WHEREAS,
Constellation Brands, Inc. (the "Company") maintains the Constellation Brands,
Inc. 2005 Supplemental Executive Retirement Plan (the "SERP") for the benefit
of
a select group of management or highly compensated employees of the Company
and
certain of its affiliates; and
WHEREAS,
under
Section 4.1 of the SERP, the Company is authorized to amend the SERP, and
the
Company has determined that amendment of the SERP now is necessary and
desirable;
NOW,
THEREFORE, pursuant
to the power reserved to the Company under Section 4.1 of the SERP and by
virtue
of resolutions of the Board of Directors of the Company adopted at a meeting
on
June 27, 2007, the SERP is hereby amended, in the following
particulars:
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1.
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By
replacing the second paragraph of Section 1.2 of the SERP with
the
following, effective as of January 1,
2007:
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"The
Employee Retirement Income Security Act of 1974, as amended ('ERISA') permits
the provision of benefits under an unfunded plan maintained by the Company
primarily for the purpose of providing deferred compensation for a select
group
of management or highly compensated employees. The purpose of the SERP is
to
provide to those employees of the Company or an Affiliate, as defined below,
who
are selected by the Company from year to year, benefits which would be provided
under the Plan without regard to the Compensation Limit or the Section 415
Limit, or other limits with respect to certain Company contributions under
the
Plan. In no case, however, may any Company contribution to the SERP relate
to,
or be determined with respect to, any elective contributions made by any
employee to the Plan. For purposes of the SERP, the term 'Affiliate' means
a
corporation, trade or business that is a member of a controlled group of
corporations, a group of trades or businesses (whether or not incorporated)
under common control or an 'affiliated service group,' (all as defined in
Sections 414(b), 414(c) and 414(m) of the Code) that includes the Company.
The
term 'Affiliate' also includes a corporation, trade or business that is required
to be aggregated with the Company pursuant to regulations under Section 414(o)
of the Code. In applying the term 'Affiliate' for purposes of the SERP, the
standard of control under Sections 414(b) and 414(c) of the Code will be
deemed
to be at least 50%."
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2.
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By
replacing the terms "Related Business" and "Related Businesses"
each time
either term is used in Sections 2.1, 2.6(c)(1), 3.1 with the term
"Affiliate" or "Affiliates," as appropriate, effective as of January
1,
2007.
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3.
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By
replacing Section 2.5(b) of the SERP with the following, effective
as of
April 8, 2005:
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"(b)
he
or she shall become vested in his or her Annual Benefit Credits to the same
extent that the Participant is vested in his or her Employer Supplemental
Contributions under the Plan."
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4.
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By
replacing Section 2.6(a) of the SERP with the following, effective
as of
January 1, 2007:
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"The
vested SERP Account of a Participant, including any Participant who is a
specified employee, within the meaning of Code Section 409A, shall be paid
in a
lump sum in cash promptly after the date ('Payment Date') that is six months
after the date of his or her separation from service, within the meaning
of Code
Section 409A(a)(2)(A)(i) ('Separation Date'). For all purposes under the
SERP, a
transfer of employment to any entity that is not an Affiliate is a separation
from service. The unvested portion of the Participant's SERP Account shall
be
forfeited on the Separation Date."
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5.
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By
deleting the second paragraph of Section 2.6(a) of the SERP in
its
entirety, effective as of January 1,
2007.
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6.
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By
replacing Section 2.6(b) of the SERP with the following, effective
as of
January 1, 2007:
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"AFFILIATE
EMPLOYEES.
In the
event that a Participant is an employee of an Affiliate, other than the Company,
and the Affiliate has a Change of Control, the Participant shall be 100%
vested
in his or her SERP Account and the Participant's entire SERP Account shall
be
distributed to the Participant promptly in the form of a lump sum distribution.
Notwithstanding the preceding sentence, such vesting and distribution shall
only
occur if neither the Company nor an entity that is an Affiliate after such
transaction employs the Participant after such transaction. For this purpose,
an
Affiliate shall be deemed to have a Change of Control with respect to any
event
that would be a Change of Control within the meaning of Section 2.6(c), if
the
term 'Company' were replaced with the term 'Affiliate' each time it is used
therein."
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7.
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By
replacing the first paragraph of Section 2.6(c) with the following,
effective as of January 1, 2007:
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"Notwithstanding
anything in this Section 2.6 to the contrary, in the event of the occurrence
of
a Change of Control with respect to the Company all Participants shall be
100%
vested in their SERP Accounts, the SERP shall be terminated and the entire
SERP
Account of each Participant shall be distributed to the Participant promptly
after the Change of Control, or, if the Participant has already experienced
a
Separation Date, after his or her Payment Date, in the form of a lump sum
distribution. For this purpose a "Change of Control" shall mean an event
which
(i) is described in Code Section 409A(a)(2)(A)(v) and (ii) satisfies either
of the following:"
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8.
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By
adding the following paragraph at the end of Section 2.6(c)(2),
effective
as of January 1, 2007:
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"Persons
will not be considered to be acting as a group solely because they purchase
assets of the Company at the same time. However, persons will be considered
to
be acting as a group if they are owners of a corporation that enters into
a
merger, consolidation, purchase or acquisition of assets, or similar business
transaction with the Company. If a person, including an entity, owns stock
in
the Company and another corporation that enters into a merger, consolidation,
purchase or acquisition of assets, or similar transaction with the Company,
such
shareholder is considered to be acting as a group with other shareholders
of the
other corporation only with respect to their ownership interest in that
corporation prior to the transaction."
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9.
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By
replacing the first two sentences of Section 2.7 with the following,
effective as of January 1, 2007:
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"In
the
event of a Participant's death prior to full distribution of his or her vested
SERP Account, such amount shall be paid to the beneficiary properly designated
by the Participant in the manner established by the Committee to receive
his or
her SERP Account hereunder. Such distribution shall be made in a lump sum
distribution as soon as practicable after the Participant's death."
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10. |
By
adding the following new Section 3.8, effective as of January 1,
2007:
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"CODE
SECTION 409A COMPLIANCE.
Notwithstanding any provision to the contrary, this SERP is intended to comply
with Code Section 409A and the interpretive guidance thereunder. The SERP
shall
be construed and interpreted in accordance with such intent."
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11. |
By
restating Section 4.1 of the SERP in its entirety, effective as
of the
date of this amendment:
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"4.1
COMPANY AUTHORITY TO AMEND.
The
Company intends the SERP to be permanent, but reserves the right at any time
by
action of either its Board of Directors or the Human Resources Committee
of its
Board of Directors to modify, amend or terminate the SERP, provided however,
that if a Participant has a SERP Account, benefits provided under Section
2.1
shall constitute an irrevocable obligation of the Company as applicable,
to the
same extent that such SERP Account, had it been an account under the Plan,
would
have been an irrevocable obligation of the Plan."
IN
WITNESS WHEREOF, on behalf of the Company, the
undersigned officer has executed this amendment this 9 day of
July, 2007.
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CONSTELLATION
BRANDS, INC.
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By:
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/s/ L. Denise Watson
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Its:
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L. Denise Watson
Senior Vice President,
Global Compensation and
Benefits
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