UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
CONSTELLATION BRANDS, INC.
| (Name of Issuer) |
Class A Common Stock, par value $.01 per share
Class B Common Stock, par value $.01 per share
| (Title of Class of Securities) |
Class A 21036P 10 8
Class B 21036P 20 7
| (CUSIP Numbers) |
Roger W. Byrd, Esq.
Nixon Peabody LLP
1100 Clinton Square
Rochester, New York 14604
(585) 263-1687
| (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) |
April 20, 2009
| (Date of Event which Requires Filing of this Statement) |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
Richard Sands |
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| 2 | Check the Appropriate Box if a Member of a Group* (A) x (B) ¨ |
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| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
OO |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
United States |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 4,090,740 Class B Shares 7,258,232 | |
| 8 Shared Voting Power
Class A Shares 153,234 Class B Shares 2,164,800 | ||
| 9 Sole Dispositive Power
Class A Shares 3,951,115 Class B Shares 1,958,232 | ||
| 10 Shared Dispositive Power
Class A Shares 2,072,654 Class B Shares 8,160,144 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 6,163,394 (21,581,770 if Class B Shares were converted) Class B Shares 15,418,376 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 3.1% (10.1% if Class B Shares were converted) Class B Shares 64.9% |
|||
| 14 | Type of Reporting Person
IN |
Page 2 of 20 Pages
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
Robert Sands |
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| 2 | Check the Appropriate Box if a Member of a Group* (A) x (B) ¨ |
|||
| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
OO |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
United States |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 4,124,730 Class B Shares 7,252,592 | |
| 8 Shared Voting Power
Class A Shares 153,234 Class B Shares 2,164,800 | ||
| 9 Sole Dispositive Power
Class A Shares 3,989,180 Class B Shares 1,952,592 | ||
| 10 Shared Dispositive Power
Class A Shares 2,072,654 Class B Shares 8,160,144 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 6,197,384 (21,610,120 if Class B Shares were converted) Class B Shares 15,412,736 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 3.1% (10.1% if Class B Shares were converted) Class B Shares 64.9% |
|||
| 14 | Type of Reporting Person
IN |
Page 3 of 20 Pages
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
Abigail Bennett |
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| 2 | Check the Appropriate Box if a Member of a Group* (A) ¨ (B) ¨ |
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| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
Not Applicable |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
New York |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 3,550 Class B Shares 0 | |
| 8 Shared Voting Power
Class A Shares 1,919,420 Class B Shares 5,995,344 | ||
| 9 Sole Dispositive Power
Class A Shares 3,550 Class B Shares 10,600,000 | ||
| 10 Shared Dispositive Power
Class A Shares 0 Class B Shares 0 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 1,922,970 (18,518,314 if Class B Shares were converted) Class B Shares 16,595,344 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 1.0% (8.7% if Class B Shares were converted) Class B Shares 69.9% |
|||
| 14 | Type of Reporting Person
IN |
Page 4 of 20 Pages
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
Zachary Stern |
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| 2 | Check the Appropriate Box if a Member of a Group* (A) ¨ (B) ¨ |
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| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
Not Applicable |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
New York |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 0 Class B Shares 0 | |
| 8 Shared Voting Power
Class A Shares 1,919,420 Class B Shares 5,995,344 | ||
| 9 Sole Dispositive Power
Class A Shares 0 Class B Shares 0 | ||
| 10 Shared Dispositive Power
Class A Shares 0 Class B Shares 0 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 1,919,420 (7,914,764 if Class B Shares were converted) Class B Shares 5,995,344 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 1.0% (3.9% if Class B Shares were converted) Class B Shares 25.3% |
|||
| 14 | Type of Reporting Person
IN |
Page 5 of 20 Pages
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
CWC Partnership-I |
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| 2 | Check the Appropriate Box if a Member of a Group* (A) x (B) ¨ |
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| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
OO |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
New York |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 0 Class B Shares 0 | |
| 8 Shared Voting Power
Class A Shares 768 Class B Shares 667,368 | ||
| 9 Sole Dispositive Power
Class A Shares 0 Class B Shares 0 | ||
| 10 Shared Dispositive Power
Class A Shares 472,376 Class B Shares 6,099,080 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 472,376 (6,571,456 if Class B Shares were converted) Class B Shares 6,099,080 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 0.2% (3.2% if Class B Shares were converted) Class B Shares 25.7% |
|||
| 14 | Type of Reporting Person
PN |
Page 6 of 20 Pages
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
Trust for the benefit of Andrew Stern, M.D. under Article “FIFTH (D)” of the Will of Laurie Sands |
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| 2 | Check the Appropriate Box if a Member of a Group* (A) ¨ (B) ¨ |
