SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2012
OR
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 001-35293
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware | 54-1865271 | |
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) | |
3000 Atrium Way, Suite 265 Mt. Laurel, New Jersey |
08054 | |
(Address of Principal Executive Offices) | (Zip code) |
(856) 273-6980
(REGISTRANTS TELEPHONE NUMBER, INCLUDING AREA CODE)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ¨ No x
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (check one):
Large Accelerated Filer | x | Accelerated Filer | ¨ | |||
Non-Accelerated Filer | ¨ (Do not check if a smaller reporting company) | Smaller Reporting Company | ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.): Yes ¨ No x
The number of shares outstanding of each class of the issuers common stock as of September 25, 2012: Common Stock ($.01 par value) 78,843,480
EXPLANATORY NOTE
Central European Distribution Corporation (we,us,our, or the Company) is filing this quarterly Report on Form 10-Q (this Report) for the three and six months ended June 30, 2012. This Form 10-Q restates the unaudited condensed consolidated financial statements for the three and six months ended June 30, 2011 (the Restatement) as originally presented in the Companys quarterly report on Form 10-Q for the three and six months ended June 30, 2011 initially filed with the United States Securities and Exchange Commission (the SEC) on August 9, 2011 (Original Filing). The Restatement corrects certain accounting errors primarily related to the accounting for retroactive trade rebates and trade marketing refunds provided to customers during that period.
As previously disclosed, the Company changed its senior management at its principal operating subsidiary in Russia, the Russian Alcohol Group (RAG), during April 2012. Following this change, senior Company management requested that the new management team review RAGs business operations and internal controls, including an assessment of the resources and needs of the corporate finance and reporting departments. Based on the preliminary findings of that review, senior management concluded that the Companys financial statements for the years ended December 31, 2011 and 2010 should no longer be relied upon because of a failure to reflect the timely reporting of the full amount of retroactive trade rebates and trade marketing refunds provided to RAGs customers in Russia.
Thereafter, the Audit Committee of the Companys Board of Directors initiated an internal investigation, with the assistance of outside counsel and forensic accountants engaged by outside counsel, regarding the Companys retroactive trade rebates, trade marketing refunds and related accounting issues. The Audit Committee, through its counsel, voluntarily notified SEC of the investigation and is cooperating with the SEC. The Audit Committee has completed its accounting investigation, and has identified accounting irregularities at RAG, which resulted in the understatement of retroactive trade rebates and trade marketing refunds, as well as certain other errors that were concealed from both the Companys senior management and the independent auditors. Certain reclassifications have also been made to conform data for all periods presented with the current presentation. For a more detailed description of the Restatement, see Note 2, Restatement of unaudited condensed consolidated financial statements, to the accompanying unaudited condensed consolidated financial statements.
As a result of the investigation Company has also determined that a control deficiency existed which contributed to the incorrect accounting for the Companys retroactive trade rebates and trade marketing refunds provided to customers giving rise to the Restatement and that this deficiency constituted a material weakness in internal control over financial reporting. In connection with the investigation, the Companys management also identified a material weakness in the Companys internal control over financial reporting regarding the implementation of our policy on compliance with applicable laws as of December 31, 2011. Furthermore, the Company also has expanded certain disclosure items related to income taxes in Note 9.
We are also filing amendments on Form 10-Q/A to the Companys quarterly report on Form 10-Q for the three months ended March 31, 2012 which include restated balances and results as of and for the three months ended March 31, 2011, an amendment on Form 10-K/A for the year ended December 31, 2011 which include restated balances and results as of and for the years ended December 31, 2010, and an amendment on Form 10-Q/A to the Companys quarterly report on Form 10-Q for the three and nine months ended September 30, 2011 to restate the Companys consolidated balance sheets as of those dates, and the consolidated statements of operations, the consolidated statements of cash flows, and the consolidated statement of changes in stockholders equity and the notes related thereto for periods covered by such financial statements to reflect the effects of the Restatement on the Companys respective annual and unaudited interim financial information.
PAGE | ||||||
PART I FINANCIAL INFORMATION |
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Item 1 |
Condensed Consolidated Financial Statements (unaudited) |
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Condensed Consolidated Balance Sheets as of June 30, 2012 (unaudited) and as of December 31, 2011 |
3 | |||||
4 | ||||||
5 | ||||||
Notes to Condensed Consolidated Financial Statements (unaudited) |
6 | |||||
Item 2 |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
23 | ||||
Item 3 |
36 | |||||
Item 4 |
36 | |||||
38 | ||||||
Item 1 |
38 | |||||
Item 1A |
38 | |||||
Item 6 |
39 |
2
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
All amounts are expressed in thousands
(except share information)
June 30, 2012 (unaudited) |
December 31, 2011 |
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ASSETS | ||||||||
Current Assets |
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Cash and cash equivalents |
$ | 138,680 | $ | 94,410 | ||||
Accounts receivable, net of allowance for doubtful accounts at June 30, 2012 of $ 27,387 and at December 31, 2011 of $24,510 |
213,140 | 410,866 | ||||||
Inventories |
136,826 | 117,690 | ||||||
Prepaid expenses |
21,127 | 16,538 | ||||||
Other current assets |
18,873 | 23,020 | ||||||
Deferred income taxes |
2,217 | 4,717 | ||||||
Debt issuance costs |
6,797 | 2,962 | ||||||
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Total Current Assets |
537,660 | 670,203 | ||||||
Intangible assets, net |
457,598 | 463,848 | ||||||
Goodwill |
663,792 | 670,294 | ||||||
Property, plant and equipment, net |
173,446 | 176,660 | ||||||
Deferred income taxes, net |
23,254 | 21,488 | ||||||
Debt issuance costs |
12,100 | 13,550 | ||||||
Non-current assets held for sale |
675 | 675 | ||||||
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Total Non-Current Assets |
1,330,865 | 1,346,515 | ||||||
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Total Assets |
$ | 1,868,525 | $ | 2,016,718 | ||||
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LIABILITIES AND EQUITY | ||||||||
Current Liabilities |
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Trade accounts payable |
$ | 83,066 | $ | 144,797 | ||||
Bank loans and overdraft facilities |
57,194 | 85,762 | ||||||
Obligations under Convertible Senior Notes |
270,993 | 0 | ||||||
Obligations under Debt Security |
70,000 | 0 | ||||||
Income taxes payable |
7,363 | 9,607 | ||||||
Taxes other than income taxes |
124,773 | 189,515 | ||||||
Other accrued liabilities |
61,034 | 48,208 | ||||||
Current portions of obligations under capital leases |
956 | 1,109 | ||||||
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Total Current Liabilities |
675,379 | 478,998 | ||||||
Long-term obligations under capital leases |
684 | 532 | ||||||
Long-term obligations under Convertible Senior Notes |
0 | 304,645 | ||||||
Long-term obligations under Senior Secured Notes |
917,848 | 932,089 | ||||||
Long-term accruals |
1,978 | 2,000 | ||||||
Deferred income taxes |
84,970 | 91,128 | ||||||
Commitments and contingent liabilities (Note 15) |
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Total Long-Term Liabilities |
1,005,480 | 1,330,394 | ||||||
Temporary equity |
29,558 | 0 | ||||||
Stockholders Equity |
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Common Stock ($0.01 par value, 120,000,000 shares authorized, 73,129,194 and 72,740,302 shares issued and outstanding at June 30, 2012 and December 31, 2011, respectively) |
731 | 727 | ||||||
Preferred Stock ($0.01 par value, 1,000,000 shares authorized, none issued and outstanding) |
0 | 0 | ||||||
Additional paid-in-capital |
1,371,059 | 1,369,471 | ||||||
Accumulated deficit |
(1,231,349 | ) | (1,197,884 | ) | ||||
Accumulated other comprehensive income |
17,817 | 35,162 | ||||||
Less Treasury Stock at cost (246,037 shares at June 30, 2012 and December 31, 2011) |
(150 | ) | (150 | ) | ||||
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Total Stockholders Equity |
158,108 | 207,326 | ||||||
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Total Liabilities and Equity |
$ | 1,868,525 | $ | 2,016,718 | ||||
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The accompanying notes are an integral part of the condensed consolidated financial statements.
3
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (UNAUDITED)
All amounts are expressed in thousands
(except per share information)
Three months ended June 30, | Six months ended June 30, | |||||||||||||||
2012 | 2011 (Restated, see Note 2) |
2012 | 2011 (Restated, see Note 2) |
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Sales |
$ | 402,750 | $ | 425,838 | $ | 724,506 | $ | 743,919 | ||||||||
Excise taxes |
(215,549 | ) | (227,482 | ) | (391,316 | ) | (407,209 | ) | ||||||||
Net sales |
187,201 | 198,356 | 333,190 | 336,710 | ||||||||||||
Cost of goods sold |
111,864 | 123,708 | 202,738 | 209,393 | ||||||||||||
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Gross profit |
75,337 | 74,648 | 130,452 | 127,317 | ||||||||||||
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Selling, general and administrative expenses |
68,100 | 63,756 | 127,034 | 119,126 | ||||||||||||
Gain on remeasurement of previously held equity interests |
0 | 0 | 0 | (7,898 | ) | |||||||||||
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Operating income |
7,237 | 10,892 | 3,418 | 16,089 | ||||||||||||
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Non operating income / (expense), net |
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Interest income / (expense), net |
(25,606 | ) | (28,361 | ) | (51,908 | ) | (55,213 | ) | ||||||||
Other financial income / (expense), net |
(75,430 | ) | 19,008 | 22,158 | 49,530 | |||||||||||
Other non operating income / (expense), net |
(2,501 | ) | (2,661 | ) | (5,099 | ) | (3,637 | ) | ||||||||
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Income / (loss) before income taxes and equity in net losses from unconsolidated investments |
(96,300 | ) | (1,122 | ) | (31,431 | ) | 6,769 | |||||||||
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Income tax benefit / (expense) |
2,651 | (2,211 | ) | (2,034 | ) | (4,190 | ) | |||||||||
Equity in net losses of affiliates |
0 | 0 | 0 | (7,946 | ) | |||||||||||
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Net loss attributable to the company |
(93,649 | ) | (3,333 | ) | (33,465 | ) | (5,367 | ) | ||||||||
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Net loss from operations per share of common stock, basic |
$ | (1.23 | ) | $ | (0.05 | ) | $ | (0.45 | ) | $ | (0.07 | ) | ||||
Net loss from operations per share of common stock, diluted |
$ | (1.23 | ) | $ | (0.05 | ) | $ | (0.45 | ) | $ | (0.07 | ) | ||||
Other comprehensive income / (loss), net of tax: |
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Foreign currency translation adjustments |
(39,869 | ) | 30,428 | (17,345 | ) | 164,600 | ||||||||||
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Comprehensive income / (loss) attributable to the company |
$ | (133,518 | ) | $ | 27,095 | $ | (50,810 | ) | $ | 159,233 | ||||||
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The accompanying notes are an integral part of the condensed consolidated financial statements.
4
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW (UNAUDITED)
All amounts are expressed in thousands
Six months ended June 30, | ||||||||
2012 | 2011 (Restated, see Note 2) |
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Cash flows from operating activities |
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Net loss |
$ | (33,465 | ) | $ | (5,367 | ) | ||
Adjustments to reconcile net loss to net cash provided by operating activities: |
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Depreciation and amortization |
9,843 | 10,765 | ||||||
Deferred income taxes |
(3,809 | ) | (5,671 | ) | ||||
Unrealized foreign exchange gains |
(20,196 | ) | (50,940 | ) | ||||
Stock options fair value expense |
1,589 | 1,336 | ||||||
Equity loss in affiliates |
0 | 7,946 | ||||||
Gain on fair value remeasurement of previously held equity interest |
0 | (6,397 | ) | |||||
Other non cash items |
1,042 | 2,794 | ||||||
Changes in operating assets and liabilities: |
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Accounts receivable |
201,151 | 274,861 | ||||||
Inventories |
(19,190 | ) | (17,033 | ) | ||||
Prepaid expenses and other current assets |
(6,686 | ) | (13,868 | ) | ||||
Trade accounts payable |
(69,031 | ) | (59,551 | ) | ||||
Other accrued liabilities and payables (including taxes) |
(52,929 | ) | (95,541 | ) | ||||
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Net cash provided by operating activities |
8,319 | 43,334 | ||||||
Cash flows from investing activities |
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Purchase of fixed assets |
(4,781 | ) | (3,169 | ) | ||||
Proceeds from the disposal of fixed assets |
234 | 0 | ||||||
Purchase of intangibles |
0 | (693 | ) | |||||
Purchase of trademarks |
0 | (17,473 | ) | |||||
Acquisitions of subsidiaries, net of cash acquired |
0 | (24,124 | ) | |||||
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Net cash used in investing activities |
(4,547 | ) | (45,459 | ) | ||||
Cash flows from financing activities |
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Borrowings on bank loans and overdraft facility |
14,987 | 30,983 | ||||||
Debt security, net of debt issuance cost of $838 |
69,162 | 0 | ||||||
Repayment of Convertible Senior Notes |
(35,532 | ) | 0 | |||||
Payment of bank loans, overdraft facility and other borrowings |
(37,214 | ) | (34,401 | ) | ||||
Issuance of shares in private placement |
30,000 | 0 | ||||||
Decrease in short term capital leases payable |
(10 | ) | (277 | ) | ||||
Proceeds from options exercised |
0 | 72 | ||||||
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Net cash provided by / (used in) financing activities |
41,393 | (3,623 | ) | |||||
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Currency effect on brought forward cash balances |
(895 | ) | 10,166 | |||||
Net increase in cash |
44,270 | 4,418 | ||||||
Cash and cash equivalents at beginning of period |
94,410 | 122,116 | ||||||
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Cash and cash equivalents at end of period |
$ | 138,680 | $ | 126,534 | ||||
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Supplemental Schedule of Non-cash Investing Activities |
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Common stock issued in connection with investment in subsidiaries |
$ | 0 | $ | 23,175 | ||||
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The accompanying notes are an integral part of the condensed consolidated financial statements.
5
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
Amounts in tables expressed in thousands, except share and per share information
1. | ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES |
Organization and description of business
We operate primarily in the alcohol beverage industry. We are one of the largest producers of vodka in the world and are Central and Eastern Europes largest integrated spirit beverages business, measured by total volume, with approximately 33.2 million nine-liter cases produced and distributed in 2011. Our business primarily involves the production and sale of our own spirit brands (principally vodka), and the importation on an exclusive basis of a wide variety of spirits, wines and beers. Our primary operations are conducted in Poland, Russia, Ukraine and Hungary. We have six operational manufacturing facilities located in Poland and Russia.
In Poland, we are one of the largest vodka producers with a brand portfolio that includes Absolwent, Żubrówka, Żubrówka Biała, Bols, Palace and Soplica brands, each of which we produce at our Polish distilleries. We produce and sell vodkas primarily in three of four vodka sectors: premium, mainstream and economy. In Poland, we also own and produce Royal, the top-selling vodka in Hungary.
We are also the largest vodka producer in Russia, the worlds largest vodka market. Our Green Mark brand is the top-selling mainstream vodka in Russia and the second-largest vodka brand by volume in the world, and our Parliament and Zhuravli brands are two top-selling sub-premium vodkas in Russia.
As well as sales and distribution of its own branded spirits, the Company is a leading exclusive importer of wines and spirits in Poland, Russia and Hungary.
Liquidity
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern, which contemplates the realization of assets and the liquidation of liabilities in the normal course of business. As discussed further in Note 7, certain credit and factoring facilities are coming due in 2012, which the Company expects to renew. Furthermore, our Convertible Senior Notes (the Convertible Notes) are due on March 15, 2013. Our current cash on hand, estimated cash from operations and available credit facilities will not be sufficient to make the repayment of principal on the Convertible Notes and, unless the transaction with Russian Standard Corporation, described in Note 4, is completed the Company may default on them. The Companys cash flow forecasts include the assumption that certain credit and factoring facilities that are coming due in 2012 will be renewed to manage working capital needs. Moreover, the Company had a net loss and significant impairment charges in 2011 and current liabilities exceed current assets at June 30, 2012. These conditions raise substantial doubt about the Companys ability to continue as a going concern.
The transaction with Russian Standard Corporation is subject to certain risks, including shareholder approval which may not be obtained. The Companys 2012 Annual Meeting of Stockholders (the AGM), which was postponed due to the need to restate the Companys financial statements, is expected to be held as soon as practicable. We believe that if the transaction is completed as scheduled, the Convertible Notes will be repaid by their maturity date, which would substantially reduce doubts about the Companys ability to continue as a going concern.
Basis of presentation
These unaudited condensed consolidated financial statements are prepared in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP).
CEDCs subsidiaries maintain their books of account and prepare their statutory financial statements in their respective local currencies. The subsidiaries financial statements have been adjusted to reflect U.S. GAAP for interim financial information and in accordance with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and disclosures required by U.S. GAAP for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring adjustments) considered necessary to fairly present our financial condition, results of operations and comprehensive income and cash flows for the interim periods presented have been included. Operating results for the three and six months ended June 30, 2012 are not necessarily indicative of the results that may be expected for the year ended December 31, 2012.
The balance sheet at December 31, 2011 has been derived from the restated audited consolidated financial statements at that date included in Amendment No. 2 on Form 10-K/A to the Companys Annual Report for the fiscal year ended December 31, 2011, dated October 4, 2012, but does not include all of the information and footnotes required by U.S. GAAP for complete financial statements.
These unaudited condensed consolidated financial statements should be read in conjunction with the restated consolidated financial statements and related notes included in Amendment No. 2 on Form 10-K/A to the Companys Annual Report for the fiscal year ended December 31, 2011, dated October 4, 2012.
6
The significant interim accounting policies include the recognition of a pro-rata share of certain estimated annual sales incentives, marketing, promotion and advertising costs, generally in proportion to sales, and the recognition of income taxes using an estimated annual effective tax rate adjusted for tax amendments related to prior years and changes in estimates.
On February 7, 2011, the Company acquired full voting and economic control over Whitehall Group and changed the accounting treatment for its interest in Whitehall from the equity method of accounting to consolidation beginning on February 7, 2011.
2. | RESTATEMENT OF UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS |
In April 2012, the Company changed its senior management at the Russian Alcohol Group (RAG), its main operating subsidiary in Russia. Following this change, the Companys senior management requested that the new RAG senior management team review RAGs business operations and internal controls, including an assessment of the resources and needs of the corporate finance and reporting departments, as identified in Item 9A of the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2011 initially filed with Securities Exchange Commission (SEC) on February 29, 2012.
Based on the preliminary findings of that review, CEDCs senior management concluded that the Companys financial statements for the years ended December 31, 2010 and 2011 should no longer be relied upon because of a failure to reflect the timely reporting of the full amount of retroactive trade rebates and trade marketing refunds provided to RAGs customers in Russia.
Thereafter, the Audit Committee of the Companys Board of Directors initiated an internal investigation, with the assistance of outside counsel and forensic accountants engaged by outside counsel, regarding the Companys retroactive trade rebates, trade marketing refunds and related accounting issues. The Audit Committee, through its counsel, voluntarily notified the SEC of the investigation and is cooperating with the SEC. The Audit Committee has completed its accounting investigation, and has identified accounting irregularities at RAG, which resulted in the understatement of retroactive trade rebates and trade marketing refunds, as well as other errors that were concealed from both the Companys senior management and the independent auditors.
As a result of the investigation, the Company determined that certain retroactive trade rebates provided to RAGs customers in Russia were not recorded, and therefore the consolidated sales for the years ended December 31, 2011 and 2010 were overstated by $29.6 million and $11.3 million, respectively. The consolidated sales for the three and six months ended June 30, 2012 were not affected by this error and for the three and six months ended June 30, 2011 were overstated by $6.7 million and $12.2 million, respectively. The accounts receivable as at December 31, 2011 and June 30, 2011 were overstated by $44.5 million and $29.2 million, respectively. Furthermore, the Company improperly accounted for promotional compensation granted to customers and as a result the accounts receivable as at December 31, 2011 and June 30, 2011 were additionally overstated by $8.1 million and $8.0 million, respectively and the consolidated sales for the three and six months ended June 30, 2011 were overstated by $3.7 and $6.5, respectively and the consolidated selling, general and administrative expenses for these periods were overstated by $3.3 and $4.2 million, respectively.
In addition to the adjustments described above as of June 30, 2011, the Company:
- | decreased accounts receivable by additional $23.2 million (in addition to $29.2 million relating to unrecorded retroactive trade rebates and $8.0 million relating to promotional compensation granted to customers described above). This adjustment resulted mainly from a cut-off error of $18.1 million, where revenue for the third quarter of 2011 was recognized in June 2011 and other individually immaterial adjustments; |
- | increased inventories by $12.8 million, resulting mainly from the cut-off error described above of $13.2 million offset by other individually immaterial adjustment; |
- | decreased taxes other than income taxes payable by $2.5 million, which is also a result of the above described cut-off error; |
- | increased goodwill by $4.0 million, of which $2.7 million relates to unrecognized impairment of property, plant and equipment on acquisition of RAG in 2008. |
In the unaudited condensed consolidated statement of operations for the three months ended June 30, 2011 the Company:
| decreased sales by additional $3.8 million (in addition to the $6.7 million relating to unrecorded retroactive trade rebates and $3.7 million relating to promotional compensation granted to customers described above) mainly due to sales cut-off error in the amount of $3.3 million; |
| decreased cost of goods sold by $3.0 million mainly due to sales cut-off error in the amount of $2.9 million. |
In the unaudited condensed consolidated statement of operations for the six months ended June 30, 2011 the Company:
| decreased sales by additional $13.5 million (in addition to the $12.2 million relating to unrecorded retroactive trade rebates and $6.5 million relating to promotional compensation granted to customers described above) mainly due to sales cut-off error in the amount of $15.2 million; |
| decreased cost of goods sold by $14.7 million mainly due to sales cut-off error in the amount of $13.2 million. |
As a result, the Audit Committee of the Companys Board of Directors concluded that the Company should restate its unaudited condensed consolidated balance sheet as of June 30, 2011 and the related unaudited condensed consolidated statements of operations and changes in stockholders equity for three and six months ended June 30, 2011 and cash flows for the six months ended June 30, 2011.
In addition to the errors and irregularities described above, the Company also included in the restated consolidated financial statements other adjustments, which are immaterial individually and in the aggregate, related primarily to previously unrecorded adjustments identified during the preparation of the unaudited condensed consolidated financial statements at June 30, 2011, as well as, the write-off of non-recoverable VAT and prepayments, recording provisions for known obsolete inventory and accruing for certain other operating expenses. Furthermore, the Company has expanded certain disclosure items related to income and deferred taxes in Note 9.
The impact of the corrections of the errors discussed above on the consolidated balance sheet, consolidated statements of operations, consolidated statement of cash flow and consolidated statements of changes in stockholders equity is shown in the accompanying tables (in thousands, except for per share data).
