STZ S-3ASR
Constellation Brands, Inc. (STZ)
Table of Contents
As filed with the Securities and Exchange Commission on November 7, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONSTELLATION BRANDS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 16-0716709 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
50 East Broad Street
Rochester, New York 14614
(585) 678-7100
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
James O. Bourdeau, Esq.
Executive Vice President and Chief Legal Officer
Constellation Brands, Inc.
50 East Broad Street, Rochester, New York 14614
(585) 678-7100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Heidi Steele, Esq.
McDermott Will & Schulte LLP
444 West Lake Street, Suite 4000
Chicago, Illinois 60606-0029
(312) 372-2000
Approximate date of commencement of proposed sale of securities to the public: From time to time after the effective date of this registration statement as determined by the Registrant.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Securities and Exchange Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
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PROSPECTUS
Constellation Brands, Inc.
Debt Securities, Preferred Stock, Depositary Shares Representing Preferred Stock, Class A Common Stock, Warrants, Subscription Rights, Purchase Contracts and Purchase Units
Constellation Brands, Inc., a Delaware corporation (“Constellation,” “we,” “us” or the “Company”) may sell from time to time:
| • | our debt securities |
| • | shares of our preferred stock, which may be represented by depositary shares; |
| • | shares of our Class A common stock; |
| • | warrants; |
| • | subscription rights; |
| • | purchase contracts; |
| • | purchase units; or |
| • | any combination of the foregoing. |
In addition, selling stockholders to be named in a prospectus supplement may offer and sell from time to time shares of our Class A common stock in such amounts as set forth in a prospectus supplement. We will not receive any proceeds from the sale of our Class A common stock by the selling stockholders.
We will provide specific terms of the securities which we may offer in supplements to this prospectus or a term sheet. We or any of the selling stockholders may offer the securities in any combination, separately, together or as units with other offered securities, in one or more separate series or classes and in amounts, at prices and on terms described in one or more supplements to this prospectus. The applicable prospectus supplement may also add, update or change information contained in this prospectus with respect to that offering. You should read this prospectus and any prospectus supplement or term sheet carefully before you invest. Securities may be sold for U.S. dollars, foreign currency or currency units.
Our Class A common stock is listed on the New York Stock Exchange under the symbol “STZ”.
Investing in our securities involves certain risks. See “Risk Factors” on page 2 of this prospectus.
We and/or the selling stockholders may offer securities through underwriting syndicates managed or co-managed by one or more underwriters or dealers, through agents or directly to purchasers or by such other methods as may be set forth in one or more supplements to this prospectus. If required, the prospectus supplement for each offering of securities will describe the plan of distribution for that offering. For general information about the distribution of securities offered, please see “Plan of Distribution” in this prospectus.
None of the Securities and Exchange Commission, any state securities commission or any regulatory body has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is November 7, 2025.
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This prospectus is part of an “automatic shelf” registration statement that we filed with the Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process. Under this process, we or any selling stockholder may sell from time to time any combination of the securities described in this prospectus. This prospectus provides you with a general description of the securities we or any selling stockholder may offer. Each time we or any selling stockholder offer to sell securities, we will provide a supplement to this prospectus or a term sheet that will contain specific information about the terms of that offering. The prospectus supplement or term sheet may also add, update, or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement or term sheet together with the additional information described under the heading “Where You Can Find More Information” below.
You should rely on the information contained in or incorporated by reference into this prospectus. Neither we nor any selling stockholder have authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. Neither we nor any selling stockholder is making an offer to sell or soliciting an offer to buy securities in any jurisdiction where the offer or sale thereof is not permitted.
You should assume that the information in this prospectus is accurate as of the date on the front cover. You should not assume that the information contained in this prospectus is accurate as of any other date.
This prospectus contains summary descriptions of the Class A common stock, preferred stock, depositary shares, debt securities, warrants, subscription rights, purchase contracts and purchase units that we or selling stockholders may sell from time to time. These summary descriptions are not meant to be complete descriptions of each security. The particular terms of any security will be described in the related prospectus supplement.
Except where the context requires otherwise, references in this prospectus supplement to the “Company,” “we,” “our,” or “us” refer to Constellation Brands, Inc.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an internet site at http://www.sec.gov, from which interested persons can electronically access without charge our SEC filings, including the registration statement and the exhibits and schedules thereto. Our SEC filings and other information about the Company are also available on our investor relations website at https://ir.cbrands.com. Except for documents filed with the SEC and incorporated by reference into this prospectus, no information contained in, or that can be accessed through, our websites is to be considered part of this prospectus.
We have filed with the SEC a registration statement on Form S-3 to register the securities. This prospectus is part of that registration statement and, as permitted by the SEC’s rules, does not contain all the information set forth in the registration statement. For further information you may refer to the registration statement and to the exhibits and schedules filed as part of the registration statement.
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to another document. The information incorporated by reference is considered to be part of this prospectus, and the information that we file with the SEC after the date of this prospectus will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), until we sell all of the securities:
| • | Our Annual Report on Form 10-K for the fiscal year ended February 28, 2025, filed on April 23, 2025; |
| • | Our Quarterly Reports on Form 10-Q for the fiscal quarter ended May 31, 2025 filed on July 2, 2025 and the fiscal quarter ended August 31, 2025 filed on October 7, 2025; |
| • | Our Current Reports on Form 8-K, filed on April 9, 2025 (excluding Item 2.02, Item 7.01 and the related exhibits), April 14, 2025 (excluding Item 7.01 and the related exhibit), April 28, 2025, April 30, 2025, May 1, 2025, May 9, 2025, June 2, 2025 (excluding Item 7.01 and the related exhibits), July 17, 2025, October 2, 2025 (excluding Item 7.01 and the related exhibits); October 16, 2025, and October 17, 2025; |
| • | The information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended February 28, 2025 from our Definitive Proxy Statement on Schedule 14A for our 2025 Annual Meeting of Stockholders held on July 15, 2025, filed on June 5, 2025; and |
| • | The description of our Class A common stock, par value $0.01 per share, contained in our Current Report on Form 8-K filed on November 10, 2022. |
Whenever on or after the date of this prospectus we file reports or documents under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, those reports and documents will be deemed to be a part of this prospectus from the time they are filed (other than documents or information deemed to have been furnished and not filed in accordance with SEC rules). Any statement made in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document that is also incorporated or deemed to be incorporated by reference into this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may request a copy of these filings, except exhibits to such documents unless those exhibits are specifically incorporated by reference into this prospectus, at no cost, by writing or telephoning us at: Constellation Brands, Inc., Attention: Investor Relations, 50 East Broad Street, Rochester, New York 14614; telephone number (888) 922-2150.
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INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement or term sheet, and the documents we have incorporated by reference into this prospectus may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements are subject to a number of risks and uncertainties, many of which are beyond our control, which could cause actual results to differ materially from those set forth in, or implied by, our forward-looking statements. All statements other than statements of historical facts included in this prospectus and elsewhere regarding our business strategy, future operations, financial position, estimated revenues, projected costs, prospects, plans and objectives of management, as well as information concerning expected actions of third parties, are forward-looking statements. These forward-looking statements are identifiable by our use of such words as “anticipate,” “intend,” “estimate,” “expect,” “project” and similar expressions, although not all forward-looking statements contain such identifying words. All forward-looking statements speak only as of the date on which we make them. We do not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we can give no assurance that such expectations will prove to be correct. Important factors that could cause our actual results to differ materially from our expectations, or “cautionary statements,” are disclosed in this prospectus, any prospectus supplement or term sheet and the documents incorporated by reference, including the “Risk Factors” section included in our filings with the SEC. The cautionary statements qualify all forward-looking statements attributable to us or persons acting on our behalf.
Market positions and industry data discussed in (i) the Form 10-K for the fiscal year ended February 28, 2025 are as of calendar 2024 and (ii) the Form 10-Q for the fiscal quarter ended August 31, 2025 are for the 52-weeks ending August 31, 2025 and have been obtained or derived from industry and government publications and our estimates. The industry and government publications include: Beer Marketers Insights; Beverage Information Group; Impact Databank Review and Forecast; International Wine and Spirits Research (IWSR); Circana; Beer Institute; and National Alcohol Beverage Control Association. We have not independently verified the data from the industry and government publications. Unless otherwise noted, all references to market positions are based on U.S. dollar sales.
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We are an international producer and marketer of beer, wine, and spirits with operations in the U.S., Mexico, New Zealand, and Italy with powerful, consumer-connected, high-quality brands like Modelo Especial, Corona Extra, Pacifico, Robert Mondavi Winery, Kim Crawford, The Prisoner Wine Company, High West, Casa Noble, and Mi CAMPO. In the U.S., we are one of the top growth contributors at retail among beverage alcohol suppliers. We are also the second-largest beer company and have the #1 beer brand, Modelo Especial, in dollar sales in the U.S. We continued to strengthen our leadership position in the U.S. beer market as the #1 dollar share gainer in the high-end and the overall U.S. beer market. Within wine and spirits, we have implemented a multi-year strategy that repositioned this business to a portfolio of exclusively higher-end brands that we believe will generate higher growth and higher margins, aligned to our focus on consumer-led premiumization trends, and we continue to progressively expand our supply channels through direct-to-consumer (inclusive of (i) a digital commerce experience for consumers to purchase directly from brand websites with inventory coming straight from the supplier and (ii) consumer purchases at hospitality locations (tasting rooms and tap rooms) from the supplier) and international markets. The strength of our brands makes us a supplier of choice to many of our consumers and our customers, which include wholesale distributors, retailers, and on-premise locations. We conduct our business through entities we wholly own as well as through a variety of joint ventures and other entities.
Headquartered in Rochester, New York, we are a Delaware corporation incorporated in 1972, as the successor to a business founded in 1945. Our principal executive offices are located at 50 East Broad Street, Rochester, New York 14614 and the telephone number at this location is (585) 678-7100. We maintain a website at http://www.cbrands.com and an investor relations website at https://ir.cbrands.com. Our websites and the information contained on those sites, or connected to those sites, are not incorporated into this prospectus and any prospectus supplement or free writing prospectus.
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Investing in our securities involves certain risks. You are urged to read and carefully consider risk factors relating to an investment in our securities as described from time to time in our most recent Annual Report on Form 10-K, as may be updated from time to time in our Quarterly Reports on Form 10-Q filed with the SEC as well as the other risks and uncertainties described in the other documents incorporated by reference into this prospectus, any applicable prospectus supplement or any applicable free writing prospectus, each as incorporated by reference into this prospectus. Before making an investment decision, you should carefully consider these risks as well as other information we include in or incorporate by reference into this prospectus. The risks and uncertainties we have described are not the only ones we face. The prospectus supplement applicable to each type or series of securities we or any selling stockholder offer will contain a discussion of additional risks applicable to an investment in us and the particular type of securities we are offering under that prospectus supplement.
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Except as we may otherwise set forth in a prospectus supplement, we intend to use any net proceeds that we receive from the sale of the securities offered by this prospectus for general corporate purposes, including, but not limited to, repayment or refinancing of indebtedness, working capital, capital expenditures, share repurchases, dividend payments, and acquisitions. Pending the application of the proceeds, we intend to invest the proceeds in certificates of deposit, U.S. government securities or other interest-bearing securities.
Unless set forth in an accompanying prospectus supplement, we will not receive any proceeds in the event that securities are sold by a selling stockholder. We may pay expenses in connection with sales by selling stockholders.
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DESCRIPTION OF DEBT SECURITIES
We may offer debt securities under this prospectus, any of which may be issued as convertible or exchangeable debt securities. The following description of the terms of the debt securities sets forth certain general terms and provisions of the debt securities to which any prospectus supplement or term sheet may relate. We will set forth the particular terms of the debt securities we offer in a prospectus supplement or term sheet. The extent, if any, to which the following general provisions apply to particular debt securities will be described in the applicable prospectus supplement or term sheet. The following description of general terms relating to the debt securities and the indenture (which includes one or more supplemental indentures) under which the debt securities will be issued are summaries only and therefore are not complete. You should read the indenture and the prospectus supplement or term sheet regarding any particular issuance of debt securities. If there are differences between the applicable prospectus supplement or term sheet and this prospectus, the prospectus supplement or term sheet will control.
The debt securities will represent our unsecured general obligations, unless otherwise provided in the prospectus supplement or term sheet. Our subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due pursuant to the debt securities or to make any funds available therefor, whether by dividends, loans or other payments. Holders of our indebtedness will be structurally subordinated to holders of any indebtedness (including trade payables) of any of our subsidiaries.
Our ability to service our indebtedness, including the debt securities, is dependent primarily upon the receipt of funds from our subsidiaries. The payment of dividends or the making of loans and advances to us by our subsidiaries may be subject to contractual, statutory and regulatory restrictions, and are contingent upon the earnings of those subsidiaries and are subject to various business considerations. Further, any right we may have to receive assets of any of our subsidiaries upon liquidation or recapitalization of any such subsidiaries (and the consequent right of the holders of debt securities to participate in those assets) will be subject to the claims of our subsidiaries’ creditors. Even in the event that we are recognized as a creditor of a subsidiary, our claims would still be subject to any security interest in the assets of such subsidiary and any indebtedness of such subsidiary senior to our claim.
The debt securities will be issued under an indenture entered into with the trustee. The indenture is subject to, and governed by, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
Except to the extent described in a prospectus supplement or term sheet, the indenture does not contain any covenants or restrictions that afford holders of the debt securities special protection in the event of a change of control or highly leveraged transaction.
The following is a summary of certain provisions of the debt securities that may be issued under the indenture and is not complete. A description of such debt securities shall be contained in a prospectus supplement or term sheet. You should carefully read the provisions of particular debt securities we may issue and the indenture under which the debt securities are issued, including the definitions in those documents of certain terms and of those terms made a part of those documents by the Trust Indenture Act.
General
The indenture does not limit the aggregate principal amount of debt securities which may be issued under it and provides that debt securities may be issued in one or more series, in such form or forms, with such terms and up to the aggregate principal amount that we may authorize from time to time. The particular terms of the debt securities offered pursuant to any prospectus supplement or term sheet will be described in the prospectus supplement or term sheet. All debt securities of one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of any holder, for issuances of additional debt securities of that series.
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Unless otherwise provided in the prospectus supplement or term sheet, debt securities may be presented for registration of transfer and exchange and for payment or, if applicable, for conversion or exchange at the office of the trustee.
