SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

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Exhibit 10.2

SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of October 13, 2011, (the “Effective Date”) by and between Central European Distribution Corporation, Inc., a Delaware corporation (the “Company”), and Xxxxxxxxxxx Xxxxxxxxxx (the “Officer”).

WHEREAS, the Company and the Officer previously entered into an amended and restated employment agreement dated January 1, 2010 (the “First Amended and Restated Employment Agreement”);

WHEREAS, the First Amended and Restated Employment Agreement amended and restated the Employment Agreement between the Company and the Officer dated June 11, 2008 (the “Prior Employment Agreement”);

WHEREAS, the Prior Employment Agreement amended the agreement between the Company and the Officer dated January 1, 2005 (the “2005 Employment Agreement”), which governed the terms and conditions of the Officer’s employment with the Company during the term of the Prior Employment Agreement, including services provided by the Officer to Xxxxx Agri International Poland Sp. z o.o. (the “Subsidiary”); and

WHEREAS, the Company desires to continue to employ the Officer, and the Officer desires to continue to be employed by the Company, on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1.	Employment.

On the terms and conditions set forth in this Agreement, the Company agrees to employ the Officer and the Officer agrees to be employed by the Company for the term set forth in Section 2 hereof and in the position and with the duties set forth in Section 3 hereof.

Term.

The term of employment of the Officer by the Company as provided in Section 1 hereof shall commence as of the Effective Date and continue for an initial period of three years, and shall be automatically extended for one year on each anniversary of the Effective Date (the initial period and any extensions thereof, the “Term”) unless and until either party delivers written notice of its or his intention not to extend the Term to the other party 90 days before such extension would be effectuated.

3.	Position and Duties.

The Officer shall serve as Chief Financial Officer of the Company. The Officer shall devote the Officer’s reasonable best efforts and substantially full business time to the performance of the Officer’s duties and the advancement of the business and affairs of the Company and the Subsidiary. The Officer acknowledges that it is the intent of the Company that his primary responsibilities shall be in connection with the business of the Subsidiary.

4.	Place of Performance.

In connection with the Officer’s employment by the Company, the Officer shall be based at the principal executive office of the Subsidiary, which the Company retains the right to change in its discretion, or such other place as the Company and the Officer mutually agree, except for required travel on Company business.

5.	Compensation.

5(a)

Base Salary. The parties agree and acknowledge that from July 1, 2011, the Officer shall be paid base salary in the amount of Four Hundred Ten USD ($410,000) gross per annum by the Company and Subsidiary in the aggregate (the aggregate annual base salary in effect from time to time, the “Base Salary”). Any portion of the Base Salary may be paid by the Subsidiary as determined by the Company in the Company’s sole discretion.

If the Officer’s Base Salary is increased, the increased amount shall be the Base Salary for the remainder of the employment term hereunder, except that the Company may reduce the Officer’s Base Salary at any time as part of a general salary reduction applied to all employees of the Company with annual salaries in excess of Sixty Thousand USD ($60,000) (the “Senior Executive Group”) in which case the Officer’s reduced Base Salary shall be the Base Salary for the remainder of the employment term hereunder. Any such reduction in the Officer’s Base Salary shall be no more than the lesser of the median percentage salary reduction applied to the Senior Executive Group or twenty percent (20%). The Base Salary shall be payable weekly or in such other installments as shall be consistent with the Company’s payroll procedures.

5(b)

Bonus. During each fiscal year of the Term, the Officer shall be entitled to receive 16.1% of the aggregate cash bonus payable under the Company’s Executive Bonus Plan, the amount and rules of payout of such aggregate cash bonus being established annually by the Board of Directors. Such bonus shall be paid no later than March 15 of the calendar year following the calendar year in which the services relating to such bonus are performed by the Officer.

5(c)

Equity Awards. The Officer shall be eligible to participate in the Company’s equity incentive plan as in effect from time to time.

5(d)

Specific Benefits. The Officer shall receive the following fringe benefits, subject to the Company’s policies in effect from time to time:

(d)(i)

Company Car

(d)(ii)

Health plan – Medicover card

5(e)

Other Benefits.

The Officer also shall be entitled to participate in such other benefit plans and to receive such bonuses, incentive compensation and fringe benefits as may be granted or established by the Company and/or Subsidiary from time to time. The Company and Subsidiary each reserve the right to amend, modify or terminate any compensation or benefit plans, policies or agreements at any time and from time to time in the Company’s or Subsidiary’s discretion, including, without limitation, changing carriers or effecting modifications in insurance coverage for the Officer.

