Exhibit
3.1
RESTATED
CERTIFICATE OF INCORPORATION
of
CONSTELLATION
BRANDS, INC.
Duly
Adopted in Accordance With Sections 245 and 242
of
the Delaware General Corporation Law
This
is a
Restated Certificate of Incorporation which amends and restates the Restated
Certificate of Incorporation of Constellation Brands, Inc., as previously
amended.
FIRST. (a) The
present name of
the corporation is Constellation Brands, Inc. (the “Corporation”).
(b) The
name under which
the Corporation was originally incorporated was Canandaigua Wine Company, Inc.;
and the date of filing of the original certificate of incorporation with the
Secretary of State of the State of Delaware was December 4, 1972.
SECOND.
The
amendment and the
restatement of the certificate of incorporation herein certified have been
duly
adopted by the stockholders in accordance with the provisions of Section 242
and
245 of the Delaware General Corporation Law.
THIRD.
The
provisions of the
certificate of incorporation of the Corporation as heretofore restated, amended
and/or supplemented, are hereby amended and restated and integrated into a
single instrument which shall read in its entirety as follows:
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 19801. 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
Delaware General Corporation Law.
4. Capitalization;
General Authorization. The total number of shares of stock which
the Corporation shall have authority to issue is Three Hundred Sixty-One Million
(361,000,000) consisting of:
(a) Class
A
Common. Three Hundred Fifteen Million (315,000,000) 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”);
(c) Class
1
Common. Fifteen Million (15,000,000) shares designated as Class 1
Common Stock, having a par value of One Cent ($.01) per share (the “Class 1
Common”); and
(d) Preferred
Stock. One Million (1,000,000) shares designated as Preferred Stock,
having a par value of One Cent ($.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,
Class B Common and Class 1 Common. The Class A Common, Class B Common and
Class 1 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, Class B Common and Class 1
Common shall have the
following
rights:
(i) The
holders of Class
A Common, Class B Common and Class 1 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. The number of authorized shares of Class 1 Common may be
increased or decreased (but not below the number of shares thereof then
outstanding) by holders of a majority of the voting power of the stock entitled
to vote, voting as a single class, provided that the holders of Class A Common
shall have one (1) vote per share, the holders of Class B Common shall have
ten
(10) votes per share and the holders of Class 1 Common shall have one (1) vote
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 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) The
holders of Class
1 Common shall not be entitled to vote on any matter except as set forth in
Section 5(i)(a)(i) and the second sentence of Section 5(i)(a)(ii).
(vi) There
shall be no
cumulative voting of any shares of Class A Common, Class B Common or
Class
1
Common.
(b) Dividends.
Subject to the rights of the Class A Common, Class B Common and Class 1 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 any of the Class A Common,
Class B Common or Class 1 Common, on all of the Class A Common, Class B Common
and Class 1 Common, or on any combination of the Class A Common, Class B Common
and Class 1 Common.
(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 the holders of Class A Common, Class
B
Common and Class 1 Common, but not only to holders of Class B Common, Class
1
Common, both Class B Common and Class 1 Common, both Class A Common and Class
B
Common or both Class A Common and Class 1 Common. A cash dividend in any amount
may be paid on the Class A Common if no cash dividend is to be paid on Class
B
Common or Class 1 Common. If a cash dividend is to be paid on the Class B Common
and Class 1 Common, (i) the cash dividend paid per share shall be the same
for
each share of Class B Common and Class 1 Common, and (ii) 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 and Class
1
Common by at least ten percent (10%) (rounded up, if necessary, to the nearest
one-hundredth of a cent).
(d) Convertibility.
(i) 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 (which may be by electronic
delivery or otherwise if such shares are uncertificated) such holder’s shares of
Class B
Common
to
be converted, duly endorsed or with duly executed stock powers, 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 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.
(ii) Each
holder of record
of a share of Class 1 Common may, without cost to such holder and at such
holder’s option, convert shares of Class 1 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 1 Common surrendered for conversion; provided,
a
holder of shares of Class 1 Common may only convert such shares if such holder
immediately sells the shares of Class A Common received upon such conversion
in
either a transaction effected through the facilities of the stock exchange
or
other trading market on which the Class A Stock is then actively traded (a
“Market Transaction”) or a bona fide arm’s-length transaction with an unrelated
party (a “Qualifying Private Transaction”). Any such conversion may be effected
by any holder of Class 1 Common by (x) surrendering (by electronic delivery
or otherwise) at the office of the transfer agent for the Class A Common (the
“Conversion Agent”) such holder’s shares of Class 1 Common to be converted, (y)
delivering to the Conversion Agent a notice or other instructions (which may
be
written or given electronically through any automated transaction system
maintained by the Conversion Agent) that such holder elects to convert all
or a
specified number of such shares of Class 1 Common, and (z) delivering to the
Conversion Agent either (1) instructions to sell the shares of Class A Common
issuable upon such conversion on behalf of such holder (which instructions
may
be given in accordance with any account agreement in place between such holder
and the Conversion Agent), or (2) a certificate stating that such holder has
sold the shares of Class A Common issuable upon such conversion in a Market
Transaction or Qualifying Private Transaction, together with a stock power
or
other transfer instructions identifying the person or persons in whose name
the
shares of Class A Common issuable upon such conversion are to be
issued. Promptly thereafter, the Corporation shall issue and deliver
the number of shares of Class A Common to which such holder shall be entitled
as
aforesaid in accordance with the instructions to sell or transfer instructions
delivered to the Conversion Agent. Such conversion shall be made as of the
close
of business on the date of surrender and delivery to the Conversion Agent of
the
shares of Class 1 Common and all other materials required to be delivered to
the
Conversion Agent, 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.
(iii) 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 and Class 1 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 shares of Class B Common or Class 1 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, Class B Common and Class 1
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 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 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 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 6th day of December, 2007.
| /s/
Robert Sands |
|
Name:
|
Robert
Sands
|
|
Title:
|
President
and Chief Executive Officer
|