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| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
OO |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
New York |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 0 Class B Shares 0 | |
| 8 Shared Voting Power
Class A Shares 768 Class B Shares 667,368 | ||
| 9 Sole Dispositive Power
Class A Shares 0 Class B Shares 0 | ||
| 10 Shared Dispositive Power
Class A Shares 1,920,188 Class B Shares 6,662,712 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 1,920,188 (8,582,900 if Class B Shares were converted) Class B Shares 6,662,712 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 1.0% (4.2% if Class B Shares were converted) Class B Shares 28.1% |
|||
| 14 | Type of Reporting Person
OO |
Page 7 of 20 Pages
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
The Stockholders Group described in Item 2 |
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| 2 | Check the Appropriate Box if a Member of a Group* (A) x (B) ¨ |
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| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
Not Applicable |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
Not Applicable |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 0 Class B Shares 0 | |
| 8 Shared Voting Power
Class A Shares 8,368,704 Class B Shares 16,675,624 | ||
| 9 Sole Dispositive Power
Class A Shares 0 Class B Shares 0 | ||
| 10 Shared Dispositive Power
Class A Shares 10,012,949 Class B Shares 12,070,968 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 10,288,124 (32,959,092 if Class B Shares were converted) Class B Shares 22,670,968 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 5.1% (14.8% if Class B Shares were converted) Class B Shares 95.5% |
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| 14 | Type of Reporting Person
OO |
Page 8 of 20 Pages
| CUSIP NO. | Class A 21036P 10 8 | |
| Class B 21036P 20 7 |
| 1 | Names of Reporting Persons
CWC Partnership-II |
|||
| 2 | Check the Appropriate Box if a Member of a Group* (A) x (B) ¨ |
|||
| 3 | SEC Use Only
|
|||
| 4 | Source of Funds
Not Applicable |
|||
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
|
¨ | ||
| 6 | Citizenship or Place of Organization
New York |
| Number of Shares Beneficially Owned by Each Reporting Person with |
7 Sole Voting Power
Class A Shares 0 Class B Shares 0 | |
| 8 Shared Voting Power
Class A Shares 0 Class B Shares 0 | ||
| 9 Sole Dispositive Power
Class A Shares 0 Class B Shares 0 | ||
| 10 Shared Dispositive Power
Class A Shares 1,447,812 Class B Shares 563,632 |
| 11 | Aggregate Amount Beneficially Owned by Reporting Person
Class A Shares 1,447,812 (2,011,444 if Class B Shares were converted) Class B Shares 563,632 |
|||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|
¨ | ||
| 13 | Percent of Class Represented by Amount in Row (11)
Class A Shares 0.7% (1.0% if Class B Shares were converted) Class B Shares 2.4% |
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| 14 | Type of Reporting Person
PN |
Page 9 of 20 Pages
| Item 1. | Security and Issuer. |
The classes of equity securities to which this Amendment No. 4 to Schedule 13D (this “Amendment”) relates are the Class A Common Stock, par value $0.01 per share (the “Class A Stock”), and the Class B Common Stock, par value $0.01 per share (the “Class B Stock”), of Constellation Brands, Inc., a Delaware corporation with its principal offices at 207 High Point Drive, Building 100, Victor, New York 14564 (the “Company”).
| Item 2. | Identity and Background. |
This Amendment is being filed by Richard Sands, Robert Sands, Abigail Bennett, Zachary Stern, CWC Partnership-I, a New York general partnership (“CWCP-I”), a trust for the benefit of Andrew Stern M.D. under the Will of Laurie Sands (the “Marital Trust”) and a stockholders group pursuant to Section 13(d)(3) of the Securities Exchange Act of 1934 (collectively, the “Reporting Persons”). The stockholders group (the “Group”) is comprised of Richard Sands, Robert Sands, CWCP-I, and CWC Partnership-II, a New York general partnership (“CWCP-II”).
This Amendment amends the amended and restated Schedule 13D filed in October, 2001 by Richard Sands, Robert Sands, Marilyn Sands, CWCP-I, the Marital Trust, a trust created under Irrevocable Trust Agreement dated November 18, 1987 (the “Grandchildren’s Trust”), and the Group (the “Schedule 13D”), as the Schedule 13D was amended by (i) the Schedule 13D Amendment No. 2 filed on August 3, 2006 by Richard Sands, Robert Sands, the Grandchildren’s Trust, Laurie Sands’ Children’s Trust, Richard Sands’ Children’s Trust, Robert Sands’ Children’s Trust and Richard Sands’ Heirs’ Trust, and (ii) the Schedule 13D Amendment No. 3 filed on February 17, 2009 by Richard Sands, Robert Sands, CWCP-I, the Marital Trust, Abigail Bennett, RES Business Holdings LP, a Delaware limited partnership (“RES Holdings”), RES Business Management LLC, a Delaware limited liability company (“RES Management”), RSS Business Holdings LP, a Delaware limited partnership (“RSS Holdings”), RSS Business Management LLC, a Delaware limited partnership (“RSS Management”), and the Group (the “Third Amendment”). Laurie Sands’ Children’s Trust, Robert Sands’ Children’s Trust, Richard Sands’ Heirs’ Trust, RES Holdings, RES Management, RSS Holdings and RSS Management are not reporting as part of this Amendment because no changes have occurred with respect to their holdings, and Marilyn Sands, the Grandchildren’s Trust and Richard Sands’ Children’s Trust are not reporting as part of this Amendment because they are no longer subject to reporting obligations because they do not beneficially own more than five percent of any class of the Company’s equity securities.