5(f)

Vacation: Holidays. The Officer shall be entitled to all public holidays observed by the Subsidiary, and shall be entitled to thirty (30) vacation days per year, in accordance with the applicable vacation policies for senior executives of the Company and applicable law, which shall be taken at a reasonable time or times.

5(g)

Cost-of-Living Adjustments. If the spot foreign exchange of PLN to USD will drop for over a period of sixty (60) days below 2.50 then the Compensation Committee shall determine, in its discretion, if an adjustment to all payments made to the Officer under this Agreement in cash or a cash equivalent (including, without limitation, any base salary, bonus or reimbursement, and any corresponding payment, if any, due hereunder following the Officer’s termination of employment with the Company and the Subsidiary) shall be subject to increase or decrease pursuant to a cost-of-living adjustment (the “COLA”).

5(h)

Withholding Taxes and Other Deductions. The Company and the Subsidiary shall withhold from any payments to the Officer, or with respect to any benefits provided under this Agreement, any applicable taxes or other deductions as the Company or Subsidiary determine must be withheld pursuant to applicable law or payroll policies.

6.	Expenses.

6(a)

The Company or the Subsidiary shall reimburse the Officer for all reasonable expenses incurred by the Officer (in accordance with the policies and procedures in effect for senior executives of the Company and the Subsidiary) in connection with the Officer’s services under this Agreement. The Officer shall account to the Company or the Subsidiary, as the case may be, for such expenses in accordance with policies and procedures established by the Company or the Subsidiary.

6(b)

All reimbursements and in-kind benefits provided under the Agreement which are subject to Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the Officer’s lifetime (or during a shorter period of time specified in this agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

7.	Confidential Information.

7(a)

The Officer covenants and agrees that the Officer will not ever, without the prior written consent of the Board or a person authorized by the Board, publish or disclose to any unaffiliated third party or use for the Officer’s personal benefit or advantage any confidential information with respect to any of the Company’s or Subsidiary’s products, services, subscribers, suppliers, marketing techniques, methods or future plans disclosed to the Officer as a result of the Officer’s employment with the Company, to the extent such information has heretofore or shall hereafter remain confidential (except for unauthorized disclosures) and except as otherwise ordered by a court of competent jurisdiction.

7(b)

The Officer acknowledges that the restrictions contained in Section 7 (a) hereof are reasonable and necessary, in view of the nature of the Company’s business, in order to protect the legitimate interests of the Company, and that any violation thereof would result in irreparable injury to the Company. Therefore, the Officer agrees that in the event of a breach or threatened breach by the Officer of the provisions of Section 7(a) hereof, the Company shall be entitled to obtain from any court of competent jurisdiction, preliminary or permanent injunctive relief restraining the Officer from disclosing or using any such confidential information. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies available to it for such breach or threatened breach, including, without limitation, recovery of damages from the Officer.

7(c)

The Officer shall deliver promptly to the Company on termination of employment, or at any other time the Company may so request, all confidential memoranda, notes, records, reports and other documents (and all copies thereof) relating to the Company’s and its affiliates’ businesses which the Officer obtained while employed by, or otherwise serving or acting on behalf of, the Company or which the Officer may then possess or have under his or her control.

8.	Termination of Employment.

8(a)

Death. The Officer’s employment hereunder shall terminate upon the Officer’s death.

8(b)

By the Company. The Company may terminate the Officer’s employment hereunder under the following circumstances.

(b)(i)

If the Officer shall have been unable to perform all of the Officer’s duties hereunder by reason of illness, physical or mental disability or other similar incapacity, which inability shall continue for more than six (6) consecutive months, the Company may terminate the Officer’s employment hereunder.

(b)(ii)

The Company may terminate the Officer’s employment hereunder for “Cause.” For purposes of this Agreement, “Cause” shall mean any of the following:

(ii)(A)

the willful refusal by the Officer to follow a written order of the Chairman of the Board or the Board of Directors, in so far as the request does not breach any federal, state or local law;

(ii)(B)

the Officer’s willful engagement in conduct materially injurious to the Company;

(ii)(C)

dishonesty of a material nature that relates to the performance of the Officer’s duties under this Agreement;

(ii)(D)

the Officer’s conviction of any felony involving moral turpitude; or,

(ii)(E)

the Officer’s continued failure to perform his duties under this Agreement (except due to the Officer’s incapacity as a result of physical or mental illness) to the satisfaction of the Board of Directors of the Company for a period of at least forty-five (45) consecutive days after written notice from the Board of Directors is delivered to the Officer specifically identifying the manner in which the Officer has failed to perform his duties.

