Constellation Brands, Inc.
000 XxxxxxXxxxx Xxxxxx Xxxx
Xxxxxxxx XX 00000
6 February 2003
The Directors
BRL Hardy Limited
Reynell Road
Reynella
South Australia 5161
STRICTLY PRIVATE & CONFIDENTIAL
Gentlemen
We refer to the implementation deed dated 17 January 2003 between BRL Hardy
Limited ("BRL Hardy") and Constellation Brands, Inc. ("Constellation") (the
"Implementation Deed").
1. Each of XXX Xxxxx and Constellation agrees that:
(a) the scheme of arrangement to be proposed by XXX Xxxxx under
clause 5.1 of the Implementation Deed will be in the form set out
in annexure 1 to this letter and not in the form set out in
schedule 3 to the Implementation Deed;
(b) the scheme of arrangement to be proposed by XXX Xxxxx under
clause 6.1 of the Implementation Deed will be in the form set out
in annexure 2 to this letter and not in the form set out in
schedule 4 to the Implementation Deed; and
(c) the deed poll to be executed by Constellation under clause 8.2(i)
of the Implementation Deed will be in the form set out in
annexure 3 to this letter and not in the form set out in schedule
5 to the Implementation Deed;
(d) the election form referred to in clause 5.3 of the Implementation
Deed shall be in the form set out in annexure 4 to this letter,
subject to completion of facsimile numbers by XXX Xxxxx.
2. This letter may be executed in one or more counterparts, all of which
taken together shall constitute one and the same agreement. Either
party may enter into the agreement set forth in this letter by signing
any such counterpart.
3. This letter shall be governed by the laws of the State of South
Australia, without regard to conflicts of laws principles. The parties
consent to the jurisdiction and venue of the South Australian Supreme
Court for any action arising under or in connection with this letter.
Please confirm that this letter is in accordance with XXX Xxxxx'x understanding
of our agreement by signing this letter as indicated below.
Very truly yours
CONSTELLATION BRANDS, INC.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Accepted and agreed to as of the date first set forth above
BRL HARDY LIMITED.
By: /s/
Name: Name not available when filed
Annexure 1
XXXXXXX XXX
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BRL Hardy Limited (ACN 008 273 907)
XXX Xxxxx
The holders of ordinary shares in the capital of XXX Xxxxx
Shareholders
Scheme of Arrangement
XXXXXXX XXX
Lawyers
Levels 00-00 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Square Sydney NSW 1215
xxx.xxxxxxxxxx.xxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our ref - 126/618/21723614 Contact - Xxxxxxxx Xxxxx
Sydney o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability limited by the Solicitors Scheme, approved under the
Professional Standards Act 1994 (NSW)
Scheme of Arrangement
1. Definitions and interpretations...................................1
1.1 Definitions...........................................1
1.2 Interpretation........................................4
2. Conditions Precedent..............................................4
2.1 Conditions Precedent..................................4
2.2 Certificate...........................................4
2.3 Termination of Implementation Deed....................5
3. Lodgement.........................................................5
4. Implementation....................................................5
4.1 Transfer of Scheme Shares.............................5
4.2 Payment of Scheme Consideration.......................5
5. Scheme Consideration..............................................6
5.1 Forms of Scheme Consideration.........................6
5.2 Calculation of Scrip Consideration....................6
5.3 Form of Scheme Consideration..........................6
5.4 Allocation of Scrip Consideration.....................7
5.5 Constellation CDIs....................................7
5.6 Foreign Scheme Shareholders...........................8
5.7 Fractional entitlements...............................8
5.8 Currency of Cash Consideration........................8
5.9 Joint holders.........................................8
6. Issue and trading.................................................9
6.1 Issue.................................................9
6.2 Trading..............................................10
7. Dealings in Shares...............................................10
7.1 Dealings on or prior to Record Date..................10
7.2 Dealings after Record Date...........................10
7.3 Provision of Information.............................10
8. General Scheme Provisions........................................11
Parties BRL Hardy Limited, ACN 008 273 000 xx Xxxxxxx Xxxx,
Xxxxxxxx, 0000, Xxxxxxxxx ("BRL Hardy")
The holders of ordinary shares in the capital of XXX
Xxxxx, other than persons holding ordinary shares on
behalf of or for the benefit of Constellation or its
Subsidiaries ("Shareholders").
Recitals
X. XXX Xxxxx is a public company incorporated in the State of South
Australia.
B. BRL Hardy and Constellation Brands, Inc. ("Constellation") have
entered into the Implementation Deed pursuant to which XXX Xxxxx has
agreed to propose this Scheme to the Shareholders and each of BRL
Hardy and Constellation have agreed to execute all documents and do
all things necessary or desirable to be executed or done by XXX
Xxxxx or Constellation, and Constellation has agreed to procure that
Constellation Australia Pty Limited, ACN 103 362 232 ("Constellation
Australia") execute all documents and do all things necessary or
desirable to be executed or done by Constellation Australia, to give
effect to this Scheme.
C. If this Scheme becomes Effective then all of the Scheme Shares will
be transferred to Constellation Australia and Constellation
Australia will pay the Share Scheme Consideration to the Scheme
Shareholders.
D. Constellation has entered into the Deed Poll for the purpose of
covenanting in favour of the Scheme Shareholders to perform its
obligations under this Scheme and the Implementation Deed and to
procure that Constellation Australia perform the obligations of
Constellation Australia under this Scheme.
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1. Definitions and interpretations
1.1 Definitions
In this Scheme, unless the context otherwise requires:
"ASIC" means the Australian Securities and Investments Commission.
"ASX" means Australian Stock Exchange Limited.
"Australia" means Australia and all of its external territories.
"Australian Listing Condition" means the Condition Precedent in
clause 4.1(f)(ii) of the Implementation Deed.
"Business Day" has the meaning given in the Listing Rules.
"Cash Consideration" has the meaning given in clause 5.1.
"CDIs" has the meaning given in the Listing Rules.
"CHESS" means the Clearing House Electronic Sub-register System for
the transfer and registration of securities as operated by the
Securities Clearing House authorised to do so by the Corporations
Act.
"Conditions Precedent" means the conditions precedent set out in
clause 2.1.
"Corporations Act" means the Corporations Act 2001 (Commonwealth).
"Court" means the Supreme Court of South Australia.
"Court Hearing Time" means the commencement of the hearing by the
Court of the application for approval of the Scheme pursuant to
section 411(4)(b) of the Corporations Act or, if the application is
adjourned for any reason, means the commencement of the hearing of
the adjourned application.
"Constellation CDIs" means CDIs representing Constellation Shares.
"Constellation Shares" means shares of Class A common stock, par
value US$0.01 per share, of Constellation.
"Constellation Share Price" means the volume weighted average share
price of Constellation Shares in US$ traded on the New York Stock
Exchange during the Price Setting Period.
