EXHIBIT 10(h)
BROWN-FORMAN 2004 OMNIBUS COMPENSATION PLAN
EMPLOYEE NONQUALIFIED STOCK OPTION AWARD
Capitalized terms used below have the definitions assigned to them in the
Brown-Forman 2004 Omnibus Compensation Plan, effective July 22, 2004
(the "Plan"), or as defined herein.
SUMMARY
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Optionee: [NAME]
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Grant Date: [DATE]
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First Exercise Date [DATE]
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Expiration Date [DATE]
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Option Shares [NUMBER]
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Class of Shares BROWN-FORMAN CORPORATION CLASS B COMMON
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Option Price per Share [PRICE]
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THIS AWARD, effective as of the Grant Date set out above, represents the grant
of a nonqualified stock option by Brown-Forman Corporation, a Delaware
corporation (the "Company") to the Optionee named above, who is an employee of
the Company or one or more of its subsidiaries, pursuant to the Plan.
1. GRANT OF OPTION. The Company hereby grants to the Optionee an option (the
"Option") to purchase, subject to the terms and conditions set out within this
Award and to the terms of the Plan, the number of Option Shares shown above, of
the Class of Shares shown above, at the Option Price per Share shown above. The
Option Price is the Fair Market Value of a Share on the Grant Date.
2. TERM. The term of this Award is for a period of ten years from the first day
of the fiscal year of grant. To exercise the option, the Optionee must remain
continuously employed by the Company for at least three years, except as
provided in Section 3 below. Assuming continuous employment, the Option will
become exercisable on the First Exercise Date shown above, and it must be
exercised before the close of business on the Expiration Date shown above.
Options may be exercised in whole or in part, but not for fewer than 500 shares
at any one time, unless fewer than 500 shares then remain subject to the Option
and the Option is then being exercised as to all such remaining shares.
3. TERMINATION OF EMPLOYMENT. In the event the Optionee does not remain
continuously employed by the Company during the term of the Option, the
following rules will apply:
A) Retirement. Retirement means termination of employment on or after reaching
age 55 with at least 5 full years of service, or on or after reaching age
65 with any service. If the Optionee terminates employment by reason of
Retirement, the Option will continue in force until the earlier of (a) the
Expiration Date; or (b) the end of seven years following the date of
retirement. Retirement does not affect the First Exercise Date.
B) Death. If the Optionee dies, the Option will immediately become exercisable
(if not already exercisable) but the Option must be exercised by the
earlier of (a) the Expiration Date or (b) the end of five years following
the date of death. Exercisable options may be exercised by the person(s)
named as the Optionee's beneficiary (ies), or, if the Optionee has not
named one or more beneficiaries, by whoever has acquired the Optionee's
rights by will or by the laws of descent and distribution.
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C) Termination for Cause. Options granted to an Optionee who is terminated for
cause expire immediately at as of the date and time that the Optionee is
notified of the termination and may not be exercised.
D) Voluntary Termination. Options granted to an Optionee who terminates
employment voluntarily will continue in force until the earlier of (a) the
Expiration Date or (b) the end of thirty days following the date of
termination. Voluntary Termination does not affect the First Exercise Date.
E) Termination for any Other Reasons. If the Optionee's employment terminates
for any reason other than those set out in items A through D immediately
above, and in the absence of any action by the Plan Administrator, the
option shall expire immediately as of the time and date of termination, and
may not be exercised. However, the Plan Administrator, in its sole
discretion, based on the facts and circumstances of such termination, may
accelerate the First Exercise Date of all or any portion of the option,
and/or may delay the expiration of all or any portion of the option to any
date not later than the Expiration Date.
4. CHANGE IN CONTROL OR POTENTIAL CHANGE IN CONTROL. In the event of a Change in
Control or Potential Change in Control of the Company, as defined in the Plan,
the First Exercise Date and the Optionee's rights with respect to this Option
shall be governed by the terms of Article 11 of the Plan.
5. RIGHTS AS A STOCKHOLDER. The Optionee has no rights as a stockholder
(including, but not limited to, the right to receive dividends or dividend
equivalents, or to vote on shareholder issues) with respect to Shares
potentially available upon the exercise of unexercised options. Stockholder
rights accrue only to holders of Shares issued and delivered pursuant to an
Option exercise.
6. RESTRICTIONS ON TRANSFER. This Option may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution. Further, this Option shall be exercisable
during the Optionee's lifetime only by the Optionee or the Optionee's duly
appointed legal representative.
