Exhibit 1.1
Dated December 12,
2006
Offering of Shares
of
Central European Distribution
Corporation
UNDERWRITING
AGREEMENT
Weil, Gotshal &
Manges
Table of Contents
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1
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Subscription
and purchase of the Shares
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2
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2
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Representations
and Warranties
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3
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3
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Covenants of
the Issuer
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16
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4
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Commissions
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18
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5
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Costs and
Expenses
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18
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6
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Closing and
Settlement
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19
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7
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Conditions
Precedent
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20
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8
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Restrictions
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22
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9
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Termination;
Reimbursement of Expenses
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22
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10
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Survival of
Representations and Obligations
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23
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11
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Notices
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23
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12
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Severability
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23
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13
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Governing
Law
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23
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14
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Counterparts
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24
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Schedule
1
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26
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Exhibit A Form
of New York law enforceability opinion of Dewey Ballantine to be
delivered pursuant to Clause 7.1.3(i)
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A-1
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Exhibit B Form
of New York law enforceability opinion of Weil, Gotshal &
Manges, LLP to be delivered pursuant to Clause
7.1.3(i)
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B-1
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Exhibit C Form
of disclosure letter of Weil, Gotshal & Manges LLP to be
delivered pursuant to Clause 7.1.37.1.3(ii)
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C-1
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Exhibit D Form
of Polish law opinion of Dewey Ballantine to be delivered pursuant
to Clause 7.1.3(iii)
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D-1
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Exhibit E Form
of Polish law opinion of Weil, Gotshal & Manges to be delivered
pursuant to Clause 7.1.3(iii)
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E-1
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1
December 12, 2006
To: ING Bank N.V. London
Branch
60 London Wall
London, EC2M 5TQ
(which shall be referred to as “
ING ”)
Dear Sirs:
Central European Distribution
Corporation, a Delaware corporation (the “ Issuer
”), proposes to issue 2,550,000 shares of the Issuer’s
common stock, par value U.S.$ 0.01 per share (the “
Shares ”). The Shares are being offered in an offering
that consists of a public offering both to retail and institutional
investors in the Republic of Poland (the “ Polish
Offering ”), an international offering by way of a
private placement to certain institutional investors in other
jurisdictions outside the United States and a public offering in
the United States registered under the U.S. Securities Act of 1933
(the “ Securities Act ”) (such offerings,
collectively, the “ Offering ”).
Application will be made to the
Warsaw Stock Exchange (the “ Exchange ”)
for the admission of the Shares and all of the remaining shares of
the Issuer to listing (the “ Admission
”).
The Issuer agrees with ING and ING
Securities S.A. (collectively referred to herein as the “
Managers ”) as follows:
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1
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Subscription
and purchase of the Shares
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Subject to and in accordance with
the provisions of this Agreement, the Issuer agrees to issue and
sell all Shares to or to the order of the Managers and the
Managers, agree to procure subscribers for or, failing which, to
subscribe for and purchase 2,189,500 shares from the Issuer, at a
price per Share of PLN 86.29 and 360,500 shares from the Issuer, at
a price per share of USD 30.00 (collectively, the “
Offering Price ”).
For purposes of this
Agreement:
“ Applicable Time
” means 10 pm (New York time) on the date of this
Agreement.
“ Business Day ”
means any day (other than a Saturday) upon which banks are open for
business in New York and Warsaw.
“ Closing Date ”
means December 15, 2006 or such other date as the parties
hereto may designate as the date on which the transactions
involving the subscription of the Shares are settled.
“ Effective Date
” means each date and time that the Registration Statement,
and any post-effective amendment or amendments thereto, became, or
is deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations.
“ Exchange Act ”
means the United States Securities Exchange Act of 1934.
“ Final Prospectus
” means the Final Prospectus relating to the Shares that
discloses the Offering Price and other final terms of the Shares
and is dated as of the date of this
2
Agreement (even if finalized and
issued subsequent to the date of this Agreement) and filed with the
U.S. Commission pursuant to Rule 424(b) of the Rules and
Regulations.
“ General Disclosure
Package ” means, as of the Applicable Time, the
Preliminary Prospectus together with any Issuer Free Writing
Prospectus specified in Schedule 1 to this Agreement which exists
at the Applicable Time and which is intended for general
distribution to prospective investors.
