As Filed With the Securities and Exchange Commission
on July 23, 2004
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BROWN-FORMAN CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 61-0143150
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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
================================================================================
Proposed Proposed Amount of
Title of securities Amount to be maximum offering maximum aggregate registration
to be registered registered (1) price per share(3) offering price fee(4)
-------------------- -------------- ------------------ ----------------- ------------
Class B Common Stock,
$0.15 par value 10,596,938 (2) $46.65 $494,294,173 $53,090
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), 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.
(2) Shares to be offered and sold under the Brown-Forman 2004 Omnibus
Compensation Plan (the "2004 Shares") comprise: (i) 4,900,000 shares not
previously registered; (ii) 1,046,051 shares previously registered for
issuance under the Brown-Forman Corporation Omnibus Compensation Plan
(the "Old Plan") on October 13, 1999 (Registration No. 333-88925) that may
no longer be issued under the Old Plan and that may be offered and sold
under the Brown-Forman 2004 Omnibus Compensation Plan; and (iii) 4,650,887
shares subject to awards previously granted under the Old Plan that may be
forfeited, cancelled or are subject to forfeiture or cancellation, and upon
forfeiture or cancellation will be available for issuance under the
Brown-Forman 2004 Omnibus Compensation Plan.
(3) 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 Common
Stock on the New York Stock Exchange on July 22, 2004.
(4) 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. 333-88925 to deregister shares of
the Company's Class B Common Stock that are not subject to outstanding
option grants under the Old Plan. The Amount of the Registration Fee was
calculated as the difference between the aggregate registration fee of
$62,627 (calculated based on the number of 2004 Shares) less the sum of
$9,537, which is the portion of the registration fee associated with the
1,046,051 deregistered shares (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.
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.
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:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
April 30, 2004; and
(2) 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 9 and 12 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.
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.
4(h) Restated Certificate of Incorporation of the Registrant, incorporated by
reference to Exhibit 3(i)(b) of Registrant's 10-Q, filed on December 10,
1998
4(i) Certificate of Ownership and Merger of Brown-Forman Corporation into
Brown-Forman, Inc., incorporated by reference to Registrant's 10-K, filed
on July 19, 1994
4(j) Registrant's by-laws, as amended and restated on May 25, 1988,
incorporated by reference to Registrant's 10-K, filed on July 26, 1993,
as further amended and currently in effect, incorporated by reference to
Registrant's Current Report on Form 8-K, filed June 3, 1998
4(k) Form of Indenture dated as of March 1, 1994, between the Registrant and
The First National Bank of Chicago, as Trustee, incorporated by reference
to Registrant's Form S-3 (Registration No. 33-52551), filed on March 8,
1994
4(l) Brown-Forman Corporation 2004 Omnibus Compensation Plan
5 Opinion of Bass, Berry & Sims PLC, counsel to the Registrant
23(a) Consent of PricewaterhouseCoopers LLP, Independent Registered Public
Accounting Firm
23(b) Consent of Bass, Berrry & Sims PLC, counsel to the Registrant (included
in Exhibit 5)
24 Power of Attorney (included on the signature page to the Registration
Statement)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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.
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 22nd day of July, 2004.
BROWN-FORMAN CORPORATION
By: /s/ Owsley Brown II
Owsley Brown II, Chairman and
Chief Executive Officer
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.
Signature Title Date
--------- ----- ----
/s/ Owsley Brown II Chairman and Chief Executive Officer July 22, 2004
Owsley Brown II (Principal Executive Officer)
Director
/s/ Phoebe A. Wood Executive Vice President and Chief July 22, 2004
Phoebe A. Wood Financial Officer (Principal Financial
Officer)
/s/ William M. Street Director July 22, 2004
William M. Street
/s/ Jane C. Morreau Vice President and Controller July 22, 2004
Jane C. Morreau (Principal Accounting Officer)
/s/ Ina Brown Bond Director July 22, 2004
Ina Brown Bond
/s/ Barry D. Bramley Director July 22, 2004
Barry D. Bramley
/s/ Geo. Garvin Brown III Director July 22, 2004
Geo. Garvin Brown III
/s/ Donald G. Calder Director July 22, 2004
Donald G. Calder
/s/ Owsley Brown Frazier Director July 22, 2004
Owsley Brown Frazier
/s/ Richard P. Mayer Director July 22, 2004
Richard P. Mayer
/s/ Stephen E. O'Neil Director July 22, 2004
Stephen E. O'Neil
/s/ Matthew R. Simmons Director July 22, 2004
Matthew R. Simmons
/s/ Dace Brown Stubbs Director July 22, 2004
Dace Brown Stubbs
/s/ Paul V. Varga Director July 22, 2004
Paul V. Varga
EXHIBIT INDEX
4(h) Restated Certificate of Incorporation of the Registrant, incorporated by
reference to Exhibit 3(i)(b) of Registrant's 10-Q, filed on December 10,
1998
4(i) Certificate of Ownership and Merger of Brown-Forman Corporation into
Brown-Forman, Inc., incorporated by reference to Registrant's 10-K, filed
on July 19, 1994
4(j) Registrant's by-laws, as amended and restated on May 25, 1988,
incorporated by reference to Registrant's 10-K, filed on July 26, 1993,
as further amended and currently in effect, incorporated by reference to
Registrant's Current Report on Form 8-K, filed June 3, 1998
4(k) Form of Indenture dated as of March 1, 1994, between the Registrant and
The First National Bank of Chicago, as Trustee, incorporated by reference
to Registrant's Form S-3 (Registration No. 33-52551), filed on March 8,
1994
4(l) Brown-Forman Corporation 2004 Omnibus Compensation Plan
5 Opinion of Bass, Berry & Sims PLC, counsel to the Registrant
23(a) Consent of PricewaterhouseCoopers LLP, Independent Registered Public
Accounting Firm
23(b) Consent of Bass, Berrry & Sims PLC, counsel to the Registrant (included
in Exhibit 5)
24 Power of Attorney (included on the signature page to the Registration
Statement)
Exhibit 5
July 23, 2004
Brown-Forman Corporation
850 Dixie Highway
Louisville, Kentucky 40210
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") relating to the Brown-Forman Corporation
2004 Omnibus Compensation Plan (the "Plan") filed by you with the Securities and
Exchange Commission, covering an aggregate of 10,596,938 shares (the "Shares")
of common stock, $0.15 par value, issuable pursuant to the Plan.
In so acting, we have examined and relied upon such records, documents, and
other instruments as in our judgment are necessary or appropriate in order to
express the opinions hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to the original documents of all documents submitted to us as
certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares, when issued
pursuant to and in accordance with the Plan, will be validly issued, fully paid,
and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
Exhibit 23(a)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 27, 2004 relating to the financial
statements, which appears in the 2004 Annual Report to Shareholders of
Brown-Forman Corporation and Subsidiaries ("the Company"), which is incorporated
by reference in the Company's Annual Report on Form 10-K for the year ended
April 30, 2004. We also consent to the incorporation by reference of our report
dated May 27, 2004 relating to the financial statement schedule, which appears
in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Louisville, Kentucky
July 21, 2004