7. RECAPITALIZATION. If there is any change in the Company's Shares through the
declaration of stock dividends or through recapitalization resulting in stock
splits or through merger, consolidation, exchange of Shares, or otherwise, the
Plan Administrator may adjust the number and class of Shares subject to this
Option, as well as the Option Price, to prevent dilution or enlargement of
rights.
8. HOW TO EXERCISE OPTION. This Option may be exercised by delivery of written
notice in a prescribed form to the Company at its executive offices, addressed
to the attention of the Compensation Department in Louisville, Kentucky. Such
notice: (a) shall be signed by the Optionee or his legal representative; (b)
shall specify the number of full Shares then elected to be purchased with
respect to the Option; (c) shall covenant that all Shares acquired shall be sold
or transferred in compliance with all applicable securities laws; and (d) shall
be accompanied by payment in full of the Option Price of the Shares to be
purchased.
The Option Price upon exercise of this Option shall be payable to the Company in
full either: (a) in cash or its equivalent (such equivalence being at the sole
discretion of the Plan Administrator); or (b) by tendering previously acquired
shares having an aggregate Fair Market Value at the time of exercise equal to
the total Option Price (provided that the Shares which are tendered must have
been held by the Optionee for at least six months prior to their tender); or (c)
by a combination of (a) and (b). Subject to approval by the Plan Administrator,
in lieu of actually tendering previously acquired shares, the Optionee may
furnish a written attestation in form and substance acceptable to the Plan
Administrator attesting to the Optionee's ownership of the shares he would be
tendering.
The Plan Administrator also may allow the Optionee to exercise pursuant to a
"funded exercise" procedure, as permitted under Federal Reserve Board's
Regulation T, subject to applicable securities law restrictions, or by any other
means which the Plan Administrator, in its sole discretion, determines
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to be consistent with the Plan's purpose and applicable law.
As promptly as practicable after the receipt of notice and payment upon
exercise, the Company shall cause to be delivered to the Optionee or his legal
representative, as the case may be, one or more certificates for the Shares so
purchased. The Share certificate(s) shall be issued in the Optionee's name (or,
at the discretion of the Optionee, jointly in the name of the Optionee and the
Optionee's spouse).
9. BENEFICIARY DESIGNATION. The Optionee may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under this Award is to be paid in case of his or her death
before he or she receives any or all of such benefit. Each such designation
shall revoke all prior designations by the Optionee, shall be in a form
prescribed by the Company, and will be effective only when delivered during the
Optionee's lifetime to the Company at its executive offices, addressed to the
attention of the Compensation Department in Louisville, Kentucky.
10. CONTINUATION OF EMPLOYMENT. This Award shall not confer upon the Optionee
any right to continued employment by the Company, nor shall this Award interfere
in any way with the Company's right to terminate the Optionee's employment at
any time. A transfer of the Optionee's employment between the Company and any of
its subsidiaries, or between any divisions or subsidiaries of the Company shall
not be deemed a termination of employment.
11. MISCELLANEOUS.
A) This Option Award and the Optionee's right under it are subject to all
the terms and conditions of the Plan, as the same may be amended from
time to time, as well as to such rules as the Plan Administrator may
adopt. The Plan Administrator may impose such restrictions on any
Shares acquired pursuant to the exercise of this Option as it may deem
advisable, including, without limitation, restrictions under
applicable Federal securities laws, under the requirements of any
stock exchange or market upon which such Shares are then listed and/or
traded, and under any blue sky or state securities laws applicable to
such Shares. The Plan Administrator in conjunction with the Company's
compliance officer may designate periods during which options may not
be exercised by employee Optionees.
The Plan Administrator may administer, construe, and make all
determinations necessary or appropriate to the administration of the
Plan and this Option Award, all of which shall be binding upon the
Optionee.
B) Subject to the provisions of the Plan, the Board of Directors may
terminate, amend, or modify the Plan; provided, however, that no such
termination, amendment, or modification of the Plan may in any way
adversely affect the Optionee's rights under this Award, without the
written consent of the Optionee.
C) The Company may deduct or withhold, or require the Optionee to remit
to the Company, an amount sufficient to satisfy Federal, state, and
local taxes (including the Participant's FICA obligation) required by
law to be withheld with respect to any exercise of the Optionee's
rights under this Award.
