Exhibit 10.11
CUSTODY AGREEMENT BETWEEN SELLING
SHAREHOLDERS AND CUSTODIAN
, 1998
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[Name of Custodian]
[Address]
Ladies and Gentlemen:
There are delivered to you herewith one or more certificates, in negotiable
and proper deliverable form (with signatures guaranteed by a national or state
bank or trust company or by a member firm of the New York or American Stock
Exchange and accompanied by a duly executed stock power or powers, in blank,
bearing the signature of the undersigned so guaranteed), representing no less
than the number of issued and outstanding shares of common stock, par value $.01
per share (the "Common Stock") of Central European Distribution Corporation, a
Delaware corporation (the "Company"), set forth below the signature of the
undersigned at the end of this letter. If applicable, the undersigned has also
delivered the following documents with the certificates: if acting as a trustee
or in any other fiduciary or representative capacity, duly certified copies of
each trust agreement, will, letters testamentary or other instrument pursuant to
which the undersigned is authorized to act as a Selling Shareholder (as
hereinafter defined). The undersigned agrees to deliver to the Attorneys-in-Fact
(as hereinafter defined) or to you such additional documentation as the
Attorneys-in-Fact, or any one of them, or the Company, or the Representative (as
hereinafter defined), or you, or any of their or your respective counsel, may
request to effectuate or confirm compliance with any of the provisions hereof or
of the Underwriting Agreement (as hereinafter defined), all of the foregoing to
be in form and substance satisfactory in all respects to the Attorneys-in-Fact
and you. These certificates are to be held by you as Custodian for the account
of the undersigned and are to be disposed of by you in accordance with this
Custody Agreement.
Concurrently with the execution and delivery of this Custody Agreement, the
undersigned has executed a power of attorney (the "Power of Attorney") to
Xxxxxxx X. Xxxxx and or their duly designated substitutes
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(individually, the "Attorney-in-Fact" and collectively, the "Attorneys-in-
Fact"), authorizing the Attorneys-in-Fact, or any one of them, to sell from the
number of shares represented by the certificate(s) deposited with you hereunder
that number of shares indicated below the signature of the undersigned at the
end of this letter, or such lesser number as the Attorneys-in-Fact, or any one
of them, may determine, and for that purpose to enter into and perform an
underwriting agreement (the "Underwriting Agreement"), among the Company,
certain shareholders of the Company, including the undersigned (collectively,
the "Selling Shareholders"), and (the "Representative"), on behalf
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of itself and as the representative of the other underwriters named in the
Underwriting Agreement (together with the Representative, the "Underwriters").
You are authorized and directed to hold the certificates deposited with you
hereunder in your custody, and on the Option Closing Date (as defined in the
Underwriting Agreement) you shall (i) take all necessary action to cause the
number of shares which are to be sold by the undersigned on such date to be
transferred on the books of the Company to such names as the Representative
shall have instructed you and to surrender the certificates representing such
shares to , as transfer agent for the Common Stock of the Company, in
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exchange for new certificates for such shares registered in such names and in
such denominations as the Representative shall have instructed you, (ii) upon
the instruction of the Attorneys-in-Fact, or any one of them, deliver such new
certificates to the Representative, for the accounts of the Underwriters,
against payment for such shares as specified in the Underwriting Agreement, and
(iii) give receipt for such payment, deposit the same to your account as
custodian, drain upon such accounts to pay such expenses as you may be
instructed to pay by the Attorneys-in-Fact, or any one of them, and, when
instructed by an Attorney-in-Fact to do so, remit to the undersigned the
balance, after deducting such expenses, of the amount received by you as payment
for such shares. With such remittance you shall also return to the undersigned
new certificates representing the number of shares of Common Stock, if any,
represented by the certificates deposited which are in excess of the number of
shares sold by the undersigned to the Underwriters.
If the Underwriting Agreement shall not be entered into prior to ,
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1998, or if it shall be terminated, or shall be prevented from becoming
effective pursuant to the provisions thereof, then, upon the written request of
the undersigned to you or when instructed by the Attorneys-in-Fact, or any one
of them, you are to return to the undersigned the certificates and stock powers
deposited with you hereunder.
