Exhibit 2.1
CONTRIBUTION AGREEMENT
AMONG
ESTATE OF XXXXXXX X. XXXXX
XXXXXXX X. XXXXX
XXXXXXX X. XXXXX STOCK TRUST
XXXXXXX XXXXXXXX
AND
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
DATED NOVEMBER 28, 1997
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement"), is made as of the 28th day
of November 1997, by and among Estate of Xxxxxxx X. Xxxxx ("Xxxxx Estate"), and
Xxxxxxx X. Xxxxx ("X. Xxxxx"), resident at 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx 00000, Xxxxxxx X. Xxxxx Stock Trust, a trust organized under the laws of
Florida ("Xxxxx Trust"), Xxxxxxx Xxxxxxxx, resident at 0000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 ("X. Xxxxxxxx") and Central European Distribution
Corporation, a Delaware corporation ("CEDC"). Xxxxx Estate, X. Xxxxx, Xxxxx
Trust and X. Xxxxxxxx shall hereinafter be referred to as the "Shareholders."
WITNESSETH
WHEREAS, 1,110 shares of common stock, par value 50 Polish zloty per share
(the "Xxxxx Agri Common Stock"), of Xxxxx Agri International Poland Sp. z o.o.,
a Polish limited liability company, ("Xxxxx Agri") have been issued;
WHEREAS, there is no other class of capital stock of Xxxxx Agri issued.
WHEREAS, the only shares of capital stock of Xxxxx Agri which have voting
rights are the shares of Xxxxx Agri Common Stock.
WHEREAS, Xxxxx Estate owns 56 shares of the Xxxxx Agri Common Stock, X.
Xxxxx owns 370 shares of the Xxxxx Agri Common Stock, Xxxxx Trust owns 314
shares of the Xxxxx Agri Common Stock and X. Xxxxxxxx owns 370 shares of the
Xxxxx Agri Common Stock.
WHEREAS, the Shareholders desire to contribute all of the Xxxxx Agri Common
Stock owned by them to CEDC, upon the terms and conditions and in exchange for
the consideration herein specified in a tax-free exchange qualifying under
Section 351 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth, and of other good and valuable consideration, the
parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
THE CONTRIBUTION
Each of the Shareholders hereby agrees to assign, transfer, and convey
to CEDC at the Closing, hereinafter identified, for the consideration set forth
in accordance with the provisions of Article II, all of the rights, title and
interest in and to the Xxxxx Agri Common Stock owned by such shareholder. At
the Closing, each of the Shareholders shall execute a notice to Xxxxx Agri
informing Xxxxx Agri of the transfer of ownership of the Xxxxx Agri Common Stock
and request Xxxxx Agri to take all steps required under applicable law to
reflect such change of ownership.
ARTICLE II
TERMS OF THE CONTRIBUTION
As consideration for the contribution of shares of Xxxxx Agri Common
Stock to CEDC, the Shareholders shall receive 1,780,000 shares of common stock
par value $0.01 per share (the ("CEDC Common Stock"), of CEDC for all their
shares of Xxxxx Agri Common Stock so contributed.
ARTICLE III
PARTY AUTHORIZATIONS
Each of the Shareholders represents and warrants to CEDC and each of
the other Shareholders that such Shareholder has obtained, by means in
conformity with all applicable provisions of all applicable laws, the approval
of such Shareholder's execution and delivery of this Agreement and the
performance by such Shareholder of such Shareholder's obligations hereunder.
ARTICLE IV
CLOSING
The actual consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place on the date on which the last of the
parties hereto shall have executed this Agreement (the "Closing Date").
ARTICLE V
OBLIGATIONS AT THE CLOSING
5.1 SHAREHOLDERS' OBLIGATIONS. At the Closing, each of the Shareholders
shall deliver to CEDC:
1. If such Shareholder is not a natural person, a copy of certified
resolutions adopted by the governing body or such other authority of such
Shareholder authorizing or ratifying the execution and delivery of this
Agreement, and the performance by such Shareholder of its obligations hereunder.
