Exhibit 1.1
EXECUTION COPY
CONSTELLATION BRANDS, INC.
Underwriting Agreement
New York, New York
September 25, 2001
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
The persons named in Schedule II hereto (the "Selling
Stockholders") propose to sell to Salomon Smith Barney Inc. (the "Underwriter")
the number of shares of Class A Common Stock, $.01 par value ("Common Stock"),
of Constellation Brands, Inc., a corporation incorporated under the laws of the
State of Delaware (the "Company"), set forth in Schedule I hereto (said shares
to be issued and sold by the Selling Stockholders being hereinafter called the
"Underwritten Securities"). The Company proposes to grant to the Underwriter an
option to purchase up to the number of additional shares of Common Stock set
forth in Schedule I hereto to cover over-allotments (the "Option Securities";
the Option Securities, together with the Underwritten Securities, being
hereinafter called the "Securities"). The term "Selling Stockholder" shall mean
either the singular or the plural as the context requires. Any reference herein
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be (the
"Incorporated Documents"); and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 16 hereof.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees
with, the Underwriter as set forth below in this Section 1(a):
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(i) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including related basic prospectuses,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously
been furnished to the Underwriter. The Company will next file with the
Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus
supplement) or (3) a final prospectus in accordance with Rules 415 and
424(b). In the case of clause (1), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Final Prospectus. As filed, such final prospectus supplement or
such amendment and form of final prospectus supplement shall contain
all Rule 430A Information, together with all other such required
information, and, except to the extent the Underwriter shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to the Underwriter prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond those
contained in the Basic Prospectus and any Preliminary Final Prospectus)
as the Company has advised the Underwriter, prior to the Execution
Time, will be included or made therein. The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(ii) On the Effective Date the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "Settlement Date"), the Final Prospectus
(and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any Settlement Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
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Company makes no representations or warranties as to the information
con tained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of the Underwriter specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(iii) The Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the outstanding shares of Common Stock
(including the Underwritten Securities) have been duly and validly
authorized and issued and are fully paid and nonassessable; the Option
Securities have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities are authorized for trading
on the New York Stock Exchange; the certificates for the Securities are
in valid and sufficient form; and, except as set forth in the Final
Prospectus, the Incorporated Documents or the Company's UK Sharesave
Scheme, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into
or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(iv) Except as set forth in the Registration Agreement dated
September 4, 2001, no holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
(v) The Incorporated Documents, when they became effective or
were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further Incorporated Documents, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(vi) The Company and each of its consolidated subsidiaries (the
"Subsidiaries") have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, with full power and authority
(corporate and other) to own their properties and conduct their
respective businesses as described in the Final Prospectus and are duly
qualified to transact business as foreign corporations in good standing
under the laws of each jurisdiction where the ownership or leasing of
their respective properties or the conduct of
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their respective businesses requires such qualification, except where
the failure to so qualify would not have a material adverse effect on
the business, management, condition (financial or otherwise), results
of operations or business prospects of the Company and the Subsidiaries
considered as a whole (a "Material Adverse Effect"); the Company had at
the dates indicated an authorized capitalization as set forth in the
Final Prospectus, and the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, and the outstanding shares of capital stock that the
Company owns (directly or indirectly) of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are owned
beneficially by the Company free and clear of all liens, encumbrances,
equities and claims (collectively, "Liens") except for the Liens under
the Credit Agreement dated as of October 6, 1999, as amended by
Amendment No. 1 thereto on February 13, 2001, Amendment No. 2 thereto
on May 16, 2001 and Amendment No. 3 thereto on September 7, 2001,
between the Company, the guarantors named therein, the lenders
signatory thereto, and The Chase Manhattan Bank, as Administrative
Agent, The Bank of Nova Scotia, as Syndication Agent, and Credit Suisse
First Boston and Citicorp USA, Inc., as Co-Documentation Agents (the
"Credit Agreement"). Neither the Company nor any Subsidiary is in
violation of its respective charter or bylaws and neither the Company
nor any of the Subsidiaries is in default (nor has any event occurred
that with notice, lapse of time or both would constitute a default) in
the performance of any obligation, agreement or condition contained in
any agreement, lease, indenture or instrument of the Company or any
Subsidiary where such violation or default would have a Material
Adverse Effect.
(vii) The Company has full power and authority to enter into
this Agreement. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby does not and will not conflict with or
result in a breach or violation by the Company or any Subsidiary, as
the case may be, of any of the terms or provisions of, constitute a
default by the Company or any Subsidiary, as the case may be, under, or
result in the creation or imposition of any Lien upon any of the assets
of the Company or any Subsidiary, as the case may be, pursuant to the
terms of, (A) the Credit Agreement and any other indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which the Company or any Subsidiary, as the case may be, is a party
or to which any of them or any of their respective properties is
subject, (B) the charter or bylaws of the Company or any Subsidiary, as
the case may be, or (C) any statute, judgment, decree, order, rule or
regulation of any foreign or domestic court, governmental agency or
regulatory agency or body having jurisdiction over the Company or any
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of the Subsidiaries or any of their respective properties or assets
except, with respect to clauses (A) and (C) of this Section 1(a)(vii),
for any conflict, breach, violation, default or Lien that would not
have a Material Adverse Effect.
(viii) The execution and delivery of this Agreement by the
Company has been duly authorized by all necessary corporate action, and
this Agreement has been duly executed and delivered by the Company and
is the valid and legally binding agreement of the Company.
(ix) Except as described or referred to in the Final
Prospectus, there is not pending, or to the knowledge of the Company,
threatened, any action, suit, proceeding, inquiry or investigation to
which the Company or any of the Subsidiaries is a party, or to which
the property of the Company or any of the Subsidiaries is subject,
before or brought by any court or governmental agency or body, which,
if determined adversely to the Company or any of the Subsidiaries,
would, individually or in the aggregate, have a Material Adverse Effect
or might materially adversely affect the consummation of the offering
of the Securities pursuant to this Agreement; and all pending legal or
governmental proceedings to which the Company or any of the
Subsidiaries is a party or that affect any of their respective
properties that are not described in the Final Prospectus, including
ordinary routine litigation incidental to the business, would not, in
the aggregate, result in a Material Adverse Effect.
(x) Arthur Andersen LLP are independent certified public
accountants with respect to the Company and the Subsidiaries, within
the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants ("AICPA") and its
interpretations and rulings thereunder. The historical financial
statements of the Company (including the related notes) included in or
incorporated by reference in the Final Prospectus comply as to form in
all material respects with the requirements applicable to a
registration statement on Form S-3 under the Act; such historical
financial statements have been prepared in accordance with United
States generally accepted accounting principles ("GAAP") consistently
applied throughout the periods covered thereby and present fairly the
financial position of the Company and its Subsidiaries at the
respective dates indicated and the results of their operations, cash
flows and statements of stockholders' equity for the respective periods
indicated. The financial information included in or incorporated by
reference in the Final Prospectus and relating to the Company and the
Subsidiaries is derived from the accounting records of the Company and
the Subsidiaries and presents fairly the information purported to be
shown thereby. The other historical financial and statistical
information and data included in the Final Prospectus or in the
Incorporated Documents presents fairly, in all material respects, the
information purported to be shown thereby.