"Deed Poll" means the deed poll dated [XXX] executed by
Constellation in which, among other things, Constellation has
covenanted in favour of the Scheme Shareholders to perform its
obligations under the Scheme and to procure that Constellation
Australia performs the obligations of Constellation Australia under
the Scheme including the obligation to pay and issue the Scheme
Consideration.
"Depositary" means CHESS Depositary Nominees Pty Limited, a
subsidiary of ASX, or such other depositary as the parties may agree
in writing.
"Election" means a valid election made by a Scheme Shareholder as to
the form of Scheme Consideration which that Scheme Shareholder
wishes to receive in accordance with the form of election included
with the Scheme Booklet.
"Eligible Scheme Shareholder" means a Scheme Shareholder other than
a Foreign Scheme Shareholder or a US Scheme Shareholder.
"Effective Date" means the date on which an office copy of the
Scheme Order is lodged with ASIC pursuant to section 411(10) of the
Corporations Act or, if an earlier date is specified in the Scheme
Order for the coming into effect of the Scheme, that earlier date.
"Excluded Holder" means a person registered as the holder of
Excluded Shares.
"Excluded Shares" means any Shares held by any person on behalf of
or for the benefit of Constellation or its Subsidiaries.
"Explanatory Statement" means the explanatory statement of XXX Xxxxx
in relation to the Scheme issued pursuant to section 412 of the
Corporations Act which has been registered with ASIC.
"Foreign Scheme Shareholder" means a Scheme Shareholder whose
address in the Register as at the Record Date is a place outside
Australia, New Zealand, Hong Kong, Singapore, the United Kingdom or
the United States.
"Implementation Deed" means the Implementation Deed dated 17 January
2003 between Constellation and XXX Xxxxx.
"Implementation Date" means the date which is 3 Business Days after
the Record Date.
"Listing Rules" means the official listing rules of ASX.
"New Constellation Shares" means the Constellation Shares to be
issued to Scheme
Shareholders and to the Depositary under clause 5.5 as the Scrip
Consideration.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
governmental authority or other entity.
"Price Setting Period" means the last 10 full trading days of
Constellation Shares on the New York Stock Exchange prior to the
time which is 24 hours before the Court Hearing Time.
"Record Date" means the date which is 5 Business Days after the
Effective Date.
"Register" means the register of members of XXX Xxxxx maintained in
accordance with the Corporations Act.
"Scheme" means this scheme of arrangement subject to any alterations
or conditions made or required by the Court pursuant to section
411(6) of the Corporations Act.
"Scheme Booklet" means the information to be dispatched to the
Shareholders including the Explanatory Statement, a report by the
Independent Expert, a copy of the Scheme, the Deed Poll and the
Implementation Deed and notices convening the Scheme Meeting
(together with proxy forms) in such form as the parties may agree in
writing.
"Scheme Consideration" means the consideration to be paid to Scheme
Shareholders for the transfer to Constellation Australia of each
Scheme Share, ascertained in accordance with clause 5.
"Scheme Meeting" means the meeting of Shareholders to be convened by
the Court pursuant to section 411(1) of the Corporations Act in
respect of the Scheme.
"Scheme Order" means the orders of the Court approving the Scheme
pursuant to section 411(4) of the Corporations Act.
"Scheme Shareholder" means each person who is registered in the
Register as the holder of Scheme Shares at 10.00 pm on the Record
Date.
"Scheme Shares" means the Shares on issue as at the Effective Date
other than the Excluded Shares.
"Scrip Consideration" has the meaning given in clause 5.1.
"Scrip Consideration Cap" means 15,000,000 New Constellation Shares.
"Scrip Election" has the meaning given in clause 5.5(a).
"Shares" means fully paid ordinary shares in the capital of XXX
Xxxxx.
"United States" means the United States of America.
"US Scheme Shareholder" means a Scheme Shareholder whose address on
the Register as at the Record Date is within the United States.
"US Listing Conditions" means the Conditions Precedent in clauses
4.1(e) and 4.1(f)(ii) of the Implementation Deed.
1.2 Interpretation
In this Scheme:
(a) headings are for convenience only and do not affect
interpretation;
and unless the context indicates a contrary intention:
(b) a reference to any document (including this Scheme) is to that
document as amended, varied, novated, ratified or replaced
from time to time;
(c) a reference to any statute or to any statutory provision
includes any statutory modification or re-enactment of it or
any statutory provision substituted for it, and all
ordinances, by-laws, regulations, rules and statutory
instruments (however described) issued or promulgated under
it;
(d) words importing the singular include the plural (and vice
versa), and words indicating a gender include every other
gender;
(e) references to parties, clauses, schedules, exhibits or
annexures are references to parties, clauses, schedules,
exhibits and annexures to or of this Scheme, and a reference
to this Scheme includes any schedule, exhibit or annexure to
this Scheme;
(f) where a word or phrase is given a defined meaning, any other
part of speech or grammatical form of that word or phrase has
a corresponding meaning;
(g) the word "includes" in any form is not a word of limitation;
(h) a reference to "$" or "dollar" is to Australian currency
unless it is preceded by "US", in which case such reference is
to United States currency; and
(i) references to a particular time are to South Australian time.
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2. Conditions Precedent
2.1 Conditions Precedent
The Scheme is conditional on each of the following conditions
precedent:
(a) as at the Court Hearing Time all of the conditions precedent
set out in clause 4.1 of the Implementation Deed have been
satisfied or waived in accordance with the terms of the
Implementation Deed;
(b) as at the Court Hearing Time, the Implementation Deed has not
been terminated;
(c) the Scheme has been approved in accordance with section 411(4)
of the Corporations Act at the Scheme Meeting; and
(d) the Court has approved the Scheme pursuant to section 411(4)
of the Corporations Act with or without modification,
and the provisions of clauses 3, 4, 5 and 6 will be of no effect
unless and until the Conditions Precedent are satisfied.
2.2 Certificate
At the hearing by the Court of the application for the Scheme Order,
Constellation and BRL Hardy will each provide to the Court a
certificate confirming whether or not all of the conditions
precedent in the Implementation Deed have been satisfied or waived
or have ceased to have effect in accordance with the Implementation
Deed.
2.3 Termination of Implementation Deed
In the event that the Implementation Deed is terminated, each of BRL
Hardy, Constellation and Constellation Australia are released from:
(a) any further obligation to take steps to implement the Scheme;
and
(b) any liability with respect to the Scheme.
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3. Lodgement
XXX Xxxxx must lodge with ASIC the Scheme Order by 5.00 pm on the
Business Day following the date on which the Court approves the
Scheme.