The applicable prospectus supplement or term sheet will describe the following terms of any debt securities in respect of which this prospectus is being delivered (to the extent applicable to the debt securities):
| • | the title and designation of the debt securities of the series, and whether the debt securities are senior debt securities, senior subordinated debt securities or subordinated debt securities and, if senior subordinated or subordinated debt securities, the specific subordination provisions applicable thereto; |
| • | the total principal amount of the debt securities of the series and any limit on the total principal amount; |
| • | the price at which we will issue the debt securities of the series; |
| • | the terms, if any, by which holders may convert the debt securities of the series into or for our common stock or other of our securities or property; |
| • | if the debt securities of the series are convertible, any limitations on the ownership or transferability of the securities or property into which holders may convert the debt securities; |
| • | the date or dates, or the method for determining the date or dates, on which we will be obligated to pay the principal of the debt securities of the series and the amount of principal we will be obligated to pay; |
| • | the rate or rates, which may be fixed or variable, at which the debt securities of the series will bear interest, if any, or the method by which the rate or rates will be determined; |
| • | the date or dates, or the method for determining the date or dates, from which any interest will accrue on the debt securities of the series, the dates on which we will be obligated to pay any such interest, and the regular record dates, if any, for the determination of the persons to whom we will be obligated to pay such interest; |
| • | the place or places where the principal of, and any premium, interest or other amounts payable (if any) on, the debt securities of the series will be payable or where the holders of the debt securities may surrender debt securities for conversion or transfer; |
| • | any provisions relating to the issuance of the debt securities at an original issue discount; |
| • | the period or periods during which, the price or prices (including any premium or other amount) at which, the currency or currencies in which, and the other terms and conditions upon which, we may redeem the debt securities of the series, at our option, if we have such an option; |
| • | our obligations (if any) to redeem, repay or purchase debt securities pursuant to any sinking fund or analogous provision or at the option of a holder of debt securities, and the price or prices at which, the period or periods within which and the terms and conditions upon which we will redeem, repay or purchase all or a portion of the debt securities of the series pursuant to that obligation; |
| • | if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the debt securities shall be issuable; |
| • | any events of default in lieu of or in addition to those described in this prospectus and remedies relating to such events of default; |
| • | if other than the trustee, the identity of each security registrar, transfer agent, paying agent or other agent for debt securities of the series; |
| • | the currency or currencies in which we will sell the debt securities and in which principal of, and any premium, or interest or other amounts payable (if any) on, the debt securities of the series will be denominated and payable; |
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| • | whether the amount of payment of principal of, and any premium, or interest or other amounts payable (if any) on, the debt securities of the series may be determined with reference to an index, formula or other method and the manner in which the amounts will be determined; |
| • | whether and under what circumstances we will pay any additional amounts on the debt securities to any holder who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if we will pay additional amounts, whether we will have the option, and on what terms to redeem the debt securities instead of paying the additional amounts; |
| • | if receipt of certain certificates or other documents or satisfaction of other conditions will be necessary for any purpose, including, without limitation, as a condition to the issuance of the debt securities in definitive form (whether upon original issue or upon exchange of a temporary debt security), the form and terms of such certificates, documents or conditions; |
| • | any other affirmative or negative covenant included for the benefit of the holders of the debt securities of the series; |
| • | whether the debt securities will be issued in whole or in part in the form of one or more global securities and, in such case, the depositary for such a global security and the circumstances under which any global security may be exchanged for debt securities registered in the name of, and under which any transfer of such global security may be registered in the name of, any person other than the depositary; |
| • | whether the debt securities are defeasible; |
| • | if other than the principal amount thereof, the portion of the principal amount of the debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to an event of default or provable in bankruptcy, or, if applicable, which is convertible; |
| • | any proposed listing of the debt securities of the series on any securities exchange; and |
| • | any other specific terms of the debt securities. |
Unless otherwise indicated in the prospectus supplement or term sheet relating to the debt securities, principal of and any premium or interest on the debt securities will be payable, and the debt securities will be exchangeable and transfers thereof will be registrable, at the office of the trustee at its principal office. However, at our option, payment of interest may be made by check mailed to the address of the person entitled thereto as it appears in the debt security register. Any payment of principal and any premium or interest required to be made on an interest payment date, redemption date or at maturity which is not a business day need not be made on such date, but may be made on the next succeeding business day with the same force and effect as if made on the applicable date, and no interest shall accrue for the period from and after such date.
Unless otherwise indicated in the prospectus supplement or term sheet relating to debt securities, the debt securities will be issued only in fully registered form, without coupons, in denominations of $1,000 or any integral multiple thereof. No service charge will be made for any transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
Debt securities may be issued under the indenture for federal income tax purposes as Original Issue Discount Securities (as defined below). Federal income tax consequences and other special considerations applicable to any such Original Issue Discount Securities (or other debt securities treated as issued at an original issue discount) will be described in the prospectus supplement relating to such securities. “Original Issue Discount Security” generally means any debt security that (i) is issued at a price lower than its principal amount (subject to a de minimis exception), (ii) does not require the payment of interest in cash or property (other than debt instruments of the issuer) at least annually throughout the term of the debt security or (iii) is issuable in exchange for property (including other debt instruments) and does not provide for adequate stated interest.
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Global Securities
The debt securities of a series may be issued in the form of one or more global securities that will be deposited with a depositary or its nominees identified in the prospectus supplement or term sheet relating to the debt securities. In such a case, one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding debt securities of the series to be represented by such global security or securities.
No global security may be transferred except as a whole by a nominee of the depositary for such global security to the depositary or a nominee of the depositary and except in the circumstances described in the prospectus supplement or term sheet relating to the debt securities. The specific terms of the depositary arrangement with respect to a series of debt securities will be described in the prospectus supplement or term sheet relating to such series.
Consolidation, Merger, Sale or Conveyance
The indenture provides that we may consolidate with, or sell, convey or lease all or substantially all of our assets to, or merge with or into, any other corporation, if:
| • | either we are the continuing corporation, or the successor corporation expressly assumes the due and punctual payment of the principal of and interest on all the debt securities outstanding under the indenture according to their tenor and the due and punctual performance and observance of all of the covenants and conditions of the indenture to be performed or observed by us; and |
| • | immediately after the merger or consolidation, or the sale, conveyance or lease, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing. |
Modification of the Indenture
We and the trustee may modify the indenture with respect to the debt securities of any series, with or without the consent of the holders of debt securities, under certain circumstances to be described in a prospectus supplement or term sheet.
Satisfaction and Discharge of Indenture
We may terminate our obligations under the debt securities of any series, except for certain limited surviving obligations, if either all of the debt securities of such series have been delivered to the trustee for cancellation or we deposit with the trustee cash or appropriate government obligations sufficient for the payment of principal and interest on the debt securities of such series to maturity and meet certain other conditions.
Defaults and Notice
The debt securities will contain events of default to be specified in the applicable prospectus supplement or term sheet, including, without limitation:
| • | failure to pay the principal of, or premium, if any, on any debt security of such series when due and payable (whether at maturity, by call for redemption, through any mandatory sinking fund, by redemption at the option of the holder, by declaration of acceleration or otherwise); |
| • | failure to make a payment of any interest on any debt security of such series when due and payable, which failure shall have continued for a period of 30 days; |
| • | our failure to perform or observe any other covenants or agreements in the indenture or in the debt securities of such series which failure shall have continued for a period of at least 90 days after written |
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| notice to us by the trustee or to us and the trustee from the holders of not less than 25% of the aggregate principal amount of the then outstanding debt securities of such series; and |
| • | certain events of bankruptcy, insolvency or reorganization of us. |
If an event of default with respect to debt securities of any series shall occur and be continuing, the trustee or the holders of not less than 25% in aggregate principal amount of the then outstanding debt securities of such series may declare the principal amount (or, if the debt securities of such series are issued at an original issue discount, such portion of the principal amount as may be specified in the terms of the debt securities of such series) of all debt securities of such series or such other amount or amounts as the debt securities or supplemental indenture with respect to such series may provide, to be due and payable immediately.
The indenture provides that, at any time after a declaration of acceleration with respect to the debt securities of any series as described in the preceding paragraph, the holders of a majority in principal amount of the then outstanding debt securities of such series may rescind and cancel such declaration and its consequences:
| • | if the rescission would not conflict with any judgment or decree; |
| • | if all existing events of default with respect to the debt securities of such series have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration; |
| • | to the extent the payment of such interest is lawful, if interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and |
| • | if the Company has paid the trustee its reasonable compensation and reimbursed the trustee for its expenses, disbursements and advances. |
No such rescission shall affect any subsequent default or event of default or impair any right consequent thereto.
The indenture provides that the trustee will, within 90 days after the occurrence of a default, give to holders of debt securities of any series notice of all uncured defaults with respect to such series known to it. However, except in the case of a default that results from the failure to make any payment of the principal of, premium, if any, or interest on the debt securities of any series, or in the payment of any mandatory sinking fund installment with respect to debt securities of such series, the trustee may withhold such notice if it in good faith determines that the withholding of such notice is in the interest of the holders of debt securities of such series.
The indenture contains a provision entitling the trustee to be offered reasonable indemnity by holders of debt securities before proceeding to exercise any trust or power under the indenture at the request of such holders. The indenture provides that the holders of a majority in aggregate principal amount of the then outstanding debt securities of any series may direct the time, method and place of conducting any proceedings for any remedy available to the trustee, or of exercising any trust or power conferred upon the trustee with respect to the debt securities of such series. The right of a holder of debt securities of any series to institute a proceeding with respect to the indenture is subject to certain conditions including that the holders of at least 25% in aggregate principal amount of the debt securities of such series then outstanding make a written request upon the trustee to exercise its power under the indenture, offer reasonable indemnity to the trustee and afford the trustee reasonable opportunity to act. Even so, the holder has an absolute right to receipt of the principal of, premium, if any, and interest when due, to require conversion of debt securities if the indenture provides for convertibility at the option of the holder and to institute suit for the enforcement of such rights.
Concerning the Trustee
The prospectus supplement or term sheet with respect to particular debt securities will describe any relationship that we may have with the trustee for such debt securities.
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Reports to Holders of Debt Securities
We intend to furnish to holders of debt securities all quarterly and annual reports that we furnish to holders of our common stock, and file such additional information, documents and reports as may be required by the rules and regulations prescribed from time to time by the SEC.
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DESCRIPTION OF PREFERRED STOCK
Our board of directors (the “Board”) is authorized to issue in one or more series, generally without stockholder approval, up to 1,000,000 shares of preferred stock, par value $0.01 per share. Undesignated shares of preferred stock can be issued with such designations, preferences, qualifications, privileges, limitations, restrictions, options, voting powers (full or limited), conversion or exchange rights and other special or relative rights as the Board shall from time to time fix by resolution. Thus, unless a specific stockholder approval requirement applies and subject to any statutory or contractual or other limitations as to class rights or other matters that might apply, our Board could authorize the issuance of preferred stock with voting, conversion and other rights that could dilute the voting power and other rights of holders of our common stock. The prospectus supplement or term sheet relating to a series of preferred stock will set forth the dividend, voting, conversion, exchange, repurchase and redemption rights, if applicable, the liquidation preference, and other specific terms of such series of preferred stock.
The description of certain provisions of the preferred stock set forth in any prospectus supplement or term sheet does not purport to be complete and is subject to and qualified in its entirety by reference to our certificate of incorporation and the certificate of designations relating to each series of preferred stock. The applicable prospectus supplement or term sheet will describe the specific terms of any series of preferred stock being offered which may include:
| • | the specific designation, number of shares, seniority and purchase price; |
| • | any liquidation preference per share; |
| • | any date of maturity; |
| • | any redemption, repayment or sinking fund provisions; |
| • | any dividend rate or rates and the dates on which any such dividends will be payable (or the method by which such rates or dates will be determined); |
| • | any voting rights; |
| • | if other than the currency of the United States, the currency or currencies (including composite currencies) in which such preferred stock is denominated and in which payments will or may be payable; |
| • | the method by which amounts in respect of such series of preferred stock may be calculated and any commodities, currencies or indices, or value, rate or price, relevant to such calculation; |
| • | whether such series of preferred stock is convertible or exchangeable and, if so, the securities or rights into which it is convertible or exchangeable, and the terms and conditions upon which such conversions or exchanges will be effected; |
| • | the place or places where dividends and other payments on such series of preferred stock will be payable; and |
| • | any additional voting, dividend, liquidation, redemption and other rights, preferences, privileges, limitations and restrictions. |
As described under “Description of Depositary Shares” below, we may, at our option, elect to offer depositary shares evidenced by depositary receipts, each representing an interest (to be specified in the prospectus supplement or term sheet relating to the particular series of preferred stock) in a share of the particular series of preferred stock issued and deposited with a depositary.
All shares of preferred stock offered by this prospectus, or issuable upon conversion, exchange or exercise of securities, will, when issued, be validly issued and fully paid and non-assessable.
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DESCRIPTION OF DEPOSITARY SHARES
We may offer fractional shares of preferred stock rather than full shares of preferred stock, and, in that event, will issue receipts for depositary shares. Each of these depositary shares will represent a fraction, which will be set forth in the applicable prospectus supplement or term sheet, of a share of the applicable series of preferred stock. The shares of any series of preferred stock underlying any depositary shares that we may sell under this prospectus will be deposited under a deposit agreement between us and a depositary selected by us. Subject to the terms of the deposit agreement, each holder of a depositary share will be entitled, in proportion to the applicable fraction of a share of the preferred stock underlying the depositary share, to all of the rights, preferences and privileges, and be subject to the qualifications and restrictions, of the preferred stock underlying that depositary share. The description set forth below and in any prospectus supplement or term sheet of certain provisions of the deposit agreement and of the depositary shares and depositary receipts is not complete. You should carefully review the prospectus supplement or term sheet and the form of deposit agreement and form of depositary receipts relating to each series of preferred stock.
General
We may, at our option, elect to have shares of any series of preferred stock be represented by depositary shares. The shares of any series of preferred stock underlying the depositary shares will be deposited under a separate deposit agreement that we will enter with a bank or trust company having its principal office in the United States and a combined capital and surplus of at least $50,000,000. This bank or trust company will be considered the depositary. The prospectus supplement or term sheet relating to a series of depositary shares will set forth the name and address of the depositary. Subject to the terms of the deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable interest in the number of shares of such series of preferred stock underlying such depositary share, to all the rights and preferences of such series of preferred stock underlying such depositary share (including dividend, voting, redemption, conversion, exchange and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement, each of which will represent the applicable interest in a number of shares of such series of preferred stock described in the applicable prospectus supplement or term sheet.
Unless otherwise specified in the prospectus supplement or term sheet, a holder of depositary shares is not entitled to receive the shares of such series of preferred stock underlying the depositary shares.
