AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CONSTELLATION BRANDS, INC.,
RMD ACQUISITION CORP.,
A WHOLLY-OWNED DIRECT SUBSIDIARY OF CONSTELLATION BRANDS,
INC.,
AND
THE ROBERT MONDAVI CORPORATION
November 3, 2004
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TABLE OF CONTENTS
PAGE
ARTICLE I THE
MERGER......................................................2
1.1 The
Merger.........................................................2
1.2 Closing; Effective
Time............................................2
1.3 Effects of the
Merger..............................................2
1.4 Articles of Incorporation and
Bylaws...............................2
1.5 Directors and Officers of the Surviving
Corporation................2
1.6 Mondavi Shareholders'
Meeting......................................3
1.7 Additional
Actions.................................................3
ARTICLE II CONVERSION OF
SECURITIES........................................4
2.1 Effect on Capital
Stock............................................4
2.2 Surrender and
Payment..............................................6
2.3 Treatment of Stock Options; Employee Stock Purchase
Plan...........8
2.4 Adjustments to Prevent
Dilution....................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF CONSTELLATION
AND MERGER
SUB..................................................9
3.1 Organization and
Standing..........................................9
3.2 Corporate Power and
Authority......................................9
3.3 Conflicts; Consents and
Approval..................................10
3.4 Information
Supplied..............................................11
3.5 Available
Funds...................................................11
3.6 Merger
Sub........................................................11
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
MONDAVI......................11
4.1 Organization and
Standing.........................................11
4.2
Subsidiaries......................................................12
4.3 Corporate Power and
Authority.....................................12
4.4 Capitalization of
Mondavi.........................................12
4.5 Conflicts; Consents and
Approvals.................................13
4.6 Brokerage and Finders' Fees;
Expenses.............................14
4.7 Mondavi SEC
Documents.............................................14
4.8 Undisclosed
Liabilities...........................................16
4.9 Information
Supplied..............................................16
4.10 Absence of Certain Changes or
Events..............................16
4.11
Taxes.............................................................16
4.12 Intellectual
Property.............................................17
4.13 Employee Benefit
Plans............................................18
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4.14 Environmental
Matters.............................................19
4.15 Compliance with Applicable Laws; Regulatory
Matters...............20
4.16
Litigation........................................................20
4.17 Real
Property.....................................................20
4.18 Inventory and
Equipment...........................................20
4.19 Opinions of Financial
Advisor.....................................21
4.20 Board Recommendation; Required
Vote...............................21
4.21 State Takeover
Statutes...........................................21
ARTICLE V COVENANTS OF THE
PARTIES.......................................22
5.1 Mutual
Covenants..................................................22
(a) Reasonable Best
Efforts..................................22
(b) HSR
Act..................................................22
(c) Public
Announcements.....................................23
(d)
Taxes....................................................23
(e) Notice of Certain
Events.................................24
5.2 Covenants of
Constellation........................................24
(a) Indemnification; Directors' and Officers'
Insurance......24
(b) Employees and Employee
Benefits..........................25
5.3 Covenants of
Mondavi..............................................25
(a) Conduct of Mondavi's
Operations..........................25
(b) Acquisition
Proposals....................................28
(c) Third Party Standstill
Agreements........................30
(d)
Access...................................................31
(e) Subsequent Financial
Statements..........................31
ARTICLE VI CONDITIONS TO THE
MERGER.......................................31
6.1 Conditions to the Obligations of Each
Party.......................31
6.2 Conditions to Obligations of Constellation and Merger
Sub.........32
6.3 Conditions to Obligation of
Mondavi...............................32
ARTICLE VII TERMINATION; FEES AND
EXPENSES.................................33
7.1 Termination by Mutual
Consent.....................................33
7.2 Termination by Either Constellation or
Mondavi....................33
7.3 Termination by
Mondavi............................................33
7.4 Termination by
Constellation......................................34
7.5 Effect of Termination and
Abandonment.............................34
7.6 Fees and
Expenses.................................................34
ARTICLE VIII
MISCELLANEOUS..................................................36
8.1 Non-Survival of Representations and Warranties; No
Other
Representations and
Warranties....................................36
8.2
Notices...........................................................36
8.3
Interpretation....................................................37
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8.4
Counterparts......................................................37
8.5 Entire
Agreement..................................................37
8.6 Third-Party
Beneficiaries.........................................38
8.7 Governing
Law.....................................................38
8.8 Consent to Jurisdiction;
Venue....................................38
8.9 Specific
Performance..............................................38
8.10
Assignment........................................................38
8.11
Amendment.........................................................39
8.12 Extension;
Waiver.................................................39
8.13
Severability......................................................39
Exhibit A: Agreement of Merger
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INDEX OF DEFINED TERMS
DEFINED TERM
SECTION
------------
-------
Acquiror........................................................
5.3(b)(viii)(B)
Acquisition Proposal............................................
5.3(b)(viii)(A)
Action..........................................................
4.14
Agreement.......................................................
Preamble
Applicable Laws.................................................
2.2(d)
Appraisal Shares................................................
2.1(d)
Approvals.......................................................
5.1(a)
Board...........................................................
Recitals
California Secretary of State...................................
1.2
CGCL............................................................
1.1
Certificates....................................................
2.1(b)(ii)
Class A Certificate.............................................
2.1(b)(i)
Class B Certificate.............................................
2.1(b)(ii)
Class A Merger Consideration....................................
2.1(b)(i)
Class B Merger Consideration....................................
2.1(b)(ii)
Closing.........................................................
1.2
Closing Date....................................................
1.2
Code............................................................
2.2(g)
Commission......................................................
1.6(b)
Confidentiality Agreement.......................................
5.3(d)
Constellation...................................................
Preamble
Covered Proposal................................................
7.6(a)(i)
Effective Time..................................................
1.2
Environmental Laws..............................................
4.14
Environmental Permit............................................
4.14
ERISA...........................................................
4.13(a)
ERISA Affiliate.................................................
4.13(a)
ESPP............................................................
2.3(c)
Exchange Act....................................................
4.7(a)
Exchange Fund...................................................
2.2(a)
Foreign Antitrust Laws..........................................
3.3(d)
GAAP............................................................
4.7(a)
Governmental Authority..........................................
3.3(d)
Hazardous Materials.............................................
4.14
HSR Act.........................................................
3.3(d)
Intellectual Property Right.....................................
4.12(a)(i)
Material Adverse Effect.........................................
8.3
Merger..........................................................
