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Brown Forman Corp – ‘S-8’ on 7/25/13

On:  Thursday, 7/25/13, at 2:24pm ET   ·   Effective:  7/25/13   ·   Accession #:  1193125-13-302429   ·   File #:  333-190122

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 7/25/13  Brown Forman Corp                 S-8         7/25/13    3:74K                                    RR Donnelley/FA

Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan   —   Form S-8
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-8         Registration of Securities to be Offered to         HTML     60K 
                          Employees Pursuant to an Employee                      
                          Benefit Plan                                           
 2: EX-5.1      Opinion re: Legality                                HTML     11K 
 3: EX-23.1     Consent of Experts or Counsel                       HTML      6K 


S-8   —   Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan


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  S-8  

As Filed With the Securities and Exchange Commission

on July 25, 2013

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)

 

 

 

Delaware   61-0143150

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

850 Dixie Highway

Louisville, Kentucky

  40210
(Address of Principal Executive Offices)   (Zip Code)

BROWN-FORMAN 2013 OMNIBUS COMPENSATION PLAN

(Full title of the plan)

Matthew E. Hamel

Executive Vice President, General Counsel and Secretary

850 Dixie Highway

Louisville, Kentucky 40210

(Name and address of agent for service)

(502) 585-1100

(Telephone number, including area code, of agent for service)

 

 

Copy to:

Leigh Walton

Bass, Berry & Sims PLC

150 Third Avenue South, Suite 2800

Nashville, Tennessee 37201

(615) 742-6200

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large Accelerated Filer   x    Accelerated Filer   ¨
Non-accelerated Filer   ¨  (do not check if you are a smaller reporting company)    Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of securities

to be registered

 

Amount

to be

registered (2)

 

Proposed

maximum

offering price

per share (4)

 

Proposed

maximum

aggregate

offering price (4)

  Amount of
registration fee

Common Stock, $0.15 par value (1)

  13,009,378 (3)   $74.66   $971,280,161.48   $132,482.61

 

 

(1) As provided under the Brown-Forman 2013 Omnibus Compensation Plan (the “2013 Plan”), the shares of common stock issued or issuable under the 2013 Plan may be either Class A Common Stock or Class B Common Stock of the Registrant.
(2) 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.
(3) Shares to be offered and sold under the 2013 Plan (the “2013 Shares”) comprise: (i) 2,283,775 shares not previously registered; (ii) 6,016,225 shares previously registered for issuance under the Brown-Forman 2004 Omnibus Compensation Plan (the “2004 Plan”) on July 28, 2005 (Registration No. 333-126988) that may no longer be issued under the 2004 Plan and that may be offered and sold under the 2013 Plan; and (iii) 4,709,378 shares subject to awards previously granted under the 2004 Plan that may terminate, expire unexercised or be settled for cash, forfeited or cancelled without the delivery of shares under the terms of the 2004 Plan, as the case may be, after the effective date of the 2013 Plan will be available for issuance under the 2013 Plan.
(4) Pursuant to Rule 457(c) and (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 ($74.66) and Class B Common Stock ($72.62) on the New York Stock Exchange on July 22, 2013.

 

 

 


PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

Brown-Forman Corporation (the “Registrant” or the “Company”) 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 2013 Plan to which this Registration Statement relates, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act. The Registrant is not filing such documents with the Commission, 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 Commission, 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, 2013 (filing date June 27, 2013); 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.

Except to the extent that information therein is deemed furnished and not filed pursuant to the Exchange Act, 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 Registration Statement or the accompanying prospectus.

 

Item 4. Description of Securities.

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

Not applicable.

 

1


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.

Section 145(g) of the DGCL provides, in general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation against any liability asserted against the person in any such capacity, or arising out of the person’s status as such, regardless of whether the corporation would have the power to indemnify the person against such liability under the provisions of the law. The Registrant maintains a directors’ and officers’ insurance policy that 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.

As permitted by Section 102(b)(7) of the DGCL, the Registrant’s Restated 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.

 

Item 7. Exemption from Registration Claimed.

None.

 

Item 8. Exhibits.

