As filed with the Securities and Exchange Commission on March 11, 2003
Registration No. 333-
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UNITED STATES
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 Hourly Employee Retirement Savings Plan
(Full Title of the Plan)
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MARK A. ROCHE, ESQ. Copy to:
Senior Vice President, EDWARD P. SMITH, ESQ.
General Counsel and Secretary CHADBOURNE & PARKE LLP
FORTUNE BRANDS, INC. 30 Rockefeller Plaza
300 Tower Parkway New York, New York 10112
Lincolnshire, Illinois 60069
(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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Title of Amount Proposed Proposed Amount of
Securities to to be maximum maximum registration
be registered registered** offering aggregate fee
price per offering
share*** price***
-----------------------------------------------------=----------------------
Common Stock,
Par Value $3.125
per share,
and
Preferred
share
Purchase Rights*... 250,000 shares $41.41 $10,352,500 $838
============================================================================
*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. **In addition, pursuant
to Rule 416(c) of the Securities Act of 1933, as amended (the "Securities
Act"), this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein. ***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 ($41.80 and
$41.01, respectively) of the Common Stock on March 5, 2003, as reported on
the New York Stock Exchange Composite Transactions.
============================================================================
EXPLANATORY NOTE
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with the Note to Part I of Form S-8.
The Plan changed its name from the MasterBrand Industries, Inc.
Hourly Employee Savings Plan to the Fortune Brands Hourly Employee
Retirement Savings Plan on October 1, 1999.
Fortune Brands changed its name from American Brands, Inc. to
Fortune Brands, Inc. on May 30, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant or the Plan 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 (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 set forth on Registrant's Application for Registration on Form
8-A dated December 22, 1997;
(v) the Annual Report on Form 11-K of the Plan for the fiscal
year ended December 31, 2001, filed pursuant to Section 15(d) of the
Exchange Act; and
(vi) Registrant's Registration Statement on Form S-8
(Registration No. 333-95925), as amended by Post-Effective Amendment
No. 1 on Form S-8.
All documents subsequently filed by Registrant or the Plan 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.
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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 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, 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 the court in
which such action or suit was
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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 or other
enterprise against any liability asserted against such person and
incurred by
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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 '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
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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 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
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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.
(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.
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(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:
(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.
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(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.
Item 8. Exhibits.
3(i) - 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).
3(ii)b - By-laws of Registrant, 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).
4a1 - 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).
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4a2 - Amendment to the Rights Agreement dated as of December 24,
2002 between Registrant and EquiServe, Inc. (a successor to
First Chicago Trust Company of New York) as Rights Agent
(incorporated by reference to Exhibit 4a2 to the
Registration Statement on Form S-8 for the Fortune Brands
Retirement Savings Plan filed on March 11, 2003 by
Registrant (Registration No. 333-103734)).
15a1 - Letter from PricewaterhouseCoopers LLP as to certain
unaudited financial information.
23a1 - Consent of Pricewaterhouse Coopers LLP, independent
accountants.
24a1 - Power of Attorney authorizing certain persons to sign
this Registration Statement and amendments hereto on behalf
of certain directors and officers of Registrant.
24b1 - Power of Attorney authorizing certain persons to sign
this Registration Statement and amendments hereto on behalf
of administrators of the Plan.
99a1 - Fortune Brands Amended and Restated Hourly Employee
Retirement Savings Plan, as in effect on the date hereof.
99b1 - Fortune Brands, Inc. Savings Plans Master Trust between
Registrant and Fidelity Management Trust Company
(incorporated by reference to Exhibit 99b1 to the
Registration Statement on Form S-8 for the Fortune Brands
Retirement Savings Plan filed on February 1, 2000 by
Registrant (Registration No. 333-95919)).
99c1 - First Amendment to Fortune Brands, Inc, Savings Plans
Master Trust between Registrant and Fidelity Management
Trust Company (incorporated by reference to Exhibit 99c1 to
the Registration Statement on Form S-8 for the Future
Brands Retirement Savings Plan filed on April 2, 2001 by
Registrant (Registration No. 333-58166)).
99d1 - Second Amendment to Fortune Brands, Inc. Savings Plans
Master Trust between Registrant and Fidelity Management
Trust Company (incorporated by reference to Exhibit 99d1 to
the Registration Statement on Form S-8 for the Fortune
Brands Retirement Savings Plan filed on March 11, 2003 by
Registrant (Registration No. 333-103734)).
The Registrant will submit the Plan including any amendments
thereto to the Internal Revenue Service (the "IRS") in a timely manner and
will make all changes required by the IRS in order to maintain the tax
qualified status of the Plan.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
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(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 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-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 11th day of March, 2003.
FORTUNE BRANDS, INC.
By /s/ MARK A. ROCHE
-----------------------------
(Mark A. Roche, Senior Vice President,
Secretary and General Counsel)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 11th day of March, 2003.
Signature Title
NORMAN H. WESLEY* Chairman of the Board and
---------------------- Chief Executive Officer
(Norman H. Wesley) (principal executive officer)
and Director
CRAIG P. OMTVEDT* Senior Vice President and Chief
----------------------- Financial Officer
(Craig P. Omtvedt) (principal financialofficer)
NADINE A. HEIDRICH* Vice President and Corporate
----------------------- Controller (principal
(Nadine A. Heidrich) 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.)
GORDON R. LOHMAN* Director
-------------------------
(Gordon R. Lohman)
EUGENE A. RENNA* Director
-------------------------
(Eugene A. Renna)
II-11
Signature Title
J. CHRISTOPHER REYES* Director
--------------------------
(J. Christopher Reyes)
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-12
Pursuant to the requirements of the Securities Act of 1933, the
Plan 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 11th day of March, 2003.
FORTUNE BRANDS HOURLY EMPLOYEE
RETIREMENT SAVINGS PLAN
By FRANK J. CORTESE*
--------------------------------
(Frank J. Cortese, Chairman,
Corporate Employee Benefits Committee)
*By: /s/ A. ROBERT COLBY
-----------------------------------
(A. Robert Colby, Attorney-in-Fact)
II-13