S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on February 27, 2006
As
filed
with the Securities and Exchange Commission on February 27, 2006
Registration
No.
333-
UNITED
STATES 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
of
incorporation or organization)
|
(I.R.S.
Employer
Identification
No.)
|
|
370
Woodcliff Drive, Suite 300,
Fairport,
New York
|
14450
|
|
|
(Address
of Principal Executive Offices)
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(Zip
Code)
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CONSTELLATION
BRANDS, INC. LONG-TERM STOCK INCENTIVE PLAN
(Full
title of the Plan)
Thomas
J.
Mullin,
Esq.
Executive
Vice President and General Counsel
Constellation
Brands, Inc.
370
Woodcliff Drive, Suite 300
Fairport,
New York 14450
(585)
218-3600
(Name,
address, and telephone
number,
including area code, of agent for service)
Copy
to:
James
A.
Locke III, Esq.
Nixon
Peabody LLP
1300
Clinton Square
Rochester,
New York 14604
(585)
263-1000
CALCULATION
OF REGISTRATION FEE
|
Title of
Securities
to
be
Registered
(1)_
|
Amount
to be
Registered
(1)
|
Proposed
Maximum
Offering
Price
Per Share (2)
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
Class
A
Common
Stock,
par
value $.01
per
share
|
3,219,356
|
$27.235
|
$87,679,160.66
|
$9,381.67
|
|
73,860
|
$30.52
|
$2,254,207.20
|
$241.20
|
|
|
12,515
|
$27.96
|
$349,919.40
|
$37.44
|
|
|
65,900
|
$24.92
|
$1,642,228.00
|
$175.72
|
|
|
32,450
|
$26.22
|
$850,839.00
|
$91.04
|
|
|
50,000
|
$26.15
|
$1,307,500.00
|
$139.90
|
|
|
20,545,919
|
$25.53
(3)
|
$524,537,312.07
|
$56,125.49
|
|
|
Total
|
24,000,000 | $618,621,166.33 | $66,192.46 |
-
2
-
|
(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
February 22,
2006.
|
EXPLANATORY
NOTE
Constellation
Brands, Inc. (formerly known as Canandaigua Brands, Inc. and Canandaigua
Wine
Company, Inc.) (the “Company”) filed a Registration Statement on Form S-8 on
November 22, 1994 (Reg. No. 33-56557), Post-Effective Amendment No. 1 to
such
Registration Statement on November 29, 1994, and a Registration Statement
on
Form S-8 on October 4, 1999 (Reg. No. 333-88391) (collectively, the “Prior
Registration Statements”) relating to the registration of shares of the
Company’s Class A Common Stock.
On
September 1, 1997, the Company changed its name from Canandaigua Wine Company,
Inc. to Canandaigua Brands, Inc. and on September 19, 2000, the Company changed
its name from Canandaigua Brands, Inc. to Constellation Brands, Inc. Pursuant
to
General Instruction E of Form S-8, this Registration Statement on Form S-8
(the
“Registration Statement”) registers an additional 24,000,000 shares of the
Company’s Class A Common Stock which may be acquired under the Company’s
Long-Term Stock Incentive Plan.
The
contents of the Prior Registration Statements are incorporated herein by
reference.
Part
II
INFORMATION
REQUIRED IN THE
REGISTRATION
STATEMENT
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 this
Registration Statement. As a member of the Company’s Board of Directors, Mr.
Locke is eligible to receive awards under the Plan. Mr. Locke presently owns,
and has options to acquire, securities of the Company.
Certain
attorneys of Nixon Peabody LLP may also own shares of the Class A Common
Stock
of the Company. 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
-
3
-
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.