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4. Implementation
4.1 Transfer of Scheme Shares
On the Implementation Date, all of the Scheme Shares will be
transferred to Constellation Australia without the need for any
further act by any Scheme Shareholder by BRL procuring the delivery
of a transfer or transfers in respect of all of the Scheme Shares to
the ASX Settlement and Transfer Corporation Pty Limited by a broker
nominated in writing by Constellation Australia to effect a valid
transfer of the Scheme Shares to Constellation Australia under
section 1074D of the Corporations Act, or, if such procedure is not
available for any reason, by:
(a) XXX Xxxxx delivering to Constellation Australia a duly
completed and executed share transfer form or forms to
transfer all of the Scheme Shares to Constellation Australia;
(b) Constellation Australia executing and delivering the share
transfer form or forms to BRL Hardy; and
(c) XXX Xxxxx entering the name of Constellation Australia in the
Register as the holder of all of the Scheme Shares.
4.2 Payment of Scheme Consideration
Subject to clause 5.1(b), in consideration for the transfer to
Constellation Australia of each Scheme Share on the Implementation
Date, Constellation Australia will, within 5 Business Days after the
Implementation Date:
(a) pay to each Scheme Shareholder such amount of cash as is due
to that Scheme Shareholder under clause 5 as Cash
Consideration;
(b) cause to be issued to each US Scheme Shareholder such number
of New Constellation Shares as are due to that US Scheme
Shareholder under clause 5 as Scrip Consideration; and
(c) cause to be issued in accordance with clause 5.5 such number
of New Constellation Shares as are due to the Eligible Scheme
Shareholders under clause 5 as Scrip Consideration; and
(d) cause to be issued in accordance with clause 5.6 such number
of New Constellation Shares as are due to the Foreign Scheme
Shareholders under clause 5 as Scrip Consideration.
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5. Scheme Consideration
5.1 Forms of Scheme Consideration
(a) Subject to clause 5.1(b), the Scheme Consideration in respect
of each Scheme Share is either:
(i) a cash amount of A$10.50 (the "Cash Consideration"); or
(ii) the number of New Constellation Shares calculated in
accordance with clause 5.2 (the "Scrip Consideration").
Each Scheme Shareholder is entitled to receive either Cash
Consideration or Scrip Consideration in respect of each Scheme
Share held by that Scheme Shareholder. The allocation of each
Scheme Shareholder's entitlement to Scheme Consideration as
between Cash Consideration and Scrip Consideration will be
determined in accordance with clause 5.3.
(b) If the US Listing Conditions are not satisfied by the date
which is 5 Business Days before the Scheme Meeting or the
Australian Listing Condition is not satisfied by 8.00 am on
the Second Court Date then, in accordance with the terms of
the Share Scheme, all Scheme Shareholders will receive Cash
Consideration whether or not they have elected to receive
Scrip Consideration.
5.2 Calculation of Scrip Consideration
Subject to clause 5.5 the Scrip Consideration is the number of New
Constellation Shares for each Scheme Share given by the following
formula:
C x 10.50
N = ---------- where:
P
N is the number of New Constellation Shares to be issued as
consideration for each Scheme Share;
P is the Constellation Share Price in US$ provided that:
(a) if the Constellation Share Price is below US$22.50, P is
22.50; and
(b) if the Constellation Share Price is above US$27.50, P is
27.50;
C is the average of the closing US$/A$ exchange rate (in units
of US$ per A$1.00) as quoted by Bloomberg (based on the New
York market close at 5.30 pm (New York time)) for each day in
the Price Setting Period.
5.3 Form of Scheme Consideration
Subject to clause 5.1(b) the, form of Scheme Consideration to be
paid to Scheme Shareholders will be determined in accordance with
the following provisions of this clause 5.3:
(a) each Scheme Shareholder who does not make an Election will
receive Cash Consideration in respect of all of that Scheme
Shareholder's Scheme Shares;
(b) each Scheme Shareholder who makes an Election to receive all
or part of the Scheme Consideration in the form of Cash
Consideration will receive that part of the Scheme
Consideration in the form of Cash Consideration;
(c) subject to clause 5.6, each Scheme Shareholder who makes an
Election to receive all or part of the Scheme Consideration in
the form of Scrip Consideration will receive:
(i) such part of the Scheme Consideration to which that
Scheme Shareholder is entitled as is ascertained in
accordance with clause 5.4 in the form of Scrip
Consideration; and
(ii) the balance of the Scheme Consideration to which that
Scheme Shareholder is entitled in the form of Cash
Consideration.
5.4 Allocation of Scrip Consideration
(a) If the aggregate number of New Constellation Shares which
would be issued by Constellation pursuant to Elections to
receive Scheme Consideration in the form of Scrip
Consideration (a "Scrip Election") if all Scrip Elections were
satisfied in full is less than or equal to the Scrip
Consideration Cap then each Scheme Shareholder who has made a
Scrip Election in respect of some or all of that Scheme
Shareholder's Scheme Shares will receive Scrip Consideration
in respect of all of the Scheme Shares in respect of which the
Scrip Election is made.
(b) If the aggregate number of New Constellation Shares which
would be issued by Constellation pursuant to Scrip Elections
if all Scrip Elections were satisfied in full exceeds the
Scrip Consideration Cap then each Scheme Shareholder who has
made a Scrip Election will receive Scrip Consideration in
respect of such number of the Scheme Shares in respect of
which the Scrip Election is made as is given by the following
formula
C x E
S = ------
A
where:
S is the number of Scheme Shares in respect of which Scrip
Consideration will be received by the Scheme
Shareholder.
C is the number of New Constellation Shares comprising the
Scrip Consideration Cap.
E is the number of Scheme Shares in respect of which a
Scrip Election was made by the Scheme Shareholder.
A is the aggregate number of New Constellation Shares
which would be issued by Constellation to Scheme
Shareholders if all Scrip Elections were satisfied in
full.
5.5 Constellation CDIs
Where an Eligible Scheme Shareholder is entitled to Scrip
Consideration in accordance with clause 5.3:
(a) the number of New Constellation Shares which would otherwise
be required to be issued to the Eligible Scheme Shareholder
will not be issued to the Eligible Scheme Shareholder and will
instead be issued to the Depositary to hold on trust for the
Eligible Scheme Shareholder; and
(b) Constellation Australia will cause to be issued to the
Eligible Scheme Shareholder
10 Constellation CDIs for each New Constellation Share to
which the Eligible Scheme Shareholder would be entitled under
clause 5.2.
5.6 Foreign Scheme Shareholders
If a Foreign Scheme Shareholder makes an Election to receive all or
part of the Scheme Consideration in the form of Scrip Consideration
then:
(a) the New Constellation Shares which would otherwise be required
to be issued to the Foreign Scheme Shareholder will not be
issued to the Foreign Scheme Shareholder and will instead be
issued to a nominee appointed by Constellation;
(b) Constellation will cause the nominee to offer for sale on the
open market within 5 Business Days after the Implementation
Date all of the New Constellation Shares issued to the nominee
under this clause 5.6 in such manner, at such price and on
such other terms as the nominee shall determine and to remit
to Constellation the proceeds of sale (after deducting
brokerage, taxes and other costs of sale) (the "Proceeds") ;
and
(c) Constellation will pay to each Foreign Shareholder such
fraction of the Proceeds as is equal to the number of New
Constellation Shares which would have been issued to the
Foreign Shareholder but for the application of this clause 5.6
divided by the total number of New Constellation Shares issued
to the nominee under this clause 5.6.
