S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on February 13, 2008
As
filed
with the Securities and Exchange Commission on February 13,
2008
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 | |
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(State
or
other jurisdiction
of
incorporation or organization)
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(I.R.S.
Employer
Identification No.)
|
|
|
|
||
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370
Woodcliff Drive, Suite 300,
Fairport,
New York
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14450
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(Address
of
Principal Executive Offices)
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(Zip
Code)
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CONSTELLATION
BRANDS, INC. LONG-TERM STOCK INCENTIVE PLAN,
AMENDED
AND RESTATED AS OF DECEMBER
6, 2007
(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
1 Common
Stock,
par value
$.01
per share
|
365,750
|
$22.27
|
$8,145,252.50
|
$320.11
|
||||
|
212,500
|
$24.13
|
$5,127,625.00
|
$201.52
|
|||||
|
112,907
|
$22.08
|
$2,492,986.56
|
$97.97
|
|||||
|
4,661
|
$25.03
|
$116,664.83
|
$4.58
|
|||||
|
102,200
|
$24.62
|
$2,516,164.00
|
$98.89
|
|||||
|
1,015,500
|
$23.48
|
$23,843,940.00
|
$937.07
|
|||||
|
13,186,482
|
$16.1687
(3)
|
$213,208,271.51
(3)
|
$8,379.09
|
|||||
|
|
||||||||
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Total
|
15,000,000
|
$255,450,904.40
|
$10,039.22
|
-
2 -
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(1)
|
Pursuant
to Rule 416(b) under the Securities Act of 1933, this registration
statement covers such additional shares of Class 1 Common Stock
as may be
issuable pursuant to anti-dilution provisions of the
Plan.
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(2)
|
Inserted
solely for the purpose of calculating the registration fee pursuant
to
Rule 457(h)(1).
|
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(3)
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As
instructed by Rule 457(h)(1), based upon the book value of the
Class 1
Common Stock as of the most recent practicable date prior to
filing.
|
Part
II
INFORMATION
REQUIRED IN THE
REGISTRATION
STATEMENT
Item
3. Incorporation of
Documents by Reference.
The
following documents which have been
filed by Constellation Brands, Inc. (the “Registrant”) with the Securities and
Exchange Commission are incorporated herein by reference:
|
·
|
Annual
Report on Form 10-K for the fiscal year ended February 28, 2007,
filed on
April 30, 2007;
|
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·
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Quarterly
Report on Form 10-Q for the fiscal quarter ended May 31, 2007,
filed on
July 10, 2007;
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·
|
Quarterly
Report on Form 10-Q for the fiscal quarter ended August 31, 2007,
filed on
October 10, 2007;
|
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·
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Quarterly
Report on Form 10-Q for the fiscal quarter ended November 30, 2007,
filed
on January 9, 2008;
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|
·
|
Current
Reports on Form 8-K filed on April 9, 2007 (two filings; in each
case,
Item 5.02 only), April 23, 2007, May 2, 2007, May 7, 2007 (Item
1.01
only), May 11, 2007 (Item 5.02 only), May 14, 2007, June 28, 2007
(of two
filed that date, the report regarding appointment of new chief
executive
officer and only Item 5.02 thereof), July 31, 2007, October 4,
2007 (of
two filed that date, the report regarding the appointment of a
new
director and only Item 5.02 thereof and Exhibit 99.1 thereto),
November
14, 2007 (two filings; Item 1.01 and Exhibit 2.01 thereto and Item
2.05
only), November 20, 2007, December 4, 2007, December 11, 2007,
December
12, 2007, December 18, 2007 (Item 8.01 only), January 8, 2008 (two
filings; the entire report regarding the extension of the exchange
offer
and only Item 2.05 of the report regarding costs of exit or disposal
activities); and
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·
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All
documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14
and 15(d) of the Securities Exchange Act of 1934 subsequent to
the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have
been
sold or which deregisters all securities remaining unsold shall
be deemed
to be incorporated by reference herein and to be a part hereof
from the
date of the filing of such
documents.
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Item
4. Description of
Securities.
This
Registration Statement registers the issuance by the Registrant of up to
15,000,000 shares of Class 1 Common Stock, $0.01 par value per share (“Class 1
Stock”), pursuant to the Registrant’s Long-Term Stock Incentive Plan,
amended and restated as of December 6, 2007 (the “Plan”). The
material terms of the Class 1 Stock are set forth below.
- 3
-
Voting
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 the Registrant’s Class A
Stock, $.01 par value per share (“Class A Stock”), and Class B Stock, $.01 par
value per share (“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).
Dividends
and
Distributions
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
Registrant, 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.
Conversion
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.