Under the terms of the Power of Attorney the authority conferred thereby is
granted, made and conferred subject to and in consideration of the interests of
the Attorneys-in-Fact, the Company, the Underwriters and other Selling
Shareholders and, prior to , 1998, is an agency coupled with an interest
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and is therefore irrevocable and not subject to termination by the undersigned
or by operation of law, whether by the death or incapacity of the undersigned,
the termination of any trust or estate, the dissolution or liquidation of any
corporation or partnership or the occurrence of any other event, and the
obligations of the undersigned under the Underwriting Agreement are similarly
not subject to termination and shall remain in full force and effect until such
date. Accordingly, the certificates deposited with you hereunder and this
Custody Agreement and your authority hereunder are subject to the interests of
the Company, the Underwriters, and the other Selling Shareholders, and this
Custody Agreement and your authority hereunder is irrevocable and is not subject
to termination by the undersigned or by operation of law, whether by the death
or incapacity of the undersigned, the termination of any trust or estate, the
dissolution or liquidation of any corporation or partnership or the occurrence
of any other event. If the undersigned should die or become incapacitated, if
any trust or estate should be terminated, if any corporation or partnership
should be dissolved or liquidated, or if any other such event should occur,
before delivery of the shares to be sold by the undersigned under the
Underwriting Agreement, certificates for such shares shall be delivered by you
on behalf of the undersigned in accordance with the terms and conditions of the
Underwriting Agreement and this Custody Agreement, and action taken by you
pursuant to this
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Custody Agreement shall be as valid as if such death or incapacity, termination,
dissolution, liquidation or other event had not occurred, regardless of whether
or not either you or either or both of the Attorneys-in-Fact shall have received
notice of such death, incapacity, termination, dissolution, liquidation or other
event.
Until payment of the purchase price for the shares to be sold by the
undersigned to the Underwriters has been made to you pursuant to the
Underwriting Agreement by or for the account of the Underwriters, the
undersigned shall remain the owner of such shares and shall have the right to
vote such shares and all other shares, if any, represented by the certificates
deposited with you hereunder and to receive all dividends and distributions
thereon.
You shall be entitled to act and rely upon any statement, request, notice
or instructions respecting this Custody Agreement given to you by the Attorneys-
in-Fact, or any one of them.
In taking any action required by the Underwriters, you may rely upon a
writing by representatives of .
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It is understood that you assume no responsibility or liability to any
person other than to deal with the certificate(s) deposited with you hereunder
and the proceeds from the sale of all or a portion of the shares represented
thereby in accordance with the provisions of this Custody Agreement, and the
undersigned agrees to indemnify and hold you harmless with respect to anything
done by you in good faith in accordance with the foregoing instructions.
This Custody Agreement constitutes a representation and warranty to the
other Selling Shareholders, the Company, the Attorneys-in-Fact, the
Underwriters, and the counsel of any such person, for purposes of rendering
their opinion to the Underwriters called for by the Underwriting Agreement, for
which purpose this Custody Agreement shall constitute a certificate, that:
1. The undersigned now has, and at the date of delivery of the Common
Stock to be sold by him to the Underwriters pursuant to the terms of the
Underwriting Agreement will have, good and marketable title to such stock, free
and clear of all liens, encumbrances, security interests, community property
rights, restrictions on transfer, equities and claims whatsoever (other than
pursuant to this Custody Agreement and the Underwriting Agreement), and the
undersigned now has and at such date will have full legal right and power and
all authorizations and approvals required by law and will have taken all actions
necessary to sell, transfer and deliver such stock under the Underwriting
Agreement. Upon the delivery of and payment for such stock under the
Underwriting Agreement, the Underwriters will receive good and marketable title
thereto, free and clear of all liens, encumbrances, security interests,
community property rights, restrictions on transfer, equities and adverse claims
whatsoever.
2. The undersigned has, and at all times through the Option Closing Date
under the Underwriting Agreement will have, full legal right and power and all
authorizations and approvals required by law to enter into this Custody
Agreement, the Power of Attorney and the Underwriting
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Agreement, and to carry out all the applicable terms and provisions hereof and
thereof, and this Custody Agreement, the Power of Attorney and the Underwriting
Agreement have been (or, upon execution by the Attorneys-in-Fact, or any one of
them, will be) duly executed and delivered and are, and at all times through the
Option Closing Date under the Underwriting Agreement will be, valid and binding
obligations of the undersigned, except as rights to indemnity hereunder may be
limited under applicable law. The consummation of the transactions contemplated
in the Underwriting Agreement will not result in a breach, violation or
contravention of any of the terms and provisions of, or constitute a default
under, any statute, any indenture, mortgage, will, deed of trust, note
agreement, or other agreement or instrument to which the undersigned is a party
or by which the undersigned is bound or to which any of the property of the
undersigned is subject, or any order, writ, injunction, decree, rule or
regulation of any court or governmental agency or body having jurisdiction over
the undersigned or any of the undersigned's properties and no consent, approval,
authorization or order of any court or governmental agency or body is required
for the performance of the Underwriting Agreement by the undersigned, except
such as are to have been obtained under the Securities Act of 1933, as amended,
and such as may be required under state securities laws in connection with the
purchase and distribution of shares by the Underwriters. As of the Option
Closing Date under the Underwriting Agreement, the sale, transfer and delivery
of the shares by the undersigned to the Underwriters is not subject to any right
of first refusal or other contractual restriction.