Certain information with respect to the Reporting Persons and Group Members is set forth below:
| 1. | Richard Sands | |||||
| a. | Principal Occupation: | Chairman of the Board of the Company | ||||
| b. | Citizenship: | United States | ||||
Page 10 of 20 Pages
| 2. | Robert Sands | |||||
| a. | Principal Occupation: | President and Chief Executive Officer of the Company | ||||
| b. | Citizenship: | United States | ||||
| 3. | Abigail Bennett | |||||
| a. | Principal Occupation: | Director, Corporate Development at the Company | ||||
| b. | Citizenship: | United States | ||||
| 4. | Zachary Stern | |||||
| a. | Principal Occupation: | Real Estate Development | ||||
| b. | Citizenship: | United States | ||||
| 5. | CWC Partnership-I | |||||
| a. | State of Organization: | New York (a general partnership) | ||||
| b. | Principal Business: | Investing | ||||
| 6. | Trust for the benefit of Andrew Stern M.D. under the Will of Laurie Sands | |||||
| a. | State of Organization: | New York | ||||
| b. | Principal Business: | Administration of Trust Assets | ||||
| 7. | The Group | |||||
| a. | State of Organization: | Not Applicable | ||||
| b. | Principal Business: | Investing | ||||
| 8. | CWC Partnership-II | |||||
| a. | State of Organization: | New York (a general partnership) | ||||
| b. | Principal Business: | Investing | ||||
The principal office address or business address of each of the Reporting Persons and Group Members is 207 High Point Drive, Building 100, Victor, New York 14564. None of the Reporting Persons or Group Members has, during the last five years, been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which he, she or it is or was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
| Item 3. | Source and Amount of Funds or Other Consideration |
Current Transactions. On April 21, 2009, Richard Sands entered into Purchase Agreements pursuant to which he sold (i) his 100% membership interest in RES Management to the Jennifer Sands Family Trust u/a dated April 2, 2009 (the “RES LLC Interest”), and (ii) his 99.99% limited partnership interest in RES Holdings to the Jennifer Sands Descendants’ Trust u/a dated April 6, 2009 (the “RES LP Interest”). The purchase price for the RES LLC Interest was the fair market value of the RES LLC Interest as of April 20, 2009 as determined by an
Page 11 of 20 Pages
independent appraiser. The purchase price for the RES LP Interest was the fair market value of the RES LP Interest as of April 21, 2009 as determined by an independent appraiser, plus an interest component. As a result of these transactions, Richard Sands no longer owns any interest in RES Management or RES Holdings; however, even though he is no longer a member of RES Management, Richard Sands continues to have the right to direct the manner in which RES Management causes RES Holdings to vote shares of Class B Stock held by RES Holdings and the right, subject to limitations, to remove and replace the sole manager of RES Management.
Also on April 21, 2009, Robert Sands entered into Purchase Agreements pursuant to which he sold (i) his 100% membership interest in RSS Management to the Nancy Sands Family Trust u/a dated April 9, 2009 (the “RSS LLC Interest”), and (ii) his 99.99% limited partnership interest in RSS Holdings to the Nancy Sands Descendants’ Trust u/a dated April 9, 2009 (the “RSS LP Interest”). The purchase price for the RSS LLC Interest was the fair market value of the RSS LLC Interest as of April 20, 2009 as determined by an independent appraiser. The purchase price for the RSS LP Interest was the fair market value of the RSS LP Interest as of April 21, 2009 as determined by an independent appraiser, plus an interest component. As a result of these transactions, Robert Sands no longer owns any interest in RSS Management or RSS Holdings; however, even though he is no longer a member of RSS Management, Robert Sands continues to have the right to direct the manner in which RSS Management causes RSS Holdings to vote shares of Class B Stock held by RSS Holdings and the right, subject to limitations, to remove and replace the sole manager of RSS Management.
