SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
[Rule 13d-101]
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILES PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 13)*
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
153435102
(CUSIP Number)
Mark Kaufman
16, boulevard de la Princesse Charlotte
98000 Monaco
+ 7 495 786 7601
With copies to:
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Ben Burman |
Adam O. Emmerich | |
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Darrois Villey Maillot Brochier AARPI |
Wachtell, Lipton, Rosen & Katz | |
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69, avenue Victor Hugo |
51 West 52nd Street | |
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75116 Paris, France |
New York, NY 10019 | |
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+ 33 1 45 02 19 19 |
(212) 403 1000 |
(Name, Address and Telephone Number of Person
Authorized to Receive Notices of Communication)
November 19, 2012
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the Schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following pages)
Explanatory Note
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Item 4. |
Purpose of Transaction |
Item 4 of the Existing Schedule 13D is amended and supplemented by adding between the twelfth and thirteenth paragraphs thereof the following new paragraph:
On November 19, 2012, Kaufman sent a letter (the “November 19 Letter”) to the members of the Special Committee of the Board of Directors of the Issuer. The November 19 Letter is included as Exhibit 99.10 to this statement on Schedule 13D and is incorporated herein by reference.
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Item 7. |
Material to be Filed as Exhibits |
Item 7 of the Existing Schedule 13D is hereby amended and restated in its entirety to read as follows:
The following are filed as exhibits to this statement on Schedule 13D:
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Exhibit No. |
Description | |
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Exhibit 99.1 |
Joint Filing Agreement, dated as of August 28, 2011, by and between Mark Kaufman and W & L Enterprises Ltd. | |
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Exhibit 99.2 |
Letter, dated September 12, 2011, from Mark Kaufman to William V. Carey, Chief Executive Officer of the Issuer, David Bailey, Lead Director of the Issuer, and the other members of the Board of Directors of the Issuer. | |
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Exhibit 99.3 |
Letter, dated December 9, 2011, from Mark Kaufman to the members of the Board of Directors of the Issuer. | |
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Exhibit 99.4 |
Letter, dated February 21, 2012, from Mark Kaufman to the Chairman of the Board of Directors of the Issuer. | |
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Exhibit 99.5 |
Letter, dated March 12, 2012, from William V. Carey, Chief Executive Officer of the Issuer and David Bailey, Lead Director of the Issuer, to Mark Kaufman. | |
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Exhibit 99.6 |
Letter, dated May 10, 2012, from Mark Kaufman to the Chairman of the Board of Directors and other members of the Board of Directors of the Issuer. | |
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Exhibit 99.7 |
Letter, dated July 12, 2012, from Mark Kaufman to the members of the Board of Directors of the Issuer. | |
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Exhibit 99.8 |
Letter, dated August 2, 2012, from Mark Kaufman to Roustam Tariko, Non-Executive Chairman of the Board of Directors of the Issuer, and N. Scott Fine, Lead Director of the Issuer. | |
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Exhibit 99.9 |
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Letter, dated November 14, 2012, from Mark Kaufman to the members of the Board of Directors of the Issuer. |
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Exhibit 99.10 |
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Letter, dated November 19, 2012, from Mark Kaufman to the members of the Board of Directors and the Special Committee of the Issuer. |
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: November 19, 2012
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/s/ Mark Kaufman | ||
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Mark Kaufman | ||
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W & L ENTERPRISES LTD | ||
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By: |
/s/ Mark Kaufman | |
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Name: |
Mark Kaufman | |
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Title: |
Director | |
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By: |
/s/ Olga Kuritsyna | |
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Name: |
Olga Kuritsyna | |
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Title: |
Director | |
| Exhibit No. | Description | |
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Exhibit 99.1 |
Joint Filing Agreement, dated as of August 28, 2011, by and between Mark Kaufman and W & L Enterprises Ltd. * | |
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Exhibit 99.2 |
