8-K: Current report filing
Published on December 12, 2007
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of
Report (Date of earliest event reported) December 6,
2007
|
CONSTELLATION
BRANDS, INC.
|
|
(Exact
name of registrant as specified in its
charter)
|
|
Delaware
|
001-08495
|
16-0716709
|
||
|
(State
or other jurisdiction
of
incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
370
Woodcliff Drive, Suite 300, Fairport,
NY 14450
(Address
of Principal Executive
Offices) (Zip
Code)
|
Registrant’s
telephone number, including area code
|
(585)
218-3600
|
|
Not
Applicable
|
|
(Former
name or former address, if changed since last
report)
|
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
|
|
Item
3.03.
|
Material
Modification to Rights of Security
Holders.
|
To
the
extent that Item 3.03 of Form 8-K may be applicable, the information set forth
under Item 5.03 below is incorporated herein by reference.
|
Item
5.02.
|
Departure
of Directors or Certain Officers; Election of Directors; Appointment
of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
On
December 6, 2007, the stockholders of Constellation Brands, Inc. (the “Company”)
approved an amendment and restatement of the Company’s Long-Term Stock Incentive
Plan (the “Plan”). The amendments effected by the amendment and
restatement of the Plan (the “Plan Amendments”) were implemented primarily to
address potentially adverse tax consequences to the holders of certain options
to purchase Class A Common Stock of the Company, $.01 par value per share
(“Class A Stock”), who are subject to U.S. taxation.
Under
a
possible interpretation of new regulations adopted by the Internal Revenue
Service under Section 409A of the Internal Revenue Code, certain
characteristics of the Class A Stock could cause stock options granted with
respect to Class A Stock on or after April 10, 2007 to be subject to the adverse
tax treatment imposed by Section 409A. In order to enable the Company
to continue to use stock options in its compensation program while maintaining
the U.S. tax treatment that applied to options prior to the new regulations,
the
Company has created a new class of common stock, Class 1 Common Stock, $.01
par
value per share (“Class 1 Stock”), that is designed to satisfy the criteria
specified in the new tax regulations and has amended the Plan to permit awards
under the Plan to be granted with respect to the new Class 1 Stock.
The
Plan
Amendments, which were approved by the Company’s Board of Directors prior to
submission to a vote of the stockholders, (i) permit awards to be granted
under the Plan with respect to the Company’s newly created Class 1 Stock
(described in detail under Item 5.03 below), (ii) clarify that an amendment
to an outstanding stock option to purchase shares of Class A Stock so that
it becomes a stock option to purchase shares of Class 1 Stock will not
constitute a grant of a new stock option for purposes of the provision in the
Plan prohibiting the grant of stock options with exercise prices less than
the
fair market value of the underlying shares on the date of grant, and
(iii) make certain other ministerial or conforming amendments to the
provisions of the Plan. The Plan Amendments did not affect the
underlying economics of the Company’s stock option program and did not increase
the aggregate number of shares available for granting awards under the
Plan. The Plan, as amended and restated, is filed herewith as Exhibit
99.1 and is incorporated herein by reference.
The
Company intends to amend the outstanding stock options granted by the Company
on
or after April 10, 2007 to individuals subject to U.S. taxation so that
they relate to Class 1 Stock instead of Class A Stock. These
amendments are intended to prevent such stock options from becoming subject
to
the adverse tax treatment under Section 409A of the Internal Revenue Code that
might otherwise apply as a result of the new Internal Revenue Service
regulations. As participants in the Plan, the directors and executive
officers of the Company, including the Company’s principal officers and certain
of its named executive officers, hold options that are expected to be
amended. The form of the agreement that is intended to be used to
amend these outstanding stock options is filed herewith as Exhibit 99.2 and
is
incorporated herein by reference.
The
Company’s practice is to document stock options granted under the Plan by
providing to the recipient of the stock option a Terms and Conditions Memorandum
that describes the terms of the stock option. The forms of the Terms
and Conditions Memorandums that are intended to be
used
with
respect to stock options to purchase shares of Class 1 Stock are attached hereto
as Exhibits 99.3, 99.4 and 99.5 and are incorporated herein by
reference.
|
Item
5.03.