Recitals
Merger Agreement................................................
1.2
Merger Consideration............................................
2.1(b)(ii)
Merger Sub......................................................
Preamble
Mondavi.........................................................
Preamble
Mondavi 10-K....................................................
4.2
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DEFINED TERM
SECTION
-------------
-------
Mondavi Articles................................................
1.6(a)
Mondavi Benefit Plans...........................................
4.13(a)
Mondavi Board Recommendation....................................
4.20
Mondavi Bylaws..................................................
1.6(a)
Mondavi Class A Common Stock...................................
Recitals
Mondavi Class B Common Stock...................................
Recitals
Mondavi Common Stock............................................
Recitals
Mondavi Disclosure Schedule.....................................
4.4(c)
Mondavi Employees...............................................
5.2(b)(ii)x
Mondavi Intellectual Property Right.............................
4.12(a)(ii)
Mondavi Option..................................................
2.3(a)
Mondavi Permits.................................................
4.15
Mondavi SEC Documents...........................................
4.7(a)
Mondavi Shareholders............................................
1.6(a)
Mondavi Shareholders' Meeting...................................
1.6(a)
Mondavi Stock Unit Award........................................
2.3(b)
Non-Transferred Employees.......................................
5.2(b)(ii)
Paying Agent....................................................
2.2(a)
Permitted Liens.................................................
4.17
Person..........................................................
5.3(b)(i)
Proxy Statement.................................................
1.6(b)
Related Party...................................................
5.3(a)(13)
Representatives.................................................
5.3(b)(i)
Section 1300....................................................
2.1(b)(i)
Securities Act..................................................
4.4(c)
Stock Plan Termination Date.....................................
2.3(c)
subsidiary......................................................
8.3
Superior Proposal...............................................
5.3(b)(viii)(B)
Superior Proposal Notice........................................
5.3(b)(iii)
Support Agreement...............................................
Recitals
Surviving Corporation...........................................
1.1
Surviving Corporation Common Stock..............................
2.1(a)
Tax Returns.....................................................
4.11(b)
Taxes...........................................................
4.11(c)
Termination Date................................................
7.2
Termination Fee.................................................
7.6(a)
Waiting Period..................................................
5.3(b)(iii)
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<PAGE>
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "AGREEMENT") is
made and
entered into as of the 3rd day of November, 2004, by and among
Constellation
Brands, Inc., a Delaware corporation ("CONSTELLATION"), RMD
Acquisition Corp., a
California corporation and a wholly-owned subsidiary of
Constellation ("MERGER
SUB"), and The Robert Mondavi Corporation, a California corporation
("MONDAVI").
RECITALS
WHEREAS, Constellation and Mondavi desire that
Constellation combine
its businesses with the businesses operated by Mondavi through the
merger of
Merger Sub with and into Mondavi, with Mondavi as the surviving
corporation (the
"MERGER"), pursuant to which (1) each share of Class A Common Stock
of Mondavi,
without par value (the "MONDAVI CLASS A COMMON Stock") issued and
outstanding at
the Effective Time (as defined in Section 1.2), other than the
shares of Mondavi
Class A Common Stock owned by Constellation, Merger Sub or Mondavi
(or any of
their respective direct or indirect wholly-owned subsidiaries (as
defined in
Section 8.3)) and other than the Appraisal Shares (as defined in
Section
2.1(d)), will be converted into the right to receive the Class A
Merger
Consideration (as defined in Section 2.1(b)), and (2) each share of
Class B
Common Stock of Mondavi, without par value (the "MONDAVI CLASS B
COMMON STOCK,"
and together with the Mondavi Class A Common Stock, the "MONDAVI
COMMON STOCK")
issued and outstanding at the Effective Time (as defined in Section
1.2), other
than the shares of Mondavi Class B Common Stock owned by
Constellation, Merger
Sub or Mondavi (or any of their respective direct or indirect
wholly-owned
subsidiaries (as defined in Section 8.3)) and other than the
Appraisal Shares
(as defined in Section 2.1(d)), will be converted into the right to
receive the
Class B Merger Consideration (as defined in Section 2.1(b)), all as
more fully
provided in this Agreement; and
WHEREAS, concurrently with the execution of this
Agreement, as a
condition and inducement to Constellation's willingness to enter
into this
Agreement, Constellation and certain Mondavi Shareholders (as
defined in Section
1.6(a)) are entering into a Support Agreement, of even date
herewith, in respect
of shares of Mondavi Common Stock beneficially owned by such
shareholders (the
"SUPPORT AGREEMENT"); and
WHEREAS, the Board of each of Merger Sub and Mondavi has
determined that the Merger upon the terms and subject to the
conditions set
forth in this Agreement is just and reasonable to their respective
shareholders; and
WHEREAS, Constellation, Merger Sub and Mondavi desire to
make
those representations, warranties, covenants and agreements
specified herein
in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of
the
representations, warranties, covenants and agreements contained
herein,
Constellation, Merger Sub and Mondavi agree as follows:
<PAGE>
ARTICLE I
THE MERGER
1.1. THE MERGER. Upon the terms and subject to the
conditions of this
Agreement, and in accordance with the provisions of the California
General
Corporation Law (the "CGCL"), Merger Sub shall be merged with and
into Mondavi
at the Effective Time. As a result of the Merger, the separate
corporate
existence of Merger Sub shall cease and Mondavi shall continue its
existence as
a wholly-owned subsidiary of Constellation under the laws of the
State of
California and shall succeed to and assume all the rights and
obligations of
Merger Sub in accordance with the CGCL. Mondavi, in its capacity as
the
corporation surviving the Merger, is hereinafter sometimes referred
to as the
"SURVIVING CORPORATION."
1.2. CLOSING; EFFECTIVE TIME. A closing (the "CLOSING")
shall be held
at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd
Street, New York,
N.Y. 10019, or such other place as the parties hereto may agree, as
soon as
practicable following the date upon which all conditions set forth
in Article VI
that are capable of being satisfied prior to the date of the
Closing have been
satisfied or waived, or at such other date as Constellation and
Mondavi may
agree (such date, the "CLOSING DATE"). As promptly as possible on
the Closing
Date, the parties hereto shall cause the Merger to be consummated
by filing with
the Secretary of State of the State of California (the "CALIFORNIA
SECRETARY OF
STATE") an agreement of merger in the form attached hereto as
Exhibit A (the
"MERGER AGREEMENT") and officer's certificates in such form as is
required by
and executed in accordance with Section 1103 of the CGCL. The
Merger shall
become effective when the Merger Agreement is properly filed with
the California
Secretary of State in accordance with the CGCL or at such later
time as may be
specified in the Merger Agreement (the "EFFECTIVE TIME").