7
Condensed Consolidated Balance Sheet - June 30, 2011 (unaudited)
Balance as at June 30, 2011 As Reported |
Adjustments | Balance as at June 30, 2011 Restated |
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Current Assets |
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Cash and cash equivalents |
$ | 126,534 | $ | 0 | $ | 126,534 | ||||||
Accounts receivable, net of allowance for doubtful accounts of $34,586 as reported and $35,554 as restated |
310,850 | (60,397 | ) | 250,453 | ||||||||
Inventories |
137,407 | 12,753 | 150,160 | |||||||||
Prepaid expenses and other current assets |
58,043 | 528 | 58,571 | |||||||||
Deferred income taxes |
94,473 | (1,410 | ) | 93,063 | ||||||||
Debt issuance cost |
2,884 | 0 | 2,884 | |||||||||
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|||||||
Total Current Assets |
730,191 | (48,526 | ) | 681,665 | ||||||||
Intangible assets, net |
699,127 | 0 | 699,127 | |||||||||
Goodwill, net |
1,869,558 | 4,046 | 1,873,604 | |||||||||
Property, plant and equipment, net |
224,768 | (3,265 | ) | 221,503 | ||||||||
Deferred income taxes |
42,625 | 0 | 42,625 | |||||||||
Debt issuance costs |
15,110 | 0 | 15,110 | |||||||||
|
|
|
|
|
|
|||||||
Total Non-Current Assets |
2,851,188 | 781 | 2,851,969 | |||||||||
|
|
|
|
|
|
|||||||
Total Assets |
3,581,379 | (47,745 | ) | 3,533,634 | ||||||||
|
|
|
|
|
|
|||||||
Current Liabilities |
||||||||||||
Trade accounts payable |
81,931 | 472 | 82,403 | |||||||||
Bank loans and overdraft facilities |
65,375 | 0 | 65,375 | |||||||||
Income taxes payable |
1,190 | 0 | 1,190 | |||||||||
Taxes other than income taxes |
114,435 | (2,511 | ) | 111,924 | ||||||||
Other accrued liabilities |
44,160 | (1,128 | ) | 43,032 | ||||||||
Current portions of obligations under capital leases |
916 | 0 | 916 | |||||||||
|
|
|
|
|
|
|||||||
Total Current Liabilities |
308,007 | (3,167 | ) | 304,840 | ||||||||
Long-term debt, less current maturities |
21,592 | 0 | 21,592 | |||||||||
Long-term obligations under capital leases |
892 | 0 | 892 | |||||||||
Long-term obligations under Senior Notes |
1,301,942 | 0 | 1,301,942 | |||||||||
Long-term accruals |
2,368 | (32 | ) | 2,336 | ||||||||
Deferred income taxes |
185,021 | 0 | 185,021 | |||||||||
|
|
|
|
|
|
|||||||
Total Long-Term Liabilities |
1,511,815 | (32 | ) | 1,511,783 | ||||||||
Stockholders Equity |
||||||||||||
Common Stock ($0.01 par value, 120,000,000 shares authorized, 72,732,559 shares issued and outstanding) |
727 | 0 | 727 | |||||||||
Additional paid-in-capital |
1,368,202 | 0 | 1,368,202 | |||||||||
Retained earnings |
164,385 | (44,252 | ) | 120,133 | ||||||||
Accumulated other comprehensive income |
228,393 | (294 | ) | 228,099 | ||||||||
Less Treasury Stock at cost (246,037 shares) |
(150 | ) | 0 | (150 | ) | |||||||
|
|
|
|
|
|
|||||||
Total Stockholders Equity |
1,761,557 | (44,546 | ) | 1,717,011 | ||||||||
|
|
|
|
|
|
|||||||
Total Liabilities and Stockholders Equity |
$ | 3,581,379 | $ | (47,745 | ) | $ | 3,533,634 | |||||
|
|
|
|
|
|
8
Condensed Consolidated Statement of Operations - Six months ended June 30, 2011 (unaudited)
Six months ended June 30, 2011 As reported |
Adjustments | Six months ended June 30, 2011 Restated |
||||||||||
Sales |
$ | 776,140 | $ | (32,221 | ) | $ | 743,919 | |||||
Excise taxes |
(407,472 | ) | 263 | (407,209 | ) | |||||||
Net sales |
368,668 | (31,958 | ) | 336,710 | ||||||||
Cost of goods sold |
224,089 | (14,696 | ) | 209,393 | ||||||||
|
|
|
|
|
|
|||||||
Gross profit |
144,579 | (17,262 | ) | 127,317 | ||||||||
|
|
|
|
|
|
|||||||
Selling, general and administrative expenses |
126,295 | (7,169 | ) | 119,126 | ||||||||
Gain on remeasurement of previously held equity interests |
(7,898 | ) | 0 | (7,898 | ) | |||||||
|
|
|
|
|
|
|||||||
Operating income |
26,182 | (10,093 | ) | 16,089 | ||||||||
|
|
|
|
|
|
|||||||
Non operating income / (expense), net |
||||||||||||
Interest income / (expense), net |
(55,213 | ) | 0 | (55,213 | ) | |||||||
Other financial income / (expense), net |
49,794 | (264 | ) | 49,530 | ||||||||
Other non operating income / (expense), net |
(3,637 | ) | 0 | (3,637 | ) | |||||||
|
|
|
|
|
|
|||||||
Income / (loss) before taxes and equity in net income from unconsolidated investments |
17,126 | (10,357 | ) | 6,769 | ||||||||
|
|
|
|
|
|
|||||||
Income tax benefit / (expense) |
(4,177 | ) | (13 | ) | (4,190 | ) | ||||||
Equity in net income / (losses) of affiliates |
(8,814 | ) | 868 | (7,946 | ) | |||||||
|
|
|
|
|
|
|||||||
Net income / (loss) |
$ | 4,135 | $ | (9,502 | ) | $ | (5,367 | ) | ||||
|
|
|
|
|
|
|||||||
Net income / (loss) from operations per share of common stock, basic |
$ | 0.06 | $ | (0.13 | ) | $ | (0.07 | ) | ||||
Net income / (loss) from operations per share of common stock, diluted |
$ | 0.06 | $ | (0.13 | ) | $ | (0.07 | ) | ||||
Other comprehensive income/(loss), net of tax: |
||||||||||||
Foreign currency translation adjustments |
168,169 | (3,569 | ) | 164,600 | ||||||||
|
|
|
|
|
|
|||||||
Comprehensive income/(loss) attributable to the company |
$ | 172,304 | $ | (13,071 | ) | $ | 159,233 | |||||
|
|
|
|
|
|
9
Condensed Consolidated Statement of Operations - Three months ended June 30, 2011 (unaudited)
Three months ended June 30, 2011 As reported |
Adjustments | Three months ended June 30, 2011 Restated |
||||||||||
Sales |
$ | 440,001 | $ | (14,163 | ) | $ | 425,838 | |||||
Excise taxes |
(228,044 | ) | 562 | (227,482 | ) | |||||||
Net sales |
211,957 | (13,601 | ) | 198,356 | ||||||||
Cost of goods sold |
126,715 | (3,007 | ) | 123,708 | ||||||||
|
|
|
|
|
|
|||||||
Gross profit |
85,242 | (10,594 | ) | 74,648 | ||||||||
|
|
|
|
|
|
|||||||
Selling, general and administrative expenses |
68,418 | (4,662 | ) | 63,756 | ||||||||
|
|
|
|
|
|
|||||||
Operating income |
16,824 | (5,932 | ) | 10,892 | ||||||||
|
|
|
|
|
|
|||||||
Non operating income / (expense), net |
||||||||||||
Interest income / (expense), net |
(28,361 | ) | 0 | (28,361 | ) | |||||||
Other financial income / (expense), net |
18,748 | 260 | 19,008 | |||||||||
Other non operating income / (expense), net |
(2,661 | ) | 0 | (2,661 | ) | |||||||
|
|
|
|
|
|
|||||||
Income / (loss) before taxes and equity in net income from unconsolidated investments |
4,550 | (5,672 | ) | (1,122 | ) | |||||||
|
|
|
|
|
|
|||||||
Income tax benefit / (expense) |
(1,536 | ) | (675 | ) | (2,211 | ) | ||||||
Net income / (loss) |
$ | 3,014 | $ | (6,347 | ) | $ | (3,333 | ) | ||||
|
|
|
|
|
|
|||||||
Net income / (loss) from operations per share of common stock, basic |
$ | 0.04 | $ | (0.09 | ) | $ | (0.05 | ) | ||||
Net income / (loss) from operations per share of common stock, diluted |
$ | 0.04 | $ | (0.09 | ) | $ | (0.05 | ) | ||||
Other comprehensive income/(loss), net of tax: |
||||||||||||
Foreign currency translation adjustments |
31,153 | (725 | ) | 30,428 | ||||||||
|
|
|
|
|
|
|||||||
Comprehensive income/(loss) attributable to the company |
$ | 34,167 | $ | (7,072 | ) | $ | 27,095 | |||||
|
|
|
|
|
|
10
Condensed Consolidated Statement of Cash Flow - Six months ended June 30, 2011 (unaudited)
Six months ended June 30, 2011 As reported |
Adjustments | Six months ended June 30, 2011 Restated |
||||||||||
Cash flows from operating activities of continuing operations |
||||||||||||
Net income / (loss) |
$ | 4,135 | $ | (9,502 | ) | $ | (5,367 | ) | ||||
Adjustments to reconcile net income / (loss) to net cash provided by operating activities: |
||||||||||||
Depreciation and amortization |
10,765 | 0 | 10,765 | |||||||||
Deferred income taxes |
(4,216 | ) | (1,455 | ) | (5,671 | ) | ||||||
Unrealized foreign exchange (gains) / losses |
(50,732 | ) | (208 | ) | (50,940 | ) | ||||||
Stock options fair value expense |
1,336 | 0 | 1,336 | |||||||||
Equity (income) / loss in affiliates |
8,814 | (868 | ) | 7,946 | ||||||||
Gain on fair value remeasurement of previously held equity interest |
(6,397 | ) | 0 | (6,397 | ) | |||||||
Other non cash items |
2,803 | (9 | ) | 2,794 | ||||||||
Changes in operating assets and liabilities: |
||||||||||||
Accounts receivable |
263,804 | 11,057 | 274,861 | |||||||||
Inventories |
(2,353 | ) | (14,680 | ) | (17,033 | ) | ||||||
Prepaid expenses and other current assets |
(12,327 | ) | (1,541 | ) | (13,868 | ) | ||||||
Trade accounts payable |
(83,383 | ) | 23,832 | (59,551 | ) | |||||||
Other accrued liabilities and payables |
(89,111 | ) | (6,430 | ) | (95,541 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities from continuing operations |
43,138 | 196 | 43,334 | |||||||||
Cash flows from investing activities of continuing operations |
||||||||||||
Purchase of fixed assets |
(3,181 | ) | 12 | (3,169 | ) | |||||||
Purchase of intangibles |
(693 | ) | 0 | (693 | ) | |||||||
Purchase of trademarks |
(17,473 | ) | 0 | (17,473 | ) | |||||||
Acquisitions of subsidiaries, net of cash acquired |
(24,124 | ) | 0 | (24,124 | ) | |||||||
|
|
|
|
|
|
|||||||
Net cash provided by / (used in) investing activities from continuing operations |
(45,471 | ) | 12 | (45,459 | ) | |||||||
Cash flows from financing activities of continuing operations |
||||||||||||
Borrowing on banks loans, overdraft facility and other borrowings |
30,983 | 0 | 30,983 | |||||||||
Payment of bank loans, overdraft facility and other borrowings |
(34,401 | ) | 0 | (34,401 | ) | |||||||
Decrease in short term capital leases payable |
(277 | ) | 0 | (277 | ) | |||||||
Options exercised |
72 | 0 | 72 | |||||||||
|
|
|
|
|
|
|||||||
Net cash used in financing activities from continuing operations |
(3,623 | ) | 0 | (3,623 | ) | |||||||
Currency effect on brought forward cash balances |
10,166 | 0 | 10,166 | |||||||||
Net increase in cash |
4,210 | 208 | 4,418 | |||||||||
Cash and cash equivalents at beginning of period |
122,324 | (208 | ) | 122,116 | ||||||||
|
|
|
|
|
|
|||||||
Cash and cash equivalents at end of period |
126,534 | 0 | 126,534 | |||||||||
|
|
|
|
|
|
|||||||
Supplemental Schedule of Non-cash Investing Activities |
||||||||||||
Common stock issued in connection with investment in subsidiaries |
$ | 23,175 | $ | 0 | $ | 23,175 | ||||||
|
|
|
|
|
|
|||||||
Supplemental disclosures of cash flow information |
||||||||||||
Interest paid |
$ | 44,251 | $ | 0 | $ | 44,251 | ||||||
Income tax paid |
$ | 8,950 | $ | 0 | $ | 8,950 | ||||||
|
|
|
|
|
|
11
Condensed Consolidated Statement of Changes in Stockholders Equity - June 30, 2011 (unaudited)
Balance as at June 30, 2011 As Reported |
Adjustments | Balance as at June 30, 2011 Restated |
||||||||||
Common Stock |
$ | 727 | $ | 0 | $ | 727 | ||||||
Additional Paid-in Capital |
1,368,202 | 0 | 1,368,202 | |||||||||
Retained Earnings |
164,385 | (44,252 | ) | 120,133 | ||||||||
Accumulated other comprehensive income |
228,393 | (294 | ) | 228,099 | ||||||||
Less Treasury Stock at cost |
(150 | ) | 0 | (150 | ) | |||||||
|
|
|
|
|
|
|||||||
Total |
$ | 1,761,557 | $ | (44,546 | ) | $ | 1,717,011 |
3. | SALE OF ACCOUNTS RECEIVABLE |
On February 24, 2011, two subsidiaries of the Company, namely CEDC International sp. z o.o. (CEDC International) and Polmos Białystok S.A. (Polmos Bialystok), entered into factoring arrangements (Factoring Agreements) with ING Commercial Finance Polska (ING Polska) for the sale up to 290.0 million Polish zlotys (approximately $85.6 million) of receivables. On January 1, 2012, the total limit under the Factoring Agreements was reduced from 290.0 million Polish zlotys ($85.6 million) to 250.0 million Polish zlotys ($73.8 million) and from March 1, 2012 it was further reduced to 220.0 million Polish zlotys ($64.9 million). The Factoring Agreements were to mature on April 30, 2012, however on April 25, 2012 the Company extended these agreements until September 30, 2012 with further decrease of the total limit from April 25, 2012 to 200.0 million Polish zlotys (approximately $59.0 million). On September 28, 2012 the Company further extended these agreements until December 31, 2012 with decrease of the total limit to 170.0 million Polish zlotys (approximately $50.2 million).
As of June 30, 2012, the total balance of receivables under factoring amounted to 181.7 million Polish zlotys (approximately $53.6 million) of the 200.0 million Polish zlotys limit available.
For the three and six months ended June 30, 2012, the Company sold receivables in the amount of 394.6 million Polish zlotys ($116.5 million) and 697.4 million Polish zlotys ($205.8 million), respectively and recognized a loss on the sale in the statement of operations and comprehensive income in the amount of 3.1 million Polish zlotys ($0.9 million) and 6.3 million Polish zlotys ($1.9 million), respectively in respect of the non-recourse factoring. The Company has no continuing involvement with the sold non-recourse receivables.
As of June 30, 2012, the liabilities from factoring with recourse amounted to $1.4 million and are included in the short term bank loans in the balance sheet. Corresponding receivables from factoring with recourse are presented under accounts receivable in the balance sheet.
4. | AGREEMENT WITH ROUST TRADING |
On April 23, 2012, the Company entered into a Securities Purchase Agreement (SPA) with Roust Trading Limited (Roust Trading), for a strategic transaction. Pursuant to this SPA, Roust Trading has agreed to make an investment in the Company in three stages, subject to typical closing conditions. In the first stage, on May 4, 2012, Roust Trading acquired 5,714,286 newly issued shares of the Companys common stock for an aggregate purchase price of $30 million, or $5.25 per share (the Initial Shares). The Initial Shares were accounted for as temporary equity in the balance sheet. Also on May 4, 2012, JSC Russian Standard Bank, a subsidiary of Roust Trading, purchased $70 million aggregate principal amount of senior notes due March 18, 2013, bearing an interest rate of 3.00% (the Debt Security) issued by the Company. The SPA also contemplated the following transactions:
| upon approval of CEDCs shareholders, and after the satisfaction of certain other conditions, the Company would be able to cause Roust Trading to or Roust Trading would be able to |
| purchase such number of shares of common stock at a purchase price of $5.25 per share sufficient to repay the then-outstanding principal amount of the Debt Security, plus the accrued and unpaid interest thereon, totaling approximately 13.3 million shares of common stock (the Exchange Shares) plus additional shares representing accrued and unpaid interest thereon, and |
| sell to CEDC the entire principal amount of the Debt Security; |
| the purchase by Roust Trading of a new debt security with a principal aggregate amount of approximately $102.6 million maturing on July 31, 2016 (the Rollover Notes), with the Rollover Notes to bear a blended interest rate of 6.00% over the term of the Rollover Notes and interest accrued on the Rollover Notes to be effectively paid in shares of common stock before January 1, 2014, and in cash thereafter; and |
| the receipt by CEDC of the right to put to Roust Trading a debt security maturing on July 31, 2016 (the Backstop Notes) of an aggregate principal amount of up to $107.5 million, with the Backstop Notes to bear a blended interest rate of 6.00% over the term of the Backstop Notes and interest to be accrued on the Backstop Notes to be effectively paid in shares of common stock before January 1, 2014, and in cash thereafter. |
As discussed in Note 18 the SPA was amended on July 9, 2012.
12
5. | COMPREHENSIVE INCOME |
Comprehensive income is defined as all changes in equity during a period except those resulting from investments by owners and distributions to owners. Comprehensive income includes net income adjusted by foreign currency translation adjustments. The foreign translation losses/gains on the re-measurements from foreign currencies to U.S. dollars are classified separately as foreign currency translation adjustment within accumulated other comprehensive income included in stockholders equity.
As of June 30, 2012, our functional currencies exchange rates used to translate the balance sheet weakened against the U.S. dollar as compared to the exchange rates as of December 31, 2011, and as a result $17.3 million of foreign currency translation adjustment was recognized as part of total comprehensive income, which mainly related to a decrease in goodwill and intangible assets.
6. | EARNINGS PER SHARE |
The following table sets forth the computation of basic and diluted earnings per share for the periods indicated.
Three months ended June 30, | Six months ended June 30, | |||||||||||||||
2012 | 2011 (Restated, see Note 2) |
2012 | 2011 (Restated, see Note 2) |
|||||||||||||
Net loss |
$ | (93,649 | ) | $ | (3,333 | ) | $ | (33,465 | ) | $ | (5,367 | ) | ||||
Weighted average shares of common stock outstanding (used to calculate basic EPS) |
76,210 | 72,479 | 74,547 | 71,846 | ||||||||||||
Net effect of dilutive employee stock options based on the treasury stock method |
234 | 116 | 226 | 129 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Weighted average shares of common stock outstanding (used to calculate diluted EPS) |
76,444 | 72,595 | 74,773 | 71,975 | ||||||||||||
Net income / (loss) per common share - basic |
$ | (1.23 | ) | $ | (0.05 | ) | $ | (0.45 | ) | $ | (0.07 | ) | ||||
Net income / (loss) per common share - diluted |
$ | (1.23 | ) | $ | (0.05 | ) | $ | (0.45 | ) | $ | (0.07 | ) |
Employee stock options granted have not been included in the above calculations of diluted earnings per share where the exercise price is less than the average market price of the common stock during the three and six months ended June 30, 2012 and 2011. In addition there is no adjustment to fully diluted shares related to the Convertible Senior Notes as the average market price was below the conversion price for the periods.
7. | BORROWINGS |
Bank Facilities
As of June 30, 2012, the Company has outstanding liability of 22.5 million ($28.3 million) from the term loans from Alfa Bank and Raiffeisen Bank drawn by Whitehall:
| The loan agreement with Alfa Bank, dated July 22, 2008, matures on October 18, 2014. The credit limit under this agreement is 20.0 million ($25.2 million) and the loan is released in tranches maturing within three, six or nine months, depending if they are pledged by inventory. The loan was released in seven tranches between March 13, 2012 and June 28, 2012, and is repayable between September 13, 2012 and December 28, 2012. As of June 30, 2012, the Company had outstanding liability of 20 million ($25.2 million) from this term loan meaning that the loan was fully drawn as of that date; |
| The loan agreement with Raiffeisen Bank, dated July 6, 2010, matures on July 6, 2012. The credit limit under this agreement is 10.0 million ($12.6 million) and the loan was released in tranches maturing within one to 12 months, not later than July 6, 2012. The loan was released in three tranches between October 12, 2011 and October 27, 2011. As of June 30, 2012, the Company had outstanding liability of 2.5 million ($3.1 million) from this term loan. This loan was fully repaid on July 6, 2012. |
The aforementioned loans drawn by Whitehall are guaranteed by Whitehall companies. The loan from Alfa Bank is secured by the Companys inventory.
As of June 30, 2012, the Company has outstanding term loans of 845.5 million Russian rubles ($25.7 million) from Unicredit and JSC Grand Invest Bank, both drawn by Russian Alcohol, as well as, an overdraft facility from Sberbank drawn by Bravo Premium:
| The loan agreement with Unicredit, dated May 24, 2011, matures on November 23, 2012. This loan has no financial covenants and is secured by inventory of up to 720 million Russian rubles ($21.9 million) and guarantees given by companies of Russian Alcohol. As of June 30, 2012, the Company has outstanding liability of 600.0 million Russian rubles ($18.2 million) from this term loan; |
13
| The loan agreement with JSC Grand Invest Bank, dated November 25, 2011, matures on November 23, 2012. This loan has no financial covenants that need to be met. As of June 30, 2012, the Company has outstanding liability of 245.5 million Russian rubles ($7.5 million) from this term loan; |
| The overdraft agreement with Sberbank, dated February 6, 2012, matures on February 5, 2013. The credit limit under this agreement is 60.0 million Russian rubles ($1.8 million). This loan is secured by fixed assets. As of June 30, 2012, the loan was fully utilized. |
As of June 30, 2012, the Company had available to use under existing overdraft facility in Hungary 100.0 million Hungarian forints ($0.4 million). This facility was terminated by the Company as of September 11, 2012.
Convertible Senior Notes due 2013
On March 7, 2008, the Company completed the issuance of $310 million aggregate principal amount of 3% Convertible Senior Notes due 2013 (the Convertible Senior Notes). Interest is due semi-annually on the 15th of March and September, beginning on September 15, 2008. The Convertible Senior Notes are convertible in certain circumstances into cash and, if applicable, shares of our common stock, based on an initial conversion rate of 14.7113 shares per $1,000 principal amount, subject to certain adjustments. Upon conversion of the notes, the Company will deliver cash up to the aggregate principal amount of the notes to be converted and, at the election of the Company, cash and/or shares of common stock in respect to the remainder, if any, of the conversion obligation. The proceeds from the Convertible Senior Notes were used to fund the cash portions of the acquisition of Copecresto Enterprises Limited and Whitehall.
In May 2012, the Company repurchased $36.6 million principal amount of Convertible Notes in four tranches for $35.3 million.
As of June 30, 2012 and December 31, 2011, the Company had accrued interest of $2.4 million and $2.7 million, respectively, related to the Convertible Senior Notes, with the next coupon due for payment on September 15, 2012. Total obligations under the Convertible Senior Notes are shown net of deferred finance costs, amortized over the life of the borrowings using the effective interest rate method as shown in the table below:
June 30, 2012 |
December 31, 2011 |
|||||||
Convertible Senior Notes |
$ | 273,358 | $ | 310,000 | ||||
Unamortized debt discount |
(560 | ) | (1,070 | ) | ||||
Debt discount related to ASC 470-20 |
(1,805 | ) | (4,285 | ) | ||||
|
|
|
|
|||||
Total |
$ | 270,993 | $ | 304,645 | ||||
|
|
|
|
For the three and six months ended June 30, 2012, the additional pre-tax non-cash interest expense recognized in the consolidated statement of operations was $1.4 million and $2.5 million, respectively and for three and six months ended June 30, 2011 $1.1 million and $2.1 million, respectively. Pre-tax increase in non-cash interest expense on our consolidated statements of operations and comprehensive income to be recognized until 2013, the maturity date of the Convertible Senior Notes, amounts to $1.9 million.
Senior Secured Notes due 2016
On December 2, 2009, the Company issued $380 million 9.125% Senior Secured Notes due 2016 and 380 million ($507.0 million) 8.875% Senior Secured Notes due 2016 (the 2016 Notes) in an unregistered offering to institutional investors. The Company used a portion of the net proceeds from the 2016 Notes to redeem the Companys outstanding 2012 Notes, having an aggregate principal amount of 245.4 million ($327.4 million) on January 4, 2010. The remainder of the net proceeds from the 2016 Notes was used to (i) purchase Lion Capitals remaining equity interest in Russian Alcohol by exercising the Lion Option and the Co-Investor Option, pursuant to the terms and conditions of the Lion Option Agreement and the Co-Investor Option Agreement, respectively (ii) repay all amounts outstanding under Russian Alcohol credit facilities; and (iii) repay certain other indebtedness.
On December 9, 2010, the Company issued an additional 50.0 million ($66.7 million) 8.875% Senior Secured Notes due 2016 (the 2016 Notes) in an unregistered offering to institutional investors. The Company used the net proceeds from the additional 2016 Notes to repay its term loans and overdraft facilities with Bank Handlowy w Warszawie S.A and Bank Zachodni WBK S.A.
As of June 30, 2012 and December 31, 2011 the Company had accrued interest of $6.9 million and $7.0 million, respectively related to the Senior Secured Notes due 2016, with the next coupon due for payment on December 1, 2012.
14
June 30, 2012 |
December 31, 2011 |
|||||||
Senior Secured Notes due 2016 |
$ | 920,767 | $ | 935,296 | ||||
Unamortized debt discount |
(2,919 | ) | (3,207 | ) | ||||
|
|
|
|
|||||
Total |
$ | 917,848 | $ | 932,089 | ||||
|
|
|
|
Senior notes due March 18, 2013 (Debt Security)
As described in Note 4 above, on May 4, 2012, the Company issued $70 million principal amount of senior notes due March 18, 2013, bearing an interest rate of 3.00% to JSC Russian Standard Bank, an affiliate of Russian Standard Corporation. Pursuant to the Amended SPA, as described in Note 18 below, upon approval of the Companys shareholders, and after the satisfaction of certain other conditions including the receipt of certain Polish regulatory waivers, Roust Trading will purchase such number of shares of common stock at a purchase price of $5.25 per share sufficient to repay the then-outstanding principal amount of the Debt Security, totaling approximately 13.3 million shares of common stock and sell to CEDC the entire principal amount of the Debt Security. In addition, interest payable on the Debt Security prior to the Second Closing may, at the option of Roust Trading and after the Second Closing, be effectively paid in shares of common stock at a price $3.44 per share of common stock. Pursuant to the Amended SPA, the final maturity date for the Debt Security will be extended to July 31, 2016.
June 30, 2012 |
December 31, 2011 |
|||||||
Senior Notes due 2013 |
$ | 70,000 | $ | 0 | ||||
|
|
|
|
|||||
Total |
$ | 70,000 | $ | 0 | ||||
|
|
|
|
As of June 30, 2012, the Company had accrued interest of $0.3 million, related to the Senior Notes due March 18, 2013, with the next coupon due for payment on September 18, 2012.
Total accumulated unamortized debt discount related to the Companys debt was $18.9 million and $16.5 million as of June 30, 2012 and December 31, 2011, respectively.
The following is a schedule by years of the future principal repayments for borrowings as of June 30, 2012:
June 30, 2012 |
December 31, 2011 |
|||||||
Principal repayments for the following years |
||||||||
2012 |
$ | 53,996 | $ | 78,504 | ||||
2013 |
342,817 | 304,645 | ||||||
2014 |
0 | 0 | ||||||
2015 |
0 | 0 | ||||||
2016 and beyond |
917,848 | 932,089 | ||||||
|
|
|
|
|||||
Total |
$ | 1,314,661 | $ | 1,315,238 | ||||
|
|
|
|
15
8. | INVENTORIES |
The following table summarizes our inventories:
June 30, 2012 |
December 31, 2011 |
|||||||
Raw materials and supplies |
$ | 18,510 | $ | 22,237 | ||||
In-process inventories |
6,873 | 2,655 | ||||||
Finished goods and goods for resale |
111,443 | 92,798 | ||||||
|
|
|
|
|||||
Total |
$ | 136,826 | $ | 117,690 | ||||
|
|
|
|
Because of the nature of the products supplied by the Company, great attention is paid to inventory rotation. The number of days in inventory increased from approximately 81 days as of December 31, 2011 to approximately 111 days as of June 30, 2012. As a comparison, the number of days in inventory as of June 30, 2011 amounted to 109 days with total balance of $150.2 million.
9. | INCOME TAXES |
Our tax charge for the six months ended June 30, 2012 was $2.0 million which represents an effective tax rate for this period of -6.5%. The underlying tax rates in our key jurisdictions are 19% in Poland, 20% in Russia, 21% in Ukraine, 16% in Hungary and 35% in the United States. Changes in the Companys uncertain income tax positions, excluding the related accrual for interest and penalties, for the six-month period ended June 30, 2012 result from additions to accruals for current and prior year tax positions. There were no reductions for prior year tax positions, settlements or lapses in statutes of limitations. As of June 30, 2012 and December 31, 2011, the uncertain income tax position balance was $6.9 million and $7.1 million, respectively.