In addition, the Company may terminate the Officer’s employment for “Cause” if the normal business operations of the Company are rendered commercially impractical as a consequence of an act of God, accident, fire, labor controversy, riot or civil commotion, act of public enemy, law, enactment, rule, order, or any act of government or governmental instrumentality, failure of facilities, or other cause of a similar or dissimilar nature that is not reasonably within the control of the Company or which the Company could not, by reasonable diligence, have avoided.

8(c)

By the Officer for Good Reason. The Officer may terminate the Officer’s employment hereunder for “Good Reason.” For purposes of this Agreement, “Good Reason” shall mean (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement, and the continued failure of the Company to cure such default within thirty (30) days after written demand for performance has been given to the Company by the Officer, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or provisions; or (ii) a material reduction in the scope of the Officer’s responsibilities and duties for the Company or the Subsidiary.

8(d)

Either the Company or the Officer may terminate the Officer’s employment for any reason, other than the reasons specified in Sections 8(b) or (c), upon written notice to the other party as specified in Section 8(e)(iii).

8(e)

Notice of Termination.

(e)(i)

Any termination of the Officer’s employment by the Company or the Officer (other than pursuant to Section 8(a) hereof) shall be communicated by written “Notice of Termination” to the other party hereto in accordance with Section 10 hereof. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the Date of Termination, the specific termination provision in this Agreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Officer’s employment under the provision so indicated.

(e)(ii)

For any termination of the Officer’s employment by the Company pursuant to Section 8(b)(i), the Company may give Notice of Termination at any time after the six (6) consecutive month period in Section 8(b)(i) has ended.

(e)(iii)

For any termination of the Officer’s employment by either the Company or the Officer pursuant to Section 8(d), twelve (12) months notice must be provided in a Notice of Termination.

(e)(iv)

Notwithstanding any other provision of this Agreement to the contrary, if the Officer’s employment is terminated under Section 8(c) or Section 8(d), the Company, in its sole discretion, may accelerate the Date of Termination that is specified in the Notice of Termination, in which case (i) if the Officer terminated his employment with the Company pursuant to Section 8(c), or if the Company terminated the Officer’s employment pursuant to Section 8(d) without Cause, the Officer shall receive compensation and benefits pursuant to Section 9(e) without further payment with respect to the shortened notice period, and (ii) if the Officer terminated his employment pursuant to Section 8(d) without Good Reason, he shall receive from the Company, in accordance with the Company’s regularly scheduled payroll, pay in lieu of notice for the portion of the six (6) month notice period remaining after the accelerated Date of Termination.

(e)(v)

It is understood by both the Company and the Officer that termination of this agreement terminates by association any employment agreement with any and all of the Company’s subsidiaries.

8(f)

Date of Termination. For purposes of this Agreement, the “Date of Termination” shall mean (i) if the Officer’s employment is terminated by the Officer’s death, the date of the Officer’s death; (ii) if the Officer’s employment is terminated pursuant to Section 8(b)(i) hereof, thirty (30) days after Notice of Termination, provided that the Officer shall not have returned to the performance of the Officer’s duties on a full-time basis during such thirty (30) day period; (iii) if the Officer’s employment is terminated for any other reason, the date specified as the Date of Termination in the Notice of Termination. Notwithstanding the previous sentence, in the case of a termination pursuant to Section 8(b)(ii), Section 8(c) or Section 8(d), if payments to the Officer may be subject to Section 409A of the Code, the Date of Termination shall be no later than the date the Officer experiences a “separation from service” as such term is defined under Section 409A of the Code.