1.3. EFFECTS OF THE MERGER. From and after the Effective
Time, the
Merger shall have the effects set forth in Section 1107 of the
CGCL.
1.4. ARTICLES OF INCORPORATION AND BYLAWS.
(a) The Articles of Incorporation of Mondavi, as amended
as set forth
in the Merger Agreement, shall be the Articles of Incorporation of
the Surviving
Corporation, until amended in accordance with their terms and the
CGCL.
(b) Merger Sub's Bylaws in effect immediately prior to
the Effective
Time shall be the Surviving Corporation's Bylaws, until amended in
accordance
with their terms, the Articles of Incorporation and the CGCL.
1.5. DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.
From and
after the Effective Time, the officers of Mondavi shall be the
officers of the
Surviving Corporation and the directors of Merger Sub shall be the
directors of
the Surviving Corporation, in each case, until their respective
successors are
duly elected and qualified.
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<PAGE>
1.6. MONDAVI SHAREHOLDERS' MEETING.
(a) As promptly as reasonably practicable following the
date of this
Agreement, Mondavi shall, in accordance with Applicable Laws (as
defined in
Section 2.2(d)) and Mondavi's Restated Articles of Incorporation as
in effect on
the date of this Agreement (the "MONDAVI ARTICLES") and Mondavi's
Restated
Bylaws as in effect on the date of this Agreement (the "MONDAVI
BYLAWS"), duly
call, give notice of, convene and hold a meeting of the holders of
shares of
Mondavi Common Stock (the "MONDAVI SHAREHOLDERS") to consider and
vote upon
approval of this Agreement and the Merger (the "MONDAVI
SHAREHOLDERS' MEETING").
Mondavi shall ensure that the Mondavi Shareholders' Meeting is
called, noticed,
convened, held and conducted, and that all proxies solicited by
Mondavi in
connection with the Mondavi Shareholders' Meeting are solicited by
Mondavi in
compliance with Applicable Laws.
(b) Mondavi shall promptly prepare and file with the
Securities and
Exchange Commission (the "COMMISSION") a proxy statement (together
with any
amendments thereof or supplements thereto, the "PROXY STATEMENT")
that meets the
requirements of Applicable Laws to seek the approval of this
Agreement and the
Merger. Mondavi shall respond promptly to any comments made by the
Commission
with respect to the Proxy Statement and any preliminary version
thereof filed by
it and shall cause such Proxy Statement to be mailed to the Mondavi
Shareholders
as promptly as reasonably practicable. Mondavi shall promptly
notify
Constellation of the receipt of any comments of the Commission with
respect to
the Proxy Statement and shall provide to Constellation copies of
any comments
received from the Commission in connection with the Proxy
Statement. All filings
with the Commission in connection with the Merger, including the
Proxy
Statement, and all mailings to the Mondavi Shareholders in
connection with the
Merger, including the Proxy Statement, shall be subject to the
prior review and
comment by Constellation and its counsel, and shall be reasonably
acceptable to
Constellation.
(c) The Mondavi Board shall make the Mondavi Board
Recommendation (as
defined in Section 4.20). The Mondavi Board Recommendation shall be
included in
the Proxy Statement and the Mondavi Board shall take all
commercially reasonable
action to solicit the approval of this Agreement and the Merger by
the Mondavi
Shareholders. In the event that subsequent to the date of this
Agreement, the
Mondavi Board determines after consultation with outside counsel
that its
fiduciary duties under Applicable Law require it to withdraw,
modify or qualify
the Mondavi Board Recommendation in a manner adverse to
Constellation, the
Mondavi Board may so withdraw, modify or qualify the Mondavi Board
Recommendation; PROVIDED, HOWEVER, that the Mondavi Board may not
recommend any
Acquisition Proposal (as defined in Section 5.3(b)(viii)(A)) (other
than this
Agreement and the transactions contemplated hereby, including the
Merger),
except as specifically contemplated by, and in accordance with,
Section
5.3(b)(iii); PROVIDED, FURTHER, HOWEVER, that unless this Agreement
is
theretofore terminated, Mondavi shall nevertheless submit this
Agreement to the
Mondavi Shareholders for adoption at the Mondavi Shareholders'
Meeting.
1.7. ADDITIONAL ACTIONS. If, at any time after the
Effective Time, the
Surviving Corporation shall consider or be advised that any further
deeds,
assignments or assurances in law or any other acts are necessary or
desirable to
(a) vest, perfect or confirm, of record or otherwise, in the
Surviving
Corporation its right, title or interest in, to or under any of the
rights,
properties
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<PAGE>
or assets of Mondavi or (b) otherwise carry out the provisions of
this
Agreement, Mondavi and its officers and directors shall be deemed
to have
granted to the Surviving Corporation an irrevocable power of
attorney to execute
and deliver all such deeds, assignments or assurances in law and to
take all
acts necessary, proper or desirable to vest, perfect or confirm
title to and
possession of such rights, properties or assets in the Surviving
Corporation and
otherwise to carry out the provisions of this Agreement, and the
officers and
directors of the Surviving Corporation are authorized in the name
of Mondavi or
otherwise to take any and all such action.
ARTICLE II
CONVERSION OF SECURITIES
2.1. EFFECT ON CAPITAL STOCK. At the Effective Time, by
virtue of the
Merger and without any action on the part of Constellation, Merger
Sub or
Mondavi or their respective shareholders:
(a) Each share of common stock, without par value, of
Merger Sub
issued and outstanding immediately prior to the Effective Time
shall be
converted into one fully paid and nonassessable share of common
stock, WITHOUT
par value, of the Surviving Corporation ("SURVIVING CORPORATION
COMMON STOCK").
Such newly issued shares shall thereafter constitute all of the
issued and
outstanding Surviving Corporation capital stock, except insofar as
Section
2.1(c)(i) applies.
