Common use of Issues of securities Clause in Contracts

Issues of securities. 9.1 Each of the Holdcos warrants, represents and undertakes to CEDC: 9.1.1 it is an “accredited investor” within the definition of such term set out in Rule 501(a) of Regulation D under the Securities Act; 9.1.2 it is acquiring the Substitution Stock for its own account for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act; 9.1.3 it understands, acknowledges and agrees that: (a) on delivery, the Substitution Stock will not have been registered under the Securities Act; (b) the delivery of Substitution Stock is intended as a transaction qualifying under Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder; (c) the Substitution Stock may not be transferred or resold except pursuant to: (i) an effective registration statement under the Securities Act covering such proposed transfer or resale and where such transfer or resale is made in accordance with such registration statement; or (1) a transfer or resale that is eligible under Rule 144 and is made pursuant thereto; or (2) a transaction exempt from registration under the Securities Act; and which, in each case, is otherwise made in accordance with applicable securities laws and does not adversely affect CEDC’s ability to issue the Substitution Stock through an exemption from registration under the Securities Act, and: (A) in the event of a proposed transfer or resale pursuant to this Clause 9.1.3(c)(ii) the transferor/seller provides: (1) written notice to CEDC of its intention to transfer or resell any shares of CEDC Common Stock, including a reasonably detailed statement of the circumstances surrounding the proposed transfer or resale, no later than five Business Days prior to effecting such transfer or resale; and (2) CEDC with a legal opinion from independent, internationally recognised legal counsel experienced in such matters, which legal opinion shall be in customary form reasonably acceptable to CEDC and shall state that such transfer or resale is eligible under Rule 144 or is made in a transaction exempt from registration under the Securities Act and, in each case, is made in a transaction exempt from registration under the Securities Act and, in each case, is otherwise made in accordance with applicable securities laws, provided that in the case of any transfer or resale made pursuant to Rule 144, the transferor/seller may provide such notice and legal opinion in respect of all of the transfers or resales proposed to be made within the six (6) month period following the date of such notice and legal opinion; and (B) only with respect to any proposed transfer or resale of any CEDC Common Stock made pursuant to this Clause 9.1.3(c)(ii), the transferor and the transferee in any such transfer or resale as a condition precedent thereto shall have provided to CEDC such factual representations, warranties and undertakings as CEDC may reasonably request to ensure that such sale, transfer or disposition does not adversely affect CEDC’s ability to issue the Substitution Stock through an exemption from registration under the Securities Act); (d) the Substitution Stock will be endorsed with the following legends: (i) “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN OFFERED AND SOLD TO ACCREDITED INVESTORS (AS DEFINED IN REGULATION D UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION D PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS WITH REGARD TO THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO CERTAIN ADDITIONAL RESTRICTIONS ON TRANSFER AND OTHER MATTERS AS SET OUT IN THAT CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED [•], 2009 AMONG CENTRAL EUROPEAN DISTRIBUTION CORPORATION, LION/RALLY CAYMAN 4 AND LION/RALLY CAYMAN 5, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY, AND MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH.”; and (ii) any other legend required to be placed thereon pursuant to the Registration Rights Agreement and applicable law; (e) Notwithstanding Clause 9.1.3(d) above, CEDC agrees that, upon request of the relevant Holdco, and receipt of appropriate instructions for delivery of shares in book-entry form, the Substitution Stock shall not be issued in physical form or bear a legend solely because such Holdco has advised CEDC that it will sell such shares in a transaction that is registered under the Securities Act pursuant to a registration statement. If the relevant Holdco determines that it will not sell all shares held by it pursuant to a registration statement, it shall cooperate with CEDC to enable CEDC to issue such shares of Substitution Stock in certificated physical form, with legends, as provided for in Clause 9.1.3(d). Each Holdco shall not sell any Substitution Stock except in compliance with the requirements of the Securities Act, which requirements include the prospectus delivery requirements, and in compliance with the legends set forth in Clause 9.1.3(d) above as if such legends were set forth on a physical certificate representing such shares; 9.1.4 it did not learn of the investment in the Substitution Stock by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media, or broadcast over television or radio; or (ii) any seminar or meeting to which the Holdcos were invited by any of the foregoing means of communications; 9.1.5 it has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby, and understands that the purchase of the Substitution Stock involves substantial risk; 9.1.6 it has had an opportunity