Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FORTUNE BRANDS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3295276
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
300 Tower Parkway, Lincolnshire, Illinois 60069
(Address of Principal Executive Offices) (Zip Code)
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Fortune Brands, Inc.
2002 Non-Employee Director Stock Option Plan
(Full Title of the Plan)
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MARK A. ROCHE, ESQ. Copy to:
Senior Vice President, General Counsel and Secretary EDWARD P. SMITH, ESQ.
FORTUNE BRANDS, INC. CHADBOURNE & PARKE LLP
300 Tower Parkway 30 Rockefeller Plaza
Lincolnshire, Illinois 60069 New York, New York 10112
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (847) 484-4400
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Calculation of Registration Fee
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Amount to be Proposed maximum Proposed maximum Amount of
Title of securities to be registered ** offering price per aggregate offering price registration
registered share *** *** fee
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Common Stock, Par Value $3.25
per share, and Preferred Share
Purchase Rights *.............. 200,000 shares $52.98 $10,596,000.00 $974.83
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* The Preferred Share Purchase Rights are attached to and trade with the
Common Stock. The value, if any, attributed to such Rights is reflected in
the market price of the Common Stock.
** There are also registered hereunder such indeterminate number of
additional shares as may become subject to awards under the Plan as a
result of the antidilution provision contained therein.
*** Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act on the basis of the
average of the high and low per share market price (53.55 and 52.41,
respectively) of the Common Stock on April 23, 2002, as reported on the
New York Stock Exchange Composite Transactions.
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EXPLANATORY NOTE
The prospectus, containing information required by Part I of Form S-8
and related to this Registration Statement, is omitted from this Registration
Statement in accordance with the Note to Part I of Form S-8. The prospectus will
also be used in connection with the offer and sale of shares of Fortune Brands
common stock registered under the Registration Statement on Form S-8 of Fortune
Brands bearing Registration No. 333-51173 (as amended by Post-Effective
Amendment No. 1 on Form S-8) for the Fortune Brands, Inc. Non-Employee Directors
Stock Option Plan.
This Registration Statement includes a reoffer prospectus, prepared in
accordance with the requirements of Form S-3 (the "Reoffer Prospectus"), which
may be used for the offer and sale by certain officers and directors of Fortune
Brands who may be deemed to be "affiliates" of Fortune Brands, as that term is
defined in Rule 405 under the Securities Act of 1933, as amended, of securities
registered hereunder. The Reoffer Prospectus is also being filed as part of
Post-Effective Amendment No. 2 to the Registration Statement on Form S-8
(Registration No. 333-95909) for the Fortune Brands, Inc. 1999 Long-Term
Incentive Plan and as part of Post-Effective Amendment No. 2 to the Registration
Statement on Form S-8 (Registration No. 333-95919) for the Fortune Brands
Retirement Savings Plan.
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Fortune Brands, Inc.
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Common Stock
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This prospectus relates to offers and sales by certain of our officers
and directors (also called Selling Stockholders) who may be deemed to be
"affiliates" of Fortune Brands, Inc., as defined in Rule 405 under the
Securities Act of 1933, as amended, of shares of our common stock that have been
or may be acquired by such persons upon exercise of nonqualified stock options
granted pursuant to our 2002 Non-Employee Director Stock Option Plan (the "2002
Director Plan") or our prior Non-Employee Director Stock Option Plan (the "1997
Director Plan" and, together with the 2002 Director Plan, the "Director Plans"),
or upon the exercise of incentive stock options or nonqualified stock options
granted pursuant to our 1999 Long-Term Incentive Plan, our 1990 Long-Term
Incentive Plan, as amended, our 1986 Stock Option Plan, as amended, or our 1981
Stock Option Plan, as amended (collectively called the Employee Plans), or upon
the exercise of stock appreciation rights granted under the Employee Plans in
respect of options, or pursuant to performance awards or restricted stock or
other stock-based awards, or dividend equivalents earned thereon, under the 1999
Plan or the 1990 Plan, or that have been or may be acquired by or for the
account of such persons pursuant to our Retirement Savings Plan (formerly called
the Defined Contribution Plan of Fortune Brands, Inc. and Participating
Operating Companies) as a result of employee or employer contributions under
such plan. The shares that may be so acquired by such persons pursuant to the
Director Plans and the Employee Plans are called the award shares for purposes
of this prospectus and the shares that have been or may be so acquired by such
persons pursuant to the Retirement Savings Plan are herein referred to as the
retirement plan shares.
The accompanying annual supplement to this prospectus sets forth who
the Selling Stockholders are and the number of award shares and retirement plan
shares covered by this prospectus.