Subject to the approval of the Plan Administrator, the Optionee may
elect to satisfy the withholding requirement, in whole or in part, by
having the Company withhold Shares having an aggregate Fair Market
Value, on the date the tax is to be determined, equal to the amount
required to be withheld. Such elections shall be irrevocable, shall be
in writing,
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and shall be signed by the Optionee before the day that the
transaction becomes taxable.
D) The Optionee agrees to take all steps necessary to comply with all
applicable Federal and state securities law in exercising his or her
rights under this Award.
E) This Award shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
F) The Company's obligations under the Plan and this Award, with respect
to this Option, shall bind any successor to the Company, whether
succession results from a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Company.
G) To the extent not preempted by Federal law, this Award shall be
governed by, and construed in accordance with, the laws of the State
of Delaware.
H) At all times when IRC Section 162(m) applies, all Awards to Designated
Executive Officers shall comply with its requirements, unless the Plan
Administrator determines that compliance is not desired or necessary
for any Award or Awards. To that end, the Plan Administrator may make
such adjustments it deems appropriate for a specific Award or Awards,
except that a performance-based Award cannot be replaced by a
non-performance-based Award if performance goals are not achieved, nor
can the characterization of an Executive Officer as a Designated
Executive Officer, once made, change for a given Performance Period.
I) This Award is subject to the terms of the Plan and Administrative
Guidelines promulgated under it from time to time. In the event of a
conflict between this document and the Plan, the Plan document as well
as any determinations made by the Plan Administrator as authorized by
the Plan document, shall govern.
IN WITNESS WHEREOF, the parties have caused this Award to be executed as of
the Grant Date.
Brown-Forman Corporation
By:_____________________
Bruce S. Cote
Vice President,
Director HR Employee Services
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FIRST AMENDMENT TO THE
BROWN-FORMAN 2004 OMNIBUS COMPENSATION PLAN
EMPLOYEE NONQUALIFIED STOCK OPTION AWARD
WHEREAS, Brown-Forman Corporation (the "Company") maintains the
Brown-Forman 2004 Omnibus Compensation Plan (the "Plan"); and
WHEREAS, the Company has previously granted nonqualified stock options in
such amount(s) and at such date(s) as shown in the attached Exhibit A to
_____________ ______________ [INSERT NAME OF OPTIONEE] pursuant to the
Brown-Forman 2004 Omnibus Compensation Plan Employee Nonqualified Stock Option
Award(s) (collectively the "Awards"); and
WHEREAS, pursuant to Section 12.2 of the Plan, the Plan Administrator may
amend the Awards; and
WHEREAS, the Plan Administrator desires to amend the Awards (i) to revise
Section 7 of the Awards regarding adjustments in connection with a
recapitalization (or other similar event) to the Shares granted thereunder and
(ii) to revise Section 8 of the Awards to add a "net-exercise option" to the
payment methods permitted thereunder upon exercise.
NOW, THEREFORE, effective August 1, 2006, the Plan Administrator hereby
amends the Awards as follows:
1. Section 7 of the Awards is amended to read as follows:
7. RECAPITALIZATION.If there is any change in the Company's Shares
through the declaration of stock dividends or through recapitalization
resulting in stock splits or through merger, consolidation, exchange
of Shares, or otherwise, the Plan Administrator shall adjust the
number and class of Shares subject to this Option, as well as the
Option Price, to prevent dilution or enlargement of rights.
2. The second paragraph of Section 8 of the Awards is amended to read as
follows:
The Option Price upon exercise of this Option shall be payable to the
Company in full either: (a) in cash or its equivalent (such
equivalence being at the sole discretion of the Plan Administrator);
(b) by tendering previously acquired Shares having an aggregate Fair
Market Value at the time of exercise equal to the total Option Price;
(c) by withholding from Optionee sufficient Shares, subject to this
Award, having an aggregate Fair Market Value at the time of exercise
equal to the total Option Price; or (d) by any combination of (a), (b)
or (c). Subject to approval by the Plan Administrator, in lieu of
actually tendering previously acquired Shares, the Optionee may
furnish a written attestation in form and substance acceptable to the
Plan Administrator attesting to the Optionee's ownership of the Shares
he would be tendering.
IN WITNESS WHEREOF, the Plan Administrator has caused this First
Amendment to the Brown-Forman 2004 Omnibus Compensation Plan Employee
Nonqualified Stock Option Awards to be executed by its duly authorized
representative on this 27th day of July, 2006, effective August 1, 2006.