EXHIBIT 3.1
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Restated Certificate of Incorporation
of
Constellation Brands, Inc.
Duly Adopted in Accordance With Sections 245 and 242
of the Delaware General Corporation Law
Incorporated on December 4, 1972 under the name
Canandaigua Wine Company, Inc.
This is a Restated Certificate of Incorporation which amends and restates
the Restated Certificate of Incorporation of Constellation Brands, Inc. to
increase its authorized capital stock.
1. (a) The present name of the corporation is Constellation Brands, Inc.
(the "Corporation").
(b) The name under which the Corporation was originally incorporated
is Canandaigua Wine Company, Inc.; and the date of filing of the original
certificate of incorporation with the Secretary of State of the State of
Delaware is December 4, 1972.
2. The restated certificate of incorporation of the Corporation is
hereby amended by striking out Article 4 and by substituting in lieu thereof new
Article 4, as follows:
"4. CAPITALIZATION; GENERAL AUTHORIZATION. The total number of shares
of stock which the Corporation shall have authority to issue is Three
Hundred Six Million (306,000,000) consisting of:
(a) CLASS A COMMON. Two Hundred Seventy-Five Million (275,000,000)
shares designated as Class A Common Stock, having a par value of One Cent
($.01) per share (the "Class A Common");
(b) CLASS B COMMON. Thirty Million (30,000,000) shares designated as
Class B Common Stock, having a par value of One Cent ($.01) per share (the
"Class B Common"); and
(c) PREFERRED STOCK. One Million (1,000,000) shares designated as
Preferred Stock, having a par value of One Cent ($.01) per share (the
"Preferred Stock")."
3. The provisions of the restated certificate of incorporation of the
Corporation as heretofore amended and/or supplemented, and as herein amended,
are hereby restated and integrated into the single instrument which is
hereinafter set forth, and which is entitled Restated Certificate of
Incorporation of Constellation Brands, Inc. without any further amendments other
than the amendments herein certified and without any discrepancy between the
provisions of the restated certificate of incorporation as heretofore amended
and supplemented and the provisions of the said single instrument hereinafter
set forth.
4. The amendment and the restatement of the restated certificate of
incorporation herein certified have been duly adopted by the stockholders in
accordance with the provisions of Section 242 and 245 of the General Corporation
Law of the state of Delaware.
5. The restated certificate of incorporation of the Corporation, as
amended and restated herein, shall at the effective time of this Restated
Certificate of Incorporation, read as follows:
Restated Certificate of Incorporation
of
Constellation Brands, Inc.
1. NAME. The name of the Corporation is Constellation Brands, Inc.
2. ADDRESS; REGISTERED AGENT. The address of the registered office in
the State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. PURPOSES. The nature of business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. CAPITALIZATION; GENERAL AUTHORIZATION. The total number of shares of
stock which the Corporation shall have authority to issue is Three Hundred Six
Million (306,000,000) consisting of:
(a) CLASS A COMMON. Two Hundred Seventy-Five Million (275,000,000)
shares designated as Class A Common Stock, having a par value of One Cent
($.01) per share (the "Class A Common");
(b) CLASS B COMMON. Thirty Million (30,000,000) shares designated as
Class B Common Stock, having a par value of One Cent ($.01) per share (the
"Class B Common"); and
(c) PREFERRED STOCK. One Million (1,000,000) shares designated as
Preferred Stock, having a par value of One Cent ($.01) per share (the
"Preferred Stock").
5. RIGHTS AND LIMITATIONS. The designations, powers, preferences and
relative participation, optional or other special rights and the qualifications,
limitations and restrictions thereof in respect of each class of capital stock
of the Corporation are as follows:
(i) CLASS A COMMON AND CLASS B COMMON. The Class A Common and Class B
Common shall be identical in all respects and shall entitle the holders
thereof to the same rights, privileges and limitations, except as otherwise
provided herein. The relative rights, privileges and limitations are as
follows:
(a) VOTING RIGHTS. The holders of Class A Common and Class B
Common shall have the following rights:
(i) The holders of Class A Common and Class B Common shall
be entitled to vote as separate classes on all matters as to
which a class vote is now, or hereafter may be, required by law.
(ii) The number of authorized shares of Class A Common
and/or Class B Common may be increased or decreased (but not
below the number of shares thereof then outstanding) by the
majority vote of all Class A Common and Class B Common voting as
a single class, provided that the holders of Class A Common shall
have one (1) vote per share and the holders of Class B Common
shall have ten (10) votes per share.
