As filed with the Securities and Exchange Commission on March 29, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CONSTELLATION BRANDS, INC.
(exact name of Registrant as specified in its charter)
DELAWARE 16-0716709
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
300 WillowBrook Office Park,
Fairport, New York 14450
(Address of Principal Executive Offices) (Zip Code)
CONSTELLATION BRANDS, INC. INCENTIVE STOCK OPTION PLAN
(Full title of the Plan)
Thomas J. Mullin, Esq.
Executive Vice President and General Counsel
Constellation Brands, Inc.
300 WillowBrook Office Park
Fairport, New York 14450
(716) 218-2169
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Roger W. Byrd, Esq.
Nixon Peabody LLP
1300 Clinton Square
Rochester, New York 14604
(716) 263-1000
--------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be Price Per Offering Registration
REGISTERED(1) REGISTERED(1) SHARE (2) PRICE FEE
------------- ------------- --------- --------- ------------
Class A Common 18,400 $59.40 $1,092,960 $273.17
Stock 43,100 $54.00 $2,327,400 $581.85
938,500 $65.87(3) $61,818,995(3) $15,454.75
(1) Pursuant to Rule 416(b) under the Securities Act of 1933, this registration
statement covers such additional shares of Class A Common Stock as may be
issuable pursuant to anti-dilution provisions of the Plan. (2) Inserted solely
for the purpose of calculating the registration fee pursuant to Rule 457(h)(1).
(3) As instructed by Rule 457(h)(1) and estimated in accordance with Rule
457(c), based upon the average of the high and low prices for the Registrant's
Class A Common Stock on the New York Stock Exchange reported as of March 22,
2001.
-2-
Part II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents which have been filed by Constellation Brands,
Inc. (formerly known as Canandaigua Brands, Inc.) (the "Registrant") with the
Securities and Exchange Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended February 29, 2000, filed pursuant to Section 13 of the Securities Exchange
Act of 1934;
(b) All other reports filed by the Registrant pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934 since February 29, 2000,
including specifically, but not limited to, the Registrant's Current Reports on
Form 8-K filed on April 11, 2000, May 12, 2000, June 22, 2000, September 20,
2000, September 27, 2000, January 4, 2001, February 2, 2001, February 12, 2001,
February 20, 2001, February 21, 2001, March 7, 2001 and March 14, 2001 and the
Registrant's Quarterly Reports on Form 10-Q for the quarterly periods ending May
31, 2000, August 31, 2000 and November 30, 2000;
(c) The description of the Registrant's Class A Common Stock contained
in the Registrant's registration statement on Form 8-A filed on October 4, 1999
under Section 12 of the Securities and Exchange Act, including all amendments or
reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
James A. Locke III, Esq. serves as a member of the Board of Directors
of the Registrant. Mr. Locke is a partner in the law firm Nixon Peabody LLP,
which firm has rendered an opinion regarding the legality of the securities
offered by the Registration Statement. Mr. Locke owns or has the option to
purchase 16,804 Shares of the Registrant's Class A Common Stock. Mr. Locke also
owns 33 shares of the Registrant's Class B Common Stock, and such shares are
convertible into Class A Common Stock. Certain attorneys of Nixon Peabody LLP
may also own Shares of the Class A Common Stock of the Registrant. A copy of the
Opinion of Nixon Peabody LLP is attached hereto as Exhibit 5.
-3-
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of Delaware (Section 102) allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or to any of its stockholders for monetary damage for a breach
of his/her fiduciary duty as a director, except in the case where the director
breached his/her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. The Restated Certificate of
Incorporation of the Registrant contains a provision which eliminates directors'
personal liability as set forth above.
The General Corporation Law of Delaware (Section 145) gives Delaware
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions; gives a director or officer who successfully defends an action the
right to be so indemnified; and authorizes the Registrant to buy directors' and
officers' liability insurance. Such indemnification is not exclusive of any
other right to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or otherwise.
The Registrant's Restated Certificate of Incorporation provides for
indemnification to the fullest extent authorized by Section 145 of the General
Corporation Law of Delaware for directors, officers and employees of the
Registrant and also to persons who are serving at the request of the Registrant
as directors, officers or employees of other corporations (including
subsidiaries); provided that, with respect to proceedings initiated by such
indemnitee, indemnification shall be provided only if such proceedings were
authorized by the Board of Directors. The right of indemnification is not
exclusive of any other right which any person may acquire under any statute,
bylaw, agreement, contract, vote of stockholders or otherwise.
From time to time the Registrant has and will enter into agreements
with underwriters for securities offerings which provide for indemnification of
directors, officers and controlling persons of the Registrant for losses,
claims, damages, or liabilities resulting from an untrue statement made in a
registration statement in reliance upon and in conformity with written
information furnished to the Registrant by or on behalf of such underwriters for
inclusion in the Registration Statement.
The Registrant maintains a directors' and officers' liability insurance
and corporate reimbursement policy insuring directors and officers against loss
arising from claims made arising out of the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
-4-
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act 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; and
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 of the
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
-5-
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rochester, State of New York, on the 28th day of
March, 2001.
CONSTELLATION BRANDS, INC.
By:/S/Richard Sands
------------------------------------------
Richard Sands
Chairman of the Board, President and
Chief Executive Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby severally constitutes and appoints Richard Sands, Robert Sands and
Thomas S. Summer, and each of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to the Registration Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorneys-in-fact and agents or any of them or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/S/Richard Sands Director, Chairman of March 28, 2001
------------------- the Board, President and
Richard Sands Chief Executive
Officer (Principal
Executive Officer)
/S/Robert Sands Director, Group President March 28, 2001
-------------------
Robert Sands
/S/Thomas S. Summer Executive Vice President March 28, 2001
------------------- and Chief Financial Officer
Thomas S. Summer (Principal Financial and
Accounting Officer)
/S/George Bresler Director March 28, 2001
-------------------
George Bresler
/S/James A. Locke, III Director March 28, 2001
-------------------
James A. Locke, III
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION LOCATION
4-1* Incentive Stock Option Plan Contained in Exhibit
10.2 to the Registrant's
Quarterly Report on
Form 10-Q for the fiscal
quarter ended August
31, 1997
4-2* Amendment Number One to Contained in Exhibit
Incentive Stock Option Plan 10.3 to the Registrant's
Quarterly Report on
Form 10-Q for the fiscal
quarter ended August
31, 1997
4-3* Amendment Number Two to Contained in Exhibit
Incentive Stock Option Plan 10.2 to the Registrant's
Quarterly Report on
Form 10-Q for the fiscal
quarter ended August
31, 2000
4-4 Amendment Number Three to Filed Herewith
Incentive Stock Option Plan
4-5* Restated Certificate of Incorporation Contained in Exhibit
of the Registrant 3.1 to the Registrant's
Quarterly Report on
Form 10-Q for the fiscal
quarter ended August
31, 2000
4-6* By-Laws of the Registrant Contained in Exhibit
3.2 to the Registrant's
Quarterly Report on
Form 10-Q for the fiscal
quarter ended August
31, 2000 and
incorporated herein
by reference
5-1 Legal Opinion of Nixon Peabody LLP Filed Herewith
23-1 Consent of Nixon Peabody LLP Contained in opinion
filed as Exhibit 5-1
to this Registration
Statement
23-2 Consent of Arthur Andersen LLP, Filed Herewith
independent accountants
__________________________
*Incorporated by reference to the indicated filing.