As filed with the Securities and Exchange Commission on November 22, 1994.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CANANDAIGUA WINE COMPANY, INC.
(Exact name of Registrant as specified in its charter)
Delaware 16-0716709
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
116 Buffalo Street
Canandaigua, New York 14424
(716) 394-7900
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Canandaigua Wine Company, Inc. Stock Option and
Stock Appreciation Right Plan
(Full title of Plan)
Robert Sands,
Executive Vice President and General Counsel
Canandaigua Wine Company, Inc.
116 Buffalo Street
Canandaigua, New York 14424
(716) 394-7900
(Name, address, including zip code, and telephone number
including area code, of agent for service)
<TABLE>
Calculation of Registration Fee
<S> <C> <C> <C> <C>
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate offering registration
per share (1) price fee
__________________ ____________ ________________ _________________ ____________
Class A Common 2,963,100 $34.00 $88,974,487.95 $30,680.86
</TABLE>
(1) As instructed by Rule 457(h)(1), estimated in accordance with Rule
457(c), as of November 16, 1994, solely for the purpose of calculating
the registration fee.
Pursuant to Rule 416, there are also being registered such additional
shares of Class A Common Stock as may become issuable pursuant to
anti-dilution provisions of the Plan.
PAGE
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents of the Registrant previously filed
with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended August 31, 1993;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarterly periods ended November 30, 1993, February 28,
1994 and May 31, 1994;
(c) The Registrant's Current Report on Form 8-K dated
September 15, 1993; Form 8-K dated October 15, 1993, as
amended by Form 8-K/A, Form 8-K/A-2, and Form 8-K/A-3;
Form 8-K dated June 23, 1994; Form 8-K dated August 5,
1994, as amended by Form 8-K/A and Form 8-K/A-2; Form
8-K dated October 21, 1994 and Form 8-K dated November
7, 1994;
(d) The Registrant's Report of Securities Quoted on NASDAQ
Interdealer Quotation System on Form 10-C dated October
12, 1993; Report on Form 10-C dated November 23, 1993
(pertaining to the Registrant's Class A Common Stock,
par value $.01 per share); and Report on Form 10-C dated
November 23, 1993 (pertaining to the Registrant's 7%
Convertible Subordinated Debentures due 2011); and
(e) The description of the Registrant's Class A Common
Stock, par value $.01 per share, contained in Item 1 of
the Registrant's Registration of Certain Classes of
Securities Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934 on Form 8-A dated April
28, 1992 filed with the Securities and Exchange
Commission.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), after the date of this
Registration Statement (and prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold) shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the
date of filing of such documents.
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests 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 Harter, Secrest & Emery, which firm has issued an opinion
regarding the legality of the securities offered by the
Registration Statement. A copy of the opinion of Harter, Secrest
& Emery is attached hereto as Exhibit 5.1.
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 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
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
and action the right to be so indemnified; and authorizes the
Registrant to buy directors' and officers' liability insurance.
Such indemnification is not exclusive of any other right to which
those indemnified 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
directors, officers and employees of the Registrant and also to
persons who are serving at the request of the Registrant as
directors, officers or employees of other corporations (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.
The Registrant maintains a directors' and officers' liability
insurance and corporate reimbursement policy insuring directors
and officers against loss arising from claims made arising out of
the performance of their duties.
Under the terms of an Underwriting Agreement between the
Registrant, certain Selling Shareholders and CS First Boston
Corporation, Merrill Lynch, Pierce, Fenner & Smith, Incorporated,
William Blair & Company and Chase Securities, Inc., acting on
behalf of themselves and as Representatives of the Several
Underwriters, and under the terms of a Subscription Agreement
between the Registrant, certain Selling Shareholders and CS First
Boston Limited, Merrill Lynch International Limited and William
Blair & Company (the "Managers"), each dated November 10, 1994,
the Underwriters and the Managers have agreed to indemnify, under
certain conditions, the Registrant, its directors, certain of its
officers and persons who control the Registrant within the meaning
of the Securities Act of 1933, as amended (the "Securities Act")
against certain liabilities. (The form of the Underwriting
Agreement has been filed with the Securities and Exchange
Commission as Exhibit 1 to the Registrant's Registration Statement
on Form S-3 (Amendment No. 2) (Registration No. 33-55997)).