(b) Subject to the other provisions of this Article II:
(i) Each share of Mondavi Class A Common Stock issued
and
outstanding immediately prior to the Effective Time, excluding any
shares of
Mondavi Class A Common Stock owned by Constellation, Merger Sub or
Mondavi or
any of their respective wholly-owned subsidiaries (which shares
shall be treated
as otherwise provided in this Agreement) and any shares of Mondavi
Class A
Common Stock owned by shareholders properly exercising appraisal
rights pursuant
to Section 1300 of the CGCL ("SECTION 1300"), as provided in
Section 2.1(d),
shall be converted into and represent the right to receive $56.50
in cash,
without interest (the "CLASS A MERGER CONSIDERATION"). At the
Effective Time,
all shares of Mondavi Class A Common Stock shall no longer be
outstanding and
automatically shall be cancelled and shall cease to exist, and each
holder of a
certificate that immediately prior to the Effective Time
represented any shares
of Mondavi Class A Common Stock (a "CLASS A CERTIFICATE") shall
cease to have
any rights with respect thereto, except the right to receive the
Class A Merger
Consideration or in the case of holders of Appraisal Shares (as
defined in
Section 2.1(d)) the right to receive the applicable payments set
forth in
Section 2.1(d).
(ii) Each share of Mondavi Class B Common Stock
issued and
outstanding immediately prior to the Effective Time, excluding any
shares of
Mondavi Class B Common Stock owned by Constellation, Merger Sub or
Mondavi or
any of their respective wholly-owned subsidiaries (which shares
shall be treated
as otherwise provided in this Agreement) and any shares of Mondavi
Class B
Common Stock owned by shareholders properly exercising appraisal
rights pursuant
to Section 1300, as provided in Section 2.1(d), shall be converted
into and
represent the right to receive $65.82 in cash, without interest
(the "CLASS B
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<PAGE>
MERGER CONSIDERATION," and together with the Class A Merger
Consideration, the
"MERGER CONSIDERATION"). At the Effective Time, all shares of
Mondavi Class B
Common Stock shall no longer be outstanding and automatically shall
be cancelled
and shall cease to exist, and each holder of a certificate that
immediately
prior to the Effective Time represented any shares of Mondavi Class
B Common
Stock (a "CLASS B CERTIFICATE," and, together with the Class A
Certificates, the
"CERTIFICATES") shall cease to have any rights with respect
thereto, except the
right to receive the Class B Merger Consideration or in the case of
holders of
Appraisal Shares (as defined in Section 2.1(d)) the right to
receive the
applicable payments set forth in Section 2.1(d).
(c) Each share of Mondavi capital stock held by
Constellation or any
wholly-owned subsidiary of Constellation, automatically shall be
cancelled and
retired and no payment shall be made in respect thereof. Each share
of Mondavi
Class B Common Stock held by any wholly-owned subsidiary of Mondavi
shall, at
Constellation's election, either (i) be converted into such number
of shares of
Surviving Corporation Common Stock such that each such wholly-owned
subsidiary
owns the same percentage (in terms of economic value) of Surviving
Corporation
Common Stock immediately following the Effective Time as the
percentage (in
terms of economic value) of Mondavi Common Stock that such
wholly-owned
subsidiary owned immediately prior to the Effective Time; PROVIDED,
HOWEVER,
that this clause (i) shall not apply unless the Mondavi Class B
Shareholders
unanimously consent to such treatment of the shares of Mondavi
Class B Common
Stock held by all wholly-owned subsidiaries of Mondavi, (ii)
automatically be
cancelled and retired and no payment shall be made in respect
thereof, or (iii)
be converted into the right to receive the Class B Merger
Consideration.
(d) Notwithstanding anything in this Agreement to the
contrary, the
shares of Mondavi Common Stock issued and outstanding immediately
prior to the
Effective Time that are held by any Mondavi Shareholder that is
entitled to
demand and properly demands appraisal of shares of Mondavi Common
Stock pursuant
to, and that complies in all respects with, the provisions of
Section 1300 (the
"APPRAISAL SHARES") shall not be converted into the right to
receive the Class A
Merger Consideration or the Class B Merger Consideration, as
applicable, as
provided in Section 2.1(b), but, instead, such Mondavi Shareholder
shall be
entitled to such rights (but only such rights) as are granted by
Section 1300.
Notwithstanding the foregoing, if any such Mondavi Shareholder
shall fail to
validly perfect or shall otherwise waive, withdraw or lose the
right to
appraisal under Section 1300 or if a court of competent
jurisdiction shall
determine that such Mondavi Shareholder is not entitled to the
relief provided
by Section 1300, then the rights of such Mondavi Shareholder under
Section 1300
shall cease, and such Appraisal Shares shall be deemed to have been
converted at
the Effective Time into, and shall have become, the right to
receive the Class A
Merger Consideration or the Class B Merger Consideration, as
applicable, as
provided in Section 2.1(b) without interest. Mondavi shall give
prompt notice to
Constellation of any demands for appraisal of any shares of Mondavi
Common
Stock, and Constellation shall have the opportunity to participate
in all
negotiations and proceedings with respect to such demands. Prior to
the
Effective Time, Mondavi shall not, without the prior written
consent of
Constellation, make any payment with respect to, or settle or offer
to settle,
any such demands, or agree to do any of the foregoing.
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<PAGE>
2.2. SURRENDER AND PAYMENT.
(a) Prior to the Effective Time, for the benefit of the
Mondavi
Shareholders, Constellation shall designate, or shall cause to be
designated
(pursuant to an agreement in form and substance reasonably
acceptable to
Constellation), a bank or trust company to act as agent for the
payment of the
Class A Merger Consideration and the Class B Merger Consideration
in respect of
the Class A Certificates and the Class B Certificates upon
surrender of such
Certificates in accordance with this Article II from time to time
after the
Effective Time (the "PAYING AGENT"). At the Effective Time,
Constellation shall
deposit, or cause Merger Sub to deposit, with the Paying Agent cash
in an amount
sufficient for the payment of the Class A Merger Consideration and
the Class B
Merger Consideration pursuant to Section 2.1(b) upon surrender of
such
Certificates (such cash, the "EXCHANGE FUND"). The Paying Agent
shall invest any
cash included in the Exchange Fund, as directed by Constellation,
on a daily
basis. Any portion of the Exchange Fund (including any interest and
other income
resulting from investments of the Exchange Fund) that remains
undistributed to
the Mondavi Shareholders twelve months after the date of the
mailing required by
Section 2.2(b) shall be delivered to Constellation, upon demand by
Constellation, and holders of Certificates that have not
theretofore complied
with this Section 2.2 shall thereafter look only to Constellation
for payment of
any claim to the Class A Merger Consideration or the Class B Merger
Consideration, as applicable.