9.	Compensation Upon Termination.

9(a)

If the Officer’s employment is terminated by the Officer’s death, the Company shall pay all Accrued Obligations to the Officer’s estate, or as may be directed by the legal representatives of such estate, and the Company shall have no further obligations to the Officer under this Agreement. “Accrued Obligations” shall mean the following: (1) the lump sum amount of any Base Salary accrued but unpaid through the Date of Termination, (2) the lump sum amount of any earned but unpaid annual bonus for periods with respect to which the performance period to earn such bonus has closed under the Executive Bonus plan, (3) the lump sum amount of any accrued but unused paid time off or sick pay in accordance with Company policy and applicable law, (4) the lump sum of any business expenses incurred which have been properly submitted for reimbursement in accordance with Company and/or Subsidiary policy, but not reimbursed prior to the Date of Termination, (5) any other compensation or benefits which may be owed or provided to or in respect of the Officer, paid or provided in accordance with the terms and provisions of the applicable benefit plans or programs of the Company and/or Subsidiary, and (6) less any advances made to the Officer. For all purposes of this Agreement, the cash payments payable to, or with respect to, the Officer under clauses (1), (2) and (3) of the definition of Accrued Obligations shall be paid within ten (10) days of the Date of Termination or, if earlier, in accordance with applicable law.

9(b)

If the Company terminates the Officer’s employment due to a disability as provided in Section 8(b)(i) hereof, the Officer shall be paid all Accrued Obligations and the Company shall have no further obligations to the Officer under this Agreement.

9(c)

If the Company terminates the Officer’s employment for Cause as provided in Section 8(b)(ii) hereof, the Company shall pay the Officer all Accrued Obligations and the Company shall have no further obligations to the Officer under this Agreement.

9(d)

If the Officer terminates the Officer’s employment other than for Good Reason, the Company shall pay to the Officer all Accrued Obligations and the Company shall have no further obligations to the Officer under this Agreement.

9(e)

If the Company terminates the Officer’s employment other than for Cause, disability or death, or if the Officer terminates the Officer’s employment for Good Reason as provided in Section 8(c) hereof, and such termination does not constitute a Qualifying CIC Termination, the Company shall: (i) pay or provide to the Officer all Accrued Obligations; and (ii) pay the Officer in a single lump sum payment an amount equal to 18 months of the Base Salary, bonuses and incentive compensation that would have been payable to the Officer under Sections 5(a), (b) and (c) (without duplication of payments made to the Officer during the applicable notice period), and pay the Officer any other amounts and provide to the Officer benefits that would have been received by him under Section 5(d) hereof during the 18-month period following the Officer’s Date of Termination, at the time such amounts or benefits would otherwise have been due in accordance with the Company’s normal payroll practices, and the Company shall have no further obligations to the Officer under this Agreement. For purposes of Section 9(e)(ii), the Officer will be considered to be entitled to (I) an annual cash bonus equal to the average dollar bonus earned by the Officer during the Company’s two fiscal years immediately prior to Officer’s Date of Termination and (II) annual incentive compensation equal to the Value of all equity awards granted in the prior calendar year. The “Value” of an equity award shall be equal to the prior calendar year equity award grant expense calculated for US GAAP purposes for such grant awarded to the Officer.

9(f)

Mitigation. The Officer shall not be required to mitigate amounts payable pursuant to Section 9(a) through Section 9(e) hereof by seeking other employment, provided, however, that any sums earned by the Officer pursuant to any subsequent employment shall be offset against any remaining obligation the Company may have to pay by virtue of termination under this Agreement and, further provided that, the Company’s obligation to continue to provide the Officer with benefits pursuant to Section 9(e), above, shall cease if the Officer becomes eligible to participate in benefit plans or otherwise receive employer-provided benefits substantially similar to those provided for in this Agreement as a result of the Officer’s employment during the period that the Officer is entitled to such fringe benefits. The Officer must provide prompt notice to the Company upon acceptance of any subsequent employment that may impose an offset under this Section 9(f).

9(g)

Change in Control.

(g)(i)

Qualifying CIC Termination: If, during the CIC Provisions Effective Period, the Officer is terminated under conditions constituting a Qualifying CIC Termination, the Company shall:

(i)(A)

pay or provide to the Officer, as the case may be, the Accrued Obligations;

(i)(B)

pay to the Officer a lump sum amount equal to two (2) multiplied by the sum of the following: (1) an amount equal to the Officer’s Base Salary at the rate in effect immediately prior to such Qualifying CIC Termination or, if higher, as in effect immediately prior to the Change in Control, (2) an amount equal to the average of the annual bonuses paid or payable for the two prior fiscal years under the Executive Bonus plan, and (3) an amount equal to the Value of all equity awards granted in the prior calendar year. The “Value” of an equity award shall be equal to the prior calendar year equity award grant expense calculated for US GAAP purposes for such grant awarded to the Officer.