Shares covered by this prospectus may be offered and sold from time to
time by or on behalf of the Selling Stockholders through brokers on the New York
Stock Exchange or otherwise at the prices prevailing at the time of such sales.
No specified brokers or dealers have been designated by the Selling Stockholders
and no agreement has been entered into in respect of brokerage commissions or
for the exclusive or coordinated sale of any securities which may be offered
pursuant to this prospectus. The net proceeds to the Selling Stockholders will
be the proceeds received by them upon such sales, less brokerage commissions, if
any. We will pay all expenses of preparing and reproducing this prospectus, but
will not receive any of the proceeds from sales by any of the Selling
Stockholders.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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April 30, 2002
THE COMPANY
We are a holding company with subsidiaries engaged in the manufacture
and sale of home products, office products, golf products and spirits and wine.
Our principal executive offices are currently located at 300
Tower Parkway, Lincolnshire, Illinois 60069, and our telephone number is (847)
484-4400.
RECENT DEVELOPMENTS
In recent years, we have been engaged in a strategy of seeking to
enhance the operations of our principal operating companies. Pursuant to this
strategy, on April 12, 2002, our home products business acquired The Omega
Group, a growing, privately-held manufacturer of high-quality kitchen and
cabinetry. Primarily a supplier of custom, semi-custom and frameless semi-custom
cabinetry to kitchen and bath dealers, The Omega Group will enhance the ability
of our kitchen and bath business, MasterBrand Cabinets, Inc., to compete in the
highly fragmented dealer channel, the industry's largest channel of
distribution. On May 31, 2001, our spirits and wine business completed
transactions with V&S Vin & Spirit AB ("V&S"), maker of Absolut Vodka, creating
a joint venture, named Future Brands LLC (the "LLC"), to distribute both
companies' spirits and wine brands in the United States. V&S paid $270 million
to gain access to our spirits and wine business' U.S. distribution network and
to acquire a 49% interest in the LLC, and paid $375 million to purchase a 10%
equity interest in our spirits and wine subsidiary, Jim Beam Brands Worldwide,
Inc. ("JBBW"), in the form of convertible preferred stock. V&S also received a
3-year option to increase its equity stake in JBBW by up to an additional 9.9%.
V&S may require us to purchase the JBBW preferred stock in whole or in part at
any time after May 31, 2004 or upon a change in control of JBBW, Jim Beam Brands
Co., or certain other events.
In 1999, JBBW formed an international sales and distribution joint
venture, Maxxium Worldwide B.V. ("Maxxium"), with Remy-Cointreau and Highland
Distillers, to distribute and sell spirits in key markets outside the United
States. JBBW agreed to contribute assets related to its international
distribution network and periodic cash payments with a total estimated value of
$110 million in return for a one-third interest in the venture. JBBW's
investment of $110 million is contingent upon achievement of certain contractual
performance measures, which were not met in 2001. During 1999 and 2000, JBBW
made cash investments of approximately $30 million and $25 million in Maxxium.
The investments of JBBW in Maxxium were recorded at the book value of assets
contributed plus cash invested.
Also in 1999, our subsidiaries completed two acquisitions, one in the
home products business and another in the office products business, for an
aggregate cost of $103.6 million in cash, including fees and expenses.
We have also disposed of subsidiaries having significant revenues but
engaged in businesses we considered to be nonstrategic to our long-term
operations. In 1997, we completed the spin-off of Gallaher Group Plc ("Gallaher
Group") to our stockholders. Subsidiaries of Gallaher Group compete in the
international tobacco business.
In addition, a number of other nonstrategic businesses and product
lines have been sold. In 2001, our spirits and wine business sold its U.K.-based
Scotch whisky business for $200 million in cash. The sale of the business
consisted of Invergordon private-label and bulk
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Scotch operations and several regional brands in the U.K. In 1998, one of our
home products subsidiaries sold assets relating to the manufacture of door locks
and related hardware.
We continue to pursue our strategy to enhance the operations of our
principal operating companies. We actively explore possible acquisitions in
fields related to our principal operating companies. We also cannot exclude the
possibility of acquisitions in other fields or further dispositions. On October
9, 2000, we announced that we were exploring strategic options for our office
products business. We decided, in April 2001, not to divest our office products
business due to weakness in the overall economy particularly impacting the
office products industry. We are currently repositioning and restructuring the
business to improve both financial results and the long-term value of the
business. Under this plan, our office products business is realigning and
streamlining its worldwide operations, intensifying its focus on growing
profitable core product categories, divesting or discontinuing non-strategic and
low-return product categories and reducing overhead expenses and excess
capacity.