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(xi) Except as described in or contemplated by the Final
Prospectus, subsequent to May 31, 2001, (i) neither the Company nor any
of the Subsidiaries has sustained any loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which would
have a Material Adverse Effect, and (ii) there has not been any change
in the capital stock (other than as a result of the exercise of the
Company's outstanding stock options, purchases under the Company's 1989
Employee Stock Purchase Plan, as amended, any purchases under the
Company's UK Sharesave Scheme, any repurchases by the Company under its
Stock Repurchase Program or as a result of the conversion of the
Company's Class B Common Stock (par value $.01 per share) into Common
Stock) or any net increase in long-term debt of the Company or any of
the Subsidiaries (other than borrowings or repayments under the
revolving portion of the Credit Agreement), or any other material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, condition (financial or
otherwise), prospects or operations of the Company and the Subsidiaries
taken as a whole.
(xii) Each of the Company and the Subsidiaries has good and
marketable title to all properties and assets as described in the Final
Prospectus as owned by it free and clear of all Liens, except as
provided under the Credit Agreement and such as are described in the
Final Prospectus or do not interfere with the use made and proposed to
be made of such properties and assets by the Company and the
Subsidiaries and would not individually or in the aggregate result in a
Material Adverse Effect; and all of the leases and subleases material
to the business of the Company and the Subsidiaries taken as a whole,
and under which the Company or any of the Subsidiaries holds properties
described in the Final Prospectus, are in full force and effect and
neither the Company nor any of the Subsidiaries has any notice of any
claims of any sort that have been asserted by anyone adverse to the
rights of the Company or any of the Subsidiaries under such leases or
subleases, or affecting or questioning the rights of the Company or any
of the Subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, which claims would
have a Material Adverse Effect.
(xiii) Each of the Company and the Subsidiaries owns or possesses
all governmental and other licenses, permits, certificates, consents,
orders, approvals and other authorizations necessary to own, lease and
operate its properties and to conduct its business as presently
conducted by it and described in the Final Prospectus, except where the
failure to own or possess such licenses, permits, certificates,
consents, orders, approvals and other authorizations would not,
individually or in the aggregate, have a Material Adverse Effect
(collectively, the "Material Licenses"); all of the Material Licenses
are valid and in full force and effect, except where the invalidity of
such Material Licenses or the failure of such Material Licenses to be
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in full force and effect would not, individually or in the aggregate,
have a Material Adverse Effect; and none of the Company or any of the
Subsidiaries has received any notice of proceedings relating to
revocation or modification of any such Material Licenses which would,
individually or in the aggregate, have a Material Adverse Effect.
(xiv) Each of the Company and the Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, trademarks, service marks,
trade names and know-how (including trade secrets and other patentable
and/or unpatentable proprietary or confidential information or
procedures) (collectively, "intellectual property") necessary to carry
on its business as presently operated by it, except where the failure
to own or possess or have the ability to acquire any such intellectual
property would not, individually or in the aggregate, have a Material
Adverse Effect; and none of the Company or any of the Subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
intellectual property or of any facts which would render any
intellectual property invalid or inadequate to protect the interest of
the Company or any of the Subsidiaries therein and which infringement
or conflict would have a Material Adverse Effect.
(xv) None of the Company or any of the Subsidiaries has taken,
or will take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities.
(xvi) None of the Company or any of the Subsidiaries is an
investment company within the meaning of the Investment Company Act of
1940, as amended.
(xvii) Except as described in the Final Prospectus, the Company
and the Subsidiaries comply in all material respects with all
Environmental Laws (as defined below), except to the extent that
failure to comply with such Environmental Laws would not individually
or in the aggregate have a Material Adverse Effect. None of the Company
or any of the Subsidiaries is the subject of any pending or, to the
knowledge of the Company, threatened foreign, federal, state or local
investigation evaluating whether any remedial action by the Company or
any of the Subsidiaries is needed to respond to a release of any
Hazardous Materials (as defined below) into the environment resulting
from the Company's or any of the Subsidiaries' business operations or
ownership or possession of any of their properties or assets or is in
contravention of any Environmental Law that would, individually or in
the aggregate, have a Material Adverse Effect. None of the Company or
any of the Subsidiaries has received any notice or claim, nor are there
pending or, to the knowledge of the Company, threatened lawsuits
against any of them, with respect to violations of an Environmental Law
or in connection with any release of any Hazardous Material into the
environment that would have a Material Adverse Effect. As used herein,
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"Environmental Laws" means any foreign, federal, state or local law or
regulation applicable to the Company's or any of the Subsidiaries'
business operations or ownership or possession of any of their
properties or assets relating to environmental matters, and "Hazardous
Materials" means those substances that are regulated by or form the
basis of liability under any Environmental Laws.
(xviii) No relationship, direct or indirect, exists between or
among the Company and the Subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company, on the other hand, which is not described in the Final
Prospectus or incorporated therein by reference which would have a
Material Adverse Effect.
(xix) No labor problem exists with the employees of the Company
or any of the Subsidiaries or, to the knowledge of the Company, is
imminent that, in either case, would have a Material Adverse Effect.
(xx) Except as disclosed in the Final Prospectus, all U.S.
federal income tax returns and all foreign tax returns of the Company
and the Subsidiaries required by law to be filed have been filed
(taking into account extensions granted by the applicable governmental
agency) and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except for such taxes, if
any, as are being contested in good faith and as to which adequate
reserves have been provided and except for such taxes the payment of
which would not individually or in the aggregate result in a Material
Adverse Effect. All other corporate franchise and income tax returns of
the Company and the Subsidiaries required to be filed pursuant to
applicable foreign, federal, state or local laws have been filed,
except insofar as the failure to file such returns would not
individually or in the aggregate result in a Material Adverse Effect,
and all taxes shown on such returns or otherwise assessed which are due
and payable have been paid, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been
provided and except for such taxes the payment of which would not,
individually or in the aggregate, result in a Material Adverse Effect.
(xxi) Each of the Company and the Subsidiaries maintains (and in
the future will maintain) a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(xxii) The Company and each of the Subsidiaries is in compliance
with, and none of such entities has received any notice of any
outstanding violation of, all laws, regulations, ordinances and rules
applicable to it and its operations, except, in either case, where any
failure by the Company or any of the Subsidiaries to comply with any
such law, regulation, ordinance or rule would not, individually or in
the aggregate, result in a Material Adverse Effect.
(xxiii) The issuance, sale or delivery of the Securities will not
violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(xxiv) Each of the Company and the Subsidiaries is, and
immediately after the Closing Date will be, Solvent. As used herein,
the term "Solvent" means, with respect to any such entity on a
particular date, that on such date (A) the fair market value of the
assets of such entity is greater than the amount that will be required
to pay the probable liabilities of such entity on its debts as they
become absolute and matured, (B) assuming the sale of the Securities as
contemplated by this Agreement and as described in the Final
Prospectus, such entity is not incurring debts or liabilities beyond
its ability to pay as such debts and liabilities mature, (C) such
entity is able to realize upon its assets and pay its debts and other
liabilities, including contingent obligations, as they mature and (D)
such entity does not have unreasonably small capital.
(xxv) Other than this Agreement, neither the Company nor any
Subsidiary is a party to any contract, agreement or understanding with
any person that would give rise to a valid claim against the Company or
any Subsidiary or the Underwriter for a brokerage commission, finders'
fee or like payment in connection with the offering and sale of the
Securities.
(xxvi) No forward-looking statement (within the meaning of
Section 27A of the Act and Section 21E of the Exchange Act) contained
in the Final Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
Any certificate signed by an officer of the Company and
delivered to the Underwriter or to counsel for the Underwriter at or prior to
the Closing Date pursuant to any section of this Agreement or the transactions
contemplated hereby shall be deemed a representation and warranty by the Company
to the Underwriter as to the matters covered thereby.