5.7 Fractional entitlements
If a fractional entitlement to a New Constellation Share arises from
the calculation of the Scheme Consideration in respect of a Scheme
Shareholder, then any such fractional entitlement to a New
Constellation Share shall be rounded down to the nearest whole
number of New Constellation Shares, as the case may be, and all
fractional entitlements will be paid in the form of Cash
Consideration. Any Cash Consideration payable under this clause 5.7
will be calculated by multiplying the fractional entitlement to a
New Constellation Share by the Constellation Share Price converted
into Australian dollars using the exchange rate referred to in
clause 5.2.
5.8 Currency of Cash Consideration
All Cash Consideration payable to Scheme Shareholders other than any
payments made pursuant to clause 5.6 must be paid by cheque drawn in
Australian dollars.
5.9 Joint holders
In the case of Scheme Shares held in joint names:
(a) any cheque required to be paid to Scheme Shareholders shall be
payable to the joint holders and be forwarded to the holder
whose name appears first in the Register on the Record Date;
and
(b) any stock certificates and uncertificated holding statements
for Constellation Shares or Constellation CDIs to be issued to
Scheme Shareholders shall be issued in the names of the joint
holders and forwarded to the holder whose name appears first
in the Register as at the Record Date.
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6. Issue and trading
6.1 Issue
(a) The New Constellation Shares will be duly and validly issued
in accordance with the Delaware General Corporation Law and
Constellation's Restated Certificate of Incorporation and
By-Laws, will be fully paid and non-assessable and will rank
pari passu in all respects with all other Constellation Shares
then issued and outstanding.
(b) The obligation of Constellation Australia to cause to be
issued New Constellation Shares to US Scheme Shareholders
shall be satisfied by Constellation Australia:
(i) on the Implementation Date causing the name of each US
Scheme Shareholder entitled to receive New Constellation
Shares to be entered on the stock ledger of
Constellation as the holder of the New Constellation
Shares issued to that US Scheme Shareholder; and
(ii) within 5 Business Days after the Implementation Date
procuring the dispatch to each US Scheme Shareholder by
ordinary mail to the address of that US Scheme
Shareholder recorded in the Register as at the Record
Date a stock certificate in the name of that US Scheme
Shareholder representing the number of New Constellation
Shares issued to that US Scheme Shareholder.
(c) The obligation of Constellation Australia to cause to be
issued New Constellation Shares to Eligible Scheme
Shareholders shall be satisfied by Constellation Australia:
(i) on the Implementation Date causing the name of the
Depositary to be entered on the stock ledger of
Constellation as the holder of the New Constellation
Shares issued to the Depositary to hold on trust for
Eligible Scheme Shareholders entitled to New
Constellation Shares; and
(ii) on the Implementation Date procuring the dispatch to the
Depositary by express delivery a stock certificate in
the name of the Depositary representing the New
Constellation Shares issued to the Depositary;
(iii) within 5 Business Days after the Implementation Date
causing the name of each Eligible Scheme Shareholder to
be entered on the records maintained by the Depositary
as the holder of the Constellation CDIs issued to that
Eligible Scheme Shareholder; and
(iv) within 5 Business Days after the Implementation Date
procuring the dispatch to each Eligible Scheme
Shareholder by ordinary mail to the address of that
Eligible Scheme Shareholder recorded in the Register as
at the Record Date an uncertificated holding statement
in the name of that Eligible Scheme Shareholder
representing the number of Constellation CDIs issued to
that Eligible Scheme Shareholder.
(d) The Scheme Shareholders who elect to receive Scrip
Consideration agree to be bound by the Restated Certificate of
Incorporation and By-Laws of Constellation.
(e) Each Scheme Shareholder shall be deemed to have irrevocably
appointed Constellation Australia and each of its directors
and officers (jointly and severally) as its attorneys for the
purpose of executing any form of application required for the
New Constellation Shares or the Constellation CDIs.
6.2 Trading
Constellation will use its best endeavours to procure that:
(a) the New Constellation Shares to be listed on the New York
Stock Exchange will be listed for quotation with effect from
the Implementation Date; and
(b) the Constellation CDIs to be listed on ASX will be listed for
quotation with effect from the Business Day following the
Record Date, initially on a deferred settlement basis and
thereafter on an ordinary settlement basis.
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7. Dealings in Shares
7.1 Dealings on or prior to Record Date
(a) For the purpose of establishing who are Scheme Shareholders,
dealings in Shares will be recognised provided that:
(i) in the case of dealings of the type to be effected using
CHESS, the transferee is registered in the Register as a
holder of the relevant Shares by 10.00 pm on the Record
Date; and
(ii) in all other cases, registrable transfers or
transmission applications in respect of those dealings
are received at or before 10.00 pm on the Record Date at
the place where the Register is kept.
(b) BRL Hardy must register transfers or transmission applications
of the type referred to in clause 7.1(a)(ii) by 10.00 pm on
the Record Date. XXX Xxxxx will not accept for registration or
recognise for any purpose any transmission application or
transfer in respect of Shares received after 10.00 pm on the
Record Date (other than the transfer referred to in clause
4.1).
7.2 Dealings after Record Date
(a) For the purpose of determining entitlements to the Scheme
Consideration, BRL Hardy will, until the Scheme Consideration
has been paid and issued in accordance with this Scheme,
maintain the Register in accordance with the provisions of
this clause 7 and the Register in this form will solely
determine entitlements to the Scheme Consideration. As from
10.00 pm on the Record Date, each entry current on the
Register relating to Scheme Shares will cease to be of any
effect other than as evidence of entitlement to the Scheme
Consideration in respect of the Scheme Shares relating to that
entry.
(b) All certificates and statements of holding for Scheme Shares
shall from 10.00 pm on the Record Date cease to have any
effect as documents of title in respect of such Scheme Shares
other than for the purpose of registering dealings in the
Shares in accordance with clause 7.1.
7.3 Provision of Information
XXX Xxxxx must give to Constellation, no less than one Business Day
prior to the Implementation Date, details of the names, registered
addresses and holdings of Scheme Shares of every Scheme Shareholder
as shown in the Share Register at 10.00 pm on the Record Date, such
details to be provided in such form as Constellation may reasonably
require.
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8. General Scheme Provisions
(a) If the Court proposes to approve the Scheme subject to any
alterations or conditions, BRL Hardy may by its counsel
consent on behalf of all persons concerned to those
alterations or conditions to which Constellation has
previously consented in writing.
(b) BRL Hardy must use its best endeavours to enforce the
Implementation Deed.