Pending the preparation of definitive depositary receipts, the depositary may, upon our written order, issue temporary depositary receipts substantially identical to the definitive depositary receipts. Definitive depositary receipts will thereafter be prepared without unreasonable delay.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received in respect of the applicable series of preferred stock to the record holders of depositary shares representing such preferred stock in proportion to the numbers of depositary shares owned by the holders on the relevant record date.
In the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary shares entitled to such property, as nearly as practicable, in proportion to the number of depositary shares owned by the holder. However, if the depositary determines that it is not feasible to make such distribution, it may, with our approval, sell such property and distribute the net proceeds from such sale to the holders. The amounts distributed by the depositary may be reduced by any amount required to be withheld by us or the depositary on account of taxes.
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The deposit agreement will also contain provisions relating to the manner in which any subscription or similar rights we offer to holders of preferred stock shall be made available to holders of depositary shares.
Conversion and Exchange
If any preferred stock underlying the depositary shares is subject to provisions relating to its conversion or exchange as set forth in the prospectus supplement or term sheet relating thereto, each record holder of depositary shares will have the right or obligation to convert or exchange such depositary shares pursuant to its terms.
Redemption of Depositary Shares
If a series of preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole or in part, of the series of preferred stock held by the depositary. The redemption price per depositary share will be equal to the aggregate redemption price payable with respect to the number of shares of such series of preferred stock underlying the depositary shares. Whenever we redeem a series of preferred stock from the depositary, the depositary will redeem as of the same redemption date a proportionate number of depositary shares representing the shares of such series of preferred stock that were redeemed. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as we may determine.
After the date fixed for redemption, the depositary shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the redemption price payable upon such redemption.
Voting
Upon receipt of notice of any meeting or action in lieu of any meeting at which the holders of any shares of a series of preferred stock underlying the depositary shares are entitled to vote, the depositary will mail the information contained in such notice to the record holders of the depositary shares relating to such shares of preferred stock. Each record holder of such depositary shares on the record date (which will be the same date as the record date for such series of preferred stock) will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the number of shares of such series of preferred stock underlying such holder’s depositary shares. The depositary will endeavor, as practicable, to vote the number of shares of such series of preferred stock underlying such depositary shares in accordance with such instructions, and we will agree to take all action which may be deemed necessary by the depositary in order to enable the depositary to do so. If the depositary does not receive instructions from the holders of depositary shares, the depositary will abstain from voting the preferred stock that underlies these depositary shares.
Amendment of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may at any time be amended by agreement between us and the depositary. However, any amendment which materially and adversely alters the rights of the existing holders of depositary shares will not be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then outstanding.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges that arise solely from the existence of the depositary arrangements. We will pay charges of the depositary in connection with the initial deposit of the applicable series of preferred stock and any exchange or redemption of such series of preferred stock. Holders of depositary shares will pay all other transfer and other taxes and governmental charges, and, in addition, such other charges as are expressly provided in the deposit agreement to be for their accounts.
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Miscellaneous
We, or at our option, the depositary, will forward to the holders of depositary shares all of our reports and communications which we are required to furnish to the holders of the series of preferred stock represented by the depository receipts.
Neither we nor the depositary will be liable if we or the depositary is prevented or delayed by law or any circumstances beyond our or its control in performing our or its obligations under the deposit agreement. Our obligations and the depositary’s obligations under the deposit agreement will be limited to performance in good faith and neither we nor the depositary will be obligated to prosecute or defend any legal proceeding in respect of any depositary share or preferred stock unless satisfactory indemnity has been furnished. Both we and the depositary may rely upon written advice of counsel or accountants, or information provided by persons presenting preferred stock for deposit, holders of depositary shares or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Depositary; Termination of the Deposit Agreement
The depositary may resign at any time by delivering notice to us of its election to do so, and we may at any time remove the depositary. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. We will appoint a successor depositary within 60 days after delivery of the notice of resignation or removal. We may terminate the deposit agreement, or it may be terminated by the depositary if a period of 90 days expires after the depositary has delivered written notice to us of its election to resign and we have not appointed a successor depositary. Upon termination of the deposit agreement, the depositary will discontinue the transfer of depositary receipts, will suspend the distribution of dividends to the holders of depositary receipts, and will not give any further notices (other than notice of such termination) or perform any further acts under the deposit agreement except that the depositary will continue to deliver the applicable series of preferred stock certificates, together with dividends and distributions and the net proceeds of any sales of rights, preferences, privileges or other property in exchange for depositary receipts surrendered prior to any such termination. Upon our request, the depositary will deliver to us all books, records, certificates evidencing the applicable series of preferred stock, depositary receipts and other documents relating to the subject matter of the deposit agreement.
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DESCRIPTION OF CLASS A COMMON STOCK
If we or any selling stockholder offer shares of Class A common stock, the prospectus supplement or term sheet will set forth the number of shares offered, the public offering price, information regarding our dividend history and Class A common stock prices as reflected on the New York Stock Exchange (the “NYSE”) or other exchange that the Class A common stock is then listed, including a recent reported last sale price of the Class A common stock.
This description is not complete and is summarized from, and qualified in its entirety by reference to, applicable provisions of the Delaware General Corporation Law (the “DGCL”), the Amended and Restated Certificate of Incorporation of the Company (the “Amended and Restated Charter”), the By-Laws of the Company (the “By-laws”), and other information with respect to Class A common stock which has been publicly filed with the SEC. See the section of this prospectus entitled “Where You Can Find More Information.”
General
As of November 7, 2025, the Company’s authorized capital stock consists of (i) 322,000,000 shares of Class A common stock, par value $0.01 per share, (ii) 25,000,000 shares of Class 1 common stock, par value $0.01 per share, and (iii) 1,000,000 shares of preferred stock, par value $0.01 per share.
Dividend Rights
Subject to preferences that may apply to shares of preferred stock outstanding at the time, the holders of shares of Class A common stock and Class 1 common stock are entitled to receive dividends in accordance with law if our Board, in its sole discretion, determines to declare dividends and only then at the times and in the amounts that our Board may determine. Notwithstanding the foregoing, if we declare and pay a cash dividend on Class 1 common stock, each share of Class A common stock will be paid a cash dividend in an amount at least 10% greater than the amount of the cash dividend per share paid on Class 1 Common Stock. Our Board may declare and pay a dividend on Class A common stock without paying any dividend on Class 1 common stock.
Voting Rights
Each holder of shares of Class A common stock is entitled to one vote per share on all matters requiring a vote of the stockholders, including, without limitation, the election of directors. The holders of shares of Class A common stock do not have cumulative voting rights. Except as otherwise required by any law or regulation applicable to the Company or its securities, by the rules or regulations of any stock exchange applicable to the Company or its securities, or by the Amended and Restated Charter or otherwise required by the By-laws, all matters brought to a vote of stockholders are decided by the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter at a meeting at which a quorum is present.
Holders of Class 1 common stock are not entitled to vote except that such holders are entitled to vote as a separate class on matters with respect to which a separate class vote of holders of Class 1 common stock is required by law and are entitled to vote with respect to any increase or decrease in the authorized number of shares of Class 1 common stock as a single class with the holders of Class A common stock (in which case the holders of Class 1 common stock and Class A common stock are each entitled to one vote per share). The holders of shares of Class 1 common stock do not have cumulative voting rights.
Delaware law could require either holders of our Class A common stock or our Class 1 common stock to vote separately as a single class in the following circumstances:
| • | if we were to seek to amend our Amended and Restated Charter to increase the authorized number of shares of a class of stock (with respect to the shares of Class A common stock only), or to increase or decrease the par value of a class of stock, then that class may be required to vote separately to approve the proposed amendment; and |
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| • | if we were to seek to amend our Amended and Restated Charter to alter or change the powers, preferences, or special rights of the shares of a class of stock so as to affect them adversely, then that class may be required to vote separately to approve the proposed amendment. |
Board of Directors
The Board is comprised of a single class, elected annually by the holders of Class A common stock at any meeting of stockholders called for the election of directors at which a quorum is present (a quorum being the holders of shares representing a majority of the votes entitled to be cast at the meeting by the holders of all outstanding shares entitled to vote, present in person or by proxy). The directors are elected by the affirmative vote of the holders of a majority of the votes entitled to be cast by the stockholders who are present in person or represented by proxy at the meeting and entitled to vote on the election of directors. However, if one or more stockholders has delivered to the Secretary of the Company notice (which purports to be in compliance with the requirements of the By-laws) of its intent to nominate one or more persons for election to the Board and such nomination(s) have not been formally and irrevocably withdrawn as of the 10th calendar day preceding the date the Company first gives its notice of meeting to the stockholders, then directors shall be elected by a plurality of the votes entitled to be cast by the stockholders who are present in person or represented by proxy at the meeting and entitled to vote on the election of directors.
Conversion of Class 1 Common Stock
Each holder of a share of Class 1 common stock may, without cost and at their option, convert shares of Class 1 common stock into fully paid and non-assessable shares of Class A common stock on a one-for-one basis; provided, that, such conversion is permitted only if the holder immediately sells the Class A common stock acquired upon conversion in a market transaction, to an unrelated party in a bona fide arm’s-length transaction or in connection with any offering registered under the Securities Act. The Company does not intend to list the Class 1 common stock on the NYSE or any other exchange. A holder wishing to sell shares of Class 1 common stock may convert such shares of Class 1 common stock into shares of Class A common stock immediately prior to a qualifying sale of the shares. The terms of the Class 1 common stock do not impose any transfer restrictions on shares of Class 1 common stock; however, shares of Class 1 common stock may be subject to restrictions on transfer imposed by applicable securities laws, as well as certain contractual transfer restrictions.
Rights Upon Liquidation
Holders of shares of Class A common stock and Class 1 common stock are entitled to share pro rata in the distribution of our assets available for such purpose in the event of our liquidation, dissolution or winding up, after payment of, or provision for, creditors and distribution of, or provision for, preferential amounts and unpaid accumulated dividends to holders of preferred stock, if any.
Preemptive and Other Rights
Holders of shares of Class A common stock and Class 1 common stock have no preemptive rights to subscribe for any additional securities which we may issue, and there are no redemption provisions or sinking fund provisions applicable to any such shares, nor are such shares subject to further calls or assessments.
Antitakeover Provisions
Provisions of the DGCL, the Amended and Restated Charter and the By-laws, which are summarized below, may have antitakeover effects and could delay, defer or prevent a tender offer, takeover attempt or other change of control transaction that a stockholder might consider in its best interest.
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Delaware Law Antitakeover Statute
The Company is subject to Section 203 of the DGCL. Section 203 prohibits a publicly held Delaware corporation from engaging in any “business combination” with any “interested stockholder” for a period of three years following the time that such person became an interested stockholder, unless
| • | prior to the time the interested stockholder becomes an interested stockholder, the board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
| • | upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owns at least 85% of the outstanding voting stock (subject to certain exclusions of voting stock) at the time the transaction commenced; or |
| • | at or subsequent to the time the interested stockholder became an interested stockholder, the business combination is approved by the board of directors and authorized at a meeting of the corporation’s stockholders (and not by written consent) by the affirmative vote of at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder. |
For purposes of Section 203, a “business combination” includes a merger, assets sale or other transaction resulting in a financial benefit to the interested stockholder, and an “interested stockholder” includes a person who, together with affiliates and associates, owns 15% or more of the corporation’s voting stock. These provisions may have the effect of delaying, deferring or preventing changes in control of the Company.
Issuance of Undesignated Preferred Stock
Our Board has the authority, without stockholder approval, to issue up to 1,000,000 shares of undesignated preferred stock with rights and preferences, to the extent not fixed by certain provisions set forth in the Amended and Restated Charter and subject to the terms contained in any designation of a series of preferred stock, designated from time to time by our Board. The powers, preferences and relative, participating, optional and other special rights of each class or series of preferred stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. The existence of authorized but unissued shares of preferred stock would enable our Board to render more difficult or to discourage an attempt to obtain control of our Company by means of a merger, tender offer, proxy contest or other means.
No Cumulative Voting
The Amended and Restated Charter does not provide for cumulative voting.
Size of Board of Directors and Vacancies
The By-laws provide that the total number of directors will be determined from time to time by our Board. The By-laws further provide that during the interval between annual meetings, any newly created directorship or any vacancy occurring in our Board for any cause may be filled by the members of our Board in accordance with the DGCL.
Amendment to By-Laws
The By-laws may be altered, amended or repealed or new by-laws may be made by the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter, at any annual or special meeting, or, by our Board.
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Special Stockholder Meetings; Notice Requirements
A special meeting of stockholders for any purpose or purposes may be called at any time by our Board, or by a committee of our Board which has been duly designated by our Board, and whose powers and authority, as expressly provided in a resolution of our Board, include the power to call such meetings, but such special meetings may not be called by any other person or persons. The By-laws also provide for advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. The By-laws also specify certain requirements regarding the form and content of a stockholder’s notice under the advance notice provision.
Exclusive Forum for Certain Lawsuits
The By-laws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if such court does not have subject matter jurisdiction thereof, the federal district court of the State of Delaware) will be, to the fullest extent permitted by law, the sole and exclusive forum for any (i) derivative action or proceeding brought on our behalf, (ii) action asserting a claim of breach of a fiduciary duty owed by any of our current or former directors, officers or our stockholders to us or our stockholders, (iii) action asserting a claim arising pursuant to any provision of the DGCL, the Amended and Restated Charter or the By-laws or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware or (iv) action asserting a claim governed by the internal affairs doctrine. In addition, the By-laws provide that, unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America will, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. The By-laws also provide that any person or entity purchasing or otherwise acquiring or holding any interest in shares of our capital stock will be deemed to have notice of and consented to this choice-of-forum provision.
This choice-of-forum provision in the By-laws may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or any of our directors, officers and other employees, which may discourage lawsuits with respect to such claims, although our stockholders will not be deemed to have waived our compliance with federal securities laws and the rules and regulations thereunder. In addition, stockholders who do bring a claim in the Court of Chancery in the State of Delaware could face additional litigation costs in pursuing any such claim, particularly if they do not reside in or near Delaware.
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The following is a general description of the terms of the warrants we may issue from time to time. Particular terms of any warrants we offer will be described in the prospectus supplement or term sheet relating to such warrants.
General
We may issue warrants to purchase our Class A common stock, preferred stock, depositary shares, debt securities or any combination thereof. Warrants may be issued independently or together with other securities and may be attached to or separate from those securities. The warrants will be issued under warrant agreements to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants.