3. The undersigned has carefully reviewed the representations,
warranties, statements and agreements to be made by the undersigned as a Selling
Shareholder as contained in the Underwriting Agreement, including specifically
the indemnity agreement contained in the Underwriting Agreement, and does hereby
represent, warrant and agree that (a) such representations, warranties,
statements, and agreements insofar as they relate to the undersigned are true
and correct as of the date hereof and will be true and correct at all times
through the Closing Date under the Underwriting Agreement and (b) such
agreements, insofar as they relate to the undersigned, have been complied with
as of the date hereof and will be complied with on and after the Closing Date.
4. The undersigned has received a copy of a Registration Statement,
including a Preliminary Prospectus, for the offer and sale of 1,150,000 shares
of Common Stock and 1,150,000 redeemable warrants (the "Warrants") accompanying
each share of Common Stock (not including the shares and shares which may be
sold pursuant to the Underwriters' over-allotment option). To the best of the
undersigned's knowledge after reasonable investigation, there is no untrue
statement of a material fact included in the Registration Statement nor is there
an omission from the Registration Statement of any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
undersigned will promptly notify the Attorneys-in-Fact of any facts coming to
his attention which would cause the preceding sentence not to be true.
5. The undersigned has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might in
the future reasonably be expected to cause or result in stabilization or
manipulation of the price of the Company's Common Stock or the Warrants.
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6. The undersigned is 18 years of age or older, is of sound mind and is
not presently adjudged to be incompetent or otherwise to lack the capacity to
contract. No legal guardian has been appointed for the undersigned.
The foregoing representations, warranties and agreements, as well as those
contained in the Directors', Officers' and Selling Shareholders' Questionnaire
completed by the undersigned and submitted to the Company and those contained in
the Underwriting Agreement, are made for the benefit of, and may be relied upon
by, the other Selling Shareholders, the Custodian, the Attorneys-in-Fact, the
Company, the Underwriters, and the representatives, agents and counsel of any
such person.
This Custody Agreement shall be governed by the laws of the State of New
York, without regard to the conflict of law principles thereof.
Please acknowledge your acceptance hereof as Custodian, and receipt of the
certificates deposited with you hereunder, by executing and returning to the
undersigned the enclosed copy hereof.
Dated: , 1998
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Very truly yours,
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Signature(s)
*To be signed in exactly the same manner as
the shares are registered.
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(Note: The signature(s) must be guaranteed by
a bank or trust company having an office or a
correspondent in New York City or by a broker
which is a member firm of the New York or
American Stock Exchanges.)
Number of shares of Common Stock Maximum number of shares of Common Stock
represented by certificate(s) deposited to be sold to Underwriters pursuant to the
Power of Attorney:
shares shares
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I am the spouse of . On behalf of myself, my heirs and legatees,
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I hereby join in and consent to the terms of the foregoing Custody Agreement and
agree to the sale of the shares of the Common Stock of Central European
Distribution Corporation registered in the name of my spouse or otherwise
registered, which my spouse proposes to sell pursuant to the Underwriting
Agreement (as defined therein).
Dated: , 1998
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(Signature of Spouse)
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Number of Shares of Common Number of Shares to be Sold from
Stock Represented by Each Certificates If Less Than all Shares
Stock Certificate Numbers Certificate Represented Thereby Are to be Sold*
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TOTAL NUMBER OF SHARES TO BE SOLD ------------------------------------
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* If no indication is made, selection to be at the Custodian's discretion.
The total for this column must equal the maximum number of shares of
Common Stock to be sold to the Underwriters, as indicated in the table
on page [__].
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CUSTODIAN'S ACKNOWLEDGE AND RECEIPT
[___________], as Custodian, acknowledges acceptance of the duties of
Custodian under the foregoing Custody Agreement and receipt of the certificates
referred to therein.
Dated: , 1998
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[__________________]
By:
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Name:
Title:
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PAYMENT INSTRUCTIONS
Please choose one of the methods of payment described below and provide the
requested information as indicated.
1. Direct deposit to a [ ] account:
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Branch and Account Number:
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2. Wire funds to the following bank (you must contact your
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bank to make sure they can accept wire transfers and to obtain any other
information they may require as to accepting wire transfers):
Account Name:
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Bank:
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Account Number:
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3. Cashier's check to be mailed or otherwise delivered in
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my name to:
Central European Distribution Corporation for the delivery
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to me
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