(c) Where a notice, transfer, transmission application, direction
or other communication referred to in the Scheme is sent by
post to XXX Xxxxx, it shall not be deemed to be received in
the ordinary course of post on a date other than the date (if
any) on which it is actually received at XXX Xxxxx'x
registered office.
(d) Each Scheme Shareholder is deemed to have warranted to
Constellation and to Constellation Australia that all such
Scheme Shareholders' Scheme Shares transferred to
Constellation Australia under the Scheme will as at the date
of the transfer be fully paid and free from all mortgages,
charges, liens, encumbrances pledges, security interests and
other interests of third parties of any kind, whether legal or
otherwise, that will bind Constellation Australia and that
such Scheme Shareholder has full power and capacity to sell
and to transfer such Scheme Shareholder's Scheme Shares to
Constellation Australia under the Scheme.
(e) The Scheme Shares transferred to Constellation Australia under
the Scheme will be transferred to Constellation Australia free
from all mortgages, charges, liens, encumbrances pledges,
security interests and other interests of third parties of any
kind, whether legal or otherwise, that will bind Constellation
Australia but together with an entitlement to all dividends
and other distributions declared or paid on the Scheme Shares
after the Effective Date.
(f) Pending registration of the transfer by XXX Xxxxx of
Constellation Australia in the Register as the holder of the
Scheme Shares:
(i) Constellation Australia will be beneficially entitled to
the Scheme Shares to be transferred to it under clause
4.1; and
(ii) each Scheme Shareholder is deemed to have appointed
Constellation Australia as its sole proxy, and, where
appropriate, its corporate representative, to attend
shareholders' meetings, exercise the votes attached to
the Scheme Shares registered in such Scheme
Shareholder's name and sign any shareholders' resolution
and no Scheme Shareholder may itself attend or vote at
any such meetings or sign any resolutions, whether in
person or by proxy or corporate representative.
(g) The Scheme Shareholders consent to XXX Xxxxx doing all things
necessary or incidental to the implementation of the Scheme
and the Scheme binds BRL Hardy and all of the Scheme
Shareholders (including those who do not attend the Scheme
Meeting or vote at the Scheme Meeting).
(h) XXX Xxxxx will execute all documents and do all acts and
things necessary for the implementation and performance of its
obligations under the Scheme.
(i) Each Scheme Shareholder, without the need for any further act,
irrevocably appoints XXX Xxxxx and all of its directors and
officers (jointly and severally) as its attorney and agent for
the purpose of executing any document necessary to give effect
to the Scheme (including, but without limitation, a proper
instrument of
transfer of its Scheme Shares for the purposes of section 1091
of the Corporations Act (which may be a master transfer of all
the Scheme Shares, executed for and on behalf of each Scheme
Shareholder in relation to its Scheme Shares)).
(j) Constellation Australia will pay:
(i) all stamp duties in relation to this Scheme, the
implementation of the Scheme, the transfer of the Scheme
Shares and the issuance of New Constellation Shares and
Constellation CDIs except to the extent of any stamp
duties which are or become payable as a result of XXX
Xxxxx'x failure to comply with its obligations under
clause 8.1(q) of the Implementation Deed which stamp
duties must be paid by XXX Xxxxx; and
(ii) all filing, application or similar fees due in relation
to this Scheme.
(k) The governing law of the Scheme is the law of the State of
South Australia provided that the law governing the New
Constellation Shares and their issuance will be the law of the
State of Delaware.
Dated 2003
Annexure 2
XXXXXXX XXX
--------------------------------------------------------------------------------
BRL Hardy Limited (ACN 008 273 907)
XXX Xxxxx
The holders of certain options to subscribe for shares in the capital of BRL
Hardy
Employee Option Holders
Scheme of Arrangement
XXXXXXX XXX
Lawyers
Levels 00-00 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Square Sydney NSW 1215
xxx.xxxxxxxxxx.xxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Sydney o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability limited by the Solicitors Scheme, approved under the
Professional Standards Act 1994 (NSW)
Scheme of Arrangement
1. Definitions and interpretations...................................1
1.1 Definitions...........................................1
1.2 Interpretation........................................2
2. Conditions Precedent..............................................3
2.1 Conditions Precedent..................................3
2.2 Certificate...........................................3
2.3 Termination of Implementation Deed....................4
3. Lodgement.........................................................4
4. Implementation....................................................4
4.1 Cancellation of Scheme Options........................4
4.2 Payment of Scheme Consideration.......................4
5. Consideration.....................................................4
5.1 Calculation of Scheme Consideration...................4
5.2 Currency of Payment...................................4
6. General Scheme Provisions.........................................4
Parties BRL Hardy Limited, ACN 008 273 000 xx Xxxxxxx Xxxx,
Xxxxxxxx, 0000, Xxxxxxxxx ("BRL Hardy")
The holders of options to subscribe for ordinary shares
in the capital of BRL Hardy under the Employee Option
Plan ("Employee Option Holders").
Recitals
X. XXX Xxxxx is a public company incorporated in the State of South
Australia.
B. BRL Hardy and Constellation Brands, Inc. ("Constellation") have
entered into the Implementation Deed pursuant to which XXX Xxxxx has
agreed to propose this Scheme to the Employee Option Holders and
each of BRL Hardy and Constellation have agreed to execute all
documents and do all things necessary or desirable to be executed or
done by XXX Xxxxx or Constellation, and Constellation has agreed to
procure that Constellation Australia Pty Limited, ACN 103 362 232
("Constellation Australia") execute all documents and do all things
necessary or desirable to be executed or done by Constellation
Australia, to give effect to this Scheme.
C. If this Scheme becomes Effective then all of the Employee Options
will be cancelled and BRL Hardy will pay the Option Scheme
Consideration to the Scheme Option Holders.
--------------------------------------------------------------------------------
1. Definitions and interpretations
1.1 Definitions
In this Scheme, unless the context otherwise requires:
"ASIC" means the Australian Securities and Investments Commission.
"ASX" means Australian Stock Exchange Limited.
"Business Day" has the meaning given in the Listing Rules.
"Conditions Precedent" means the conditions precedent set out in
clause 2.1.
"Corporations Act" means the Corporations Act 2001 (Commonwealth).
"Court" means the Supreme Court of South Australia.
"Court Hearing Time" means the commencement of the hearing by the
Court of the application for approval of the Scheme pursuant to
section 411(4)(b) of the Corporations Act or, if the application is
adjourned for any reason, means the commencement of the hearing of
the adjourned application.
"Effective Date" means the date on which an office copy of the
Scheme Order is lodged with ASIC pursuant to section 411(10) of the
Corporations Act or, if an earlier date is specified in the Scheme
Order for the coming into effect of the Scheme, that earlier date.
"Employee Options" means options to subscribe for ordinary shares in
the capital of XXX Xxxxx granted pursuant to the Employee Option
Plan.
"Employee Option Plan" means the BRL Hardy Employee Option Plan.
"Exercise Price" means, in relation to any Employee Option, the
price payable on exercise of
that Employee Option under the terms of grant of that Employee
Option.