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibits filed as part of this Registration Statement are
listed on the Index to Exhibits located at pages 6-7 hereof and
incorporated herein by reference.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes (subject to
the proviso contained in Item 512(a) of Regulation S-K):
(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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment hereto)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, 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 undertakes that, for purposes
of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, 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
Securities 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 Securities Act and will
be governed by the final adjudication of such issue.
<PAGE>
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 of 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 City
of Canandaigua, State of New York, on this 22nd day of November,
1994.
CANANDAIGUA WINE COMPANY, INC.
(Registrant)
By: s/Richard Sands
Richard Sands,
President and Chief
Executive Officer
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 dates indicated.
s/Richard Sands s/Lynn K. Fetterman
Richard Sands, President, Lynn K. Fetterman,
Senior Vice President
Chief Executive Officer and Director and Chief
Financial Officer
(Principal Executive Officer) (Principal
Financial Officer and Principal
Accounting Officer)
Dated: November 22, 1994 Dated: November 22, 1994
s/James A. Locke, III s/Marvin Sands
James A. Locke, III, Marvin Sands, Chairman
of the Board
Director
Dated: November 22, 1994 Dated: November 22, 1994
s/Bertram E. Silk s/Robert Sands
Bertram E. Silk, Director Robert Sands, Director
Dated: November 22, 1994 Dated: November 22, 1994
s/Ellis Goodman s/Sir Harry Solomon
Ellis Goodman, Director Sir Harry Solomon, Director
Dated: November 22, 1994 Dated: November 22, 1994
s/George Bresler
George Bresler, Director
Dated: November 22, 1994 <PAGE>
INDEX TO EXHIBITS
(4) Instruments defining the rights of security holders,
including indentures.
4.1 Restated Certificate of Incorporation of the
Registrant (filed as Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K, for the
fiscal year ended August 31, 1993 and incorporated
herein by reference).
4.2 Amended and Restated By-Laws of the Registrant
(filed herewith as Exhibit 4.2).
4.3 Specimen of Certificate of Class A Common Stock of
the Registrant (filed as Exhibit 1.1 to the
Registrant's Registration Statement on Form 8-A,
dated April 28, 1992 and incorporated herein by
reference).
4.4 Indenture dated as of December 27, 1993 among
Canandaigua Wine Company, Inc., its Subsidiaries
and Chemical Bank (filed as Exhibit 4.1 to the
Registrants' Quarterly Report on Form 10-Q for the
fiscal quarter ended November 30, 1993 and
incorporated herein by reference).
4.5 First Supplemental Indenture dated as of August 3,
1994 among the Registrant, Canandaigua West, Inc.
and Chemical Bank (filed herewith on Exhibit 4.5).
(5) Opinion re: legality.
5.1 Opinion of Harter, Secrest & Emery (filed herewith
as Exhibit 5.1).
(15) Letter re: unaudited interim financial information.
Not applicable.
(23) Consents of experts and counsel.
23.1 Consent of Arthur Andersen LLP (filed herewith
as Exhibit 23.1).
23.2 Consent of Ernst & Young LLP (filed herewith
as Exhibit 23.2).
23.3 Consent of KPMG Peat Marwick LLP (filed
herewith as Exhibit 23.3).
23.4 Consent of Harter, Secrest & Emery (contained
in Exhibit 5.1 of this Registration
Statement).
(24) Power of Attorney.
Not applicable.
(25) Statement of eligibility of trustee.
Not applicable.
(27) Financial data schedule.
Not applicable.