“ Issuer Free Writing
Prospectus ” means a “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Issuer in connection
with the Offering.
“ Most Recent Preliminary
Prospectus ” means the Preliminary Prospectus relating to
the Shares filed with the U.S. Commission pursuant to Rule 424(b)
of the Rules and Regulations on December 4, 2006.
“ Polish Commission
” means the Polish Financial Supervisory
Commission.
“ Polish Prospectus
” means the Polish language prospectus prepared in connection
with the Polish Offering that was approved by the Polish Commission
on December 1, 2006, as supplemented by the supplement
approved by the Polish Commission on December 5, 2006 and as
supplemented by the public announcements of the Company in
accordance with applicable Polish law related, among other things,
to the Offering Price and signing of this Agreement.
“ Preliminary
Prospectus ” means a collective reference to the Most
Recent Preliminary Prospectus and any preliminary prospectus
included in the Registration Statement at the time of its
effectiveness.
“ Registration
Statement ” means collectively, the various parts of the
registration statement on Form S-3 relating to the Shares, each as
amended as of the Effective Date.
“ Rules and Regulations
” means the rules and regulations of the U.S. Commission
promulgated under the Securities Act.
“ Securities Laws
” means, collectively, the Securities Act, the Exchange Act,
the Rules and Regulations.
“ U.S. Commission
” means the U.S. Securities and Exchange
Commission.
Any reference to any Preliminary
Prospectus, including the Most Recent Preliminary Prospectus, or
Final Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein.
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2
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Representations and Warranties
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2.1
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The Issuer
represents, warrants and agrees to and with the Managers
that:
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2.1.1
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No order
preventing or suspending the use of the General Disclosure Package
and the Final Prospectus has been issued by the U.S. Commission or
the Polish Commission.
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2.1.2
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On the
Effective Date the Registration Statement did, and when the Final
Prospectus is first filed with the U.S. Commission pursuant to Rule
424(b) under the Securities Act it will, comply as to form in all
material respects with the applicable requirements of the Act and
the Rules and Regulations.
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On the Effective Date, the
Registration Statement did not contain an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein not misleading; provided, however, that the
Issuer makes no representations or warranties with respect to any
information contained in or omitted from the Registration Statement
in reliance upon and in conformity with information furnished in
writing to the Issuer by or on behalf of the Managers specifically
for inclusion therein, it being understood and agreed that the only
such information furnished by or on behalf of the Managers is the
information described as such in Section 2.3.2.
When it is first filed with the U.S.
Commission pursuant to Rule 424(b) under the Securities Act, and on
the Closing Date, the Final Prospectus (together with any
supplement thereto) will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Issuer makes no representations or warranties with respect to
any information contained in or omitted from the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Issuer by or on behalf of
Managers specifically for inclusion therein, it being understood
and agreed that the only such information furnished by or on behalf
of the Managers is the information described as such in
Section 2.3.2.
The General Disclosure Package did
not, as of the Applicable Time, contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Issuer makes no representations or warranties with respect to
any information contained in or omitted from the General Disclosure
Package in reliance upon and in conformity with information
furnished in writing to the Issuer by or on behalf of the Managers
specifically for inclusion therein, it being understood and agreed
that the only such information furnished by or on behalf of the
Managers is the information described as such in
Section 2.3.2.
The Polish Prospectus complies as to
form in all material respects with the requirements of the Polish
regulations on the form and content of prospectus and did not on
the date of its approval by the Polish Commission and does not on
the date hereof contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
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2.1.3
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The Issuer has
not made any offer relating to the Shares that would constitute an
Issuer Free Writing Prospectus, except as set forth on Schedule I
hereto. Each Issuer Free Writing Prospectus complied as to form in
all material respects with the requirements of the Securities Act
on the date of first use and has been filed in accordance with the
applicable requirements of the Securities Act and, when taken
together with the General Disclosure Package as of the Applicable
Time, did not contain any untrue statement of a material fact or
omit to state a material fact
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necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Issuer makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to the
Managers furnished to the Issuer in writing by such Managers
expressly for use in any Issuer Free Writing Prospectus.
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2.1.4
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The
Registration Statement (File Number 333-138516) has become
effective under the Securities Act; and no order suspending the
effectiveness of the Registration Statement has been issued by the
U.S. Commission.