10. | OPERATING SEGMENTS |
The Company operates and manages its business based upon three primary geographic segments: Poland, Russia and Hungary. Selected financial data split based upon this segmentation assuming elimination of intercompany revenues and profits is shown below: Segment information represents only continuing operations.
Segment Net Sales | Segment Net Sales | |||||||||||||||
Three months ended June 30, | Six months ended June 30 | |||||||||||||||
2012 | 2011 (Restated, see Note 2) |
2012 | 2011 (Restated, see Note 2) |
|||||||||||||
Segment |
||||||||||||||||
Poland |
$ | 56,172 | $ | 58,612 | $ | 103,307 | $ | 105,229 | ||||||||
Russia |
125,354 | 132,191 | 218,780 | 218,770 | ||||||||||||
Hungary |
5,675 | 7,553 | 11,103 | 12,711 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total Net Sales |
$ | 187,201 | $ | 198,356 | $ | 333,190 | $ | 336,710 |
Operating income / (loss) | Operating income / (loss) | |||||||||||||||
Three months ended June 30, | Six months ended June 30, | |||||||||||||||
2012 | 2011 (Restated, see Note 2) |
2012 | 2011 (Restated, see Note 2) |
|||||||||||||
Segment |
||||||||||||||||
Poland before fair value adjustments |
$ | 9,112 | $ | 8,242 | $ | 15,592 | $ | 13,035 | ||||||||
Gain on remeasurement of previously held equity interests |
0 | 0 | 0 | 7,898 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Poland after fair value adjustments |
9,112 | 8,242 | 15,592 | 20,933 | ||||||||||||
Russia |
3,090 | 3,063 | (5,373 | ) | (3,156 | ) | ||||||||||
Hungary |
762 | 1,280 | 1,482 | 1,941 | ||||||||||||
Corporate Overhead |
||||||||||||||||
General corporate overhead |
(5,002 | ) | (1,049 | ) | (6,694 | ) | (2,292 | ) | ||||||||
Option Expense |
(725 | ) | (644 | ) | (1,589 | ) | (1,337 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Total Operating income / (loss) |
$ | 7,237 | $ | 10,892 | $ | 3,418 | $ | 16,089 |
16
Identifiable Operating Assets | ||||||||
June 30, 2012 |
December 31, 2011 |
|||||||
Segment |
||||||||
Poland |
$ | 540,450 | $ | 600,940 | ||||
Russia |
1,217,340 | 1,369,744 | ||||||
Hungary |
19,724 | 20,265 | ||||||
Corporate |
91,011 | 25,769 | ||||||
|
|
|
|
|||||
Total Identifiable Assets |
$ | 1,868,525 | $ | 2,016,718 |
Goodwill | ||||||||
June 30, 2012 |
December 31, 2011 |
|||||||
Segment |
||||||||
Poland |
$ | 254,230 | $ | 252,080 | ||||
Russia |
403,401 | 412,105 | ||||||
Hungary |
6,161 | 6,109 | ||||||
|
|
|
|
|||||
Total Goodwill |
$ | 663,792 | $ | 670,294 |
11. | INTEREST EXPENSE, NET |
The following items are included in Interest expense, net:
Three months ended June 30, | Six months ended June 30, | |||||||||||||||
2012 | 2011 | 2012 | 2011 | |||||||||||||
Interest income |
$ | 575 | $ | 356 | $ | 820 | $ | 881 | ||||||||
Interest expense |
(26,181 | ) | (28,717 | ) | (52,728 | ) | (56,094 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Total interest expense, net |
$ | (25,606 | ) | $ | (28,361 | ) | $ | (51,908 | ) | $ | (55,213 | ) |
12. | OTHER FINANCIAL INCOME, NET |
The following items are included in Other financial income, net:
Three months ended June 30, | Six months ended June 30, | |||||||||||||||
2012 | 2011 (Restated, see Note 2) |
2012 | 2011 (Restated, see Note 2) |
|||||||||||||
Foreign exchange impact related to foreign currency financing |
$ | (77,810 | ) | $ | 19,341 | $ | 20,537 | $ | 50,468 | |||||||
Gain on debt extinguishment |
1,309 | 0 | 1,309 | 0 | ||||||||||||
Other gains / (losses) |
1,071 | (333 | ) | 312 | (938 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total other financial income / (expense), net |
$ | (75,430 | ) | $ | 19,008 | $ | 22,158 | $ | 49,530 |
13. | OTHER NON-OPERATING EXPENSE |
The following items are included in Other Non-Operating Expense:
Three months ended June 30, | Six months ended June 30, | |||||||||||||||
2012 | 2011 | 2012 | 2011 | |||||||||||||
Factoring costs and bank fees |
$ | (1,879 | ) | $ | (1,408 | ) | $ | (4,141 | ) | $ | (2,079 | ) | ||||
Other gains / (losses) |
(622 | ) | (1,253 | ) | (958 | ) | (1,558 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Total other non operating income / (expense), net |
$ | (2,501 | ) | $ | (2,661 | ) | $ | (5,099 | ) | $ | (3,637 | ) |
14. | STOCK BASED COMPENSATION PLANS AND WARRANTS |
During the six months ended June 30, 2012, the range of exercise prices for outstanding options was $2.00 to $60.92. During the six months ended June 30, 2012, the weighted average remaining contractual life of options outstanding is 4.7 years. Exercise prices for options exercisable as of June 30, 2012 ranged from $2.00 to $60.92. The Company has also granted 401,915 restricted stock at an average price of $4.40 and 84,586 restricted stock units at an average price of $4.39 during the six months ended June 30,2012.
The Company has issued stock options to employees under stock based compensation plans. Stock options are issued at the current market price, subject to a vesting period, which varies from one to three years. As of June 30, 2012, the Company has not changed the terms of any outstanding awards.
During the six months ended June 30, 2012, the Company recognized compensation cost of $1.59 million.
As of June 30, 2012, there was $2.8 million of total unrecognized compensation cost related to non-vested stock options, restricted stock units and restricted stock granted under the Companys Stock Incentive Plan. The costs are expected to be recognized over the 2012 to 2015 period.
17
The following weighted-average assumptions were used in the calculation of fair value for options granted during 2011. For the six months ended June 30, 2012 the Company did not grant any options to its employees.
December 31, 2011 | ||||
Fair Value |
$ | 7.60 | ||
Dividend Yield |
0 | % | ||
Expected Volatility |
66.1 | % | ||
Weighted Average Volatility |
66.1 | % | ||
Risk Free Interest Rate |
3 | % | ||
Expected Life of Options from Grant |
3.2 |
15. | COMMITMENTS AND CONTINGENT LIABILITIES |
Supply contracts
The Company has various agreements covering its sources of supply, which, in some cases, may be terminated by either party on relatively short notice. Thus, there is a risk that a portion of the Companys supply of products could be curtailed at any time.
Bank Guarantees
In accordance with current legislation in Russia each producer of spirit beverages must acquire excise stamps and must pay excise tax in full before buying spirit for production purposes. For each lot of stamps purchased, the alcohol producer must provide the relevant body with a bank guarantee in the full amount of payment for the excise tax to secure the legality of usage of the excise stamps. This bank guarantee serves as insurance against the illegal usage of excise stamps by an alcohol producer.
In addition, under new legislation effective since August 1, 2011 the producer purchasing spirit alcohol must a) prepay the excise tax in full or b) provide the relevant tax body with a bank guarantee in the full amount of the excise tax before purchasing to secure payment of the excise tax. This bank guarantee serves as insurance that the excise tax is paid in time.
Russian Alcohol signed a guarantee line agreement with multiple banks pursuant to which it was provided with a guarantee limit of 19.3 billion Russian rubles (approximately $586.7 million) for a period from 1 to 4 years, Bravo Premium signed a guarantee line agreement with multiple banks pursuant to which it was provided with a guarantee limit of 720.0 million Russian rubles (approximately $21.9 million) for a period from 1 to 2 years and Whitehall signed a guarantee line agreement with multiple banks pursuant to which it was provided with a guarantee limit of 1.2 billion Russian rubles (approximately $36.5 million) as insurance against the illegal usage of excise stamps.
According to the agreements, companies have the right to obtain bank guarantees during the agreement term for each purchase of excise stamps and for the purchase of spirit. The guarantees for excise stamps are held by Rosalkoregulirovanie (the Federal Service for Alcohol Market Regulation), during the whole production period for which the excise stamps were purchased. The guarantee for excise tax is held by the beneficiary (the tax body) for 6 months after the end of month the spirit was purchased.
As of June 30, 2012, the Company has bank guarantees related to customs duties on imported goods in Poland of 6.2 million Polish zlotys (approximately $1.8 million).
Operating Leases and Rent Commitments
The Company makes rental payments for real estate, vehicles, office, computer, and manufacturing equipment under operating leases. The following is a schedule by years of the future rental payments under the non-cancelable operating lease as of June 30, 2012:
2012 |
$ | 5,835 | ||
2013 |
9,130 | |||
2014 |
8,722 | |||
2015 |
8,148 | |||
2016 |
5,536 | |||
Thereafter |
2,976 | |||
|
|
|||
Total |
$ | 40,347 | ||
|
|
18
During 2012, the Company continued its policy of renewing its transportation fleet by way of capital leases. The future minimum lease payments for the assets under capital lease as of June 30, 2012 are as follows:
2012 |
$ | 801 | ||
2013 |
604 | |||
2014 |
236 | |||
|
|
|||
Gross payments due |
$ | 1,641 | ||
Less interest |
(115 | ) | ||
|
|
|||
Net payments due |
$ | 1,526 | ||
|
|
Legal proceedings
From time to time we are involved in legal proceedings arising in the normal course of our business, including opposition and cancellation proceedings with respect to trademarks similar to some of our brands, and other proceedings, both in the United States and elsewhere. Except as set forth below, we are not currently involved in or aware of any pending or threatened proceedings that we reasonably expect, either individually or in the aggregate, will result in a material adverse effect on our consolidated financial statements.
On October 24, 2011, a class action complaint titled Steamfitters Local 449 Pension Fund vs. Central European Distribution Corporation, et al., was filed in the United States District Court, District of New Jersey on behalf of a putative class of all purchasers of our common stock from August 5, 2010 through February 28, 2011 against us and certain of our officers. The complaint seeks unspecified money damages and alleges violations of federal securities law in connection with alleged materially false and misleading statements and/or omissions regarding our business, financial results and prospects in our public statements and public filings with the U.S. Securities & Exchange Commission for the second and third quarters of 2010, relating to declines in our vodka portfolio, our need to take an impairment charge relating to the deterioration in fair value of certain of our brands in Poland and negative financial results from the launch of Żubrówka Biała. Subsequent to the above complaint, a second, substantially similar class action complaint titled Tim Schuler v. Central European Distribution Corporation, et al., was filed in the same court. By Order dated August 22, 2012, the Steamfitters action and the Schuler action were consolidated and are now proceeding in the District of New Jersey under the caption In re Central European Distribution Corp. Securities Litigation.
On June 8, 2012, a purported securities fraud class action titled Grodko v. Central European Distribution Corporation, et al., was filed against the Company in the United States District Court for the Southern District of New York. The plaintiff in the lawsuit, who is suing purportedly on behalf of a class of all purchasers of the Companys common stock between March 1, 2010 and June 4, 2012, alleges that the Company made false and/or misleading statements related to and/or failed to disclose that (1) the Companys reported net sales in the years ended December 31, 2010 and 2011 were materially inflated; (2) as a result of a failure to account for retroactive trade rebates provided to the customers of Russian Alcohol, the Company anticipates restating its reported consolidated net sales, operating profit and related accounts for these periods; and (3) as a result of the foregoing, the Companys statements were materially false and misleading at all relevant times. On August 7, 2012 a second, substantially similar class action complaint titled Puerto Rico System of Annuities and Pension for Teachers v. Central European Distribution Corporation, et al., was filed in the same court. By Orders dated September 4, 2012, the Grodko action and the Puerto Rico System of Annuities and Pension for Teachers action were transferred to the United States District Court for the District of New Jersey, where the actions have been consolidated with the prior-pending cases in New Jersey and are proceeding under the caption In re Central European Distribution Corp. Securities Litigation. Objections by certain plaintiffs to the consolidation of these actions are pending.
The Company intends to mount a vigorous defense to the claims asserted. Although we believe the allegations in the class action complaints are without merit, these types of lawsuits can be protracted, time-consuming, distracting to management and expensive and, whether or not the claims are ultimately successful, could ultimately have an adverse effect on our business, operating results and cash flows.
In connection with the Restatement, the Audit Committee of the Companys Board of Directors voluntarily notified the SEC of the internal investigation. The Company is fully cooperating with the SEC. Any action by the SEC or other government agency could result in sanctions against the Company and/or certain of its current or former officers, directors or employees. Any such action could ultimately have an adverse effect on our business, operating results and cash flows.
16. | FAIR VALUE MEASUREMENTS |
The Company utilizes the accounting guidance for fair value measurements and disclosures for all financial assets and liabilities and nonfinancial assets and liabilities that are recognized or disclosed at fair value in the condensed financial statements on a recurring basis or on a nonrecurring basis during the reporting period. The fair value is an exit price, representing the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants based upon the best use of the asset or liability at the measurement date. The Company utilizes market data or assumptions that market participants would use in pricing the asset or liability. The accounting guidance establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value. The three levels of inputs used to measure fair value are as follows:
Level 1 | Quoted prices in active markets for identical assets or liabilities. | |
Level 2 | Observable inputs other than quoted prices included in Level 1. We value assets and liabilities included in this level using dealer and broker quotations, certain pricing models, bid prices, quoted prices for similar assets and liabilities in active markets, or other inputs that are observable or can be corroborated by observable market data. |
19
Level 3 | Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities. This includes certain pricing models, discounted cash flow methodologies and similar techniques that use significant unobservable inputs. |
As of June 30, 2012, the Company held certain financial assets that are measured at fair value on a recurring basis. These consisted of cash and cash equivalents. The monetary assets represented by these financial instruments are primarily located in Poland, Hungary and Russia. Consequently, they are subject to currency translation risk when reporting in U.S. Dollars. The fair values of the cash and cash equivalents, Convertible Senior Notes and Secured Senior Notes is determined based on quoted market prices in public markets and is categorized as Level 1. Fair value of Debt Security is determined based on the principal face value and accrued interest and is categorized as Level 3. Apart from assets held for sale, the Company does not have any financial assets measured at fair value on a recurring basis as Level 3 and there were no transfers in or out of Level 1, Level 2 or Level 3 during the six months ended June 30, 2012.
Non-financial assets and liabilities, such as goodwill and long-lived assets, are accounted for at fair value on a nonrecurring basis. These items are tested for impairment on the occurrence of a triggering event or in the case of goodwill, on at least an annual basis. Management reviews long-lived assets for potential impairment whenever significant events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. An impairment exists when the carrying amount of the long-lived asset is not recoverable and exceeds its fair value. The carrying amount of a long-lived asset is not recoverable if it exceeds the sum of the estimated undiscounted cash flows expected to result from the use and eventual depletion of the asset. If an impairment exists, the resulting write-down would be the difference between the fair market value of the long-lived asset and the related net book value. As of the balance sheet date, the carrying value of its long-lived assets are recoverable and no impairment existed.
The following table sets forth by level, within the fair value hierarchy, the Companys financial assets accounted for at fair value on a recurring and nonrecurring basis (cash and cash equivalents as well as assets held for sale) and fair values of financial assets accounted for at their carrying values (Convertible Senior Notes, Senior Secured Notes and Debt Security) as of June 30, 2012 and December 31, 2011.
Assets at Fair Value Using | ||||||||||||||||
Quoted Prices in Activated Markets for Identical Assets |
Significant Other Observable |
Unobservable Inputs |
||||||||||||||
Total | (Level 1) | (Level 2) | (Level 3) | |||||||||||||
June 30, 2012 | ||||||||||||||||
Recurring items |
||||||||||||||||
Cash and cash equivalents |
$ | 138,680 | $ | 138,680 | $ | 0 | $ | 0 | ||||||||
Convertible Senior Notes |
$ | 232,390 | $ | 232,390 | $ | 0 | $ | 0 | ||||||||
Secured Senior Notes |
$ | 518,400 | $ | 518,400 | $ | 0 | $ | 0 | ||||||||
Debt Security |
$ | 70,338 | $ | 0 | $ | 0 | $ | 70,338 | ||||||||
Nonrecurring items |
||||||||||||||||
Assets held for sale |
$ | 675 | $ | 0 | $ | 0 | $ | 675 | ||||||||
December 31, 2011 | ||||||||||||||||
Recurring items |
||||||||||||||||
Cash and cash equivalents |
$ | 94,410 | $ | 94,410 | $ | 0 | $ | 0 | ||||||||
Convertible Senior Notes |
$ | 248,000 | $ | 248,000 | $ | 0 | $ | 0 | ||||||||
Secured Senior Notes |
$ | 702,700 | $ | 702,700 | $ | 0 | $ | 0 | ||||||||
Nonrecurring items |
||||||||||||||||
Assets held for sale |
$ | 675 | $ | 0 | $ | 0 | $ | 675 |
The Company has other financial instruments, such as receivables, accounts payable, overdrafts, short term bank loans and other liabilities which have been excluded from the tables above. Due to the short-term nature of these instruments, the carrying value approximate their fair values. The Company did not have any other financial instruments with the scope of the fair value disclosure requirements as of June 30, 2012.
17. | EFFECTS OF FOREIGN CURRENCY MOVEMENTS |
Substantially all of the Companys operating cash flows and assets are denominated in Polish zloty, Russian ruble and Hungarian forint. This means that the Company is exposed to translation movements both on its balance sheet and statement of operations and comprehensive income. The impact on working capital items is demonstrated on the cash flow statement as the movement in exchange on cash and cash equivalents. The impact on the statement of operations is by the movement of the average exchange rate used to restate the statement of operations from Polish zloty, Russian ruble and Hungarian forint to U.S. dollars. The amounts shown as exchange rate gains or losses on the face of the statements of operations relate only to realized gains or losses on transactions that are not denominated in Polish zloty, Russian ruble or Hungarian forint. Table below presents the exchange rates used for translation of our balance sheet and statement of operations and comprehensive income balances as of and for the three months ended June 30, 2012:
Balance sheet rate as of June 30, 2012 |
Balance sheet rate as of December 31, 2011 |
Average rate for the three months ended June 30, 2012 |
Average rate for the three months ended June 30, 2011 |
|||||||||||||
PLN / US$ |
3.3885 | 3.4174 | 3.3255 | 2.7500 | ||||||||||||
RUR / US$ |
32.8981 | 32.2092 | 31.1085 | 27.9756 | ||||||||||||
HUF / US$ |
228.9527 | 240.6620 | 229.3448 | 184.5638 |
20
Because the Companys reporting currency is the U.S. dollar, the translation effects of fluctuations in the exchange rate of our functional currencies have impacted the Companys financial condition and results of operations and have affected the comparability of our results between financial periods.
The Company has borrowings including its Convertible Notes due 2013 and Senior Secured Notes due 2016 that are denominated in U.S. dollars and euros, which have been lent to its operations where the functional currency is the Polish zloty and Russian ruble. The effect of having debt denominated in currencies other than the Companys functional currencies is to increase or decrease the value of the Companys liabilities on that debt in terms of the Companys functional currencies when those functional currencies depreciate or appreciate in value respectively. As a result of this, the Company is exposed to gains and losses on the re-measurement of these liabilities. The table below summarizes the pre-tax impact of a one percent movement in each of the exchange rate which could result in a significant impact in the results of the Companys operations.
Exchange Rate |
Value of notional amount | Pre-tax impact of a 1% movement in exchange rate | ||
USD-Polish zloty |
$459 million | $4.6 million gain/loss | ||
USD-Russian ruble |
$264 million | $2.6 million gain/loss | ||
EUR-Polish zloty |
430 million or approximately $541 million | $5.4 million gain/loss |
18. | SUBSEQUENT EVENTS |
Amended agreement with Russian Standard
On July 9, 2012, the Company entered into an amended and restated securities purchase agreement (the Amended SPA) with Roust Trading, which amended and restated the entirety of the SPA described in Note 4. The material amendments to the terms of the SPA as set forth in the Amended SPA include:
| the Company will, within five business days of a request by Roust Trading, issue to Roust Trading, as an adjustment to the issue price of the Initial Shares and Exchange Shares, up to the following amount of shares of common stock at any time after the following dates: (i) 3 million shares of common stock after the execution of the Amended SPA; (ii) 5 million shares of common stock after receipt of Company Stockholder Approval (as defined in the Amended SPA); and (iii) 2 million shares following the Backstop Escrow Release Date (as defined in the Amended SPA) (the shares of common stock in clauses (i), (ii) and (iii) above collectively the Additional Shares); |
| interest payable (i) on the Debt Security prior to the Second Closing (as defined in the Amended SPA) may, at the option of Roust Trading and after the Second Closing, be effectively paid in shares of common stock at a price of $3.44 per share of common stock, (ii) on the Rollover Notes through June 30, 2014, will be effectively paid in a number of shares of common stock, determined by dividing the amount of interest payable over such period by the 5-day volume weighted average price (the VWAP) of the common stock (as traded on NASDAQ), provided that the VWAP may never exceed $4.13 or be lower than $2.75 (the VWAP Amount), and (iii) on the Backstop Notes through December 31, 2013, will be effectively paid in a number of shares of common stock, determined by dividing the amount of interest payable over such period by the VWAP Amount; |
| the final maturity date for the Debt Security will be extended to July 31, 2016; and |
| the Companys board of directors authorized (subject to applicable blackout periods and regulatory limitations) Roust Trading to purchase an amount of shares of common stock in the market that, when added to the shares currently owned by Roust Trading, the Exchange Shares, the Additional Shares and the shares that Roust Trading would receive in connection with interest payments under notes issued and to be issued to Roust Trading, would not exceed an amount of outstanding share capital of the Company that would require Roust Trading to make a tender offer for the Companys common stock under Polish law. Upon receipt of certain Polish regulatory waivers if and to the extent received, the Companys board of directors has agreed that the threshold will be raised to 42.9%. |
In consideration of the above terms, and subject to the fulfillment of certain conditions, Roust Trading has agreed to waive certain contractual claims it may have under the Original SPA and under certain other agreements arising from the accounting errors announced on the Companys Form 8-K filed with the SEC on June 4, 2012.
The cash proceeds from the Rollover Notes will be used by the Company to repurchase the Convertible Notes held by Roust Trading or its affiliates with a face value of approximately $102.6 million, at par. The remaining proceeds (net of transaction fees and expenses) received by the Company from the issuance of the Initial Shares, Debt Security and Backstop Notes will be used to repurchase or repay the outstanding amount of Convertible Notes.
The Company restated its consolidated financial statements as of and for the periods ended December 31, 2011 September 30, 2011 and March 30, 2012 primarily due to the fact that certain retroactive trade rebates and trade marketing refunds were not properly recorded by CEDCs principle operating subsidiary in Russia, the Russian Alcohol Group. The cumulative impact of restatements for the years ended December 31, 2011 and 2010, exceeded certain thresholds as set out in the Amended SPA dated July 9, 2012, with Roust Trading related to CEDCs strategic alliance with Russian Standard
Corporation. As a result, CEDC and Russian Standard Corporation have begun discussions regarding this matter and remain committed to moving forward with their strategic alliance. The Company expects to provide an update on this transaction in due course.
Notification Letter from NASDAQ
On August 10, 2012, the Company received a notification letter from a representative of the Listing Qualifications Department of The NASDAQ OMX Group (NASDAQ) stating that due to the Companys inability to timely file its Form 10-Q for the period ended June 30, 2012 (the 2nd Quarter Form 10-Q), the Company was not in compliance with NASDAQ Listing Rule 5250(c)(1). This notification was issued in accordance with standard NASDAQ procedures, in connection with the Companys announcement on August 10, 2012, on Form 12b-25 that the Company would not be able to timely file its 2nd Quarter Form 10-Q. The NASDAQ notification letter noted that the Company has until October 9, 2012 to submit to NASDAQ a plan to regain compliance with the applicable listing rule. Upon acceptance of the Companys compliance plan, NASDAQ may grant the Company an exception of up to 180 calendar days from the 2nd Quarter Form 10-Qs initial due date, or until February 5, 2013, for the Company to regain compliance with NASDAQs filing requirements for continued listing. If necessary, the Company will submit a plan to regain compliance with NASDAQs filing requirements within the 60 day deadline. As the Form 10-Q for the three and six months periods ended June 30, 2012 has been filed with the SEC before October 9, 2012, no further action should be required.
Suspension of Trading Shares on the Warsaw Stock Exchange
On September 4, 2012, trading in the shares of Central European Distribution Corporation on the Warsaw Stock Exchange (the WSE) was suspended. The WSE trading suspension was implemented at the request of the Polish Financial Supervision Commission (the PFSC) because CEDC has not filed its unaudited condensed consolidated financial statements as of and for the three and six months ended June 30, 2012 as required under the relevant Polish regulations. It is practice in Poland to suspend trading in the shares of issuers that are not in compliance with the Polish periodic reporting obligations. Pursuant to a press release issued by the PFSC, the suspension is to remain in effect until either October 4, 2012 or such time as CEDC files its unaudited condensed consolidated financial statements as of and for the three and six months ended June 30, 2012, whichever occurs earlier. The Company expects to resume trading on the WSE following the filing of its 2nd Quarter Form 10-Q dated October 4, 2012.
21
Consent Solicitation
On August 10, 2012, the Company successfully completed a consent solicitation from the holders of the 2016 Notes. As a result of this consent solicitation the Company received a waiver from the 2016 Noteholders up to and including November 12, 2012, of any and all defaults and events of default, and the consequences thereof that may have occurred or may occur under the SEC Reporting Covenants contained in the indenture for the 2016 Notes.
The Company paid a consent fee of $2.50 in cash for each $1,000 in principal amount of its 9.125% Secured Senior Notes for which it received and accepted consents and 2.50 in cash for each 1,000 in principal amount of its 8.875% Secured Senior Notes for which it received and accepted consents.
19. | RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS |
In May 2011, the FASB issued ASU 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs (ASU 2011-04), which is effective for annual reporting periods beginning after December 15, 2011. This guidance amends certain accounting and disclosure requirements related to fair value measurements. Additional disclosure requirements in the update include: (1) for Level 3 fair value measurements, quantitative information about unobservable inputs used, a description of the valuation processes used by the entity, and a qualitative discussion about the sensitivity of the measurements to changes in the unobservable inputs; (2) for an entitys use of a nonfinancial asset that is different from the assets highest and best use, the reason for the difference; (3) for financial instruments not measured at fair value but for which disclosure of fair value is required, the fair value hierarchy level in which the fair value measurements were determined; and (4) the disclosure of all transfers between Level 1 and Level 2 of the fair value hierarchy. The Company adopted ASU 2011-04 during the first quarter of the current fiscal year. The adoption of ASU 2011-04 did not have a material impact on the Companys consolidated financial statements other than disclosures related to fair value measurements.
In June 2011, the FASB issued ASU 2011-05, Presentation of Comprehensive Income (ASU 2011-05), which was issued to enhance comparability between entities that report under U.S. GAAP and IFRS, and to provide a more consistent method of presenting non-owner transactions that affect an entitys equity. ASU 2011-05 eliminates the option to report other comprehensive income and its components in the statement of changes in stockholders equity and requires an entity to present the total of comprehensive income, the components of net income and the components of other comprehensive income either in a single continuous statement or in two separate but consecutive statements. This pronouncement is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011. However, in December 2011, the FASB issued ASU 2011-12, Deferral of the Effective Date for Amendments to the Presentation of Reclassifications of Items Out of Accumulated Other Comprehensive Income in Accounting Standards Update No. 2011-05 (ASU 2011-12), which deferred the guidance on whether to require entities to present reclassification adjustments out of accumulated other comprehensive income by component in both the statement where net income is presented and the statement where other comprehensive income is presented for both interim and annual financial statements. ASU 2011-12 reinstated the requirements for the presentation of reclassifications that were in place prior to the issuance of ASU 2011-05 and did not change the effective date for ASU 2011-05. For public entities, the amendments in ASU 2011-05 and ASU2011-12 are effective for fiscal years, and interim periods within those years, beginning after December 15, 2011, and should be applied retrospectively. The Company adopted both ASU 2011-05 and ASU 2011-12 during the first quarter of the current fiscal year. The adoption of ASU 2011-05 and ASU 2011-12 did not have a material impact on the Companys consolidated financial statements, other than presentation of comprehensive income.
In September 2011, the FASB issued ASU 2011-08, Testing Goodwill for Impairment (ASU 2011-08), which simplifies testing for impairment by allowing an entity to first assess qualitative factors and determine if it is more likely than not (defined as 50% or more) that the fair value of the reporting unit is less than its carrying amount. That determination can then be used to decide if it is necessary to perform the two-step goodwill impairment test. ASU 2011-08 is effective for annual and interim goodwill impairment tests performed for fiscal years beginning after December 15, 2011, which corresponds to the Companys first quarter of current fiscal year. The Company will adopt ASU 2011-08 during the current fiscal year and this adoption is not expected to have a material impact on the Companys consolidated financial statements.
22
ITEM 2. | MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
The following analysis should be read in conjunction with the Condensed Consolidated Financial Statements and the notes thereto appearing elsewhere in this report.
Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995 Regarding Forward-Looking Information.
This report (and other oral and written statements we have made or make, including press releases containing information about our business, results of operations, financial condition, guidance and other business developments), contains forward-looking statements, which provide our current expectations or forecasts of future events. These forward-looking statements may be identified by the use of forward-looking terminology, including the terms believes, estimates, anticipates, expects, intends, may, will or should or, in each case, their negative, or other variations or comparable terminology, but the absence of these words does not necessarily mean that a statement is not forward-looking. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this report and include, without limitation:
| information concerning possible or assumed future results of operations, trends in financial results and business plans, including those relating to earnings growth and revenue growth, liquidity, prospects, strategies and the industry in which the Company and its affiliates operate, as well as the integration of recent acquisitions and other investments and the effect of such acquisitions and other investments on the Company; |
| statements about the expected level of our costs and operating expenses, and about the expected composition of the Companys revenues; |
| information about the impact of governmental regulations on the Companys businesses; |
| statements about local and global credit markets, currency exchange rates and economic conditions; |
| other statements about the Companys plans, objectives, expectations and intentions including with respect to its credit facility and other outstanding indebtedness; |
| statements relating to shareholder approval of the transaction with Roust Trading and Roust Tradings ability or intention to fund some or all of its investment in the Company; and |
| other statements that are not historical facts. |
By their nature, forward-looking statements involve known and unknown risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. We caution you that forward-looking statements are not guarantees of future performance and that our actual results of operations, financial condition and liquidity, the development of the industries in which we operate, and the effects of acquisitions and other investments on us may differ materially from those anticipated in or suggested by the forward-looking statements contained in this report. In addition, even if our results of operations, financial condition and liquidity, and the development of the industry in which we operate, are consistent with the forward-looking statements contained in this report, those results or developments may not be indicative of results or developments in subsequent periods.
We urge you to read and carefully consider the items of this and other reports and documents that we have filed with or furnished to the SEC for a more complete discussion of the factors and risks that could affect our future performance and the industry in which we operate, including the risk factors described in this report and in the Companys Annual Report on Form 10-K/A dated October 4, 2012. In light of these risks, uncertainties and assumptions, the forward-looking events described in this report may not occur as described, or at all.
You should not unduly rely on these forward-looking statements, because they reflect our views only as of the date of this report. The Company undertakes no obligation to publicly update or revise any forward-looking statement to reflect circumstances or events after the date of this report, or to reflect on the occurrence of unanticipated events. All subsequent written and oral forward-looking statements attributable to us or to persons acting on our behalf are expressly qualified in their entirety by the cautionary statements referred to above and contained elsewhere in this report.
The following discussion and analysis should be read in conjunction with the Consolidated Financial Statements and the notes thereto found elsewhere in this report.
Overview
The Company is one of the worlds largest vodka producers and Central and Eastern Europes largest integrated spirit beverages business with its primary operations in Poland, Russia and Hungary. In Poland, the Company was able to see year on year domestic sales volume and value growth for the quarter ending June 30, 2012 primarily due to the continued success of Żubrówka Biała and the higher margin flavored segment including Soplica. In Russia, although our sales volumes for the first six month were down by 3.3%, sales were flat in the second quarter, following the change of the management team in Russia. Nonetheless, Russia continues to be a challenging environment with excise taxes increasing by 18% in July 2012 (the second increase of the year) and overall difficult consumer market.
Restatement
The Company is restating its unaudited condensed consolidated financial statements for the three and six months ended June 30, 2011. The Restatement corrects certain accounting errors primarily related to the accounting for retroactive rebates provided to customers during those periods, accounting for revenue transactions, assets write-offs, cut off errors and income taxes. The Restatement also includes reclassifications of accounts payable for periods prior to 2011 to conform to the current presentation. All amounts in the following Managements Discussion and Analysis of Financial Conditions and Results of Operations have been adjusted, as appropriate, for the effects of the Restatement. For a more detailed description of the Restatement, see Note 2, Restatement of unaudited condensed consolidated financial statements, to the accompanying unaudited condensed consolidated financial statements.
23
Significant factors affecting our consolidated results of operations
Effect of Exchange Rate and Interest Rate Fluctuations
Substantially all of Companys operating cash flows and assets are denominated in Polish zloty, Russian ruble and Hungarian forint. This means that the Company is exposed to translation movements both on its balance sheet and statement of operations. The impact on working capital items is demonstrated on the cash flow statement as the movement in exchange on cash and cash equivalents. The impact on the statement of operations is due to the movement of the average exchange rate used to restate the statements of operations from Polish zloty, Russian ruble and Hungarian forint to U.S. dollars. The amounts shown as exchange rate gains or losses on the face of the statements of operations relate only to realized gains or losses on transactions that are not denominated in Polish zloty, Russian ruble or Hungarian forint. The table below presents the exchange rates used for translation of our balance sheet and statement of operations balances as of and for the quarter ended June 30, 2012:
Balance sheet rate as of June 30, 2012 |
Average rate for the three months ended June 30, 2012 |
|||||||
PLN / US$ |
3.3885 | 3.3255 | ||||||
RUR / US$ |
32.8981 | 31.1085 | ||||||
HUF / US$ |
228.9527 | 229.3448 |
Because the Companys reporting currency is the U.S. dollar, the translation effects of fluctuations in the exchange rate of our functional currencies have impacted the Companys financial condition and results of operations and have affected the comparability of our results between financial periods.
The Company also has borrowings including its Convertible Notes due 2013 and Senior Secured Notes due 2016 that are denominated in U.S. dollars and euros, which have been lent to its operations where the functional currency is the Polish zloty and Russian ruble. The effect of having debt denominated in currencies other than the Companys functional currencies is to increase or decrease the value of the Companys liabilities on that debt in terms of the Companys functional currencies when those functional currencies depreciate or appreciate in value, respectively. As a result of this, the Company is exposed to gains and losses on the re-measurement of these liabilities. The table below summarizes the pre-tax impact of a one percent movement in each of the exchange rate which could result in a significant impact in the results of the Companys operations.
Exchange Rate |
Value of notional amount | Pre-tax impact of a 1% movement in exchange rate | ||
USD-Polish zloty |
$459 million | $4.6 million gain/loss | ||
USD-Russian ruble |
$264 million | $2.6 million gain/loss | ||
EUR-Polish zloty |
430 million or approximately $541 million | $5.4 million gain/loss |
24
Results of Operations:
Three months ended June 30, 2012 compared to three months ended June 30, 2011
A summary of the Companys operating performance (expressed in thousands except per share amounts) is presented below.
Three months ended June 30, | ||||||||
2012 | 2011 (Restated) |
|||||||
Sales |
$ | 402,750 | $ | 425,838 | ||||
Excise taxes |
(215,549 | ) | (227,482 | ) | ||||
|
|
|
|
|||||
Net sales |
187,201 | 198,356 | ||||||
Cost of goods sold |
111,864 | 123,708 | ||||||
|
|
|
|
|||||
Gross profit |
75,337 | 74,648 | ||||||
|
|
|
|
|||||
Selling, general and administrative expenses |
68,100 | 63,756 | ||||||
|
|
|
|
|||||
Operating income |
7,237 | 10,892 | ||||||
|
|
|
|
|||||
Non operating income / (expense), net |
||||||||
Interest income / (expense), net |
(25,606 | ) | (28,361 | ) | ||||
Other financial income / (expense), net |
(75,430 | ) | 19,008 | |||||
Other non operating income / (expense), net |
(2,501 | ) | (2,661 | ) | ||||
|
|
|
|
|||||
Income / (loss) before taxes and equity in net income from unconsolidated investments |
(96,300 | ) | (1,122 | ) | ||||
|
|
|
|
|||||
Income tax expense |
2,651 | (2,211 | ) | |||||
|
|
|
|
|||||
Net loss attributable to the company |
(93,649 | ) | (3,333 | ) | ||||
|
|
|
|
|||||
Net loss from operations per share of common stock, basic |
$ | (1.23 | ) | $ | (0.05 | ) | ||
Net loss from operations per share of common stock, diluted |
$ | (1.23 | ) | $ | (0.05 | ) | ||
Other comprehensive income / (loss), net of tax: |
||||||||
Foreign currency translation adjustments |
(39,869 | ) | 30,428 | |||||
|
|
|
|
|||||
Comprehensive income / (loss) attributable to the company |
$ | (133,518 | ) | $ | 27,095 | |||
|
|
|
|
25
Net Sales
Net sales represent total sales net of all customer rebates, excise tax on production and imports, and value added tax. Total net sales decreased by approximately 5.6%, or $11.2 million, from $198.4 million for the three months ended June 30, 2011 to $187.2 million for the three months ended June 30, 2012. This decrease was driven by the impact of foreign exchange translation of $24.9 million partially offset by higher local currency sales revenue of $13.9 million.
Segment Net Sales Three months ended June 30, |
||||||||
2012 | 2011 (Restated) |
|||||||
Segment |
||||||||
Poland |
$ | 56,172 | $ | 58,612 | ||||
Russia |
125,354 | 132,191 | ||||||
Hungary |
5,675 | 7,553 | ||||||
|
|
|
|
|||||
Total Net Sales |
$ | 187,201 | $ | 198,356 |
Sales for Poland decreased by $2.4 million from $58.6 million for the three months ended June 30, 2011 to $56.2 million for the three months ended June 30, 2012. This decrease was mainly a combination of a volume growth of domestic vodkas of 6%, resulting in a net sales value increase of $7.7 million, or 9% in local currency terms, offset by weaker Polish zloty against the U.S. dollar which accounted for approximately $10.1 million of sales in U.S. dollar terms. The Company continued to see strong demand for its Żubrówka Biała as well as higher margin flavored vodkas including Soplica.
Sales for Russia decreased by $6.8 million from $132.2 million for the three months ended June 30, 2011 to $125.4 million for the three months ended June 30, 2012. The sales decline in Russia resulted from the impact of foreign exchange translation of $13.3 million, offset by increased export sales of $1.0 million and domestic sales value increase of $5.5 million. Domestic vodka sales volumes were flat for the quarter however improved pricing and lower trade spend resulted in sales value growth.
Sales for Hungary decreased by $1.9 million from $7.6 million for the three months ended June 30, 2011 to $5.7 million for the three months ended June 30, 2012, which resulted in a $0.4 million decrease in volumes on local currency terms, as well as a weaker Hungarian forint against the U.S. dollar which accounted for approximately $1.5 million of sales in U.S. dollar terms.
Gross Profit
Total gross profit increased by approximately 0.9%, or $0.7 million, to $75.3 million for the three months ended June 30, 2012, from $74.6 million for the three months ended June 30, 2011. The decline in margin was driven primarily by the lower sales value in Russia. Although absolute gross margin declined, gross profit margins as a percentage of net sales increased by 2.9 percentage points from 37.6% to 40.2% for the three months ended June 30, 2012 as compared to the three months ended June 30, 2011. The improvement in gross margin percentage was driven by a number of factors including improved product and channel mix in Poland and price increases taken in Russia. Part of the improvement in pricing coming from the Russian market was offset by the year on year growth of spirit pricing which resulted in approximately $4.5 million of additional cost in the second quarter of 2012.
Operating Expenses
Operating expenses consist of selling, general and administrative, or SG&A expenses, advertising expenses, non-production depreciation and amortization, and provision for bad debts. Total operating expenses increased by $4.3 million, from $63.8 million for the three months ended June 30, 2011 to $68.1 million for the three months ended June 30, 2012. This increase was primarily driven by additional legal costs of $4.5 million, redundancy payments of $1.0 million and other restructuring costs of $6.0 million offset by a $7.2 million decrease resulting from weaker local currencies against U.S. dollar.
The table below sets forth the items of operating expenses.
26
Operating Expenses Three Months Ended June 30, |
||||||||
2012 | 2011 (Restated) |
|||||||
($ in thousands) | ||||||||
SG&A |
$ | 58,997 | $ | 55,176 | ||||
Marketing |
6,817 | 5,622 | ||||||
Depreciation and amortization |
2,286 | 2,958 | ||||||
|
|
|
|
|||||
Total operating expense |
$ | 68,100 | $ | 63,756 |
SG&A consists of salaries, warehousing and transportation costs, administrative expenses and bad debt expense. SG&A expenses increased by $3.8 million, from $55.2 million for the three months ended June 30, 2011 to $59.0 million for the three months ended June 30, 2012. The increase in SG&A expenses results primarily from additional legal costs incurred in the three months ended June 30, 2012 related to the restatement of financial statements of $4.5 million, $1.0 million of redundancy costs in Russia and additional bad debt provision in Russia of $2.1 million, offset by cost savings achieved on integration of businesses in Russia and Poland and an effect of weaker local currencies against U.S. dollar.
Depreciation and amortization decreased by $0.7 million, from $3.0 million for the three months ended June 30, 2011 to $2.3 million for the three months ended June 30, 2012.
Operating Income
Total operating income decreased by $3.7 million, from $10.9 million income for the three months ended June 30, 2011 to $7.2 million loss for the three months ended June 30, 2012, primarily driven by lower domestic sales and higher spirit costs in the Russian market. The table below summarizes the segmental split of operating profit.
Operating Income/(Loss) Three months ended June 30, |
||||||||
2012 | 2011 (Restated) |
|||||||
Segment |
||||||||
Poland |
$ | 9,112 | $ | 8,242 | ||||
Russia |
3,090 | 3,063 | ||||||
Hungary |
762 | 1,280 | ||||||
Corporate Overhead |
||||||||
General corporate overhead |
(5,002 | ) | (1,049 | ) | ||||
Option Expense |
(725 | ) | (644 | ) | ||||
|
|
|
|
|||||
Total Operating Profit/(Loss) |
$ | 7,237 | $ | 10,892 |
Underlying operating income in Poland increased by approximately 11.0%, or $0.9 million, from $8.2 million for the three months ended June 30, 2011 to $9.1 million for the three months ended June 30, 2012. The operating income in Russia remains stable at $3.1 million for the three months ended June 30, 2011 and for the three months ended June 30, 2012. The changes in operating income in both of these segments were driven by all of the factors described above.
Non Operating Income and Expenses
Total interest expense decreased by approximately 9.9%, or $2.8 million, from $28.4 million for the three months ended June 30, 2011 to $25.6 million for the three months ended June 30, 2012. This decrease was primarily driven by the euro exchange rate as compared to the Polish zloty.
The Company recognized $77.8 million of non-cash unrealized foreign exchange rate loss in the three months ended June 30, 2012, primarily related to the impact of movements in exchange rates on our U.S. dollar and euro denominated liabilities, as compared to $19.3 million of gain in the three months ended June 30, 2011. During three months ended June 30, 2012, the Company recognized $1.3 million gain on debt extinguishment related to repurchased part of Convertible Senior Notes due 2013.
Total other non-operating expenses decreased by $0.2 million, from a loss of $2.7 million for the three months ended June 30, 2011 to a loss of $2.5 million for the three months ended June 30, 2012.
Three months ended June 30, | ||||||||
2012 | 2011 | |||||||
Factoring costs and bank fees |
(1,879 | ) | (1,408 | ) | ||||
Other gains / (losses) |
(622 | ) | (1,253 | ) | ||||
|
|
|
|
|||||
Total other non operating income / (expense), net |
($ | 2,501 | ) | ($ | 2,661 | ) |
27
Income Tax
Our effective tax rate for the three months ended June 30, 2012 was 2.8% as compared to an average blended statutory rate of 21%. The difference between the statutory and effective tax rates was due primarily to permanent tax differences related to valuation allowances recorded against tax loss carry forwards that the Company believes will not be utilized in the future.
28
Six months ended June 30, 2012 compared to six months ended June 30, 2011
A summary of the Companys operating performance (expressed in thousands except per share amounts) is presented below.
Six months ended June 30, | ||||||||
2012 | 2011 (Restated) |
|||||||
Sales |
$ | 724,506 | $ | 743,919 | ||||
Excise taxes |
(391,316 | ) | (407,209 | ) | ||||
Net sales |
333,190 | 336,710 | ||||||
Cost of goods sold |
202,738 | 209,393 | ||||||
|
|
|
|
|||||
Gross profit |
130,452 | 127,317 | ||||||
|
|
|
|
|||||
Selling, general and administrative expenses |
127,034 | 119,126 | ||||||
Gain on remeasurement of previously held equity interests |
0 | (7,898 | ) | |||||
|
|
|
|
|||||
Operating income |
3,418 | 16,089 | ||||||
|
|
|
|
|||||
Non operating income / (expense), net |
||||||||
Interest income / (expense), net |
(51,908 | ) | (55,213 | ) | ||||
Other financial income / (expense), net |
22,158 | 49,530 | ||||||
Other non operating income / (expense), net |
(5,099 | ) | (3,637 | ) | ||||
|
|
|
|
|||||
Income / (loss) before income taxes and equity in net losses from unconsolidated investments |
(31,431 | ) | 6,769 | |||||
|
|
|
|
|||||
Income tax benefit / (expense) |
(2,034 | ) | (4,190 | ) | ||||
Equity in net losses of affiliates |
0 | (7,946 | ) | |||||
|
|
|
|
|||||
Net loss attributable to the company |
(33,465 | ) | (5,367 | ) | ||||
|
|
|
|
|||||
Net loss from operations per share of common stock, basic |
$ | (0.45 | ) | $ | (0.07 | ) | ||
Net loss from operations per share of common stock, diluted |
$ | (0.45 | ) | $ | (0.07 | ) | ||
Other comprehensive income / (loss), net of tax: |
||||||||
Foreign currency translation adjustments |
(17,345 | ) | 164,600 | |||||
|
|
|
|
|||||
Comprehensive income / (loss) attributable to the company |
$ | (50,810 | ) | $ | 159,233 | |||
|
|
|
|
29
Net Sales
Net sales represent total sales net of all customer rebates, excise tax on production and imports and value added tax. Total net sales decreased by approximately 1.0%, or $3.5 million, from $336.7 million for the six months ended June 30, 2011 to $333.2 million for the six months ended June 30, 2012.
The decrease was driven by the impact of foreign exchange translation of $33.1 million, partially offset by the consolidation of Whitehall only for five months in 2011 comparing to full two quarters in 2012 of $6.5 million and higher local currency sales value of $23.1 million. In Russia although sales volumes were lower, this was offset by improved pricing and lower trade marketing spend in the quarter.
Our business split by segment, which represents our primary geographic locations of operations, Poland, Russia and Hungary, is shown below:
Segment Net Sales | ||||||||
Six months ended June 30, | ||||||||
2012 | 2011 (Restated) |
|||||||
Segment |
||||||||
Poland |
$ | 103,307 | $ | 105,229 | ||||
Russia |
218,780 | 218,770 | ||||||
Hungary |
11,103 | 12,711 | ||||||
|
|
|
|
|||||
Total Net Sales |
$ | 333,190 | $ | 336,710 |
Sales for Poland decreased by $1.9 million from $105.2 million for the six months ended June 30, 2011 to $103.3 million for the six months ended June 30, 2012. This decrease was driven mainly by a weaker Polish zloty against the U.S. dollar which accounted for approximately $15.1 million of sales in U.S. dollar terms offset by higher volume sales of $13.2 million. In 2012, the Company continued to see strong demand for its Żubrówka Biała, as well as higher margin flavored vodkas including Soplica.
Sales for Russia remains stable at $218.8 million for the six months ended June 30, 2012 and for the six months ended June 30, 2011. There was a decline in sales in Russia driven by the weakening of the Russian ruble against the U.S. dollar which accounted for approximately $15.9 million of sales in U.S. dollar terms offset by increased export sales of $1.3 million, domestic sales value increase of $8.1 million and consolidation of Whitehall only for five months in 2011 comparing to two full quarters in 2012 of $6.5 million. Lower sales volumes in Russia during first quarter of 2012 were primarily due to an overall weak vodka market in Russia, with total sales volumes in the industry down during the quarter, as well as continued lower inventory levels in the wholesale trade and reduced sales to key accounts during our renegotiations in the first quarter of 2012.
Sales for Hungary decreased by $1.6 million from $12.7 million for the six months ended June 30, 2011 to $11.1 million for the six months ended June 30, 2012 resulting primarily from weakening of the Hungarian forint against the U.S. dollar.
Gross Profit
Total gross profit increased by approximately 2.5%, or $3.2 million, to $130.5 million for the six months ended June 30, 2012, from $127.3 million for the six months ended June 30, 2011. Gross profit margins as a percentage of net sales increased by 1.4 percentage points from 37.8% to 39.2% for the six months ended June 30, 2012 as compared to the six months ended June 30, 2011. The improvement in gross margin percentage was driven by a number of factors including improved product and channel mix in Poland and price increases taken in Russia. Part of the improvement in pricing coming from the Russian market was offset by the year on year growth of spirit pricing which resulted in approximately $7.7 million of additional cost in the six months period of 2012.
Operating Expenses
Operating expenses consist of selling, general and administrative, or S,G&A expenses, advertising expenses, non-production depreciation and amortization, and provision for bad debts. Total operating expenses increased by approximately 14.2%, or $15.8 million, from $111.2 million for the six months ended June 30, 2011 to $127.0 million for the six months ended June 30, 2012. This change includes a one-time gain in the six month period ended June 30, 2011, amounting to $7.9 million in operating income based on the remeasurement of previously held equity interests in Whitehall to fair value. For comparability of costs between periods, items of operating expenses after excluding this fair value adjustment are shown separately in the table below. Operating expenses, excluding fair value adjustments as a percent of net sales increased from 35.4% for the six months ended June 30, 2011 to 38.1% for the six months ended June 30, 2012. Operating expenses, net of fair value adjustments increased by $7.9 million, from $119.1 million for the six months ended June 30, 2011 to $127.0 million for the six months ended June 30, 2012.
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The table below sets forth the items of operating expenses.
Operating Expenses Six Months Ended June 30, |
||||||||
2012 | 2011 (Restated) |
|||||||
S,G&A |
$ | 109,085 | $ | 103,429 | ||||
Marketing |
13,307 | 9,888 | ||||||
Depreciation and amortization |
4,642 | 5,809 | ||||||
|
|
|
|
|||||
Sub-Total |
127,034 | 119,126 | ||||||
Fair value adjustments |
0 | (7,898 | ) | |||||
|
|
|
|
|||||
Total operating expense |
$ | 127,034 | $ | 111,228 |
S,G&A consists of salaries, warehousing and transportation costs, administrative expenses and bad debt expense. S,G&A expenses increased by $5.7 million, from $103.4 million for the six months ended June 30, 2011 to $109.1 million for the six months ended June 30, 2012. The increase in SG&A is primarily due to the inclusion of full two quarters of the Whitehall Group in 2012 of $4.0 million, redundancy costs in Russia of $3.2 million, $4.5 million of additional legal costs incurred in the second quarter 2012 related to restatement of financial statements for 2010 and 2011 and additional bad debt provision in Russia of $3.2 million offset by impact of weaker local currencies against U.S. dollar.
