-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GNH8Rbf/+ZjBbIcsrP4TEg0ZY4twO3lHI0zUL/Z4HGg1oGVC9MVtrCydwhzKfFue I2IL/BsqNwa4ui6Xvm7gGw== 0000016918-01-500015.txt : 20010823 0000016918-01-500015.hdr.sgml : 20010823 ACCESSION NUMBER: 0000016918-01-500015 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010822 EFFECTIVENESS DATE: 20010822 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONSTELLATION BRANDS INC CENTRAL INDEX KEY: 0000016918 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] IRS NUMBER: 160716709 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-68180 FILM NUMBER: 1721475 BUSINESS ADDRESS: STREET 1: 300 WILLOWBROOK OFFICE PARK CITY: FAIRPORT STATE: NY ZIP: 14450 BUSINESS PHONE: 7162182169 MAIL ADDRESS: STREET 1: 300 WILLOWBROOK OFFICE PARK CITY: FAIRPORT STATE: NY ZIP: 14450 FORMER COMPANY: FORMER CONFORMED NAME: CANANDAIGUA BRANDS INC DATE OF NAME CHANGE: 19970902 FORMER COMPANY: FORMER CONFORMED NAME: CANANDAIGUA WINE CO INC DATE OF NAME CHANGE: 19920703 S-8 1 s8sharesave.txt As filed with the Securities and Exchange Commission on August 22, 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) THE CONSTELLATION BRANDS UK SHARESAVE SCHEME (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 1,000,000 $44.01 $44,010,000 $11,002 Stock (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 August 15, 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 28, 2001, 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 28, 2001, including specifically, but not limited to, the Registrant's Current Reports on Form 8-K filed on March 7, 2001, March 14, 2001, April 12, 2001 (reporting the Registrant's results for the three month period and the twelve month period ended February 28, 2001 and announcing our two-for-one stock split), April 12, 2001 (reporting the proposed acquisition of Ravenswood Winery, Inc.), June 20, 2001, June 28, 2001 and July 3, 2001 and the Registrant's Quarterly Report on Form 10-Q for the quarterly periods ending May 31, 2001. (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 33,608 Shares of the Registrant's Class A Common Stock. Mr. Locke also owns 66 shares of the Registrant's Class B Common Stock, and such shares are convertible - 3 - 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. 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. - 4 - ITEM 8. EXHIBITS. See Exhibit Index. 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; (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 - 5 - the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 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 22nd day of August, 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 August 22, 2001 - ---------------------------- the Board, President and Richard Sands Chief Executive Officer (Principal Executive Officer) /s/ Robert Sands Director, Group President August 22, 2001 - ---------------------------- Robert Sands /s/ Thomas S. Summer Executive Vice President August 22, 2001 - ---------------------------- and Chief Financial Officer Thomas S. Summer (Principal Financial and Accounting Officer) /s/ George Bresler August 22, 2001 - ---------------------------- Director George Bresler /s/ James A. Locke, III Director August 22, 2001 - ---------------------------- James A. Locke, III EXHIBIT INDEX Exhibit No. Description Location - ----------- ----------- -------- 4-1 The Constellation Brands UK Filed Herewith Sharesave Scheme, as amended 4-2* Restated Certificate of Incorporation Contained in Exhibit 3.1 of the Registrant to the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, 2000 and incorporated herein by reference 4-3* 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, 31, 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. EX-4 3 exhibit4-1.txt Exhibit 4-1 ----------- THE CONSTELLATION BRANDS UK SHARESAVE SCHEME as amended on 21 December 2000 (for change of name only) CLIFFORD CHANCE 200 Aldersgate Street London EC1A 4JJ Ref: KGT/C5029/00121 Date adopted: 29 October 1999 Inland Revenue ref: SRS 2318 CONTENTS Clause Page - ------ ---- 1. DEFINITIONS AND INTERPRETATION............................................1 2. ELIGIBILITY...............................................................2 3. GRANT OF OPTIONS..........................................................3 4. LIMIT.....................................................................5 5. EXERCISE OF OPTIONS.......................................................6 6. TAKEOVER, RECONSTRUCTION AND WINDING UP...................................9 7. VARIATION OF