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2.1.5
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The Polish
Prospectus was approved by the Polish Commission on
December 1, 2006; and no order suspending such approval was
issued by the Polish Commission.
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2.1.6
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The documents
incorporated by reference in the Registration Statement, the Most
Recent Preliminary Prospectus and the Final Prospectus, when they
were filed with the U.S. Commission, complied as to form in all
material respects with the applicable requirements of the Exchange
Act, and none of such documents, as amended or supplemented on the
date hereof, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Any
further documents so filed and incorporated by reference in the
Final Prospectus, when such documents are filed with the U.S.
Commission, will comply as to form in all material respects with
the applicable requirements of the Exchange Act, and, when filed,
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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2.1.7
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The financial
statements, together with the related notes and supporting
schedules thereto, of the Issuer and its consolidated subsidiaries
included or incorporated by reference in the General Disclosure
Package comply as to form in all material respects with the
applicable requirements of Regulation S-X under the Securities Act,
present fairly the financial position of the Issuer and its
consolidated subsidiaries as of the dates indicated and the results
of their operations and the changes in their cash flows for the
periods specified and, except as otherwise stated therein, such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby. The other financial
information included or incorporated by reference in the General
Disclosure Package has been, except as disclosed therein, derived
from the accounting records or operating systems of the Issuer and
its subsidiaries and presents fairly, in all material respects, the
information shown thereby. The pro forma financial statements
(including the related notes thereto) included or incorporated by
reference in the General Disclosure Package comply as to form in
all material respects with the applicable requirements of
Regulation S-X under the Securities Act, and the assumptions
underlying such pro forma financial statements provide a reasonable
basis for presenting the significant effects directly attributable
to the transactions and events described therein and are set forth
in the General Disclosure Package.
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2.1.8
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Except as
otherwise disclosed in the General Disclosure Package, since the
date of the most recent financial statements of the Issuer included
or incorporated by reference in the General Disclosure Package,
(i) there has not been any change in the share capital (other
than pursuant to the exercise of existing employee options) of the
Issuer or any of its subsidiaries or a material increase in the
long-term debt of the Issuer and its subsidiaries taken as a whole,
(ii) the Issuer has not declared, set aside for payment, paid
or made any dividend or distribution of any kind on any class of
its share capital, (iii) there has not been any material
adverse change in the business, properties, financial condition,
results of operations, shareholders’ equity (except as may be
the result of cumulative translation adjustments) or cashflows of
the Issuer and its subsidiaries taken as a whole, (iv) neither
the Issuer nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Issuer and its
subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Issuer
and its subsidiaries taken as a whole and that would be required to
be filed as an exhibit to the Registration Statement; and
(v) neither the Issuer nor any of its subsidiaries has
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as could not reasonably
be expected to have a Material Adverse Effect (as defined
below).
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2.1.9
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The Issuer and
each of its Significant Subsidiaries (as defined below) have been
duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are
duly qualified to do business, and where applicable, are in good
standing in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure
to be so qualified or have such power or authority could not,
individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, properties, financial
condition, results of operations or shareholders’ equity
(except as may be the result of cumulative translation adjustments)
of the Issuer and its subsidiaries taken as a whole (a “
Material Adverse Effect ”). None of the Issuer or any
of its Significant Subsidiaries is in bankruptcy, liquidation or
receivership or subject to any similar proceeding except as
described in the General Disclosure Package. The following entities
are each a direct or indirect subsidiary of the Issuer that is
material to the Issuer and its subsidiaries taken as a whole (each
a “ Significant Subsidiary ” and collectively,
the “ Significant Subsidiaries ”): Carey Agri
International Poland Sp. z o.o., Polmos Bialystok S.A., Bols
Hungary Kft, Bols Sp. z o.o. and Botapol Holding B.V.