We review on an ongoing basis the portfolio of brands owned by our
operating companies and evaluate our options for increasing shareholder value.
Although no assurance can be given as to whether or when any acquisitions or
dispositions will be consummated, if agreement with respect to any acquisitions
were to be reached, we might finance such acquisitions by issuing additional
debt or equity securities. The possible additional debt from any acquisitions,
if consummated, would increase our debt-to-equity ratio and such debt or equity
securities might, at least in the near term, have a dilutive effect on earnings
per share. We also continue to consider other corporate strategies intended to
enhance stockholder value, including share repurchases. We cannot predict
whether or when any such strategies might be implemented or what the financial
effect thereof might be upon our debt or equity securities.
Another aspect of our strategy to enhance the operations of our
principal operating companies has been to continuously evaluate the productivity
of their product lines and existing asset base and actively seek to identify
opportunities to improve our and our subsidiaries cost structure. This strategy
led us to record restructuring and other non-recurring charges totaling $98.1
million in 2001. In 2000, we recorded $73 million in pre-tax restructuring and
other nonrecurring charges across all segments of our business other than
spirits and wine. In 1999, we recorded $196 million in pre-tax restructuring and
other nonrecurring charges across all segments of our business. Additionally, in
1997, we recorded $298.2 million in pre-tax restructuring and other nonrecurring
charges across all of its principal operating companies.
SELLING STOCKHOLDERS
See the annual supplement for current information regarding the Selling
Stockholders, the shares of our common stock beneficially owned by them, the
award shares and savings plan shares offered by them with this prospectus and
the shares of our common stock to be beneficially owned by them after completion
of the offering. The address of each of the Selling Stockholders is Fortune
Brands, Inc., 300 Tower Parkway, Lincolnshire, Illinois 60069.
EXPERTS
The consolidated financial statements and financial statement schedule
incorporated in this prospectus by reference to Fortune Brands, Inc.'s Annual
Report on Form 10-K for the fiscal year ended December 31, 2001, have been so
incorporated in reliance on the
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reports of PricewaterhouseCoopers LLP, independent accountants, given upon the
authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC, which the SEC maintains in the SEC's File No.
1-9076. You can read and copy any document we file at the SEC's public reference
rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
Our SEC filings are also available to the public at the SEC's web site at
http://www.sec.gov.
You may also inspect reports, proxy statements and other information
about us at the Library of the New York Stock Exchange at 20 Broad Street, New
York, New York 10005.
The SEC allows us to "incorporate by reference" into this prospectus
the information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and
later information filed with the SEC will update and supersede this information.
We incorporate by reference our Annual Report on Form 10-K, our Proxy Statement
for our Annual Meeting of Stockholders, any of our other filings with the SEC
and described in the Annual Supplement, and any of our future filings with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
We also incorporate by reference the following:
o The description of our common stock, par value $3.125 per share,
set forth under the headings "Description of Fortune Brands
Capital Stock" and "Comparative Rights of Shareholders" on pages
94-105 of our Proxy Statement for the 1997 Annual Meeting of
Stockholders of Fortune Brands, Inc.; and
o The description of our preferred share purchase rights, set forth
on our Application for Registration of Securities on Form 8-A
dated December 22, 1997.
You may request a copy of these filings, at no cost other than for
exhibits of such filings, by writing to or telephoning us at the following
address (or by visiting our web site at http://www.fortunebrands.com):
FORTUNE BRANDS, INC.
Legal Department
300 Tower Parkway
Lincolnshire, Illinois 60069
(telephone number (847) 484-4400)
We have filed with the SEC a registration statement on Form S-8 under
the Securities Act of 1933. This prospectus omits certain information contained
in the registration statement, as permitted by SEC rules. You may obtain copies
of the registration statement, including exhibits, as noted in the paragraph
above.
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You should rely only on the information incorporated by reference or
provided in this prospectus or the prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or the prospectus supplement is
accurate as of any date other than the date on the front of the document.
The Delaware General Corporation Law and our By-laws provide for
indemnification of our officers and directors, who are also covered by certain
insurance policies that we maintain. Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended, may be permitted to
directors, officers or persons that control us pursuant to the foregoing
provisions, we have been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
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2002 SUPPLEMENT
To Prospectus for Offers and
Sales of Common Stock of
Fortune Brands, Inc.