to receive all additional information related to CEDC requested by it and to ask questions of and receive answers from CEDC regarding the terms and conditions of the issuance and sale of the Substitution Stock and the business, properties, prospects and financial condition of CEDC and to obtain any additional information requested and has received and considered all information it deems relevant to make an informed decision to purchase the Substitution Stock; and 9.1.7 it acknowledges that CEDC is relying on the representations, warranties and agreements contained in this Clause 9.1 in delivering the Substitution Stock to the Holdcos and would not engage in such transaction in the absence of the representations, warranties and agreements contained herein. Each Holdco further acknowledges and agrees that any obligation of CEDC herein to deliver the Substitution Stock to the Holdcos is conditioned upon the accuracy of the representations, warranties and agreements in this Clause 9.1 and each Holdco agrees to notify CEDC promptly in writing if any representation or warranty in this Clause 9.1 ceases to be accurate and complete. 9.2 The Holdcos and Lion Capital agree and undertake to CEDC: 9.2.1 that at any time between Completion and the Change of Control Date no Affiliate of Lion Capital will acquire Control of any business whose principal operations are the wholesale production and/or distribution of spirits in the Russian Federation without the prior written consent of CEDC; provided always that nothing in this paragraph 9.2.1 shall prevent the acquisition of any non-Russian business that has operations in Russia, where such Russian operations do not represent the majority of that group’s activities; 9.2.2 that at any time between Completion and the Final Discharge Date, no Affiliate of Lion Capital will: (a) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any shares of CEDC Common Stock (except as contemplated herein); (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules promulgated under the Exchange Act) or consents to vote, or seek to advise or influence any Person with respect to the voting of, any shares of CEDC Common Stock; (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring, holding or disposing of any shares of CEDC Common Stock; (d) otherwise act, alone or in concert with others, to seek to control or change the management, board of directors, governing instruments, policies or affairs of CEDC; (e) disclose any intention, plan or arrangement inconsistent with the foregoing; or (f) advise, assist or encourage any other Person in connection with any of the foregoing. 9.3 Lion Capital agrees and undertakes to CEDC to maintain Control of the Holdcos at all times between Completion and the Final Discharge Date.

Issues of securities. 9.1 Each of the Holdcos warrants, represents and undertakes to CEDC: 9.1.1 it is an “accredited investor” within the definition of such term set out in Rule 501(a) of Regulation D under the Securities Act; 9.1.2 it is acquiring the Substitution Stock for its own account for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act; 9.1.3 it understands, acknowledges and agrees that: (a) on delivery, the Substitution Stock will not have been registered under the Securities Act; (b) the delivery of Substitution Stock is intended as a transaction qualifying under Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder; (c) the Substitution Stock may not be transferred or resold except pursuant to: (i) an effective registration statement under the Securities Act covering such proposed transfer or resale and where such transfer or resale is made in accordance with such registration statement; or (1) a transfer or resale that is eligible under Rule 144 and is made pursuant thereto; or (2) a transaction exempt from registration under the Securities Act; and which, in each case, is otherwise made in accordance with applicable securities laws and does not adversely affect CEDC’s ability to issue the Substitution Stock through an exemption from registration under the Securities Act, and: (A) in the event of a proposed transfer or resale pursuant to this Clause 9.1.3(c)(ii) the transferor/seller provides: (1) written notice to CEDC of its intention to transfer or resell any shares of CEDC Common Stock, including a reasonably detailed statement of the circumstances surrounding the proposed transfer or resale, no later than five Business Days prior to effecting such transfer or resale; and (2) CEDC with a legal opinion from independent, internationally recognised legal counsel experienced in such matters, which legal opinion shall be in customary form reasonably acceptable to CEDC and shall state that such transfer or resale is eligible under Rule 144 or is made in a transaction exempt from registration under the Securities Act and, in each case, is made in a transaction exempt from registration under the Securities Act and, in each case, is otherwise made in accordance with applicable securities laws, provided that in the case of any transfer or resale made pursuant to Rule 144, the transferor/seller may provide such notice and legal opinion in respect of all of the transfers or resales proposed to be made within the six (6) month period following the date of such notice and legal opinion; and (B) only with respect to any proposed transfer or resale of any CEDC Common Stock made pursuant to this Clause 9.1.3(c)(ii), the transferor and the transferee in any such transfer or