Exhibit 5
McDERMOTT, WILL & EMERY
227 West Monroe Street, Suite 3100
Chicago, Illinois 60606-5096
November 9, 1998
Canandaigua Brands, Inc.
300 WillowBrook Office Park
Fairport, NY 14450
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Canandaigua Brands, Inc. (the "Company") in
connection with the above-referenced registration statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), relating to the
proposed public offering of up to $400,000,000 in aggregate amount of (i) its
debt securities ("Debt Securities"), which may be unconditionally and
irrevocably guaranteed (the "Guarantees") by certain of the Company's
subsidiaries (the "Guarantors") that are signatories to the indenture
thereunder, the form of which is filed as Exhibit 4 to the Registration
Statement (the "Indenture"); (ii) shares of its Preferred Stock (the "Preferred
Stock"), par value $.01 per share, which may be represented by depositary shares
(the "Depositary Shares"); and (iii) shares of its Class A Common Stock, par
value $.01 per share (the "Common Stock" and, together with the Debt Securities
and the Preferred Stock, the "Securities"), all of which Securities may be sold
by the Company from time to time as set forth in the prospectus which forms a
part of the Registration Statement (the "Prospectus"), and as to be set forth in
one or more supplements to the Prospectus (each, a "Prospectus Supplement"). The
Registration Statement also relates to $300,000,000 of securities previously
registered pursuant to Form S-3 (Registration No. 333-40571), as to which the
Registration Statement constitutes a Post-Effective Amendment.
In arriving at the opinion expressed below, we have assumed that the
issuance, sale, amount and terms of the Securities to be offered from time to
time will be duly authorized and determined by proper action of the Board of
Directors of the Company consistent with the procedures and terms described in
the Registration Statement (each, a "Board Action") and in accordance with the
Company's Amended and Restated Certificate of Incorporation, as amended (the
"Certificate"), and applicable Delaware law. In addition, we have examined and
relied, to the extent we deemed proper, on certificates of officers of the
Company and the Guarantors as to factual matters, and on originals or copies
certified or otherwise identified to our satisfaction, of all such corporate
records of the Company and the Guarantors and such other instruments and
certificates of public officials and other persons as we have deemed
appropriate. In our examination, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the original documents
of all documents submitted to us as copies, the genuineness of all signatures on
documents reviewed by us and the legal capacity of natural persons.
Based upon, subject to and limited by the foregoing, we are of the opinion
that, as of the date hereof:
1. When the Registration Statement has become effective under the Act,
when the Guarantees have been duly authorized by all necessary corporate
action, and when the Debt Securities have been (a) duly established by the
Indenture or any supplemental indenture thereto, (b) duly authorized and
established by applicable Board Action and duly authenticated by the
trustee thereunder (the "Trustee"), and (c) duly executed and delivered on
behalf of the Company against payment therefor in accordance with the
terms of such Board Action, any applicable underwriting agreement, the
Indenture and any applicable supplemental indenture, and as contemplated
by the Registration Statement and/or the applicable Prospectus Supplement,
the Debt Securities will constitute binding obligations of the Company,
enforceable in accordance with their terms, except that the enforceability
thereof may be limited by or subject to bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar laws now or
hereafter existing which affect the rights and remedies of creditors
generally and equitable principles of general applicability.
2. When the Registration Statement has become effective under the Act and
when the Preferred Stock has been duly authorized and established by
applicable Board Action, in accordance with the terms of the Certificate
and applicable law, upon issuance and delivery of the Preferred Stock
against payment of valid consideration therefor in accordance with the
terms of such Board Action and any applicable underwriting or purchase
agreement, and as contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, the shares represented by such shares of
Preferred Stock will be legally issued, fully paid and non-assessable.
3. When the Registration Statement has become effective under the Act,
when the Depository Shares and the underlying Preferred Stock have been
duly authorized and established by applicable Board Action, in accordance
with the terms of the Certificate and applicable law, and when (a) a
deposit agreement substantially as described in the Registration Statement
has been duly executed and delivered by the Company and a depositary, and
(b) the depositary receipts representing the Depositary Shares in the form
contemplated and authorized by such deposit agreement have been duly
executed and delivered by such depositary and delivered to and paid for by
the purchasers thereof in the manner contemplated by the Registration
Statement and/or the applicable Prospectus Supplement, upon issuance and
delivery of the Preferred Stock against payment of valid consideration
therefor in accordance with the terms of such Board Action and any
applicable underwriting or purchase agreement, and as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement, such
Depositary Shares will be legally issued and will entitle the holders
thereof to the rights specified in the depositary receipts and the deposit
agreement relating to such Depositary Shares.
4. When the Registration Statement has become effective under the Act,
upon due authorization by Board Action of an issuance of Common Stock, and
upon issuance and delivery of the Common Stock against payment of valid
consideration therefor in accordance with the terms of such Board Action
and any applicable underwriting or purchase agreement, and as contemplated
by the Registration Statement and/or the applicable Prospectus Supplement,
such shares of Common Stock will be legally issued, fully paid and
non-assessable.
To the extent that the obligations of the Company under a deposit
agreement or the obligations of the Company or the Guarantors under the
Indenture may be dependent upon such matters, we have assumed for purposes of
this opinion (i) that the applicable depositary or trustee, as the case may be,
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is duly qualified to engage in the activities
contemplated by the applicable deposit agreement or the Indenture, as the case
may be, (ii) that such deposit agreement or Indenture, as the case may be, has
been duly authorized, executed and delivered by and constitutes the legal, valid
and binding obligation of such depositary or trustee, as the case may be,
enforceable in accordance with its respective terms, except that the
enforceability thereof may be limited by or subject to bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing which affect the rights and remedies of creditors
generally and equitable principles of general applicability, (iii) that such
depositary or trustee, as the case may be, is in compliance, generally and with
respect to acting as a depositary or trustee, respectively, under the applicable
deposit agreement or the Indenture, with all applicable laws and regulations and
(iv) that such depositary or trustee, as the case may be, has the requisite
organizational and legal power and authority to perform its obligations under
the applicable deposit agreement or the Indenture, as the case may be.
We express no opinion as to the applicability of, compliance with or
effect of, the law of any jurisdiction other than United States Federal law, the
General Corporation Law of the State of Delaware and the laws of New York.
We hereby consent to the references to our firm under the caption "Legal
Opinions" in the Registration Statement and to the use of this opinion as an
exhibit to the Registration Statement. In giving this consent, we do not hereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ McDermott, Will & Emery