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(b) Each Selling Stockholder, severally but not jointly,
represents and warrants to, and agrees with, the Underwriter that:
(i) Such Selling Stockholder is, or prior to the Closing will
be, the record and beneficial owner of the Securities to be sold by it
hereunder free and clear of all Liens and has, or prior to the Closing
will have, duly endorsed such Securities in blank, and, assuming that
the Underwriter acquires its interest in the Securities it has
purchased from such Selling Stockholder in good faith without notice of
any adverse claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code ("UCC")), the Underwriter that shall purchase
such Securities to be delivered on the Closing Date to The Depository
Trust Company or other securities intermediary (assuming such are
securities intermediaries within the meaning of Section 8-102(14) of
the UCC) by making payment therefor as provided herein, and that shall
have such Securities credited by book entry to the securities account
or accounts (within the meaning of Section 8-501(a) of the UCC) of the
Underwriter maintained by The Depository Trust Company or such other
securities intermediary, shall acquire a security entitlement (within
the meaning of Section 8-102(a)(17) of the UCC) to such Securities,
and, to the extent governed by the UCC, no action based on an adverse
claim (within the meaning of Section 8-102(a)(1) and Section 8-502 of
the UCC) may be properly asserted against the Underwriter with respect
to such Securities.
(ii) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(iii) Such Selling Stockholder has been duly formed and is
validly existing as a partnership or a limited liability company, as
the case may be, in good standing under the laws of its jurisdiction of
organization, with full power and authority (partnership or limited
liability company, as the case may be, and other) to consummate the
transactions contemplated hereunder and is duly qualified to transact
business as a foreign partnership or limited liability company, as the
case may be, in good standing under the laws of each jurisdiction where
the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to so
qualify would not have a material adverse effect on the business,
management, condition (financial or otherwise), results of operations
or business prospects of such Selling Stockholder.
(iv) The execution and delivery of this Agreement by such
Selling Stockholder have been duly authorized by all necessary
partnership or limited liability company, as the case may be, action,
and this Agreement has been duly executed and delivered by such Selling
Stockholder and is the valid and legally binding agreement of such
Selling Stockholder.
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(v) No consent, approval, authorization or order of any court
or governmental agency or body ("Approval") is required for the
consummation by such Selling Stockholder of the transactions
contemplated herein, except such Approvals as may have been obtained
under the Act and such Approvals as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter and such other
Approvals as have been obtained.
(vi) Such Selling Stockholder has full power and authority to
enter into this Agreement. Neither the sale of the Securities being
sold by such Selling Stockholder nor the consummation of any other of
the transactions herein contemplated by such Selling Stockholder nor
the fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under, any law or the partnership agreement or limited
liability company operating agreement, as the case may be, of such
Selling Stockholder or the terms of any indenture or other agreement or
instrument to which such Selling Stockholder or any of its subsidiaries
is a party or bound, or any judgment, order or decree applicable to
such Selling Stockholder or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Stockholder or any of its
subsidiaries.
(vii) Such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Securities in contravention of applicable
law.
(viii) In respect of any statements in or omissions from the
Registration Statement or the Final Prospectus or any supplements
thereto made in reliance upon and in conformity with information
furnished in writing to the Company by such Selling Stockholder
specifically for use in connection with the preparation thereof, such
Selling Stockholder hereby makes the same representations and
warranties to the Underwriter as the Company makes to the Underwriter
under Section 1(a)(ii) hereof.
Any certificate signed by any Selling Stockholder or any
officer of any Selling Stockholder (or any person performing a similar function)
and delivered to the Underwriter or to counsel for the Underwriter at or prior
to the Closing Date pursuant to any Section of this Agreement or the
transactions contemplated hereby shall be deemed a representation and warranty
by such Selling Stockholder to the Underwriter, as to matters covered thereby.
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2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Selling Stockholders
agree, severally and not jointly, to sell to the Underwriter, and the
Underwriter agrees to purchase from the Selling Stockholders, at a purchase
price of $37.394 per share, the number of the Underwritten Securities set forth
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the Underwriter to purchase up to 322,500 Option Securities at the
same purchase price per share as the Underwriter shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriter. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Final Prospectus upon written notice by the
Underwriter to the Company setting forth the number of shares of the Option
Securities as to which the Underwriter is exercising the option and the
Settlement Date.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Underwriter shall designate,
which date and time may be postponed by agreement between the Underwriter, the
Company and the Selling Stockholders (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Underwriter for the account of the Underwriter
against payment by the Underwriter of the purchase price thereof to or upon the
order of the Selling Stockholders and the Company (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) by wire transfer payable in same-day funds to
accounts specified by the Selling Stockholders and the Company (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day prior to the Closing Date). Delivery of the Underwritten
Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Underwriter shall otherwise instruct.
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the Underwriter of the
Securities to be purchased by it from such Selling Stockholder, and the
Underwriter will pay any additional stock transfer taxes involved in further
transfers.
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The Company will pay all applicable state transfer taxes, if
any, involved in the transfer to the Underwriter of the Option Securities to be
purchased by it from the Company, and the Underwriter will pay any additional
stock transfer taxes involved in further transfers.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Underwriter, on the
date specified by the Underwriter (which shall be within three Business Days
after exercise of said option) for the account of the Underwriter, against
payment by the Underwriter of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to an account specified
by the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Underwriter on the Settlement Date for the
Option Securities, and the obligation of the Underwriter to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriter. It is understood that the
Underwriter proposes to offer the Securities for sale to the public as set
forth in the Final Prospectus.
5. Agreements.
(a) The Company agrees with the Underwriter that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished the Underwriter a copy for its review prior to filing and
will not file any such proposed amendment or supplement to which the
Underwriter reasonably objects. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective pursuant to
Rule 430A, or filing of the Final Prospectus is otherwise required
under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Underwriter of such timely filing. The Company will promptly advise
the Underwriter (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
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filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Underwriter of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission
or effect such compliance and (3) supply any supplemented Final
Prospectus to the Underwriter in such quantities as the Underwriter may
reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriter an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(iv) The Company will furnish to the Underwriter and counsel
for the Underwriter, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by the Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Underwriter may reasonably
request. Unless otherwise agreed, the Company will pay the expenses of
printing or other production of all documents relating to the offering.
(v) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Underwriter may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and, unless otherwise agreed, the Company will pay any
fee of the National Association of Securities Dealers, Inc., in
-15-
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(vi) The Company will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company), directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other shares
of Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock, or publicly announce an
intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto; provided, however, that the Company may
issue and sell Common Stock pursuant to any stock option plan, stock
incentive plan, stock ownership plan or dividend reinvestment plan of
the Company in effect at the Execution Time (including pursuant to a
registration statement on Form S-8 filed after the Execution Time
relating to shares of Common Stock to be issued under such employee
stock option plans, stock ownership plans or dividend reinvestment
plans) and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time.
(vii) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(b) Each Selling Stockholder agrees with the Underwriter that:
(i) Such Selling Stockholder will not, without the prior
written consent of Salomon Smith Barney Inc., offer, sell, contract to
sell, pledge or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by such Selling
Stockholder or any affiliate of such Selling Stockholder or any person
in privity with such Selling Stockholder or any affiliate of such
Selling Stockholder), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act and the rules and regulations
of the Commission promulgated thereunder with respect to, any shares of
-16-
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly
announce an intention to effect any such transaction, until the
Business Day set forth on Schedule I hereto, other than shares of
Common Stock disposed of as bona fide gifts; provided however, that the
-------- -------
recipient of such Common Stock agrees in writing to be bound by the
terms of this Section 5(b)(i).