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
8. Exhibits.
|
Exhibit
No.
|
Description
|
Location
|
|
5
|
Opinion
of Nixon Peabody LLP
|
Filed
Herewith
|
|
10.1
|
Long-Term
Stock Incentive Plan, which amends and restates the Canandaigua
Wine
Company, Inc. Stock Option and Stock Appreciation Right Plan
|
Filed
as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended May 31, 1997 and incorporated herein by
reference
*
|
|
10.2
|
Amendment
Number One to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 1997 and incorporated herein
by reference
*
|
-
4 -
|
10.3
|
Amendment
Number Two to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 1999 and incorporated herein by
reference*
|
|
10.4
|
Amendment
Number Three to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 2000 and incorporated herein
by reference
*
|
|
10.5
|
Amendment
Number Four to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.9 to the Company’s Annual Report on Form 10-K for the fiscal
year ended February 28, 2001 and incorporated herein by reference
|
|
10.6
|
Amendment
Number Five to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 2004 and incorporated herein
by
reference
|
|
10.7
|
Amendment
Number Six to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.10 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended November 30, 2004 and incorporated herein
by
reference
|
|
23.1
|
Consent
of Nixon Peabody LLP
|
Contained
in opinion filed as Exhibit 5 to this Registration Statement
|
|
23.2
|
Consent
of KPMG LLP, independent accountants
|
Filed
Herewith
|
|
24
|
Power
of Attorney
|
Included
on the signature page to this Registration
Statement
|
|
*
|
The
Company’s Commission File No. is 001-08495. For filings prior to
October 4, 1999, use Commission File No.
000-07570.
|
SIGNATURES
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 Town
of
Perinton, State of New York, on the 27th day of February, 2006.
|
CONSTELLATION
BRANDS, INC.
|
|
|
By:
|
/s/
Richard Sands
|
|
Richard
Sands
Chairman
of the Board and
Chief
Executive Officer
|
|
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
hereby
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 attorneys-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 of
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
Richard
Sands
|
Director,
Chairman of the Board and Chief Executive Officer (principal
executive
officer)
|
February
27, 2006
|
|
/s/
Thomas S. Summer
Thomas
S. Summer
|
Executive
Vice President and Chief Financial Officer (principal
financial officer and principal accounting officer)
|
February
27, 2006
|
|
/s/
Jeananne K. Hauswald
Jeananne
K. Hauswald
|
Director
|
February
27, 2006
|
|
/s/
James A. Locke III
James
A. Locke III
|
Director
|
February
27, 2006
|
|
/s/
Thomas C. McDermott
Thomas
C. McDermott
|
Director
|
February
27, 2006
|
|
/s/
Robert Sands
Robert
Sands
|
Director
|
February
27, 2006
|
|
/s/
Paul L. Smith
Paul
L. Smith
|
Director
|
February
27, 2006
|
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
Location
|
|
5
|
Opinion
of Nixon Peabody LLP
|
Filed
Herewith
|
|
10.1
|
Long-Term
Stock Incentive Plan, which amends and restates the Canandaigua
Wine
Company, Inc. Stock Option and Stock Appreciation Right Plan
|
Filed
as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended May 31, 1997 and incorporated herein by
reference
*
|
|
10.2
|
Amendment
Number One to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 1997 and incorporated herein
by reference
*
|
|
10.3
|
Amendment
Number Two to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 1999 and incorporated herein by
reference *
|
|
10.4
|
Amendment
Number Three to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 2000 and incorporated herein
by reference
*
|
|
10.5
|
Amendment
Number Four to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.9 to the Company’s Annual Report on Form 10-K for the fiscal
year ended February 28, 2001 and incorporated herein by reference
|
|
10.6
|
Amendment
Number Five to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 2004 and incorporated herein
by
reference
|
|
10.7
|
Amendment
Number Six to the Company’s Long-Term Stock Incentive Plan
|
Filed
as Exhibit 10.10 to the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended November 30, 2004 and incorporated herein
by
reference
|
|
23.1
|
Consent
of Nixon Peabody LLP
|
Contained
in opinion filed as Exhibit 5 to this Registration Statement
|
|
23.2
|
Consent
of KPMG LLP, independent accountants
|
Filed
Herewith
|
|
24
|
Power
of Attorney
|
Included
on the signature page to this Registration Statement
|
|
*
|
The
Company’s Commission File No. is 001-08495. For filings prior to
October 4, 1999, use Commission File No.
000-07570.
|