CAPITAL......................................................10 8. ALTERATIONS...............................................................10 9. MISCELLANEOUS.............................................................11 10. AVAILABLE SHARES..........................................................11 1. DEFINITIONS AND INTERPRETATION 1.1 In this Scheme, unless the context otherwise requires:- "3-YEAR OPTION", "5-YEAR OPTION" and "7-YEAR OPTION" have the meanings given in sub-rule 3.2 below; "ASSOCIATED COMPANY" means an associated company within the meaning given to that expression by section 187(2) of the Taxes Act 1988 for the purposes of paragraph 23 of Schedule 9; "THE BOARD" means the board of directors of the Company or a committee appointed by them; "BONUS DATE", in relation to an option, means:- 1.1.1 in the case of a 3-Year Option, the earliest date on which the bonus is payable, 1.1.2 in the case of a 5-Year Option, the earliest date on which a bonus is payable, and 1.1.3 in the case of a 7-Year Option, the earliest date on which the maximum bonus is payable; and for this purpose "payable" means payable under the Savings Contract made in connection with the option; "COMMON STOCK" means the Class A Common Stock of the Company, par value $0.01 per share; "THE COMPANY" means Constellation Brands, Inc., a company organised under the laws of the State of Delaware in the USA; "THE GRANT DAY" shall be construed in accordance with sub-rule 2.1 below; "PARTICIPANT" means a person who holds an option granted under this Scheme; "PARTICIPATING COMPANY" means the Company or any Subsidiary to which the Board has resolved that this Scheme shall for the time being extend; "SAVINGS BODY" means any building society, institution authorised under the Banking Act 1987 or relevant European institution (within the meaning of Schedule 15A to the Taxes Act 1988) with which a Savings Contract can be made; "SAVINGS CONTRACT" means an agreement to pay monthly contributions under the terms of a certified contractual savings scheme, within the meaning of section 326 of the Taxes Act 1988, which has been approved by the Inland Revenue for the purposes of Schedule 9; "SCHEDULE 9" means Schedule 9 to the Taxes Act 1988; - 1 - "SUBSIDIARY" means a body corporate which is a subsidiary of the Company (within the meaning of section 736 of the Companies Act 1985) and of which the Company has control (within the meaning of section 840 of the Taxes Act 1988); "THE TAXES ACT 1988" means the Income and Corporation Taxes Act 1988; and expressions not otherwise defined in this Scheme have the same meanings as they have in Schedule 9. 1.2 Any reference in this Scheme to any enactment includes a reference to that enactment as from time to time modified, extended or re-enacted. 1.3 Expressions in italics are for guidance only and do not form part of this Scheme. 2. ELIGIBILITY 2.1 Subject to sub-rule 2.5 below, an individual is eligible to be granted an option on any day ("THE GRANT DAY") if (and only if):- 2.1.1 he is on the Grant Day an employee or director of a company which is a Participating Company; and 2.1.2 he either satisfies the conditions specified in sub-rule 2.2 below or is nominated by the Board for this purpose. 2.2 The conditions referred to in sub-rule 2.1.2 above are that the individual:- 2.2.1 shall at all times during the qualifying period have been an employee (but not a director) or a full-time director of the Company or a company which was for the time being a Subsidiary; and 2.2.2 was at the relevant time chargeable to tax in respect of his employment or office under Case I of Schedule E. 2.3 For the purposes of sub-rule 2.2 above:- 2.3.1 THE RELEVANT TIME is the date on which any invitation is given under Rule 3.6 below or such other time during the period of 5 years ending with the Grant Day as the Board may determine (provided that no such determination may be made if it would have the effect that the qualifying period would not fall within that 5-year period); 2.3.2 there shall be no qualifying period prior to the relevant time unless the Board determines otherwise (provided that no determination may be made if it would have the effect that the qualifying period would not fall within the said 5-year period); 2.3.3 an individual shall be treated as a FULL-TIME DIRECTOR of a company if he is obliged to devote to the performance of the duties of his office or employment with the company not less than 25 hours a week; - 2 - 2.3.4 Chapter I of Part XIV of the Employment Rights Act 1996 shall have effect, with any necessary changes, for ascertaining the length of the period during which an individual shall have been an employee or a full-time director and whether he shall have been an employee or a full-time director at all times during that period. 