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2.1.10
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The Issuer had
a capitalization as at September 30, 2006 as set forth in the
Most Recent Preliminary Prospectus under the heading
“Capitalization and Net Indebtedness.” All of the
issued and outstanding shares of capital stock of the Issuer have
been duly and validly authorized and issued, are fully paid and
non-assessable (which term means when used herein that no further
sums are required to be paid by the holders thereof in connection
with the issue of such shares) and are not subject to any
pre-emptive or similar rights. Except as otherwise
disclosed
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in the General Disclosure Package,
all the issued and outstanding shares or other equity interests of
each Significant Subsidiary of the Issuer (i) are owned
directly or indirectly by the Issuer, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party, (ii) have been
duly and validly authorized and issued, (iii) are fully paid
and non-assessable, and (iv) are not subject to any
pre-emptive or similar rights. Except as described in or expressly
contemplated by the General Disclosure Package, there are no
outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interests in the Issuer or any of its Significant
Subsidiaries, or any contract, commitment, agreement, understanding
or arrangement of any kind to which the Issuer or any of its
Significant Subsidiaries is a party relating to the issuance of any
share capital of the Issuer or any such Significant Subsidiary. The
share capital of the Issuer conforms in all material respects to
the description thereof contained in the General Disclosure Package
and except as otherwise disclosed in the General Disclosure Package
all the issued and outstanding shares of capital stock or other
equity interests of each subsidiary of the Issuer have been duly
and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Issuer,
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party.
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2.1.11
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The Issuer has
the necessary corporate power and authority to execute and deliver
this Agreement and to enter into arrangements with the Depository
Trust Company (“ DTC ”), the National Deposit of
Securities ( Krajowy Depozyt Papierów Wartosciowych )
(“ NDS ”), and the National Association of
Securities Dealers Automated Quotations Global Select Market (the
“ Nasdaq Market ”) necessary for the
consummation of the Offering, and to perform its obligations
hereunder and thereunder; and all action required to be taken for
the due and proper authorization, execution and delivery of this
Agreement has been duly and validly taken.
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2.1.12
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This Agreement
has been duly authorized, executed and delivered by the
Issuer.
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2.1.13
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The Shares have
been duly authorized by the Issuer and, when issued and delivered
and paid for as provided herein, will be duly and validly issued
and will be fully paid and nonassessable and will conform to the
description thereof in the General Disclosure Package; and the
issuance of the Shares is not subject to any preemptive or similar
rights.
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2.1.14
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Neither the
Issuer nor any of its Significant Subsidiaries is (i) in
violation of its memorandum of association, charter or by-laws or
similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Issuer or any of its
Significant Subsidiaries is a party or by which the Issuer or any
of its Significant Subsidiaries is bound or to which any of the
property or assets of the Issuer or any of its Significant
Subsidiaries is subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the
case of clauses (ii)
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and (iii) above, for any such
default or violation that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
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2.1.15
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The
authorization, execution, delivery and performance by the Issuer
this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated by this Agreement
will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Issuer or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Issuer or any of its subsidiaries is a party or by which the Issuer
or any of its subsidiaries is bound or to which any of the property
or assets of the Issuer or any of its subsidiaries is subject,
(ii) result in any violation of the provisions of the
memorandum of association, charter or by-laws or similar
organizational documents of the Issuer or any of its Significant
Subsidiaries or (iii) result in the violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the
case of clauses (i) and (iii) above, for any such
conflict, breach or violation that could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
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2.1.16
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No consent,
approval, authorization, order, registration or qualification of or
with any court or arbitrator or governmental or regulatory
authority is required for the execution, delivery and performance
by the Issuer of this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated by
this Agreement, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may
be required under applicable securities laws in connection with the
purchase and distribution of the Shares by the Managers.
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2.1.17
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Except as
described in the General Disclosure Package, there are no current
legal, governmental or regulatory actions, suits or proceedings or,
to its knowledge, investigations (other than actions, suits,
proceedings or investigations relating to taxes, which are
addressed exclusively in Section 2.1.23) pending to which the
Issuer or any of its subsidiaries is a party or to which any
property of the Issuer or any of its subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to
the Issuer or any of its subsidiaries, could reasonably be expected
to have a Material Adverse Effect or materially and adversely
affect the ability of the Issuer to perform its obligations under
this Agreement; and to the best knowledge of the Issuer no such
investigations, actions, suits or proceedings are threatened by any
governmental or regulatory authority or by others.
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2.1.18
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PricewaterhouseCoopers, who have audited certain
financial statements of the Issuer and certain of its subsidiaries,
are independent public accountants with respect to the Issuer and
its subsidiaries as required by the Securities Act.