(28) Information from reports furnished to state
insurance regulatory authorities.
Not applicable.
(99) Additional exhibits.
Canandaigua Wine Company, Inc. Stock Option and Stock
Appreciation Right Plan (the "Plan") (filed as Appendix
B of the Registrant's Definitive Proxy Statement dated
December 23, 1987 and incorporated herein by reference);
Amendment No. 1 to the Plan (filed as Exhibit 10.1 to
the Registrant's Annual Report on Form 10-K for the
fiscal year ended August 31, 1992 and incorporated
herein by reference); Amendment No. 2 to the Plan (filed
as Exhibit 28 to the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter ended November 30, 1992
and incorporated herein by reference); Amendment No. 3
to the Plan (filed as Exhibit 10.4 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended
August 31, 1993 and incorporated herein by reference);
Amendment No. 4 to the Plan (filed as Exhibit 10.1 to
the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended November 30, 1993 and incorporated
herein by reference); Amendment No. 5 to the Plan (filed
as Exhibit 10.1 to the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter ended February 28, 1994
and incorporated herein by reference).
Exhibit 4.2
By-Laws
Of
Canandaigua Wine Company, Inc.
Article I
Stockholders
Section 1.1 Annual Meetings. An annual meeting of stockholders shall
be held for the election of directors at such date, time and place, either
within
or without the State of Delaware, as may be designated by resolution of the
Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2 Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Board of Directors, or
by a committee of the Board of Directors which has been duly designated by
the Board of Directors, and whose powers and authority, as expressly provided
in a resolution of the Board of Directors, include the power to call such
meetings, but such special meetings may not be called by any other person or
persons.
Section 1.3 Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than fifty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation.
Section 1.4 Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting. If the adjournment
is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 1.5 Quorum. The Corporation's authorized capital stock consists
of 60,000,000 shares designated as Class A Common Stock (the "Class A
Common") and 20,000,000 shares designated as Class B Common Stock (the
"Class B Common"). At each meeting of stockholders, except as otherwise
provided by law, the Corporation's Restated Certificate of Incorporation or
these By-Laws, the holders of a majority of the outstanding aggregate voting
power of the Class A Common and the Class B Common, present in person or
by proxy, shall constitute a quorum. In the absence of a quorum, the
stockholders so present may, by majority vote of such stockholders voting
together as a single class, adjourn the meeting from time to time in the manner
provided in Section 1.4 of these By-Laws until a quorum shall attend. Shares
of its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other
corporation is held, directly or indirectly, by the Corporation, shall neither
be
entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of any corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6 Voting. Except as otherwise provided by law, Section 2.2 of
these By-Laws pertaining to the election of directors, or the Corporation's
Restated Certificate of Incorporation, all elections and questions shall be
decided by majority vote of all outstanding shares of stock entitled to vote
thereon, present in person or by proxy, voting together as a single class,
provided that the holders of the 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. Except as otherwise required by law or by the Restated Certificate of
Incorporation, the Board of Directors may require a larger vote upon any
election or question.
Section 1.7 Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the Chief Executive
Officer, or in his absence by the President or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the absence
of such designation by a chairman chosen at the meeting. The Secretary shall
act as secretary of the meeting, but in his absence the chairman of the meeting
may appoint any person to act as secretary of the meeting.
Section 1.8 Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is
coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation.
Section 1.9 Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix, in advance, a record date, which shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. If no record date is fixed: (1) the
record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; and (2) the
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
Section 1.10List of Stockholders Entitled to Vote. The Secretary shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the offices of the transfer agent. The list shall also be
produced
and kept at the time and place of the meeting during the whole time thereof
and may be inspected by any stockholder who is present. The stock ledger
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list of stockholders or the books of the Corporation, or
to
vote in person or by proxy at any meeting of stockholders.