(i)(C)

If the Officer is, on the Date of Termination, covered by a group health plan as defined in Section 4980B of the Code, and the Company would be required to provide continued health care coverage pursuant to Section 4980B of the Code for the Officer, and, where applicable, the Officer’s spouse and dependents, then the Company shall provide for the direct payment to the carrier for the premium costs for such continued health care coverage for the Officer, and, where applicable, the Officer’s spouse and dependents, under the Company’s group medical benefit plan, for twelve (12) months following the Qualifying CIC Termination.

(i)(D)

Notwithstanding anything in this Agreement to the contrary, if the Officer is eligible for any payment under Section 9(e) of this Agreement as well as under this Section 9(g)(i), then the Officer shall be paid only amounts under this Section 9(g)(i) and any potential payments under Section 9(e) shall be disregarded.

(g)(ii)

Vesting Upon a Change in Control: Immediately upon a Change in Control, any equity awards subject to vesting that have been granted to the Officer under the Company’s equity incentive plans and that are not fully vested shall become fully vested and, in the case of stock options, shall become immediately exercisable, and the Officer shall be entitled, in the case of such stock options, to exercise such stock options until the earlier of the expiration of their original full term or one year from the Date of Termination (in each case, without regard to any earlier termination otherwise applicable in the event of termination of employment, and to the extent permitted by Section 409A of the Code).

(g)(iii)

“Change in Control” shall mean:

(iii)(A)

the acquisition, directly or indirectly, by any “person” or “group” (as those terms are defined in Sections 3(a)(9), 13(d), and 14(d) of the Exchange Act and the rules thereunder) of “beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors (“voting securities”) of the Company that represent 30% or more of the combined voting power of the Company’s then outstanding voting securities, other than (A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or (B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or (C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); provided, however, that neither of the following events shall constitute an “acquisition” by any person or group for purposes of this clause (i): (x) a change in the voting power of the Company’s voting securities based on the relative trading values of the Company’s then outstanding securities as determined pursuant to the Company’s Certificate of Incorporation, or (y) an acquisition of the Company’s securities by the Company which, either alone or in combination only with the other event, causes the Company’s voting securities beneficially owned by a person or group to represent 30% or more of the combined voting power of the Company’s then outstanding voting securities; provided, further, however, that if a person or group shall become the beneficial owner of 30% or more of the combined voting power of the Company’s then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such ownership of additional voting securities shall constitute a Change in Control;

(iii)(B)

individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board;

(iii)(C)

the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets or (z) the acquisition of assets or stock of another entity, in each case, other than a transaction (A) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least 30% of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and (B) after which more than 30% of the members of the board of directors of the Successor Entity were members of the Incumbent Board at the time of the Board’s approval of the agreement providing for the transaction or other action of the Board approving the transaction, and (C) after which no person or group beneficially owns voting securities representing 30% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (C) as beneficially owning 30% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company and the other entity prior to the consummation of the transaction; or

(iii)(D)

a liquidation or dissolution of the Company.

For purposes of clause (A) of this definition of Change in Control, the calculation of voting power shall be made as if the date of the acquisition were a record date for a vote of the Company’s shareholders, and for purposes of clause (C) of this definition of Change in Control, the calculation of voting power shall be made as if the date of the consummation of the transaction were a record date for a vote of the Company’s shareholders.

(g)(iv)

“CIC Period” means the period beginning on the date an event that constitutes a Change in Control occurs and ending on the first anniversary of such date.

(g)(v)

“Qualifying CIC Termination” shall mean:

(v)(A)

during the CIC Period, the termination of the Officer’s employment by the Company without Cause or the termination of the Officer’s employment by the Officer for a CIC Good Reason; or

(v)(B)

the occurrence of the following: (1) prior to a Change in Control, the termination of the Officer’s employment by the Company without Cause or the termination of the Officer’s employment by the Officer for a CIC Good Reason, (2) the Officer reasonably demonstrates that such termination (or CIC Good Reason event) was the result of a third party who had indicated an intention or taken steps reasonably calculated to effect a Change in Control, and (3) a Change in Control involving such third party (or a party competing with such third party to effectuate a Change in Control) occurs within six (6) months from the date of such termination.