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2.1.19
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The Issuer and
its subsidiaries have good and marketable title to, or have valid
rights to lease or otherwise use, all items of real and personal
property that are material to the respective businesses of the
Issuer and its subsidiaries, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title
except those that (i) relate to the Senior Notes, (ii) do
not materially interfere with the use made and proposed to be made
of such property by the Issuer and its subsidiaries, (iii) are
disclosed in the General Disclosure
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Package or (iv) could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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2.1.20
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Except as set
forth in the General Disclosure Package, the Issuer and its
subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of
their respective businesses except where the failure to possess, or
own such rights could not have a Material Adverse Effect; and they
have no reason to believe that the conduct of their respective
businesses will conflict in any material respect with any such
rights of others, and the Issuer and its subsidiaries have not
received any notice of any claim of infringement of or conflict
with any such rights of others and are unaware of any facts which
would form a reasonable basis for any such claim, except as to such
conduct or infringement which could not reasonably be expected to
have a Material Adverse Effect.
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2.1.21
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No
relationship, direct or indirect, exists between or among the
Issuer or any of its subsidiaries, on the one hand, and the
directors, officers, shareholders or other affiliates of the Issuer
or any of its subsidiaries, on the other, that is required by the
Securities Act to be described in the General Disclosure Package
and that is not so described.
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2.1.22
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The Issuer is
not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the
General Disclosure Package, will not be required to register as an
“investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Issuer Act of 1940, as
amended, and the rules and regulations of the U.S. Commission
thereunder (collectively, “Investment Issuer
Act”).
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2.1.23
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Except as
otherwise disclosed in the General Disclosure Package, the Issuer
and its subsidiaries have paid all national, state, local regional
and foreign taxes and filed all tax returns required to be paid or
filed through the date hereof other than those being contested in
good faith; and, there is no tax deficiency that has been asserted
against the Issuer or any of its subsidiaries or any of their
respective properties or assets other than any tax deficiency for
which a proper reserve has been established or which has been
contested in good faith, except where the failure to pay such taxes
or file such tax returns or such tax deficiency could not
reasonably be expected to have a Material Adverse
Effect.
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2.1.24
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The Issuer and
its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by, and have made all declarations and
filings with, the appropriate national, federal, regional, state,
local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as described in the
General Disclosure Package, except where the failure to possess or
make the same would not, individually or in the aggregate, have a
Material Adverse Effect; and except as described in the General
Disclosure Package, neither the Issuer nor any of its subsidiaries
has received notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to
believe that any such license, certificate, permit or authorization
will not be renewed in the
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ordinary course except where receipt
of such notice of any revocation or modification of any such
license, certificate, permit or authorization or failure to renew
in the ordinary course could not reasonably be expected to have a
Material Adverse Effect.
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2.1.25
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No labor
disturbance by or dispute with employees of the Issuer or any of
its subsidiaries exists or, to the knowledge of the Issuer, is
threatened which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; to the
knowledge of the Issuer, no labor disturbance by or dispute with
employees or agents of suppliers or customers of the Issuer or any
of its Significant Subsidiaries is threatened which could,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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2.1.26
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The Issuer and
its subsidiaries (i) are in compliance with any and all
applicable federal, national and international, state, local and
foreign laws, rules, regulations, decisions and orders relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses (collectively
“Environmental Permits”); and (iii) have not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or
contaminants, except in any such case for any such failure to
comply, or failure to receive required permits, licenses or
approvals, or liability as would not, individually or in the
aggregate, have a Material Adverse Effect and the Issuer and its
subsidiaries are not aware of any pending investigation which might
reasonably be expected to lead to a claim of such liability, except
any such liability as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
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2.1.27
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Each benefit
and compensation plan, agreement, policy and arrangement that is
maintained or administered by the Issuer or any of its subsidiaries
for current or former employees or directors of, or independent
contractors with respect to, the Issuer or any of its subsidiaries,
has been maintained in compliance with its terms and the
requirements of any applicable statutes, orders, rules and
regulations and the Issuer and each of its subsidiaries and each of
their respective affiliates have complied with all applicable
statutes, orders, rules and regulations in regard to such plans,
agreements, policies and arrangements, except for any failure to so
maintain or comply as could not reasonably be expected to have a
Material Adverse Effect.
