whole Board, designate an Executive
Committee to consist of the Chief Executive Officer and one or more of the
directors as the Board may from time to time determine. In addition, the Board
of Directors may appoint persons who are not directors of the Corporation as
associate non-voting members of the Executive Committee. The Executive Committee
shall have and may exercise, when the Board is not in session, all the powers of
the Board of Directors in the management of the business and affairs of the
corporation, and shall have power to authorize the seal of the corporation to be
affixed to all papers which may require it; but the Executive Committee shall
not have power to fill vacancies in the Board, or to change the membership of or
fill the vacancies on the said Committee, or to make or amend the By-laws of the
corporation. The Board shall have power at any time to change the membership of
the Executive Committee, to fill vacancies in it, or to dissolve it. The
Executive Committee may make such rules for the conduct of its business and may
appoint such committees and assistants as it shall from time to time deem
necessary. A majority of the members of the Executive Committee shall constitute
a quorum.
SECTION 2.6 Other Committees. The Board of Directors may by resolution designate
one or more other committees which committees shall have and may exercise such
powers as the Board of Directors shall by resolution provide.
ARTICLE III.
OFFICERS.
SECTION 3.1 Election. The Board of Directors, as soon as may be after the
election held in each year, shall choose a Chairman of the Board and/or a
President of the corporation, one or more Vice Presidents (with such
classifications as the Board may determine), a Secretary and a Treasurer, and
may if it so determines choose one or more Vice Chairmen of the Board. The Board
of Directors may also from time to time appoint such Assistant Secretaries,
Assistant Treasurers and such other officers, agents and employees as it may
deem proper. The Chairman of the Board, Vice Chairman of the Board, and the
President shall be chosen from among the directors, and the Board of Directors
shall designate either the President or the Chairman of the Board to be the
Chief Executive Officer of the Corporation. Any two or more offices, except that
of the Chief Executive Officer and Secretary, may be held by the same person.
SECTION 3.2 Term; Removal. The term of office of all officers shall be one year
or until their respective successors are elected and shall qualify; but any
officer may be removed from office at any time by the affirmative vote of a
majority of the members of the Board then in office. Any vacancy occurring in
any office of the corporation by death, resignation, removal or otherwise may be
filled for the unexpired portion of the term by the Board of Directors at any
regular or special meeting.
SECTION 3.3 Powers and Duties. Subject to the limitations as the Board of
Directors or the Executive Committee may from time to time prescribe, the
officers of the corporation shall each have such powers and duties as generally
pertain to the respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors or by the Executive
Committee. The Treasurer and the Assistant Treasurers may be required to give
bond for the faithful discharge of their duties, in such sum and with such
surety as the Board of Directors may prescribe.
ARTICLE IV.
FUNDS OF THE CORPORATION.
All moneys of the corporation, or under its charge, deposited in any bank or
other place of deposit, shall be deposited to the credit of the corporation in
its corporate name, in such institutions, and shall be subject to withdrawal
upon such signatures, as may from time to time be prescribed by resolution of
the Board of Directors.
ARTICLE V.
CERTIFICATES OF STOCK.
SECTION 5.1 Certificates. The interest of each stockholder of the corporation
shall be evidenced by a certificate or certificates for shares of stock in such
form as the Board of Directors may from time to time prescribe. The shares of
stock of the corporation shall be transferable on the books of the corporation
by the holder thereof in person or by his attorney upon surrender for
cancellation of a certificate or certificates representing the same, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed and with such proof of authenticity of the signature as the corporation
or its agents may reasonably require.
SECTION 5.2 Signatures. The certificates of stock shall be signed by the
Chairman of the Board or the President or a Vice President and by the Secretary
or the Treasurer or an Assistant Secretary or an Assistant Treasurer (except
that where any such certificate is signed by a transfer agent and by a
registrar, the signatures of any such Chairman of the Board, President, Vice
President, Secretary, Treasurer, Assistant Secretary or Assistant Treasurer may
be facsimile, engraved or printed), and shall be countersigned and registered in
such manner, if any, as the Board of Directors may by resolution prescribe. In
case any officer or officers who shall have signed, or whose facsimile signature
or signatures shall have been used on, any such certificate or certificates
shall cease to be such officer or officers of the corporation, whether because
of death, resignation or otherwise, before such certificate or certificates have
been delivered by the corporation, such certificate or certificates may
nevertheless be issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
corporation.
