EXHIBIT 10.1
EXECUTION COPY
February 24,
2009
AMENDMENT
No. 1
to
SHAREHOLDERS’
AGREEMENT
by and among
Barclays Wealth Trustees (Jersey)
Limited
as Trustee of the First National
Trust,
Polmos Bialystok
S.A.,
Central European Distribution
Corporation,
and
Peulla Enterprises
Limited
relating to the
Shareholders’
investments in
Peulla Enterprises
Limited
AMENDMENT
NO. 1
TO
SHAREHOLDERS’
AGREEMENT
This AMENDMENT
No. 1 TO THE SHAREHOLDERS’ AGREEMENT (this “
Amendment ”) is entered into as of February 24,
2008, by and among BARCLAYS WEALTH TRUSTEES (JERSEY) LIMITED
as Trustee of the FIRST NATIONAL TRUST , a trust company
incorporated under the laws of Jersey, having its registered office
at 39-41, Broad Street, St. Helier, JE4 5PS Jersey, Channel Islands
(“ Seller ”), PEULLA ENTERPRISES LIMITED
, a private limited liability company by shares incorporated under
the laws of the Republic of Cyprus, whose registered office is
located at 9 th Floor, Capital Center, 2-4
Arch. Makarios Avenue, Nicosia 1065, Cyprus (“ Company
”), POLMOS BIALYSTOK S.A. , a joint stock company
incorporated under the laws of Poland, whose registered office is
located at ul. Elewatorska No. 20, 15-950 Bialystok, Poland
(“ Purchaser ”), and CENTRAL EUROPEAN
DISTRIBUTION CORPORATION , a corporation incorporated under the
laws of the State of Delaware in the United States of America,
whose registered office is at 2 Bala Plaza, Suite 300, Bala Cynwyd,
Pennsylvania 19004, U.S.A. (the “ Parent ”),
(the Company, together with Seller, Purchaser and Parent
collectively, the “ Parties ”, and each,
individually, a “ Party ”).
RECITALS
WHEREAS , Seller, Purchaser and Parent among other
parties entered into that Share Purchase Agreement, dated as of
May 23, 2008 (the “ Share Purchase Agreement
”), pursuant to the terms and subject to the conditions of
which, among other things, Seller sold to Purchaser, and Purchaser
purchased from Seller, (i) 3,749 Class A Shares and
(ii) 5,625 Class B Shares of the Company, in each case with
all rights attaching to them at Closing (as defined in the Share
Purchase Agreement);
WHEREAS , immediately following the Closing,
(i) Seller owned an aggregate of 3,751 Class A Shares,
representing 50.01 per cent. of the issued and outstanding
Class A Shares and 1,875 Class B Shares, representing
25.00 per cent. of the issued and outstanding Class B Shares
and (ii) Purchaser owned an aggregate of 3,749 Class A
Shares, representing 49.99 per cent. of the issued and
outstanding Class A Shares and 5,625 Class B Shares,
representing 75.00 per cent. of the issued and outstanding
Class B Shares;
WHEREAS , Seller, Purchaser and the Company entered into
a Shareholders Agreement (the “ Agreement ”),
dated May 23, 2008, setting forth certain terms and conditions
concerning the relationship between Seller, on the one hand, and
Purchaser, on the other hand, as the shareholders in the Company
and to provide for the orderly governance and management of the
Company and the Group (as defined herein) following the
consummation of the Investment;
WHEREAS , on October 21, 2008, Seller transferred
1,641 Class A Shares owned in the Company to Parent, as such
Transfer was approved in writing by Seller in a letter addressed to
the Company and Purchaser of even date therewith and Seller agreed
to accede to, and be bound by, the Agreement as if it were a Party
thereto, and
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WHEREAS , on February 18, 2009, Seller, Purchaser
and Parent among other parties, entered into Amendment No. 5
to the Share Purchase Agreement, pursuant to the terms and subject
to the conditions of which, among other things (i) Seller
agreed to transfer to Purchaser, and Purchaser agreed to accept
from Seller, an additional 375 Class B Shares with all rights
attaching to them at the Third Closing (as defined in the Share
Purchase Agreement); (ii) subject to certain conditions being
met, Seller agreed to transfer to Purchaser, and Purchaser agreed
to accept from Seller up to a further 75 Class B Shares, with all
rights attaching to them after the end of the Third Guarantee
Period (as defined in the Share Purchase Agreement); and
(iii) Seller, Purchaser and Parent agreed to make certain
revisions to the method of calculating the Exercise Price to be
paid in connection with the Exit Option.
AGREEMENT
NOW , THEREFORE , in consideration of the
premises and covenants set forth below and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, the Parties
agree as follows:
The modifications and amendments set
forth herein shall become effective as of the Third Closing Date
(as defined in the Share Purchase Agreement).
Schedule 1 to the Agreement is
hereby deleted and replaced in its entirety by
Schedule 1 to this Amendment.
Except as expressly set forth
herein, no other amendment or modification is made to the Agreement
which shall remain at all times in full force and effect in
accordance with its terms. References to “this
Agreement” in the Agreement shall include the Agreement as
amended by this Amendment.
The provisions of Article 12 (
Miscellaneous ), including, but not limited to,
Section 12.2 (Governing Law ) and Section 12.3 (
Dispute Resolution; Consent to Arbitration ) of the
Agreement are hereby incorporated by reference and shall apply
hereto, mutatis mutandis .
[The remainder of this page left
intentionally blank; signature page follows]
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