(g)(vi)

“CIC Good Reason” shall mean the continued failure of the Company to cure within thirty (30) days after written notice describing the nature of such continued failure has been given to the Company by the Officer within ninety (90) days of the occurrence of any of the following: (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement; (ii) a material reduction in the scope of the Officer’s responsibilities and duties for the Company or the Subsidiary; (iii) the relocation of Officer’s employment to a facility or a location more than thirty (30) miles from Officer’s then present location and more than thirty (30) miles from the Officer’s then present residence, without the Officer’s consent; or (iv) a material reduction (being defined as more than 20%) in the Officer’s Base Salary including, without limitation, any material reduction that is made pursuant to the last paragraph of Section 5(a).

(g)(vii)

Except as otherwise provided in this Section 9(g) and notwithstanding any provision of the Agreement to the contrary, this Section 9(g) and Section 21 shall be effective for the period commencing as of the Effective Date and ending on the fifth (5^th) anniversary of the Effective Date (such period, the “CIC Provisions Effective Period”); provided, however, that in each calendar year following 2011, the CIC Provisions Effective Period shall be automatically extended for an additional full year. This Section 9(g) and Section 21 shall terminate and be of no further force or effect prior to the expiration of the CIC Provisions Effective Period upon a termination of the Officer’s employment with the Company and the Subsidiary if such termination does not constitute a Qualifying CIC Termination. If the Officer’s termination of employment with the Company and the Subsidiary constitutes a Qualifying CIC Termination, this Section 9(g) and Section 21 shall remain effective until full payment of any and all amounts under Section 9(g)(i) and Section 21, and full provision of any and all benefits under Section 9(g)(i), has been made.

9(h)

Release. Notwithstanding any provision of this Agreement to the contrary, the Company’s obligations to the Officer pursuant to Section 9(e) or 9(g), as applicable, upon the Officer’s termination of employment shall be conditioned upon the Officer’s execution and the irrevocability of a release in substantially the form attached hereto as Exhibit A (the “Release”). All cash payments (other than any Accrued Amounts) pursuant to Section 9(e) or Section 9(g), as applicable, will be paid on the sixtieth (60th) day following the Date of Termination, provided that the Release becomes irrevocable by such sixtieth (60th) day. The Company shall provide the Release to the Officer within five days of the Officer’s Date of Termination.

10.	Notices.

All notices, demands, requests or other communications required or permitted to be given or made hereunder shall be in writing and shall be delivered, telecopied or mailed by first class registered or certified mail, postage prepaid, addressed as follows:

10(a) If to the Company:

Central European Distribution Corporation

xx. Xxxxxxxxxxx 000-000 Xxxxxx, Xxxxxx

Telecopier: 48 22 488 34 10

Attention: Xxxxx Xxxxxxxx

Vice President, Secretary and Director of Investor Relations or

Xxxxxxx X. Xxxxx

President

Xxxxxxxxx 00X

00-000 Xxxxxx (Xxxxxx)

10(b) If to the Officer:

Xxxxxxxxxxx Xxxxxxxxxx

[redacted]

Or to such other address as may be designated by either party in a notice to the other. Each notice, demand, request or other communication that shall be given or made in the manner described above shall be deemed sufficiently given or made for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, the answer back or the affidavit of messenger being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.

11.	Severability.

The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement, which shall remain in full force and effect.

12.	Survival.

It is the express intention and agreement of the parties hereto that the provisions of Section 7 hereof shall survive the termination of employment of the Officer. In addition, all obligations of the Company to make payments hereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.

13.	Assignment.

The rights and obligations of the parties to this Agreement shall not be assignable, except that the rights and obligations of the Company hereunder shall be assignable in connection with any subsequent merger, consolidation, sale of all substantially all of the assets of the Company or similar reorganization of a successor corporation. The Company shall be obligated, upon a Change in Control, to assign all obligations and rights under this Agreement to any successor in interest to the Company and to have such successor in interest assume such obligations and rights.

14.	Binding Effect.

Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and assigns.

15.	Amendment Waiver.

This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by the parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or privileges hereunder .

16.	Headings.

Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof. Any reference herein to a “Reserved” provision shall not have any meaning for purposes of interpreting the terms or provisions of this Agreement.

17.	Governing Law.

This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Delaware (but not including the choice of law rules thereof).

18.	Action of Behalf of the Subsidiary.

The Company is executing this Agreement also on behalf of its Subsidiary and agrees to cause the Subsidiary to fulfill its obligations hereunder, through the appointment and removal, if necessary, of members of the management board of the Subsidiary.