SECTION 5.3 Lost, Stolen or Destroyed Certificates. No certificate for shares of
stock in the corporation shall be issued in place of any certificate alleged to
have been lost, stolen or destroyed, except upon production of such evidence of
such loss, theft or destruction and upon delivery to the corporation of a bond
of indemnity in such amount, upon such terms and secured by such surety, as the
Board in its discretion may require.
ARTICLE VI.
CORPORATE BOOKS.
The books of the corporation, except the original or duplicate stock ledger,
shall be kept at the office of the Company at Louisville, Kentucky; or at such
other place or places as the Board of Directors may from time to time designate.
ARTICLE VII.
FISCAL YEAR.
The fiscal year of the corporation shall begin on the 1st day of May in each
year and shall end on the 30th day of April of each year, and may be changed
from time to time by resolution of the Board of Directors.
ARTICLE VIII.
CORPORATE SEAL.
The corporate seal of this Company shall be circular in form and shall bear the
name of the corporation and the words "Incorporated Delaware 1933."
ARTICLE IX.
INDEMNITY.
The Board of Directors may by resolution provide that the corporation shall
indemnify to the extent authorized by law any person made or threatened to be
made a party to an action or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he, his testator or intestate is or
was a director, officer or employee of the corporation or serves or served any
other enterprise as a director, officer or employee at the request of the
corporation.
ARTICLE X.
AMENDMENTS.
The By-laws of the corporation, regardless of whether made by the stockholders
or by the Board of Directors, may be amended, added to or repealed at any
meeting of the Board of Directors or of the stockholders, provided notice of the
proposed change is given in the notice of the meeting.
CERTIFICATION.
The undersigned, Secretary of BROWN-FORMAN CORPORATION, hereby certifies that
the foregoing seven printed pages contain a true and complete copy of the
By-laws of said corporation, as amended from time to time.
/s/ Michael B. Crutcher
Michael B. Crutcher
Secretary
Brown-Forman Corporation
Dated: July 25, 2002
Louisville, Kentucky
EMERGENCY BY-LAWS.
ARTICLE I.
These emergency by-laws shall be effective and operative during any emergency
resulting from an attack on the United States or on a locality in which the
corporation conducts its business or customarily holds meetings of its Board of
Directors or its stockholders, or during any nuclear or atomic disaster, or
during the existence of any catastrophe, or other similar emergency condition,
as a result of which a quorum of the Board of Directors or a standing committee
thereof cannot be readily convened for action.
ARTICLE II.
BOARD OF DIRECTORS.
SECTION 1. A meeting of the Board of Directors, or a committee thereof, may be
called by any director or officer by the giving of three (3) days' notice only
to such of the directors as it may be feasible to reach at that time and by such
means as may be feasible at the time, including publications and radio. The
notice shall state the time and place of the meeting, but need not specify the
purpose thereof.
SECTION 2: A quorum shall consist of any three (3) directors; and in addition to
duly elected directors the officers listed in the following Section 4 hereof
shall be eligible as directors to constitute a quorum.
SECTION 3: To the extent required to constitute a quorum at any meeting of the
Board of Directors, the officers of the corporation who are present shall be
deemed, in order of rank and within the same rank in order of seniority,
directors for such meeting. If, within the same rank two or more officers' date
of election as such officer is the same, seniority shall be determined on the
basis of length of service with the corporation.
SECTION 4: Persons holding the following offices shall, in the order named, and
to the extent required to provide a quorum at any meeting of the Board of
Directors, be deemed directors for such meeting:
Chairman of the Board
Vice Chairman of the Board
President
Executive Vice President
Senior Vice President
Vice President
Secretary
Treasurer
Assistant Vice President
Assistant Secretary
Assistant Treasurer
ARTICLE III.