(ii) Such Selling Stockholder will not take any action designed
to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(iii) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as
delivery or a prospectus relating to the Securities by an underwriter
or dealer may be required under the Act, of (A) any change in
information in the Registration Statement or the Final Prospectus
relating to such Selling Stockholder or (B) any new material
information relating to the Company or relating to any matter stated in
the Final Prospectus which comes to the attention of such Selling
Stockholder.
6. Conditions to the Obligations of the Underwriter. The
obligations of the Underwriter to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and any
Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company, the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriter agrees in writing
to a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time on the date of determination
of the public offering price, if such determination occurred at or
prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
-17-
(b) The Company shall have requested and caused:
(i) McDermott, Will & Emery, special counsel for the
Company, to have furnished to the Underwriter their written
opinion addressed to the Underwriter, dated the Closing Date,
in form and substance reasonably satisfactory to the
Underwriter, substantially in the form of Annex I hereto; and
(ii) Nixon Peabody LLP, counsel for the Company, to
have furnished to the Underwriter their written opinion
addressed to the Underwriter, dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriter,
substantially in the form of Annex II hereto.
(c) The Selling Stockholders shall have requested and caused
Lewis Rice and Fingersh, L.C., counsel to R, R, M & C Partners, L.L.C.
and Nixon Peabody LLP, counsel to M, L, R & R, to have furnished to the
Underwriter their opinions addressed to the Underwriter, dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriter substantially in the forms of Annex III and Annex IV
hereto.
(d) The Underwriter shall have received from Cahill Gordon &
Reindel, counsel for the Underwriter, such opinion or opinions, dated
the Closing Date and addressed to the Underwriter, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other
related matters as the Underwriter may reasonably require, and the
Company and the Selling Stockholders shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) The Company shall have furnished to the Underwriter a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the
Underwriter a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer or one of
the General Partners or managing member of such Selling Stockholder, as
the case may be, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the portions of the
Registration Statement, the Final Prospectus and any supplement to the
Final Prospectus relating to such Selling Stockholder and this
Agreement and that the representations and warranties of such Selling
Stockholder in this Agreement are true and correct in all material
respects on and as of the Closing Date to the same effect as if made on
the Closing Date and such Selling Stockholder has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date.
(g) The Company shall have requested and caused Arthur
Andersen LLP to have furnished to the Underwriter, at the Execution
Time and at the Closing Date, letters (which may refer to letters
previously delivered to Underwriter), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Underwriter, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited
interim financial information of the Company for the three-month
periods ended May 31, 2001 and May 31, 2000 and as of May 31, 2001, in
accordance with Statement on Auditing Standards No. 71, and stating in
effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements
included in or incorporated by reference in the Registration
Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
-19-
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
Subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information for the
three-month periods ended May 31, 2001 and May 31, 2000 and as
of May 31, 2001, included in or incorporated by reference in
the Registration Statement and the Final Prospectus; carrying
out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, the Board of
Directors and the Audit Committee and the Human Resources
Committee of the Company and the subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to May
31, 2001, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements
included in or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to financial statements
included in or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity
with GAAP applied on a basis substantially consistent
with that of the audited financial statements
included in or incorporated by reference in the
Registration Statement and the Final Prospectus; and
(2) with respect to the period subsequent to
May 31, 2001, there were, at a specified date not
more than five days prior to the date of the letter,
any changes in capital stock (other than as a result
of the exercise of the Company's outstanding stock
options, purchases under the Company's 1989 Employee
Stock Purchase Plan, as amended, any purchases under
the Company's UK Sharesave Scheme, any repurchases by
the Company under its Stock Repurchase Program or as
a result of the conversion of the Company's Class B
Common Stock (par value $.01 per share) into Common
Stock), net increase in long-term debt (other than
borrowings or repayments under the revolving portion
of the Credit Agreement) or any decreases in
consolidated net current assets (exclusive of
borrowings under the Credit Agreement to fund the
acquisition of Ravenswood Winery, Inc.) or
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stockholders' equity of the consolidated companies as
compared with the amounts shown on the May 31, 2001
consolidated balance sheet included in or
incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period
from June 1, 2001, to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year in consolidated net
sales or in total or per share amounts of income
before extraordinary items or of net income, except
in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Underwriter; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and the Subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Prospectus Supplement Summary -- Summary
Historical Consolidated Financial Data" and "Selected
Financial Data" in the Final Prospectus, the information
included in Items 1, 2, 6, 7, 7A, 8 and 11 of the Company's
Annual Report on Form 10-K, incorporated by reference in the
Registration Statement and the Final Prospectus, the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included in the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended May 31, 2001, incorporated by
reference in the Registration Statement and the Final
Prospectus, agree with the accounting records of the Company
and its Subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (g)
include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
-21-
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Underwriter,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated
by the Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may
reasonably request.
(j) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(k) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the Underwriter.
(l) At the Execution Time, the Selling Stockholders shall have
furnished to the Underwriter a letter substantially in the form of
Exhibit A hereto from each person or entity that is identified on
Schedule III hereto, addressed to the Underwriter.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Agreement and all obligations of the Underwriter hereunder may
be canceled at, or at any time prior to, the Closing Date by the Underwriter.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cahill Gordon & Reindel, counsel for the
Underwriter, at 80 Pine Street, New York, New York 10005, on the Closing Date.
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7. Reimbursement of Expenses.
If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriter set
forth in Section 6 hereof is not satisfied, because of any termination pursuant
to Section 9 hereof or because of any refusal, inability or failure on the part
of the Company or any Selling Stockholder to perform any agreement herein or
comply with any provision hereof other than by reason of a default by the
Underwriter, the Company will reimburse the Underwriter on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by it in connection with the proposed purchase and
sale of the Securities. If the Company is required to make any payments to the
Underwriter under this Section 7 because of any Selling Stockholder's refusal,
inability or failure to satisfy any condition to the obligations of the
Underwriter set forth in Section 6, the Selling Stockholders pro rata in
proportion to the percentage of Securities to be sold by each shall reimburse
the Company on demand for all amounts so paid.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter, its officers and directors, each person, if any, who controls the
Underwriter and each affiliate of the Underwriter that assists the Underwriter
in the distribution of the Securities, within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act, and each of the Selling
Stockholders, Richard Sands and Robert Sands (each a "Selling Stockholder
Indemnifying Party" and, collectively, the "Selling Stockholder Indemnifying
Parties") from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as originally
filed or any amendment thereof, or in the Basic Prospectuses, any Preliminary
Final Prospectus or the Final Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any written information furnished to the
Company (i) in the case of the Underwriter, by or on behalf of the Underwriter
specifically for inclusion therein or (ii) in the case of any Selling
Stockholder Indemnifying Party, by or on behalf of such Selling Stockholder
Indemnifying Party specifically for inclusion therein.
(b) Each Selling Stockholder, severally and not jointly, and
Richard Sands and Robert Sands, jointly and severally, agrees to indemnify and
hold harmless the Company, its directors, its officers and each person who
controls the Company within the meaning of either Section 15 of the Act or
-23-
Section 20 of the Exchange Act, the Underwriter, its officers and directors,
each person, if any, who controls the Underwriter and each affiliate of the
Underwriter which assists the Underwriter in the distribution of the Securities,
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to the
Underwriter and the Selling Stockholder Indemnifying Parties, but only from and
against such losses, claims, damages or liabilities which are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder Indemnifying Party specifically for
inclusion in the documents referred to in Section 8(a).