Section 1.11Action by Consent of Stockholders. Unless otherwise
restricted by the Restated Certificate of Incorporation, any action required or
permitted to be taken at any annual or special meeting of the stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
Article II
Board Of Directors
Section 2.1 Number; Qualifications. The Board of Directors shall consist
of one or more members, the number thereof to be determined from time to
time by resolution of the Board of Directors. Directors shall be elected at the
annual meeting of stockholders and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2.2 Election; Resignation; Removal; Vacancies. At every
meeting of stockholders called for the election of directors, the holders of
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 divisible by four (4),
to the next higher whole number), and the holders of Class B Common, voting
as a class, shall be entitled to elect the remaining number of directors to be
elected at such meeting. A plurality of the votes cast shall be sufficient to
elect. 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
divisible by four (4), to the next higher whole number) and shall be entitled to
participate with the holders of the Class B Common 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 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 Class B Common shall have ten
(10) votes per share.
Section 2.3 Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine,
and if so determined notices thereof need not be given.
Section 2.4 Special Meetings. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Delaware
whenever called by the Chairman, Chief Executive Officer, the President, any
Vice-President, the Secretary, or by any two members of the Board of
Directors. At least one days' notice thereof shall be given by the person or
persons calling the meeting, either personally, by mail or by telegram.
Section 2.5 Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board, may participate in a
meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this By-Law shall constitute presence in person at such meeting.
Section 2.6 Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the whole Board shall constitute a quorum for
the transaction of business. Except in cases in which the Restated Certificate
of Incorporation or these By-Laws otherwise provide, the vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors.
Section 2.7 Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the Chief Executive
Officer, or in his absence by the President, or in their absence by a chairman
chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in his absence the chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 2.8 Informal Action by Directors. Unless otherwise restricted by
the Restated Certificate of Incorporation or these By-Laws, any action required
or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the
Board or such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
Article III
Committees
Section 3.1 Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of the
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have power or authority in
reference to amending the Restated Certificate of Incorporation of the
Corporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, or amending
these By-Laws; and, unless the resolution expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 3.2 Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these By-Laws.
Article IV
Officers
Section 4.1 Executive Officers; Election; Qualifications; Term of Office;
Resignation; Removal; Vacancies. The Board of Directors shall choose a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice Chairman of the Board from among its members. The
Board of Directors may also choose a Chief Executive Officer, one or more
Vice-Presidents, one or more Assistant Secretaries, a Treasurer and one or
more Assistant Treasurers, and may choose such other officers as it may deem
necessary, each of whom shall have such titles and duties as shall be
determined by the Board of Directors. Each such officer shall hold office until
the first meeting of the Board of Directors after the annual meeting of
stockholders next succeeding this election, and until his successor is elected
and qualified or until his earlier resignation or removal. Any officer may
resign at any time upon written notice to the Corporation. The Board of
Directors may remove any officer with or without cause at any time, but such
removal shall be without prejudice to the contractual rights of such officer, if
any, with the Corporation. Any number of offices may be held by the same
person. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled for the unexpired portion of
the term by the Board of Directors at any regular or special meeting.
Section 4.2 Chairman of the Board. The Chairman of the Board, if there
be one, shall preside at all meetings of the Board of Directors and
stockholders, and shall perform such other duties as the Board may direct.
Section 4.3 Chief Executive Officer. The Board of Directors may
designate whether the Chairman of the Board, if one shall have been chosen,
or the President shall be the Chief Executive Officer of the Corporation. If a
Chairman of the Board has not been chosen, or if one has been chosen but not
designated Chief Executive Officer, then the President shall be the Chief
Executive Officer of the Corporation. The Chief Executive Officer shall be
the principal executive officer of the Corporation and shall in general
supervise
and control all of the business and affairs of the Corporation, unless otherwise
provided by the Board of Directors. He shall preside at all meetings of the
stockholders and shall see that orders and resolutions of the Board of Directors
are carried into effect. He shall have general powers of supervision and shall
be the final arbiter of all differences among officers of the Corporation and
his
decision as to any matter affecting the Corporation shall be final and binding
as between the officers of the Corporation subject only to the Board of
Directors.