The particular terms of each issue of warrants, the warrant agreement relating to the warrants and the warrant certificates representing warrants will be described in the applicable prospectus supplement or term sheet. This description will include:
| • | the title of the warrants; |
| • | the price or prices at which the warrants will be issued, if any; |
| • | the designation and terms of the Class A common stock, preferred stock, depositary shares or debt securities for which the warrants are exercisable; |
| • | if applicable, the designation and terms of the other securities with which the warrants are issued, and the number of warrants issued with each share or unit of such other securities; |
| • | the currency or currencies, including composite currencies, in which the price of such warrants may be payable; |
| • | if applicable, the date on and after which the warrants and the other securities will be separately transferable; |
| • | the number of shares of Class A common stock, preferred stock, depositary shares or the principal amount of debt securities that may be purchased upon exercise of a warrant and the price at which the shares or debt securities may be purchased upon exercise; |
| • | anti-dilution provisions of the warrants, if any; |
| • | with respect to debt securities only, whether the warrants represented by the warrant certificates or debt securities that may be issued upon exercise of the warrants will be issued in registered or bearer form; |
| • | if applicable, a discussion of any material federal income tax considerations; and |
| • | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Modifications
The warrant agreement may be amended by us and the warrant agent, without the consent of the holder of any warrant certificate, for the purpose of curing any ambiguity or of curing, correcting or supplementing any defective provision contained in the warrant agreement, or making any provisions in regard to matters or questions arising under the warrant agreement that we may deem necessary or desirable; provided, that the amendment may not adversely affect the interest of the holders of warrant certificates in any material respect.
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DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase shares of our Class A common stock, shares of our preferred stock or our debt securities. We may issue subscription rights independently or together with any other offered security, which may or may not be transferable by the stockholder. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement relating to any subscription rights we may offer will contain the specific terms of the subscription rights. These terms may include the following:
| • | the price, if any, for the subscription rights; |
| • | the number and terms of each share of Class A common stock or preferred stock or debt securities which may be purchased per each subscription right; |
| • | the exercise price payable for each share of Class A common stock or preferred stock or debt securities upon the exercise of the subscription rights; |
| • | the extent to which the subscription rights are transferable; |
| • | any provisions for adjustment of the number or amount of securities receivable upon exercise of the subscription rights or the exercise price of the subscription rights; |
| • | any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights; |
| • | the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
| • | the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and |
| • | if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights. |
The description in an accompanying prospectus supplement of any subscription rights we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable subscription rights certificate or subscription rights agreement, which will be filed with the SEC if we offer subscription rights. For more information on how you can obtain copies of any subscription rights certificate or subscription rights agreement if we offer subscription rights, see “Where You Can Find More Information.” We urge you to read the applicable subscription rights certificate, the applicable subscription rights agreement and any accompanying prospectus supplement in their entirety.
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DESCRIPTION OF PURCHASE CONTRACTS AND PURCHASE UNITS
We may issue purchase contracts, representing contracts obligating holders to purchase from us, and we may sell to the holders, at a future date or dates, (i) debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices or such securities or any combination of the above as specified in the applicable prospectus supplement, (ii) currencies, or (iii) commodities. Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities, currencies or commodities and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract. The purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under either the senior indenture or the subordinated indenture.
Stock purchase contracts may be issued separately or as a part of units (“purchase units”) consisting of one or more purchase contracts, warrants, debt securities, shares of preferred stock, shares of Class A common stock or any combination of such securities. The stock purchase contracts may require us to make periodic payments to the holders of the purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The purchase contracts may require holders to secure their obligations thereunder in a specified manner.
The applicable prospectus supplement or term sheet will describe the terms of any purchase contracts or purchase units, including whether and under what circumstances the securities comprising the purchase contracts or units may be traded separately. Certain material federal income tax considerations applicable to the purchase units and purchase contracts will be set forth in the prospectus supplement or term sheet relating thereto.
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Selling stockholders, who will be named in a prospectus supplement, may use this prospectus in connection with resales of Class A common stock they hold as described in the applicable prospectus supplement. Information about selling stockholders, when applicable, will be set forth in a prospectus supplement, in a post-effective amendment or in filings we make with the SEC under the Exchange Act which are incorporated by reference into this prospectus.
Each debt security, warrant and unit will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and, in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
Registered Global Securities. We may issue the registered debt securities, warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement, guaranteed trust
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preferred security or unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement, guaranteed trust preferred security or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement, guaranteed trust preferred security or unit agreement. We understand that, under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement, guaranteed trust preferred security or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants, guaranteed trust preferred securities or units, represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of the Company, the trustees, the warrant agents, the unit agents or any other agent of the Company, agent of the trustees or agent of the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
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We and/or the selling stockholders may sell securities pursuant to this prospectus from time to time in one or more transactions, including without limitation, directly to one or more purchasers, through agents, underwriters, brokers or dealers or any combination of the foregoing.
Certain of our affiliates may purchase securities in any offering, including in connection with any proposed sale of the Class A common stock by the selling stockholders.
A distribution of the securities offered by this prospectus may also be effected through the issuance of or transactions involving derivative securities, including, without limitation, warrants, subscriptions, exchangeable securities, forward delivery contracts and the writing of options.
In addition, the manner in which we and/or the selling stockholders may sell some or all of the securities covered by this prospectus includes any method permitted by law, including, without limitation, through:
| • | a block trade in which a broker-dealer will attempt to sell securities as agent, but may position or resell all or a portion of the block, as principal, in order to facilitate the transaction; |
| • | purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; |
| • | ordinary brokerage transactions and transactions in which a broker solicits purchasers; |
| • | privately negotiated transactions; |
| • | an exchange distribution in accordance with the rules of the applicable exchange; |
| • | settlements of short sales; |
| • | transactions through broker-dealers that agree with the selling stockholder to sell a specified number of such common stock at a stipulated price per security; |
| • | “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange of otherwise; or |
| • | a combination of the foregoing methods of sale. |
We and/or the selling stockholders may also enter into hedging transactions. For example, we and/or the selling stockholders may:
| • | enter into transactions with a broker-dealer or affiliate thereof in connection with which such broker-dealer or affiliate will engage in short sales of the Class A common stock pursuant to this prospectus, in which case such broker-dealer or affiliate may use shares of Class A common stock received from us and/or the selling stockholders to close out its short positions; |
| • | sell securities short and redeliver such shares to close out short positions; |
| • | enter into option or other types of transactions that require us and/or the selling stockholders to deliver Class A common stock to a broker-dealer or an affiliate thereof, who will then resell or transfer the Class A common stock under this prospectus; or |
| • | loan or pledge the Class A common stock to a broker-dealer or an affiliate thereof, who may sell the loaned shares or, in an event of default in the case of a pledge, sell the pledged shares pursuant to this prospectus. |
The securities covered by this prospectus may be sold on a national securities exchange, in the over-the-counter market or in transactions otherwise than on an exchange or in the over-the-counter market, or any combination of the foregoing.
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In addition, we and/or the selling stockholders may enter into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. In connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement or pricing supplement, as the case may be. If so, the third party may use securities borrowed from us and/or the selling stockholders or others to settle such sales and may use securities received from us and/or the selling stockholders to close out any related short positions. We and/or the selling stockholders may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement or pricing supplement, as the case may be.
For each offering of securities under this prospectus, we and/or the selling stockholders will identify the specific plan of distribution, including any underwriters, brokers, dealers, agents or direct purchasers, and their compensation, in the related prospectus supplement or term sheet, including, without limitation:
| • | the terms of any offering, including the name or names of any underwriters, brokers, dealers or agents, the purchase price of such series of securities and the proceeds to us and/or the selling stockholders from such sale; |
| • | any underwriting discounts, selling commissions and other items constituting underwriters’, brokers’, dealers’ or agents’ compensation; |
| • | any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers or agents; and |
| • | any securities exchanges on which the securities of the series may be listed. |
In addition to selling its shares of Class A common stock under this prospectus, a selling stockholder may:
| • | transfer its shares of Class A common stock in other ways not involving market maker or established trading markets, including directly by gift, distribution, or other transfer; |
| • | sell its shares of Class A common stock under Rule 144 or Rule 145 of the Securities Act rather than under this prospectus, if the transaction meets the requirements of Rule 144 or Rule 145; |
| • | sell its shares of Class A common stock through distribution to its members, partners or stockholders; or |
| • | sell its shares of Class A common stock by any other legally available means. |
General
Any public offering price and any discounts, commissions, concessions or other items constituting compensation allowed or reallowed or paid to underwriters, dealers, agents or remarketing firms may be changed from time to time. The selling stockholders, underwriters, dealers, agents and remarketing firms that participate in the distribution of the offered securities may be “underwriters” as defined in the Securities Act. Any discounts or commissions they receive from us and/or the selling stockholders and any profits they receive on the resale of the offered securities may be treated as underwriting discounts and commissions under the Securities Act.
The selling stockholders and other persons participating in the sale or distribution of the shares of Class A common stock will be subject to the Securities Act, and the rules and regulations thereunder, as well as Regulation M under the Exchange Act. This regulation may limit the timing of purchases and sales of any of the shares of Class A common stock by the selling stockholders or any other person. The anti-manipulation rules under the Exchange Act may apply to sales of securities in the market and to the activities of the selling stockholders and any of its affiliates. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution for a period of up to five business days before the distribution. These restrictions may affect the marketability of the shares of Class A common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Class A common stock.
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The selling stockholders are not restricted as to the price or prices at which we or they may sell the shares of Class A common stock. Sales of such shares of Class A common stock may have an adverse effect on the market price of shares of Class A common stock. Moreover, it is possible that a significant number of shares of Class A common stock could be sold at the same time, which may have an adverse effect on the market price of shares of Class A common stock.
We will identify the specific plan of distribution, including any underwriters, brokers, dealers, agents or direct purchasers and their compensation in a prospectus supplement.
Underwriters and Agents
If underwriters are used in a sale, they will acquire the offered securities for their own account. The underwriters may resell the offered securities in one or more transactions, including negotiated transactions. These sales may be made at a fixed public offering price or prices, which may be changed, at market prices prevailing at the time of the sale, at prices related to such prevailing market prices or at negotiated prices. We and/or the selling stockholders may offer the securities to the public through an underwriting syndicate or through a single underwriter. The underwriters in any particular offering will be mentioned in the applicable prospectus supplement.
Unless otherwise specified in connection with any particular offering of securities, the obligations of the underwriters to purchase the offered securities will be subject to certain conditions contained in an underwriting agreement that we and/or the selling stockholders will enter into with the underwriters at the time of the sale to them. The underwriters will be obligated to purchase all of the securities of the series offered if any of the securities are purchased, unless otherwise specified in connection with any particular offering of securities. Any initial offering price and any discounts or concessions allowed, reallowed or paid to dealers may be changed from time to time.
We and/or the selling stockholders may designate agents to sell the offered securities. Unless otherwise specified in connection with any particular offering of securities, the agents will agree to use their best efforts to solicit purchases for the period of their appointment. We and/or the selling stockholders may also sell the offered securities to one or more remarketing firms, acting as principals for their own accounts or as agents for us and/or the selling stockholders. These firms will remarket the offered securities upon purchasing them in accordance with a redemption or repayment pursuant to the terms of the offered securities. A prospectus supplement will identify any remarketing firm and will describe the terms of its agreement, if any, with us and/or the selling stockholders and its compensation.
In connection with offerings made through underwriters or agents, we and/or the selling securityholders may enter into agreements with such underwriters or agents pursuant to which we and/or the selling stockholders receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions in these outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us and/or the selling stockholders under these arrangements to close out any related open borrowings of securities.
Dealers
We and/or the selling securityholders may sell the offered securities to dealers as principals. We and/or the selling stockholders may negotiate and pay dealers’ commissions, discounts or concessions for their services. The dealer may then resell such securities to the public either at varying prices to be determined by the dealer or at a fixed offering price agreed to with us and/or the selling stockholders at the time of resale. Dealers engaged by us and/or the selling stockholders may allow other dealers to participate in resales.
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Direct Sales
We and/or the selling stockholders may choose to sell the offered securities directly. In this case, no underwriters or agents would be involved.
Institutional Purchasers
We and/or the selling stockholders may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus supplement will provide the details of any such arrangement, including the offering price and commissions payable on the solicitations.
We and/or the selling stockholders may enter into such delayed contracts only with institutional purchasers that we and/or the selling stockholders approve, as applicable. These institutions may include commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification; Other Relationships
We and/or the selling securityholders may have agreements with agents, underwriters, dealers and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act. Agents, underwriters, dealers and remarketing firms, and their affiliates, may engage in transactions with, or perform services for, us and/or the selling stockholders in the ordinary course of business. This includes commercial banking and investment banking transactions.
Pursuant to that certain Registration Rights Agreement, dated as of November 10, 2022 (the “Registration Rights Agreement”), as amended, modified, supplemented or restated from time to time, among the Company and the selling stockholders named therein, we have agreed to indemnify, in certain circumstances, the selling stockholders against certain liabilities, including liabilities under the Securities Act.
Except as set forth below, we have agreed to pay all fees and expenses incurred by the Company and the selling stockholders in connection with the registration of the Class A common stock covered by this prospectus supplement, including (i) all registration and filing fees, (ii) printing expenses, (iii) messenger, telephone and delivery expenses of the Company, (iv) fees and disbursements of counsel for the Company and one counsel for the selling Stockholders, subject to certain limitations set forth in the Registration Rights Agreement, (v) expenses of the Company incurred in connection with any “road show,” including travels, meals and lodging (vi) fees and disbursements of all certain independent registered public accounting firms and any other persons, including special experts retained by the Company, (vii) all expenses in connection with the preparation, printing and filing of any registration statement, any preliminary prospectus, final prospectus or free writing prospectus, any other offering document and amendments and supplements thereto and the mailing and delivering of copies thereof to the underwriters and dealers, (viii) all expenses associated with any listing of the Class A common stock or other registrable securities, (ix) any reasonable fees and disbursements of underwriters customarily paid by issuers or sellers of securities, and (x) Securities Act liability insurance or similar insurance if the Company so desires or the underwriters so require in accordance with then-customary underwriting practice. The selling stockholders will be responsible for all underwriting and brokerage discounts, selling commissions and transfer taxes, if any, applicable to any sales of Class A common stock or other registrable securities under this prospectus supplement.
Market-Making, Stabilization and Other Transactions
There is currently no market for any of the offered securities, other than our Class A common stock, which is listed on the NYSE. If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price, depending upon prevailing interest rates, the market for similar securities and
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other factors. While it is possible that an underwriter could inform us and/or the selling stockholders that it intends to make a market in the offered securities, such underwriter would not be obligated to do so, and any such market-making could be discontinued at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop for the offered securities. We have no current plans for listing of the debt securities, preferred stock, warrants, purchase contracts or purchase units on any securities exchange; any such listing with respect to any particular debt securities, preferred stock, warrants, purchase contracts or purchase units will be described in the applicable prospectus supplement.