"Explanatory Statement" means the explanatory statement of XXX Xxxxx
in relation to the Scheme issued pursuant to section 412 of the
Corporations Act which has been registered with ASIC.
"Implementation Deed" means the Implementation Deed dated 17 January
2003 between Constellation and XXX Xxxxx.
"Implementation Date" means the date which is 3 Business Days after
the Record Date.
"Listing Rules" means the official listing rules of ASX.
"Record Date" means the date which is 5 Business Days after the
Effective Date.
"Register" means the BRL Hardy register of Employee Option Holders.
"Resolution" means a resolution of the Shareholders under section
260B(1) of the Corporations Act approving the payments to be made by
XXX Xxxxx under the Option Scheme.
"Scheme" means this scheme of arrangement subject to any alterations
or conditions made or required by the Court pursuant to section
411(6) of the Corporations Act.
"Scheme Consideration" means the consideration to be paid to Scheme
Option Holders for the cancellation of each Scheme Option,
calculated in accordance with clause 5.
"Scheme Meeting" means the meeting of Employee Option Holders to be
convened by the Court pursuant to section 411(1) of the Corporations
Act in respect of the Scheme.
"Scheme Options" means the Employee Options on issue as at the
Effective Date.
"Scheme Option Holder" means each person who is registered in the
Register as the holder of Scheme Options as at 10.00 pm on the
Record Date.
"Scheme Order" means the orders of the Court approving the Scheme
pursuant to section 411(4) of the Corporations Act.
"Shareholder Meeting" means the meeting of Shareholders to be
convened immediately after the Scheme Meeting to consider the
Resolution.
"Shareholders" means the holders of ordinary shares in the capital
of XXX Xxxxx.
"Share Scheme" means the scheme of arrangement under part 5.1 of the
Corporations Act between XXX Xxxxx and the Shareholders as at the
Record Date (other than persons holding such shares on behalf of or
for the benefit of Constellation or its Subsidiaries).
1.2 Interpretation
In this Scheme:
(a) headings are for convenience only and do not affect
interpretation;
and unless the context indicates a contrary intention:
(b) a reference to any document (including this Scheme) is to that
document as amended, varied, novated, ratified or replaced
from time to time;
(c) a reference to any statute or to any statutory provision
includes any statutory modification or re-enactment of it or
any statutory provision substituted for it, and all
ordinances, by-laws, regulations, rules and statutory
instruments (however described) issued or promulgated under
it;
(d) words importing the singular include the plural (and vice
versa), and words indicating a gender include every other
gender;
(e) references to parties, clauses, schedules, exhibits or
annexures are references to parties, clauses, schedules,
exhibits and annexures to or of this Scheme, and a reference
to this Scheme includes any schedule, exhibit or annexure to
this Scheme;
(f) where a word or phrase is given a defined meaning, any other
part of speech or grammatical form of that word or phrase has
a corresponding meaning;
(g) the word "includes" in any form is not a word of limitation;
(h) a reference to "$" or "dollar" is to Australian currency; and
(i) references to a particular time are to South Australian time.
--------------------------------------------------------------------------------
2. Conditions Precedent
2.1 Conditions Precedent
The Scheme is conditional on each of the following conditions
precedent:
(a) as at the Court Hearing Time all of the conditions precedent
set out in clause 4.1 of the Implementation Deed have been
satisfied or waived in accordance with the terms of the
Implementation Deed;
(b) as at the Court Hearing Time, the Implementation Deed has not
been terminated;
(c) the Scheme has been approved in accordance with section 411(4)
of the Corporations Act at the Scheme Meeting;
(d) the Resolution has been passed at the Shareholder Meeting;
(e) the Court has approved the Share Scheme pursuant to section
411(1) of the Corporations Act with or without modification;
and
(f) the Court has approved the Scheme pursuant to section 411(4)
of the Corporations Act with or without modification,
and the provisions of clauses 3, 4 and 5 will be of no effect unless
and until the Conditions Precedent are satisfied.
2.2 Certificate
At the hearing by the Court of the application for the Scheme Order,
Constellation and BRL Hardy will each provide to the Court a
certificate confirming whether or not all of the conditions
precedent in the Implementation Deed have been satisfied or waived
in accordance with the Implementation Deed.
2.3 Termination of Implementation Deed
In the event that the Implementation Deed is terminated, each of BRL
Hardy, Constellation
and Constellation Australia are released from:
(a) any further obligation to take steps to implement the Scheme;
and
(b) any liability with respect to the Scheme.
--------------------------------------------------------------------------------
3. Lodgement
(a) BRL Hardy must lodge with ASIC on the date on which the
Resolution is passed the Resolution together with a notice in
the form required by section 260B(6) of the Corporations Act.
(b) XXX Xxxxx must lodge with ASIC the Scheme Order by 5.00 p.m on
the Business Day following the date on which the Court
approves the Scheme.
--------------------------------------------------------------------------------
4. Implementation
4.1 Cancellation of Scheme Options
On the Implementation Date, all of the Scheme Options and all rights
and entitlements attaching to the Scheme Options will be cancelled
without the need for any further act by any Scheme Option Holder.
4.2 Payment of Scheme Consideration
In consideration for the cancellation of the Scheme Options BRL
Hardy will pay to each Scheme Option Holder the Scheme Consideration
within 5 Business Days after the later of the Implementation Date
and the date which is 14 days after the Resolution is lodged with
ASIC.
--------------------------------------------------------------------------------
5. Consideration
5.1 Calculation of Scheme Consideration
The Scheme Consideration in respect of each Scheme Option is:
(a) the cash amount of $10.50 less the Exercise Price for that
Scheme Option; and
(b) in the case of any Scheme Option which was on issue as at 19
September 2001, an additional cash amount of $0.12.
5.2 Currency of Payment
All Scheme Consideration payable to Scheme Option Holders must be
paid by cheque drawn in Australian dollars.
--------------------------------------------------------------------------------
6. General Scheme Provisions
(a) If the Court proposes to approve the Scheme subject to any
alterations or conditions, BRL Hardy may by its counsel
consent on behalf of all persons concerned to those
alterations or conditions to which Constellation has
previously consented in writing.
(b) BRL Hardy must use its best endeavours to enforce the
Implementation Deed.
(c) Where a notice, transfer, transmission application, direction
or other communication referred to in the Scheme is sent by
post to XXX Xxxxx, it shall not
be deemed to be received in the ordinary course of post on a
date other than the date (if any) on which it is actually
received at XXX Xxxxx'x registered office.
(d) The Scheme Option Holders consent to XXX Xxxxx doing all
things necessary or incidental to the implementation of the
Scheme and the Scheme binds BRL Hardy and all of the Scheme
Option Holders (including those who do not attend the Scheme
Meeting or vote at the Scheme Meeting).
(e) XXX Xxxxx will execute all documents and do all acts and
things necessary for the implementation and performance of its
obligations under the Scheme.