(c) The Underwriter agrees to indemnify and hold harmless each
of the Company, its directors, its officers and each person who controls the
Company within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act and each Selling Stockholder Indemnifying Party to the same extent
as the foregoing indemnity from the Company to the Underwriter and the Selling
Stockholder Indemnifying Parties but only from and against such losses, claims,
damages or liabilities which are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Underwriter
specifically for inclusion in the documents referred to in Section 8(a). The
Company and the Selling Stockholder Indemnifying Parties acknowledge that (i)
the statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", (ii) the
sentences related to concessions and reallowances and (iii) the paragraphs
related to stabilization, syndicate covering transactions and penalty bids in
any Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by the Underwriter for inclusion in any of the
documents referred to in Section 8(a).
(d) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought pursuant
to either of the three preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person or persons against whom such indemnity
may be sought (each an "Indemnifying Person") in writing, and such Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person, to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 8, that the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) such Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) such Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to such Indemnified
Person or (iii) the named parties in any such proceeding (including any
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impleaded parties) include an Indemnifying Person and an Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that an
Indemnifying Person shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriter, each affiliate of
the Underwriter which assists the Underwriter in the distribution of the
Securities and such control persons of the Underwriter shall be designated in
writing by the Underwriter, and any such separate firm for the Company, its
directors, its officers and such control persons of the Company shall be
designated in writing by the Company and any such firm for the Selling
Stockholder Indemnifying Parties shall be designated by such Selling Stockholder
Indemnifying Parties. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
such Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in the first, second
and third paragraphs of this Section 8 is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then the Company, the Underwriter and the Selling
Stockholder Indemnifying Parties severally agree to contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, by the Underwriter and by the Selling
Stockholder Indemnifying Parties (taken as a whole) from the offering of the
Securities; provided, however, that in no case shall the Underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by the Underwriter or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, of
the Underwriter and of the Selling Stockholder Indemnifying Parties in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder Indemnifying Parties on the one hand and the Underwriter on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering and sale of the Securities (before deducting
expenses) received by the Selling Stockholders and the total underwriting
commission received by the Underwriter, in each case as set forth in the table
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on the cover of the Final Prospectus. The relative fault of the Company, of the
Underwriter and of the Selling Stockholder Indemnifying Parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, by the
Underwriter, or by the Selling Stockholder Indemnifying Parties and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) The Company, the Underwriter and each of the Selling
Stockholder Indemnifying Parties severally agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall (i) the
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
the Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and (ii) any of the
Selling Stockholder Indemnifying Parties be required to contribute any amount in
excess of the amount that such party would have been required to pay under
Section 8(b) hereof. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(g) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(h) The indemnity and contribution agreements contained in
this Section 8 and the representations and warranties of the Company and the
Selling Stockholders set forth in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Company, its officers or
directors or any other person controlling the Company or by or on behalf of the
Selling Stockholder Indemnifying Parties and (iii) acceptance of and payment for
any of the Securities.
(i) The liability of each Selling Stockholder under such
Selling Stockholder's representations and warranties contained in Section 1
hereof and under the indemnity and contribution agreements contained in this
Section 8 shall be limited to an amount equal to the public offering price, net
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of the underwriting discount, of the Securities sold by such Selling Stockholder
to the Underwriter. The liability of each of Robert Sands and Richard Sands
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the public offering price, net of the
underwriting discount, of the Securities sold by the Selling Stockholders to the
Underwriter. The Company and the Selling Stockholder Indemnifying Parties may
agree, as among themselves and without limiting the rights of the Underwriter
under this agreement, as to the respective amounts of such liability for which
they each shall be responsible.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Underwriter, by notice given to the Company
and the Selling Stockholders prior to delivery of and payment for the
Securities, if at any time prior to such time (i) trading in the Company's
Common Stock shall have been suspended by the Commission or the New York Stock
Exchange or trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared either by
federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Underwriter, impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each of the Selling Stockholder Indemnifying Parties
and of the Underwriter set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of the Underwriter, any Selling Stockholder or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to the Salomon Smith Barney Inc. General Counsel
(facsimile no.: (212) 816-7912) and confirmed to the General Counsel, Salomon
Smith Barney Inc., at 388 Greenwich Street, New York, New York 10013, Attention:
General Counsel; with a copy to Cahill Gordon & Reindel, 80 Pine Street, New
York, New York 10005 (facsimile: (212) 269-5420), Attention: Daniel J. Zubkoff,
Esq.; or, if sent to the Company, will be mailed, delivered or telefaxed to the
Company, 300 WillowBrook Office Park, Fairport, New York 14450 (facsimile: (716)
218-2165), Attention: General Counsel; with a copy to McDermott, Will & Emery,
227 West Monroe Street, Chicago, Illinois 60606 (facsimile: (312) 984-7700),
Attention: Bernard Kramer, Esq.; or, if sent to any Selling Stockholder
Indemnifying Party, will be mailed, delivered or telefaxed to it at the address
set forth in Schedule II hereto.
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12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
14. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an
original and all of which together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean, collectively, the prospectuses
referred to in Section 1(a) above contained in the Registration
Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
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"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration
Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Selling Stockholders and the Underwriter.
Very truly yours,
CONSTELLATION BRANDS, INC.
By: /s/ Thomas S. Summer
----------------------------------
Name: Thomas S. Summer
Title: Executive Vice President and
Chief Financial Officer
R, R, M & C PARTNERS, L.L.C.
By: /s/ Robert Sands
------------------------------------
Name: Robert Sands
Title: President of R, R, M & C
Management Corporation, the
General Partner of R, R, M &
C Group, L.P., the Manager
of R, R, M & C Partners,
L.L.C.
M, L, R & R, a New York general partnership
By: /s/ Robert Sands
------------------------------------
Name: Robert Sands
Title: General Partner
ROBERT SANDS
(for purposes of Section 8 only)
/s/ Robert Sands
-------------------------------------------
Name: Robert Sands
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RICHARD SANDS
(for purposes of Section 8 only)
/s/ Richard Sands
-------------------------------------------
Name: Richard Sands
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The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
SALOMON SMITH BARNEY INC.
By: /s/ Andrew van der Vord
------------------------------
Name: Andrew van der Vord
Title: Managing Director
SCHEDULE I
Underwriting Agreement dated September 25, 2001
Registration Statement No. 333-63480
Underwriter: Salomon Smith Barney Inc.
Title, Purchase Price and Description of Securities:
Title: Class A Common Stock, par value $.01 per share
Number of Underwritten Securities to be sold by the Selling
Stockholders: 2,150,000
Number of Option Securities to be sold by the Company: 322,500
Price to Public per Share (include accrued dividends, if any): $38.75
Price to Public -- total: $83,312,500
Underwriting Discount per Share: $1.356
Underwriting Discount -- total: $2,915,400
Proceeds to Selling Stockholders per Share: $37.394
Proceeds to Selling Stockholders -- total: $80,397,100
Other provisions: N/A
Closing Date, Time and Location: October 1, 2001 at 9:00 AM at Cahill Gordon &
Reindel, 80 Pine Street, New York, New York 10005
Type of Offering: Delayed
Date referred to in Section 5(a)(vi) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Underwriter: December 24, 2001
Date referred to in Section 5(b)(i) after which the Selling Stockholders may
offer or sell securities issued or guaranteed by the Company without the consent
of the Underwriter: March 24, 2002.
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Modification of items to be covered by the letters from Arthur Andersen LLP,
delivered pursuant to Section 6(g), at the Execution Time and/or the Closing
Date, as applicable: N/A
SCHEDULE II
Number of Underwritten Securities
Selling Stockholders to Be Sold
-------------------- ---------------------------------
R, R, M & C PARTNERS, L.L.C.
c/o Constellation Brands, Inc.
