RESTATED
CERTIFICATE OF INCORPORATION
of
CONSTELLATION
BRANDS, INC.
Constellation
Brands, Inc., a Delaware corporation,
DOES
HEREBY CERTIFY:
FIRST. The
name of the
corporation is Constellation Brands, Inc. The name under which it was originally
incorporated was Canandaigua Wine Company, Inc. The date of filing
its original Certificate of Incorporation with the Secretary of State of
the
State of Delaware was December 4, 1972.
SECOND. This
Restated Certificate
of Incorporation was duly adopted by Constellation Brands, Inc.’s Board of
Directors on October 4, 2006 in accordance with Section 245 of the General
Corporation Law of the State of Delaware.
THIRD. This
Restated Certificate of Incorporation only restates and integrates, and does
not
further amend, the provisions of Constellation Brands, Inc.’s Certificate of
Incorporation, as such Certificate of Incorporation had heretofore been
restated, amended or supplemented. There is no discrepancy between
those provisions and the provisions of this Restated Certificate of
Incorporation.
FOURTH. The
text of the Certificate of Incorporation as restated, amended or supplemented
heretofore is hereby restated without further amendments or changes to read
as
herein set forth in full:
1.
Name. The name of the Corporation is Constellation Brands,
Inc.
2.
Address; Registered Agent. The address of the registered
office in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at
such address is The Corporation Trust Company.
3.
Purposes. The nature of business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
4.
Capitalization; General Authorization. The total number of
shares of stock which the Corporation shall have authority to issue is Three
Hundred Thirty-One Million (331,000,000) consisting of:
(a) Class A
Common. Three Hundred Million (300,000,000) shares designated as
Class A Common Stock, having a par value of One Cent ($.01) per share (the
“Class A Common”);
(b) Class B
Common. Thirty Million (30,000,000) shares designated as Class B
Common Stock, having a par value of One Cent ($.01) per share (the “Class B
Common”); and
(c) Preferred
Stock. One Million (1,000,000) shares designated as Preferred Stock,
having a par value of One Cent ($.01) per share (the “Preferred
Stock”).
5.
Rights and Limitations. The designations, powers, preferences
and relative participation, optional or other special rights and the
qualifications, limitations and restrictions thereof in respect of each class
of
capital stock of the Corporation are as follows:
(i)
Class A Common and Class B Common. The Class A Common and
Class B Common shall be identical in all respects and shall entitle the holders
thereof to the same rights, privileges and limitations, except as otherwise
provided herein. The relative rights, privileges and limitations are
as follows:
(a) Voting
Rights. The holders of Class A Common and Class B Common shall
have the following rights:
(i) The holders
of Class A Common and Class B Common shall be entitled to vote as separate
classes on all matters as to which a class vote is now, or hereafter may
be,
required by law.
(ii) The number of
authorized shares of Class A Common and/or Class B Common may be increased
or
decreased (but not below the number of shares thereof then outstanding) by
the
majority vote of all Class A Common and Class B Common voting as a single
class,
provided that the holders of Class A Common shall have one (1) vote per share
and the holders of Class B Common shall have ten (10) votes per
share.
(iii) At every meeting of
shareholders called for the election of directors, the holders of the Class
A
Common, voting as a class, shall be entitled to elect one-fourth (1/4) of
the
number of directors to be elected at such meeting (rounded, if the total
number
of directors to be elected at such meeting is not evenly divisible by four
(4),
to the next higher whole number), and the holders of the Class B Common,
voting
as a class, shall be entitled to elect the remaining number of directors
to be
elected at such meeting. Irrespective of the foregoing, if the number
of outstanding Class B Common shares is less than 12 1/2% of the total number
of
outstanding shares of Class A Common and Class B Common, then the holders
of the
Class A Common shall be entitled to elect one-fourth (1/4) of the number
of
directors to be elected at such meeting (rounded, if the total number of
directors to be elected at such meeting is not evenly divisible by four (4),
to
the next higher whole number) and shall be entitled to participate with the
holders of the Class B Common shares voting as a single class in the election
of
the remaining number of directors to be elected at such meeting, provided
that
the holders of Class A Common shall have one (1) vote per share and the holders
of the Class B Common shall have ten (10) votes per share. If, during
the interval between annual meetings for the election of directors, the number
of directors who have been elected by either the holders of the Class A Common
or the Class B Common shall, by reason of resignation, death, retirement,
disqualification or removal, be reduced, the vacancy or vacancies in directors
so created may be filled by a majority vote of the remaining directors then
in
office, even if less than a quorum, or by a sole remaining
director. Any director so
2
elected
by the remaining directors to fill any such vacancy may be removed from office
by the vote of the holders of a majority of the shares of the Class A Common
and
the Class B Common voting as a single class, provided that the holders of
Class
A Common shall have one (1) vote per share and the holders of the Class B
Common
shall have ten (10) votes per share.