Section 4.4 President. If the Chairman of the Board has not been chosen
Chief Executive Officer or, if the Chairman of the Board has been so chosen,
in the event of his inability or refusal to act, the President shall perform the
duties of the Chief Executive Officer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Chief Executive
Officer. At all other times, the President shall have the active management of
the business of the Corporation under the general supervision of the Chief
Executive Officer. In general, he shall perform all duties incident to the
office
of President, and such other duties as the Chief Executive Officer or the Board
of Directors may from time to time prescribe.
Section 4.5 Vice-Presidents. In the absence of the President or in the
event of his inability or refusal to act, the Vice-President (or in the event
there
be more than one Vice-President, the Vice-Presidents in the order designated,
or in the absence of any designation, then in the order of their election) shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The
Vice-Presidents shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
Section 4.6 Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors
in a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or Chief Executive Officer, under whose supervision he
shall be. He shall have custody of the corporate seal of the Corporation and
he, or an Assistant Secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by his signature
or by the signature of such Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature.
Section 4.7 Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of his
inability
or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.
Section 4.8 Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the Chief Executive Officer and the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 4.9 Assistant Treasurer. The Assistant Treasurer, or if there be
more than one, the Assistant Treasurers in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability
or refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.
Article V
Stock
Section 5.1 Certificates. Every holder of stock shall be entitled to have a
certificate signed by or in the name of the Corporation by the Chairman or
Vice Chairman of the Board of Directors, if any, or the President or a
Vice-President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, of the Corporation, certifying the class
and number of shares of the Corporation owned by him. Any of or all the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent,
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 5.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of
New Certificates. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 5.3 Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the
person entitled thereto, cancel the old certificate and record the transaction
upon its books.
Section 5.4 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
Article VI
Miscellaneous
Section 6.1 Fiscal Year. The fiscal year of the Corporation shall be
September 1 to August 31, unless otherwise determined by resolution of the
Board of Directors.
Section 6.2 Seal. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved
from time to time by the Board of Directors.
Section 6.3 Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, directors, or member of a
committee of directors need be specified in any written waiver of notice.
Section 6.4 Interested Directors; Quorum. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association,
or other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present
at or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are
counted for
such purpose, if: (1) the material facts as to his relationship or interest
and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be less
than
a quorum; or (2) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved
in good faith by vote of the stockholders; or (3) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or
ratified,
by the Board of Directors, a committee thereof, or the stockholders. Common
or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
Section 6.5 Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of,
punch cards, magnetic tape, photographs, micro photographs, or any other
information storage device, provided that the records so kept can be converted
into clearly legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to inspect
the same.
Section 6.6 Amendment of By-Laws. These By-Laws may be altered or
repealed, and new By-Laws made, by the Board of Directors, but the
stockholders may make additional By-Laws and may alter and repeal any
By-Laws whether adopted by them or otherwise.