By Certain Selling Stockholders
This Supplement dated April 30, 2002 to the Prospectus dated April 28,
2000 relating to offers and sales of award shares and retirement plan shares by
certain Selling Stockholders of Fortune Brands, Inc. contains certain current
information that may change from year to year. The Supplement will be updated
annually and will be delivered to each Selling Stockholder. Each current
supplement should be kept with the Prospectus in the Selling Stockholder's
important papers. Selling Stockholders who received the April 28, 2000
Prospectus will not be sent additional copies of the Prospectus in subsequent
years unless the information in the Prospectus is required to be amended or
unless a Selling Stockholder requests an additional copy by writing to Fortune
Brands, Inc., Legal Department, 300 Tower Parkway, Lincolnshire, Illinois 60069.
Capitalized terms used in this supplement have the meanings set forth in the
Prospectus.
Date. The date of this supplement is April 30, 2002.
Information Regarding Selling Stockholders and Award Shares and
Retirement Plan Shares Covered by the Prospectus. The Prospectus covers
3,136,784 award shares that have been or may be acquired by the Selling
Stockholders upon exercise or pursuant to the following awards held as of
February 4, 2002:
o incentive stock options or nonqualified stock options granted
pursuant to the Employee Plans and the Director Plans, or
o stock appreciation rights granted under the Employee Plans in
respect of options under the 1999 Plan and the 1990 Plan, or
o performance awards, awards of restricted stock or other
stock-based awards, and dividend equivalents earned thereon, under
the 1999 Plan and the 1990 Plan.
The Prospectus also covers 12,672 Retirement Savings Plan Shares that
have been acquired pursuant to the Retirement Savings Plan and are held on
December 31, 2001 by the Trustee of the Retirement Savings Plan.
There are set forth in the following table opposite the name of each of
the Selling Stockholders:
1. Under the heading "Shares of common stock beneficially owned",
o the shares of our common stock beneficially owned by the Selling
Stockholder on February 4, 2002 (except, as stated in Note (c)
after the table, beneficial ownership is disclaimed as to certain
shares), including shares of our common stock (if any) of which
the Selling Stockholder had the right on such date to acquire
beneficial ownership pursuant to the exercise on or before April
5, 2002 of options that we have granted, plus
o the number (if any) of shares of our common stock held on February
4, 2002 by the Trustee of the Retirement Savings Plan that is
equivalent as of that date to the Selling Stockholder's undivided
proportionate beneficial interest in all such shares;
2. Under the heading "Retirement Savings Plan Shares", the number (if
any) of shares of our common stock held on February 4, 2002 by the Trustee of
the Retirement Savings Plan that is equivalent as of that date to the Selling
Stockholder's undivided proportionate beneficial interest in all such shares and
offered by the Prospectus;
3. Under the heading "Award shares acquired or which may be acquired
and offered", the shares of our common stock that
o have been acquired by the Selling Stockholder pursuant to
performance awards, awards of restricted stock or other
stock-based awards, and dividend equivalents earned thereon, if
any, or upon the exercise of options and stock appreciation
rights, or
o may be acquired by the Selling Stockholder pursuant to performance
awards or other stock-based awards, and dividend equivalents
earned thereon, if any, or upon the exercise of options and stock
appreciation rights outstanding as of February 4, 2002, and
o may be offered or sold by the Selling Stockholder using the
Prospectus.
4. Under the heading "Shares of common stock to be owned after
completion of the offering", the shares of our common stock to be beneficially
owned by the Selling Stockholder after completion of the offering, based on the
number of shares owned on February 4, 2002.
Certain options granted pursuant to the Employee Plans and the Director
Plans may be transferred to a member of a Selling Stockholder's immediate family
or to a trust for the benefit of such immediate family members. The names of
such transferees and the number of award shares that may be offered by them
under the Prospectus will be included in a supplement when such information
becomes known. The information as to
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security holdings is based on information that we receive from the Selling
Stockholders, from our Compensation and Stock Option Committee, our Nominating
and Corporate Governance Committee and our Corporate Employee Benefits
Committee, and from the Trustee of the Retirement Savings Plan, and has been
adjusted to reflect (1) the spin-off of Gallaher Group Plc, effective May 30,
1997 and (2) two-for-one stock splits in the form of 100% stock dividends, at a
rate of one additional share of our common stock for each share of common stock
issued, effective September 10, 1986 and October 9, 1990, respectively. Shares
of our common stock have attached thereto certain preferred stock purchase
rights that we distributed as a dividend on December 24, 1997.