(iv) The
holders of Class A Common and Class B Common shall in all matters not specified
in Sections 5(i)(a)(i), 5(i)(a)(ii) and 5(i)(a)(iii) vote together as a single
class, provided that the holders of Class A Common shall have one (1) vote
per
share and the holders of Class B Common shall have ten (10) votes per
share.
(v) There shall
be no cumulative voting of any shares of either the Class A Common or the
Class
B Common.
(b) Dividends. Subject
to the rights of the Class A Common set forth in Paragraph 5(i)(c) hereof,
the
Board of Directors, acting in its sole discretion, may declare in accordance
with law a dividend payable in cash, in property or in securities of the
Corporation, on either the Class A Common or the Class B Common or
both.
(c) Cash
Dividends. The Board of Directors may, in its sole discretion,
declare cash dividends payable only to holders of Class A Common or to both
the
holders of Class A Common and Class B Common, but not only to holders of
Class B
Common. A cash dividend in any amount may be paid on the Class A
Common if no cash dividend is to be paid on the Class B Common. If a
cash dividend is to be paid on the Class B Common, a cash dividend shall
also be
paid on the Class A Common in an amount per share thereof which exceeds the
amount of the cash dividend paid on each share of Class B Common by at least
ten
percent (10%) (rounded up, if necessary, to the nearest one-hundredth of
a
cent).
(d) Convertibility. Each
holder of record of a share of Class B Common may at any time or from time
to
time, without cost to such holder and at such holder’s option, convert any whole
number or all of such holder’s shares of Class B Common into fully paid and
nonassessable shares of Class A Common at the rate of one share of Class
A
Common for each share of Class B Common surrendered for
conversion. Any such conversion may be effected by any holder of
Class B Common by surrendering such holder’s certificate or certificates for the
shares of Class B Common to be converted, duly endorsed, at the office of
the
Corporation or the office of any transfer agent for the Class A Common, together
with a written notice for the Corporation at such office that such holder
elects
to convert all or a specified number of such shares of Class B
Common. Promptly thereafter, the Corporation shall issue and deliver
to such holder a certificate or certificates for the number of shares of
Class A
Common to which such holder shall be entitled as aforesaid. Such
conversion shall be made as of the close of business on the date of such
surrender and the person or persons entitled to receive the shares of Class
A
Common issuable on such conversion shall be treated for all purposes as the
record holder or holders of such shares of Class A Common on such
date. The Corporation will at all times reserve and keep available,
solely for the purpose of issue upon conversion of the outstanding shares
of
Class B Common, such number of shares of Class A Common as shall be issuable
upon the conversion of all such outstanding shares, provided that the foregoing
shall not be considered to preclude the Corporation from satisfying its
obligations in respect of the conversion of the outstanding
3
shares
of
Class B Common by delivery of shares of Class A Common which are held in
the
treasury of the Corporation.
(e) Rights
Upon Liquidation. Holders of Class A Common and Class B Common
shall have identical rights in the event of liquidation, and shall be treated
as
a single class for purposes thereof.
(ii) Preferred
Stock. Subject to the terms contained in any designation of a
series of Preferred Stock, the Board of Directors is expressly authorized,
at
any time and from time to time, to fix, by resolution or resolutions, the
following provisions for shares of any class or classes of Preferred Stock
of
the Corporation or any series of any class of Preferred Stock:
(a) the
designation of such class or series, the number of shares to constitute such
class or series which may be increased or decreased (but not below the number
of
shares of that class or series then outstanding) by resolution of the Board
of
Directors, and the stated value thereof if different from the par value
thereof;
(b) whether the
shares of such class or series shall have voting rights, in addition to any
voting rights provided by law, and, if so, the terms of such voting
rights;
(c) the
dividends, if any, payable on such class or series, whether any such dividends
shall be cumulative, and, if so, from what dates, the conditions and dates
upon
which such dividends shall be payable, and the preference or relation which
such
dividends shall bear to the dividends payable on any shares of stock of any
other class or any other series of the same class;
(d) whether the
shares of such class or series shall be subject to redemption by the
Corporation, and, if so, the times, prices and other conditions of such
redemption;
(e) the amount
or amounts payable upon shares of such series upon, and the rights of the
holders of such class or series in, the voluntary or involuntary liquidation,
dissolution or winding up, or upon any distribution of the assets, of the
Corporation;
(f) whether the
shares of such class or series shall be subject to the operation of a retirement
or sinking fund and, if so, the extent to and manner in which any such
retirement or sinking fund shall be applied to the purchase or redemption
of the
shares of such class or series for retirement or other corporate purposes
and
the terms and provisions relative to the operation thereof;
(g) whether the
shares of such class or series shall be convertible into, or exchangeable
for,
shares of stock of any other class or any other series of the same class
or any
other securities and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same, and
any
other terms and conditions of conversion or exchange;
(h) the
limitations and restrictions, if any, to be effective while any shares of
such
class or series are outstanding upon the payment of dividends or the making
of
other distributions on, and upon the purchase, redemption or other acquisition
by the Corporation
4
of
the
Common Stock or shares of stock of any other class or any other series of
the
same class;
(i) the
conditions or restrictions, if any, upon the creation of indebtedness of
the
Corporation or upon the issue of any additional stock, including additional
shares of such class or series or of any other series of the same class or
of
any other class;
(j) the ranking
(be it pari passu, junior or senior) of each class or series vis-a-vis any
other
class or series of any class of Preferred Stock as to the payment of dividends,
the distribution of assets and all other matters; and
(k) any other
powers, preferences and relative, participating, optional and other special
rights, and any qualifications, limitations and restrictions thereof, insofar
as
they are not inconsistent with the provisions of this Restated Certificate
of
Incorporation, to the full extent permitted in accordance with the laws of
the
State of Delaware.