300 WillowBrook Office Park
Fairport, New York 14450 .......................... 2,002,002
M, L, R & R
c/o Constellation Brands, Inc.
300 WillowBrook Office Park
Fairport, New York 14450 .......................... 147,998
---------
Total................................................... 2,150,000
=========
SCHEDULE III
George Bresler
Jeananne K. Hauswald
James A. Locke, III
Thomas A. McDermott
Paul L. Smith
Thomas S. Summer
Thomas Mullin
George H. Murray
Peter Aikens
Alexander Berk
Agustin Francisco Huneeus
Jon Moramarco
Richard Sands
Robert Sands
Marilyn Sands
CWC Partnership - I
CWC Partnership - II
Mac & Sally Sands Foundation Incorporated
Marvin Sands Master Trust
Trust for the benefit of the Grandchildren of Marvin and Marilyn Sands
ANNEX I
Form of Opinion of McDermott, Will & Emery
(i) The Company has been duly incorporated, is validly existing and
in good standing under the laws of the State of Delaware. The Company has the
corporate power and authority to execute, deliver and perform all of its
obligations under the Underwriting Agreement and the transactions contemplated
therein.
(ii) No consent, approval, authorization, order, registration or
qualification of or with any governmental authority or agency or, to our
knowledge, any court or similar body is required under the laws of the United
States, the State of New York and the General Corporation Law of the State of
Delaware for the execution, delivery or performance of the Underwriting
Agreement and the transactions contemplated therein by the Company except such
as (i) have been obtained under the Act and (ii) may be required under state
securities or blue sky laws in connection with the purchase and distribution of
the Securities by the Underwriter (as to which no opinion is required).
(iii) The execution, delivery and performance of the Underwriting
Agreement and the transactions contemplated therein by the Company and the
application of the net proceeds from the sale of the Securities in the manner
described in the Final Prospectus under the caption "Use of Proceeds" do not and
will not (A) conflict with the charter and bylaws of the Company, (B) conflict
with, constitute a breach of or a default by the Company or any Subsidiary, as
the case may be, under, or result in the creation or imposition of any lien,
security interest or encumbrance upon any of the assets of the Company or any
Subsidiary, as the case may be, pursuant to the terms of, the Credit Agreement
or any other indenture, mortgage, deed of trust, loan or credit agreement, bond,
debenture, note, lease or other agreement or instrument listed on Exhibit I
hereto, (C) contravene the General Corporation Law of the State of Delaware or
any statute, rule or regulation under the laws of the United States and the
State of New York applicable to the Company or any of its properties or (D) to
the knowledge of such counsel, conflict with or violate any judgment, decree or
order of any court or governmental agency or court or body applicable to the
Company or any of its properties.
(iv) The Underwriting Agreement and the transactions contemplated
therein have been duly authorized by the Company. The Underwriting Agreement and
any documents relating to the transactions contemplated therein have been duly
executed and delivered by the Company. The Securities have been duly delivered
to the Underwriter by the Selling Stockholders.
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(v) The Securities conform in all material respects to the
descriptions thereof under the caption "Description of Class A Common Stock" in
the Final Prospectus. The statements made in the Final Prospectus under the
captions "Certain United States Tax Considerations to Non-United States
Holders," insofar as they describe certain matters of law, are accurate in all
material respects.
(vi) Neither the Company nor any Subsidiary is required to register
under the Investment Company Act of 1940, as amended (the "1940 Act"), as an
"investment company" as such term is defined in the 1940 Act.
(vii) Neither the issuance, sale or delivery of the Securities nor
the application of the proceeds thereof by the Company as set forth in the Final
Prospectus will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(viii) The Company's authorized equity capitalization is as set forth
in the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final Prospectus;
the Securities are duly listed and admitted and authorized for trading on the
New York Stock Exchange; and the certificates for the Securities are in valid
and sufficient form.
(ix) Except as provided by the Registration Agreement, no holders of
securities of the Company have rights to the registration of such securities
under the Registration Statement.
(x) The Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final Prospectus
and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings for that purpose have
been instituted or threatened and the Registration Statement and the Final
Prospectus (other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder.
(xi) Assuming that the Underwriter acquires its interest in the
Securities it has purchased from such Selling Stockholder in good faith without
notice of any adverse claim (within the meaning of Section 8-105 of the UCC),
the Underwriter that shall purchase such Securities to be delivered on the
Closing Date to The Depository Trust Company or other securities intermediary
(assuming such are securities intermediaries within the meaning of Section
8-102(14) of the UCC) by making payment therefor as provided herein, and that
shall have such Securities credited by book entry to the securities account or
-3-
accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriter
maintained by The Depository Trust Company or such other securities
intermediary, shall acquire a security entitlement (within the meaning of
Section 8-102(1)(17) of the UCC) to such Securities, and, to the extent governed
by the UCC, no action based on an adverse claim (within the meaning of Section
8-102(a)(1) and Section 8-502 of the UCC) may be properly asserted against the
Underwriter with respect to such Securities;
Such opinion shall also contain a statement that such counsel
has participated in conferences with officers and representatives of the Company
and the Subsidiaries and representatives of the independent accountants of the
Company and the Underwriter at which the contents of the Registration Statement
and the Final Prospectus and related matters were discussed and that although
such counsel need not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Final Prospectus, and need not make any independent check or
verification thereof, except as set forth in paragraph (v) of this form of
opinion, based upon the foregoing, no facts came to such counsel's attention to
lead such counsel to believe that the Registration Statement, as of the
Effective Date or the date the Registration Statement was last deemed amended,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus (including the documents
incorporated therein by reference (except to the extent statements contained in
such documents have been modified or superseded by statements contained in the
Final Prospectus)), as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. Such counsel need not express an opinion or belief as to the
financial statements, the notes thereto, schedules and other financial data
included therein, or incorporated by reference into, or excluded from, the Final
Prospectus.
In rendering such opinions, such counsel may rely as to
matters of fact, to the extent such counsel deems proper, on certificates or
statements of responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody of documents
respecting corporate existence or good standing.
EXHIBIT I TO ANNEX I
1. Importer Agreement by and between Barton Beers, Ltd. and Extrade, S.A.
de C.V. dated as of November 22, 1996.
2. Indenture dated as of December 27, 1993 among the Company, its
subsidiaries and Chemical Bank, as trustee, as amended by (i) the First
Supplemental Indenture dated as of August 3, 1994 among the Company,
Canandaigua West, Inc., and Chemical Bank, as trustee, (ii) the Second
Supplemental Indenture dated as of August 25, 1995 among the Company, V
Acquisition Corp. (a subsidiary of the Company now known as The Viking
Distillery, Inc.), and Chemical Bank, as trustee, (iii) Third
Supplemental Indenture dated as of December 19, 1997 among the Company,
Canandaigua Europe Limited, Roberts Trading Corp. and The Chase
Manhattan Bank, as trustee, (iv) the Fourth Supplemental Indenture
dated as of October 2, 1998 among the Company, Polyphenolics, Inc., and
The Chase Manhattan Bank, as trustee, (v) the Fifth Supplemental
Indenture dated as of December 11, 1998 among the Company, Canandaigua
B.V., and The Chase Manhattan Bank, as trustee and (vi) the Sixth
Supplemental Indenture dated as of July 28, 1998 among the Company,
Barton Canada, Ltd., Simi Winery, Inc., Franciscan Vineyards, Inc.,
Allberry, Inc., M.J. Lewis Corp., Cloud Peak Corporation, Mt. Veeder
Corporation, SCV-EPI Vineyards, Inc. and The Chase Manhattan Bank, as
trustee.