2.4 Any determination of the Board under paragraph 2.3.1 or 2.3.2 above shall have effect in relation to every individual for the purpose of ascertaining whether he is eligible to be granted an option on the Grant Day. 2.5 An individual is not eligible to be granted an option at any time if he is at that time ineligible to participate in this Scheme by virtue of paragraph 8 of Schedule 9 (material interest in close company). 3. GRANT OF OPTIONS 3.1 Subject to Rule 4 below, the Board may grant an option to acquire shares of Common Stock which satisfy the requirements of paragraphs 10 to 14 of Schedule 9 (fully paid up, unrestricted, ordinary share capital), upon the terms set out in this Scheme, to any individual who:- 3.1.1 is eligible to be granted an option in accordance with Rule 2 above, and 3.1.2 has applied for an option and proposed to make a Savings Contract in connection with it (with a Savings Body approved by the Board) in the form and manner prescribed by the Board, and for this purpose an option to acquire includes an option to purchase and an option to subscribe. 3.2 The type of option to be granted to an individual, that is to say a 3-Year Option, a 5-Year Option or a 7-Year Option, shall be determined by the Board or, if the Board so permits, by the individual; and for this purpose:- 3.2.1 a 3-YEAR OPTION is an option in connection with which a three year Savings Contract is to be made and in respect of which, subject to sub-rule 4.3 below, the repayment is to be taken as including the bonus; 3.2.2 a 5-YEAR OPTION is an option in connection with which a five year Savings Contract is to be made and in respect of which, subject to sub-rule 4.3 below, the repayment is to be taken as including a bonus other than the maximum bonus; and 3.2.3 a 7-YEAR OPTION is an option in connection with which a five year Savings Contract is to be made and in respect of which the repayment is to be taken as including the maximum bonus. 3.3 The amount of the monthly contribution under the Savings Contract to be made in connection with an option granted to an individual shall, subject to sub-rule 4.3 below, - 3 - be the amount which the individual shall have specified in his application for the option that he is willing to pay or, if lower, the maximum permitted amount, that is to say, the maximum amount which:- 3.3.1 when aggregated with the amount of his monthly contributions under any other Savings Contract linked to this Scheme or to any other savings-related share option scheme approved under Schedule 9, does not exceed 250 pounds or such other maximum amount as may for the time being be permitted by paragraph 24(2)(a) of Schedule 9; 3.3.2 does not exceed the maximum amount for the time being permitted under the terms of the Savings Contract; and 3.3.3 when aggregated with the amount of his monthly contributions under any other Savings Contract linked to this Scheme, does not exceed any maximum amount determined by the Board. 3.4 The number of shares of Common Stock in respect of which an option may be granted to any individual shall be the maximum number which can be paid for, at the price determined under sub-rule 3.5 below, with monies equal to the amount of the repayment due on the Bonus Date under the Savings Contract to be made in connection with the option. 3.5 The price at which shares of Common Stock may be acquired by the exercise of options of a particular type granted on any day shall be a price denominated in US dollars which is determined by the Board and stated on that day, provided that:- 3.5.1 if shares of Common Stock are quoted on the New York Stock Exchange, the price shall not be less than the Specified Percentage of the closing price of shares of Common Stock on the New York Stock Exchange (as reported by such Exchange) on: (a) the dealing day last preceding the date on which invitations to apply for the options were given pursuant to sub-rule 3.6 below, or (b) if that dealing day does not fall within the period of 30 days (or, where sub-rule 4.3 below applies, 42 days) ending with the day on which the options are granted or falls prior to the date on which the Company last announced its results, on the dealing day last preceding the day on which the options are granted or such other dealing day as may be agreed with the Inland Revenue; 3.5.2 if