Intervening Transactions. Between the date of the Third Amendment and the transactions described above, the transactions described below occurred and affected the beneficial ownership of certain of the Reporting Persons or Group Members (collectively, the “Covered Persons”):
| • | Richard Sands and Robert Sands acquired an aggregate of 122,400 shares of Class A Stock and 128,000 shares of Class A Stock, respectively, upon the exercise of options granted by the Company |
| • | The Company awarded Richard Sands and Robert Sands 95,900 shares of restricted Class A Stock and 93,100 shares of restricted Class A Stock, respectively |
The shares acquired upon the exercise of options were purchased with personal funds of the purchaser, on margin, with proceeds of borrowings, or a combination of the foregoing.
| Item 4. | Purpose of the Transaction |
The current transactions described in Item 3 were effected primarily for estate planning purposes. The purchases of shares in connection with option exercises were for investment purposes, and the restricted shares were received as compensation.
| Item 5. | Interest in Securities of the Issuer |
The table below sets forth the shares of Class A Stock and Class B Stock beneficially owned by each Reporting Person and Group Member. The percentages of ownership were
Page 12 of 20 Pages
calculated on the basis of 197,253,230 shares of Class A Stock and 23,743,494 shares of Class B Stock outstanding as of the close of business on April 20, 2009. Shares of Class B Stock are convertible into shares of Class A Stock on a one-to-one basis at any time at the option of the holder. The Company has granted options to purchase Shares of Class 1 Common Stock of the Company, par value $0.01 per share (“Class 1 Stock”). Shares of Class 1 Stock are convertible into shares of Class A Stock on a one-to-one basis at any time at the option of the holder. The description of the transactions set forth in Item 3 is incorporated into this Item 5 by reference.
| Amount and Nature of Beneficial Ownership | Percent of Class (1) |
||||||||||||||||
| Beneficial Owner |
Sole Power to Vote |
Shared Power to Vote |
Sole Power to Dispose |
Shared Power to Dispose |
Total | ||||||||||||
| Class A Stock: |
|||||||||||||||||
| Richard Sands |
4,090,740 | (2) | 153,234 | (2) | 3,951,115 | (2) | 2,072,654 | (2) | 6,163,394 | 3.1 | % | ||||||
| Robert Sands |
4,124,730 | (3) | 153,234 | (3) | 3,989,180 | (3) | 2,072,654 | (3) | 6,197,384 | 3.1 | % | ||||||
| Abigail Bennett |
3,550 | (4) | 1,919,420 | (4) | 3,550 | (4) | — | 1,922,970 | 1.0 | % | |||||||
| Zachary Stern |
— | 1,919,420 | (5) | — | — | 1,919,420 | 1.0 | % | |||||||||
| CWCP-I |
— | 768 | (6) | — | 472,376 | (6) | 472,376 | 0.2 | % | ||||||||
| The Marital Trust |
— | 768 | (7) | — | 1,920,188 | (7) | 1,920,188 | 1.0 | % | ||||||||
| The Group |
— | 8,368,704 | (8) | — | 10,012,949 | (8) | 10,288,124 | 5.1 | % | ||||||||
| CWCP-II |
— | — | (9) | — | 1,447,812 | (9) | 1,447,812 | 0.7 | % | ||||||||
| Class B Stock: |
|||||||||||||||||
| Richard Sands |
7,258,232 | (2) | 2,164,800 | (2) | 1,958,232 | (2) | 8,160,144 | (2) | 15,418,376 | 64.9 | % | ||||||
| Robert Sands |
7,252,592 | (3) | 2,164,800 | (3) | 1,952,592 | (3) | 8,160,144 | (3) | 15,412,736 | 64.9 | % | ||||||
| Abigail Bennett |
— | 5,995,344 | (4) | 10,600,000 | (4) | — | 16,595,344 | 69.9 | % | ||||||||
| Zachary Stern |
— | 5,995,344 | (5) | — | — | 5,995,344 | 25.3 | % | |||||||||
| CWCP-I |
— | 667,368 | (6) | — | 6,099,080 | (6) | 6,099,080 | 25.7 | % | ||||||||
| The Marital Trust |
— | 667,368 | (7) | — | 6,662,712 | (7) | 6,662,712 | 28.1 | % | ||||||||
| The Group |
— | 16,675,624 | (8) | — | 12,070,968 | (8) | 22,670,968 | 95.5 | % | ||||||||
| CWCP-II |
— | — | (9) | — | 563,632 | (9) | 563,632 | 2.4 | % | ||||||||
| (1) | The number of shares and the percentage of ownership set forth in the Class A Stock table includes the number of shares of Class A Stock that can be purchased by exercising stock options that are exercisable on April 30, 2009 or become exercisable within 60 days thereafter (“presently exercisable”). The numbers and percentages reported do not take into account shares of Class A Stock that can be received upon the conversion of shares of Class 1 Stock that can be purchased by exercising stock options that are presently exercisable (the “Class 1 Option Shares”). The Class 1 Option Shares are not taken into account because, in accordance with the Company’s certificate of incorporation, any shares of Class A Stock issued upon conversion of shares of Class 1 Stock must be sold immediately in connection with the conversion and, therefore, cannot be held by the beneficial owner of the Class 1 Shares. However, the numbers of shares and percentages of ownership taking into account the shares of Class A Stock that can be received upon the conversion of Class 1 Option Shares are provided in footnotes where appropriate. The number of shares |
Page 13 of 20 Pages