(f) Each Scheme Option Holder, without the need for any further
act, irrevocably appoints XXX Xxxxx and all of its directors
and officers (jointly and severally) as its attorney and agent
for the purpose of executing any document necessary to give
effect to the Scheme.
(g) XXX Xxxxx shall pay all stamp duties and filing, application
or similar fees due in relation to this Scheme, the
implementation of the Scheme and the cancellation of the
Scheme Options.
(h) The governing law of the Scheme is the law of the State of
South Australia.
Dated 2003
Annexure 3
XXXXXXX XXX
--------------------------------------------------------------------------------
Constellation Brands, Inc.
Constellation
The Scheme Shareholders
As defined in the Implementation Deed referred to in this Deed Poll
Deed Poll
XXXXXXX XXX
Lawyers
Levels 00-00 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Square Sydney NSW 1215
xxx.xxxxxxxxxx.xxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our ref - 126/618/21723613 Contact - Xxxxxxxx Xxxxx
Sydney o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability limited by the Solicitors Scheme, approved under the
Professional Standards Act 1994 (NSW)
Table of Contents
1. Definitions and interpretation...................................1
1.1 Definitions..........................................1
1.2 Interpretation.......................................1
2. Nature of Deed Poll..............................................2
3. Conditions precedent.............................................2
3.1 Conditions precedent.................................2
3.2 Termination..........................................2
3.3 Consequences of termination..........................2
4. Payment of Share Scheme Consideration............................2
4.1 Payment obligations..................................2
4.2 Satisfaction of Cash Consideration...................3
4.3 Satisfaction of Scrip Consideration..................3
4.4 Joint holders........................................3
5. Warranties.......................................................4
6. Continuing obligations...........................................4
7. Stamp duty.......................................................4
8. Notices..........................................................4
8.1 Notice details.......................................4
8.2 Delivery.............................................5
9. General..........................................................5
9.1 Cumulative rights....................................5
9.2 Waiver and variation.................................5
10. Assignment.......................................................5
11. Governing law and jurisdiction...................................5
i.
Deed Poll made on 6 February 2003
By Constellation Brands, Inc. of 000 XxxxxxXxxxx Xxxxxx
Xxxx, Xxxxxxxx, XX 00000, Xxxxxx Xxxxxx ("Constellation")
In favour of: The Scheme Shareholders as defined in the Implementation
Deed
Recitals
X. XXX Xxxxx Limited, ACN 008 273 907 ("BRL Hardy") and Constellation
have entered into an Implementation Deed dated 17 January 2003 (the
"Implementation Deed").
B. In the Implementation Deed, Constellation agreed to execute all
documents and do all things necessary or desirable to be executed or
done by Constellation to give effect to the Share Scheme and the
Scheme Orders and to procure that Constellation Australia Pty
Limited, ACN 103 362 232 ("Constellation Australia") execute all
documents and do all things necessary or desirable to be executed or
done by Constellation Australia to give effect to the Share Scheme
and the Scheme Orders and in particular agreed, subject to the
satisfaction of certain conditions, to procure that Constellation
Australia pay the Share Scheme Consideration to the Scheme
Shareholders.
C. Constellation is entering into this Deed Poll for the purpose of
covenanting in favour of the Scheme Shareholders to perform its
obligations under the Implementation Deed.
This deed poll provides
--------------------------------------------------------------------------------
1. Definitions and interpretation
1.1 Definitions
Terms defined in the Implementation Deed or the Share Scheme have
the same meaning when used in this Deed Poll.
1.2 Interpretation
In this Deed Poll:
(a) headings are for convenience only and do not affect
interpretation;
and unless the context indicates a contrary intention:
(b) a reference to any document (including this Deed Poll) is to
that document as amended, varied, novated, ratified or
replaced from time to time;
(c) a reference to any statute or to any statutory provision
includes any statutory modification or re-enactment of it or
any statutory provision substituted for it, and all
ordinances, by-laws, regulations, rules and statutory
instruments (however described) issued or promulgated under
it;
(d) words importing the singular include the plural (and vice
versa), and words indicating a gender include every other
gender;
(e) references to parties, clauses, schedules, exhibits or
annexures are references to parties, clauses, schedules,
exhibits and annexures to or of this Deed Poll, and a
reference to this Deed Poll includes any schedule, exhibit or
annexure to this Deed Poll;
1
(f) where a word or phrase is given a defined meaning, any other
part of speech or grammatical form of that word or phrase has
a corresponding meaning;
(g) the word "includes" in any form is not a word of limitation;
(h) a reference to "$" or "dollar" is to Australian currency,
unless it is preceded by "US", in which case such reference is
to United States currency.
--------------------------------------------------------------------------------
2. Nature of Deed Poll
Constellation acknowledges that this Deed Poll may be relied on and
enforced by any Scheme Shareholder in accordance with its terms even
though the Scheme Shareholders are not party to it.
--------------------------------------------------------------------------------
3. Conditions precedent
3.1 Conditions precedent
Constellation's obligations under clause 4 are subject to the Share
Scheme coming into effect pursuant to section 411(10) of the
Corporations Act.
3.2 Termination
The obligations of Constellation under this Deed Poll to Scheme
Shareholders will automatically terminate and the terms of this Deed
Poll will be of no further force or effect if the Implementation
Deed is terminated in accordance with its terms prior to the
occurrence of the Effective Date for the Share Scheme.
3.3 Consequences of termination
If this Deed Poll is terminated under this clause 3 then in addition
and without prejudice to any other rights, powers or remedies
available to them, Constellation is released from its obligations to
further perform this Deed except the obligations contained in clause
7 and any other obligations which by their nature survive
termination.
--------------------------------------------------------------------------------
4. Payment of Share Scheme Consideration
4.1 Payment obligations
Subject to clause 3, Constellation must procure that in
consideration of the transfer of the Scheme Shares to Constellation
Australia, Constellation Australia will, within 5 Business Days
after the Implementation Date:
(a) pay to each Scheme Shareholder such amount of cash as is due
to that Scheme Shareholder under the terms of the Share Scheme
as Cash Consideration;
(b) cause to be issued to each US Scheme Shareholder such number
of New Constellation Shares as are due to that Scheme
Shareholder under the terms of the Share Scheme as Scrip
Consideration; and
(c) cause to be issued in accordance with the terms of the Share
Scheme such number of New Constellation Shares as are due to
the Eligible Scheme Shareholders under the terms of the Share
Scheme as Scrip Consideration.
2
4.2 Satisfaction of Cash Consideration
Constellation must procure that:
(a) the obligations of Constellation Australia to pay the Cash
Consideration to each Scheme Shareholder entitled to Cash
Consideration are satisfied within 5 Business Days after the
Implementation Date by Constellation Australia dispatching or
procuring the dispatch to that Scheme Shareholder by ordinary
mail to the address of the Scheme Shareholder recorded in the
Register at the Record Date a cheque for the Cash
Consideration due to that Scheme Shareholder under the terms
of the Share Scheme; and
(b) all cheques payable to Scheme Shareholders are drawn in
Australian dollars.