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
|
Restated
Certificate of Incorporation
On
December 6, 2007, the Company filed with the Secretary of State of the State
of
Delaware a Restated Certificate of Incorporation (the “Restated Certificate”)
which created a new class of common stock consisting of 15,000,000 shares of
Class 1 Common Stock. The Restated Certificate, which was approved by
the Company’s stockholders on December 6, 2007, became effective upon
filing. The Restated Certificate is filed herewith as Exhibit 3.1 and
is incorporated herein by reference.
Prior
to
effectiveness of the Restated Certificate, the Company was authorized to issue
an aggregate of 346,000,000 shares, consisting of 315,000,000 shares of
Class A Stock; 30,000,000 shares of Class B Common Stock, $.01 par value
per share (“Class B Stock”); and 1,000,000 shares of Preferred Stock, $.01 par
value per share. Under the Restated Certificate, the Company has also
authorized 15,000,000 shares of Class 1 Stock, thereby increasing the Company’s
total authorized number of shares to 361,000,000 shares and its total authorized
number of shares of common stock to 360,000,000 shares.
The
shares of Class 1 Stock do not generally have voting rights. Holders
of Class 1 Stock will not be entitled to vote except that such holders will
be
entitled to vote as a separate class on matters with respect to which a separate
class vote of holders of Class 1 Stock is required by law and will be entitled
to vote with respect to any increase or decrease in the number of shares of
Class 1 Stock as a single class with the holders of Class A Stock and Class
B
Stock (in which case the holders of Class 1 Stock and Class A Stock will be
entitled to one (1) vote per share and the holders of Class B Stock will be
entitled to ten (10) votes per share).
The
shares of Class 1 Stock will not
have any preference as to dividends, but may participate in any dividend when
and if declared by the Company’s Board of Directors. Cash dividends
may be declared and paid with respect to Class A Stock without
corresponding cash dividends being declared and paid with respect to Class
1
Stock, and if cash dividends are declared and paid on Class 1 Stock then cash
dividends must be declared and paid on Class A Stock in an amount that is
at least ten percent greater than the cash dividends declared and paid on Class
1 Stock. The cash dividends declared and paid on Class B Stock and
Class 1 Stock must always be the same. Upon liquidation of the
Company, holders of Class 1 Stock will share ratably on a per share basis in
net
assets to be distributed with respect to common stock together with holders
of
Class A Stock and Class B Stock.
Each
holder of a share of Class 1 Stock may, without cost to such holder and at
the
holder’s option, convert shares of Class 1 Stock into shares of Class A
Stock on a one-for-one basis; however, such conversion is permitted only if
the
holder immediately sells the Class A Stock acquired upon conversion in a
market transaction or to an unrelated party in a bona fide private
sale. Holders of Class 1 Stock will not have preemptive rights to
purchase shares of the Company’s capital stock. Shares of Class 1
Stock are not redeemable, and there will be no sinking fund provisions for
shares of Class 1 Stock.
While
the
total number of authorized shares and total number of authorized shares of
common stock have been increased by the Restated Certificate, the Company’s
ability to actually issue more shares has not been increased. Because
shares of Class 1 Stock are convertible into
shares
of
Class A Stock, for each share of Class 1 Stock issued the Company must
reserve one share of Class A Stock for issuance upon the conversion of the
share of Class 1 Stock. This requirement effectively reduces the
number of shares of Class A Stock that the Company may issue by the number
of shares of Class 1 Stock that the Company issues. Because the number of
authorized shares of Class A Stock was not increased by the Restated
Certificate, the total number of shares that the Company is able to issue has
not been increased.
In
addition to creating the Class 1
Common Stock, the Restated Certificate also makes minor changes to the
conversion mechanics relating to the Class B Stock to facilitate the Company’s
compliance with New York Stock Exchange Rules that require all securities listed
on the New York Stock Exchange to be eligible for participation in the direct
registration system of the Depository Trust and Clearing Corporation by January
1, 2008 (the “Direct Registration Rules”).