19.	Entire Agreement.

This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and it supersedes all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein, including the First Amended and Restated Employment Agreement, the Prior Employment Agreement and the 2005 Employment Agreement.

20.	Counterparts.

This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which shall be deemed to constitute one and the same instrument.

21.	Parachute Tax.

Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, award, benefit or distribution by the Company (or any of its affiliated entities) or by any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of the Officer (whether pursuant to the terms of this Agreement or otherwise) (each a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax laws, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), and if it shall also be determined that, by reducing the Payments to a present value (as calculated in accordance with Section 280G of the Code) that is one dollar less than the Safe Harbor Amount (as hereinafter defined), the Officer would receive a larger after-tax benefit from the Payments than if such reduction had not occurred, the Payments shall be reduced so as to have a present value that is one dollar less than the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments or benefits provided under Section 9(g)(i) before reducing the other payments under this Agreement or otherwise; thereafter any such reduction shall be made to other cash payments to which the Officer is entitled. For purposes of this Section 21, “Safe Harbor Amount” shall mean the greatest amount that could be paid to the Officer such that the receipt of Payments would not give rise to any Excise Tax. All determinations required to be made under this Section 21 shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Officer within fifteen (15) business days of the receipt of notice from the Officer that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company.

22.	Section 409A.

It is intended that this Agreement will comply with Section 409A of the Code, to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A of the Code, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. Notwithstanding any provision to the contrary in this Agreement, and except as otherwise provided in this Agreement, if a payment or benefit is to be paid upon the Officer’s Date of Termination or termination, then such payment shall be delayed until the Officer has experienced a “separation from service” (as such term is defined under Section 409A of the Code); provided, however, that if a payment or benefit is considered to be a deferral of compensation subject to Section 409A of the Code and the Officer is deemed to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provisions of any benefit that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code, such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Officer’s “separation from service” (as such term is defined in U.S. Treasury Regulations issued under Section 409A of the Code), or (ii) the date of the Officer’s death (the “Delay Period”). As soon as practicable following the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 22 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Officer in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. Notwithstanding the foregoing, to the extent that the foregoing applies to the provision of any ongoing welfare benefits to the Officer that would not be required to be delayed if the premiums therefore were paid by the Officer, the Officer shall pay the full costs of premiums for such welfare benefits during the Delay Period and the Company shall pay the Officer an amount equal to the amount of such premiums paid by the Officer during the Delay Period within thirty (30) days after the conclusion of such Delay Period.

IN WITNESS WHEREOF, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove written.


CENTRAL EUROPEAN DISTRIBUTION CORPORATION

By:		/s/ Xxxxxxx X. Xxxxx
Name:		Xxxxxxx X. Xxxxx
Title:		Chairman, President and CEO


/s/ Xxxxxxxxxxx Xxxxxxxxxx
Name:		Xxxxxxxxxxx Xxxxxxxxxx
Title:		The Officer

EXHIBIT A

TO THE

SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

BETWEEN

CENTRAL EUROPEAN DISTRIBUTION CORPORATION, INC.

AND

XXXXXXXXXXX XXXXXXXXXX

GENERAL RELEASE AND WAIVER AGREEMENT¹

This General Release and Waiver Agreement (the “Agreement”) is made as of , by and between Xxxxxxxxxxx Xxxxxxxxxx (the “Officer”) and Central European Distribution Corporation, Inc., a Delaware corporation (together with all of its subsidiaries and affiliated entities, collectively hereinafter referred to as “Company”).

I. TERMINATION OF EMPLOYMENT

The parties acknowledge that the Officer terminated his employment with the Company effective [list date].

II. CONSIDERATION

As consideration for Officer’s entering into and abiding by this Agreement, (i) the Company will pay and provide to the Officer the amounts and benefits specified in Section [9(e)] [9(g)(i) and (ii)] of the Second Amended and Restated Employment Agreement between Central European Distribution Corporation, Inc. and the Officer, dated as of [•], 2011 (all such amounts and benefits the “Aggregate Severance Payments”). The parties agree that the Aggregate Severance Payments are in excess of any payments or benefits to which Officer may otherwise be entitled from the Company and its subsidiaries and affiliated entities.