Exhibit 4.5
FIRST SUPPLEMENTAL INDENTURE (the "Supplement"),
dated as of August 3, 1994, is entered into by and
among Canandaigua Wine Company, Inc., a Delaware
corporation (the "Company"), Canandaigua West, Inc., a
New York corporation and a wholly owned subsidiary of
the Company (the "New Guarantor"), and Chemical Bank, a
New York corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY AND THE NEW GUARANTOR
WHEREAS, the Company, the Guarantors and the
Trustee have executed and delivered an Indenture, dated
as of December 27, 1993, among the Company, the
Guarantors and the Trustee (the "Indenture") providing
for the issuance by the Company of $130,000,000
aggregate principal amount of the Company's 8 3/4%
Senior Subordinated Notes due 2003 (the "Securities")
and pursuant to which the Guarantors have agreed to
guarantee, jointly and severally, the full and punctual
payment and performance when due of all Indenture
Obligations;
WHEREAS, the New Guarantor has become a Subsidiary
and pursuant to Section 1014(b) is obligated to enter
into the Supplement thereby guaranteeing the punctual
payment and performance when due of all Indenture
Obligations;
WHEREAS, pursuant to Section 901(e) of the
Indenture, the Company, the New Guarantor and the
Trustee may enter into this Supplement without the
consent of any Holder;
WHEREAS, the execution and delivery of this
Supplement have been duly authorized by a Board
Resolution of the respective Board of Directors of the
Company and the New Guarantor; and
WHEREAS, all conditions and requirements necessary
to make the Supplement valid and binding upon the
Company and the New Guarantor, and enforceable against
the Company and the New Guarantor in accordance with
its terms, have been performed and fulfilled;
NOW THEREFORE, in consideration of the above
premises, each of the parties hereto agrees, for the
benefit of the others and for the equal and
proportionate benefit of the Holders of the Securities,
as follows:
ARTICLE ONE
THE NEW GUARANTEE
Section 101. For value received, the New
Guarantor, in accordance with Article Fourteen of the
Indenture, hereby absolutely, unconditionally and
irrevocably guarantees (the "New Guarantee"), jointly
and severally among itself and the Guarantors, to the
Trustee and the Holders, as if the New Guarantor were
the principal debtor, the punctual payment and
performance when due of all Indenture Obligations
(which for purposes of the New Guarantee shall also be
deemed to include all commissions, fees, charges, costs
and other expenses (including reasonable legal fees and
disbursements of one counsel) arising out of or
incurred by the Trustee or the Holders in connection
with the enforcement of this New Guarantee). The
agreements made and obligations assumed hereunder by
the New Guarantor shall constitute, and shall be deemed
to constitute, a Guarantee under the Indenture and for
all purposes of the Indenture, and New Guarantor shall
be considered a Subsidiary for all purposes of the
Indenture as if it was originally named therein as a
Subsidiary.
Section 102. The New Guarantee shall be
automatically and unconditionally released and
discharged upon the occurrence of the events set forth
in Section 1014(c) of the Indenture.
Section 103. New Guarantor hereby waives and will
not in any manner whatsoever, claim or take the benefit
or advantage of, any rights of reimbursement, indemnity
or subrogation or any other rights against the Company
or any other Subsidiary as a result of any payment by
such Subsidiary under its Guarantee under the
Indenture.
ARTICLE TWO
MISCELLANEOUS
Section 201. Except as otherwise expressly
provided or unless the context otherwise requires, all
terms used herein which are defined in the Indenture
shall have the meanings assigned to them in the
Indenture. Except as supplemented hereby, the
Indenture (including the Guarantees incorporated
therein) and the Securities are in all respects
ratified and confirmed and all the terms and provisions
thereof shall remain in full force and effect.
Section 202. This Supplement shall be effective as
of the close of business on the date hereof.
Section 203. The recitals contained herein shall
be taken as the statements of the Company and the New
Guarantors, and the Trustee assumes no responsibility
for the correctness. The Trustee makes no
representations as to the validity or sufficiency of
this Supplement.
Section 204. This Supplement shall be governed by
and construed in accordance with the laws of the
jurisdiction which govern the Indenture and its
construction.
Section 205. This Supplement may be executed in
any number of counterparts each of which shall be an
original, but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Supplement to be duly executed and their
respective seals to be affixed hereunto and duly
attested all as of the day and year first above
written.
CANANDAIGUA WINE COMPANY,
INC.
[Corporate Seal] By:
Name:
Title:
Attest:
Assistant Secretary
CANANDAIGUA WEST, INC.
[Corporate Seal] By:
Name:
Title:
Attest:
Assistant Secretary
CHEMICAL BANK
[Corporate Seal] By:
Name:
Title:
Attest:
Assistant Secretary
Rochester
November 22, 1994
Canandaigua Wine Company, Inc.