(3) (4)
Award Shares of
shares common
(1) acquired or stock
Shares of which to be
common (2) may be owned
stock Retirement acquired after
Present principal beneficially Savings and completion
positions or owned Plan Shares offered of offering
Selling Stockholder offices with us or (a)(b)(c) (a) (b)(d) (c)
affiliates*
Patricia O. Ewers.......... Director 14,131 -0- 12,717 3,914
Thomas C. Hays............. Director 820,248 3,915 797,998 20,835
John W. Johnstone, Jr. .... Director 14,831 -0- 12,717 4,614
Gordon R. Lohman........... Director 11,717 -0- 12,717 1,500
Charles H. Pistor, Jr...... Director 6,014 -0- -0- 6,014
Eugene A. Renna............ Director 10,320 -0- 9,000 3,820
Anne M. Tatlock............ Director 14,349 -0- 12,717 4,132
David M. Thomas............ Director 2,625 -0- 4,375 750
Norman H. Wesley........... Director; Chairman of 457,880 -0- 1,004,422 2,000
the Board and Chief
Executive Officer
Peter M. Wilson............ Director 11,272 -0- 9,500 4,272
Thomas J. Flocco Senior Vice 59,470 -0- 257,666 -0-
President-Strategy and
Corporate Development
Nadine A. Heidrich......... Vice President and -0- -0- 19,500 -0-
Corporate Controller
Mark Hausberg.............. Senior Vice President- 118,772 1,110 200,944 -0-
Finance and Treasurer
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(3) (4)
Award Shares of
shares common
(1) acquired or stock
Shares of which to be
common (2) may be owned
stock Retirement acquired after
Present principal beneficially Savings and completion
positions or owned Plan Shares offered of offering
Selling Stockholder offices with us or (a)(b)(c) (a) (b)(d) (c)
affiliates*
Craig P. Omtvedt........... Senior Vice President 196,922 2,352 451,435 -0-
and Chief Financial
Officer
Mark A. Roche.............. Senior Vice President, 186,739 5,295 331,076 -0-
General Counsel and
Secretary
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* Positions are those with us, unless otherwise indicated. Each of the
Selling Stockholders has been a director or officer of our company or one of our
subsidiaries for the past three years, except for Mr. Thomas, who has been a
director since June 25, 2000 and Ms. Heidrich, who has been Vice President and
Corporate Controller since September 12, 2001.
(a) The numbers of shares attributable to contributions by our company
under the Retirement Savings Plan included in the numbers shown in Columns (1)
and (2) are as follows: Thomas C. Hays, 1,094; Mark Hausberg, 1,110; Craig P.
Omtvedt, 1,261; Mark A. Roche, 3,689. The number of shares attributable to
employee contributions under such Plan included in the numbers shown in Columns
(1) and (2) are as follows: Thomas C. Hays, 2,821; Craig P. Omtvedt, 1,091; and
Mark A. Roche, 1,606.
(b) The numbers of shares of which the Selling Stockholders had the
right to acquire beneficial ownership pursuant to the exercise on or before
April 5, 2002 of options that we granted included in the numbers shown in
Columns (1) and (3) are as follows: Patricia O. Ewers, 10,217; Thomas C. Hays,
713,574; John W. Johnstone, Jr., 10,217; Gordon R. Lohman, 10,217; Eugene R.
Renna, 6,500; Anne M. Tatlock, 10,217; David M. Thomas, 1,875 Norman H. Wesley,
374,010; Peter M. Wilson, 7,000; Thomas J. Flocco, 55,568; Mark Hausberg,
103,633; Craig P. Omtvedt, 161,968; and Mark A. Roche, 144,978. Inclusion of
such shares does not constitute an admission by any Selling Stockholder that
such person is the beneficial owner of such shares.
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(c) To the best of our knowledge, each Selling Stockholder has sole
voting and investment power with respect to shares shown after such person's
name in Columns (1), (2) and (4) above, other than with respect to the shares
listed in Note (b) above and except as follows: Mr. Hays shares voting and
investment power as a co-trustee of various family trusts with respect to 5,107
shares and with respect to which he disclaims beneficial ownership and Mr. Hays
has no voting or investment power with respect to 4,000 shares held in trust for
the benefit of his wife and with respect to which he disclaims beneficial
ownership. The Trustee of the Retirement Savings Plan has agreed to vote the
shares it holds in the Trust in accordance with instructions received from
members of the Plan and shares as to which instructions are not received are
voted by the Trustee proportionally in the same manner as shares as to which it
has received instructions.