Amended
and Restated
By-Laws
On
December 6, 2007, an amendment and
restatement of the Company’s By-Laws became effective. The amendments
effected by the Amended and Restated By-Laws address the existence of the Class
1 Stock, facilitate the Company’s compliance with the Direct Registration Rules,
clarify the responsibilities of certain of the Company’s officers, and
effect other conforming and ministerial changes. The By-Laws of the
Company as Amended and Restated as of December 6, 2007 are filed herewith
as Exhibit 3.2 and are incorporated herein by reference.
|
Item
9.01.
|
Financial
Statements and Exhibits.
|
|
(a)
|
Financial statements of businesses acquired. |
| Not applicable. | |
|
(b)
|
Pro forma financial information. |
| Not applicable. | |
|
(c)
|
Shell company transactions. |
| Not applicable. | |
|
(d)
|
Exhibits. |
| The following exhibits are filed as part of this Form 8-K: |
|
Exhibit
No.
|
Description
|
|
|
3.1
|
Restated
Certificate of Incorporation of Constellation Brands,
Inc.
|
|
|
3.2
|
Amended
and Restated By-Laws of Constellation Brands, Inc.
|
|
|
99.1
|
Constellation
Brands, Inc. Long-Term Stock Incentive Plan Amended and Restated
as of
December 6, 2007
|
|
|
99.2
|
Form
of Stock Option Amendment
|
|
|
99.3
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants before July 26,
2007)
|
|
99.4
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants on or after July 26, 2007)
|
|
|
99.5
|
Form
of Terms and Conditions Memorandum for Directors with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| Date: December 12, 2007 | CONSTELLATION BRANDS, INC. | ||
| By: | /s/ Robert Ryder | ||
| Name: | Robert Ryder | ||
| Title: |
Executive
Vice President and
Chief
Financial Officer
|
||
INDEX
TO EXHIBITS
|
Exhibit
No.
|
Description
|
|
(1)
|
UNDERWRITING
AGREEMENT
|
|
|
Not
Applicable.
|
||
|
(2)
|
PLAN
OF ACQUISITION, REORGANIZATION, ARRANGEMENT, LIQUIDATION OR
SUCCESSION
|
|
|
Not
Applicable.
|
||
|
(3)
|
ARTICLES
OF INCORPORATION AND BYLAWS
|
|
|
(3.1)
|
Restated
Certificate of Incorporation of Constellation Brands,
Inc.
|
|
|
(3.2)
|
Amended
and Restated By-Laws of Constellation Brands, Inc.
|
|
|
(4)
|
INSTRUMENTS
DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES
|
|
|
Not
Applicable.
|
||
|
(7)
|
CORRESPONDENCE
FROM AN INDEPENDENT ACCOUNTANT REGARDING NON-RELIANCE ON A PREVIOUSLY
ISSUED AUDIT REPORT OR COMPLETED INTERIM REVIEW
|
|
|
Not
Applicable.
|
||
|
(14)
|
CODE
OF ETHICS
|
|
|
Not
Applicable.
|
||
|
(16)
|
LETTER
RE CHANGE IN CERTIFYING ACCOUNTANT
|
|
|
Not
Applicable.
|
||
|
(17)
|
CORRESPONDENCE
ON DEPARTURE OF DIRECTOR
|
|
|
Not
Applicable.
|
||
|
(20)
|
OTHER
DOCUMENTS OR STATEMENTS TO SECURITY HOLDERS
|
|
|
Not
Applicable.
|
||
|
(23)
|
CONSENTS
OF EXPERTS AND COUNSEL
|
|
|
Not
Applicable.
|
||
|
(24)
|
POWER
OF ATTORNEY
|
|
|
Not
Applicable.
|
||
|
(99)
|
ADDITIONAL
EXHIBITS
|
|
|
(99.1)
|
Constellation
Brands, Inc. Long-Term Stock Incentive Plan Amended and Restated
as of
December 6, 2007
|
|
|
(99.2)
|
Form
of Stock Option Amendment
|
|
|
(99.3)
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants before July 26, 2007)
|
|
|
(99.4)
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants on or after July 26, 2007)
|
|
|
(99.5)
|
Form
of Terms and Conditions Memorandum for Directors with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan
|
|
|
(100)
|
XBRL-RELATED
DOCUMENTS
|
|
|
Not
Applicable.
|