sub-rule 3.5.1 above does not apply, the price shall not be less than the Specified Percentage of the market value (within the meaning of Part VIII of the Taxation of Chargeable Gains Act 1992) of shares of Common Stock, as agreed in advance for the purposes of this Scheme with the Shares Valuation Division of the Inland Revenue, on - - 4 - (a) the date on which invitations to apply for the options were given pursuant to sub-rule 3.6 below, or (b) if that date does not fall within the period of 30 days (or, where sub-rule 4.3 below applies, 42 days) ending with the day on which the options are granted, on the day on which the options are granted or such other day as may be agreed with the Inland Revenue; and 3.5.3 in the case of an option to acquire shares of Common Stock only by subscription, the price shall not be less than the nominal value of those shares; and for this purpose "THE SPECIFIED PERCENTAGE" is 80 per cent. or such other percentage as may be specified in paragraph 25 of Schedule 9. 3.6 The Board shall ensure that, in relation to the grant of options on any day:- 3.6.1 every individual who is eligible to be granted an option on that day has been given an invitation; 3.6.2 the invitation specifies a period of not less than 14 days in which an application for an option may be made; and 3.6.3 every eligible individual who has applied for an option as mentioned in sub-rule 3.1 above is in fact granted an option on that day. 3.7 An invitation to apply for an option may only be given within the period of 10 years beginning with the date on which this Scheme is adopted by the Company. 3.8 An option granted to any person:- 3.8.1 shall not, except as provided in sub-rule 5.3 below, be capable of being transferred by him; and 3.8.2 shall lapse forthwith if he is adjudged bankrupt. 4. LIMIT 4.1 No options shall be granted to acquire a number of shares of Common Stock which exceeds any number ("the Limit") determined by the Board (by reference to the sterling/US dollar exchange rate at the time of grant) for this purpose, provided that this sub-rule shall not prevent shares of Common Stock being acquired in excess of the Limit by reason of movements in the sterling/US dollar exchange rate between the grant and exercise of options. 4.2 If the grant of options on any day would but for this sub-rule cause the Limit to be exceeded, the provisions set out in sub-rule 4.3 below shall be successively applied (in the order in which they are set out) so far as is necessary to ensure that the Limit is not exceeded. - 5 - 4.3 Those provisions are:- 4.3.1 any option which would otherwise be a 7-Year Option shall be a 5-Year Option; 4.3.2 the repayment under the Savings Contract shall be taken as not including a bonus; 4.3.3 unless paragraph 4.3.4 below applies, the amount of the monthly contribution determined under sub-rule 3.3 above shall be taken as successively reduced by 0.5 per cent. thereof, 1 per cent. thereof, 1.5 per cent. thereof and so on and then rounded up to the nearest pound, but shall not be reduced to less than the minimum amount permitted under the terms of the Savings Contract; 4.3.4 if the Board shall have decided that this paragraph is to apply, for the purpose of determining the amount of the monthly contribution, the maximum permitted amount referred to in sub-rule 3.3 above shall be taken as successively reduced by 1 pound, 2 pounds, 3 pounds and so on, but shall not be reduced to less than the minimum amount permitted under the terms of the Savings Contract; 4.3.5 any option which would otherwise be a 5-Year Option shall be a 3-Year Option; 4.3.6 the Board shall not grant any options on the day in question. 5. EXERCISE OF OPTIONS 5.1 The exercise of any option shall be effected in the form and manner prescribed by the Board, provided that the monies paid for shares of Common Stock on such exercise shall not exceed the amount of the repayment made and any interest paid under the Savings Contract made in connection with the option. 