(d) The numbers of shares in Column (3) include shares covered by
performance awards granted under the 1999 Plan and the 1990 Plan if the maximum
performance goals to which such awards relate are met for the performance
periods 1998-2000, 1999-2001 and 2000-2002. The number of shares of Common Stock
so covered are as follows: Norman H. Wesley, 165,000; Thomas J. Flocco, 54,450;
Nadine A. Heidrich, 4,500; Mark Hausberg, 19,650; Craig P. Omtvedt, 70,200; Mark
A. Roche, 43,800. Inclusion of such shares does not constitute an admission by
any Selling Stockholder that such person is the beneficial owner of such shares.
Market Price. The closing price per share of our common stock as
reported on the New York Stock Exchange Composite Transactions on April 26, 2002
was $53.06.
Documents Incorporated by Reference. For further current information
about us and our subsidiaries, see our Annual Report on Form 10-K for the fiscal
year ended December 31, 2001, which incorporates by reference certain
information, including our Consolidated Financial Statements contained in our
2001 Annual Report to Stockholders, and see also our Proxy Statement for the
2002 Annual Meeting of Stockholders and our Current Reports on Form 8-K dated
January 23, March 6, March 19, and April 5 and April 18, 2002. Each of the
foregoing is on file with the Securities and Exchange Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant with the Securities and
Exchange Commission are specifically incorporated herein by reference and made a
part hereof:
(i) Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001, filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which incorporates by reference certain information, including the
Company's 2001 consolidated financial statements contained in its 2001
Annual Report to Stockholders;
(ii) all other reports filed by Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 2001;
(iii) the description of Registrant's Common Stock, par value
$3.125 per share, set forth under the headings "Description of Fortune
Brands Capital Stock" and "Comparative Rights of Shareholders" on pages
94-105 of Registrant's Proxy Statement for the 1997 Annual Meeting of
Stockholders of Fortune Brands, Inc.;
(iv) the description of Registrant's Preferred Share Purchase
Rights contained in Registrant's Application for Registration on Form
8-A dated December 22, 1997; and
(v) Registrant's Registration Statement on Form S-8 (Registration
No. 333-51173 (as amended by Post-Effective Amendment No. 1 on Form
S-8)).
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Registration Statement.
II-1
Item 4. Description of Securities.
This Item is not applicable as Registrant's Common Stock is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
This Item is not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides in part
as follows:
"(a) A corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is
or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or
proceeding if he acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the person's conduct was unlawful.
"(b) A corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact
that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or
II-2
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
"(c) To the extent that a present or former director or officer
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a)
and (b) of this section, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or
agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made, with respect to a person
who is a director or officer at the time of such determination (1) by a
majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum, or (2) by a committee of
such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written
opinion, or (4) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the
corporation deems appropriate.
"(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as
to action in another capacity while holding such office.
"(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust
II-3
or other enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability under this
section.
"(h) For purposes of this section, references to 'the
corporation' shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is
or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had
continued.
"(i) For purposes of this section, references to 'other
enterprises' shall include employee benefit plans; references to 'fines'
shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to 'serving at the request of the
corporation' shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner 'not
opposed to the best interests of the corporation' as referred to in this
section.
"(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
"(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a corporation's
obligation to advance expenses (including attorneys' fees)."
Article XIII of Registrant's By-laws provides as follows:
"Section 1. (A) Each person (an 'indemnitee') who was or is made or
threatened to be made a party to or was or is involved (as a witness or
otherwise) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a
II-4
'proceeding'), by reason of the fact that he or she or a person of whom he or
she is the legal representative was or is a director, officer or employee of
[Registrant] or was or is serving at the request of [Registrant] as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding was or is alleged action in
an official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by [Registrant] to the fullest extent permitted by
the General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits [Registrant] to provide broader indemnification
rights than said law permitted [Registrant] to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees and retainers
therefor, judgments, fines, excise taxes or penalties under the Employee
Retirement Income Security Act of 1974, as amended, and amounts paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in Section 3 of this Article XIII with respect to proceedings
seeking to enforce rights to indemnification, [Registrant] shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of [Registrant].
(B) The right to indemnification conferred in this Article XIII is and
shall be a contract right. The right to indemnification conferred in this
Article XIII shall include the right to be paid by [Registrant] the expenses
(including attorneys' fees and retainers therefor) reasonably incurred in
connection with any such proceeding in advance of its final disposition, such
advances to be paid by [Registrant] within 20 days after the receipt by
[Registrant] of a statement or statements from the indemnitee requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to [Registrant] of an undertaking
by or on behalf of such director or officer, to repay all amounts so advanced if
it shall ultimately be determined that such director or officer is not entitled
to be indemnified under this Article XIII or otherwise.