116 Buffalo Street
Canandaigua, New York 14424
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-8, filed this date pursuant to the Securities Act of 1933,
as amended, with the Securities and Exchange Commission (the "Registration
Statement"), in respect of an aggregate of 2,963,100 authorized and unissued
shares of the Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), of Canandaigua Wine Company, Inc. (the "Corporation"),
which may be issued upon (i) the exercise of options heretofore or hereafter
granted (collectively, "Options") and (ii) the exercise or maturity of stock
appreciation rights hereafter granted (collectively, "SARs") pursuant to the
Canandaigua Wine Company, Inc. Stock Option and Stock Appreciation Right
Plan, as amended (the "Plan").
We have examined the following corporate records and proceedings of
the Corporation in connection with the preparation of this opinion: its
Certificate of Incorporation, as amended and restated to date; its By-Laws as
currently in force and effect; its minute books, containing minutes and records
of other proceedings of its stockholders, its Board of Directors and the
Compensation Committee of the Board of Directors, from the date of
incorporation to the date hereof; the Plan; the Registration Statement;
applicable provisions of the laws of the State of Delaware; and such other
documents and matters as we deemed necessary.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates
of officers of the Corporation, certificates and documents issued by public
officials and authorities, and information received from searchers of public
records.
<PAGE>
Base upon and in reliance on the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and, as of this date, is
validly existing under the laws of the State of Delaware.
2. The Corporation has the authority to issue an aggregate of
2,963,100 shares of Class A Common Stock upon the exercise of Options and
upon the exercise or maturity of SARs.
3. The shares of Class A Common Stock to be issued and sold by the
Corporation upon the exercise of Options, and to be issued in accordance with
the exercise or maturity of SARs will, when (i) sold and paid for in
accordance with the provisions of the respective stock option agreements
pursuant to which such Options are granted, or, (ii) issued in accordance with
the provisions of the respective stock appreciation right agreements pursuant to
which such SARs are granted, be validly authorized and legally issued and
outstanding, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement as
attorneys passing upon legal matters in connection with the issuance and sale
of the 2,963,100 shares of Class A Common Stock covered thereby, and we
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
Harter, Secrest & Emery
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation by reference in this registration
statement of our report dated October 29, 1993 included
in Canandaigua Wine Company, Inc's Form 10-K for the
year ended August 31, 1993 and to all references to our
Firm included in this registration statement.
Arthur Andersen LLP
Rochester, New York,
November 21, 1994<PAGE>
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Registration Statement (Form S-8) pertaining to the
Canandaigua Wine Company, Inc. Stock Option and Stock
Appreciation Right Plan of our report dated September
27, 1993, with respect to the financial statements of
Vintners International Company, Inc. included in the
Canandaigua Wine Company, Inc. Current Report on Form
8-K dated October 15, 1993, as amended by Form 8-K/A,
Form 8-K/A-2 and Form 8-K/A-3, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
San Jose, California
November 18, 1994<PAGE>
Exhibit 23.3
Consent of Independent Auditors
The Board of Directors
Heublein Inc.:
We consent to the incorporation by reference in the registration statement (No.
33-_______) on Form S-8, as amended, of Canandaigua Wine Company, Inc.
of our report dated August 31, 1994, with respect to the Heublein Inc. and
Affiliates statement of assets and liabilities related to the product
lines acquired
by Canandaigua Wine Company, Inc. as of August 5, 1994, and the related
statements of identified income and expenses and cash flows for each of the
years in the three-year period ended September 30, 1993, which report appears
in Amendments Nos. 1 and 2 to Form 8-K of Canandaigua Wine Company,
Inc. dated August 5, 1994 and Forms 8-K dated October 21, 1994 and
November 7, 1994.
Our report refers to a change in the method of applying overhead to inventory.
KPMG PEAT MARWICK LLP
Hartford, Connecticut
November 22, 1994