| and the percentage of ownership set forth in the Class A Stock table also do not take into account the shares of Class A Stock issuable pursuant to the conversion feature of the Class B Stock beneficially owned by each person. The number of shares and percentage of ownership assuming conversion of Class B Stock into Class A Stock are contained in the footnotes. For purposes of calculating the percentage of ownership of Class A Stock in the table and in the footnotes, additional shares of Class A Stock equal to the number of presently exercisable options and, as appropriate, the number of Class 1 Option Shares and shares of Class B Stock owned by each person are assumed to be outstanding pursuant to Rule 13d-3(d)(1) under the Securities Exchange Act. Where the footnotes reflect shares of Class A Stock as being included, such shares are included only in the Class A Stock table and where the footnotes reflect shares of Class B Stock as being included, such shares are included only in the Class B Stock table. See Item 6 of this Amendment for a description of the various relationships between the Reporting Persons and Group Members. |
| (2) | The amounts reflected as shares over which Richard Sands has the sole power to vote and dispose (i) include 1,518,498 shares of Class A Stock issuable upon the exercise of options which are presently exercisable by Mr. Sands, (ii) as noted in footnote (1), exclude 142,497 shares of Class A Stock that can be received upon conversion of Class 1 Option Shares, and (iii) include 1,350,000 shares of Class B Stock owned by the Richard Sands’ Heirs’ Trust. Mr. Sands disclaims beneficial ownership of the shares owned by the Richard Sands’ Heirs’ Trust. The amount reflected as shares over which Richard Sands has the sole power to vote also includes 5,300,000 shares of Class B Stock owned by RES Holdings. Mr. Sands disclaims beneficial ownership of such shares except to the extent of his interest as a beneficiary of the Jennifer Sands Family Trust and the Jennifer Sands Descendants’ Trust. The amount reflected as shares over which Richard Sands has the sole power to dispose excludes 139,625 shares of Class A Stock owned by Mr. Sands that are restricted shares that will not vest within 60 days after April 30, 2009. The amounts reflected as shares over which Mr. Sands shares the power to dispose include, as applicable, 471,608 shares of Class A Stock and 5,431,712 shares of Class B Stock owned by CWCP-I, and 1,447,812 shares of Class A Stock and 563,632 shares of Class B Stock owned by CWCP-II. Mr. Sands disclaims beneficial ownership of all of the foregoing shares except to the extent of his ownership interest in CWCP-I. The amounts reflected as shares over which Mr. Sands shares the power to vote and dispose include, as applicable, 768 shares of Class A Stock and 667,368 shares of Class B Stock owned by MLR&R, 152,466 shares of Class A Stock owned by the Sands Foundation, 147,432 shares of Class B Stock owned by the Master Trust, and 1,350,000 shares of Class B Stock owned by the Laurie Sands’ Children’s Trust. Mr. Sands disclaims beneficial ownership of all of the foregoing shares except to the extent of his ownership interest in MLR&R (directly and through CWCP-I) and his beneficial interest in the Master Trust. The amounts reflected do not include 29,120 shares of Class A Stock owned by Mr. Sands’ spouse, individually and as custodian for their children. Mr. Sands disclaims beneficial ownership with respect to all such shares. If the shares of Class A Stock that can be received upon the conversion of Mr. Sands’ Class 1 Option Shares were included in the shares of Class A Stock beneficially owned by Mr. Sands, Mr. Sands would beneficially own a total of (i) 6,305,891 shares of Class A Stock, representing 3.2% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by Mr. Sands were not converted, and (ii) 21,724,267 shares of Class A Stock, representing 10.1% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by Mr. Sands were converted. |
| (3) | The amounts reflected as shares over which Robert Sands has the sole power to vote and dispose (i) include 1,284,348 shares of Class A Stock issuable upon the exercise of options which are presently exercisable by Mr. Sands, (ii) as noted in footnote (1), exclude 122,797 shares of Class A Stock that can be received upon conversion of Class 1 Option Shares, (iii) include 1,350,000 shares of Class B Stock owned by the Robert Sands’ Children’s Trust, and (iv) include 154,728 shares of Class A Stock held by family limited liability companies of which Robert Sands is the general manager. Mr. Sands disclaims beneficial ownership of the shares owned by the Robert Sands’ Children’s Trust and such family limited liability companies. The amount reflected as shares over which Robert Sands has the sole power to vote also includes 5,300,000 shares of Class B Stock owned by RSS Holdings. Mr. Sands disclaims beneficial ownership of such shares except to the extent of his interest as a beneficiary of the Nancy Sands Family Trust and the Nancy Sands Descendants’ Trust. The amount reflected as shares over which Robert Sands has the sole power to dispose excludes 139,550 shares of Class A Stock owned by Mr. Sands that are restricted shares that will not vest within 60 days after April 30, 2009. The amounts reflected as shares over which Mr. Sands shares the power to dispose include, as applicable, 471,608 shares of Class A Stock and 5,431,712 shares of Class B |