"Section 2. (A) To obtain indemnification under this Article XIII, an
indemnitee shall submit to [Registrant] a written request, including therein or
therewith such documentation and information as is reasonably available to the
indemnitee and is reasonably necessary to determine whether and to what extent
the indemnitee is entitled to indemnification. Upon written request by an
indemnitee for indemnification pursuant to the first sentence of this Section
2(A), a determination, if required by applicable law, with respect to the
indemnitee's entitlement thereto shall be made as follows: (1) if requested by
the indemnitee, by Independent Counsel (as hereinafter defined), or (2) if no
II-5
request is made by the indemnitee for a determination by Independent Counsel,
(a) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (b) if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the indemnitee, or (c) by the stockholders of
[Registrant]. In the event the determination of entitlement to indemnification
is to be made by Independent Counsel at the request of the indemnitee, the
Independent Counsel shall be selected by the indemnitee unless the indemnitee
shall request that such selection be made by the Board of Directors, in which
event the Independent Counsel shall be selected by the Board of Directors. If it
is so determined that the indemnitee is entitled to indemnification, payment to
the indemnitee shall be made within 10 days after such determination.
(B) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that the indemnitee is entitled to indemnification
under this Article XIII, and [Registrant] shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
"Section 3.(A) If a claim under Section 1 of this Article XIII is not
paid in full by [Registrant] within 30 days after a written claim pursuant to
Section 2(A) of this Article XIII has been received by [Registrant], or if an
advance is not made within 20 days after a request therefor pursuant to Section
1(B) of this Article XIII has been received by [Registrant], the indemnitee may
at any time thereafter bring suit (or, at the indemnitee's option, an
arbitration proceeding before a single arbitrator pursuant to the rules of the
American Arbitration Association) against [Registrant] to recover the unpaid
amount of the claim or the advance and, if successful in whole or in part, the
indemnitee shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such suit or proceeding (other than a suit
or proceeding brought to enforce a claim for expenses incurred in connection
with any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to [Registrant]) that the
indemnitee has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for [Registrant] to
indemnify the indemnitee for the amount claimed or that such indemnification
otherwise is not permitted under the General Corporation Law of the State of
Delaware, but the burden of proving such defense shall be on [Registrant].
(B) Neither the failure of [Registrant] (including its Board of
Directors, Independent Counsel or stockholders) to have made a determination
prior to the commencement of such action that indemnification of the indemnitee
is proper in the circumstances because he or she has met the applicable standard
of conduct set forth in the General Corporation Law of the State of Delaware,
nor an actual determination by [Registrant] (including its Board of Directors,
Independent Counsel or stockholders) that the indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the indemnitee has not met the applicable standard of conduct.
II-6
(C) If a determination shall have been made pursuant to Section 2(A) of
this Article XIII that the indemnitee is entitled to indemnification,
[Registrant] shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to paragraph (A) of this Section 3.
(D) [Registrant] shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to paragraph (A) of this Section 3
that the procedures and presumptions of this Article XIII are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that [Registrant] is bound by all the provisions of this Article
XIII.
"Section 4. The right to indemnification and the payment of expenses
incurred in connection with a proceeding in advance of its final disposition
conferred in this Article XIII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-laws, agreement, vote of stockholders or
Disinterested Directors or otherwise.
"Section 5. [Registrant] may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of [Registrant] or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not [Registrant] would have
the power to indemnify such person against such expense, liability or loss under
the General Corporation Law of the State of Delaware. To the extent that
[Registrant] maintains any policy or policies providing such insurance, each
such director, officer or employee, and each such agent to which rights to
indemnification have been granted as provided in Section 6 of this Article XIII,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
"Section 6. [Registrant] may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and rights to
be paid by [Registrant] the expenses incurred in connection with any proceeding
in advance of its final disposition, to any agent of [Registrant] to the fullest
extent of the provisions of this Article XIII with respect to the
indemnification and advancement of expenses of directors, officers and employees
of [Registrant].
"Section 7. If any provision or provisions of this Article XIII shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (A)
the validity, legality and enforceability of the remaining provisions of this
Article XIII (including without limitation, each portion of any Section of this
Article XIII containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (B) to the fullest extent
possible, the provisions of this Article XIII (including, without limitation,
each portion of any Section of this Article XIII containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
"Section 8. For purposes of this Article XIII:
II-7
(A) 'Disinterested Director' means a director of [Registrant] who is
not and was not a party to the matter in respect of which indemnification is
sought by the indemnitee.