5.2 Subject to sub-rules 5.3, 5.4 and 5.6 below and to Rule 6 below, an option shall not be capable of being exercised before the Bonus Date. 5.3 Subject to sub-rule 5.8 below:- 5.3.1 if any Participant dies before the Bonus Date, any option granted to him may (and must, if at all) be exercised by his personal representatives within 12 months after the date of his death, and 5.3.2 if he dies on or within 6 months after the Bonus Date, any option granted to him may (and must, if at all) be exercised by his personal representatives within 12 months after the Bonus Date, provided in either case that his death occurs at a time when he either holds the office or employment by virtue of which he is eligible to participate in this Scheme or is entitled to exercise the option by virtue of sub-rule 5.4 below. - 6 - 5.4 Subject to sub-rule 5.8 below, if any Participant ceases to hold the office or employment by virtue of which he is eligible to participate in this Scheme (otherwise than by reason of his death), the following provisions apply in relation to any option granted to him:- 5.4.1 if he so ceases by reason of injury, disability, redundancy within the meaning of the Employment Rights Act 1996, or retirement on reaching the age of 65 or any other age at which he is bound to retire in accordance with the terms of his contract of employment, the option may (and subject to sub-rule 5.3 above must, if at all) be exercised within 6 months of his so ceasing; 5.4.2 if he so ceases by reason only that the office or employment is in a company of which the Company ceases to have control, or relates to a business or part of a business which is transferred to a person who is neither an Associated Company of the Company nor a company of which the Company has control, the option may (and subject to sub-rule 5.3 above must, if at all) be exercised within 6 months of his so ceasing; 5.4.3 if he so ceases for any other reason within 3 years of the grant of the option, the option may not be exercised at all; 5.4.4 if he so ceases for any other reason (except for dismissal for misconduct) more than 3 years after the grant of the option, the option may (and subject to sub-rule 5.3 above must, if at all) be exercised within 6 months of his so ceasing. 5.5 Subject to sub-rule 5.8 below, if, at the Bonus Date, a Participant holds an office or employment with a company which is not a Participating Company but which is an Associated Company or a company of which the Company has control, any option granted to him may (and subject to sub-rule 5.3 above must, if at all) be exercised within 6 months of the Bonus Date. 5.6 Subject to sub-rule 5.8 below, where any Participant continues to hold the office or employment by virtue of which he is eligible to participate in this Scheme after the date on which he reaches the age of 65, he may exercise any option within 6 months of that date. 5.7 Subject to sub-rule 5.3 above, an option shall not be capable of being exercised later than 6 months after the Bonus Date. 5.8 Where, before an option has become capable of being exercised, the Participant gives notice that he intends to stop paying monthly contributions under the Savings Contract made in connection with the option, or is deemed under its terms to have given such notice, or makes an application for repayment of the monthly contributions paid under it, the option may not be exercised at all. 5.9 A Participant shall not be treated for the purposes of sub-rules 5.3 and 5.4 above as ceasing to hold the office or employment by virtue of which he is eligible to participate in this Scheme until he ceases to hold an office or employment in the Company or any - 7 - Associated Company or company of which the Company has control, and a female Participant who ceases to hold the office or employment by virtue of which she is eligible to participate in this Scheme by reason of pregnancy or confinement and who exercises her right to return to work under the Employment Rights Act 1996 before exercising her option shall be treated for the purposes of sub-rule 5.4 above as not having ceased to hold that office or employment. 5.10 A Participant shall not be eligible to exercise an option at any time:- 5.10.1 unless, subject to sub-rules 5.4 and 5.5 above, he is at that time a director or employee of a Participating Company; 5.10.2 if he is not at that time eligible to participate in this Scheme by virtue of paragraph 8 of Schedule 9 (material interest in close company). 5.11 An option shall not be capable of being exercised more than once. 5.12 Within 30 days after an option has been exercised by any person, the Board shall allot to him (or a nominee for him) or, as appropriate, procure the transfer to him (or a nominee for him) of the number of shares of Common Stock in respect of which the option has been exercised, provided that:- 5.12.1 the Board considers that the issue or transfer thereof would be lawful in all relevant jurisdictions; and 5.12.2 in a case where a Participating Company is obliged to (or would suffer a disadvantage if it were not to) account for any tax (in any jurisdiction) for which the person in question is liable by virtue of the exercise of the option and/or for any social security contributions recoverable from the person in question (together, the "Tax Liability"), that person has either: (a) made a payment to the Participating Company of an amount equal to the Tax Liability; or (b) entered into arrangements acceptable to that or another Participating Company to secure that such a payment is made (whether by authorising the sale of some or all of the shares of Common Stock on his behalf and the payment to the Participating Company of the relevant amount out of the proceeds of sale or otherwise). 