Page 14 of 20 Pages
| Stock owned by CWCP-I, and 1,447,812 shares of Class A Stock and 563,632 shares of Class B Stock owned by CWCP-II. Mr. Sands disclaims beneficial ownership of all of the foregoing shares except to the extent of his ownership interest in CWCP-I. The amounts reflected as shares over which Mr. Sands shares the power to vote and dispose include, as applicable, 768 shares of Class A Stock and 667,368 shares of Class B Stock owned by MLR&R, 152,466 shares of Class A Stock owned by the Sands Foundation, 147,432 shares of Class B Stock owned by the Master Trust, and 1,350,000 shares of Class B Stock owned by the Laurie Sands’ Children’s Trust. Mr. Sands disclaims beneficial ownership of all of the foregoing shares except to the extent of his ownership interest in MLR&R (directly and through CWCP-I) and his beneficial interest in the Master Trust. The amounts reflected do not include 28,792 shares of Class A Stock owned by Mr. Sands’ spouse. Mr. Sands disclaims beneficial ownership with respect to all such shares. If the shares of Class A Stock that can be received upon the conversion of Mr. Sands’ Class 1 Option Shares were included in the shares of Class A Stock beneficially owned by Mr. Sands, Mr. Sands would beneficially own a total of (i) 6,320,181 shares of Class A Stock, representing 3.2% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by Mr. Sands were not converted, and (ii) 21,732,917 shares of Class A Stock, representing 10.2% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by Mr. Sands were converted. |
| (4) | The amounts reflected as shares of Class A Stock over which Abigail Bennett has the sole power to vote and dispose (i) include 3,550 shares of Class A Stock issuable upon the exercise of options which are presently exercisable by Ms. Bennett, and (ii) as noted in footnote (1), exclude 2,825 shares of Class A Stock that can be received upon conversion of Class 1 Option Shares. The amount reflected as shares of Class B Stock over which Abigail Bennett has the sole power to dispose includes 5,300,000 shares of Class B Stock owned by RES Holdings and 5,300,000 shares of Class B Stock owned by RSS Holdings. Ms. Bennett disclaims beneficial ownership with respect to all such shares except to the extent of her interest as a contingent remainder beneficiary of the Jennifer Sands Family Trust, the Jennifer Sands Descendants’ Trust, the Nancy Sands Family Trust and the Nancy Sands Descendants’ Trust. The amounts reflected as shares over which Ms. Bennett shares the power to vote include, as applicable, 471,608 shares of Class A Stock and 5,431,712 shares of Class B Stock owned by CWCP-I, and 1,447,812 shares of Class A Stock and 563,632 shares of Class B Stock owned by CWCP-II. Ms. Bennett disclaims beneficial ownership with respect to all such shares except to the extent of her interest as a beneficiary of any trust that is (i) a partner of CWCP-I or CWCP-II, or (ii) a beneficiary of any trust described in the preceding clause (i). If the shares of Class A Stock that can be received upon the conversion of Ms. Bennett’s Class 1 Option Shares were included in the shares of Class A Stock beneficially owned by Ms. Bennett, Ms. Bennett would beneficially own a total of (i) 1,925,795 shares of Class A Stock, representing 1.0% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by Ms. Bennett were not converted, and (ii) 18,521,139 shares of Class A Stock, representing 8.7% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by Ms. Bennett were converted. |
| (5) | The amounts reflected as shares over which Zachary Stern shares the power to vote include, as applicable, 471,608 shares of Class A Stock and 5,431,712 shares of Class B Stock owned by CWCP-I, and 1,447,812 shares of Class A Stock and 563,632 shares of Class B Stock owned by CWCP-II. Mr. Stern disclaims beneficial ownership with respect to all such shares except to the extent of his interest as a beneficiary of any trust that is (i) a partner of CWCP-I or CWCP-II, or (ii) a beneficiary of any trust described in the preceding clause (i). |