 

  4.1    Restated Certificate of Incorporation of the Registrant, incorporated by reference to Exhibit 3.1 to the Registrant’s Form 10-Q filed on September 5, 2012 (File No. 002-26821).
  4.2    By-laws of the Registrant, as amended on May 28, 2009, incorporated by reference to Exhibit 3(ii) to the Registrant’s Form 8-K filed on May 29, 2009 (File No. 002-26821).
  4.3    Brown-Forman 2013 Omnibus Compensation Plan, incorporated by reference to Annex A to Registrant’s definitive proxy statement, filed on June 27, 2013 (File No. 002-26821).
  5.1    Opinion of Bass, Berry & Sims PLC, counsel to the Registrant.
23.1    Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2    Consent of Bass, Berry & Sims PLC, counsel to the Registrant (included in Exhibit 5.1).
24.1    Power of Attorney (included on the signature page to the Registration Statement).

 

2


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) above 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.

 

3


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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, Commonwealth of Kentucky, on this 25th day of July, 2013.

 

BROWN-FORMAN CORPORATION
By:  

/s/ Paul C. Varga

  Paul C. Varga
 

Chief Executive Officer and

Chairman of the Company

KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below hereby constitutes and appoints Donald C. Berg, Matthew E. Hamel and Holli H. Lewis 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 Commission, 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.

 

Signature

  

Title

 

Date

/s/ Geo. Garvin Brown IV

  

Director, Chairman of the Board

  July 25, 2013
Geo. Garvin Brown IV     

/s/ Paul C. Varga

  

Director, Chief Executive Officer, and Chairman of the Company

  July 25, 2013
Paul C. Varga     

/s/ Joan C. Lordi Amble

  

Director

  July 25, 2013
Joan C. Lordi Amble     

/s/ Patrick Bousquet-Chavanne

  

Director

  July 25, 2013
Patrick Bousquet-Chavanne     

/s/ Martin S. Brown, Jr.

  

Director

  July 25, 2013
Martin S. Brown, Jr.     

/s/ Bruce L. Byrnes

  

Director

  July 25, 2013
Bruce L. Byrnes     

/s/ John D. Cook

  

Director

  July 25, 2013
John D. Cook     

/s/ Sandra A. Frazier

  

Director

  July 25, 2013
Sandra A. Frazier     


/s/ Dace Brown Stubbs

  

Director

  July 25, 2013
Dace Brown Stubbs     

/s/ James S. Welch, Jr.

  

Director, Vice Chairman of the Company

  July 25, 2013
James S. Welch, Jr.     

/s/ Donald C. Berg

Donald C. Berg

  

Executive Vice President and Chief Financial Officer (Principal Financial Officer)

  July 25, 2013

/s/ Brian P. Fitzgerald

Brian P. Fitzgerald

  

Senior Vice President and Chief Accounting Officer (Principal Accounting Officer)

  July 25, 2013
    


EXHIBIT INDEX

 

  4.1    Restated Certificate of Incorporation of the Registrant, incorporated by reference to Exhibit 3.1 to the Registrant’s Form 10-Q filed on September 5, 2012 (File No. 002-26821).
  4.2    By-laws of the Registrant, as amended on May 28, 2009, incorporated by reference to Exhibit 3(ii) to the Registrant’s Form 8-K filed on May 29, 2009 (File No. 002-26821).
  4.3    Brown-Forman 2013 Omnibus Compensation Plan, incorporated by reference to Annex A to Registrant’s definitive proxy statement, filed on June 27, 2013 (File No. 002-26821).
  5.1    Opinion of Bass, Berry & Sims PLC, counsel to the Registrant.
23.1    Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2    Consent of Bass, Berry & Sims PLC, counsel to the Registrant (included in Exhibit 5.1).
24.1    Power of Attorney (included on the signature page to the Registration Statement).

Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘S-8’ Filing    Date    Other Filings
Filed on / Effective on:7/25/134,  8-K,  DEF 14A,  S-8 POS
7/22/13
6/27/1310-K,  DEF 14A
4/30/1310-K,  4,  5
9/5/1210-Q,  4
5/29/098-K
5/28/098-K
7/28/054,  4/A,  8-K,  8-K/A,  DEF 14A,  POS AM,  S-8
 List all Filings 
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