In connection with any underwritten offering of Class A common stock, the underwriters may purchase and sell shares of Class A common stock in the open market. These transactions may include short sales, syndicate covering transactions and stabilizing transactions. Short sales involve syndicate sales of Class A common stock in excess of the number of shares of Class A common stock to be purchased by the underwriters in the offering, which creates a syndicate short position. “Covered” short sales are sales of shares made in an amount up to the number of shares represented by the underwriters’ over-allotment option. In determining the source of shares to close out the covered syndicate short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. Transactions to close out the covered syndicate short involve either purchases of the Class A common stock in the open market after the distribution has been completed or the exercise of the over-allotment option. The underwriters may also make “naked” short sales of shares in excess of the over-allotment option. The underwriters must close out any naked short position by purchasing shares of Class A common stock in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of bids for or purchases of shares in the open market while the offering is in progress for the purpose of pegging, fixing or maintaining the price of the shares of Class A common stock.
In connection with any underwritten offering, the underwriters may also engage in penalty bids. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters may, if they commence these transactions, discontinue them at any time.
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The validity of the securities offered by this prospectus will be passed upon by McDermott Will & Schulte LLP. Legal counsel to any underwriters may pass upon legal matters for such underwriters. Additional legal matters may be passed upon for us, any selling stockholders or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
The consolidated financial statements of Constellation Brands, Inc. and subsidiaries as of February 28, 2025 and February 28, 2024, and for each of the fiscal years in the three-year period ended February 28, 2025, and management’s assessment of the effectiveness of internal control over financial reporting as of February 28, 2025, have been incorporated by reference herein in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
| ITEM 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth the estimated fees and expenses payable by the Company in connection with the issuance and distribution of the Securities being registered:
| SEC registration fee |
$ | * | ||
| Printing expenses |
** | |||
| Fees and expenses of counsel |
** | |||
| Fees and expenses of accountants |
** | |||
| Trustee’s fees and expenses |
** | |||
| Rating agency fees |
** | |||
| Miscellaneous |
** | |||
|
|
|
|||
| Total |
$ | ** | ||
|
|
|
| * | The filing fee is to be deferred pursuant to Rule 456(b) and calculated in connection with the offering of securities under this registration statement pursuant to Rule 457(r). |
| ** | These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
| ITEM 15. | Indemnification of Directors and Officers. |
The DGCL (Section 102) allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or to any of its stockholders for monetary damage for a breach of his/her fiduciary duty as a director, except in the case where the director breached his/her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Amended and Restated Charter contains a provision which eliminates directors’ personal liability as set forth above.
The DGCL (Section 145) gives Delaware corporations broad powers to indemnify their present and former directors and officers and those of affiliated corporations against expenses incurred in the defense of any lawsuit to which they are made parties by reason of being or having been such directors or officers, subject to specified conditions and exclusions; gives a director or officer who successfully defends an action the right to be so indemnified; and authorizes a corporation to buy directors’ and officers’ liability insurance. Such indemnification is not exclusive of any other right to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or otherwise.
The Amended and Restated Charter provides for indemnification to the fullest extent authorized by Section 145 of the DGCL for directors, officers, and, if authorized by the Board, employees and agents of the Company, and also for persons who are serving at the request of the Company as directors, officers or employees of other corporations (including subsidiaries); provided that, with respect to proceedings initiated by such indemnitee (other than a proceeding brought to enforce a right to indemnification under the Amended and Restated Charter as provided therein), indemnification shall be provided only if such proceedings were authorized by the Board. This right of indemnification is not exclusive of any other right which any person may acquire under any statute, bylaw, agreement, contract, vote of stockholders or otherwise.
The Company maintains a directors’ and officers’ liability insurance and corporate reimbursement policy insuring directors and officers against loss arising from claims made arising out of the performance of their duties.
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In addition, the Company has agreed to indemnify certain of its officers to the fullest extent permitted under Delaware law, and as provided in the Company’s Certificate of Incorporation and By-Laws that were in effect on the date of the agreement to indemnify. The Company also agreed to advance fees and expenses as incurred by these officers as a result of any proceeding against them as to which they could be indemnified.
| ITEM 16. | Exhibits. |
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| Incorporated by Reference | ||||||||||||
| Exhibit No. |
Exhibit Description |
Form | Exhibit | Filing | ||||||||
| 4.30* | Form of Deposit Agreement, including form of depositary receipt. | |||||||||||
| 4.31* | Form of Subscription Rights Agreement. | |||||||||||
| 4.32* | Form of Warrant Agreement, including form of Warrant Certificate. | |||||||||||
| 4.33* | Form of Purchase Contract, including form of Purchase Unit Agreement. | |||||||||||
| 5** | Opinion of McDermott Will & Schulte LLP. | |||||||||||
| 23.1** | Consent of McDermott Will & Schulte LLP (included as part of Exhibit 5). | |||||||||||
| 23.2** | Consent of KPMG LLP. | |||||||||||
| 24.1** | Powers of Attorney (included on signature pages of this registration statement). | |||||||||||
| 25** | Statement of Eligibility of Trustee on Form T-1. | |||||||||||
| 107** | Filing Fee Table. | |||||||||||
| * | To be subsequently filed, if necessary, by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering. |
| ** | Filed herewith. |
| † | Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. |
| ITEM 17. | Undertakings. |
| (a) | The undersigned Registrant hereby undertakes: |
| (1) | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
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| (2) | that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
| (3) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
| (4) | that, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and |
| (5) | that, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or their securities provided by or on behalf of the undersigned Registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
| (b) | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the “Act”) may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
| (d) | The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act. |
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Table of Contents
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rochester, State of New York, on November 7, 2025.
| CONSTELLATION BRANDS, INC. | ||
| By: | /s/ William A. Newlands | |
| Name: | William A. Newlands | |
| Title: | President and Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James O. Bourdeau, Garth Hankinson, Brian S. Bennett and Michael Reitz and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or officer of Constellation Brands, Inc.) to sign any or all amendments (including post-effective amendments) to this registration statement and filed pursuant to Rule 462 of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on November 7, 2025.
| Signature |
Title | |
| /s/ William A. Newlands William A. Newlands |
Director, President and Chief Executive Officer (principal executive officer) | |
| /s/ Garth Hankinson Garth Hankinson |
Executive Vice President and Chief Financial Officer (principal financial officer and principal accounting officer) | |
| /s/ Christopher J. Baldwin Christopher J. Baldwin |
Director and Non-Executive Chair of the Board | |
| /s/ Christy Clark Christy Clark |
Director | |
| /s/ Jennifer M. Daniels Jennifer M. Daniels |
Director | |
| /s/ Nicholas I. Fink Nicholas I. Fink |
Director | |
Table of Contents
| Signature |
Title | |
| /s/ William T. Giles William T. Giles |
Director | |
| /s/ Ernesto M. Hernández Ernesto M. Hernández |
Director | |
| /s/ José Manuel Madero Garza José Manuel Madero Garza |
Director | |
| /s/ Daniel J. McCarthy Daniel J. McCarthy |
Director | |
| /s/ Richard Sands Richard Sands |
Director | |
| /s/ Robert Sands Robert Sands |
Director | |
| /s/ Luca Zaramella Luca Zaramella |
Director | |
Exhibit 5
|
mwe.com Heidi Steele Attorney at Law hsteele@mwe.com +1 312 984 3624 |
November 7, 2025
Constellation Brands, Inc.
50 East Broad Street
Rochester, NY 14614
| Re: | Registration Statement on Form S-3 filed on November 7, 2025 |
Ladies and Gentlemen:
We have acted as counsel to Constellation Brands, Inc. (the “Company”) in connection with the filing of the above-referenced Registration Statement on Form S-3 (the “Registration Statement”), including the prospectus contained therein (the “Prospectus”), filed with the Securities and Exchange Commission (the “SEC”) by the Company under the Securities Act of 1933, as amended (the “Act”), relating to the issuance, sale or delivery, from time to time, of an indeterminate amount of (i) debt securities of the Company (the “Debt Securities”) issuable pursuant to the indenture filed as an exhibit to the Registration Statement (the “Indenture”); (ii) Class A Common Stock, par value $0.01 per share, of the Company (the “Common Stock”) that may be sold by the Company and/or selling stockholders who may be identified in future supplements to, or documents incorporated by reference in, the Prospectus; (iii) Preferred Stock, par value $0.01 per share, of the Company (the “Preferred Stock”) that may be represented by depositary shares (the “Depositary Shares”); (iv) warrants to purchase Debt Securities, Preferred Stock, Depositary Shares, Common Stock or any combination thereof (the “Warrants”); (v) subscription rights of the Company to purchase Class A Common Stock, Preferred Stock or Debt Securities (the “Subscription Rights”); (vi) purchase contracts (the “Purchase Contracts”); and (vii) purchase units of the Company (the “Purchase Units” and, together with the Debt Securities, Preferred Stock, Common Stock, Warrants, Subscription Rights and Purchase Contracts, the “Securities”). The Securities may be sold by the Company from time to time as set forth in the Registration Statement, the Prospectus, and as to be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
In arriving at the opinions expressed below, we have assumed that the issuance, sale, amount and terms of the Securities to be offered from time to time will be duly authorized and determined by proper action of the Board of Directors of the Company (the “Board”) consistent with the procedures and terms described in the Registration Statement (each, a “Board Action”) and in accordance with the Company’s Amended and Restated Certificate of Incorporation then in effect (the “Certificate of Incorporation”) and the General Corporation Law of the State of Delaware (the “DGCL”). In addition, we have examined and relied, to the extent we deemed proper, on certificates of officers of the Company as to factual matters, and on originals or copies certified or otherwise identified to our satisfaction, of all such corporate records of the Company and such other instruments and certificates of public officials and other persons as we have deemed appropriate. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies, the genuineness of all signatures on documents reviewed by us and the legal capacity of natural persons.
We do not express any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York and (ii) the DGCL (the “Applicable Law”).
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444 West Lake Street Chicago IL 60606-0029 Tel +1 312 372 2000 Fax +1 312 984 7700 US practice conducted through McDermott Will & Schulte LLP. |
November 7, 2025
Page 2
In rendering the opinions set forth below, we have assumed further that, at the time of execution, authentication, issuance and delivery, as applicable, of each of the Securities and applicable agreements governing the issuance, sale and delivery of such Securities (the “Securities Agreement”), (1) the Company will be validly existing and in good standing under the law of the jurisdiction in which it is organized and such Securities Agreement will have been duly authorized, executed and delivered by the Company in accordance with its organizational documents and the law of the jurisdiction in which it is organized, (2) the execution, delivery, issuance and performance, as applicable, by the Company of such Securities Agreement and such Securities will not constitute a breach or violation of its organizational documents or violate the law of the jurisdiction in which it is organized or any other jurisdiction (except that no such assumption is made with respect to the law of the State of New York or the DGCL, assuming there shall not have been any changes in such laws affecting the validity or enforceability of such Securities Agreement and such Securities) and (3) the execution, delivery, issuance and performance, as applicable, by the Company of such Securities Agreement and such Securities (a) will not constitute a breach or default under any agreement or instrument which is binding upon the Company and (b) will comply with all applicable regulatory requirements then in effect.
Based upon, subject to and limited by the foregoing, we are of the opinion that, as of the date hereof:
1. When the Debt Securities have been (a) duly established by the Indenture or any supplemental indenture thereto, (b) duly authorized and established by applicable Board Action and duly authenticated by the trustee thereunder (the “Trustee”) and (c) delivered on behalf of the Company against payment therefor in accordance with the terms of such Board Action, any applicable underwriting agreement, the Indenture and any applicable supplemental indenture, and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, the Debt Securities will constitute binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general applicability.
2. Upon due authorization by Board Action of an issuance of Common Stock, and upon issuance and delivery of the Common Stock against payment of valid consideration therefor in accordance with the terms of such Board Action, and any applicable underwriting, purchase or similar agreement, and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, such shares of Common Stock will be legally issued, fully paid and non-assessable.
3. When the Preferred Stock has been duly authorized and established by applicable Board Action, in accordance with the terms of the Certificate of Incorporation and applicable law, including the filing of a Certificate of Designations related to such Preferred Stock, upon issuance and delivery of the Preferred Stock against payment of valid consideration therefor in accordance with the terms of such Board Action and any applicable underwriting or purchase agreement, and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, the shares represented by such shares of Preferred Stock will be legally issued, fully paid and non-assessable.
4. When the Depositary Shares and the underlying Preferred Stock have been duly authorized and established by applicable Board Action, in accordance with the terms of the Certificate of Incorporation and applicable law, and when (a) a deposit agreement substantially as described in the Registration Statement has been duly executed and delivered by the Company and a depositary and (b) the depositary receipts representing the Depositary Shares in the form contemplated and authorized by such deposit agreement have been duly executed and delivered by such depositary and delivered to and paid for by the purchasers thereof in the manner contemplated by the Registration Statement and/or the applicable Prospectus Supplement, upon issuance and delivery of the Preferred Stock against payment of valid consideration therefor in accordance with the terms of such Board Action and any applicable underwriting, purchase or similar agreement, and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, such Depositary Shares will be legally issued and will entitle the holders thereof to the rights specified in the depositary receipts and the deposit agreement relating to such Depositary Shares.
5. When Warrants to purchase Securities have been (a) duly authorized and established by applicable Board Action, and (b) duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms of such Board Action, any applicable underwriting, purchase or similar agreement, and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, the Warrants will constitute binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general applicability.
November 7, 2025
Page 3
6. When Subscription Rights have been (a) duly authorized and established by applicable Board Action and (b) duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms of such Board Action, any applicable underwriting, purchase or similar agreement, and as contemplated by the Registration Statement and/or the applicable Prospectus Supplement, the Subscription Rights will constitute binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general applicability.
7. With respect to Purchase Contracts, when (a) the Board has taken the appropriate Board Action to approve and establish the terms of the Purchase Contracts and to authorize and approve the issuance thereof, the terms of the offering thereof and related matters and (b) the Purchase Contracts have been duly executed and delivered in accordance with the applicable definitive purchase, underwriting or similar agreement approved by or on behalf of the Board, upon payment of the consideration therefor provided for therein and as described in the Registration Statement, any amendment thereto, the Prospectus and any Prospectus Supplement relating thereto, the Purchase Contracts will constitute binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general applicability.