If, during any such emergency, any officer shall be rendered incapable of
discharging his duties, the authority, duties and functions of such officer
shall be assumed by the person next in line of authority, as shown on the then
currently effective organization chart of the corporation; provided, that no
person assuming the authority, duties and functions of an officer shall be
entitled to act as director, as provider in Article II hereof, unless he shall
have been duly elected as an officer or director.
ARTICLE IV.
The Board of Directors may at any meeting change the head office or designate
several alternative head offices or regional offices of the corporation or
authorize officers so to do.
ARTICLE V.
No officer or director or employee acting in accordance with any of the
provisions of these emergency by-laws shall be liable except for willful
misconduct.
ARTICLE VI.
To the extent they are not inconsistent with these Emergency By-Laws, the
By-Laws of the corporation shall remain in effect at all times. Upon the
termination of the emergency described in Article I hereof, these Emergency
By-Laws shall cease to be operative.
EXHIBIT 99.2
Statement Under Oath of Principal Executive Officer and Principal Financial
Officer Regarding Facts and Circumstances Relating to Exchange Act Filings
I, Owsley Brown II, Chief Executive Officer of Brown-Forman Corporation, state
and attest that:
(1) To the best of my knowledge, based upon a review of the covered reports of
Brown-Forman Corporation, and, except as corrected or supplemented in a
subsequent covered report:
* no covered report contained an untrue statement of a material fact as of the
end of the period covered by such report (or in the case of a report on
Form 8-K or definitive proxy materials, as of the date on which it was filed);
and
* no covered report omitted to state a material fact necessary to make the
statements in the covered report, in light of the circumstances under which
they were made, not misleading as of the end of the period covered by such
report (or in the case of a report on Form 8-K or definitive proxy materials,
as of the date on which it was filed).
(2) I have reviewed the contents of this statement with the Company's audit
committee.
(3) In this statement under oath, each of the following, if filed on or before
the date of this statement, is a "covered report":
* 2002 Annual Report on Form 10-K of Brown-Forman Corporation;
* all reports on Form 10-Q, all reports on Form 8-K and all definitive proxy
materials of Brown-Forman Corporation filed with the Commission subsequent to
the filing of the Form 10-K identified above; and
* any amendments to any of the foregoing.
/s/ Owsley Brown II Subscribed and sworn to before me this 13th
Owsley Brown II day of August, 2002.
Date: August 13, 2002
/s/ Linda M. Lydon
Notary Public
My commission expires: 11-22-07
EXHIBIT 99.3
Statement Under Oath of Principal Executive Officer and Principal Financial
Officer Regarding Facts and Circumstances Relating to Exchange Act Filings
I, Phoebe Wood, Executive Vice President and Chief Financial Officer of
Brown-Forman Corporation, state and attest that:
(1) To the best of my knowledge, based upon a review of the covered reports of
Brown-Forman Corporation, and, except as corrected or supplemented in a
subsequent covered report:
* no covered report contained an untrue statement of a material fact as of the
end of the period covered by such report (or in the case of a report on
Form 8-K or definitive proxy materials, as of the date on which it was filed);
and
* no covered report omitted to state a material fact necessary to make the
statements in the covered report, in light of the circumstances under which
they were made, not misleading as of the end of the period covered by such
report (or in the case of a report on Form 8-K or definitive proxy materials,
as of the date on which it was filed).
(2) I have reviewed the contents of this statement with the Company's audit
committee.
(3) In this statement under oath, each of the following, if filed on or before
the date of this statement, is a "covered report":
* 2002 Annual Report on Form 10-K of Brown-Forman Corporation;
* all reports on Form 10-Q, all reports on Form 8-K and all definitive proxy
materials of Brown-Forman Corporation filed with the Commission subsequent to
the filing of the Form 10-K identified above; and
* any amendments to any of the foregoing.
/s/ Phoebe A. Wood Subscribed and sworn to before me this 13th
Phoebe Wood day of August, 2002.
Date: August 13, 2002
/s/ Rosalie S. Russell
Notary Public
My commission expires: 4-22-2004