Letter, dated September 12, 2011, from Mark Kaufman to William V. Carey, Chief Executive Officer of the Issuer, David Bailey, Lead Director of the Issuer, and the other members of the Board of Directors of the Issuer. ** | |
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Exhibit 99.3 |
Letter, dated December 9, 2011, from Mark Kaufman to the members of the Board of Directors of the Issuer. *** | |
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Exhibit 99.4 |
Letter, dated February 21, 2012, from Mark Kaufman to the Chairman of the Board of Directors of the Issuer. **** | |
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Exhibit 99.5 |
Letter, dated March 12, 2012, from William V. Carey, Chief Executive Officer of the Issuer and David Bailey, Lead Director of the Issuer, to Mark Kaufman (filed as Exhibit 99.1 to the Current Report on Form 8–K filed by the Issuer with the SEC (File no. 001–35293) on March 13, 2012, and incorporated herein by reference). | |
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Exhibit 99.6 |
Letter, dated May 10, 2012, from Mark Kaufman to the Chairman of the Board of Directors and other members of the Board of Directors of the Issuer. ***** | |
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Exhibit 99.7 |
Letter, dated July 12, 2012, from Mark Kaufman to the members of the Board of Directors of the Issuer. ****** | |
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Exhibit 99.8 |
Letter, dated August 2, 2012, from Mark Kaufman to Roustam Tariko, Non-Executive Chairman of the Board of Directors of the Issuer, and N. Scott Fine, Lead Director of the Issuer. ******* | |
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Exhibit 99.9 |
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Letter, dated November 14, 2012, from Mark Kaufman to the members of the Board of Directors of the Issuer. ******** |
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Exhibit 99.10 |
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Letter, dated November 19, 2012, from Mark Kaufman to the members of the Board of Directors and the Special Committee of the Issuer. ^ |
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* |
Previously filed with the Statement on Schedule 13D, dated August 29, 2011 (File no. 005-56061) |
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** |
Previously filed with the Statement on Schedule 13D, dated September 12, 2011 (File no. 005-56061) |
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*** |
Previously filed with the Statement on Schedule 13D, dated December 9, 2011 (File no. 005-56061) |
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**** |
Previously filed with the Statement on Schedule 13D, dated February 21, 2012 (File no. 005-56061) |
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***** |
Previously filed with the Statement on Schedule 13D, dated May 10, 2012 (File no. 005-56061) |
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****** |
Previously filed with the Statement on Schedule 13D, dated July 12, 2012 (File no. 005-56061) |
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******* |
Previously filed with the Statement on Schedule 13D, dated August 2, 2012 (File no. 005-56061) |
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******** |
Previously filed with the Statement on Schedule 13D, dated November 14, 2012 (File no. 005-56061) |
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^ |
Filed herewith |
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Exhibit 99.10
Mark Kaufman
16, boulevard de la Princesse Charlotte
98000 Monaco
November 19, 2012
Members of the Board of Directors
Central European Distribution Corporation
3000 Atrium Way, Suite 265
Mt. Laurel, New Jersey 08054
Dear Members of the Board of Directors and Special Committee,
I have carefully read the Special Committee’s “open letter” to CEDC shareholders and bondholders from last Friday, in which the Special Committee defended its position vis-à-vis Mr. Roustam Tariko. Quite frankly, there is nothing “open” about your letter – except, of course, for the open questions that remain about how you actually plan to put an end to the deeply troubling problems that afflict our company.
The Special Committee’s letter comes straight out of the propagandist’s playbook – rather than engaging in a real dialogue on the issues, the Special Committee has published an attack against Mr. Tariko and a defense of the company’s utterly failed management. I am sure that over the last several months, there are a few good decisions that have been made – but, let us be honest, it is profoundly clear that something is systematically wrong with the way the company is being run, and for that there is no defense. It is time to eschew obfuscation and end procrastination – sweeping action is needed now to give the company a shot at survival.
As the Special Committee has made abundantly clear in its letter, CEDC’s relationship with Russian Standard, which is currently the only realistic solution to the company’s intractable debt situation, is teetering on the edge of failure. While I had previously maintained hope that CEDC would have an alternative plan in place should the Russian Standard deal fall through, it is clear from this letter that CEDC does not, other than perhaps bankruptcy or dissolution, which would be a disaster to all of the company’s constituencies.