2. An executed letter in the form of Exhibit A to Xxxxx Agri
informing Xxxxx Agri of the transfer of the shares of Xxxxx Agri Common Stock
and requesting that Xxxxx Agri take all steps required under applicable law to
reflect such change of ownership.
5.2 CEDC's OBLIGATIONS
1. At the Closing, CEDC shall issue CEDC Common Stock to the
Shareholders listed below in the following amounts:
90,780 shares Xxxxx Estate
592,740 shares X. Xxxxx
503,740 shares Xxxxx Trust
592,740 shares X. Xxxxxxxx
ARTICLE VI
FURTHER COVENANTS OF THE PARTIES
6.1 FURTHER ASSURANCES WITH RESPECT TO XXXXX AGRI COMMON STOCK. The
Shareholders and CEDC agree that, from time to time and without further
consideration, each of them shall execute and deliver such further documents and
take such other action as CEDC may require more effectively to transfer to and
vest in the CEDC all right and interest in the Xxxxx Agri Common Stock.
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6.2 FURTHER ASSURANCES WITH RESPECT TO CEDC's COMMON STOCK. The
Shareholders and CEDC agree that, from time to time and without further
consideration, each of them shall execute and deliver such further documents and
take such other action as the Shareholders may require to issue to and vest in
the Shareholders all right and interest in the shares of CEDC Common Stock
referenced in Section 5.2 above.
ARTICLE VII
TAX MATTERS
7.1 TAX FREE TRANSACTION. The Shareholders and CEDC intend that the
transfers described in Articles I and II, above, constitute a tax-free exchange
pursuant to Section 351 of the Internal Revenue Code of 1986, as amended.
7.2 Each of the Shareholders agrees to file with such shareholders'
federal income tax return for the taxable year in which the Closing occurs the
statement required by Treasury Regulations Section 1.351-3(a).
7.3 CEDC agrees to file with its federal income tax return for the taxable
year in which the Closing occurs the statement required by Treasury Regulations
Section 1.351-3(b).
ARTICLE VIII
EFFECTIVENESS AND ASSIGNABILITY OF AGREEMENT
This Agreement shall become effective when executed and delivered by
CEDC and each of the Shareholders, and shall be binding in all respects upon the
respective successors and permitted assigns of each of CEDC and the
Shareholders. No party hereto may assign this Agreement in whole or in part
without first obtaining the written consent of all other parties hereto.
ARTICLE IX
COMPLETENESS OF AGREEMENT
This Agreement and the Exhibit hereto represent the entire agreement
between CEDC and the Shareholders with respect to the subject matter hereof and
supersede all offers, proposals, statements, representations and agreements with
respect to the subject matter hereof. The Exhibit hereto is incorporated herein
by reference, and shall be deemed to be included in any reference to this
Agreement. This Agreement may not be amended except by action of CEDC and each
of the Shareholders hereto set forth in an instrument in writing signed on
behalf of CEDC and each of the Shareholders hereto.
ARTICLE X
CAPTIONS
The captions to the Articles and Sections contained in this Agreement are
for reference only, do not form a substantive part of this Agreement and shall
not restrict nor enlarge any substantive provision of this Agreement.
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ARTICLE XI
APPLICABLE LAW
This Agreement, and the Exhibit, and all other documents given in
connection herewith, shall be construed in accordance with the laws of the State
of Delaware, without regard to the principles of conflicts of laws.