8. With respect to Purchase Units, when (a) the Board has taken the appropriate Board Action to approve and establish the terms of the Purchase Units and to authorize and approve the issuance thereof, the terms of the offering thereof and related matters and (b) the Purchase Units have been duly executed and delivered in accordance with the applicable definitive purchase, underwriting or similar agreement approved by or on behalf of the Board, upon payment of the consideration therefor provided therein and as described in the Registration Statement, any amendment thereto, the Prospectus and any Prospectus Supplement relating thereto, the Purchase Units will constitute binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general applicability.
To the extent that the obligations of the Company under a deposit agreement or the obligations of the Company under the Indenture may be dependent upon such matters, we have assumed for purposes of this opinion (i) that the applicable depositary or trustee, as the case may be, is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified to engage in the activities contemplated by the applicable deposit agreement or the Indenture, as the case may be, (ii) that such deposit agreement or Indenture, as the case may be, has been duly authorized, executed and delivered by and constitutes the legal, valid and binding obligation of such depositary or trustee, as the case may be, enforceable in accordance with its respective terms, except that the enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general applicability, (iii) that such depositary or trustee, as the case may be, is in compliance, generally and with respect to acting as a depositary or trustee, respectively, under the applicable deposit agreement or the Indenture, with all applicable laws and regulations and (iv) that such depositary or trustee, as the case may be, has the requisite organizational and legal power and authority to perform its obligations under the applicable deposit agreement or the Indenture, as the case may be.
We hereby consent to the reference to our firm under the caption “Legal Matters” in the Registration Statement and to the use of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder.
November 7, 2025
Page 4
Very truly yours,
/s/ McDermott Will & Schulte LLP
McDermott Will & Schulte LLP
Exhibit 23.2
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| KPMG LLP 265 Clinton Square Rochester, NY 14604-1701 |
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated April 23, 2025, with respect to the consolidated financial statements of Constellation Brands, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference, and to the reference to our firm under the heading “Experts” in the prospectus.
/s/ KPMG LLP
Rochester, New York
November 7, 2025
Exhibit 25
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
MANUFACTURERS AND TRADERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
| New York | 16-0538020 | |
| (State of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| One M&T Plaza Buffalo, New York |
14203-2399 | |
| (Address of principal executive offices) | (Zip code) | |
Kyle Barry
Senior Vice President
M&T Bank
One M&T Plaza
Buffalo, New York 14240
(716) 839-6909
(Name, address and telephone number of agent of service)
CONSTELLATION BRANDS, INC.
(Exact name of obligor as specified in its charter)
| Delaware | 16-0716709 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| 50 East Broad Street Rochester, New York |
14614 | |
| (Address of principal executive offices) | (Zip code) |
Debt Securities
(Title of the indenture securities)
ITEM 1. General information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
| Name |
Address | |
| New York State Department of Financial Services | 1 State Street, New York, New York 10004 | |
| Federal Reserve Bank of New York | 33 Liberty Street, New York, New York 10045 | |
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
ITEM 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation:
Based upon an examination of the books and records of the Trustee and information available to the Trustee, the obligor is not an affiliate of the Trustee.
ITEMS 3 – 15. Not applicable.
ITEM 16. List of Exhibits.
Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification.
| Exhibit 1. | Organization Certificate of the Trustee as now in effect.* | |
| Exhibit 2. | Certificate of Authority of the Trustee to commence business (contained in Exhibit 1)* | |
| Exhibit 3. | Authorization of the Trustee to exercise corporate trust powers (contained in Exhibit 1)* | |
| Exhibit 4. | Existing By-Laws of the Trustee as now in effect.* | |
| Exhibit 5. | Not Applicable. | |
| Exhibit 6. | Consent of the Trustee.* | |
| Exhibit 7. | Report of Condition of the Trustee.* | |
| Exhibit 8. | Not Applicable. | |
| Exhibit 9. | Not Applicable. | |
| * | Filed Herewith |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, Manufacturers and Traders Trust Company, a banking corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Minneapolis, and State of Minnesota, on the 7th day of November, 2025.
| MANUFACTURERS AND TRADERS TRUST COMPANY | ||
| By: | /s/ Emilia Gazzuolo | |
| Name: | Emilia Gazzuolo | |
| Title: | Assistant Vice President | |
EXHIBIT 1
Organizational Certificate of the Trustee
RESTATED ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
UNDER SECTION 8007 OF THE BANKING LAW
The undersigned, being respectively, the President, and an Assistant Secretary, of Manufacturers and Traders Trust Company, pursuant to Section 8007 of the Banking Law of the State of New York, do hereby restate, certify and set forth as follows:
(1) The name of the corporation is Manufacturers and Traders Trust Company. The name under which the corporation was originally incorporated was The Fidelity Trust and Guaranty Company of Buffalo.
(2) The organization certificate of the corporation was filed in the Office of the Superintendent of Banks of the State of New York on September 13, 1892, and in the Office of the Clerk of Erie County, New York on September 14, 1892, and the certificate of authorization of the Superintendent of Banks of the State of New York was issued on June 27, 1893.
A first restated organization certificate of the corporation was approved and filed in the Office of the Superintendent of Banks of the State of New York on August 6, 1954. Such restated organization certificate was amended from time to time thereafter. A second restated organization certificate of the corporation was approved and filed in the Office of the Superintendent of Banks of the State of New York on February 26, 1991. A third restated organization certificate of the corporation was approved and filed in the Office of the Superintendent of Banks of the State of New York on May 22, 1992. A fourth restated organization certificate of the corporation was approved and filed in the Office of the Superintendent of Banks of the State of New York on April 1, 2003. A fifth restated organization certificate of the corporation was approved and filed in the Office of the Superintendent of Banks of the State of New York on September 9, 2004.
(3) The restated organization certificate is hereby restated and amended by deleting, in its entirety, Article 7, relating to certain restrictions on amending the corporation’s Bylaws or this restated organization certificate, which Article has terminated as a result of the termination of certain provisions of the Bylaws.
(4) The text of the corporation’s organization certificate, as amended heretofore, is hereby restated without further change to read as hereinafter set forth in full:
“ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
1. The name by which the said corporation shall be known is Manufacturers and Traders Trust Company or M&T Bank.
2. The place where the principal office of the corporation is to be located is the City of Buffalo, County of Erie and State of New York.
3. The amount of the corporation’s capital stock is $200,000,000. The number of shares into which such capital stock shall be divided is 5,000,000 common shares of the par value of $40 per share.
4. The number of directors which the corporation shall have shall be not less than seven (7) nor more than thirty (30).
5. The term of existence of the corporation shall be perpetual.
6. The corporation shall exercise the fiduciary powers conferred by Section 100 of the Banking Law, as amended from time to time, in addition to the other powers conferred upon banks and trust companies pursuant to the Banking Law or other applicable law.”
(5) This restatement of the organization certificate was authorized pursuant to Section 6015 of the Banking Law by the written consent, setting forth the action taken, of the holder of all of the outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, the undersigned have executed, signed and verified this certificate this 2nd day of February, 2011.
| MANUFACTURERS AND TRADERS TRUST COMPANY | ||
| By: | /s/ Mark J. Czarnecki | |
| Mark J. Czarnecki | ||
| President | ||
| By: | /s/ Brian R. Yoshida | |
| Brian R. Yoshida | ||
| Assistant Secretary | ||
| STATE OF NEW YORK | ) | |||||
| ) | SS.: | |||||
| COUNTY OF ERIE | ) |
Mark J. Czarnecki and Brian R. Yoshida, being first duly sworn, depose and say that they are respectively, the President and an Assistant Secretary of Manufacturers and Traders Trust Company, that they have read the foregoing certificate and know the contents thereof and that the statements therein contained are true.
| /s/ Mark J. Czarnecki |
| Mark J. Czarnecki |
| /s/ Brian R. Yoshida |
| Brian R. Yoshida |
| Sworn to before me this 2nd day of February, 2011. |
||
|
/s/ Marie King Notary Public |
MARIE KING Notary Public, State of New York Qualified in Erie County My Commission Expires 03/30/2011 |
EXHIBIT 4
Existing By-Laws of the Trustee
AMENDED AND RESTATED BYLAWS
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
(effective as of April 18, 2023)
AMENDED AND RESTATED BYLAWS
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
ARTICLE I
Meetings of Stockholders
Section 1. Annual Meeting: The Annual Meeting of Manufacturers and Traders Trust Company (“M&T Bank”), for the election of directors and for transaction of such other business as may be set forth in the notice of meeting, shall be held at the principal office of M&T Bank or at such other place in the City of Buffalo, New York on the third Tuesday of April in each year, or on such date and at such time as the Board of Directors shall determine.
Section 2. Special Meetings: Special meetings of the stockholders may be called to be held at the principal office of M&T Bank or elsewhere within the State of New York at any time by the Board of Directors or the Chairman of the Board, the Chief Executive Officer or the President, and shall be called by the Chairman of the Board, the Chief Executive Officer, the President, the Corporate Secretary or an Assistant Secretary at the request in writing of five (5) or more members of the Board of Directors, or at the request in writing of the holders of record of at least 25% of the outstanding shares of M&T Bank entitled to vote. Such request shall state the purpose or purposes for which the meeting is to be called.
Section 3. Notice of Meetings: Written notice of each meeting of the stockholders shall be given by depositing in the United States mail, postage prepaid, not less than ten (10) nor more than fifty (50) days before such meeting, a copy of the notice of such meeting directed to each stockholder of record entitled to vote at the meeting, at the address as it appears on the record of stockholders for each such stockholder, or, if such stockholder shall have filed with the Corporate Secretary of M&T Bank a written request that notices be mailed to some other address, then directed to such other address. The notice shall state the place, date and hour of the meeting, the purpose or purposes for which the meeting is called and, unless it is the annual meeting, indicate that the notice is being issued by or at the direction of the person or persons calling the meeting. If action is proposed to be taken at any meeting which would, if taken, entitle dissenting stockholders to receive payment for their shares, the notice shall include a statement of that purpose and to that effect. At each meeting of stockholders only such business may be transacted which is related to the purpose or purposes set forth in the notice of meeting.
Section 4. Waiver of Notice: Whenever under any provisions of these Bylaws, the organization certificate, the terms of any agreement or instrument, or law, M&T Bank or the Board of Directors or any committee thereof is authorized to take any action after notice to any person or persons or after the lapse of a prescribed period of time, such action may be taken without notice and without the lapse of such period of time, if at any time before or after such action is completed the person or persons entitled to such notice or entitled to participate in the action to be taken or, in the case of a stockholder, by such stockholder’s attorney-in-fact, submit a signed waiver of notice of such requirements. The attendance of any stockholder at any meeting, in person or by proxy, without protesting prior to the conclusion the lack of notice of such meeting, shall constitute a waiver of notice by such stockholder.
Section 5. Procedure: At every meeting of stockholders the order of business and all other matters of procedure may be determined by the person presiding at the meeting.
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Section 6. List of Stockholders: A list of stockholders as of the record date, certified by the officer of M&T Bank responsible for its preparation or by a transfer agent, shall be produced at any meeting of stockholders upon the request thereat or prior thereto of any stockholder. If the right to vote at any meeting is challenged, the inspectors of election, or person presiding thereat, shall require such list of stockholders to be produced as evidence of the right of the persons challenged to vote at such meeting, and all persons who appear from such list to be stockholders entitled to vote thereat may vote at such meeting.
Section 7. Quorum: At all meetings of the stockholders of M&T Bank a quorum must be present for the transaction of business and, except as otherwise provided by law, a quorum shall consist of the holders of record of not less than a majority of the outstanding shares of M&T Bank entitled to vote thereat, present either in person or by proxy. When a quorum is once present to organize a meeting of the stockholders, it is not broken by the subsequent withdrawal of any stockholders.
Section 8. Adjournments: The stockholders entitled to vote who are present in person or by proxy at any meeting of stockholders, whether or not a quorum shall be present or represented at the meeting, shall have power by a majority vote to adjourn the meeting from time to time without further notice other than announcement at the meeting. At any adjourned meeting at which a quorum shall be present in person or by proxy any business may be transacted that might have been transacted on the original date of the meeting, and the stockholders entitled to vote at the meeting on the original date (whether or not they were present thereat), and no others, shall be entitled to vote at such adjourned meeting.
Section 9. Voting; Proxies: Each stockholder of record entitled to vote shall be entitled at every meeting of stockholders of M&T Bank to one (1) vote for each share of stock having voting power standing in each such stockholder’s name on the record of stockholders on the record date fixed pursuant to Section 3 of Article VI of these Bylaws. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent without a meeting may do so either in person or by proxy appointed by instrument executed in writing by such stockholder or such stockholder’s duly authorized attorney-in-fact and delivered to the secretary of the meeting. No director, officer, clerk, teller or bookkeeper of M&T Bank shall act as proxy at any meeting. No proxy shall be valid after the expiration of eleven (11) months from the date of its execution unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the stockholder executing it except as otherwise provided by law. Directors elected at any meeting of the stockholders shall be elected by a plurality of the votes cast. All other corporate action to be taken by vote of the stockholders shall, except as otherwise provided by law or these Bylaws, be authorized by a majority of the votes cast. The vote for directors shall be by ballot, but otherwise the vote upon any question before a meeting shall not be by ballot unless the person presiding at such meeting shall so direct or any stockholder, present in person or by proxy and entitled to vote thereon, shall so demand.
Section 10. Appointment of Inspectors of Election: The Board of Directors may, in advance of any meeting of the stockholders, appoint one (1) or more inspectors to act at the meeting or any adjournment thereof. If inspectors are not so appointed in advance of the meeting, the person presiding at such meeting may, and on the request of any stockholder entitled to vote thereat shall, appoint one (1) or more inspectors. In case any inspector appointed fails to appear or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting or at the meeting by the person presiding thereat. No director, officer or candidate for the office of director of M&T Bank shall be eligible to act as an inspector of an election of directors of M&T Bank. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his or her ability.
Section 11. Duties of Inspectors of Election: The inspectors of election shall determine the number of shares outstanding and entitled to vote, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders.
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ARTICLE II
Directors
Section 1. Number and Qualifications: Unless otherwise permitted by law, the number of directors of M&T Bank shall be not less than seven (7) nor more than thirty (30), with the exact number to be fixed from time to time by resolution of a majority of the directors, provided that the number of directors shall not be reduced so as to shorten the term of any director at the time in office. If the number of directors be increased at any time, within the limits above set forth, the vacancy or vacancies in the Board of Directors arising from such increase shall be filled as provided in Section 4 of this Article II. Each such vacancy, and each reduction in the number of directors, shall be reported to the Superintendent of Banks in the manner prescribed by law. All of the directors shall be of full age, and at least one-half (1/2) of them shall be citizens of the United States at the time of their election and during their continuance in office, unless otherwise permitted by law. No more than one-third (1/3) of the directors shall be active officers or employees of M&T Bank.