Marketing expenses increased by $3.4 million, from $9.9 million for the six months ended June 30, 2011 to $13.3 million for the six months ended June 30, 2012 mainly due to higher marketing spending primarily in Russia and Ukraine.
Depreciation and amortization decreased by $1.2 million, from $5.8 million for the six months ended June 30, 2011 to $4.6 million for the six months ended June 30, 2012.
Operating Income
Total operating income decreased by approximately 78.9%, or $12.7 million, from $16.1 million for the six months ended June 30, 2011 to $3.4 million for the six months ended June 30, 2012, primarily driven by lower domestic sales and higher spirit costs in the Russian market. The table below summarizes the segmental split of operating profit.
Operating Income Six months ended June 30, |
||||||||
2012 | 2011 (Restated) |
|||||||
Segment |
||||||||
Poland before fair value adjustments |
$ | 15,592 | $ | 13,035 | ||||
Gain on remeasurement of previously held equity interests |
0 | 7,898 | ||||||
|
|
|
|
|||||
Poland after fair value adjustments |
15,592 | 20,933 | ||||||
Russia |
(5,373 | ) | (3,156 | ) | ||||
Hungary |
1,482 | 1,941 | ||||||
Corporate Overhead |
||||||||
General corporate overhead |
(6,694 | ) | (2,292 | ) | ||||
Option Expense |
(1,589 | ) | (1,337 | ) | ||||
|
|
|
|
|||||
Total Operating Profit |
$ | 3,418 | $ | 16,089 |
Underlying operating income in Poland excluding fair value adjustments increased by approximately 20.0%, or $2.6 million, from $13.0 million for the six months ended June 30, 2011 to $15.6 million for the six months ended June 30, 2012. The operating loss in Russia decreased by $2.2 million from $3.2 million for the six months ended June 30, 2011 to $5.4 million for the six months ended June 30, 2012. The changes in operating income in both of these segments were driven by all of the factors described above.
Non Operating Income and Expenses
Total interest expense decreased by approximately 6.0%, or $3.3 million, from $55.2 million for the six months ended June 30, 2011 to $51.9 million for the six months ended June 30, 2012. This decrease is mainly a result of the weaker euro as compared to the U.S. dollar, as a significant portion of the long-term borrowings are denominated in euros.
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The Company recognized $22.2 million of unrealized foreign exchange rate gains in the six months ended June 30, 2012, primarily related to the impact of movements in exchange rates on our U.S. dollar and euro denominated liabilities, as compared to $49.5 million of income in the six months ended June 30, 2011. These gains resulted mainly from the appreciation of the Polish zloty and Russian ruble against the U.S. dollar and euro. During the six months ended June 30, 2012, the Company recognized $1.3 million gain on debt extinguishment related to repurchased part of Convertible Senior Notes due 2013.
Total other non operating expenses increased by $1.5 million, from $3.6 million for the six months ended June 30, 2011 to $5.1 million for the six months ended June 30, 2012. This increase is mainly a result of the higher costs related to factoring of receivables in 2012 which represent $4.1 million of expense for the six months ended June 30, 2012 comparing to $2.1 million for the six months ended June 30, 2011.
Six months ended June 30, | ||||||||
2012 | 2011 | |||||||
Factoring costs and bank fees |
(4,141 | ) | (2,079 | ) | ||||
Other gains / (losses) |
(958 | ) | (1,558 | ) | ||||
|
|
|
|
|||||
Total other non operating income / (expense), net |
$ | (5,099 | ) | $ | (3,637 | ) |
Income Tax
Our effective tax rate for the six months ended June 30, 2012 was -6.5% as compared to an average blended statutory rate of 21%. The difference between the statutory and effective tax rates was due primarily to permanent tax differences related to valuation allowances recorded against tax loss carry forwards that the Company believes will not be utilized in the future.
Equity in Net Earnings
Equity in net losses for the six months ended June 30, 2011 include the Companys proportional share of net income from its investment in the Moet Hennessey Russia Joint Venture for the period from January 1, 2011 to March 30, 2011 and Whitehall for the period from January 1, 2011 to February 7, 2011.
Statement of Liquidity and Capital Resources
During the six months ended June 30, 2012, the Companys primary sources of liquidity were cash flows generated from operations. The Companys primary uses of cash were to fund its working capital requirements, service indebtedness and finance capital expenditures. The following table sets forth selected information concerning the Companys consolidated cash flow during the periods indicated.
Six months ended June 30, 2012 |
Six months ended June 30, 2011 (Restated) |
|||||||
Cash flow from operating activities |
$ | 8,319 | $ | 43,334 | ||||
Cash flow from investing activities |
$ | (4,547 | ) | $ | (45,459 | ) | ||
Cash flow from financing activities |
$ | 41,393 | $ | (3,623 | ) |
Management views and performs analysis of financial and non financial performance indicators of the business by segments that are split by countries. The extensive analysis of indicators such as sales value in local currencies, gross margin and operating expenses by segment is included in the MD&A section of this Form 10-Q.
Net cash flow from operating activities
Net cash flow from operating activities represents net cash from operations and interest. Overall cash flow from operating activities decreased from cash generation of $43.3 million for the six months ended June 30, 2011 to cash generation of $8.3 million for the six months ended June 30, 2012. The primary factors contributing to this lower cash generation in 2012 are due to the fact that in the first quarter of 2011, the Company entered into factoring arrangements in Poland for the first time which resulted in higher cash collection during this quarter. In 2011, the Polish operations received the cash inflow from the peak in the fourth quarter of 2010 sales as well as the cash from the factored receivables of the quarter, resulting in a one-off benefit in cash flow for the period. During the same period in 2012, the Polish operations only received the normal factored cash flow from the first quarter of 2012.
Overall working capital movements of accounts receivable, inventory and accounts payable provided approximately $53.3 million of cash during the six months ended June 30, 2012. Days sales outstanding (DSO) as of June 30, 2012 amounted to 39 days as compared to 43 days as of June 30, 2011. The number of days in inventory as of June 30, 2012 amounted to 111 days as compared to 109 days as of June 30, 2011. In addition, the ratio of our current assets to current liabilities, net of inventories, was 0.59 as of June 30, 2012.
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Net cash flow used in investing activities
Net cash flows used in investing activities represent net cash used to acquire subsidiaries and fixed assets. Net cash outflow for the six months ended June 30, 2012 was $4.5 million.
Net cash flow from financing activities
Net cash flow from financing activities represents cash used for servicing indebtedness, borrowings under credit facilities. Net cash inflow in financing activities was $41.4 million for the six months ended June 30, 2012 as compared to an outflow of $3.6 million for the six months ended June 30, 2011. The primary inflow in the six months ended June 30, 2012 was $100 million of cash invested by Roust Trading Limited and its affiliates offset by cash used for repayment of part of Convertible Senior Notes and loans by the Company.
The Companys Future Liquidity and Capital Resources
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern, which contemplates the realization of assets and the liquidation of liabilities in the normal course of business. As discussed further in Note 7, certain credit and factoring facilities are coming due in 2012, which the Company expects to renew. Furthermore, our Convertible Senior Notes (the Convertible Notes) are due on March 15, 2013. Our current cash on hand, estimated cash from operations and available credit facilities will not be sufficient to make the repayment of principal on the Convertible Notes and, unless the transaction with Russian Standard Corporation, described in Note 4, is completed the Company may default on them. The Companys cash flow forecasts include the assumption that certain credit and factoring facilities that are coming due in 2012 will be renewed to manage working capital needs. Moreover, the Company had a net loss and significant impairment charges in 2011 and current liabilities exceed current assets at June 30, 2012. These conditions raise substantial doubt about the Companys ability to continue as a going concern.
The Russian Standard transaction is subject to certain risks, including shareholder approval which may not be obtained. The Companys board of directors, along with senior management, continue to review the timing of the Companys 2012 Annual Meeting of Stockholders (the AGM) previously scheduled to be held on June 29, 2012 in light of the need to restate the Companys accounts and expects to hold the AGM as soon as practicable. We believe that if the transaction is completed as scheduled, the Convertible Notes will be repaid by their maturity date which would substantially reduce doubts about the Companys ability to continue as a going concern. Under the terms of the Indenture for our Senior Secured Notes due 2016, we expect that any indebtedness we incur in exchange for, or to redeem or refinance, all or a portion of the Convertible Notes will be required to be incurred as permitted refinancing indebtedness (a term defined in the Indenture); as a result, the terms of the indenture may limit our ability to enter into agreements that contain limitations on dividends (and certain payments having similar effects) payable to the Company (or its subsidiaries) by its subsidiaries. Any failure to pay the Convertible Notes would also be an event of default under our Senior Secured Notes due 2016 and the terms of our other indebtedness. Such events would jeopardize our ability to continue as a going concern. Notwithstanding the foregoing, we believe that cash on hand, cash from operations and available credit facilities will be sufficient to fund our anticipated cash requirements for working capital purposes and normal capital expenditures, and that we will remain in compliance with the financial covenants contained in our debt agreements, for at least the next twelve months. The Companys cash flow forecasts used in making this determination include the assumption that certain credit and factoring facilities that are coming due in 2012 will be renewed to manage the Companys working capital needs.
For additional information, see also Risk FactorsRisks Relating to Our Indebtednessincluded in Item 8 of our Annual Report on Form 10-K/A dated October 4, 2012.
Financing Arrangements
Bank Facilities
As of June 30, 2012, the Company has outstanding liability of 22.5 million ($28.3 million) from the term loans from Alfa Bank and Raiffeisen Bank drawn by Whitehall:
| The loan agreement with Alfa Bank, dated July 22, 2008, matures on October 18, 2014. The credit limit under this agreement is 20.0 million ($25.2 million) and the loan is released in tranches maturing within three, six or nine months, depending if they are pledged by inventory. The loan was released in seven tranches between March 13, 2012 and June 28, 2012, and is repayable between September 13, 2012 and December 28, 2012. As of June 30, 2012, the Company had outstanding liability of 20 million ($25.2 million) from this term loan meaning that the loan was fully drawn as of that date; |
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| The loan agreement with Raiffeisen Bank, dated July 6, 2010, matures on July 6, 2012. The credit limit under this agreement is 10.0 million ($12.6 million) and the loan was released in tranches maturing within one to 12 months, not later than July 6, 2012. The loan was released in three tranches between October 12, 2011 and October 27, 2011. As of June 30, 2012, the Company had outstanding liability of 2.5 million ($3.1 million) from this term loan. This loan was fully repaid on July 6, 2012. |
The aforementioned loans drawn by Whitehall are guaranteed by Whitehall companies. The loan from Alfa Bank is secured by the Companys inventory.
As of June 30, 2012, the Company has outstanding term loans of 845.5 million Russian rubles ($25.7 million) from Unicredit and JSC Grand Invest Bank, both drawn by Russian Alcohol, as well as, an overdraft facility from Sberbank drawn by Bravo Premium:
| The loan agreement with Unicredit, dated May 24, 2011, matures on November 23, 2012. This loan has no financial covenants and is secured by inventory of up to 720 million Russian rubles ($21.9 million) and guarantees given by companies of Russian Alcohol. As of June 30, 2012, the Company has outstanding liability of 600.0 million Russian rubles ($18.2 million) from this term loan; |
| The loan agreement with JSC Grand Invest Bank, dated November 25, 2011, matures on November 23, 2012. This loan has no financial covenants that need to be met. As of June 30, 2012, the Company has outstanding liability of 245.5 million Russian rubles ($7.5 million) from this term loan; |
| The overdraft agreement with Sberbank, dated February 6, 2012, matures on February 5, 2013. The credit limit under this agreement is 60.0 million Russian rubles ($1.8 million). This loan is secured by fixed assets. As of June 30, 2012, the loan was fully utilized. |
As of June 30, 2012, the Company had available to use under existing overdraft facility in Hungary 100.0 million Hungarian forints ($0.4 million). This facility was terminated by the Company as of September 11, 2012.
Convertible Senior Notes due 2013
On March 7, 2008, the Company completed the issuance of $310 million aggregate principal amount of 3% Convertible Senior Notes due 2013 (the Convertible Notes). Interest is due semi-annually on the 15th of March and September, beginning on September 15, 2008. The Convertible Notes are convertible in certain circumstances into cash and, if applicable, shares of our common stock, based on an initial conversion rate of 14.7113 shares per $1,000 principal amount, subject to certain adjustments. Upon conversion of the notes, the Company will deliver cash up to the aggregate principal amount of the notes to be converted and, at the election of the Company, cash and/or shares of common stock in respect to the remainder, if any, of the conversion obligation. The proceeds from the Convertible Notes were used to fund the cash portions of the acquisitions of Copecresto Enterprises Limited and Whitehall. The indenture governing the Convertible Notes also contains a cross-acceleration covenant, which would apply in the event that we do not repay when due any indebtedness which equals or exceeds $30 million. In addition, in the event of a fundamental change (as that term is used in our indenture), we would be required to offer to repay the outstanding indebtedness under the Convertible Notes in cash at a price equal to 100% of the aggregate principal amount thereof.
In May 2012, the Company repurchased $36.6 million principal amount of Convertible Notes in four tranches for $35.3 million.
Senior Secured Notes due 2016
On December 2, 2009, the Company issued $380 million 9.125% Senior Secured Notes due 2016 and 380 million ($507.0 million) 8.875% Senior Secured Notes due 2016 (the 2016 Notes) in an unregistered offering to institutional investors. The Company used a portion of the net proceeds from the 2016 Notes to redeem the Companys outstanding 2012 Notes, having an aggregate principal amount of 245.4 million ($327.4 million) on January 4, 2010. The remainder of the net proceeds from the 2016 Notes was used to (i) purchase Lion Capitals remaining equity interest in Russian Alcohol by exercising the Lion Option and the Co-Investor Option, pursuant to the terms and conditions of the Lion Option Agreement and the Co-Investor Option Agreement, respectively (ii) repay all amounts outstanding under Russian Alcohol credit facilities; and (iii) repay certain other indebtedness.
On December 9, 2010, the Company issued an additional 50.0 million ($66.7 million) 8.875% Senior Secured Notes due 2016 (the 2016 Notes) in an unregistered offering to institutional investors. The Company used the net proceeds from the additional 2016 Notes to repay its term loans and overdraft facilities with Bank Handlowy w Warszawie S.A and Bank Zachodni WBK S.A.
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The 2016 Notes are guaranteed on a senior basis by certain of the Companys subsidiaries. We are required to ensure that subsidiaries representing at least 85% of our consolidated EBITDA, as defined in the indenture, guarantee the notes. The notes are secured, directly or indirectly, by a variety of our and our subsidiarys assets, including shares of the issuer of the notes and subsidiaries in Poland, Cyprus, Russia and Luxembourg, certain intercompany loans made by the issuer of the notes and our Russian finance company in connection with the issuance of the notes, trademarks related to the Soplica brand registered in Poland, European Union trademarks for the Parliament brand registered in Germany, and bank accounts over $5.0 million. We have also provided mortgages over our Polmos and Bols production plants and the Russian Alcohol Siberian and Topaz Distilleries. The indenture governing the 2016 Notes contains certain restrictive covenants, including covenants limiting the Companys ability to: incur or guarantee additional debt; make certain restricted payments; transfer or sell assets; enter into transactions with affiliates; create certain liens; create restrictions on the ability of restricted subsidiaries to pay dividends or other payments; issue guarantees of indebtedness by restricted subsidiaries; enter into sale and leaseback transactions; merge, consolidate, amalgamate or combine with other entities; designate restricted subsidiaries as unrestricted subsidiaries; and engage in any business other than a permitted business. The indenture governing the 2016 Notes also contains a cross-acceleration covenant, which would apply in the event that we do not repay when due our Convertible Notes or any other indebtedness which equals or exceeds $30 million. In addition, in the event of a change of control (as that term is used in our indenture), we would be required to offer to repay the outstanding indebtedness under the 2016 Notes at a price equal to 101% of the aggregate principal amount thereof.
Senior notes due March 18, 2013 (Debt Security)
As described in Note 4 to the accompanying consolidated financial statements, on May 4, 2012, the Company issued $70 million principal amount of senior notes due March 18, 2013, bearing an interest rate of 3.00% to JSC Russian Standard Bank, an affiliate of Russian Standard Corporation. Pursuant to the Amended SPA, as described in Note 18 to the accompanying consolidated financial statements, upon approval of the Companys shareholders, and after the satisfaction of certain other conditions including the receipt of certain Polish regulatory waivers, Roust Trading will purchase such number of shares of common stock at a purchase price of $5.25 per share sufficient to repay the then-outstanding principal amount of the Debt Security, totaling approximately 13.3 million shares of common stock and sell to the Company the entire principal amount of the Debt Security. In addition, interest payable on the Debt Security prior to the Second Closing may, at the option of Roust Trading and after the Second Closing, be effectively paid in shares of common stock at a price $3.44 per share of common stock. Pursuant to the Amended SPA, the final maturity date for the Debt Security will be extended to July 31, 2016.
Effects of Inflation and Foreign Currency Movements
Inflation in Poland is projected at 3.9% for 2012, compared to actual inflation of 4.6% in 2011. In Russia, Hungary and Ukraine, inflation for 2012 is projected at 5.0%, 5.6% and 7.9% respectively, compared to actual inflation of 6.1%, 4.1% and 8.0% in 2011.
Substantially all of the Companys operating cash flows and assets are denominated in Polish zloty, Russian ruble and Hungarian forint. This means that the Company is exposed to translation movements both on its balance sheet and statement of operations. The impact on working capital items is demonstrated on the cash flow statement as the movement in exchange on cash and cash equivalents. The impact on the statement of operations is by the movement of the average exchange rate used to restate the statement of operations from Polish zloty, Russian ruble and Hungarian forint to U.S. dollars. The amounts shown as exchange rate gains or losses on the face of the statements of operations relate only to realized gains or losses on transactions that are not denominated in Polish zloty, Russian ruble or Hungarian forint. Table below presents the exchange rates used for translation of our balance sheet and statement of operations balances as of and for the quarter ended June 30, 2012:
Balance sheet rate as of June 30, 2012 |
Average rate for the three months ended June 30, 2012 |
|||||||
PLN / US$ |
3.3885 | 3.3255 | ||||||
RUR / US$ |
32.8981 | 31.1085 | ||||||
HUF / US$ |
228.9527 | 229.3448 |
Because the Companys reporting currency is the U.S. dollar, the translation effects of fluctuations in the exchange rate of our functional currencies have impacted the Companys financial condition and results of operations and have affected the comparability of our results between financial periods.
The Company has borrowings including its Convertible Notes due 2013 and Senior Secured Notes due 2016 that are denominated in U.S. dollars and euros, which have been lent to its operations where the functional currency is the Polish zloty and Russian ruble. The effect of having debt denominated in currencies other than the Companys functional currencies is to increase or decrease the value of the Companys liabilities on that debt in terms of the Companys functional currencies when those functional currencies depreciate or appreciate in value respectively. As a result of this, the Company is exposed to gains and losses on the re-measurement of these liabilities. The table below summarizes the pre-tax impact of a one percent movement in each of the exchange rate which could result in a significant impact in the results of the Companys operations.
35
Exchange Rate |
Value of notional amount | Pre-tax impact of a 1% movement in exchange rate | ||
USD-Polish zloty |
$459 million | $4.6 million gain/loss | ||
USD-Russian ruble |
$264 million | $2.6 million gain/loss | ||
EUR-Polish zloty |
430 million or approximately $541 million | $5.4 million gain/loss |
Significant Accounting Policies and Estimates
For a discussion of our critical accounting policies, see Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations in our restated 2011 Annual Report on Form 10-K/A.
ITEM 3. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Our operations are conducted primarily in Poland and Russia, and our functional currencies are primarily the Polish zloty, Hungarian forint and Russian ruble, and our reporting currency is the U.S. dollar. Our financial instruments consist primarily of cash and cash equivalents, accounts receivable, accounts payable, bank loans, overdraft facilities and long-term debt. All of the monetary assets represented by these financial instruments are located in Poland, Russia and Hungary. Consequently, they are subject to currency translation movements when reporting in U.S. dollars.
If the U.S. dollar increases in value against the Polish zloty, Russian ruble or Hungarian forint, the value in U.S. dollars of assets, liabilities, revenues and expenses originally recorded in Polish zloty, Russian ruble or Hungarian forint will decrease. Conversely, if the U.S. dollar decreases in value against the Polish zloty, Russian ruble or Hungarian forint, the value in U.S. dollars of assets, liabilities, revenues and expenses originally recorded in Polish zloty, Russian ruble or Hungarian forint will increase. Thus, increases and decreases in the value of the U.S. dollar can have a material impact on the value in U.S. dollars of our non-U.S. dollar assets, liabilities, revenues and expenses, even if the value of these items has not changed in their original currency.
The Company has borrowings including its Convertible Notes due 2013 and Senior Secured Notes 2016 that are denominated in U.S. dollars and euros, which have been lent to its operations where the functional currency is the Polish zloty and Russian ruble. The effect of having debt denominated in currencies other than the Companys functional currencies is to increase or decrease the value of the Companys liabilities on that debt in terms of the Companys functional currencies when those functional currencies depreciate or appreciate in value respectively. As a result of this, the Company is exposed to gains and losses on the re-measurement of these liabilities. The table below summarizes the pre-tax impact of a one percent movement in each of the exchange rate which could result in a significant impact in the results of the Companys operations.
Exchange Rate |
Value of notional amount | Pre-tax impact of a 1% movement in exchange rate | ||
USD-Polish zloty |
$459 million | $4.6 million gain/loss | ||
USD-Russian ruble |
$264 million | $2.6 million gain/loss | ||
EUR-Polish zloty |
430 million or approximately $541 million | $5.4 million gain/loss |
ITEM 4. | CONTROLS AND PROCEDURES |
Disclosure Controls and Procedures.
We have carried out an evaluation under the supervision of, and with the participation of, our management, including the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of June 30, 2012. Since December 31, 2011, we have begun the restructuring of our corporate finance and reporting department in Poland and Russia to implement more effective internal controls over financial reporting. However, our evaluation has disclosed material weaknesses still exist in our internal control over financial reporting as noted in Managements Assessment on Internal Control over Financial Reporting located in Item 9A, Financial Statements and Supplementary Data, of our restated 2011 Annual Report on Form 10-K/A dated October 4, 2012.
Due to our material weaknesses, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures are not effective to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the applicable rules and forms, and that information required to be disclosed by us in reports filed or submitted under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
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There are inherent limitations to the effectiveness of any system of disclosure controls and procedures, including the possibility of human error and the circumvention or overriding of the controls and procedures. Accordingly, even effective disclosure controls and procedures can only provide reasonable assurance of achieving their control objectives.
Changes in internal control over financial reporting.
There has been no material change in internal control over financial reporting in the quarter ended June 30, 2012, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
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Item 1. | Legal Proceedings. |
Please refer to Note 15 of the accompanying Condensed Consolidated Financial Statements attached herein for a discussion of certain legal proceedings.
Item 1A. | Risk Factors. |
For a discussion of the Companys risk factors, see the information under the heading Risk Factors in the Companys Annual Report on Form 10-K/A for the year ended December 31, 2011, dated October 4, 2012.
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Item 6. | Exhibits. |
(a) Exhibits
Exhibit Number |
Exhibit Description | |
3.1 | Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Quarterly Report on Form 10-Q filed with the SEC on May 5, 2010 and incorporated herein by reference). | |
3.2 | Amended and Restated Bylaws (filed as Exhibit 3.2 to the Quarterly Report on Form10-Q filed with the SEC on November 9, 2011 and incorporated herein by reference). | |
10.63(a) | Amended and Restated Securities Purchase Agreement, dated July 9, 2012 by and among Central European Distribution Corporation and Roust Trading Ltd. (filed as Exhibit 10.1 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
10.63(b) | Amended and Restated Governance Agreement, dated July 9, 2012 by and among Central European Distribution Corporation and Roust Trading Ltd. (filed as Exhibit 10.2 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
10.63(c) | Amended and Restated Registration Rights Agreement, dated July 9, 2012, by and among Central European Distribution Corporation and Roust Trading Ltd. (filed as Exhibit 10.3 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
10.63(d) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation and Roust Trading Ltd. (filed as Exhibit 10.4 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
10.64* | Transition Agreement dated July 9, 2012 between Central European Distribution Corporation and William V. Carey. | |
31.1* | Certificate of the CEO pursuant to Rule 13a-15(e) or Rule 15d-15(e). | |
31.2* | Certificate of the CFO pursuant to Rule 13a-15(e) or Rule 15d-15(e). | |
32.1* | Certification of the CEO pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
32.2* | Certification of the CFO pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
99.1(a) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation, Mr. David Bailey and Roust Trading Ltd. (filed as Exhibit 99.1 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
99.1(b) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation, Mr. N. Scott Fine and Roust Trading Ltd. (filed as Exhibit 99.2 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
99.1(c) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation, Mr. William Shanahan and Roust Trading Ltd. (filed as Exhibit 99.3 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
99.1(d) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation, Mr. Robert Koch and Roust Trading Ltd. (filed as Exhibit 99.4 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
99.1(e) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation, Mr. Markus Sieger and Roust Trading Ltd. (filed as Exhibit 99.5 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
99.1(f) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation, Mr. Marek Forysiak and Roust Trading Ltd. (filed as Exhibit 99.6 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
99.1(g) | Amended and Restated Voting Agreement, dated July 9, 2012, by and among Central European Distribution Corporation, Mr. William Carey and Roust Trading Ltd. (filed as Exhibit 99.7 to the Periodic Report on Form 8-K filed with the SEC on July 11, 2012 and incorporated herein by reference). | |
101* | The following financial statements from Central European Distribution Corporations Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Statements of Income, (ii) Consolidated Balance Sheets, (iii) Consolidated Statements of Cash Flows, (iv) Notes to Consolidated Financial Statements, tagged as blocks of text. |
* | Filed herewith. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
CENTRAL EUROPEAN DISTRIBUTION CORPORATION | ||||
(registrant) | ||||
Date: October 4, 2012 | By: | /s/ David Bailey | ||
David Bailey | ||||
Interim Chief Executive Officer | ||||
Date: October 4, 2012 | By: | /s/ Bartosz Kołaciński | ||
Bartosz Kołaciński | ||||
Interim Chief Financial Officer |
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Exhibit 10.64
EXECUTION COPY
TRANSITION AGREEMENT
This TRANSITION AGREEMENT (this Agreement) is made and entered into by and between Central European Distribution Corporation , a Delaware corporation. (the Company), and William V. Carey (the Executive), dated as of July 9, 2012.