| (6) | The amounts reflected include, as applicable, 768 shares of Class A Stock and 667,368 shares of Class B Stock owned by MLR&R. The shares owned by CWCP-I are included in the number of shares beneficially owned by Richard Sands, Robert Sands, Abigail Bennett, Zachary Stern, the Marital Trust and the Group. CWCP-I is not reported as having voting power over shares held by it because voting power over its shares has been granted to Abigail Bennett and Zachary Stern as described in Item 6 below. Assuming the conversion of Class B Stock beneficially owned by CWCP-I into Class A Stock, CWCP-I would beneficially own 6,571,456 shares of Class A Stock, representing 3.2% of the outstanding Class A Stock after such conversion. |
| (7) | The amounts reflected as shares over which the Marital Trust shares the power to dispose include, as applicable, 471,608 shares of Class A Stock and 5,431,712 shares of Class B Stock owned by CWCP-I, and |
Page 15 of 20 Pages
| 1,447,812 shares of Class A Stock and 563,632 shares of Class B Stock owned by CWCP-II. The Marital Trust disclaims beneficial ownership with respect to all of the foregoing shares except to the extent of its ownership interest in CWCP-I and CWCP-II. The amounts reflected as shares over which the Marital Trust shares the power to vote and dispose include, as applicable, 768 shares of Class A Stock and 667,368 shares of Class B Stock owned by MLR&R. The Marital Trust disclaims beneficial ownership with respect to all of the foregoing shares except to the extent of its indirect ownership interest in MLR&R through CWCP-I. Assuming the conversion of Class B Stock beneficially owned by the Marital Trust into Class A Stock, the Marital Trust would beneficially own 8,582,900 shares of Class A Stock, representing 4.2% of the outstanding Class A Stock after such conversion. |
| (8) | If the shares of Class A Stock that can be received upon the conversion of Richard Sands’ and Robert Sands’ Class 1 Option Shares were included in the shares of Class A Stock beneficially owned by the Group, the Group would beneficially own a total of (i) 10,553,418 shares of Class A Stock, representing 5.3% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by the Group were not converted, and (ii) 33,224,386 shares of Class A Stock, representing 14.9% of the outstanding Class A Stock, if the shares of Class B Stock beneficially owned by the Group were converted. |
| (9) | The shares owned by CWCP-II are included in the number of shares beneficially owned by Richard Sands, Robert Sands, Abigail Bennett, Zachary Stern, the Marital Trust and the Group. CWCP-II is not reported as having voting power over shares held by it because voting power over its shares has been granted to Abigail Bennett and Zachary Stern as described in Item 6 below. Assuming the conversion of Class B Stock beneficially owned by CWCP-II into Class A Stock, CWCP-II would beneficially own 2,011,444 shares of Class A Stock, representing 1.0% of the outstanding Class A Stock after such conversion. |
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
On April 20, 2009, CWCP-I and CWCP-II entered into a Voting Agreement (the “Voting Agreement”) pursuant to which Abigail Bennett and Zachary Stern were granted the power to vote all shares of Class A Stock and Class B Stock held by CWCP-I and CWCP-II. Ms. Bennett and Mr. Stern must exercise such voting power jointly and were granted an irrevocable proxy enabling them to vote the shares directly. In the event of the death or incapacity of either of Ms. Bennett or Mr. Stern, the other would have the unilateral power to vote the shares. The Voting Agreement provides for the appointment of successor proxies and establishes mechanics for the voting of the shares in the event of a dispute between Ms. Bennett and Mr. Stern as to the voting of the shares. A copy of the Voting Agreement is attached to this Amendment as an Exhibit.
Richard Sands and Robert Sands are the managing partners of CWCP-I and trustees of the managing partner of CWCP-II. The Marital Trust is a partner of CWCP-I and CWCP-II and owns a majority in interest of the CWCP-I and CWCP-II partnership interests. Richard Sands and Robert Sands are the special voting trustees of the Marital Trust and, as such, exercise the rights of the Marital Trust with respect to CWCP-I and CWCP-II. The other partners of CWCP-I and CWCP-II are trusts for the benefit of Abigail Bennett and Zachary Stern. Richard Sands and Robert Sands are trustees and beneficiaries of the Master Trust. Richard Sands, Robert Sands, CWCP-I and the Master Trust are general partners of MLR&R. Richard Sands and Robert Sands are directors and officers of the Sands Foundation. RES Management is the sole general partner of RES Holdings, and Abigail Bennett is the sole manager of RES Management. RSS Management is the sole general partner of RSS Holdings, and Abigail Bennett is the sole manager of RSS Management. Richard Sands and Robert Sands are brothers. Abigail Bennett and Zachary Stern are siblings, the children of Laurie Sands, and the niece and nephew, respectively, of Richard Sands and Robert Sands. The relationships among Richard Sands, Robert Sands, RES Holdings, RES Management, RSS Holdings and RSS Management described in Item 3 are incorporated into this Item 6 by reference.