4.3 Satisfaction of Scrip Consideration
Constellation must procure that the obligations of Constellation
Australia to pay the Scrip Consideration to each Scheme Shareholder
entitled to Scrip Consideration are satisfied by Constellation
Australia:
(a) on the Implementation Date:
(i) causing the name of each US Scheme Shareholder so
entitled to be entered on the stock ledger of
Constellation as the holder of the New Constellation
Shares issued to that US Scheme Shareholder;
(ii) causing the name of the Depositary to be entered on the
stock ledger of Constellation as the holder of the New
Constellation Shares issued to the Depositary to hold on
trust for Eligible Scheme Shareholders entitled to New
Constellation Shares; and
(iii) procuring the dispatch to the Depositary by express
delivery a stock certificate in the name of the
Depositary representing the New Constellation Shares
issued to the Depositary; and
(b) within 5 Business Days after the Implementation Date:
(i) procuring the dispatch to each US Scheme Shareholder so
entitled by ordinary mail to the address of that US
Scheme Shareholder recorded in the Register as at the
Record Date a stock certificate in the name of that US
Scheme Shareholder representing the number of new
Constellation Shares issued and allotted to that US
Scheme Shareholder;
(ii) causing the name of each Eligible Scheme Shareholder to
be entered on the records maintained by the Depositary
as the holder of the Constellation CDIs issued to that
Eligible Scheme Shareholder; and
(iii) procuring the dispatch to each Eligible Scheme
Shareholder so entitled by ordinary mail to the address
of that Eligible Scheme Shareholder recorded in the
Register as at the Record Date an uncertificated holding
statement in the name of that Eligible Scheme
Shareholder representing the number of Constellation
CDIs to be issued to that Eligible Scheme Shareholder.
4.4 Joint holders
In the case of Scheme Shares held in joint names:
3
(a) any cheque required to be paid to Scheme Shareholders shall be
payable to the joint holders and be forwarded to the holder
whose name appears first in the Register on the Record Date;
and
(b) any stock certificates and uncertificated holding statements
for Constellation Shares or Constellation CDIs to be issued to
Scheme Shareholders shall be issued in the names of the joint
holders and forwarded to the holder whose name appears first
in the Register as at the Record Date.
--------------------------------------------------------------------------------
5. Warranties
Constellation represents and warrants that:
(a) Constellation is a corporation validly existing under the laws
of the State of Delaware;
(b) Constellation Australia is a corporation validly existing
under the laws of Australia and is an indirect wholly owned
Subsidiary of Constellation;
(c) Constellation has the corporate power to enter into and
perform its obligations under this Deed Poll and to carry out
the transactions contemplated by this Deed Poll to be carried
out by Constellation;
(d) Constellation Australia has the corporate power to carry out
the transactions contemplated by this Deed Poll to be carried
out by Constellation Australia;
(e) Constellation has taken or will take all necessary corporate
action to authorise its entry into this Deed Poll and has
taken or will take all necessary corporate action to authorise
the performance of this Deed Poll by Constellation and to
carry out the transactions contemplated by this Deed Poll to
be carried out by Constellation; and
(f) Constellation Australia has taken or will take all necessary
corporate action to carry out the transactions contemplated by
this Deed Poll to be carried out by Constellation Australia;
and
(g) this Deed Poll has been duly and validly executed and
delivered by Constellation and is a valid and binding
obligation of Constellation.
--------------------------------------------------------------------------------
6. Continuing obligations
This Deed Poll is irrevocable and subject to clause 3 remains in
full force and effect until the earlier of Constellation having
completely performed its obligations under this Deed Poll or the
termination of this Deed Poll under clause 3.
--------------------------------------------------------------------------------
7. Stamp duty
Constellation must pay all stamp duty imposed on this Deed Poll.
--------------------------------------------------------------------------------
8. Notices
8.1 Notice details
A notice, consent, request or any other communication to
Constellation under this Deed Poll must be in writing and must be
left at the address of Constellation, as the case may be, or sent by
prepaid post (airmail if posted to or from a place outside
Australia) to the address of Constellation as the case may be, or
sent by facsimile to the facsimile number of Constellation,
4
as the case may be, specified below or any other address or
facsimile number the addressee requests in writing.
Constellation Brands, Inc.
Attention: Xxxxxx X. Xxxxxx, General Counsel
Address: 000 XxxxxxXxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000, Xxxxxx
Xxxxxx
Facsimile: x0 000 000 0000
8.2 Delivery
A notice, consent, request or any other communication is taken to be
received:
(a) if by delivery, when it is delivered unless it is delivered on
a day other than a Business Day in which case it is taken to
be received by 9.00 am on the next Business Day;
(b) if a letter, three days after posting (seven, if posted to or
from a place outside Australia); and
(c) if a facsimile, at the time of dispatch if the sender receives
a transmission report which confirms that the facsimile was
sent in its entirety to the facsimile number of the recipient.
--------------------------------------------------------------------------------
9. General
9.1 Cumulative rights
The rights, powers and remedies of Constellation and, the Scheme
Shareholders under this Deed Poll are cumulative with the rights,
powers or remedies provided by law independently of this Xxxx Xxxx.
9.2 Waiver and variation
(a) A provision or a right under this Deed Poll may not be waived
except in writing signed by the Person granting the waiver.
(b) A provision of this Deed Poll may not be amended or varied
unless the amendment or variation is agreed to by XXX Xxxxx in
which event Constellation will enter into a further Deed Poll
in favour of the Scheme Shareholders giving effect to such
amendment or variation.
--------------------------------------------------------------------------------
10. Assignment
The rights and obligations of a Person under this Deed Poll are
personal. They may not be assigned, charged or otherwise dealt with,
and no Person shall attempt or purport to do so.
--------------------------------------------------------------------------------
11. Governing law and jurisdiction
(a) This Deed Poll is governed by the laws of the state of South
Australia provided that the law governing the New
Constellation Shares and their issuance will be the law of the
State of Delaware.
(b) Constellation irrevocably submits to the non-exclusive
jurisdiction of the courts of South Australia.
5
Executed as a deed poll.
Executed by Constellation Brands, Inc. in the
presence of:
/s/X. Xxxxxx Xxxxx /s/Xxxxxxx Xxxxx
--------------------------------- --------------------------------------
Signature of Witness Signature of Officer
H. Xxxxxx Xxxxx Xxxxxxx Xxxxx
--------------------------------- --------------------------------------
Name of Witness in full Name of Officer in full
Chief Executive Officer
--------------------------------------
Title of Officer
6
Annexure 4
The Registrant has omitted from this filing the Annexure 4--Election Form.
The Registrant will furnish supplementally to the Commission, upon
request, a copy of such Annexure.