WHEREAS, the Executive is currently employed as President and Chief Executive Officer of the Company pursuant to the Second Amended and Restated Employment Agreement dated as of October 13, 2011 (as amended, the Employment Agreement) and is currently serving as a member of the Companys Board of Directors (the Board); and
WHEREAS, the Executive and the Company have mutually determined that it is appropriate for the Company to transition to a new President and Chief Executive Officer; and
WHEREAS, the parties wish to set forth their mutual understanding as to their respective rights and obligations in connection with the transition;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions and conditions set forth in this Agreement, the parties hereby agree as follows:
1. | Separation Date. For purposes of this Agreement, the Separation Date shall be the effective date hereof. |
2. | Resignation. The Executive hereby irrevocably resigns (a) his position as President and Chief Executive Officer of the Company, effective as of the date hereof and (b) as a member of the Board, effective as of the date hereof, and, in each case, the Company hereby accepts such resignations. As soon as practicable (but in no event later than (30) days) following the date hereof, the Executive shall resign from all positions he currently holds with any subsidiary of the Company, including as a member of the Management Board, the Supervisory Board or any similar board of any such subsidiary; provided that, the Executive shall not be deemed in breach of this obligation to resign solely to the extent such failure or inability to resign results from action or inaction by the Company and the Executive shall resign as soon as practicable (but in no event later than (30) days) following the completion of any actions by the Company that are necessary to effect or enable such resignation. The Executive agrees to cooperate with the Company and to execute such documents and take reasonable actions as may be necessary or desirable to effectuate the foregoing. |
3. | Consulting Period. The period from the Separation Date through December 31, 2012 shall be referred to as the Consulting Period during which the Executive shall serve the Company as an independent consultant in accordance with the terms set forth below. |
(a) During the Consulting Period:
(i) | the Executive shall consult with and report to the Interim Chief Executive Officer of the Company (the Interim CEO), or his designee, as needed, and shall have such duties and responsibilities as may be reasonably assigned to him from time to time by the Interim CEO or his designee; |
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(ii) | except as may be expressly granted to the Executive, in writing, the Executive shall have no authority to obligate the Company in any manner, shall not enter into any contract on behalf of the Company, shall not, directly or indirectly, solicit for employment, or employ, any members of senior management of the Company, or solicit or induce any such persons to leave the employ of or otherwise terminate their employment relationship with the Company, and shall not make any representation, warranty or other statement or take any action that may be construed by any third party to indicate that the Executive has any authority to obligate in any manner, or to enter into any contract on behalf of the Company; |
(iii) | the Executive shall not, directly or indirectly, solicit any of the Companys distributors, customers or suppliers with whom he was involved as part of his job responsibilities during his employment with the Company or regarding which or from whom he learned confidential information during his employment with the Company, without the prior express written consent of the Interim CEO or his designee; |
(iv) | so long as Executive has performed his consulting services hereunder (as determined in good faith by the Interim CEO), the Company shall pay to the Executive a consulting fee of six hundred twenty-five thousand dollars ($625,000), payable in equal monthly installments, beginning July 31, 2012, it being understood that such amount shall be payable if the Company does not avail itself of the Executives consulting services; |
(v) | the Executive shall be supplied with suitable off-site office space in Warsaw, Poland, at a location reasonably selected by the Executive and reasonably acceptable to the Company and shall be provided with an administrative assistant of his choosing on a basis reasonably acceptable to the Company; |
(vi) | the Company shall pay or reimburse the Executive for all reasonable and necessary business expenses incurred or paid by the Executive in the performance of his duties and responsibilities as a consultant, in accordance with the reimbursement policies of the Company that were in effect and applicable to the Executive during his period of employment by the Company; and |
(vii) | the Executive shall retain the use of his current Company email address (provided however, that any information contained in any outgoing email identifying the Executives position with the Company shall identify him as Special Consultant), the Companys electronic equipment currently in his position, including a laptop, iPad and mobile telephone (utilizing the current telephone number). |
(b) The Executive shall be solely responsible for the taxes due to any applicable taxing authority in respect of the payments and benefits provided by the Company to the Executive under this Section 3. The Executive hereby agrees to indemnify and hold harmless the
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Company for and taxes, interest, of penalty that may be assessed against the Company in respect of the payments and benefits provided by the Company to the Executive under this Section 3 that are subsequently determined to have been subject to deduction and remittance to any taxing authority.
4. | Severance Benefits. |
(a) In connection with the Executives separation from service as of the date hereof, but subject to the provisions of paragraph (b) below and to the conditions set forth in Section 9(h) of the Employment Agreement and, in the case of any payment or benefit which is payable subsequent to thirty (30) days following the date hereof, so long as the Executive shall have resigned from the positions described in Section 2 hereof, (1) the Company shall pay or provide to the Executive, in a lump sum, the sum of two million three hundred twenty-seven thousand seven hundred ninety-three dollars ($2,327,793), payable ten (10) days after this Agreement and the General Release and Waiver Agreement attached hereto as Appendix A are executed and delivered by the Executive to the Company, provided however, that such agreements and release are executed and delivered to the Company within 21 days following the Executives separation from service, (2) the Company shall pay the Executive a non-prorated bonus pursuant to the terms of the 2012 executive bonus plan based on actual performance, provided, however that such bonus shall not be less than eight hundred fifty-five thousand two hundred dollars ($855,200), such bonus to be paid at such time as bonuses are paid to the other participants of such plan or March 5, 2013, whichever is earlier, (3) the Company shall take all actions necessary so that all unvested equity awards held by the Executive as of the date hereof shall become fully vested and, in the case of stock options, fully exercisable, and, in the case of such stock options, shall remain exercisable until the expiration of their original full term, (4) the Company shall pay the Executive the sum of three hundred fifty-two thousand dollars ($352,000), in light of the Company not having granted additional equity awards to Executive in January 2012, such amount to be payable ten (10) days after this Agreement and the General Release and Waiver Agreement attached hereto as Appendix A are executed and delivered by the Executive to the Company, provided however, that such agreement and release are executed and delivered to the Company within 21 days following the Executives separation from service, (5) subject to the following sentence, the Executive shall continue to receive the benefits provided under Section 5(d) of the Employment Agreement for a period of eighteen (18) months from the date hereof and (6) the Executive shall have continued use of his Company car until the end of the current lease term. If not later than six months following the date hereof, the conditions for payment under Section 9(g) of the Employment Agreement have been satisfied, then (A) the Company shall pay the Executive (on the sixtieth (60th) day following the end of the Consulting Period, but subject to execution by the Executive of an additional General Release and Waiver Agreement, substantially similar to the form of General Release and Waiver Agreement attached hereto as Appendix A, provided such Release shall have become irrevocable by such sixtieth (60th) day) an additional cash severance payment equal to seven hundred seventy-five thousand nine hundred thirty-one dollars ($775,931), (B) the Company shall provide to the Executive the continued benefits described in Section 9(g)(i)(C) of the Employment Agreement and (C) benefits provided under Section 5(d) of the Employment Agreement shall cease as of the end of the Consulting Period.
(b) The Executive acknowledges that the Company hereby reserves its rights and remedies against the Executive solely based on the results of the current investigation being
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conducted by the Audit Committee of the Board relating to the restated financial statements of the Company. Such rights and remedies shall be limited to: (1) the right to seek repayment of any or all amounts paid, or the value of other compensation or benefits provided to the Executive pursuant to paragraph (a) above, to a trust, if the Audit Committee and the full Board make a formal finding that the Executive engaged in any intentional wrongdoing; and (2) the right to the funds paid to the trust in subparagraph (1) above if a court of competent jurisdiction in the United States makes a final judicial determination that the Executive engaged in fraud or intentional wrongdoing. In the event the Company exercises its right to seek repayment pursuant to subparagraph (1) above, the obligation of the Executive to place any repayment amount in a trust shall be subject to the Executive and the Company, acting reasonably and in good faith, agreeing to all relevant terms governing the formation of such a trust and the obligation of the trust to release any repayment amount to the Executive or the Company as the case may be.
5. | Final Salary and Paid Time Off. On the first regular Company payday immediately following the Separation Date, the Executive shall receive payment with respect to any earned but unpaid base salary through the Separation Date and accrued paid time off rights, including but not limited to, pay for the vacation the Executive had earned and not used as of the Separation Date. Such paid time off rights are equivalent to twenty-four (24) days base salary, in the gross amount of $69,230. |
6. | Confidentiality. The Executive affirms that the provisions of Section 7 of the Employment Agreement shall remain in full force and effect and continue to apply in accordance with their terms, provided however, that the Executives obligations upon termination of employment set forth in Section 7(c) of the Employment Agreement shall be suspended until the expiration of the Consulting Period defined in Section 3, above. The Executive represents that he has not taken any action or failed to take any action in breach of the provisions of Section 7 of the Employment Agreement on or before the date upon which he signs this Agreement. |
7. | Indemnification and Advancement. At all times prior to, during and after the Transition Agreement, the Executive shall continue to receive the rights of advancement and indemnification from the Company to the fullest extent permitted under the Companys Amended and Restated Bylaws (effective September 28, 2011) and under Delaware Law, including indemnification for fees on fees litigation. |
8. | Public Announcement. The Company shall issue a press release relating to the Executives separation from the Company in the form attached hereto as Appendix B. The Company shall not issue any other press release, make any other public announcement, internal Company announcement or filing with any governmental authority relating to the Executives separation from the Company that is inconsistent with the press release attached hereto as Appendix B. |
9. | Irrevokables. The Executive hereby confirms the Irrevokables, as amended (substantially in the form attached hereto as Appendix C) and agrees to vote all Company shares owned by him in favor of the share issuances contemplated by the Amended Securities Purchase Agreement dated as of July 9, 2012, between the Company and Roust Trading, Ltd (the RS Transaction) at the Companys 2012 Annual Meeting of Shareholders or at any special meeting of Company shareholders at which the RS Transaction is submitted for approval by Company shareholders. |
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10. | Withholding. All payments made by the Company to the Executive under Sections 4 and 5 of this Agreement shall be subject to applicable tax withholding. |
11. | Consultation with Attorney; Voluntary Agreement. The Executive understands and agrees that the Executive has the right and has been given the opportunity to review this Agreement and, specifically, the General Release and Waiver attached as Appendix A to this Agreement, with an attorney. Executive represents that he has read this Agreement, including the aforementioned Release, and understands its terms and that the Executive enters into this Agreement freely, voluntarily, and without coercion. |
12. | Miscellaneous. |
(a) This Agreement may not be modified or amended, and no breach shall be deemed to be waived, unless agreed to in writing by the Executive and the authorized designee of the Board. The captions and headings in this Agreement are for convenience only, and in no way define or describe the scope or content of any provision of this Agreement.
(b) The Company and the Executive each hereby affirm that it is their intention that the provision of payments and benefits described or referenced herein be exempt from or in compliance with the requirements of Section 409A of the Code and that each partys tax reporting shall be completed in a manner consistent with such view. The Executive and the Company hereby further agree that in the event that any payment or benefit made or provided to the Executive in connection with his service to the Company would result in the imposition of an excise tax pursuant to Section 4999 of the Code, the provisions of Section 21 of the Employment Agreement shall apply.
(c) Subject to his other personal and profession commitments existing at the time, the Executive agrees from and after the Consulting Period, will make himself reasonably available to the Company to provide cooperation and assistance to the Company with respect to areas and matters in which he was involved during his employment, including any threatened or actual litigation concerning the Company, and make himself reasonably available to provide to the Company, if requested, information and counsel relating to ongoing matters of interest to the Company. The Company agrees to reimburse the Executive for the actual out-of-pocket expenses incurred by him as a result of complying with this provision, subject to submission to the Company of documentation substantiating such expenses as the Company may require.
(d) The Company shall pay or reimburse the Executive for all reasonable and necessary legal expenses incurred in connection with his negotiation and entry into of this Agreement, the Non-Disparagement Agreement and the General Release and Waiver Agreement, subject to a maximum payment/reimbursement of $100,000.
(e) This Agreement may be executed in counterparts, each of which shall be deemed an original, and which together shall be deemed to be one and the same instrument.
(f) In the event that any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of the Agreement shall not in any way be affected or impaired thereby.
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(g) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without reference to its choice of law rules. Any suit involving any dispute, controversy or claim arising under or relating to this Agreement, the Non-Disparagement Agreement, or the General Release and Waiver Agreement may only be brought in a court of competent jurisdiction within the United States of America. The Company and the Executive hereby irrevocably consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding and waive any objection to venue or inconvenient forum.
(h) This Agreement, along with the Non-Disparagement Agreement, the General Release and Waiver Agreement and the surviving provisions of the Employment Agreement as expressly provided herein, contain the entire agreement and understanding of the parties relating to the subject matter hereof and merges and supersedes any and all prior discussions, agreements, negotiations and understandings of every kind and nature between the parties pertaining to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
Central European Distribution Corporation | ||
By: | /s/ David Bailey | |
/s/ William V. Carey | ||
William V. Carey |
[Signature Page Transition Agreement]
Appendix A
Appendix A
EXECUTION COPY
GENERAL RELEASE AND WAIVER AGREEMENT
This General Release and Waiver Agreement (the Agreement) is made and entered into by and among William Carey (the Officer), Central European Distribution Corporation, a Delaware corporation (CEDC) (together, with all of its subsidiaries and affiliated entities, collectively hereinafter referred to as Company), and Roust Trading Ltd., a Bermuda corporation (together with its subsidiaries and affiliates, collectively hereinafter referred to as RTL).
I. | TERMINATION OF EMPLOYMENT |
The parties acknowledge that the Officer resigned as President and Chief Executive Officer and as a member of the Board of Directors of the Company, effective as of July 9, 2012.
II. | CONSIDERATION |
As mutual consideration for Officers as well as the Companys and RTLs entering into and abiding by this Agreement, and as contemplated by the Transition Agreement entered into by the Officer and CEDC dated as of July 9, 2012 (the Transition Agreement) and the Non-Disparagement Agreement dated as of July 9, 2012 (the Non-Disparagement Agreement), the Officer will take such actions contemplated by the Transition Agreement and the Company will pay and provide to the Officer the amounts and benefits set forth in the Transition Agreement, subject to its terms and conditions (all such amounts and benefits the Transition Payments). The parties agree that the Transition Payments are in excess of any payments or benefits to which Officer may otherwise be entitled from the Company.
III. | MUTUAL RELEASES |
A. Officer, for Officer and Officers predecessors, successors, assigns, and heirs, hereby knowingly and voluntarily forever discharges and releases the Company and RTL and, as applicable, each of their respective predecessors and representatives, along with each of their respective present or former officers, directors, employees, employee benefit plans, stockholders, affiliates, insurers, successors and assigns from all rights, claims and demands Officer may have based on or related to Officers resignation as a member of the Board of Directors of the Company or his employment or termination of employment with the Company or that the Officer had, now has, or may hereafter claim to have based on any facts or events, whether known or unknown by Officer that occurred on or before the date Officer signs this Agreement or events that are contemplated by this Agreement, including, without limitation, a release of any rights or claims the 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; and 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) applicable laws of Poland and the European Union concerning wages, discrimination, employment and discharge; (iv) claims arising out of any legal
restrictions of the right to terminate Officer, such as wrongful or unlawful discharge or related causes of action; (v) defamation, invasion of privacy, intentional or negligent infliction of emotional distress or any other tortious conduct; and/or (vi) violations of any contract or promise, express or implied, specifically including, but not limited to, the Employment Agreement (as defined in the Transition Agreement). 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, claims or demands with respect to the enforcement of this Agreement, the Transition Agreement, the Non-Disparagement Agreement or the period following the effective date of this Agreement.
B. The Company and RTL hereby knowingly and voluntarily forever discharge and release Officer, Officers predecessors, successors, assigns, and heirs, from all rights, claims or demands the Company or RTL had, now has, or may hereafter claim to have against Officer based on Officers employment with Company and membership on the Board of Directors of the Company (or the termination thereof), or on any facts or events, whether known or unknown by the Company and RTL that occurred on or before the date the Company and RTL sign this Agreement; provided, however, that this release shall not include a release of the Companys rights under Section 4(b) of the Transition Agreement; and, provided further, however, that if the requisite formal finding referred to in Section 4(b)(1) of the Transition Agreement is made by the Companys Audit Committee and full Board of Directors of the Company and the Company determines not to seek repayment of amounts described in said Section 4(b)(1), RTL may seek such repayment, to the same extent and subject to the same terms, conditions and limitations as are set forth in Section 4(b) of the Transition Agreement. Notwithstanding the foregoing, the Company and RTL do not hereby release any rights, claims or demands with respect to the enforcement of this Agreement, any other provision of the Transition Agreement, the Non-Disparagement Agreement or the period following the effective date of this Agreement.
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 to review and consider this Agreement before signing it.
V. | ENCOURAGEMENT TO CONSULT WITH AN ATTORNEY |
Officer is encouraged to consult with an attorney before signing this Agreement.
VI. | OFFICERS RIGHT TO REVOKE AGREEMENT |
If this Agreement is signed by Officer and returned to the Company within the time specified in Section IV, Officer may revoke this Agreement within seven (7) calendar days of the date of the Officers 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 or benefits described in Section II hereof or the releases set
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forth in Section III (B) above. 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 the Officer shall notify Company, or Company shall notify the Officer (as the case may be), in each case in writing):
Officer: William Carey
at the most recent address in the payroll records of the Company |
Company: Central European Distribution Corporation
Bobrowiecka 6 00-728 Warsaw, Poland Attention: David Bailey Facsimile: +48 22 456 60 01 |
VII. | SEVERABILITY AND JUDICIAL RESTATEMENT |
Officer, Company and RTL 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. | 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 other 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 Officers estate.
IX. | EFFECTIVE DATE OF AGREEMENT |
The effective date of this Agreement shall be eight (8) 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 eight (8) calendar days after receipt of the signed Agreement by Company.
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PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS PRIOR TO THE DATE OFFICER SIGNS 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.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth.
CENTRAL EUROPEAN DISTRIBUTION CORPORATION | ROUST TRADING LTD. | |||||||
By: |
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By: |
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Name: | David Bailey | Name: | Nelia Nuriakhmetova | |||||
Title: | Interim Chief Executive Officer | Title: | Director | |||||
Date: |
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Date: |
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William Carey | ||||||||
Date: |
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[Signature Page to General Release and Waiver Agreement]
Appendix B
Appendix B
CEDC and Russian Standard Sign Amended Definitive Agreements On Strategic Alliance, Investment In CEDC
| Russian Standard Confirms its Commitment to Strategic Alliance with CEDC |
| Reconfirms Its Commitment to Purchase Up to $210M of Newly Issued CEDC Senior Notes |
| Proceeds To Extinguish CEDC 2013 Notes |
| CEDC Announces Management Changes, Board Addition |
Mt. Laurel, New Jersey July 9, 2012 Central European Distribution Corporation (NASDAQ: CEDC) announced today that it has signed amended definitive agreements on its previously announced strategic alliance with Russian Standard Corporation (through Roust Trading Ltd., its Roust Trading unit).
The alliance is expected to significantly strengthen CEDCs balance sheet and create a powerful portfolio of brands with enhanced production, distribution and sales channels throughout Central and Eastern Europe.
The agreements also provide for:
| A reaffirmation by Roust Trading to purchase up to $210 million principal amount of newly issued unsecured CEDC senior notes, due July 31, 2016, at a blended interest rate of 6.0%. This investment is expected to provide CEDC with the financial resources to repay or repurchase all of its outstanding 3.0% Senior Convertible Notes due 2013; |
| An agreement by Roust Trading to, subject to fulfillment of certain conditions, waive any potential contractual rights under the existing agreements between CEDC and Roust Trading arising from CEDCs announcement on June 4, 2012 of a restatement of its financial statements and the issuance in exchange for that waiver of up to an additional 10 million shares of CEDCs common stock in three tranches issuable at Roust Tradings request; and |
| The authorization for Roust Trading by CEDC to purchase additional CEDC common stock on the open market that, when added to the shares currently owned by Roust Trading and issuable to it pursuant to the transaction, would not exceed 33% of the outstanding share capital of CEDC. CEDCs Board of Directors has agreed that upon receipt of certain Polish regulatory waivers, if and to the extent received, the threshold will be raised to 42.9%. |
CEDC also announced that:
| William V. Carey has resigned as CEDCs Chairman, President, Chief Executive Officer and member of CEDCs Board of Directors; Mr. Carey has agreed to serve as a consultant to the Company during a transition period; |
| David Bailey, the current Lead Director of CEDCs Board of Directors, has been appointed Interim Chief Executive Officer. Mr. Bailey, 68, has been a director of CEDC since December 2003. He joined International Paper in 1968 and has held various levels of responsibility within that company including President IP Poland, and Managing Director Eastern Europe, including Russia. He retired from International Paper in 2008 and has opened a private consulting business for Poland and Russia. He also was Chairman of OAO Svetogorsk (Russia) and IP Kwidzyn (Poland). He also was responsible for the creation and development of the most popular tissue brand in Poland, Velvet. |
| Roustam Tariko, Founder and Chairman of Russian Standard Corporation, has been appointed by the CEDC Board of Directors as a member of the Board and as non-Executive Chairman of the Board; and |
| N. Scott Fine, a current member of CEDCs Board of Directors, has been appointed as Lead Director of the Board. |
Mr. Bailey stated: The Board and I believe that CEDCs alliance with Russian Standard presents a tremendous opportunity to move forward as a company. With the investment by Russian Standard having secured our ability to retire our 2013 convertible notes, we can now focus all of our energies on growing and improving our business both through internal efforts and through our new strategic alliance with Russian Standard. This combination has multiple benefits for all involved and we are very excited about the opportunities it provides.
He continued: Our selection process for a permanent Chief Executive Officer will focus on candidates who know our industry and have the experience to immediately contribute to our executive team. On behalf of the entire Board, I would like to thank Bill Carey for his dedication to CEDC and to wish him all the best in his future endeavors. Thanks to Bills leadership as CEO from the Companys founding, we will be building on a base as one of the worlds largest vodka producers, with a strong portfolio of brands.
Mr. Tariko said: I believe the strategic alliance between CEDC and Russian Standard will provide significant benefits to both companies. I look forward to contributing to CEDCs growth and serving its stockholders in my new role as non-Executive Chairman of the CEDC Board.
Terms of the Investment
On July 9, 2012, CEDC entered into an agreement with Roust Trading that amended and restated the securities purchase agreement dated April 23, 2012 (the Original Securities Purchase Agreement) between CEDC and Roust Trading. Pursuant to the Original Securities Purchase Agreement, on May 4, 2012, CEDC sold to Roust Trading (i) 5,714,286 shares (the Initial Shares) of Common Stock for an aggregate purchase price of $30 million, or $5.25 per share, and (ii) a debt security with a face value of $70 million (the New Debt), which has a stated interest rate of 3.0% and matures on March 18, 2013.
CEDC and Roust Trading agreed to amend the terms of the Original Securities Purchase Agreement as follows:
| CEDC will issue to Roust Trading as a purchase price adjustment with respect to the Initial Shares and the New Debt, and as consideration for Roust Tradings conditional waiver of certain rights with respect to the Original Securities Purchase Agreement, up to 10 million shares of Common Stock, in three tranches issuable after the following milestones: 3 million shares following the date of the Agreements, 5 million shares following the date of the approval by shareholders of the Russian Standard transaction, and 2 million shares following the date that Roust Trading has satisfied its obligation under the amended and restated securities purchase agreement to effectively fund the redemption of any outstanding 3.0% Senior Convertible Notes due 2013 on their maturity on March 15, 2013; |
| CEDCs Board of Directors has agreed, subject to applicable blackout periods and regulatory limitations, to authorize Roust Trading to purchase an amount of shares of CEDCs Common Stock in the market that, when added to the shares currently owned by Roust Trading and issuable to it pursuant to the transaction, would not exceed 33% of the outstanding share capital of CEDC. CEDCs Board of Directors has agreed that upon receipt of certain Polish regulatory waivers if and to the extent received, the threshold will be raised to 42.9%; |
| The interest under the debt securities to be issued by CEDC to Roust Trading that the parties had previously agreed would be payable in shares of Common Stock, will be payable in shares of Common Stock at or determined by reference to a price per share of Common Stock of $3.44 rather than $5.25 as previously agreed; and |
| The final maturity date for the New Debt will be extended to July 31, 2016 from March 18, 2013. |
CEDC and Roust Trading have also entered into an amended and restated governance agreement, dated July 9, 2012 providing Roust Trading with the right to appoint 4 members to CEDCs Board of Directors upon Roust Trading (and its affiliates) reaching 40% ownership of CEDCs outstanding Common Stock. In addition, CEDC and Roust Trading agreed that the Nominating and Corporate Governance Committee of CEDCs Board of Directors shall consist of a majority of directors unaffiliated with Russian Standard and that CEDC will form a Russia Oversight Committee of the CEDC Board of Directors to oversee CEDCs operations in Russia.
Jefferies & Company, Inc. served as financial advisor to CEDCs Board of Directors with respect to the transaction. Skadden, Arps, Slate, Meagher & Flom LLP acted as legal advisors to CEDC. Ropes & Gray LLP acted as legal advisors to Roust Trading.
Update on Financial Restatement
CEDCs management, under the supervision and at the direction of the Audit Committee of CEDCs Board of Directors, is continuing to review its financial statements, as announced by CEDC on its Form 8-K on June 4, 2012. Following CEDCs announcement, the Audit Committee initiated an internal investigation regarding CEDCs retroactive trade rebates and related accounting issues. This investigation is being conducted with the assistance of outside legal counsel retained by the Audit Committee. The Audit Committee, through its counsel, voluntarily notified the United States Securities and Exchange Commission of the investigation.