The powers, preferences and relative, participating, optional and other special
rights of each class or series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any
and
all other series at any time outstanding.
6.
By-Laws. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the By-Laws of the Corporation.
7.
Liability of Directors. A member of the Corporation’s Board of
Directors shall not be personally liable to the Corporation or its shareholders
for monetary damages for a breach of fiduciary duty as a director, except
for
liability of the director (i) for any breach of the director’s duty of loyalty
to the Corporation or its shareholders, (ii) for acts or omissions not in
good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, relating
to the
payment of unlawful dividends or unlawful stock repurchases or redemptions,
or
(iv) for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law is amended after
approval by the shareholders of this Paragraph to authorize corporate action
further eliminating or limiting the personal liability of directors, then
the
liability of a director of the Corporation shall be eliminated or limited
to the
fullest extent permitted by the Delaware General Corporation Law, as so
amended. Any repeal or modification of this Paragraph by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal
or modification.
8.
Indemnification.
(a) Right to
Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action,
suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), by reason of the fact that he or she is or was a
director or officer of the Corporation or is or was serving at the request
of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service
with respect to an employee benefit plan (hereinafter an “indemnitee”), whether
the basis of such proceeding is alleged action in an official capacity as
a
director, officer, employee or agent
5
or
in any
other capacity while serving as a director, officer, employee or agent, shall
be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or
may
hereafter be amended (but, in the case of any such amendment, only to the
extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys’ fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who
has
ceased to be a director, officer, employee or agent and
shall
inure to the benefit of the indemnitee’s heirs, executors and administrators;
provided, however, that, except as provided in subparagraph (b) hereof with
respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The
right to indemnification conferred in this Paragraph shall be a contract
right
and shall include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition
(hereinafter an “advancement of expenses”), provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not
in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall
be
made only upon delivery to the Corporation of an undertaking (hereinafter
an
“undertaking”), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision
from
which there is no further right to appeal (hereinafter a “final adjudication”)
that such indemnitee is not entitled to be indemnified for such expenses
under
this Paragraph or otherwise.
(b) Right of
Indemnitee to Bring Suit. If a claim under subparagraph (a) of
this Paragraph is not paid in full by the Corporation within sixty days after
a
written claim has been received by the Corporation, except in the case of
a
claim for an advancement of expenses, in which case the applicable period
shall
be twenty days, the indemnitee may at any time thereafter bring suit against
the
Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation
to
recover an advancement of expenses pursuant to the terms of an undertaking,
the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by
the
indemnitee to enforce a right to an advancement of expenses) it shall be
a
defense that, and (ii) in any suit by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking the Corporation shall
be
entitled to recover such expenses upon final adjudication that, the indemnitee
has not met the applicable standard of conduct set forth in the Delaware
General
Corporation Law. Neither the failure of the Corporation (including its Board
of
Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such suit that indemnification
of the
indemnitee is proper in the circumstance because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board
of
Directors, independent legal counsel, or its shareholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption
that
the indemnitee has not
6
met
the
applicable standard of conduct or, in the case of such a suit brought by
the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Paragraph or otherwise shall be on the
Corporation.
(c) Non-Exclusivity
of Rights. The rights of indemnification and to the advancement
of expenses conferred in this Paragraph shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, this
Restated Certificate of Incorporation, by-law, agreement, vote of shareholders
or disinterested directors or otherwise.
(d) Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and
any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
(e) Indemnification
of Employees and Agents of the Corporation. The Corporation may,
to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and to the advancement of expenses to any employee
or
agent of the Corporation to the fullest extent of the provisions of this
Paragraph with respect to the indemnification and advancement of expenses
of
directors and officers of the Corporation.
IN
WITNESS WHEREOF, the undersigned has executed this Restated Certificate of
Incorporation as of the 11th day of October, 2006.