III. COMPLETE RELEASE

Officer, for Officer and Officer’s predecessors, successors, assigns, and heirs, hereby discharges and releases Company and, as applicable, each of the Company’s predecessors, representatives, the Company’s present or former officers, directors, employees, stockholders, affiliates, insurers, successors and assigns, from all claims or demands Officer may have based on Officer’s employment with Company or the termination of that employment. This includes a release of any rights or claims Officer may have based on any facts or events, whether known or unknown by the Officer that occurred on or before the effective date of this Agreement or events that are contemplated by this Agreement, including, without limitation, a release of any rights or claims Officer may have based on (i) the following United States laws: the Civil Rights Acts of 1964, as amended; the Age Discrimination in Employment Act of 1967, as amended; the Americans with Disabilities Act of 1990; the Rehabilitation Act of 1973; the Equal Pay Act of 1963; or the Employee Retirement Income Security Act of 1974, as amended; (ii) applicable laws of the states of the United States concerning wages, employment and discharge; (iii) claims arising out of any legal restrictions of the right to terminate Officer such as wrongful or unlawful discharge or related causes of action; (iv) intentional infliction of emotional distress or any other tortious conduct; and/or (v) violations of any contract or promise express or implied. No reference to the aforementioned causes of action or claims is intended to limit the scope of this Agreement. Notwithstanding the foregoing, the Officer does not hereby release any rights or claims with respect to the period following the effective date of this Agreement.

¹	Provisions of Agreement should be modified to comply with legal requirements and customs under non-U.S. law.

IV. PERIOD FOR REVIEW AND CONSIDERATION OF AGREEMENT

Officer confirms that Officer is over the age of 40 and has been given twenty-one (21) days [or forty-five (45) days if applicable under ADEA] to review and consider this Agreement before signing it.

[If forty-five (45) day period applies, additional information will be attached as required by ADEA.]

V. ENCOURAGEMENT TO CONSULT WITH AN ATTORNEY

Officer is encouraged, at Officer’s own expense, to consult with an attorney before signing this Agreement.

VI. OFFICER’S RIGHT TO REVOKE AGREEMENT

If this Agreement is signed by Officer and returned to Company within the time specified in Section IV, Officer may revoke this Agreement within seven (7) calendar days of the date of the Officer’s signature. Revocation can be made by delivering a written notice of revocation to the Company. For this revocation to be effective, written notice must be received no later than the close of business on the seventh (7th) calendar day (or next business day thereafter) after the Officer signs this Agreement. If the Officer revokes this Agreement, it shall not be effective or enforceable and Officer will not receive the payments described in Section II. Notices for the purposes of this paragraph shall be effective if delivered personally, or by certified mail to the following address (or such other address as Officer shall notify Company, or Company shall notify Officer (as the case may be), in each case in writing):

VII. SEVERABILITY AND JUDICIAL RESTATEMENT

Officer and Company agree that the provisions of this Agreement are severable and divisible. In the event any portion of this Agreement is determined to be illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

VIII. TAXES

Officer is responsible for any tax liability associated with payments provided under this Agreement. Company has the right to withhold taxes from such payments to the extent required by law.

IX. MISCELLANEOUS

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws thereunder.

The captions of this Agreement are not part of the provisions hereof and shall not have any force or effect.

This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives.

Nothing contained in this Agreement is intended to be, or shall be construed to be, an admission of any liability by any party or an admission of the existence of any facts upon which liability could be based.

Officer acknowledges and represents that Officer has voluntarily executed this Agreement.

This Agreement shall not be assignable, except that in the event of the death of Officer while amounts or benefits are still due hereunder, any remaining payments due as described in Section II hereof shall be paid to Officer’s estate.

X. EFFECTIVE DATE OF AGREEMENT

The effective date of this Agreement shall be seven (7) calendar days after the date this Agreement is signed and dated by Officer. If the Agreement is not dated by Officer then, in that event, the effective date of this Agreement shall be seven (7) calendar days after receipt of the signed Agreement by Company.

PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO THE DATE OF THIS AGREEMENT INCLUDING THOSE PURSUANT TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED, AND OTHER LAWS PROHIBITING DISCRIMINATION IN EMPLOYMENT. OFFICER ACKNOWLEDGES THAT OFFICER HAS READ THIS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT.


CENTRAL EUROPEAN DISTRIBUTION CORPORATION, INC.

By:
Date:

Xxxxxxxxxxx Xxxxxxxxxx
Date:

Xxxxxxxxxxx Xxxxxxxxxx

Central European Distribution Corporation, Inc.

[Officer’s Address]

[Company’s Address]

Attention:

[Company Representative]