5.13 All shares of Common Stock allotted under this Scheme shall rank equally in all respects with shares of Common Stock then in issue except for any rights attaching to such shares of Common Stock by reference to a record date before the date of the allotment. 5.14 If shares of Common Stock are listed on any stock exchange, the Company shall apply to that stock exchange for any shares of Common Stock so allotted to be admitted thereto. - 8 - 6. TAKEOVER, RECONSTRUCTION AND WINDING UP 6.1 If any person obtains control of the Company as a result of making a general offer to acquire shares in the Company, or having obtained control makes such an offer, the Board shall within 7 days of becoming aware thereof notify every Participant thereof and, subject to sub-rules 5.3, 5.4, 5.7 and 5.8 above, any option may be exercised within one month (or such longer period as the Board may permit) of the notification, but not later than 6 months after that person has obtained control. 6.2 For the purposes of sub-rule 6.1 above, a person shall be deemed to have obtained control of the Company if he and others acting in concert with him have together obtained control of it. 6.3 If a compromise or arrangement is effected for the purposes of or in connection with a scheme for the reconstruction of the Company or its amalgamation with any other company or companies, or if the Company passes a resolution for voluntary winding up, the Board shall forthwith notify every Participant thereof and, subject to sub-rules 5.3, 5.4, 5.7 and 5.8 above, any option may be exercised within one month of the notification, but to the extent that it is not exercised within that period shall (notwithstanding any other provision of this Scheme) lapse on the expiration of that period. 6.4 If any company ("the acquiring company"):- 6.4.1 obtains control of the Company as a result of making- (a) a general offer to acquire the whole of the issued ordinary share capital of the Company which is made on a condition such that if it is satisfied the acquiring company will have control of the Company, or (b) a general offer to acquire all the shares in the Company which are of the same class as the shares which may be acquired by the exercise of options granted under this Scheme, any Participant may at any time within the appropriate period (which expression shall be construed in accordance with paragraph 15(2) of Schedule 9), by agreement with the acquiring company, release any option which has not lapsed ("the old option") in consideration of the grant to him of an option ("the new option") which (for the purposes of that paragraph) is equivalent to the old option but relates to shares in a different company (whether the acquiring company itself or some other company falling within paragraph 10(b) or (c) of Schedule 9). 6.5 The new option shall not be regarded for the purposes of sub-rule 6.4 above as equivalent to the old option unless the conditions set out in paragraph 15(3) of Schedule 9 are satisfied, but so that the provisions of this Scheme shall for this purpose be construed as if:- 6.5.1 the new option were an option granted under this Scheme at the same time as the old option; - 9 - 6.5.2 except for the purposes of the definitions of "Participating Company" and "Subsidiary" in sub-rule 1.1 and sub-rules 5.4.2, 5.5 and 5.9 above, the expression "the Company" were defined as "a company whose shares may be acquired by the exercise of options granted under this Scheme"; 6.5.3 the Savings Contract made in connection with the old option had been made in connection with the new option; 6.5.4 the Bonus Date in relation to the new option were the same as that in relation to the old option. 7. VARIATION OF CAPITAL 7.1 Subject to sub-rule 7.3 below, in the event of any variation of the share capital of the Company, the Board may make such adjustments as it considers appropriate under sub-rule 7.2 below. 