Section 2. Election and Tenure of Office: Except as otherwise provided by law or these Bylaws, each director of M&T Bank shall be elected at an annual meeting of the stockholders or at any meeting of the stockholders held in lieu of such annual meeting, which meeting, for the purposes of these Bylaws, shall be deemed the annual meeting, and shall hold office until the next annual meeting of stockholders and until his or her successor has been elected and qualified. Each person who shall be elected a director of M&T Bank shall, before participating in any manner as a director of M&T Bank, qualify in the manner prescribed by law and take and subscribe the oath prescribed by law.
Section 3. Resignation: Any director of M&T Bank may resign at any time by giving his or her resignation to the Chairman of the Board, the Chief Executive Officer, the President or the Corporate Secretary. Such resignation shall take effect at the time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4. Vacancies: Except as hereinafter provided, all vacancies in the office of director shall be filled by election by the stockholders entitled to vote at any meeting of the stockholders notice of which shall have referred to the proposed election. Vacancies not exceeding one-third (1/3) of the entire Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term. Each vacancy in the office of director and each election by the Board of Directors to fill any such vacancy shall be reported to the Superintendent of Banks in the manner provided by law.
Section 5. Directors’ Fees: Directors, except salaried officers of M&T Bank who are directors, may receive a fee for their services as directors and traveling and other out-of-pocket expenses incurred in attending any regular or special meeting of the Board of Directors. The fee may be a fixed sum for attending each meeting of the Board of Directors or a fixed sum paid monthly, quarterly, or semiannually, irrespective of the number of meetings attended or not attended. The amount of the fee and the basis on which it shall be paid shall be determined by resolution of the Board of Directors.
Section 6. Meetings of Directors: A regular meeting of the Board of Directors shall be held at least six (6) times each year, provided that during any three (3) consecutive calendar months the Board of Directors shall meet at least once and that the Board of Directors shall meet more frequently if required by law. The first meeting of the Board of Directors after each annual meeting of the stockholders shall be held immediately after the adjournment of such annual meeting and shall constitute the regular meeting of the Board of Directors for the month in which such first meeting is held. The Board of Directors shall, from time to time, designate the place, date and hour for the holding of regular meetings but, in the absence of any such designation, regular meetings of the Board of Directors shall be held at the principal office of M&T Bank in the City of Buffalo, New York, at 11:00 o’clock a.m., on the third Tuesday of each January, February, April, July, September and October. No notice need be given of such regular meetings except such notice as these Bylaws or the Board of Directors by resolution may require. Special meetings of the Board of Directors shall be held at such times and at such places as the Board of Directors or the Chairman of the Board, the Chief Executive Officer or the President may determine, and shall also be held upon the request of any four (4) directors made in writing to the Chairman of the Board, the Chief Executive Officer or the President.
Section 7. Notice of Special Meetings of the Board of Directors: Notice of each special meeting of the Board of Directors stating the time and place thereof, shall be given by the Chairman of the Board, the Chief Executive Officer, the President, the Corporate Secretary, or an Assistant Secretary, or by any member of the Board of Directors to each member of the Board of Directors not less than three (3) days before the meeting by depositing the same in the United States mail, with first-class postage thereon prepaid, directed to each member of the Board of Directors at the address designated by him or her for such purpose (or, if none is designated, at his or her last known address), or not less than one (1) day before the meeting by telephoning or by delivering the same to each member of the Board of Directors personally, or by sending the same by facsimile, electronic mail, or overnight express courier, or delivering it, to the address designated by him or her for such purpose (or, if none is designated, to his or her last known address). Notice of a meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him or her. The notice of any special meeting of the Board of Directors need not specify the purpose or purposes for which the meeting is called, except as provided in Article IX of these Bylaws.
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Section 8. Quorum: At all meetings of the Board of Directors, except as otherwise provided by law or these Bylaws, a quorum shall be required for the transaction of business and shall consist of not less than one-third (1/3) of the entire Board of Directors, and the vote of a majority of the directors present shall decide any question which may come before the meeting. A majority of the directors present at any meeting, although less than a quorum, may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Section 9. Meetings by Conference Telephone: Any one (1) or more members of the Board of Directors or any committee thereof may participate in a meeting of such Board of Directors or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time, including video conferencing equipment. Participation in a meeting by such means shall constitute presence in person at such meeting.
Section 10. Procedure: The order of business and all other matters of procedure at every meeting of directors may be determined by the person presiding at the meeting.
Section 11. The Chairman of the Board: The Board of Directors shall annually, at the first meeting (the “Annual Reorganization Meeting”) of the Board of Directors after the Annual Meeting of Stockholders, appoint or elect from its own number a Chairman of the Board who shall have such authority and perform such duties as the Board of Directors or the Executive Committee may from time to time prescribe. The Chairman of the Board shall, unless otherwise determined by the Board of Directors, hold office until the first meeting of the Board of Directors following the next Annual Meeting of Stockholders and until his or her successor has been elected or appointed and qualified.
Section 12. The Vice Chairmen of the Board: The Board of Directors shall annually, at the Annual Reorganization Meeting of the Board of Directors after the Annual Meeting of Stockholders, appoint or elect from its own number one (1) or more Vice Chairmen of the Board who shall have such authority and perform such duties as the Board of Directors or the Executive Committee may from time to time prescribe. The Vice Chairmen of the Board shall, unless otherwise determined by the Board of Directors, hold office until the first meeting of the Board of Directors following the next Annual Meeting of Stockholders and until their successors have been elected or appointed and qualified. The Board of Directors shall elect a non-executive Vice Chairman of the Board who will perform the duties of “lead outside director.”
ARTICLE III
Committees
Section 1. Executive Committee: The Board of Directors shall, by resolution adopted by a majority of the entire Board of Directors, designate from among its members an Executive Committee consisting of five (5) or more directors. The Board of Directors may designate one (1) or more directors as alternate members of the Executive Committee, who may replace any absent member or members of the Executive Committee at any meeting thereof. In the interim between meetings of the Board of Directors, the Executive Committee shall have all the authority of the Board of Directors except as otherwise provided by law. All acts done and powers and authority conferred by the Executive Committee from time to time within the scope of its authority shall be, and may be deemed to be, and may be certified as being, the act and under the authority of the Board of Directors. The Chairman of the Executive Committee shall preside at all meetings of the Executive Committee. The Executive Committee shall elect from its members a chairman to preside at meetings of the Executive Committee at which the Chairman of the Executive Committee shall be absent. Four (4) members of the Executive Committee shall constitute a quorum for the transaction of business.
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Section 2. Examining Committee: The Board of Directors shall, by resolution adopted by a majority of the entire Board of Directors, designate from among its members an Examining Committee consisting of not less than three (3) directors to examine fully the books, papers and affairs of M&T Bank, and the loans and discounts thereof, as provided by law. The Examining Committee shall have the power to employ such assistants as it may deem necessary to enable it to perform its duties.
Section 3. Other Committees: The Board of Directors may from time to time, by resolution or resolutions, appoint or provide for one (1) or more other committees consisting of such directors, officers, or other persons as the Board of Directors may determine. Each committee, to the extent provided in said resolution or resolutions, shall have such powers and functions in the management of M&T Bank as may be lawfully delegated by the Board of Directors in the interim between meetings of the Board of Directors. Each committee shall have such name as may be provided from time to time in said resolution or resolutions, and shall serve at the pleasure of the Board of Directors.
Section 4. Minutes of Meetings of Committees: The Executive Committee, the Examining Committee, and each other committee shall keep regular minutes of its proceedings and report the same to the Board of Directors at the next meeting thereof, or as soon thereafter as may be practicable under the circumstances.
Section 5. Fees to Members of Committees: Members of committees, except salaried officers of M&T Bank who are members of committees, may receive a fee for their services as members of committees and traveling and other out-of-pocket expenses incurred in attending any regular or special meeting of a committee. The fee may be a fixed sum for attending each committee meeting or a fixed sum paid monthly, quarterly, or semiannually, irrespective of the number of meetings attended or not attended. The amount of the fee and the basis on which it shall be paid shall be determined by resolution of the Board of Directors.
ARTICLE IV
Officers
Section 1. Officers: The Board of Directors shall annually, at the Annual Reorganization Meeting of the Board of Directors following the Annual Meeting of Stockholders, appoint or elect a Chief Executive Officer and one (1) or more Senior Executive Vice Presidents, a Corporate Secretary, a Treasurer, a Chief Auditor, and such other officers as it may determine, including, if so determined, a President, each to hold office until the next Annual Reorganization Meeting. The officers below the level of Senior Executive Vice President of M&T Bank may be elected as follows: The head of the Human Resources Department of M&T Bank, or his or her designee, may appoint officers up to and including (without limitation as to title or number) one (1) or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers, and Assistant Auditors, and any other officer positions as they deem necessary and appropriate, except for any “SEC-Reporting Officers” for purposes of Section 16 of the Securities Exchange Act of 1934, as such officers may only be appointed by the Board of Directors or the Executive Committee.
Section 2. Term of Office: The Chief Executive Officer, the President, each Senior Executive Vice President, the Corporate Secretary, the Treasurer, and the Chief Auditor shall, unless otherwise determined by the Board of Directors, hold office until the first meeting of the Board of Directors following the next annual meeting of stockholders and until their successors have been elected and qualified. Each additional officer appointed or elected by the Board of Directors, the Executive Committee, or the Head of the Human Resources Department of M&T Bank, or his or her designee, shall hold office for the term specified or, if no term has been specified, until death, termination or resignation. Any officer, however, may be removed at any time by the Board of Directors, and any officer’s authority may be suspended by the Board of Directors with or without cause. If the office of any officer becomes vacant for any reason, the Board of Directors and the Head of the Human Resources Department of M&T Bank shall have the power to fill such vacancy in accordance with their respective appointment authority in Section 1 of this Article IV.
Section 3. The Chief Executive Officer: Unless such authority is prescribed by the Board of Directors or the Executive Committee for the Chairman of the Board or a Vice Chairman of the Board, the Chief Executive Officer shall preside at all meetings of the stockholders and of the Board of Directors. The Chief Executive Officer shall, under control of the Board of Directors and the Executive Committee, have the general management of M&T Bank’s affairs and shall exercise general supervision over all activities of M&T Bank. The Chief Executive Officer shall have the power to appoint or hire, to remove, and to determine the compensation of, all employees of M&T Bank who are not officers. If a President is not elected or appointed, the Chief Executive Officer shall be deemed to be President for purposes of New York Banking Law, Section 7013.
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Section 4. The President: The President, subject to the control and direction of the Board of Directors and the Chief Executive Officer, shall have immediate supervision over the business, affairs, and properties of M&T Bank, shall have and exercise general authority with respect thereto, shall perform all duties and exercise all powers generally incident to this office and shall perform such additional duties and be vested with such additional powers as shall be assigned from time to time by the Board of Directors, the Executive Committee, and if he is not the Chief Executive Officer, by such officer. In the absence or incapacity of the Chairman of the Board, the President shall have the powers and exercise the duties of the Chairman of the Board, including the powers of Chief Executive Officer if the Chairman of the Board is the Chief Executive Officer.
Section 5. The Vice Presidents: The Vice Presidents shall have such powers and perform such duties as may be assigned to them respectively by these Bylaws and the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President. Any one (1) or more individuals may be designated by the Board of Directors as “Senior Executive Vice President,” or by the Board of Directors or the Head of the Human Resources Department of M&T Bank, or his or her designee, as “Executive Vice President,” “Senior Vice President,” or “Vice President,” or by such other title or titles as the Board of Directors or the Head of the Human Resources Department of M&T Bank, or his or her designee, may determine. In the absence or incapacity of both the Chairman of the Board, the Chief Executive Officer and the President, the Vice Presidents shall exercise the powers and perform the duties of those officers in such order of precedence as shall be determined by the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President.
Section 6. The Corporate Secretary and Assistant Secretaries: The Corporate Secretary shall issue notices of all meetings of stockholders, the Board of Directors and the Executive Committee, where notices of such meetings are required by law or these Bylaws. He or she shall attend all meetings of stockholders, the Board of Directors and the Executive Committee and keep the minutes thereof in proper books provided for that purpose. He or she shall affix the corporate seal to and sign such instruments as require the seal and his or her signature and shall perform such other duties as usually pertain to this office or as are properly required by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.
The Assistant Secretaries may, in the absence or disability of the Corporate Secretary or at his or her request, perform the duties and exercise the powers of the Corporate Secretary, and shall perform such other duties as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President shall prescribe.
Section 7. The Treasurer and Assistant Treasurers: The Treasurer shall keep permanent records of the assets and liabilities and of all matters and transactions bearing upon the financial affairs of M&T Bank. He or she shall, whenever required by the Board of Directors, present a statement of the business of M&T Bank, a balance sheet thereof as of the end of the last preceding month or such other date as may be so required. He or she shall make and sign such reports, statements and instruments as may be required by the Board of Directors or the President or by law and shall perform such other duties as usually pertain to this office or as are properly required by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.
The Assistant Treasurers may, in the absence or disability of the Treasurer or at his or her request, perform the duties and exercise the powers of the Treasurer, and shall perform such other duties as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President shall prescribe.
Section 8. The Chief Auditor: The Chief Auditor shall be responsible to the Chair of the Examining Committee and, through the Examining Committee, to the Board of Directors for the safety of all operations and for the systems of internal audits and protective controls; he or she shall perform such other duties as the Chairman of the Board, the Chief Executive Officer or the President may prescribe and shall make such examinations and reports as may be required by the directors’ Examining Committee. He or she shall have the duty to report to the Chairman of the Board, the Chief Executive Officer and the President on all matters concerning the safety of the operations of M&T Bank which he or she deems advisable or which the Chairman of the Board, the Chief Executive Officer or the President may request. In addition, the Chief Auditor shall have the duty of reporting independently of all officers of M&T Bank to the directors’ Examining Committee whenever he or she deems it necessary or desirable to do so, but in any event not less often than annually on all matters concerning the safety of the operations of M&T Bank.
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The Assistant Auditors may, in the absence or disability of the Chief Auditor, or at his or her request, perform the duties and exercise the powers of the Chief Auditor, and shall perform such other duties as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President shall prescribe.
Section 9. Other Officers: All other officers that may be elected or appointed by the Board of Directors, the Executive Committee or the head of the Human Resources Department of M&T Bank or his or her designee or designees shall exercise such powers and perform such duties as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President shall prescribe, except as the law may otherwise require.