Other
Holders
of Class 1 Stock will not have
preemptive rights to purchase shares of the Registrant’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.
Item
5. Interest 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 Registrant’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
Registrant.
Certain
other attorneys of Nixon Peabody LLP may also own shares of the Class A Stock
into which the Class 1 Stock is convertible. A copy of the opinion of
Nixon Peabody LLP is attached hereto as Exhibit 5.
-
4 -
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 or redemption in violation of Delaware corporate law or
obtained an improper personal benefit. The Restated Certificate of
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
or other entities 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;
authorizes the Registrant to advance expenses upon receipt of an undertaking
by
the person seeking indemnity to repay such amount if it is ultimately determined
that such person is not entitled to indemnification; and authorizes the
Registrant to buy directors’ and officers’ liability insurance. Such
indemnification is not exclusive of any other right to which those seeking
indemnification 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 current and
former
directors and officers of the Registrant and also to persons who are or were
serving at the request of the Registrant as directors, officers, employees
or
agents of other entities (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.
From
time to time the Registrant has
and will enter into agreements with underwriters for securities offerings
which
provide for indemnification of directors, officers and controlling persons
of
the Registrant for losses, claims, damages, or liabilities resulting from
an
untrue statement made in a registration statement in reliance upon and in
conformity with written information furnished to the Registrant by or on
behalf
of such underwriters for inclusion in the registration statement.
The
Registrant maintains directors’ and
officers’ liability insurance and a corporate reimbursement policy insuring
directors and officers against loss arising from claims made arising out
of the
performance of their duties.
Item
7. Exemption from
Registration Claimed.
Not
applicable.
Item
8. Exhibits.
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Exhibit
No.
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Description
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Location
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||||
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5
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Opinion
of Nixon Peabody LLP
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Filed
herewith
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10.1
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Constellation
Brands, Inc. Long-Term Stock Incentive
Plan,
amended and restated as of December 6, 2007
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Incorporated
by reference
to
the Registrant’s
Current
Report
on Form 8-K filed
on
December 12, 2007
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23.1
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Consent
of Nixon Peabody LLP
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Contained
in opinion filed
as
Exhibit 5 to this
Registration
Statement
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23.2
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Consent
of KPMG LLP, independent registered public
accounting
firm
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Filed
herewith
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24
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Power
of Attorney
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Included
on the signature
page
to this Registration
Statement
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Item
9.
Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act
of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required
to
be included in a post-effective amendment by those paragraphs is contained
in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 6 of the Registration Statement,
or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will
be governed by the final adjudication of such issue.
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 13th day of February,
2008.
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CONSTELLATION
BRANDS, INC.
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By:
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/s/
Robert Sands
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Robert
Sands
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President
and Chief Executive Officer
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KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Richard Sands and Robert Sands, and each of them,
his
true and lawful attorney-in-fact and agent, with full power of substitution
and
resubstitution for him or her and in his or her 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 or she 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 date
indicated.
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/s/
Robert Sands
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President
and Chief Executive Officer
and
Director (principal executive officer)
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February 13,
2008
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Robert
Sands
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|||
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/s/
Robert Ryder
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Executive
Vice President and Chief
Financial
Officer (principal financial
officer
and principal accounting officer)
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February 13,
2008
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Robert
Ryder
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/s/
Barry A. Fromberg
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Director
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February 13,
2008
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Barry
A. Fromberg
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/s/
Jeananne K. Hauswald
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Director
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February 13,
2008
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Jeananne
K. Hauswald
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/s/
James A. Locke III
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Director
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February 13,
2008
|
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James
A. Locke III
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|||
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/s/
Thomas C. McDermott
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Director
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February 13,
2008
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Thomas
C. McDermott
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|||
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/s/
Richard Sands
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Director
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February 13,
2008
|
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Richard
Sands
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/s/
Paul L. Smith
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Director
|
February 13,
2008
|
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Paul
L. Smith
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|||
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/s/
Peter H. Soderberg
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Director
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February 13,
2008
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Peter
H. Soderberg
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|||
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/s/
Mark Zupan
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Director
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February 13,
2008
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Mark
Zupan
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EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
Location
|
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|
5
|
Opinion
of Nixon Peabody LLP
|
Filed
herewith
|
||
|
10.1
|
Constellation
Brands, Inc. Long-Term Stock Incentive
Plan,
amended and
restated as of December 6, 2007
|
Incorporated
by
reference
to
the Registrant's
Current
Report
on Form 8-K
filed
on
December 12,
2007
|
||
|
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 registered public
accounting
firm
|
Filed
herewith
|
||
|
24
|
Power
of Attorney
|
Included
on the signature
page
to this Registration
Statement
|
||