(b) EXCHANGE PROCEDURE. As soon as reasonably practicable
after the
Effective Time (but in any event within five business days after
the Effective
Time), the Paying Agent shall mail to each holder of record of a
Certificate (i)
a form of letter of transmittal (which shall specify that delivery
shall be
effected, and risk of loss and title to the Certificates held by
such Mondavi
Shareholder shall pass, only upon proper delivery of the
Certificates to the
Paying Agent and shall be in such form and have such other
customary provisions
as Constellation may reasonably specify), and (ii) instructions for
use in
effecting the surrender of the Certificates in exchange for the
Class A Merger
Consideration or the Class B Merger Consideration, as applicable.
Upon surrender
of a Certificate for cancellation to the Paying Agent or to such
other agent or
agents as may be appointed by Constellation, together with such
letter of
transmittal, duly completed and validly executed, and such other
documents as
may reasonably be required by the Paying Agent, the holder of such
Certificate
shall be entitled to receive in exchange therefor the amount of
cash into which
the shares of Mondavi Common Stock formerly represented by the
Certificate shall
have been converted pursuant to Section 2.1(b), and the Certificate
so
surrendered shall be cancelled. In the event of a transfer of
ownership of
Mondavi Common Stock that is not registered in the stock transfer
books of
Mondavi, the proper amount of cash may be paid in exchange therefor
to a person
other than the person in whose name the Certificate so surrendered
is registered
if the Certificate shall be properly endorsed or otherwise be in
proper form for
transfer and the person requesting such payment shall pay any
transfer or other
Taxes (as defined in Section 4.11(c)) required by reason of the
payment to a
person other than the registered holder of the Certificate or
establish to the
satisfaction of Constellation that the Tax has been paid or is not
applicable.
No interest shall be paid or shall accrue on the cash payable upon
surrender of
any Certificate.
(c) STOCK TRANSFER BOOKS. At the close of business on the
day on which
the Effective Time occurs, the stock transfer books of Mondavi
shall be closed,
and there shall be no
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<PAGE>
further registration of transfers on the stock transfer books of
the Surviving
Corporation of the shares of Mondavi Common Stock that were
outstanding
immediately prior to the Effective Time. If, after the Effective
Time,
Certificates are presented to the Surviving Corporation or the
Paying Agent for
transfer or any other reason, they shall be cancelled and exchanged
as provided
in this Article II.
(d) NO LIABILITY. None of Constellation, Merger Sub,
Mondavi or the
Paying Agent shall be liable to any person in respect of any cash
delivered to a
public official pursuant to any applicable abandoned property,
escheat or
similar law. All funds held by the Paying Agent for payment to the
holders of
unsurrendered Certificates and unclaimed twelve months after the
Effective Time
shall be returned to Constellation, after which time any holder of
unsurrendered
Certificates shall look as a general creditor only to Constellation
for payment
of the funds to which the holder of unsurrendered Certificates may
be due,
subject to Applicable Laws. If any Certificates shall not have been
surrendered
prior to seven years after the Effective Time, any such cash,
dividends or
distributions in respect of such Certificate shall, to the extent
permitted by
all applicable laws, statutes, orders, rules, regulations, policies
or
guidelines promulgated, or judgments, decisions or orders entered
by any
Governmental Authority (as defined in Section 3.3(d)), in each
case, to the
extent applicable (collectively, "APPLICABLE LAWS"), become the
property of
Constellation, free and clear of all claims or interest of any
person previously
entitled thereto.
(e) LOST CERTIFICATES. If any Certificate shall have been
lost, stolen
or destroyed, upon the making of an affidavit of that fact by the
person
claiming a Certificate to be lost, stolen or destroyed and, if
required by
Constellation or the Surviving Corporation, the posting by such
person of a bond
in such reasonable amount as Constellation or the Surviving
Corporation may
reasonably direct as indemnity against any claim that may be made
against it
with respect to the Certificate, the Paying Agent shall pay in
respect of the
lost, stolen or destroyed Certificate the Class A Merger
Consideration or the
Class B Merger Consideration, as applicable.
(f) NO FURTHER OWNERSHIP RIGHTS IN MONDAVI COMMON STOCK.
The Class A
Merger Consideration or the Class B Merger Consideration, as
applicable, paid in
accordance with the terms of this Article II in respect of
Certificates that
have been surrendered in accordance with the terms of this
Agreement shall be
deemed to have been paid in full satisfaction of all rights
pertaining to the
shares of Mondavi Common Stock represented thereby.
(g) WITHHOLDING RIGHTS. Each of the Surviving Corporation
and
Constellation shall be entitled to deduct and withhold, or cause
the Paying
Agent to deduct and withhold, from the consideration otherwise
payable pursuant
to this Agreement to any Mondavi Shareholders such amounts as it
may be required
to deduct and withhold with respect to the making of such payment
under the
Internal Revenue Code of 1986, as amended (the "CODE"), or any
provision of
state, local or foreign Tax law. To the extent that amounts are so
withheld by
the Surviving Corporation or Constellation, as the case may be, the
withheld
amounts shall be treated for all purposes of this Agreement as
having been paid
to the Mondavi Shareholders in respect of which the deduction and
withholding
was made by the Surviving Corporation or Constellation, as the case
may be.
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<PAGE>
2.3. TREATMENT OF STOCK OPTIONS; EMPLOYEE STOCK PURCHASE
PLAN.
(a) At the Effective Time, each option to purchase a
share of Mondavi
Class A Common Stock (a "MONDAVI OPTION") granted under the Mondavi
1993
Non-Employee Director Stock Option Plan and the Mondavi 1993 Equity
Incentive
Plan that is outstanding immediately prior to the Effective Time
shall be
cancelled immediately prior to the Effective Time and converted
into the right
to receive (whether or not such Mondavi Option is then vested or
exercisable),
promptly after the Effective Time, an amount in cash (less any
applicable
withholding taxes and without interest) equal to the product of (i)
the excess,
if any, of (A) the Class A Merger Consideration over (B) the per
share exercise
price of Mondavi Class A Common Stock subject to such Mondavi
Option and (ii)
the number of shares of Mondavi Class A Common Stock subject to
such Mondavi
Option immediately prior to the Effective Time. In connection
therewith, at
least five business days prior to the Effective Time, Mondavi shall
provide
written notice to each holder of a then outstanding Mondavi Option
(whether or
not such Mondavi Option is then vested or exercisable), that (x)
such Mondavi
Option shall be, as at the date of such notice, exercisable in
full, (y) such
Mondavi Option shall terminate at the Effective Time and (z) if
such Mondavi
Option is not exercised on or before the third business day prior
to the
Effective Time, such Mondavi Option (to the extent outstanding as
of the
Effective Time) shall be treated as set forth in the immediately
preceding
sentence.