Page 16 of 20 Pages
The basis for the Group consists of: (i) a Stockholders Agreement among Richard Sands, Robert Sands and CWCP-I, a copy of which has been previously filed, and (ii) the fact that the familial relationship between Richard Sands and Robert Sands, their actions in working together in the conduct of the business of the Company and their capacity as partners and trustees of the other members of the Group may be deemed to constitute an agreement to “act in concert” with respect to the Company’s shares. The members of the Group disclaim that an agreement to act in concert exists. Except with respect to the shares subject to the Stockholders Agreement, the shares owned by CWCP-I and CWCP-II and the shares held by the Laurie Sands’ Children’s Trust and the Master Trust, no member of the Group is required to consult with any other member of the Group with respect to the voting or disposition of any shares of the Company. In accordance with the terms of their governing documents, any action taken by CWCP-I, CWCP-II or the Laurie Sands’ Children’s Trust with respect to the shares owned by CWCP-I, CWCP-II or the Laurie Sands’ Children’s Trust, respectively, must be taken by both Richard Sands and Robert Sands, and any action by the Master Trust with respect to the shares owned by the Master Trust must be taken by all of Richard Sands, Robert Sands and Marilyn Sands. As provided in the Voting Agreement, Abigail Bennett and Zachary Stern must act together to vote the shares of CWCP-I and CWCP-II, subject to the application of the dispute mechanics in the Voting Agreement.
The following Reporting Persons have pledged the following shares of Class A Stock to JPMorgan Chase Bank, N.A. as collateral for loans (including advances made with respect to letters of credit) to Richard Sands:
| Pledgor |
Number of Shares of Class A Stock | |
| Richard Sands |
2,056,799 | |
| Robert Sands |
2,197,700 | |
| CWCP-I |
434,696 | |
| CWCP-II |
1,447,812 | |
| Total Pledged Shares |
6,137,007 |
The following Reporting Persons (or persons whose shares are reported as beneficially owned by the Reporting Persons) have pledged the following shares of Class A Stock or Class B Stock to Merrill Lynch Bank USA and one of its subsidiaries as collateral for loans made to persons or entities included in the Group, certain other entities related to the Sands family and a charitable organization:
| Number of Shares of: | ||||
| Pledgor |
Class A Stock |
Class B Stock | ||
| Richard Sands |
361,243 | 608,232 | ||
| Robert Sands |
329,654 | 567,952 | ||
| CWCP-I |
36,912 | 5,431,712 | ||
| MLR&R |
0 | 667,368 | ||
| The Master Trust |
0 | 147,432 | ||
| Total Pledged Shares |
727,809 | 7,422,696 | ||
Page 17 of 20 Pages
In the event of noncompliance with certain covenants under the credit facilities, the financial institutions have the right to sell the pledged shares subject to certain protections afforded to the borrowers and pledgors. Certain of the shares of Class A Stock and Class B Stock may from time to time be held by the Reporting Persons or Group Members in margin accounts. If there were a margin call under such a margin account or the Reporting Person or Group Member defaulted under the terms of such a margin account, the broker with whom such margin account has been established may have the right to sell the shares of Class A Stock or Class B Stock held in such margin account.
| Item 7. | Material to Be Filed as Exhibits |
| Exhibit 99-1 |
Joint Filing Agreement among the Reporting Persons and Group Members dated April 30, 2009 | |
| Exhibit 99-2 |
Voting Agreement between CWCP-I and CWCP-II dated April 20, 2009 | |
Page 18 of 20 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief I certify that the information set forth in this statement is true, complete and correct.
| Dated: April 30, 2009 | /s/ Richard Sands | |||
| Richard Sands | ||||
| Dated: April 30, 2009 | /s/ Robert Sands | |||
| Robert Sands | ||||
| Dated: April 30, 2009 | /s/ Abigail Bennett | |||
| Abigail Bennett | ||||
| Dated: April 30, 2009 | /s/ Zachary Stern | |||
| Zachary Stern | ||||
| Dated: April 30, 2009 | CWC Partnership-I | |||
| By: | /s/ Richard Sands | |||
| Richard Sands, Co-Managing Partner | ||||
| By: | /s/ Robert Sands | |||
| Robert Sands, Co-Managing Partner | ||||
| Dated: April 30, 2009 | Trust for the benefit of Andrew Stern, M.D. under Article “FIFTH (D)” of the Will of Laurie Sands | |||
| By: | /s/ Richard Sands | |||
| Richard Sands, Special Voting Trustee | ||||
| By: | /s/ Robert Sands | |||
| Robert Sands, Special Voting Trustee | ||||
| Dated: April 30, 2009 | CWC Partnership-II* | |||||
| By: | The 1995 Robert Sands Descendants Trust | |||||
| Its: | Managing Partner | |||||
| By: | /s/ Richard Sands | |||||
| Richard Sands, Family Trustee | ||||||
| By: | /s/ Robert Sands | |||||
| Robert Sands, Family Trustee | ||||||
| * | Executed by this person solely in such person’s capacity as a member of the Group described in this Amendment. |