CEDCs management has made a preliminary determination that the aggregate effect of the adjustments identified to date will result in a cumulative reduction of each of revenue and EBITDA for the period from January 1, 2010 through December 31, 2011 of approximately $49 million, primarily reflecting the fact that certain retroactive trade rebates were not properly recorded by CEDCs principle operating subsidiary in Russia, the Russian Alcohol Group, and therefore both net revenues and accounts receivable were overstated. In addition, CEDCs management has preliminarily determined that the adjustments identified to date will result in impairment charges of approximately $10 million. The expected effects of the restatement described above are based on currently available information. CEDC management continues to assess whether a restatement of December 31, 2009 will be required and is determining the impact of any adjustments to the previously reported March 31, 2012 financial statements. Because the Companys accounting review and investigation are ongoing and the Audit Committee has requested a review of the matters described above, the estimates included herein are subject to change until the final restated financial statements are filed with the Commission.
About Central European Distribution Company
CEDC is one of the worlds largest producers of vodka and Central and Eastern Europes largest integrated spirit beverage company. CEDC produces the Green Mark, Absolwent, Zubrowka, Bols, Parliament, Zhuravli, Royal and Soplica brands, among others. CEDC exports its products to many markets around the world, including the United States, England, France and Japan.
CEDC also is a leading importer of alcoholic beverages in Poland, Russia and Hungary. In Poland, CEDC imports many of the worlds leading brands, including Carlo Rossi Wines, Concha y Toro wines, Metaxa Liqueur, Rémy Martin Cognac, Sutter Home wines, Grants Whisky, Jagermeister, E&J Gallo, Jim Beam Bourbon, Sierra Tequila, Teachers Whisky, Campari, Cinzano, and Old Smuggler. CEDC is also a leading importer of premium spirits and wines in Russia with brands such as Concha y Toro, among others.
About Russian Standard Corporation
Russian Standard Corporation is one of Russias most successful private companies with business interests in premium vodka, spirits distribution, banking and insurance. Russian Standard Vodka is the global leader in authentic Russian premium vodka and the only Russian global brand with sales in over 75 markets around the world. Its 2011 sales exceeded 2.6 million 9-liter cases. Roust Inc. is one of Russias leading premium spirits distributors, representing such well-known brands as Gancia, Rémy Martin, Metaxa, St Remy, Cointreau, Jagermeister, Molinari, Whyte & Mackay, and Dalmore. In 2011, Russian Standard acquired a 70% stake in Gancia SPA, the legendary Italian wine-making company that created the first Italian sparkling wine. With 2000 hectares of vineyards, 5 million kilograms of grapes vinified, Gancia produces around 25 million bottles of sparkling wine, wines and aperitifs each year. Russian Standard Bank is the largest privately owned financial institution in Russia and is a leader in the Russian consumer finance market, including consumer loans and credit cards. Since 1999 the Bank has been setting new standards in consumer banking, with over 25 million clients, over US$45 billion in loans granted and 35 million credit cards issued. Russian Standard Bank is the exclusive issuer and service provider for American Express and Diners Club International cards in Russia.
Russian Standard Corporation has over 19,000 employees working in offices in Moscow, St Petersburg, New York, Paris, London and Kiev. The total assets of Russian Standard Corporation exceed US$5 billion.
Cautionary Statement about Forward-Looking Information
This press release contains forward looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 including, without limitation, statements about the transaction, the future liquidity and results of CEDC following completion of the transaction, and the expected effects of the restatement. Forward looking statements are based on our knowledge of facts as of the date hereof and involve known and unknown risks and uncertainties that may cause the actual results, performance or achievements of CEDC to be materially different from any future results, performance or achievements expressed or implied by our forward looking statements. Such risks include, among others, uncertainties regarding the timing and completion of the transaction and the satisfaction of the conditions thereto, the possibility that competing transaction proposals may be made, the risk that regulatory approvals of the transaction on the proposed terms will not be obtained on a timely basis, the risk that shareholder approval of the transaction may not be obtained, the risk that Roust Trading will fail to fund some or all of its investment in CEDC, the risk that CEDC may need to raise additional funds to repay its indebtedness after completion of the transaction, and uncertainties regarding the timing of the completion of the Audit Committees investigation and the restatement.
Investors are cautioned that forward looking statements are not guarantees of future performance and that undue reliance should not be placed on such statements. CEDC undertakes no obligation to publicly update or revise any forward looking statements or to make any other forward looking statements, whether as a result of new information, future events or otherwise, unless required to do so by securities laws. Investors are referred to the full discussion of risks and uncertainties included in CEDCs Form 10-K for the fiscal year ended December 31, 2011, including statements made under the captions Item 1A. Risks Relating to Our Business and in other documents filed by CEDC with the Securities and Exchange Commission.
Additional Information
CEDC will file copies of the securities purchase agreement and related transaction agreements with the SEC on a Form 8-K to which investors should refer for additional information on the terms of the transaction.
In connection with the transaction, CEDC will prepare a proxy statement to be filed with the SEC. When completed, a definitive proxy statement and a form of proxy will be mailed to stockholders of CEDC. CEDC STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT REGARDING THE PROPOSED TRANSACTION BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. CEDC stockholders will be able to obtain, without charge, a copy of the proxy statement (when available) and other relevant documents filed with the SEC from the SECs website at http:// www.sec.gov. In addition, documents filed by CEDC are available at the SECs public reference room located at 100F Street, N.E. Washington, D.C. 20594. CEDC stockholders will also be able to obtain, without charge, a copy of the proxy statement and other relevant documents (when available) by directing a request to James Archbold, Vice President, at 3000 Atrium Way, suite 265, Mt. Laurel, NJ 08054, telephone (856) 273-6980 or from CEDCs website, www.cedc.com.
CEDC and certain of its respective directors and executive officers may be deemed to be participants in the solicitation of proxies from shareholders in connection with the transaction under the rules of the SEC. Information about the directors and executive officers of CEDC is included in the amendment to CEDCs Annual Report on Form 10-K/A filed with the SEC on April 30, 2012 and current reports on Form 8-K filed with the SEC. Shareholders may obtain additional information regarding the interests of CEDC and its directors and executive officers in the transaction, which may be different than those of CEDC shareholders generally, by reading the proxy statement and other relevant documents regarding the transaction, when filed with the SEC.
Contact
Jim Archbold
Investor Relations Officer
Central European Distribution Corporation
856-273-6980
Sitrick And Company
212-573-6100
Michael Sitrick
Mike_Sitrick@Sitrick.com
Lance Ignon
Lance_Ignon@Sitrick.com
Anna Załuska
Corporate PR Manager
Central European Distribution Corporation
48-22-456-6061
Oleg Yegorov
Russian Standard Corporation
7-495-967-0990
***
Appendix C
Appendix C
EXECUTION VERSION
AMENDED AND RESTATED
VOTING AGREEMENT
AMONG
ROUST TRADING LTD.
AND
THE OTHER PARTIES HERETO
Dated as of July 9, 2012
This AMENDED AND RESTATED VOTING AGREEMENT (this Agreement), is entered into as of July 9, 2012, by and among Roust Trading Ltd., a Bermuda company, with its registered office at 25 Belmont Hills Drive, Warwick WK 06, Bermuda (the Investor), William Carey (Stockholder), and, solely for the purposes of Section 4.7 hereof, Central European Distribution Corporation, a Delaware corporation, with its registered office at 1013 Centre Road, Wilmington, New Castle County, Delaware 19805 (the Company). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Amended and Restated Securities Purchase Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, on April 23, 2012, Investor and the Company entered into a Voting Agreement (the Original Voting Agreement) in connection with the Securities Purchase Agreement between Investor and the Company dated as of the same date thereof (the Original Securities Purchase Agreement);
WHEREAS, on May 4, 2012, the Initial Closing under the Original Securities Purchase Agreement occurred and the Company sold, and Investor or an Affiliate thereof purchased from the Company as an investment in the Company, for an aggregate purchase price of $100,000,000, (i) 5,714,286 shares (the Initial Shares) of common stock, $0.01 par value per share, of the Company (the Common Stock), at a subscription price of $5.25 per share in cash, and (ii) a debt instrument structured to be clearable through Euroclear S.A./N.V. with a face value of $70,000,000 (the New Debt);
WHEREAS, Investor and the Company are entering into an Amended and Restated Securities Purchase Agreement, dated as of the date hereof (as it may be amended from time to time in accordance with its terms, the Amended and Restated Securities Purchase Agreement), that contemplates, among other things, the issuance by the Company of Common Stock and certain notes to Investor or an affiliate thereof, the issuance of certain other notes to Investor or an affiliate of Investor (the proceeds of which will be used by the Company to repurchase the Companys 3.00% Convertible Senior Notes due 2013 held by Investor or an affiliate of Investor) and the provision of a support arrangement by Investor or an affiliate of Investor to the Company in respect of the Companys 3.00% Convertible Senior Notes due 2013 not held by Investor or an affiliate thereof, each on the terms and subject to the conditions set forth in the Amended and Restated Securities Purchase Agreement;
WHEREAS, as of the date hereof, Stockholder is the record and/or beneficial owner of the number of shares of Common Stock set forth on Attachment A hereto (together with any shares of Common Stock or other voting capital stock of the Company acquired after the date hereof, whether upon the exercise of warrants, options, conversion of convertible securities or otherwise, collectively, the Owned Shares);
WHEREAS, as a condition to the willingness of Investor to enter into the Amended and Restated Securities Purchase Agreement, Investor has required that Stockholder agree, and in order to induce Investor to enter into the Amended and Restated Securities Purchase Agreement, Stockholder is willing, to enter into this Agreement; and
WHEREAS, this Agreement amends, supersedes and restates the Original Voting Agreement in all respects.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration given to each party hereto, the receipt of which is hereby acknowledged, the parties agree as follows:
1. Agreement to Vote; Irrevocable Proxy; Non-Solicitation Provisions; Disclosure Obligations.
1.1. Agreement to Vote. Stockholder shall, at any meeting of the stockholders of the Company, however called, or any adjournment or postponement thereof, or in connection with any written consent of the stockholders of the Company, cause the Owned Shares to be counted as present for purposes of establishing a quorum and be present (in person or by proxy) and vote or consent (or cause to be voted or consented) all of the Owned Shares (i) in favor of the Company Stockholder Approval (as defined in the Amended and Restated Securities Purchase Agreement) and any actions reasonably required in furtherance thereof, (ii) against any other proposal that would reasonably be expected to impede, frustrate, prevent or nullify the Amended and Restated Securities Purchase Agreement or the transactions contemplated thereby, and (iii) in favor of the other matters specified in Section 8.1(a) of the Amended and Restated Securities Purchase Agreement. The voting covenant set forth in this Section 1.1 and the proxy granted pursuant to Section 1.2 of this Agreement shall not be effective for any other purpose and Stockholder retains the right to vote in any manner on all other matters.
1.2. Irrevocable Proxy. Solely with respect to the matters described in Section 1.1, Stockholder hereby irrevocably appoints Investor (or any nominee of Investor) as Stockholders lawful agent, attorney and proxy with full power of substitution and resubstitution, for and in the name, place and stead of Stockholder, to the full extent of Stockholders voting rights with respect to Stockholders Owned Shares (which proxy is irrevocable and which appointment is coupled with an interest, including for purposes of Section 212 of the Delaware General Corporation Law) to vote all Stockholders Owned Shares solely on the matters, and in the manner, described in Section 1.1, and in accordance herewith. Stockholder hereby revokes any proxies previously granted that would otherwise conflict with the proxy contemplated pursuant to this Section 1.2 and agrees to execute any further agreement, form, notice or other such requirement reasonably necessary or appropriate to confirm and effectuate the grant of the proxy contained herein. Stockholder hereby acknowledges that the irrevocable proxy set forth in this Section 1.2 is given in connection with the execution of the Amended and Restated Securities Purchase Agreement, and that such irrevocable proxy is given to secure the performance of the duties of Stockholder under this Agreement. Stockholder hereby further acknowledges that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Stockholder hereby ratifies and confirms all things or acts that such irrevocable proxy may lawfully do or cause to be done by virtue hereof to the extent consistent with this Agreement. To the extent that Stockholder is the beneficial but not the record owner of any Owned Shares, Stockholder shall cause the record owner of any such Owned Shares to vote and grant a proxy with respect to Owned Shares in the same manner as described above.
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1.3. Disclosure Obligations. Investor shall discharge any reporting obligations laid down in Articles 69 and 69a of the Polish Act of 29 July 2005 on Public Offering, Conditions Governing the Introduction of Financial Instruments to Organized Trading, and Public Companies (the Polish Public Offering Act) by sending a notification to the Company and the Polish Financial Supervision Authority in connection with the fact that Stockholder and Investor together with certain other entities are found to be concert parties in the meaning of Article 87.1.5 and/or 87.1.6 of the Polish Public Offering Act. Any such notification shall be submitted by Investor within the deadline mentioned in Article 69.1 of the Polish Public Offering Act and shall contain all information required under Article 69.4-5 and/or 69a.2, as applicable, of the Polish Public Offering Act. For the avoidance of doubt, the obligations to be assumed by Investor under this Section 1.3 shall be treated as an indication as referred to in Article 87.3 of the Public Offering Act. Stockholder (i) acknowledges that Investor will rely on information provided by Stockholder in this Agreement, and that may otherwise be provided by Stockholder to Investor with the explicit purpose of being included in notifications delivered by Investor under the Polish Public Offering Act, in making notifications provided under the Polish Public Offering Act, (ii) represents and warrants to Investor that the information referred to in clause (i) above is and will be accurate and (iii) agrees that Investor shall have no liability for the inaccuracy of the information referred to in clause (i) above.
2. Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to Investor as follows:
2.1. Due Organization. Stockholder, if a corporation or other entity, has been duly organized, is validly existing and is in good standing under the laws of the jurisdiction of its formation or organization (to the extent the concept of good standing applies).
2.2. Power; Due Authorization; Binding Agreement. Stockholder has full legal capacity, power and authority to execute and deliver this Agreement, to perform his, her or its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Stockholder and constitutes a valid and binding agreement of Stockholder, enforceable against Stockholder in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally and by general equitable principles. Stockholder represents that any proxies previously granted in respect of the Owned Shares are not irrevocable.
2.3. Ownership of Shares. As of the date hereof, the Owned Shares set forth opposite Stockholders name on Attachment A hereto are, and any Owned Shares acquired after the date hereof will be, owned of record and/or beneficially by Stockholder in the manner reflected thereon and include all of the Owned Shares owned of record and/or beneficially by Stockholder or an affiliate of Stockholder. Stockholder has (and, with respect to shares acquired after the date hereof, will have) the sole power to vote (or cause to be voted or consents to be executed), the sole power to issue instructions with respect to matters set forth in this Agreement and the sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Owned Shares with no limitations, qualifications or restrictions on such rights, subject to (a) applicable securities laws and the terms of this Agreement and (b) if Stockholder is a married individual and resides in a State with community property laws, the
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community property interest of his or her spouse to the extent applicable under such community property law, in which case such spouse has executed and delivered to Investor a spousal consent hereto.
2.4. No Conflicts. The execution and delivery of this Agreement by Stockholder does not, and the performance of the terms of this Agreement by Stockholder will not, (a) require Stockholder to obtain a permit from, or the authorization, consent or approval of, or make any filing with or notification to, any governmental authority other than as set forth in Section 1.3 above and in any of the Operative Agreements, (b) require the consent or approval of any other person or entity pursuant to any agreement, obligation or instrument binding on Stockholder or his, her or its properties and assets, (c) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, loan agreement, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which Stockholder is a party or by which Stockholder or the Owned Shares may be bound or (d) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable to Stockholder or pursuant to which any of his, her or its properties or assets are bound. The Owned Shares are not, and with respect to Owned Shares acquired after the date hereof will not be, subject to any other agreement (including any voting agreement, stockholders agreement, irrevocable proxy or voting trust) that would adversely affect the ability of Stockholder to perform its, his or her obligations hereunder.
2.5. No Encumbrances. The Owned Shares and the certificates representing such shares are now, and at all times during the term of this Agreement will be, held by Stockholder, or by a nominee or custodian for the benefit of Stockholder, free and clear of all encumbrances, proxies, voting trusts or agreements, understandings or arrangements or any other rights whatsoever that would adversely affect the ability of Stockholder to perform its, his or her obligations hereunder.
2.6. Absence of Litigation. There are no actions or lawsuits pending or, to the knowledge of Stockholder threatened, against or affecting Stockholder before or by any court or governmental authority that could reasonably be expected to impair the ability of Stockholder to perform his, her or its obligations hereunder.
2.7. Other Holdings. None of Stockholders subsidiaries or related parties (as defined in Section 4.4 below) owns or has any interest in or has agreed to acquire shares of Common Stock or any voting rights attaching thereto. None of such persons is party to any agreement or understanding (whether or not legally enforceable) referred to in Article 87.1.5 and/or 87.1.6 of the Polish Public Offering Act nor has accepted any proxy referred to in Article 87.1.4 of the Polish Public Offering Act.
3. Representations and Warranties of Investor. Investor hereby represents and warrants to Stockholder as follows:
3.1. Power; Due Authorization; Binding Agreement. Investor is a company duly organized, validly existing and in good standing (to the extent the concept of good standing
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applies) under the laws of Bermuda. Investor has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by Investor of the transactions contemplated hereby have been duly and validly authorized by all necessary actions on the part of Investor, and no other proceedings on the part of Investor are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Investor and constitutes a valid and binding agreement of Investor, except that enforceability may be subject to general principles of equity.
3.2. No Conflicts. The execution and delivery of this Agreement by Investor does not, and the performance of the terms of this Agreement by Investor will not, (a) require Investor to obtain the consent or approval of, or make any filing with or notification to, any governmental authority other than as set forth in Section 1.3 above and in any of the Operative Agreements, or (b) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable to Investor or pursuant to which any of its or its subsidiaries property or assets are bound.
4. Certain Covenants of Stockholder.
4.1. Restriction on Transfer. Stockholder shall not, other than as may be required by a court order, (a) directly or indirectly sell, transfer, pledge, hypothecate, encumber (except as set forth on Attachment A or as a result of this Agreement), assign or otherwise dispose of (including, without limitation, by gift, merger, consolidation or reorganization), or enter into any contract, option or other agreement providing for the sale, transfer, pledge, hypothecation, encumbrance, assignment or other direct or indirect disposition of or any interest in, or limitation on the voting rights of, or otherwise transfer (any such foregoing action, a Transfer) any of the Owned Shares, (b) enter into any contract, option or other agreement or understanding with respect to any Transfer of any or all of the Owned Shares or any interest therein, (c) grant any proxies or powers of attorney or other authorization in or with respect to the Owned Shares, deposit any Owned Shares into a voting trust or enter into a voting agreement or arrangement with respect to any Owned Shares or (d) take any other action, that would in any way restrict, limit or interfere with the performance of its obligations hereunder. The foregoing restrictions on Transfer do not prohibit exercise by Stockholder of any stock option of the Company. If any involuntary Transfer of any of the Owned Shares occurs (including, but not limited to, a sale by Stockholders trustee in any bankruptcy, or a sale to a purchaser at any creditors or court sale or any sale or transfer by operation of law, including, without limitation, by will or intestacy), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Owned Shares subject to all of the restrictions, liabilities and covenants under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Any Transfer in violation of this Section 4.1 shall be void.
4.2. No Additional Acquisitions. Without prejudice to any obligations which Stockholder may have under any applicable laws (including but not limited to any insider dealings rules), until valid termination of this Agreement, Stockholder shall not directly or indirectly, either alone or together with any other person, without Investors prior written consent:
4.2.1. | acquire, or cause another person to acquire any shares of Common Stock or beneficial ownership thereof or any other interest therein; |
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4.2.2. | enter into an agreement or understanding (whether or not legally enforceable) or do or omit to do any act as a result of which Stockholder or any of Stockholders subsidiaries or related persons (as defined in Section 4.4 below) may acquire any shares of Common Stock or beneficial ownership thereof or any other interest therein; |
4.2.3. | enter into an agreement or understanding (whether or not legally enforceable) referred to in Article 87.1.5 and/or 87.1.6 of the Polish Public Offering Act; or |
4.2.4. | accept any proxy referred to in Article 87.1.4 of the Polish Public Offering Act. |
4.3. Stockholder shall ensure that each of Stockholders subsidiaries and its related persons (as defined in Section 4.4 below) complies with Section 4.2.
4.4. For the purposes of Sections 2.7, 4.2, 4.3 and 4.5, subsidiary shall have the meaning ascribed to this term in the Polish Public Offering Act, and the term related persons shall refer to those persons specified in Article 87.4 of the Polish Public Offering Act.
4.5. Additional Shares. Without prejudice to Stockholders obligations under Section 4.2, Stockholder hereby agrees that any shares of Common Stock acquired of record and/or beneficially by Stockholder after the date hereof shall be subject to the terms of this Agreement as though owned by Stockholder on the date hereof. Stockholder shall notify Investor as promptly as practicable (and in any event within 48 hours) in writing of (i) any proposed acquisition by itself and/or subsidiaries or related persons (as defined in Section 4.4 above) of new shares of Common Stock, beneficial ownership thereof or any other interest therein, (ii) the number of any additional Owned Shares of which Stockholder acquires beneficial ownership by itself and/or subsidiaries or related persons (as defined in Section 4.4 above) on or after the date hereof and (iii) any proposed permitted Transfer contemplated in Section 4.1 of the Owned Shares, beneficial ownership thereof or any other interest therein.
4.6. No Limitations on Actions. Stockholder signs this Agreement solely in his, her or its capacity as the record and/or beneficial owner, as applicable, of the Owned Shares; this Agreement shall not limit or otherwise affect the actions of Stockholder in any other capacity, including such persons capacity, if any, as an officer of the Company or a member of the Board of Directors of the Company; and nothing herein shall limit or affect the Companys rights in connection with the Amended and Restated Securities Purchase Agreement.
4.7. No Contrary Transfer; Change in Common Stock. Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Owned Shares, and the Company shall not
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recognize any such transfer, unless such transfer is made in compliance with this Agreement. The Company shall inform Investor in writing of any requests to transfer (book-entry or otherwise) any certificate or uncertified interest representing any of the Owned Shares for until this Agreement is terminated pursuant to Section 5.1. In the event of a stock dividend or distribution, or any change in the Common Stock by reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the like, the term Owned Shares as used in this Agreement shall refer to and include the Owned Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Owned Shares may be changed or exchanged or which are received in such transaction.
5. Miscellaneous.
5.1. Termination of this Agreement. This Agreement shall terminate upon the earliest to occur of (i) any amendment to the Amended and Restated Securities Purchase Agreement effected without the consent of Stockholder that alters the terms of the transactions contemplated thereby in a manner that is material and adverse to the Companys stockholders other than Investor and its affiliates, (ii) the first Business Day following the date on which the Company Stockholder Approval shall have been obtained, (iii) termination of the Amended and Restated Securities Purchase Agreement by any party thereto in accordance with its terms and (iv) December 31, 2012. In addition, this Agreement may be terminated by Investor at any time following notice of such termination to Stockholder and the Company in accordance with Section 5.6 and reasonable good faith consultation with the Company in respect of such termination.
5.2. Effect of Termination. In the event of termination of this Agreement pursuant to Section 5.1, this Agreement shall become void and of no effect with no liability on the part of any party hereto; provided, that no such termination shall relieve any party hereto from any liability for any breach of this Agreement occurring prior to such termination.
5.3. Non-Survival. The representations and warranties made herein shall not survive the termination of this Agreement.
5.4. Entire Agreement; Assignment. This Agreement and the agreements referred to herein constitute the entire understanding and agreement among the parties hereto with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity not a party hereto any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement may not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto and shall be binding upon and inure solely to the benefit of each party hereto.
5.5. Amendments. This Agreement may not be amended, altered, supplemented, waived or otherwise modified except upon the execution and delivery of a written agreement executed by each of the parties hereto.
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5.6. Notices. Any notice, request, claim, demand and other communication required to be given hereunder shall be in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business Day after 5:00 p.m. (addressees local time) shall be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
If to Stockholder: to Stockholders last known address and fax number on record with the Company.
If to Investor, to it at: | ||
Roust Trading Ltd. | ||
25 Belmont Hills Drive | ||
Warwick WK 06, Bermuda | ||
Attention: |
Wendell M. Hollis | |
with copy to: | ||
Ropes & Gray LLP | ||
One Metro Center | ||
700 12th Street, NW, Suite 900 | ||
Washington, DC 20005-3948 | ||
Attention: |
James Myers | |
Facsimile: |
+1 (202) 383-8349 | |
and | ||
Ropes & Gray LLP | ||
The Prudential Tower | ||
800 Boylston Street | ||
Boston, MA 02199-3600 | ||
Attention: |
Christopher Comeau | |
Facsimile: |
+1 (617) 951-7050 | |
If to the Company, to it at: | ||
Central European Distribution Corporation | ||
Bobrowiecka 6 | ||
00-728 Warsaw | ||
Poland | ||
Attention: |
David Bailey | |
Facsimile: |
+48 22 456 60 01 |
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with a copy to: | ||
Skadden, Arps, Slate, Meagher & Flom (UK) LLP | ||
40 Bank St., Canary Wharf | ||
London E14 5DS | ||
UK | ||
Attention: |
Scott Simpson, Esq. | |
Facsimile: |
+44 20 7519 7070 |
and, subject to the provision in this Section 5.6 above, such notice shall be deemed to have been delivered as of the date so telecommunicated, personally delivered or received. Any party to this Agreement may notify any other party of any changes to the address or any of the other details specified in this Section 5.6; provided, that such notification shall only be effective on the date specified in such notice or two Business Days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.
5.7. Governing Law.
5.7.1. | This Agreement shall be governed by and construed in accordance with the internal, procedural and substantive laws of the State of New York without regard to any conflicts of laws concepts which would apply the substantive law of some other jurisdiction. |
5.7.2. | Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court and other courts of the United States sitting in the State of New York and the state courts in the State of New York, in all cases, located in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. |
5.8. Specific Performance. Each of the parties hereto acknowledges and agrees that damages will not be an adequate remedy for any material breach or violation of this Agreement if such material breach or violation would cause immediate and irreparable harm (an Irreparable Breach). Accordingly, in the event of a threatened or ongoing Irreparable Breach,
-9-
each party hereto shall be entitled to seek equitable relief of a kind appropriate in light of the nature of the ongoing or threatened Irreparable Breach, which relief may include, without limitation, specific performance or injunctive relief. Such remedies shall not be the parties exclusive remedies, but shall be in addition to all other remedies provided in this Agreement.