(b) Effective as of the Effective Time, all stock units
in respect of
Mondavi Class A Common Stock or other equity-based awards settled
in or the
value of which is measured by reference to Mondavi Class A Common
Stock (other
than the Mondavi Options) (each a "MONDAVI STOCK UNIT AWARD") shall
be converted
into an obligation to pay cash, with a value equal to the product
of (i) the
Class A Merger Consideration and (ii) the number of shares of
Mondavi Class A
Common Stock subject to such Mondavi Stock Unit Award (whether
vested or
unvested). The obligations in respect of the converted Mondavi
Stock Unit Awards
shall be payable in accordance with the terms of the agreement,
plan or
arrangement relating to such Mondavi Stock Unit Awards.
(c) Prior to the Effective Time, Mondavi shall take any
and all
actions with respect to Mondavi's Employee Stock Purchase Plan (the
"ESPP") as
are necessary to provide that (i) with respect to the Purchase
Period (as
defined in the ESPP) in effect as of the date of this Agreement, no
employee who
is not a participant in the ESPP as of the date hereof may become
after the date
hereof a participant in the ESPP and no participant in the ESPP may
increase the
percentage amount of his or her payroll deduction election from
that in effect
on the date hereof for such Purchase Period; (ii) subject to
consummation of the
Merger, the ESPP shall terminate, effective immediately before the
Effective
Time; and (iii) if the Purchase Period (as defined in the ESPP) in
effect as of
the date of this Agreement terminates prior to the Stock Plan
Termination Date
(as defined in the following sentence), the ESPP shall be suspended
and no new
Purchase Period will be commenced under the ESPP prior to the
termination of
this Agreement. Subject to consummation of the Merger, if such
Purchase Period
is expected to still be in effect at the Effective Time, then no
later than the
last day of the payroll period immediately preceding the Effective
Time (the
"STOCK PLAN TERMINATION DATE"), each purchase right under the ESPP
as of the
Stock Plan Termination Date shall be automatically exercised by
applying the
payroll deductions of each participant in the ESPP for such
Purchase Period to
the purchase of a number of whole shares of Mondavi Class A Common
Stock
(subject to the
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<PAGE>
provisions of Mondavi's ESPP regarding the number of shares
purchasable) at a
"purchase price" (as such term is used in the ESPP) per share equal
to 85% of
the Fair Market Value (as defined in the ESPP) of a share of
Mondavi Class A
Common Stock on the Offering Date (as defined in the ESPP) or on
the Stock Plan
Termination Date, whichever is lower.
(d) Prior to the Effective Time, Mondavi shall ensure
that following
the Effective Time no holder of a Mondavi Option or any participant
in any Plan
or other employee benefit arrangement of Mondavi shall have any
right thereunder
to acquire or receive any capital stock (including payment of cash
in settlement
of any unit award, "phantom" stock or stock appreciation rights) of
Mondavi or
the Surviving Corporation, except as expressly provided in Section
2.3(b) of
this Agreement. Prior to the Effective Time, Mondavi shall deliver
to the
holders of Mondavi Options, holders of Mondavi Stock Unit Awards
and
participants in the ESPP appropriate notices, in form and substance
reasonably
acceptable to Constellation, setting forth such holders' rights
pursuant to this
Agreement. Prior to the Effective Time, Mondavi shall take any and
all actions
necessary to effectuate the provisions of Section 2.3, including
the adoption of
any plan amendments.
2.4. ADJUSTMENTS TO PREVENT DILUTION. In the event that
Mondavi
changes the number of shares of Mondavi Common Stock, or securities
convertible
or exchangeable into or exercisable for shares of Mondavi Common
Stock, issued
and outstanding prior to the Effective Time as a result of a
reclassification,
stock split (including a reverse stock split), stock dividend or
distribution,
recapitalization, merger, subdivision, issuer tender or exchange
offer, or other
similar transaction, the Class A Merger Consideration and the Class
B Merger
Consideration shall be equitably adjusted to reflect such change.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CONSTELLATION AND MERGER
SUB
In order to induce Mondavi to enter into this
Agreement,
Constellation and Merger Sub represent and warrant to Mondavi that
the
statements contained in this Article III are true and correct.
3.1. ORGANIZATION AND STANDING.
(a) Constellation is a corporation duly incorporated,
validly existing
and in good standing under the laws of the state of Delaware with
full corporate
power and authority to own, lease, use and operate its properties
and to conduct
its business as and where now owned, leased, used, operated and
conducted.
(b) Merger Sub is a corporation duly incorporated,
validly existing
and in good standing under the laws of the state of California with
full
corporate power and authority to own, lease, use and operate its
properties and
to conduct its business as and where now owned, leased, used,
operated and
conducted.
3.2. CORPORATE POWER AND AUTHORITY. Each of Constellation
and Merger
Sub has all requisite corporate power and authority to enter into
and deliver
this Agreement, to perform its obligations under the Agreement, and
to
consummate the transactions contemplated
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<PAGE>
by this Agreement. The execution, performance and delivery of this
Agreement and
the consummation of the transactions contemplated by this Agreement
by
Constellation and Merger Sub have been duly authorized by all
necessary
corporate action on the part of each of Constellation and Merger
Sub. No other
corporate proceedings on the part of Constellation or Merger Sub
are necessary
to authorize or approve this Agreement or to consummate the
transactions
contemplated hereby. This Agreement has been duly and validly
executed and
delivered by each of Constellation and Merger Sub, and, assuming
the due
authorization, execution and delivery by Mondavi, constitutes the
legal, valid
and binding obligation of each of Merger Sub and Constellation
enforceable
against each of them in accordance with its terms, except that such
enforceability (a) may be limited by bankruptcy, insolvency,
moratorium or other
similar laws affecting or relating to the enforcement of creditors'
rights
generally and (b) is subject to general principles of equity.