7.2 An adjustment made under this sub-rule shall be to one or more of the following:- 7.2.1 the price at which shares of Common Stock may be acquired by the exercise of any option; 7.2.2 where any option has been exercised but no shares of Common Stock have been allotted or transferred pursuant to the exercise, the price at which they may be acquired; 7.2.3 the number of shares of Common Stock mentioned in Rule 10 below. 7.3 At a time when this Scheme is approved by the Inland Revenue under Schedule 9, no adjustment under sub-rule 7.2 above shall be made without the prior approval of the Inland Revenue. 7.4 An adjustment under sub-rule 7.2 above may have the effect of reducing the price at which shares of Common Stock may be acquired by the exercise of an option to less than their nominal value, but only if and to the extent that the Board shall be authorised to capitalise from the reserves of the Company a sum equal to the amount by which the nominal value of the shares of Common Stock in respect of which the option is exercised exceeds the price at which such shares may be subscribed for and to apply that sum in paying up that amount on such shares; and so that on the exercise of any option in respect of which such a reduction shall have been made the Board shall capitalise that sum (if any) and apply it in paying up that amount. 8. ALTERATIONS The Board may at any time alter this Scheme, provided that no alteration shall be made at a time when this Scheme is approved by the Inland Revenue under Schedule 9 without the prior approval of the Inland Revenue. - 10 - 9. MISCELLANEOUS 9.1 The rights and obligations of any individual under the terms of his office or employment with the Company or a Subsidiary shall not be affected by his participation in this Scheme or any right which he may have to participate in it, and an individual who participates in it shall waive all and any rights to compensation or damages in consequence of the termination of his office or employment for any reason whatsoever insofar as those rights arise or may arise from his ceasing to have rights under or be entitled to exercise any option as a result of such termination. 9.2 In the event of any dispute or disagreement as to the interpretation of this Scheme, or as to any question or right arising from or related to this Scheme, the decision of the Board shall be final and binding upon all persons. 9.3 The Company and any Subsidiary may provide money to the trustees of any trust or any other person to enable them or him to acquire shares of Common Stock to be held for the purposes of this Scheme, or enter into any guarantee or indemnity for those purposes, to the extent permitted by any applicable laws. 9.4 Any notice or other communication under or in connection with this Scheme may be given by personal delivery or by sending it by post, in the case of a company to its registered office, and in the case of an individual to his last known address, or, where he is a director or employee of the Company or a Subsidiary, either to his last known address or to the address of the place of business at which he performs the whole or substantially the whole of the duties of his office or employment. 10. AVAILABLE SHARES 10.1 No more than 500,000 shares of Common Stock shall be made available under this Scheme, provided that this number may be adjusted by the Board:- 10.1.1 as provided for in Rule 7.2.3 above; or 10.1.2 where movements in the sterling/US dollar exchange rate between the grant and exercise of options require a greater number of shares of Common Stock to be issued or transferred on the exercise of an option than was contemplated when such option was granted. 10.2 The shares of Common Stock to be made available under this Scheme may be authorised and unissued shares of Common Stock, previously issued shares of Common Stock acquired by the Company and held as treasury shares or shares of Common Stock purchased in the open market. CLIFFORD CHANCE 200 Aldersgate Street London EC1A 4JJ - 11 - EX-5 4 exhibit5-1.txt Exhibit 5-1 ----------- NIXON PEABODY LLP Clinton Square Post Office Box 31051 Rochester, New York 14603-31051 Fax: (716) 263-1600 Direct Dial: (716) 263-1000 August 22, 2001 Constellation Brands, Inc. 300 WillowBrook Office Park Fairport, New York 14450 Ladies and Gentlemen: We have acted as counsel to Constellation Brands, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Company on August 22, 2001 with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), for the purpose of registering with the Commission the issuance and sale