5.9. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by facsimile transmission or by scan and exchange of signatures by email.
5.10. Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
5.11. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.
5.12. No Obligation to Exercise Options. Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall obligate Stockholder to exercise any stock option of the Company or other right to acquire shares of Common Stock.
5.13. Further Assurances. From time to time, at another partys request and without further consideration, each party hereto shall execute and deliver such additional documents and take all such further lawful action as may be necessary to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement (including without limitation with respect to the provision of information necessary to make the notifications contemplated by Section 1.3).
5.14. Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any thereof by any party hereto shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
-10-
5.15. No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.
5.16. No Third Party Beneficiaries. This Agreement is not intended to be for the benefit of, and shall not be enforceable by, any person or entity who or which is not a party hereto.
5.17. Fees and Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring the cost or expense.
5.18. Costs of Enforcement. In the event that legal proceedings are commenced by any party to this Agreement against any other party to this Agreement in connection with this Agreement, the non-prevailing party in such proceedings shall pay the reasonable attorneys fees and other reasonable out-of-pocket costs and expenses incurred by the prevailing party in such proceedings.
5.19. Amendment and Restatement. This Agreement amends, supersedes and restates the Original Voting Agreement in all respects.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Voting Agreement to be duly executed as of the day and year first above written.
ROUST TRADING LTD. | ||||
By: |
| |||
Name: | Wendell M. Hollis | |||
Title: | Director | |||
By: |
| |||
Name: | Dana Bean | |||
Title: | Secretary |
VOTING AGREEMENT SIGNATURE PAGE
STOCKHOLDER |
|
William Carey |
CENTRAL EUROPEAN | ||||
DISTRIBUTION CORPORATION | ||||
(solely for purposes of Section 4.7) | ||||
By: |
| |||
Name: | David Bailey | |||
Title: | Interim Chief Executive Officer |
VOTING AGREEMENT SIGNATURE PAGE
ATTACHMENT A
Details of Ownership
Shares |
Entity or Individual Name | |
4,089,846 |
William Carey |
Exhibit 31.1
CERTIFICATIONS
I, David Bailey, certify that:
1. I have reviewed this report on Form 10-Q of Central European Distribution Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: October 4, 2012 | ||
By: | /s/ David Bailey | |
David Bailey Interim Chief Executive Officer (principal executive officer) |
Exhibit 31.2
CERTIFICATIONS
I, Bartosz Kołaciński, certify that:
1. I have reviewed this report on Form 10-Q of Central European Distribution Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: October 4, 2012 | ||
By: | /s/ Bartosz Kołaciński | |
Bartosz Kołaciński Interim Chief Financial Officer (principal financial officer) |
Exhibit 32.1
Written Statement of Chief Executive Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
The undersigned, the Chief Executive Officer of Central European Distribution Corporation (the Company), hereby certifies that, to his knowledge on the date hereof:
(a) | the Form 10-Q of the Company for the quarterly period ended June 30, 2012, filed on the date hereof with the Securities and Exchange Commission (the Report) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
(b) | information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: October 4, 2012 |
/s/ David Bailey |
David Bailey |
Interim Chief Executive Officer |
Exhibit 32.2
Written Statement of Chief Financial Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
The undersigned, the Chief Financial Officer of Central European Distribution Corporation (the Company), hereby certifies that, to his knowledge on the date hereof:
(a) | the Form 10-Q of the Company for the quarterly period ended June 30, 2012, filed on the date hereof with the Securities and Exchange Commission (the Report) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
(b) | information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: October 4, 2012 |
/s/ Bartosz Kołaciński |
Bartosz Kołaciński Interim Chief Financial Officer |
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Organization And Significant Accounting Policies (Narrative) (Detail)
|
12 Months Ended | 6 Months Ended | |
---|---|---|---|
Dec. 31, 2011
Facility
lit
|
Jun. 30, 2012
|
Jun. 30, 2012
Convertible Senior Notes [Member]
|
|
Organization Consolidation And Presentation Of Financial Statements [Line Items] | |||
Number of cases produced and distributed | 33,200,000 | ||
Number of liters per case | 9 | ||
Number of operational manufacturing facilities | 6 | ||
Maturity of convertible senior notes | Mar. 15, 2013 | ||
Credit and factoring facilities maturity, year | 2012 |
Borrowings (Total Obligations Under Senior Secured Notes) (Detail) (USD $)
In Thousands, unless otherwise specified |
Jun. 30, 2012
|
Dec. 31, 2011
|
---|---|---|
Debt Instrument [Line Items] | ||
Senior Secured Notes | $ 57,194 | $ 85,762 |
Secured Debt [Member]
|
||
Debt Instrument [Line Items] | ||
Senior Secured Notes | 917,848 | 932,089 |
Senior Notes Due March 18, 2013 (New Debt) [Member]
|
||
Debt Instrument [Line Items] | ||
Unamortized debt discount | (18,900) | (16,500) |
Senior Notes Due March 18, 2013 (New Debt) [Member] | Secured Debt [Member]
|
||
Debt Instrument [Line Items] | ||
Senior Secured Notes | 70,000 | 0 |
Senior Secured Notes | 70,000 | 0 |
Senior Secured Notes Due 2016 [Member] | Secured Debt [Member]
|
||
Debt Instrument [Line Items] | ||
Senior Secured Notes | 920,767 | 935,296 |
Unamortized debt discount | $ (2,919) | $ (3,207) |
Comprehensive Income (Detail) (USD $)
In Thousands, unless otherwise specified |
3 Months Ended | 6 Months Ended |
---|---|---|
Jun. 30, 2012
|
Jun. 30, 2012
|
|
Foreign currency translation adjustment | $ 39,869 | $ 17,345 |
Commitments And Contingent Liabilities (Future Rental Payments Under Non-Cancelable Operating Lease) (Detail) (USD $)
In Thousands, unless otherwise specified |
Jun. 30, 2012
|
---|---|
2012 | $ 5,835 |
2013 | 9,130 |
2014 | 8,722 |
2015 | 8,148 |
2016 | 5,536 |
Thereafter | 2,976 |
Total | $ 40,347 |
Borrowings (Senior Notes Due 2013) (Detail) (Senior Notes Due March 18, 2013 (New Debt) [Member], USD $)
|
6 Months Ended | |
---|---|---|
Jun. 30, 2012
|
Dec. 31, 2011
|
|
Senior Notes Due March 18, 2013 (New Debt) [Member]
|
||
Debt Instrument [Line Items] | ||
Face value of debt issued | $ 70,000,000 | |
Interest rate percentage on issued debt | 3.00% | |
Debt instrument maturity date | Mar. 18, 2013 | |
Common stock to be purchased,shares | 13,300,000 | |
Common stock to be purchased,price per share | $ 5.25 | |
common stock price per share for interest payable on debt security | $ 3.44 | |
Accrued interest | 300,000 | |
Unamortized debt discount | $ 18,900,000 | $ 16,500,000 |
Sale Of Accounts Receivable (Detail)
In Millions, unless otherwise specified |
3 Months Ended | 6 Months Ended | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Jun. 30, 2012
USD ($)
|
Jun. 30, 2012
PLN
|
Jun. 30, 2012
USD ($)
|
Jun. 30, 2012
PLN
|
Mar. 01, 2012
USD ($)
|
Mar. 01, 2012
PLN
|
Jan. 02, 2012
USD ($)
|
Jan. 02, 2012
PLN
|
Sep. 28, 2012
Subsequent Event [Member]
USD ($)
|
Sep. 28, 2012
Subsequent Event [Member]
PLN
|
Jun. 30, 2012
ING Polska [Member]
USD ($)
|
Jun. 30, 2012
ING Polska [Member]
PLN
|
Feb. 24, 2011
ING Polska [Member]
USD ($)
|
Feb. 24, 2011
ING Polska [Member]
PLN
|
|
Accounts, Notes, Loans and Financing Receivable [Line Items] | ||||||||||||||
Maximum sale under factoring agreement | 220.0 | $ 85.6 | 290.0 | |||||||||||
Factoring agreements, limit | 59.0 | 200.0 | 59.0 | 200.0 | 64.9 | 200.0 | 73.8 | 250.0 | 50.2 | 170.0 | ||||
Factoring agreements maturity date | Apr. 30, 2012 | Apr. 30, 2012 | ||||||||||||
Factoring agreements extended maturity date | Dec. 31, 2012 | Dec. 31, 2012 | ||||||||||||
Total balance of accounts receivable under factoring | 53.6 | 181.7 | ||||||||||||
Accounts receivable sold during the period | 116.5 | 394.6 | 205.8 | 697.4 | ||||||||||
Non-recourse factoring loss | 0.9 | 3.1 | 1.9 | 6.3 | ||||||||||
Liability for recourse from factored receivables | $ 1.4 | $ 1.4 |
Other Financial Income, Net (Tables)
|
6 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Jun. 30, 2012
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Components Of Other Financial Income, Net | The following items are included in Other financial income, net:
|
Effects Of Foreign Currency Movements (Exchange Rates Used For Translation Of Balance Sheet And Statement Of Operations) (Detail)
|
6 Months Ended | 12 Months Ended |
---|---|---|
Jun. 30, 2012
|
Dec. 31, 2011
|
|
PLN / US$ [Member]
|
||
Effects Of Foreign Currency Movements [Line Items] | ||
Balance sheet rate | 3.3885 | 3.4174 |
Average rate | 3.3255 | 2.7500 |
RUR / US$ [Member]
|
||
Effects Of Foreign Currency Movements [Line Items] | ||
Balance sheet rate | 32.8981 | 32.2092 |
Average rate | 31.1085 | 27.9756 |
HUF / US$ [Member]
|
||
Effects Of Foreign Currency Movements [Line Items] | ||
Balance sheet rate | 228.9527 | 240.6620 |
Average rate | 229.3448 | 184.5638 |
Inventory (Components Of Inventories) (Detail) (USD $)
In Thousands, unless otherwise specified |
Jun. 30, 2012
|
Dec. 31, 2011
|
Jun. 30, 2011
|
---|---|---|---|
Inventory [Line Items] | |||
Raw materials and supplies | $ 18,510 | $ 22,237 | |
In-process inventories | 6,873 | 2,655 | |
Finished goods and goods for resale | 111,443 | 92,798 | |
Total | $ 136,826 | $ 117,690 | $ 150,160 |
Commitments And Contingent Liabilities (Future Minimum Lease Payments For Assets Under Capital Lease) (Detail) (USD $)
In Thousands, unless otherwise specified |
Jun. 30, 2012
|
---|---|
2012 | $ 801 |
2013 | 604 |
2014 | 236 |
Gross payments due | 1,641 |
Less interest | (115) |
Net payments due | $ 1,526 |
Recently Issued Accounting Pronouncements
|
6 Months Ended | ||
---|---|---|---|
Jun. 30, 2012
|
|||
Recently Issued Accounting Pronouncements |
In May 2011, the FASB issued ASU 2011-04, “Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs” (“ASU 2011-04”), which is effective for annual reporting periods beginning after December 15, 2011. This guidance amends certain accounting and disclosure requirements related to fair value measurements. Additional disclosure requirements in the update include: (1) for Level 3 fair value measurements, quantitative information about unobservable inputs used, a description of the valuation processes used by the entity, and a qualitative discussion about the sensitivity of the measurements to changes in the unobservable inputs; (2) for an entity’s use of a nonfinancial asset that is different from the asset’s highest and best use, the reason for the difference; (3) for financial instruments not measured at fair value but for which disclosure of fair value is required, the fair value hierarchy level in which the fair value measurements were determined; and (4) the disclosure of all transfers between Level 1 and Level 2 of the fair value hierarchy. The Company adopted ASU 2011-04 during the first quarter of the current fiscal year. The adoption of ASU 2011-04 did not have a material impact on the Company’s consolidated financial statements other than disclosures related to fair value measurements. In June 2011, the FASB issued ASU 2011-05, “Presentation of Comprehensive Income” (“ASU 2011-05”), which was issued to enhance comparability between entities that report under U.S. GAAP and IFRS, and to provide a more consistent method of presenting non-owner transactions that affect an entity’s equity. ASU 2011-05 eliminates the option to report other comprehensive income and its components in the statement of changes in stockholders’ equity and requires an entity to present the total of comprehensive income, the components of net income and the components of other comprehensive income either in a single continuous statement or in two separate but consecutive statements. This pronouncement is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011. However, in December 2011, the FASB issued ASU 2011-12, “Deferral of the Effective Date for Amendments to the Presentation of Reclassifications of Items Out of Accumulated Other Comprehensive Income in Accounting Standards Update No. 2011-05” (“ASU 2011-12”), which deferred the guidance on whether to require entities to present reclassification adjustments out of accumulated other comprehensive income by component in both the statement where net income is presented and the statement where other comprehensive income is presented for both interim and annual financial statements. ASU 2011-12 reinstated the requirements for the presentation of reclassifications that were in place prior to the issuance of ASU 2011-05 and did not change the effective date for ASU 2011-05. For public entities, the amendments in ASU 2011-05 and ASU2011-12 are effective for fiscal years, and interim periods within those years, beginning after December 15, 2011, and should be applied retrospectively. The Company adopted both ASU 2011-05 and ASU 2011-12 during the first quarter of the current fiscal year. The adoption of ASU 2011-05 and ASU 2011-12 did not have a material impact on the Company’s consolidated financial statements, other than presentation of comprehensive income. In September 2011, the FASB issued ASU 2011-08, “Testing Goodwill for Impairment” (“ASU 2011-08”), which simplifies testing for impairment by allowing an entity to first assess qualitative factors and determine if it is more likely than not (defined as 50% or more) that the fair value of the reporting unit is less than its carrying amount. That determination can then be used to decide if it is necessary to perform the two-step goodwill impairment test. ASU 2011-08 is effective for annual and interim goodwill impairment tests performed for fiscal years beginning after December 15, 2011, which corresponds to the Company’s first quarter of current fiscal year. The Company will adopt ASU 2011-08 during the current fiscal year and this adoption is not expected to have a material impact on the Company’s consolidated financial statements. |
Borrowings (Bank Facilities) (Detail)
In Millions, unless otherwise specified |
6 Months Ended | 1 Months Ended | 6 Months Ended | 6 Months Ended | 0 Months Ended | 6 Months Ended | 6 Months Ended | ||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Feb. 06, 2012
Overdraft Agreement [Member]
USD ($)
|
Jun. 30, 2012
Alfa Bank [Member]
|
Jul. 22, 2008
Alfa Bank [Member]
Loan Agreement [Member]
USD ($)
|
Jul. 22, 2008
Alfa Bank [Member]
Loan Agreement [Member]
EUR (€)
|
Jun. 30, 2012
Alfa Bank [Member]
Loan Agreement [Member]
USD ($)
Tranches
|
Jun. 30, 2012
Alfa Bank [Member]
Loan Agreement [Member]
EUR (€)
Tranches
|
Jun. 30, 2012
Alfa Bank [Member]
Loan Agreement [Member]
Minimum [Member]
|
Jun. 30, 2012
Alfa Bank [Member]
Loan Agreement [Member]
Maximum [Member]
|
Jun. 30, 2012
Raiffeisen Bank [Member]
USD ($)
|
Jun. 30, 2012
Raiffeisen Bank [Member]
EUR (€)
|
Jun. 30, 2012
Raiffeisen Bank [Member]
Minimum [Member]
|
Jun. 30, 2012
Raiffeisen Bank [Member]
Maximum [Member]
|
Jul. 06, 2010
Raiffeisen Bank [Member]
Loan Agreement [Member]
USD ($)
Tranches
|
Jul. 06, 2010
Raiffeisen Bank [Member]
Loan Agreement [Member]
EUR (€)
Tranches
|
Jun. 30, 2012
Raiffeisen Bank [Member]
Loan Agreement [Member]
|
Jun. 30, 2012
Unicredit [Member]
Loan Agreement [Member]
USD ($)
|
Jun. 30, 2012
Unicredit [Member]
Loan Agreement [Member]
RUB
|
May 24, 2011
Unicredit [Member]
Loan Agreement [Member]
USD ($)
|
May 24, 2011
Unicredit [Member]
Loan Agreement [Member]
RUB
|
Jun. 30, 2012
JSC Grand Invest Bank [Member]
Loan Agreement [Member]
USD ($)
|
Jun. 30, 2012
JSC Grand Invest Bank [Member]
Loan Agreement [Member]
RUB
|
Jun. 30, 2012
Sberbank [Member]
Overdraft Agreement [Member]
|
Feb. 06, 2012
Sberbank [Member]
Overdraft Agreement [Member]
RUB
|
Jun. 30, 2012
Zenit Bank, Alfa Bank And Raiffeisen Bank [Member]
USD ($)
|
Jun. 30, 2012
Zenit Bank, Alfa Bank And Raiffeisen Bank [Member]
EUR (€)
|
Jun. 30, 2012
Unicredit And JSC Grand Invest Bank [Member]
Loan Agreement [Member]
USD ($)
|
Jun. 30, 2012
Unicredit And JSC Grand Invest Bank [Member]
Loan Agreement [Member]
RUB
|
Jun. 30, 2012
Hungary [Member]
Overdraft Facility [Member]
USD ($)
|
Jun. 30, 2012
Hungary [Member]
Overdraft Facility [Member]
HUF
|
|
Line of Credit Facility [Line Items] | |||||||||||||||||||||||||||||
Outstanding liability | $ 25.2 | € 20.0 | $ 3.1 | € 2.5 | $ 18.2 | 600.0 | $ 7.5 | 245.5 | $ 28.3 | € 22.5 | $ 25.7 | 845.5 | |||||||||||||||||
Initiation date | July 22, 2008 | July 22, 2008 | July 6, 2010 | May 24, 2011 | May 24, 2011 | November 25, 2011 | November 25, 2011 | February 6, 2012 | |||||||||||||||||||||
Maturity date | October 18, 2014 | October 18, 2014 | July 6, 2012 | November 23, 2012 | November 23, 2012 | November 23, 2012 | November 23, 2012 | February 5, 2013 | |||||||||||||||||||||
Maximum credit limit under line of credit facility | 1.8 | 25.2 | 20.0 | 12.6 | 10.0 | 60.0 | |||||||||||||||||||||||
Release of tranches, maturity date | Six | Three | Nine | One | 12 | ||||||||||||||||||||||||
Loan agreement, number of tranches | 7 | 7 | 3 | 3 | |||||||||||||||||||||||||
Date of tranches release, start date | March 13, 2012 | March 13, 2012 | October 12, 2011 | ||||||||||||||||||||||||||
Date of tranches release, end date | June 28, 2012 | June 28, 2012 | October 27, 2011 | ||||||||||||||||||||||||||
Repayable date | September 13, 2012 | December 28, 2012 | |||||||||||||||||||||||||||
Amount of collateral on term loan | 21.9 | 720.0 | |||||||||||||||||||||||||||
Amount available under open credit facility | $ 0.4 | 100.0 |
Restatement Of Condensed Consolidated Financial Statements (Condensed Consolidated Balance Sheet) (Parenthetical) (Detail) (USD $)
In Thousands, except Share data, unless otherwise specified |
Jun. 30, 2012
|
Dec. 31, 2011
|
Jun. 30, 2011
As Reported [Member]
|
Jun. 30, 2011
Restated [Member]
|
---|---|---|---|---|
Allowance for doubtful accounts | $ 27,387 | $ 24,510 | $ 34,586 | $ 35,554 |
Common Stock, par value | $ 0.01 | $ 0.01 | $ 0.01 | $ 0.01 |
Common Stock, shares authorized | 120,000,000 | 120,000,000 | 120,000,000,000 | 72,732,559,000 |
Common Stock, shares issued | 73,129,194 | 72,740,302 | 72,732,559,000 | 72,732,559,000 |
Common Stock, shares outstanding | 73,129,194 | 72,740,302 | 72,732,559,000 | 72,732,559,000 |
Treasury Stock, shares | 246,037 | 246,037 | 246,037,000 | 246,037,000 |
Subsequent Events (Detail)
|
6 Months Ended | 6 Months Ended | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Jun. 30, 2012
|
Jun. 30, 2012
New Debt [Member]
|
Jun. 30, 2014
Subsequent Event [Member]
USD ($)
|
Jun. 30, 2014
Maximum [Member]
Subsequent Event [Member]
USD ($)
|
Jun. 30, 2014
Minimum [Member]
Subsequent Event [Member]
USD ($)
|
Jun. 30, 2012
9.125% Senior Secured Notes Due 2016 [Member]
USD ($)
|
Dec. 02, 2009
9.125% Senior Secured Notes Due 2016 [Member]
USD ($)
|
Jun. 30, 2012
8.875% Senior Secured Notes Due 2016 [Member]
EUR (€)
|
Dec. 02, 2009
8.875% Senior Secured Notes Due 2016 [Member]
USD ($)
|
Dec. 02, 2009
8.875% Senior Secured Notes Due 2016 [Member]
EUR (€)
|
Jun. 30, 2012
Roust Trading Limited [Member]
|
Jun. 30, 2012
Roust Trading Limited [Member]
Convertible Senior Notes Due 2013 [Member]
USD ($)
|
|
Subsequent Event [Line Items] | ||||||||||||
Additional common stock issued to adjust issue price | 3 | |||||||||||
Common stock issued on stockholders approval to adjust issue price | 5 | |||||||||||
Common stock issued from escrow to adjust issue price | 2,000,000 | |||||||||||
Common stock volume weighted average price | $ 4.13 | $ 2.75 | ||||||||||
Shares of common stock price | $ 3.44 | |||||||||||
Debt instrument maturity date | Jul. 31, 2016 | |||||||||||
Percentage of common stock in threshold | 42.90% | |||||||||||
Debt instrument issuance amount | $ 380,000,000 | $ 507,000,000 | € 380,000,000 | $ 102,600,000 | ||||||||
Fee on senior secured notes | 2.50 | 2.50 | ||||||||||
Principal amount of initial conversion rate | $ 1,000 | € 1,000 | ||||||||||
Interest rate percentage on issued note | 9.125% | 9.125% | 8.875% | 8.875% | 8.875% |
FAIR VALUE MEASUREMENTS (Tables)
|
6 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Jun. 30, 2012
|
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Fair Value Of Assets Measured On Recurring And Nonrecurring Basis |
|
Borrowings (Total Obligations Under Convertible Senior Notes) (Detail) (USD $)
In Thousands, unless otherwise specified |
Jun. 30, 2012
|
Dec. 31, 2011
|
---|---|---|
Debt [Line Items] | ||
Convertible Senior Notes | $ 270,993 | $ 0 |
Convertible Senior Notes Due 2013 [Member]
|
||
Debt [Line Items] | ||
Debt discount | (1,805) | (4,285) |
Convertible Senior Notes | 270,993 | 304,645 |
Convertible Senior Notes Due 2013 [Member] | Secured Debt [Member]
|
||
Debt [Line Items] | ||
Convertible Senior Notes | 273,358 | 310,000 |
Unamortized debt discount | $ (560) | $ (1,070) |
SALE OF ACCOUNTS RECEIVABLE
|
6 Months Ended | ||
---|---|---|---|
Jun. 30, 2012
|
|||
SALE OF ACCOUNTS RECEIVABLE |
On February 24, 2011, two subsidiaries of the Company, namely CEDC International sp. z o.o. (“CEDC International”) and Polmos Białystok S.A. (“Polmos Bialystok”), entered into factoring arrangements (“Factoring Agreements”) with ING Commercial Finance Polska (“ING Polska”) for the sale up to 290.0 million Polish zlotys (approximately $85.6 million) of receivables. On January 1, 2012, the total limit under the Factoring Agreements was reduced from 290.0 million Polish zlotys ($85.6 million) to 250.0 million Polish zlotys ($73.8 million) and from March 1, 2012 it was further reduced to 220.0 million Polish zlotys ($64.9 million). The Factoring Agreements were to mature on April 30, 2012, however on April 25, 2012 the Company extended these agreements until September 30, 2012 with further decrease of the total limit from April 25, 2012 to 200.0 million Polish zlotys (approximately $59.0 million). On September 28, 2012 the Company further extended these agreements until December 31, 2012 with decrease of the total limit to 170.0 million Polish zlotys (approximately $50.2 million). As of June 30, 2012, the total balance of receivables under factoring amounted to 181.7 million Polish zlotys (approximately $53.6 million) of the 200.0 million Polish zlotys limit available. For the three and six months ended June 30, 2012, the Company sold receivables in the amount of 394.6 million Polish zlotys ($116.5 million) and 697.4 million Polish zlotys ($205.8 million), respectively and recognized a loss on the sale in the statement of operations and comprehensive income in the amount of 3.1 million Polish zlotys ($0.9 million) and 6.3 million Polish zlotys ($1.9 million), respectively in respect of the non-recourse factoring. The Company has no continuing involvement with the sold non-recourse receivables. As of June 30, 2012, the liabilities from factoring with recourse amounted to $1.4 million and are included in the short term bank loans in the balance sheet. Corresponding receivables from factoring with recourse are presented under accounts receivable in the balance sheet. |
Operating Segments (Segment Information On Identifiable Assets) (Detail) (USD $)
In Thousands, unless otherwise specified |
Jun. 30, 2012
|
Dec. 31, 2011
|
---|---|---|
Segment Reporting Information [Line Items] | ||
Total Identifiable Assets | $ 1,868,525 | $ 2,016,718 |
Poland [Member]
|
||
Segment Reporting Information [Line Items] | ||
Total Identifiable Assets | 540,450 | 600,940 |
Russia [Member]
|
||
Segment Reporting Information [Line Items] | ||
Total Identifiable Assets | 1,217,340 | 1,369,744 |
Hungary [Member]
|
||
Segment Reporting Information [Line Items] | ||
Total Identifiable Assets | 19,724 | 20,265 |
Corporate [Member]
|
||
Segment Reporting Information [Line Items] | ||
Total Identifiable Assets | $ 91,011 | $ 25,769 |