3. Indenture with respect to the 8 3/4% Series C Senior Subordinated Notes
due 2003 dated as of October 29, 1996 among the Company, its
Subsidiaries and Harris Trust and Savings Bank, as trustee, as amended
by (i) the First Supplemental Indenture dated as of December 19, 1997
among the Company, Canandaigua Europe Limited, Roberts Trading Corp.
and Harris Trust and Savings Bank, (ii) the Second Supplemental
Indenture dated as of October 2, 1998 among the Company, Polyphenolics,
Inc. and Harris Trust and Savings Bank, (iii) the Third Supplemental
Indenture dated as of December 11, 1998 among the Company, Canandaigua
B.V. and Harris Trust and Savings Bank and (iv) the Fourth Supplemental
Indenture dated as of July 28, 1999, among the Company, Barton Canada
Ltd., Simi Winery, Inc., Franciscan Vineyards, Inc., Allberry, Inc.,
M.J. Lewis Corp., Cloud Peak Corporation, Mt. Veeder Corporation,
SCV-EPI Vineyards, Inc. and Harris Trust and Savings Bank, as trustee.
4. Indenture dated as of February 25, 1999 among the Company, the
Guarantors named therein and Harris Trust and Savings Bank as trustee,
as amended by (i) Supplemental Indenture No. 1 dated as of February 25,
1999 among the Company, the Guarantors named therein and Harris Trust
and Savings Bank as trustee, (ii) Supplemental Indenture No. 2 dated as
of August 4, 1999 among the Company, the Guarantors named therein and
Harris Trust and Savings Bank, as trustee, (iii) Supplemental
-2-
Indenture No. 3 dated as of August 6, 1999 among the Company, the New
Guarantors named therein and Harris Trust and Savings Bank, as trustee,
and (iv) Supplemental Indenture No. 4, dated as of May 15, 2000 among
the Company, as Issuer, its principal operating subsidiaries, as
Guarantors and Harris Trust and Savings Bank, as trustee, as further
amended by Supplemental Indenture No. 5, dated as of September 14, 2000
by and among the Company, as Issuer, its principal operating
subsidiaries as Guarantors and The Bank of New York, as trustee.
5. Indenture dated as of November 17, 1999 among the Company, as Issuer,
certain principal subsidiaries, as Guarantors and Harris Trust and
Savings Bank, as trustee.
6. Indenture, dated as of February 21, 2001, by and among the Company,
certain of the Subsidiaries, and BNY Midwest Trust Company, as Trustee.
7. Registration Agreement, dated as of September 4, 2001, by and among the
Company and the stockholders named therein.
8. Barton Incorporated Management Incentive Plan.
9. Barton Brands, Ltd. Deferred Compensation Plan.
10. Marvin Sands Split Dollar Insurance Agreement.
11. Long-Term Stock Incentive Plan, which amends and restates the
Canandaigua Wine Company, Inc. Stock Option and Stock Appreciation
Right Plan, as amended by Amendment Number One to the Long-Term Stock
Incentive Plan of the Company, as further amended by Amendment Number
Two to the Long-Term Stock Incentive Plan of the Company, as further
amended by Amendment Number Three to the Long-Term Stock Incentive
Plan.
12. Incentive Stock Option Plan of the Company, as amended by Amendment
Number One to the Incentive Stock Option Plan of the Company, as
further amended by Amendment Number Two to the Incentive Stock Option
Plan of the Company.
13. Annual Management Incentive Plan of the Company, as amended by
Amendment Number One to the Annual Management Incentive Plan of the
Company.
14. Asset Purchase Agreement dated February 21, 1999 by and among the
Company and Diageo Inc., UDV Canada Inc., and United Distillers Canada
Inc.
15. Stock Purchase Agreement by and between Canandaigua Wine Company, Inc.
and Moet Hennessy, Inc., dated as of April 1, 1999.
-3-
16. Stock Purchase Agreement between Franciscan Vineyards, the Selling
Shareholders and Selling Stockholders named therein, and Canandaigua
Brands, Inc., dated April 21, 1999; Vineyard Purchase Agreement between
Canandiagua Brands, Inc. and Eckes Properties, Inc., dated as of April
21, 1999; Vineyard Purchase Agreement between Canandaigua Brands, Inc.
and Stonewall Canyon Vineyards, LLC, dated as of April 21, 1999; Grape
Purchase Agreement, between Franciscan Vineyards, Inc., Huneeus-Chantre
Properties, LLC and Canandaigua Brands, Inc., dated as of June 4, 1999,
Guaranty, by Canandaigua Brands, Inc. in favor of Huneeus-Chantre
Properties, LLC, dated as of June 4, 1999; Grape Purchase Agreement,
between Franciscan Vineyards, Inc. H/Q Vineyards LLC and Canandaigua
Brands, Inc.; Guaranty, by Canandaigua Brands, Inc. in favor of H/Q
Vineyards LLC, dated as of June 4, 1999; Wine Processing Agreement,
between Franciscan Vineyards, Inc., H/Q Wines LLC and Canandaigua
Brands, Inc., dated as of June 4, 1999; Guaranty, by Canandaigua
Brands, Inc. in favor of H/Q Wines LLC, dated as of June 4, 1999; ACSA
Stock Agreement, among Alto de Casablanca S.A., Franciscan Vineyards,
Inc. and Asesoria e Inversiones Leo S.A., dated as of June 1, 1999;
EVSA Stock Agreement, among Empresas Vitivinicolas S.A., Franciscan
Vineyards, Inc. and Asesoria e Inversiones Leo S.A., dated as of June
1, 1999; ACSA Distribution Agreement, by and between Franciscan
Vineyards, Inc., Alto de Casablanca S.A., H/Q Wines LLC, International
Brand Management, Ltd. and Canandaigua Brands, Inc., dated as of June
4, 1999; Purchase Agreement among Sebastiani Vineyards, Inc., Tuolomne
River Vintners Group and Canandaigua Wine Company, Inc., dated as of
January 30, 2001.
17. Credit Agreement, dated as of October 6, 1999, as amended by Amendment
No. 1 thereto on February 13, 2001, Amendment No. 2 thereto on May 16,
2001 and Amendment No. 3 thereto on September 7, 2001, between the
Company, the guarantors named therein, the lenders signatory thereto,
and The Chase Manhattan Bank, as Administrative Agent, The Bank of Nova
Scotia, as Syndication Agent, and Credit Suisse First Boston and
Citicorp USA, Inc., as Co-Documentation Agents.
18. Purchase Agreement, dated as of January 30, 2001, by and among
Sebastiani Vineyards, Inc., Tuolomne River Vintners Group and
Canandaigua Wine Company, Inc.
19. Agreement and Plan of Merger, dated as of April 10, 2001, by and among
Constellation Brands, Inc., VVV Acquisition Corp. and Ravenswood
Winery, Inc.
ANNEX II
Form of Opinion of Nixon Peabody LLP
(i) Each of the Subsidiaries of the Company listed on Exhibit I
attached hereto (the "Subsidiaries") is a corporation duly incorporated, in each
case, validly existing and in good standing under the laws of its respective
jurisdiction of incorporation. The Company and each of the Subsidiaries is duly
qualified and in good standing as a foreign corporation in each jurisdiction
listed for it on Exhibit II attached hereto. The Company and each Subsidiary has
all requisite corporate power to own, lease and license its respective
properties and conduct its business as now being conducted and as described in
the Final Prospectus. All of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable and was not issued in violation of any preemptive or similar
rights of stockholders arising under the corporate law of the state of
incorporation of such Subsidiary, the charter or bylaws of such Subsidiary, or,
to the best knowledge of such counsel, any agreement to which such Subsidiary is
party, and, to the best knowledge of such counsel, is owned by the Company, free
and clear of any lien, adverse claim, security interest, restriction on
transfer, shareholders' agreement, voting trust or other defect of title
whatsoever except for the liens under the Credit Agreement.