of 1,000,000 shares of the Class A Common Stock of the Company, par value $.01 per share (the "Common Stock"), pursuant to the Company's UK Share Save Scheme (as amended, the "Plan"). This opinion is being delivered to you in connection with the Registration Statement. We have examined originals or copies, certified or otherwise identified to our satisfaction, of all such records of the Company and all such agreements, certificates of public officials, certificates of officers or other representatives of the Company, and such other documents, certificates and corporate or other records as we have deemed necessary or appropriate as a basis for the opinions set forth herein, including (i) the Amended and Restated Certificate of Incorporation of the Company, (ii) the By-Laws of the Company, as amended to the date hereof, (iii) the resolutions of the Board of Directors of the Company adopting the Plan, and (iv) the Plan. As to questions of fact material to our opinions expressed herein, we have, when relevant facts were not independently established, relied upon certificates of, and information received from, the Company and/or representatives of the Company. We have made no independent investigation of the facts stated in such certificates or as to any information received from the Company and/or representatives of the Company and do not opine as to the accuracy of such factual matters. We also have relied, without investigation, upon certificates and other documents from, and conversations with, public officials. Constellation Brands, Inc. August 22, 2001 Page 2 Members of our firm involved in the preparation of this opinion are licensed to practice law in the State of New York and we do not purport to be experts on, or to express any opinion herein concerning, the laws of any jurisdiction other than the laws of the State of New York and the General Corporation Law of the State of Delaware. Based upon and subject to the foregoing, and the other qualifications and limitations contained herein, and after (a) the above-referenced Registration Statement has become effective under the Act and assuming that such effectiveness remains in effect throughout the period during which shares of Common Stock are offered and sold pursuant to the Plan, (b) the shares of Common Stock to be offered and sold pursuant to the Plan have, if required, been duly qualified or registered, as the case may be, for sale under applicable securities laws and all applicable securities laws are complied with, (c) all laws of the UK Inland Revenue have been complied with in connection with the Plan, (d) all necessary action by the Board of Directors or Compensation Committee of the Board of Directors of the Company shall have been taken to duly authorize the offer, issuance and sale of Common Stock to be offered and sold pursuant to the Plan, and (e) the shares of Common Stock to be offered and sold pursuant to the Plan have been delivered, and the consideration therefore has been received, in each case pursuant to and in accordance with the terms of the Plan and related agreements and instruments, we are of the opinion that the 1,000,000 shares of Common Stock to be offered and sold pursuant to the Plan will have been duly authorized, validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. This opinion is intended solely for your benefit in connection with the transactions described above and, except as provided in the immediately preceding paragraph, may not be otherwise communicated to, reproduced, filed publicly or relied upon by, any other person or entity for any other purpose without our express prior written consent. This opinion is limited to the matters stated herein, and no opinion or belief is implied or may be inferred beyond the matters expressly stated herein. The opinions expressed herein are rendered as of the date hereof, and we disclaim any undertaking to advise you of changes in law or fact which may affect the continued correctness of any of our opinions as of a later date. James A. Locke, III, a member of this firm, is also a member of the Board of Directors of the Company. Very truly yours, /s/ Nixon Peabody EX-23 5 exhibit23-2.txt Exhibit 23-2 ------------ [LOGO] ARTHUR ANDERSEN CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated April 10, 2001 included in Constellation Brands, Inc.'s Form 10-K for the year ended February 28, 2001 and to all references to our Firm included in this registration statement. /s/ ARTHUR ANDERSEN LLP Rochester, New York August 22, 2001 -----END PRIVACY-ENHANCED MESSAGE-----