(iii) At every meeting of shareholders called for the
election of directors, the holders of the Class A Common, voting
as a class, shall be entitled to elect one-fourth (1/4) of the
number of directors to be elected at such meeting (rounded, if
the total number of directors to be elected at such meeting is
not evenly divisible by four (4), to the next higher whole
number), and the holders of the Class B Common, voting as a
class, shall be entitled to elect the remaining number of
directors to be elected at such meeting. Irrespective of the
foregoing, if the number of outstanding Class B Common shares is
less than 12 1/2% of the total number of outstanding shares of
Class A Common and Class B Common, then the holders of the Class
A Common shall be entitled to elect one-fourth (1/4) of the
number of directors to be elected at such meeting (rounded, if
the total number of directors to be elected at such meeting is
not evenly divisible by four (4), to the next higher whole
number) and shall be entitled to participate with the holders of
the Class B Common shares voting as a single class in the
election of the remaining number of directors to be elected at
such meeting, provided that the holders of Class A Common shall
have one (1) vote per share and the holders of the Class B Common
shall have ten (10) votes per share. If, during the interval
between annual meetings for the election of directors, the number
of directors who have been elected by either the holders of the
Class A Common or the Class B Common shall, by reason of
resignation, death, retirement, disqualification or removal, be
reduced, the vacancy or vacancies in directors so created may be
filled by a majority vote of the remaining directors then in
office, even if less than a quorum, or by a sole remaining
director. Any director so elected by the remaining directors to
fill any such vacancy may be removed from office by the vote of
the holders of a majority of the shares of the Class A Common and
the Class B Common voting as a single class, provided that the
holders of Class A Common shall have one (1) vote per share and
the holders of the Class B Common shall have ten (10) votes per
share.
(iv) The holders of Class A Common and Class B Common shall
in all matters not specified in Sections 5(i)(a)(i), 5(i)(a)(ii)
and 5(i)(a)(iii) vote together as a single class, provided that
the holders of Class A Common shall have one (1)
vote per share and the holders of Class B Common shall have ten
(10) votes per share.
(v) There shall be no cumulative voting of any shares of
either the Class A Common or the Class B Common.
(b) DIVIDENDS. Subject to the rights of the Class A Common set
forth in Paragraph 5(i)(c) hereof, the Board of Directors, acting in
its sole discretion, may declare in accordance with law a dividend
payable in cash, in property or in securities of the Corporation, on
either the Class A Common or the Class B Common or both.
(c) CASH DIVIDENDS. The Board of Directors may, in its sole
discretion, declare cash dividends payable only to holders of Class A
Common or to both the holders of Class A Common and Class B Common,
but not only to holders of Class B Common. A cash dividend in any
amount may be paid on the Class A Common if no cash dividend is to be
paid on the Class B Common. If a cash dividend is to be paid on the
Class B Common, a cash dividend shall also be paid on the Class A
Common in an amount per share thereof which exceeds the amount of the
cash dividend paid on each share of Class B Common by at least ten
percent (10%) (rounded up, if necessary, to the nearest one-hundredth
of a cent).
(d) CONVERTIBILITY. Each holder of record of a share of Class B
Common may at any time or from time to time, without cost to such
holder and at such holder's option, convert any whole number or all of
such holder's shares of Class B Common into fully paid and
nonassessable shares of Class A Common at the rate of one share of
Class A Common for each share of Class B Common surrendered for
conversion. Any such conversion may be effected by any holder of Class
B Common by surrendering such holder's certificate or certificates for
the shares of Class B Common to be converted, duly endorsed, at the
office of the Corporation or the office of any transfer agent for the
Class A Common, together with a written notice for the Corporation at
such office that such holder elects to convert all or a specified
number of such shares of Class B Common. Promptly thereafter, the
Corporation shall issue and deliver to such holder a certificate or
certificates for the number of shares of Class A Common to which such
holder shall be entitled as aforesaid. Such conversion shall be made
as of the close of business on the date of such surrender and the
person or persons entitled to receive the shares of Class A Common
issuable on such conversion shall be treated for all purposes as the
record holder or holders of such shares of Class A Common on such
date. The Corporation will at all times reserve and keep available,
solely for the purpose of issue upon conversion of the outstanding
shares of Class B Common, such number of shares of Class A Common as
shall be issuable upon the conversion of all such outstanding shares,
provided that the foregoing shall not be considered to preclude the
Corporation from satisfying its obligations in respect of the
conversion of the outstanding shares of Class B Common by delivery of
shares of Class A Common which are held in the treasury of the
Corporation.
(e) RIGHTS UPON LIQUIDATION. Holders of Class A Common and Class
B Common shall have identical rights in the event of liquidation, and
shall be treated as a single class for purposes thereof.