In the letter, the Special Committee writes that it “must exercise its business judgment and act in the interests of the Company and all stakeholders.” However, with all that has happened to our company under your watch, it is painfully obvious that you are agonizingly incapable of actually exercising any degree of good business judgment. I have been writing you for 14 months, and you have continued to ignore me. I am aware of other shareholders who have suffered through similar experiences. How can you claim to be acting in our interests if you do not even attempt to understand what we are interested in?
The Special Committee writes in its letter that it was formed “to help navigate the conflict of interest issues that exist for the Russian Standard nominees on the Board.” However, I am concerned that even the so called “independent directors” on the Special Committee remain conflicted by the fact that CEDC’s problems occurred on their watch. I fear that they have all become solely motivated by their own interests in entrenchment, which is why they are so offended by the fact that Mr. Tariko raised the idea of finding alternative candidates for election to the CEDC board.
To be clear, I write this letter not to choose sides in CEDC’s ongoing conflict with Russian Standard. I write to you again, as your second largest shareholder, because I am profoundly concerned that you are ignoring your company’s largest shareholders. In my letter of last week, I urged you, including Mr. Tariko as the Chairman of the Board, to immediately call a special meeting of the board of directors at which I and other interested large stockholders of CEDC would have an opportunity to discuss the future of the company and its strategy and options moving forward. You have yet to respond to my request. Thus, I ask again for all of you, including Mr. Tariko, to forget for a time your disagreements and to publicly announce the date and time of such meeting and allow any holders of at least 0.5% of CEDC’s common stock to attend and participate. As I previously suggested, this meeting could be held at the company’s primary corporate office in Warsaw, Poland on November 22 or November 23.
Since my last letter, several thoroughly disappointed shareholders, including individuals, investments managers and institutional investors, have reached out to me to express their considerable concerns about our company’s board and management, particularly their unwillingness to engage their shareholders. From these conversations, it is painfully obvious to me that you are rapidly losing the support of your investor base – and I truthfully wonder whether you even care. I again invite CEDC stockholders who support the idea of such a meeting to contact me at restorecedc@benoit-associes.com, and equally to express themselves directly to CEDC’s board of directors.
I agree with the Special Committee that the company should hire a permanent CEO and CFO as soon as possible. I believe that the next CEO of CEDC needs to have the three following qualities: (1) he or she should have held the top executive position at another public company, preferably a U.S. public company, (2) he or she should have experience in operating a company with over US$1 billion of debt, particularly one that underwent a complex restructuring of its debt, and (3) he or she should have experience running a standalone company in the wine and spirits industry, or at least in a consumer products industry. David Bailey, CEDC’s interim CEO, has none of these qualities. Based on that fact, as well as my experience on CEDC’s Russian Oversight Committee, I believe that Mr. Bailey is no way the right person to lead the company at the present time. He has failed in the last five months to bring any sense of improvement to the company, and it is naïve to believe that this will change. Indeed, Mr. Bailey himself was the Chairman of the Audit Committee during periods when the company had to restate its financial statements!
More than five months have passed since you appointed David Bailey as interim CEO and more than two months have passed since you appointed Bartosz Kolacinski as interim CFO. If after all these months of searching you have still not identified any appropriate candidates, what guarantee can you offer that you will find them in the near future? And, do you really believe that any highly reputable professional CEO or CFO candidate would ever agree to take office at such a troubled company, especially given the continuing conflict between the board and its largest shareholders? I do not. Why not, then, consider appointing Mr. Tariko as the new CEO of this company, or at least as an interim CEO to replace Mr. Bailey? He has the requisite professional background and successful track record to take us in the right direction. That any further investment by or business arrangements with Russian Standard need to be conducted on an arm’s-length basis by directors (including, I would suggest, myself) who are unaffiliated with Russian Standard and Mr. Tariko is indisputable. That CEDC, stubbornly clinging to some contorted sense of corporate propriety and good governance even as the water rises above the collective necks of its shareholders, having already through misfeasance and incompetence lost the chance of closing the prior agreed deal with Russian Standard, should now also deny itself the benefit of Mr. Tariko’s experience and leadership during these incredibly perilous times only adds insult to injury. You must act now to save the company.
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I hope you are listening, and I await your response.
Respectfully yours,
/s/ Mark Kaufman
Mark Kaufman
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