(ii) The execution, delivery and performance of the Underwriting
Agreement and the transactions contemplated therein by the Company does not and
will not (A) conflict with the charter or bylaws of any Subsidiary, (B)
contravene the General Corporation Law of the State of Delaware or any statute,
rule or regulation under the laws of the State of New York applicable to the
Subsidiaries or any of their respective properties, or (C) to the knowledge of
such counsel, conflict with or violate any judgment, decree or order of any
court or governmental agency or court or body applicable to any of the
Subsidiaries or any of their respective properties.
(iii) To the best knowledge of such counsel after due inquiry, except
as described or referred to in the Final Prospectus, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation to which the
Company or any of the Subsidiaries is a party, or to which the property of the
Company or any of the Subsidiaries is subject, before or brought by any court or
governmental agency or body, which, if determined adversely to the Company or
any of the Subsidiaries, will individually or in the aggregate result in any
material adverse change in the business, financial position, net worth, results
of operations or prospects, or materially adversely affect the properties or
assets, of the Company and the Subsidiaries taken as a whole or will materially
adversely affect the consummation of the transactions contemplated by the Final
Prospectus; and all pending legal or governmental proceedings to which the
Company or any of the Subsidiaries is a party or that affect any of their
respective properties that are not described in the Final Prospectus, including
-2-
ordinary routine litigation incidental to the business, considered in the
aggregate, will not result in a material adverse change in the business,
financial position, net worth, results of operations or prospects, or materially
adversely affect the properties or assets, of the Company and the Subsidiaries
taken as a whole.
(iv) Each of the documents filed by the Company under the Exchange
Act and incorporated by reference into the Final Prospectus (collectively, the
"Documents"), at the time it was filed with the Commission, appeared on its face
to be appropriately responsive in all material respects to the requirements of
the Exchange Act, and the rules and regulations as promulgated by the Commission
under the Exchange Act, except that such counsel need not express any opinion as
to the financial statements, schedules, and other financial data included
therein or incorporated by reference therein, or excluded therefrom or the
exhibits thereto (except to the extent set forth in the next sentence of this
paragraph) and such counsel need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Documents. To such
counsel's knowledge without having made any independent investigation and based
upon representations of officers of the Company as to factual matters, there
were no contracts or documents required to be filed as exhibits to such
Documents on the date they were filed which were not so filed.
(v) The outstanding shares of Common Stock (including the
Securities) have been duly and validly authorized and issued and are fully paid
and non-assessable; and, except as set forth in the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interest in the Company are
outstanding.
EXHIBIT I TO ANNEX II
Subsidiaries
Subsidiary State of Incorporation
---------- ----------------------
Barton Brands, Ltd. Delaware
Barton Incorporated Delaware
Batavia Wine Cellars, Inc. New York
Canandaigua Wine Company, Inc. New York
Franciscan Vineyards, Inc. Delaware
Barton Canada, Ltd. Illinois
EXHIBIT II TO ANNEX II
Company Foreign Qualifications
------- ----------------------
Canandaigua Brands, Inc. New York
California
Florida
Georgia
Michigan
Oklahoma
New Hampshire
North Carolina
New Jersey
Barton Incorporated None
Barton Brands, Ltd. California
Kentucky
Illinois
Florida
Maine
Oklahoma
New Hampshire
North Carolina
New Jersey
West Virginia
Batavia Wine Cellars, Inc. New Jersey
Canandaigua Wine Company, Inc. California
Washington
Oregon
Franciscan Vineyards, Inc. None
ANNEX III
Form of Opinion Lewis Rice and Fingersh, L.C.
(i) The Selling Stockholder has been duly formed, is validly
existing and in good standing under the laws of the State of Missouri. The
Selling Stockholder has the limited liability company power and authority to
execute, deliver and perform all of its obligations under the Underwriting
Agreement and the transactions contemplated therein.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Selling Stockholder, is valid and binding on the Selling
Stockholder and the Selling Stockholder has full legal right and authority to
sell, transfer and deliver in the manner provided in the Underwriting Agreement
the Securities being sold by such Selling Stockholder hereunder;
(iii) To such counsel's knowledge, no Approvals are required for the
consummation by the Selling Stockholder of the transactions contemplated herein,
except such as may be required under the Act and such Approvals as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriter and such other
Approvals as have been obtained; and
(iv) Neither the sale of the Securities being sold by the Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder nor the fulfillment of the terms the
Underwriting Agreement by such Selling Stockholder will conflict with, result in
a breach or violation of, or constitute a default under, any statute, rule or
regulation known by such counsel to be applicable to such Selling Stockholder or
the limited liability company agreement or the operating agreement of such
Selling Stockholder or the terms of any indenture or other agreement or
instrument known to such counsel and to which such Selling Stockholder or any of
its subsidiaries is a party or bound, or any judgment, order or decree known to
such counsel to be applicable to such Selling Stockholder or any of its
subsidiaries of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over such Selling Stockholder or any of
its subsidiaries.
ANNEX IV
Form of Opinion Nixon Peabody LLP
(i) The Selling Stockholder has been duly formed, is validly formed
and in good standing under the laws of the State of New York. The Selling
Stockholder has the partnership power and authority to execute, deliver and
perform all of its obligations under the Underwriting Agreement and the
transactions contemplated therein.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Selling Stockholder, and the Selling Stockholder has full
legal right and authority to sell, transfer and deliver in the manner provided
in the Underwriting Agreement the Securities being sold by such Selling
Stockholder hereunder;
(iii) To such counsel's knowledge, no Approvals are required for the
consummation by the Selling Stockholder of the transactions contemplated herein,
except such as may be required under the Act and such Approvals as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriter and such other
Approvals as have been obtained; and
(iv) Neither the sale of the Securities being sold by the Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder nor the fulfillment of the terms the
Underwriting Agreement by such Selling Stockholder will conflict with, result in
a breach or violation of, or constitute a default under, any statute, rule or
regulation known by such counsel to be applicable to such Selling Stockholder or
the partnership agreement of such Selling Stockholder or the terms of any
indenture or other agreement or instrument known to such counsel and to which
such Selling Stockholder or any of its subsidiaries is a party or bound, or any
judgment, order or decree known to such counsel to be applicable to such Selling
Stockholder or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
such Selling Stockholder or any of its subsidiaries.
EXHIBIT A
[Form of Lock-Up Agreement]
Constellation Brands, Inc.
--------------------------
Public Offering of Class A Common Stock
---------------------------------------
September 25, 2001
Salomon Smith Barney Inc.
388 Greenwich St.
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between
Constellation Brands, Inc., a Delaware corporation (the "Company"), the Selling
Stockholders named therein and you, as Underwriter, relating to an underwritten
public offering of Class A Common Stock, $.01 par value (the "Common Stock"), of
the Company.
In order to induce you to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of [90/180]/1/ days after
the date of the Underwriting Agreement, other than (i) shares of Common Stock
disposed of as bona fide gifts[, provided however, that the recipient of such
----------------------
/1/ Members of the Sands family and their related entities will be 180 days.
-2-
Common Stock agrees in writing to be bound by the terms hereof]/2/ and (ii)
shares of Common Stock sold upon exercise of stock options pursuant to the
Company's Cashless Exercise Program.
-----------------------------
/2/ Clause not to apply to directors.
-3-
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
-----------------------------
Name:
Address