Section 10. Officers Holding Two or More Offices: Any two (2) or more offices may be held by the same person, except the offices of President and Corporate Secretary. No officer shall execute or verify any instrument in more than one (1) capacity if such instrument be required by law or otherwise to be executed or verified by any two (2) or more officers.
Section 11. Duties of Officers May be Delegated: In case of the absence or disability of any officer of M&T Bank, or in case of a vacancy in any office or for any other reason that the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President may deem sufficient, the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President, except as otherwise provided by law or these Bylaws, may delegate, for the time being, the powers or duties of any officer to any other officer or to any director.
Section 12. Compensation of Officers: The Compensation and Human Capital Committee of the Board of Directors of M&T Bank Corporation shall, through appropriate consultation with the Board of Directors, determine the compensation and benefits of the Chief Executive Officer and other executive officers of M&T Bank. In the event and to the extent that the Compensation and Human Capital Committee shall not hereafter exercise its discretionary power in respect of all other officers, the compensation to be paid to all other officers shall be determined by the Chief Executive Officer.
Section 13. Special Powers: The Chairman of the Board, the Chief Executive Officer, the President, any executive Vice Chairman, any Vice President, any Assistant Vice President, the Corporate Secretary, any Assistant Secretary, the Treasurer, and any assistant Treasurer shall each have power and authority:
To sign, countersign, certify, issue, assign, endorse, transfer and/or deliver notes, checks, drafts, bills of exchange, certificates of deposit, acceptances, letters of credit, advices for the transfer or payment of funds, orders for the sale and for delivery of securities, guarantees of signatures, and all other instruments, documents and writings in connection with the business of M&T Bank in its corporate or in any trust or fiduciary capacity;
To sign the name of M&T Bank and affix its seal, or cause the same to be affixed, to deeds, mortgages, satisfactions, assignments, releases, proxies, powers of attorney, trust agreements, and all other instruments, documents or papers necessary for the conduct of the business of M&T Bank, either in its corporate capacity or in any trust or fiduciary capacity;
To endorse, sell, assign, transfer and deliver any stocks, bonds, mortgages, notes, certificates of interest, certificates of indebtedness, certificates of deposit and any evidences of indebtedness or of any rights or privileges which now are or may hereafter be held by or stand in the name of M&T Bank, either in its corporate capacity, or in any fiduciary or trust capacity, and to execute proxies, powers of attorney or other authority with respect thereto;
To accept on behalf of M&T Bank any guardianship, receivership, executorship or any general or special trust specified in the Banking Law of the State of New York;
To authenticate or certificate any bonds, debentures, notes, or other instruments issued under or in connection with any mortgage, deed of trust or other agreement or instrument under which M&T Bank is acting as trustee or in any other fiduciary capacity;
To sign, execute and deliver certificates, reports, checks, orders, receipts, certificates of deposit, interim certificates, and other documents in connection with its duties and activities as registrar, transfer agent, disbursing agent, fiscal agent, depositary, or in any other corporate fiduciary capacity.
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The powers and authority above conferred may at any time be modified, changed, extended or revoked, and may be conferred in whole or in part on other officers and employees by the Board of Directors or the Executive Committee.
Section 14. Bonds: The Board of Directors may require any officer, agent or employee of M&T Bank to give a bond to M&T Bank, conditional upon the faithful performance of his or her duties, with one (1) or more sureties and in such amount as may be satisfactory to the Board of Directors.
ARTICLE V
Indemnification of Directors and Officers
Section 1. Right of Indemnification: Each director and officer of M&T Bank, whether or not then in office, each director and officer of a subsidiary that M&T Bank directly or indirectly owns more than 50% of the voting securities of, whether or not then in office, and any person whose testator or intestate was such a director or officer, shall be indemnified by M&T Bank for the defense of, or in connection with, any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by the Banking Law of the State of New York or other applicable law, as such law now exists or may hereafter be amended; provided, however, that M&T Bank shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by such a director or officer only if such action or proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advancement of Expenses: Expenses incurred by a director or officer in connection with any action or proceeding as to which indemnification may be given under Section 1 of this Article V may be paid by M&T Bank in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such director or officer to repay such advancement in the event that such director or officer is ultimately found not to be entitled to indemnification as authorized by this Article V and (b) approval by the Board of Directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the Board of Directors or, if applicable, the stockholders, shall not be required under this Section 2, to find that the director or officer has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
Section 3. Availability and Interpretation: To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in this Article V (a) shall be available with respect to events occurring prior to the adoption of this Article V, (b) shall continue to exist after any recision or restrictive amendment of this Article V with respect to events occurring prior to such recision or amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if M&T Bank and the director or officer for whom such rights are sought were parties to a separate written agreement.
Section 4. Other Rights: The rights of indemnification and to the advancement of expenses provided in this Article V shall not be deemed exclusive of any other rights to which any such director, officer or other person may now or hereafter be otherwise entitled whether contained in the organization certificate, these Bylaws, a resolution of stockholders, a resolution of the Board of Directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in this Article V shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such director, officer or other person in any such action or proceeding to have assessed or allowed in his or her favor, against M&T Bank or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
Section 5. Severability: If this Article V or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Article V shall remain fully enforceable.
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ARTICLE VI
Capital Stock
Section 1. Certificates of Stock: The shares of stock of M&T Bank shall be represented by certificates which shall be numbered and shall be entered in the books of M&T Bank as they are issued. Each stock certificate shall when issued state the name of the person or persons to whom issued and the number of shares and shall be signed by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President and by the Corporate Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, and shall be sealed with the seal of M&T Bank or a facsimile thereof. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by M&T Bank with the same effect as if he were such officer at the date of its issue. No certificate of stock shall be valid until countersigned by a transfer agent if M&T Bank has a transfer agent, or until registered by a registrar, if M&T Bank has a registrar.
Section 2. Transfers of Shares: Shares of stock shall be transferable on the books of M&T Bank by the holder thereof, in person or by duly authorized attorney, upon the surrender of the certificate representing the shares to be transferred, properly endorsed. M&T Bank shall be entitled to treat the holder of record of any share or shares of stock as the owner thereof and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, save as specifically provided by the laws of the State of New York. The Board of Directors, to the extent permitted by law, shall have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates of stock and may appoint one (1) or more transfer agents and registrars of the stock of M&T Bank.
Section 3. Fixing of Record Date: The Board of Directors may fix, in advance, a day and hour not more than fifty (50) days nor less than ten (10) days before the date on which any meeting of stockholders is to be held, as the time as of which stockholders entitled to notice of and to vote at such meeting and at all adjournments thereof shall be determined; and, in the event such record date and time is fixed by the Board of Directors, no one other than the holders of record on such date and time of stock entitled to notice of or to vote at such meeting shall be entitled to notice of or to vote at such meeting or any adjournment thereof. If a record date and time shall not be fixed by the Board of Directors for the determination of stockholders entitled to notice of and to vote at any meeting of stockholders, stockholders of record at the close of business on the day next preceding the day on which notice of such meeting is given, and no others, shall be entitled to notice of and to vote at such meeting or any adjournment thereof. The Board of Directors may fix, in advance, a day and hour, not exceeding fifty (50) days preceding the date fixed for the payment of a dividend of any kind or the allotment of any rights, as the record time for the determination of the stockholders entitled to receive any such dividend or rights, and in such case only stockholders of record at the time so fixed shall be entitled to receive such dividend or rights.
Section 4. Record of Stockholders: M&T Bank shall keep at its office in the State of New York, or at the office of its transfer agent or registrar in this state, a record containing the names and addresses of all stockholders, the number and class of shares held by each and the dates when they respectively became the owner of record thereof.
Section 5. Lost Stock Certificates: The holder of any certificate representing shares of stock of M&T Bank shall immediately notify M&T Bank of any mutilation, loss or destruction thereof, and the Board of Directors may in its discretion cause one (1) or more new certificates for the same number of shares in the aggregate to be issued to such holder upon the surrender of the mutilated certificate, or, in case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction and the deposit of indemnity by way of bond or otherwise in such form and amount and with such sureties or security as the Board of Directors may require to protect M&T Bank against loss or liability by reason of the issuance of such new certificates; but the Board of Directors may in its discretion refuse to issue such new certificates save upon the order of the court having jurisdiction in such matters.
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ARTICLE VII
Corporate Seal
Section 1. Form of Seal: The seal of M&T Bank shall be circular in form, with the words “Manufacturers and Traders Trust Company” in the margin thereof, and the numerals “1856” and the word “seal” and the numerals “1892” in the center thereof. The seal on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Emergency Operations
Section 1. New York State Emergency Defense Act: Whenever the provisions of Article 7 of the New York State Defense Emergency Act (L. 1961, c. 654) become operative by reason of an “acute emergency,” as defined in said Act, the following provision shall also become operative:
(a) If the Chief Executive Officer of M&T Bank shall not be available, his or her powers and authority shall vest in and may be exercised by other officers of M&T Bank in the following order:
(i) The Chairman of the Board;
(ii) The President;
(iii) Any executive Vice Chairman in the order of seniority determined by length of service;
(iv) The Senior Executive Vice Presidents in the order of seniority determined by length of service;
(v) The Executive Vice Presidents in the order of seniority determined by length of service;
(vi) The Senior Vice Presidents in the order of seniority determined by length of service;
(vii) A Vice President selected from and by those Vice Presidents who shall be available.
(b) The directors and acting directors present at any meeting held as provided by statute may by resolution alter the foregoing order of succession or designate the person from among the foregoing group who shall act as Chief Executive Officer; provided, however, that the directors and acting directors shall have no power to remove any officer or to fill any vacancy on a permanent basis or to cause M&T Bank to enter into any contract of employment for a term of over one (1) year.
(c) The directors and acting directors shall take such action as counsel may advise in order that the normal operations of M&T Bank shall be restored as promptly as practicable.
ARTICLE IX
Amendments
Section 1. Procedure for Amending Bylaws: These Bylaws may be added to, amended or repealed at any meeting of stockholders notice of which shall have referred to the proposed action, by the vote of the holders of record of a majority of the outstanding shares of M&T Bank entitled to vote, or at any meeting of the Board of Directors notice of which shall have referred to the proposed action, by the vote of a majority of the Board of Directors; provided, however, that if any bylaw regulating an impending election of directors is adopted or amended or repealed by the Board of Directors, there shall be set forth in the notice of the next meeting of stockholders for the election of directors the bylaw so adopted or amended or repealed, together with a concise statement of the changes made.
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EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Manufacturers and Traders Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
Dated: November 7, 2025
| MANUFACTURERS AND TRADERS TRUST COMPANY | ||
| By: | /s/ Emilia Gazzuolo | |
| Name: | Emilia Gazzuolo | |
| Title: | Assistant Vice President | |
EXHIBIT 7
Report of Condition of the Trustee
M&T Bank Corporation and Subsidiaries
Consolidated Balance Sheet (unaudited)
| (Dollars in millions, except per share) | September 30, 2025 |
December 31, 2024 |
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| Assets |
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| Cash and due from banks |
$ | 1,950 | $ | 1,909 | ||||
| Interest-bearing deposits at banks |
16,751 | 18,873 | ||||||
| Trading account |
95 | 101 | ||||||
| Investment securities: |
||||||||
| Available for sale (cost: $23,000 at September 30, 2025; $19,054 at December 31, 2024) |
23,163 | 18,849 | ||||||
| Held to maturity (fair value: $11,924 at September 30, 2025; $12,955 at December 31, 2024) |
12,711 | 14,195 | ||||||
| Equity and other securities (cost: $989 at September 30, 2025; $1,007 at December 31, 2024) |
990 | 1,007 | ||||||
|
|
|
|
|
|||||
| Total investment securities |
36,864 | 34,051 | ||||||
|
|
|
|
|
|||||
| Loans (a) |
136,974 | 135,581 | ||||||
| Allowance for loan losses |
(2,161 | ) | (2,184 | ) | ||||
|
|
|
|
|
|||||
| Net loans |
134,813 | 133,397 | ||||||
|
|
|
|
|
|||||
| Premises and equipment |
1,621 | 1,705 | ||||||
| Goodwill |
8,465 | 8,465 | ||||||
| Core deposit and other intangible assets |
74 | 94 | ||||||
| Accrued interest and other assets |
10,644 | 9,510 | ||||||
|
|
|
|
|
|||||
| Total assets |
$ | 211,277 | $ | 208,105 | ||||
|
|
|
|
|
|||||
| Liabilities |
||||||||
| Noninterest-bearing deposits |
$ | 44,994 | $ | 46,020 | ||||
| Savings and interest-checking deposits |
104,812 | 100,599 | ||||||
| Time deposits |
13,620 | 14,476 | ||||||
|
|
|
|
|
|||||
| Total deposits |
163,426 | 161,095 | ||||||
|
|
|
|
|
|||||
| Short-term borrowings |
2,059 | 1,060 | ||||||
| Long-term borrowings (a) |
12,928 | 12,605 | ||||||
| Accrued interest and other liabilities |
4,136 | 4,318 | ||||||
|
|
|
|
|
|||||
| Total liabilities |
182,549 | 179,078 | ||||||
|
|
|
|
|
|||||
| Shareholders’ equity |
||||||||
| Preferred stock |
2,394 | 2,394 | ||||||
| Common stock, $0.50 par, 250,000,000 shares authorized, 179,436,779 shares issued at September 30, 2025 and December 31, 2024 |
90 | 90 | ||||||
| Common stock issuable, 7,846 shares at September 30, 2025; 11,642 shares at December 31, 2024 |
1 | 1 | ||||||
| Additional paid-in capital |
9,995 | 9,998 | ||||||
| Retained earnings |
20,392 | 19,079 | ||||||
| Accumulated other comprehensive income (loss), net |
277 | (164 | ) | |||||
| Treasury stock — common, at cost — 24,926,404 shares at September 30, 2025; 13,922,820 shares at December 31, 2024 |
(4,421 | ) | (2,371 | ) | ||||
|
|
|
|
|
|||||
| Total shareholders’ equity |
28,728 | 29,027 | ||||||
|
|
|
|
|
|||||
| Total liabilities and shareholders’ equity |
$ | 211,277 | $ | 208,105 | ||||
|
|
|
|
|
|||||
| (a) | Loans of $2.3 billion and $1.5 billion at September 30, 2025 and December 31, 2024, respectively, were held in special purpose trusts to settle the respective obligations of asset-backed notes issued by those trusts. The outstanding balances of those asset-backed notes issued to third party investors were included in Long-term borrowings and were $1.9 billion at September 30, 2025 and $1.2 billion at December 31, 2024. |
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