3.3. CONFLICTS; CONSENTS AND APPROVAL. Neither the
execution and
delivery of this Agreement by Constellation or Merger Sub nor the
consummation
of the transactions contemplated by this Agreement will:
(a) conflict with, or result in a breach of any provision
of
Constellation's Restated Certificate of Incorporation, or
Constellation's
Bylaws, or Merger Sub's Articles of Incorporation or Merger
Sub's Bylaws;
(b) violate, or conflict with, or result in a breach of
any provision
of, or constitute a default (or an event that, with the giving
of notice,
the passage of time or otherwise, would constitute a default)
under, or
entitle any individual or entity (with the giving of notice,
the passage of
time or otherwise) to terminate, accelerate, modify or call a
default
under, or result in the creation of any lien, security
interest, charge or
encumbrance upon any of the properties or assets of
Constellation or any of
its subsidiaries under, any of the terms, conditions or
provisions of any
note, bond, mortgage, indenture, deed of trust, license,
contract,
undertaking, agreement, lease or other instrument or
obligation to which
Constellation or any of its subsidiaries is a party;
(c) violate any order, writ, injunction, decree, statute,
rule or
regulation applicable to Constellation or any of its
subsidiaries or their
respective properties or assets; or
(d) require any action or consent or approval of, or
review by, or
registration or filing by Constellation or any of its
subsidiaries with,
any third party or any local, domestic, foreign or
multinational court,
arbitral tribunal, administrative agency or commission or
other
governmental or regulatory body, agency, instrumentality or
authority (each
of the foregoing, a "GOVERNMENTAL AUTHORITY"), other than (i)
actions
required by the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as
amended (together with the rules and regulations thereunder,
the "HSR ACT")
and applicable laws, rules and regulations in foreign
jurisdictions
governing antitrust or merger control matters ("FOREIGN
ANTITRUST LAWS"),
(ii) compliance with any United States federal and state
securities laws
and any other applicable takeover laws and (iii) the filing
with the
California Secretary of State of the Merger Agreement;
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<PAGE>
except in the case of clauses (b), (c) and (d) above for any of the
foregoing
that would not, individually or in the aggregate, have or
reasonably be expected
to have a Material Adverse Effect (as defined in Section 8.3) on
Constellation.
3.4. INFORMATION SUPPLIED. None of the information
supplied or to be
supplied by Constellation or Merger Sub specifically for inclusion
or
incorporation by reference in the Proxy Statement will, at the date
the Proxy
Statement is mailed to the Mondavi Shareholders or at the time of
the Mondavi
Shareholders' Meeting, contain any untrue statement of a material
fact or omit
to state any material fact required to be stated therein or
necessary, in order
to make the statements therein in light of the circumstances under
which they
are made, not misleading.
3.5. AVAILABLE FUNDS. Constellation and Merger Sub have
available to
them, or, as of the Effective Time will have available to them, all
funds
necessary for the payment of the Merger Consideration and all of
their
obligations under this Agreement which are required to be complied
with prior to
the Closing.
3.6. MERGER SUB. All of the issued and outstanding
capital stock of
Merger Sub is, and at the Effective Time will be, owned by
Constellation or a
direct or indirect wholly-owned Subsidiary of Constellation. Merger
Sub has not
conducted any business prior to the date hereof and has no, and
prior to the
Effective Time will have no, assets, liabilities or obligations of
any nature
other than those incident to its formation and pursuant to this
Agreement and
the Merger and the other transactions contemplated by this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MONDAVI
In order to induce Merger Sub and Constellation to enter
into this
Agreement, except as set forth in the Mondavi Disclosure Schedule
as set forth
below, Mondavi hereby represents and warrants to Constellation and
Merger Sub
that the statements contained in this Article IV are true and
correct. The
section numbers in the Mondavi Disclosure Schedule correspond to
the section
numbers in this Agreement. Information disclosed in one section of
the Mondavi
Disclosure Schedule shall not be deemed to be integrated into
another section of
the Mondavi Disclosure Schedule unless its applicability is readily
apparent.
4.1. ORGANIZATION AND STANDING. Mondavi is a corporation
duly
incorporated, validly existing and in good standing under the laws
of the State
of California with full corporate power and authority to own,
lease, use and
operate its properties and to conduct its business as and where now
owned,
leased, used, operated and conducted. Each of Mondavi's
subsidiaries has been
duly incorporated or organized as the case may be, and is validly
existing, and
in good standing under the laws of its jurisdiction of
incorporation or
organization, as the case may be, with full corporate power (if
applicable) and
authority to own, lease, use and operate its properties and to
conduct its
business as and where now owned, leased, used, operated and
conducted. Each of
Mondavi and its subsidiaries is duly qualified to do business and
is in good
standing in each jurisdiction in which the nature of the business
conducted by
it or the property it owns, leases or operates requires it to so
qualify, except
where the failure to be so qualified or in good standing in such
jurisdiction
would not, individually or in the aggregate, have or reasonably
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<PAGE>
be expected to have a Material Adverse Effect on Mondavi. Mondavi
is not in
default in the performance, observance or fulfillment of any
provision of the
Mondavi Articles or the Mondavi Bylaws. Mondavi has heretofore made
available to
Constellation complete and correct copies of the Mondavi Articles
and the
Mondavi Bylaws and the certificates of incorporation and bylaws or
similar
organizational documents for each of Mondavi's subsidiaries.
4.2. SUBSIDIARIES. Mondavi does not own, directly or
indirectly, any
equity or other material ownership interest in any material
corporation,
partnership, joint venture or other entity or enterprise, except
for the
subsidiaries set forth on Schedule 4.2 of the Mondavi Disclosure
Schedule.
Except as set forth on Schedule 4.2 of the Mondavi Disclosure
Schedule, Mondavi
is not subject to any obligation or requirement to provide funds to
or make any
investment (in the form of a loan, capital contribution or
otherwise) in any
such entity or any other person. Except as set forth on Schedule
4.2 of the
Mondavi Disclosure Schedule, Mondavi owns, directly or indirectly,
each of the
outstanding shares of capital stock (or other ownership interests
having by
their terms ordinary voting power to elect a majority of directors
or others
performing similar functions with respect to such subsidiary) of
each of its
material subsidiaries. Each of the outstanding shares of capital
stock of each
of Mondavi's subsidiaries is duly authorized, validly issued, fully
paid and
nonassessable, and is owned, directly or indirectly, by Mondavi
free and clear
of all liens, pledges, security interests, claims or other
encumbrances, other
than as indicated on Schedule 4.2 of the Mondavi Disclosure
Schedule. There are
no outstanding subscriptions, options, warrants, puts, calls,
agreements,
understandings, claims or other commitments or rights of any type
relating to
the issuance, sale or transfer of any securities of any of
Mondavi's
subsidiaries, nor are there outstanding any securities that are
convertible into
or exchangeable for any shares of capital stock or other voting
securities or
ownership interests of any of Mondavi's subsidiaries, other than as
indicated on
Schedule 4.2 of the Mondavi Disclosure Schedule.