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2.1.28
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The Issuer and
its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, which insurance
is in amounts and insures against such losses and risks as are
adequate to protect the Issuer and its subsidiaries and their
respective businesses, except for any lack of insurance which could
not reasonably be expected to have a Material Adverse Effect; and
neither the Issuer nor any of its subsidiaries has
(i) received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or
(ii) any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar
insurers as may be necessary to continue its business, except for
any
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such capital improvements or other
expenditures or inability to renew or obtain similar coverage as
could not reasonably be expected to have a Material Adverse
Effect.
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2.1.29
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Neither the
Issuer nor any of its subsidiaries nor, to the knowledge of the
Issuer, any director, officer, agent, employee or other person
associated with or acting on behalf of the Issuer or any of its
subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977 or any applicable law or regulation implementing the
OECD convention on Combating Bribery of Foreign Public Officials in
International Business Transactions; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
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2.1.30
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The operations
of the Issuer and its subsidiaries are and have been conducted at
all times in compliance with all applicable requirements of the
Currency and Foreign Transactions Reporting Act of 1970 of the
United States and analogous laws of the European Union, including
the Republic of Poland, so far as the Issuer is aware, and any
related or similar statutes, rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “ Money Laundering Laws ”),
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Issuer or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Issuer,
threatened.
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2.1.31
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Except as
disclosed in the General Disclosure Package, no subsidiary of the
Issuer is currently prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Issuer, from making any other
distribution on such subsidiary’s capital stock, from
repaying to the Issuer any intercompany loans or advances to such
subsidiary from the Issuer or from transferring any of such
subsidiary’s properties or assets to the Issuer or any other
subsidiary of the Issuer.
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2.1.32
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Neither the
Issuer nor any of its subsidiaries is a party to any contract,
agreement or understanding with any person (other than this
Agreement) that would give rise to a valid claim against the Issuer
or any of its subsidiaries or the Managers for a brokerage
commission, finder’s fee or like payment in connection with
the offering and sale of the Shares.
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2.1.33
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Except as
disclosed in the General Disclosure Package, no person has the
right to require the Issuer or any of its subsidiaries to register
any securities for sale under the Securities Act.
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2.1.34
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The Issuer has
not taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the
Shares.
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2.1.35
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The industry,
statistical and market-related data included in the General
Disclosure Package is based on or derived from sources that the
Issuer believes to be reliable and accurate in all material
respects.
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2.1.36
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Except as
otherwise disclosed in the General Disclosure Package, the Issuer
has established and maintains disclosure controls and procedures
(as such term is defined in Rule 13a-15 under the Exchange Act) it
believes are sufficient to ensure that the information required to
be disclosed by the Issuer in the reports they file or submit under
the Exchange Act is accumulated and communicated to the management
of the Issuer, including their respective principal executive
officers and principal financial officers, as appropriate, to allow
timely decisions regarding required disclosure to be
made.
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2.1.37
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Except as
otherwise disclosed in the General Disclosure Package, since the
date of the most recent balance sheet of the Issuer and its
consolidated subsidiaries reviewed or audited by
PricewaterhouseCoopers and the audit committee of the board of
directors of the Issuer, the Issuer has not identified (A) any
significant deficiencies in the design or operation of internal
controls that could adversely affect the ability of the Issuer and
each of its subsidiaries to record, process, summarize and report
financial data, or any material weaknesses in internal controls,
other than those disclosed in the Registration Statement and the
Prospectus and (B) any fraud, whether or not material, that
involves management or other employees who have a significant role
in the internal controls of the Issuer and each of its
subsidiaries, and (ii) since that date, there have been no
significant changes in internal controls or in other factors that
could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses.
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2.1.38
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The Issuer is
not an ineligible issuer as defined under the Securities Act, in
each case at the times specified in the Securities Act in
connection with the offering of the Shares. The Issuer has been
since the time of initial filing of the Registration Statement and
continues to be eligible to use Form S-3 for the offering of the
Shares.
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2.2
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Subject to
Section 9, the representations and warranties contained in, or
given pursuant to, Section 2.1 shall be deemed repeated at the
Closing Date in respect of facts and circumstances as at such
date.