(B) 'Independent Counsel' means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (1) [Registrant] or the
indemnitee in any matter material to either such party, or (2) any other party
to the matter giving rise to a claim for indemnification. Notwithstanding the
foregoing, the term 'Independent Counsel' shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either [Registrant] or the
indemnitee in an action to determine the indemnitee's rights under this Article
XIII.
"Section 9. Any notice, request or other communication required or
permitted to be given to [Registrant] under this Article XIII shall be in
writing and either delivered in person or sent by telecopy, telex, telegram or
certified or registered mail, postage prepaid, return receipt requested, to the
Secretary of [Registrant] and shall be effective only upon receipt by the
Secretary."
Registrant has procured insurance protecting it under its obligation to
indemnify officers and directors against certain types of liabilities (including
certain liabilities under the Securities Act of 1933) that may be incurred by
them in the performance of their duties and affording protection to such
officers and directors in certain areas to which the corporate indemnity does
not extend, all within specified limits and subject to specified deductions.
In addition, Registrant and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act of 1933, or to contribute with respect to payments which
Registrant or such persons may be required to make in respect thereof.
Item 7. Exemption from Registration Claimed.
This Item is not applicable.
II-8
Item 8. Exhibits
4a1 - Restated Certificate of Incorporation of Registrant
as in effect on the date hereof (incorporated herein by
reference to Exhibit 3(i) to the Annual Report on Form 10-K
of Registrant for the fiscal year ended December 31, 1998).
4b1 - By-laws of Registrant, as amended, as in effect on
the date hereof (incorporated herein by reference to
Exhibit 3(ii)b to the Annual Report on Form 10-K of
Registrant for the fiscal year ended December 31, 2001).
4c1 - Rights Agreement dated as of November 19, 1997
between Registrant and First Chicago Trust Company of New
York, as Rights Agent (incorporated herein by reference to
Exhibit 4a to the Current Report on Form 8-K of Registrant
dated December 2, 1997).
4d1 - Fortune Brands, Inc. 2002 Non-Employee Director
Stock Option Plan (incorporated herein by reference to
Exhibit B to the Definitive Schedule 14A of Registrant
filed March 19, 2001).
5a1 - Opinion of Chadbourne & Parke LLP, counsel to Registrant.
23a1 - Consent of PricewaterhouseCoopers LLP, independent
accountants.
23b1 - Consent of Chadbourne & Parke LLP, counsel to Registrant.
24a1 - Power of Attorney authorizing certain persons to sign
this Registration Statement on behalf of certain directors
and officers of Registrant.
II-9
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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 that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise, Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Registrant of expenses
incurred or paid by a director, officer or controlling person of Registrant in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer
II-10
or controlling person in connection with the securities being registered,
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Lincolnshire, State of Illinois, on this 30th day
of April, 2002.
FORTUNE BRANDS, INC.
By: /s/ Mark A. Roche
--------------------------------------
(Mark A. Roche, Senior Vice President,
General Counsel and Secretary)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on this 30th day of April, 2002.
Signature Title
--------- -----
Norman H. Wesley* Chairman of the Board and Chief Executive
----------------------------------------------------- Officer (principal executive officer) and
(Norman H. Wesley) Director
Craig P. Omtvedt* Senior Vice President and Chief Financial
----------------------------------------------------- Officer
(Craig P. Omtvedt) (principal financial officer)
Nadine A. Heidrich* Vice President and
----------------------------------------------------- Corporate Controller
(Nadine A. Heidrich) (principal accounting officer)
Patricia O. Ewers* Director
-----------------------------------------------------
(Patricia O. Ewers)
Thomas C. Hays* Director
-----------------------------------------------------
(Thomas C. Hays)
John W. Johnstone, Jr.* Director
-----------------------------------------------------
(John W. Johnstone, Jr.)
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Signature Title
--------- -----
Gordon R. Lohman* Director
-----------------------------------------------------
(Gordon R. Lohman)
Charles H. Pistor, Jr.* Director
-----------------------------------------------------
(Charles H. Pistor, Jr.)
Eugene A. Renna* Director
-----------------------------------------------------
(Eugene A. Renna)
Anne M. Tatlock* Director
-----------------------------------------------------
(Anne M. Tatlock)
David M. Thomas* Director
-----------------------------------------------------
(David M. Thomas)
Peter M. Wilson* Director
-----------------------------------------------------
(Peter M. Wilson)
*By: /s/ A. Robert Colby
-----------------------------------------------
(A. Robert Colby, Attorney-in-Fact)
II-13