4.3. CORPORATE POWER AND AUTHORITY. Mondavi has all
requisite
corporate power and authority to enter into and deliver this
Agreement, to
perform its obligations under this Agreement, and, subject to
approval of this
Agreement and the transactions contemplated by this Agreement by
the Mondavi
Shareholders, to consummate the transactions contemplated by this
Agreement. The
execution, performance and delivery of this Agreement by Mondavi
have been duly
authorized by all necessary corporate action on the part of
Mondavi, subject to
adoption of this Agreement and the transactions contemplated by
this Agreement
by the Mondavi Shareholders and no other corporate proceedings on
the part of
Mondavi are necessary to authorize or approve this Agreement or to
consummate
the transactions contemplated hereby. This Agreement has been duly
and validly
executed and delivered by Mondavi, and, assuming the due
authorization,
execution and delivery by Constellation and Merger Sub, constitutes
the legal,
valid and binding obligation of Mondavi enforceable against it in
accordance
with its terms, except that such enforceability (a) may be limited
by
bankruptcy, insolvency, moratorium or other similar laws affecting
or relating
to the enforcement of creditors' rights generally and (b) is
subject to general
principals of equity.
4.4. CAPITALIZATION OF MONDAVI.
(a) As of the date hereof, Mondavi's authorized capital
stock
consisted solely of (i) 25,000,000 shares of Mondavi Class A Common
Stock, of
which (A) 10,816,581 shares are
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<PAGE>
issued and outstanding, (B) 1,492,302 shares are reserved for
issuance upon the
exercise of all outstanding Mondavi Options, (C) 75,689 shares are
reserved for
issuance upon settlement of Mondavi Stock Unit Awards or other
stock based
awards, and (D) 5,984,927 shares are reserved for issuance upon the
conversion
of shares of Mondavi Class B Common Stock; (ii) 12,000,000 shares
of Mondavi
Class B Common Stock, of which 5,984,927 shares are issued and
outstanding,
including 214,209 shares of Class B Common Stock owned by Robert
Mondavi
Properties, Inc., a wholly-owned subsidiary of Mondavi; and (iii)
5,000,000
shares of preferred stock, without par value, of which no shares
are issued and
outstanding or reserved for future issuance under any agreement,
arrangement or
understanding. As of the date hereof, there are outstanding Mondavi
Options to
purchase an aggregate of 1,492,302 shares of Mondavi Class A Common
Stock and
Mondavi Stock Unit Awards with respect to 75,689 shares of Mondavi
Class A
Common Stock.
(b) Other than as set forth in Section 4.4(a) of this
Agreement, there
are no outstanding (i) shares of Mondavi capital stock or Mondavi
voting
securities, (ii) subscriptions, options, warrants, puts, calls,
agreements,
understandings, claims or other commitments or rights of any type
relating to
the issuance, sale, repurchase or transfer of any securities of
Mondavi, or
(iii) securities or other instruments that are convertible into or
exchangeable
for any shares of Mondavi capital stock or Mondavi voting
securities or the
value of which are determined based on the value of Mondavi capital
stock, and
neither Mondavi nor any of its subsidiaries has any obligation of
any kind to
issue any additional securities or to pay for, repurchase, redeem
or otherwise
acquire any securities of Mondavi or any of its subsidiaries or any
of their
respective predecessors.
(c) None of Mondavi's subsidiaries owns any capital stock
of Mondavi,
except that Robert Mondavi Properties, Inc. owns 214,209 shares of
Mondavi Class
B Common Stock. Each outstanding share of Mondavi capital stock is,
and each
share of Mondavi capital stock that may be issued will be, when
issued, duly
authorized and validly issued, fully paid and nonassessable, and
not subject to
any preemptive or similar rights. Section 4.4 to the disclosure
schedule
delivered by Mondavi to Constellation and dated the date of this
Agreement (the
"MONDAVI DISCLOSURE SCHEDULE") states the number of shares of
Mondavi Class A
Common Stock issuable to each holder of Mondavi Options as of the
date of this
Agreement, including the applicable exercise price and whether the
Mondavi
Option is intended to qualify as an "incentive stock option"
(within the meaning
of Section 422 of the Code). Section 4.4 to the Mondavi Disclosure
Schedule
accurately sets forth the names of all holders of Mondavi capital
stock subject
to transfer restrictions, including the number of shares of each
class of
Mondavi capital stock held by that holder. Neither Mondavi nor any
of its
subsidiaries has agreed to register any securities under the
Securities Act of
1933, as amended (together with the rules and regulations
thereunder, the
"SECURITIES ACT") or under any state securities law or granted
registration
rights to any individual or entity.
4.5. CONFLICTS; CONSENTS AND APPROVALS. Neither the
execution and
delivery of this Agreement nor the consummation of the transactions
contemplated
by this Agreement will:
(a) conflict with, or result in a breach of any provision
of, the
Mondavi Articles or the Mondavi Bylaws;
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<PAGE>
(b) violate, or conflict with, or result in a breach of
any provision
of, or constitute a default (or an event that, with the giving
of notice,
the passage of time or otherwise, would constitute a default)
under, or
entitle any person (with the giving of notice, the passage of
time or
otherwise) to terminate, accelerate, modify or call a default
under, or
result in the creation of any lien, security interest, charge
or
encumbrance upon any of the properties or assets of Mondavi or
any of its
subsidiaries under, any of the terms, conditions or provisions
of any note,
bond, mortgage, indenture, deed of trust, license, contract,
undertaking,
agreement, lease or other instrument or obligation to which
Mondavi or any
of its subsidiaries is a party;
(c) violate any order, writ, injunction, decree, statute,
rule or
regulation applicable to Mondavi or any of its subsidiaries or
any of their
respective properties or assets; or
(d) require any action or consent or approval of, or
review by, or
registration or filing by Mondavi or any of its affiliates
with, any third
party or any Governmental Authority, other than (i) approval
of this
Agreement and the transactions contemplated by this Agreement
by Mondavi
Shareholders, (ii) actions required by the HSR Act and Foreign
Antitrust
Laws, (iii) registrations or other actions required under
United States
federal and state securities laws, and (iv) the filing with
the California
Secretary of State of the Merger Agreement;
other than, in the case of Sections 4.5(b), 4.5(c) and 4.5(d),
those exceptions
that would not, individually or in the aggregate, have or
reasonably be