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2.3
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Indemnification and Contribution
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2.3.1
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The Issuer will
indemnify and hold harmless each of the Managers and its respective
officers, employees, and directors and each person, if any, who
controls any of such Managers within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (each,
an “ Indemnified Party ”), against any and all
losses, claims, damages or liabilities, to which such Indemnified
Party may become subject, under Polish laws, the Securities Act,
the Exchange Act, other Federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in any document comprising a part of the
General Disclosure Package or the Polish Prospectus or, in either
case, any amendment, supplement or annex thereto, or the Final
Prospectus, or arise out of or are based upon the omission or
alleged omission of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and will reimburse each Indemnified
Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with
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investigating, preparing or
defending against any loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not
such Indemnified Party is a party thereto) whether threatened or
commenced and in connection with the enforcement of this provision
with respect to any of the above as such expenses are incurred;
provided, however, that upon a final determination by a court of
competent jurisdiction that any Indemnified Party was not entitled
to payment of such expenses by the Issuer pursuant to this
Section 2.3.1, such Indemnified Party shall reimburse such
payment to the Issuer; provided, further, that the Issuer shall not
be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in any part of the General Disclosure Package or the
Polish Prospectus or, in either case, any amendment, supplement or
annex thereto, or the Final Prospectus, in reliance upon and in
conformity with information furnished in writing to the Issuer by
or on behalf of the Managers specifically for inclusion therein.
Notwithstanding the foregoing, the Issuer shall not be liable to
indemnify any Indemnified Party on account of any loss, claim,
damage, liability or action arising out of or based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any part of the General Disclosure Package or the
Polish Prospectus or, in either case, any amendment, supplement or
annex thereto, or in the Final Prospectus if such untrue statement
or alleged untrue statement or omission or alleged omission was
corrected in an amendment, supplement or annex to the General
Disclosure Package or the Polish Prospectus, an Issuer Free Writing
Prospectus, the Final Prospectus or an amendment or supplement to
the Final Prospectus, as the case may be, and such materials were
not delivered by the Managers to the purchasers of Shares, provided
that sufficient quantities of such documents were made available to
the Managers to enable them to deliver such documents on a timely
basis.
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2.3.2
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The Managers
will indemnify and hold harmless the Issuer and each of its
directors, officers and employees and each person, if any, who
controls the Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, an
“ Managers Indemnified Party ”), against any
losses, claims, damages or liabilities to which such Managers
Indemnified Party may become subject, under Polish laws, the
Securities Act, the Exchange Act, other Federal or state statutory
law or regulation or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any document comprising a part of
the General Disclosure Package or the Polish Prospectus, or in
either case any amendment, supplement or annex thereto, or the
Final Prospectus or arise out of or are based upon the omission or
the alleged omission of a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished
to the Issuer by or on behalf of the Managers specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Managers Indemnified Party in connection with
investigating, preparing or defending against any such loss, claim,
damage, liability, action, litigation, investigation or proceeding
whatsoever (whether
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or not such Managers Indemnified
Party is a party thereto) whether threatened or commenced and in
connection with the enforcement of this provision with respect to
any of the above as such expenses are incurred, it being understood
and agreed that the only such information furnished by the Managers
consists of the following information in the Most Recent
Preliminary Prospectus and the Final Prospectus: the first
paragraph under the caption “Terms and Conditions of the
Offering and Plan of Distribution — Offeror and Listing Agent
for the Purposes of Listing our Shares on the WSE”, the first
sentences in the first and second paragraphs of “Placing and
Underwriting – Conditions of Underwriting Agreement”
and the second sentence of the first paragraph under the caption
“Placing and Underwriting – Fees” and the
following information in the Polish Prospectus: The first paragraph
under the caption “Warunki Oferty i Zasady Dystrybucji
– Oferujacy i firma inwestycyjna posredniczaca we
wprowadzaniu naszych akcji na GPW”, the first sentences in
the first sentences in the first and second paragraphs of
“Plasowanie i Subemisja – Warunki Subemisji” and
the second sentence of the first paragraph under the caption
“Plasowanie i Subemisja –
Wynagrodzenie”.
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2.3.3
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Promptly after
receipt by an indemnified party under this Section 2.3.3 of notice
of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying
party under Sections 2.3.1 and 2.3.2 above, notify the indemnifying
party in writing of the commencement thereof; provided, however,
that the failure to notify the indemnifying party shall not relieve
it from any liability that it may have under Sections 2.3.1 and
2.3.2 above except to the extent that it has been materially
prejudiced by such failure; and provided further that the failure
to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than
under Sections 2.3.1 and 2.3.2. In case any such action is brought
against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party. After notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section 2.3 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, howev
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