ARTICLE XII
CHOICE OF FORUM; VENUE; SERVICE OF PROCESS
Any suit, action, or proceeding among any or all of the parties hereto
relating to this Agreement, to any document, instrument, or agreement delivered
pursuant hereto, referred to herein, or contemplated hereby, or in any other
manner arising out of or relating to the transactions contemplated by or
referenced in this Agreement, shall be commenced and maintained exclusively in
the Court of Chancery of the State of Delaware or, if that Court lacks
jurisdiction over the subject matter, in a state court of competent subject
matter jurisdiction sitting in New Castle County, Delaware. The parties hereto
hereby submit themselves unconditionally and irrevocably to the personal
jurisdiction of such courts. The parties hereto further agree that venue shall
be in New Castle County, Delaware. The parties hereto irrevocably waive any
objection to such personal jurisdiction or venue including, but not limited to,
the objection that any suit, action, or proceeding brought in Delaware, has been
brought in an inconvenient forum. The parties hereto irrevocably agree that
process issuing from such courts may be served on them, either personally or by
certified mail, return receipt requested, at the addresses on the books and
records of the Company; and further irrevocably waive any objection to service
of process made in such manner and at such addresses, including without
limitation any objection that service in such manner and at such addresses is
not authorized by the local or procedural laws of the State of Delaware.
ARTICLE XIII
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be considered an original but all of which shall constitute but one and
the same Agreement by and among CEDC and the Shareholders.
ARTICLE XIV
NO THIRD PARTY BENEFICIARY
This Agreement is intended to inure to the benefit of CEDC and the
Shareholders only; and no third party shall have any rights, express or implied,
by reason of this Agreement.
ARTICLE XV
UNILATERAL RIGHT TO WAIVE FAILURES OF OTHER PARTIES
15.1 WAIVER. CEDC or any of the Shareholders may:
a. Extend in writing the time for the performance of any of the
obligations herein contained to be performed for the benefit of such entity; and
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b. Waive in writing the failure in performance of any of the
conditions herein expressed for its benefit.
15.2 EFFECT OF WAIVER. No such waiver or extension shall be valid unless
in writing and signed by the entity granting the waiver or extension, and no
such waiver or extension shall be construed to excuse or mitigate any subsequent
breach or violation of this Agreement not specifically covered by such waiver.
ARTICLE XVI
SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement shall
not affect the other provisions hereof, and the Agreement shall be construed in
all respects as if such invalid or unenforceable provisions were omitted.
Furthermore, upon the request of CEDC or any of the Shareholders, CEDC and the
Shareholders shall add to this Agreement, in lieu of such invalid or
unenforceable provisions, provisions as similar in terms to such invalid or
unenforceable provisions as may be possible and legal, valid and enforceable.
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IN WITNESS WHEREOF, CEDC and the Shareholders have caused this Agreement to
be executed as of the day and year first above written.
CENTRAL EUROPEAN DISTRIBUTION
CORPORATION, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
ESTATE OF XXXXXXX X. XXXXX
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Personal Representative, and not
individually or in any other capacity
Xxxxxxx X. Xxxxx, individually
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------
XXXXXXX X. XXXXX STOCK TRUST,
a Florida trust
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee, and not individually or in
any other capacity
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Trustee, and not individually or in any
other capacity
Xxxxxxx Xxxxxxxx, individually
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
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EXHIBIT A
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LETTER TO XXXXX AGRI
November __, 1997
Xxxxx Agri International Poland Sp. z o.o.
xx. Xxxxxxxx 00
Warsaw
Acting pursuant to Article 187 of the Polish Commercial Code, I, the
undersigned, domiciled at _____________ [insert address], advise Xxxxx Agri
International Poland Sp. z o.o. with its registered office in Warsaw ("Company")
that all the Company shares held by me, i.e., _____________ [state number of
shares*] shares par value PLN 50 each, have been transferred to Central European
Distribution Corporation, a Delaware corporation whose executive offices are
located at 000 Xxxxx Xxxxx Xxxxxx, # 000, Xxxxxxxxxx, Xxxxxxxx 00000.
Under Article 188 of the Polish Commercial Code, I hereby direct a
request to the Management Board of the Company to update the Share Registry
appropriately and submit a revised list of shareholders to the appropriate
registration court. Furthermore, I request that the relevant notifications, as
required by law, should be provided to the appropriate authorities.
Very truly yours,
----------------------------
[signatures of stockholders]
* Shares held are as follows:
Estate of Xxxxxxx X. Xxxxx 56
Xxxxxxx X. Xxxxx 370
Xxxxxxx X. Xxxxx Trust 314
Xxxxxxx Xxxxxxxx 370