resale as a condition precedent thereto shall have provided to CEDC such factual representations, warranties and undertakings as CEDC may reasonably request to ensure that such sale, transfer or disposition does not adversely affect CEDC’s ability to issue the Substitution Stock through an exemption from registration under the Securities Act); (d) the Substitution Stock will be endorsed with the following legends: (i) “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN OFFERED AND SOLD TO ACCREDITED INVESTORS (AS DEFINED IN REGULATION D UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION D PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS WITH REGARD TO THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO CERTAIN ADDITIONAL RESTRICTIONS ON TRANSFER AND OTHER MATTERS AS SET OUT IN THAT CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED [•—], 2009 AMONG CENTRAL EUROPEAN DISTRIBUTION CORPORATION, LION/RALLY CAYMAN 4 AND LION/RALLY CAYMAN 5, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY, AND MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH.”; and (ii) any other legend required to be placed thereon pursuant to the Registration Rights Agreement and applicable law; (e) Notwithstanding Clause 9.1.3(d) above, CEDC agrees that, upon request of the relevant Holdco, and receipt of appropriate instructions for delivery of shares in book-entry form, the Substitution Stock shall not be issued in physical form or bear a legend solely because such Holdco has advised CEDC that it will sell such shares in a transaction that is registered under the Securities Act pursuant to a registration statement. If the relevant Holdco determines that it will not sell all shares held by it pursuant to a registration statement, it shall cooperate with CEDC to enable CEDC to issue such shares of Substitution Stock in certificated physical form, with legends, as provided for in Clause 9.1.3(d). Each Holdco shall not sell any Substitution Stock except in compliance with the requirements of the Securities Act, which requirements include the prospectus delivery requirements, and in compliance with the legends set forth in Clause 9.1.3(d) above as if such legends were set forth on a physical certificate representing such shares; 9.1.4 it did not learn of the investment in the Substitution Stock by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media, or broadcast over television or radio; or (ii) any seminar or meeting to which the Holdcos were invited by any of the foregoing means of communications; 9.1.5 it has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby, and understands that the purchase of the Substitution Stock involves substantial risk; 9.1.6 it has had an opportunity to receive all additional information related to CEDC requested by it and to ask questions of and receive answers from CEDC regarding the terms and conditions of the issuance and sale of the Substitution Stock and the business, properties, prospects and financial condition of CEDC and to obtain any additional information requested and has received and considered all information it deems relevant to make an informed decision to purchase the Substitution Stock; and 9.1.7 it acknowledges that CEDC is relying on the representations, warranties and agreements contained in this Clause 9.1 in delivering the Substitution Stock to the Holdcos and would not engage in such transaction in the absence of the representations, warranties and agreements contained herein. Each Holdco further acknowledges and agrees that any obligation of CEDC herein to deliver the Substitution Stock to the Holdcos is conditioned upon the accuracy of the representations, warranties and agreements in this Clause 9.1 and each Holdco agrees to notify CEDC promptly in writing if any representation or warranty in this Clause 9.1 ceases to be accurate and complete. 9.2 The Holdcos and Lion Capital agree and undertake to CEDC: 9.2.1 that at any time between Completion and the Change of Control Date no Affiliate of Lion Capital will acquire Control of any business whose principal operations are the wholesale production and/or distribution of spirits in the Russian Federation without the prior written consent of CEDC; provided always that nothing in this paragraph 9.2.1 shall prevent the acquisition of any non-Russian business that has operations in Russia, where such Russian operations do not represent the majority of that group’s activities; 9.2.2 that at any time between Completion and the Final Discharge Date, no Affiliate of Lion Capital will: (a) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any shares of CEDC Common Stock (except as contemplated herein); (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules promulgated under the Exchange Act) or consents to vote, or seek to advise or influence any Person with respect to the voting of, any shares of CEDC Common Stock; (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring, holding or disposing of any shares of CEDC Common Stock; (d) otherwise act, alone or in concert with others, to seek to control or change the management, board of directors, governing instruments, policies or affairs of CEDC; (e) disclose any intention, plan or arrangement inconsistent with the foregoing; or (f) advise, assist or encourage any other Person in connection with any of the foregoing. 9.3 Lion Capital agrees and undertakes to CEDC to maintain Control of the Holdcos at all times between Completion and the Final Discharge Date.