(ii) PREFERRED STOCK. Subject to the terms contained in any
designation of a series of Preferred Stock, the Board of Directors is
expressly authorized, at any time and from time to time, to fix, by
resolution or resolutions, the following provisions for shares of any class
or classes of Preferred Stock of the Corporation or any series of any class
of Preferred Stock:
(a) the designation of such class or series, the number of shares
to constitute such class or series which may be increased or decreased
(but not below the number of shares of that class or series then
outstanding) by resolution of the Board of Directors, and the stated
value thereof if different from the par value thereof;
(b) whether the shares of such class or series shall have voting
rights, in addition to any voting rights provided by law, and, if so,
the terms of such voting rights;
(c) the dividends, if any, payable on such class or series,
whether any such dividends shall be cumulative, and, if so, from what
dates, the conditions and dates upon which such dividends shall be
payable, and the preference or relation which such dividends shall
bear to the dividends payable on any shares of stock of any other
class or any other series of the same class;
(d) whether the shares of such class or series shall be subject
to redemption by the Corporation, and, if so, the times, prices and
other conditions of such redemption;
(e) the amount or amounts payable upon shares of such series
upon, and the rights of the holders of such class or series in, the
voluntary or involuntary liquidation, dissolution or winding up, or
upon any distribution of the assets, of the Corporation;
(f) whether the shares of such class or series shall be subject
to the operation of a retirement or sinking fund and, if so, the
extent to and manner in which any such retirement or sinking fund
shall be applied to the purchase or redemption of the shares of such
class or series for retirement or other corporate purposes and the
terms and provisions relative to the operation thereof;
(g) whether the shares of such class or series shall be
convertible into, or exchangeable for, shares of stock of any other
class or any other series of the same class or any other securities
and, if so, the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same, and any other
terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be effective
while any shares of such class or series are outstanding upon the
payment of dividends or the making of other distributions on, and upon
the purchase, redemption or other acquisition by the Corporation of
the Common Stock or shares of stock of any other class or any other
series of the same class;
(i) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional
stock, including additional shares of such class or series or of any
other series of the same class or of any other class;
(j) the ranking (be it pari passu, junior or senior) of each
class or series vis-a-vis any other class or series of any class of
Preferred Stock as to the payment of dividends, the distribution of
assets and all other matters; and
(k) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations
and restrictions thereof, insofar as they are not inconsistent with
the provisions of this Restated Certificate of Incorporation, to the
full extent permitted in accordance with the laws of the State of
Delaware.
The powers, preferences and relative, participating, optional and other
special rights of each class or series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
6. BY-LAWS. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the By-Laws of the Corporation.
7. LIABILITY OF DIRECTORS. A member of the Corporation's Board of
Directors shall not be personally liable to the Corporation or its shareholders
for monetary damages for a breach of fiduciary duty as a director, except for
liability of the director (i) for any breach of the director's duty of loyalty
to the Corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, relating to the
payment of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law is amended after approval by
the shareholders of this Paragraph to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended. Any
repeal or modification of this Paragraph by the shareholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
8. INDEMNIFICATION.
(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he
or she is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust
or other enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators; PROVIDED, HOWEVER, that, except as provided in subparagraph
(b) hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in
this Paragraph shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an "advancement
of expenses"), PROVIDED, HOWEVER, that, if the Delaware General Corporation
Law requires, an advancement of expenses incurred by an indemnitee in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Paragraph or otherwise.
(b) RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under subparagraph
(a) of this Paragraph is not paid in full by the Corporation within sixty
days after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled
to be paid also the expense of prosecuting or defending such suit. In (i)
any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right
to an advancement of expenses) it shall be a defense that, and (ii) in any
suit by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking the Corporation shall be entitled to recover
such expenses upon final adjudication that, the indemnitee has not met the
applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its shareholders) to have
made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstance because the
indemnitee has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the indemnitee has not
met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the
case of such a suit brought by the indemnitee, be a defense to such suit.
In any suit brought by the indemnitee to enforce a right to indemnification
or to an advancement of expenses hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Paragraph or
otherwise shall be on the Corporation.
(c) NON-EXCLUSIVITY OF RIGHTS. The rights of indemnification and to
the advancement of expenses conferred in this Paragraph shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, this Restated Certificate of Incorporation, by-law,
agreement, vote of shareholders or disinterested directors or otherwise.
(d) INSURANCE. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
(e) INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent
of the provisions of this Paragraph with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
IN WITNESS WHEREOF, the undersigned has executed this Restated Certificate
of Incorporation as of the 23rd day of July, 2002.
/s/ Richard Sands
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Richard Sands
President and Chief Executive Officer