UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) – October 23, 2012
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
(Exact Name of Registrant as Specified in Charter)
| DELAWARE | 001-35293 | 54-1865271 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 3000 Atrium Way, Suite 265 Mount Laurel, New Jersey |
08054 | |||
| (Address of Principal Executive Offices) | (Zip Code) | |||
(856) 273-6980
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Appointment of Mr. Roustam Tariko as Interim President
In connection with the Corporate Governance Framework approved by the Board of Directors of Central European Distribution Corporation (the “Company”), on September 13, 2012, and as described by the Company in a Current Report on Form 8-K filed with the United States Securities and Exchange Commission (the “SEC”) on September 18, 2012, the Board of Directors appointed Mr. Roustam Tariko Interim President of the Company on October 23, 2012. Mr. Tariko continues to serve as Chairman of the Board of Directors of the Company.
Roustam Tariko (age: 50) has been a director and Chairman of the Board of Directors of the Company since July 2012. Mr. Tariko is the founder of Russian Standard, one the largest Russian privately owned companies working in the consumer market. Russian Standard has leading positions in banking, premium vodka, sparkling wines and spirits distribution. Dating back to 1992, the Russian Standard family of companies today includes Russian Standard Vodka (a number one premium vodka in Russia, present in over 75 countries), Roust Inc. (a leading Russian distributor of alcoholic beverages), Gancia (a legendary Italian producer of sparkling wines and vermouths founded in 1850), Russian Standard Bank (a leading consumer lending and credit card bank in Russia) and Russian Standard Insurance. Mr. Tariko is a graduate of the Moscow Institute for Railway Engineering with a degree in economics and INSEAD Executive School.
Certain Relationships and Related Transactions
Mr. Tariko indirectly owns all of the shares of and controls Roust Trading Ltd. and, accordingly, may be deemed to beneficially own the shares of common stock of the Company currently owned by Roust Trading Ltd. and which may be owned by Roust Trading Ltd in connection with the transactions contemplated by the Amended Securities Purchase Agreement disclosed in the Company’s Current Report on Form 8-K filed by the Company with the SEC on July 11, 2012.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On October 23, 2012, the Board of Directors of the Company approved Amendment No. 2 (the “Amendment”) to the Company’s Amended and Restated Bylaws (the “Bylaws”), effective immediately. The Bylaws were amended as follows:
Section 2.1 (Place of Meetings) was amended to provide that the Chief Executive Officer may fix where stockholder meetings of the Company are to be held in addition to the Board of Directors or the Chairman of the Board.
Section 3.1 (Powers) was amended to make provision for the annual election by the Board of Directors of a Lead Director from among its members, and to stipulate that the Lead Director shall be nominated by a Committee of the Board of Directors consisting of directors that have not been appointed or designated by, or are affiliated with, Roust Trading Ltd. or its affiliates. Section 3.1 further permits the Board of Directors to designate the Lead Director to preside at its meetings in the event that the Chairman of the Board is also serving as President, Chief Executive Officer or in a similar executive capacity.
Section 3.2 (Number and Election) was amended to provide that unless and until Roust Trading Ltd. acquires a majority of the outstanding class or classes of stock of the Corporation entitled to elect directors, a majority of the then-serving directors shall consist of directors that have not been appointed or designated by, or are affiliated with, Roust Trading Ltd. or its affiliates, provided, that so long as the number of directors appointed or designated by Roust Trading Ltd does not exceed the number of directors that Roust Trading Ltd is entitled to appoint pursuant to Section 2.1 of the Governance Agreement, no director appointed or designated by, or are affiliated with, Roust Trading Ltd. or its affiliate shall be required to resign or vacate his or her position as a director to preserve such a majority.
Section 3.3 (Vacancies) was amended to provide that when the majority of then-serving directors includes directors that have been appointed or designated by, or are affiliated with, Roust Trading Ltd, vacancy or vacancies caused by the resignation of a director shall be filled by a vote of the majority of then-serving directors that have not been appointed or designated by, or are affiliated with, Roust Trading Ltd.
Section 3.4.2 (Special Meetings) was amended to provide that the Lead Director may call special meetings of the Board in addition to the Chairman of the Board or the President.
A new Section 3.9 (Lead Director) was inserted to provide an overview of the duties and powers of the Lead Director. The Amendment provides, among other things, that the Lead Director shall serve to coordinate the activities of other non-employee directors and to perform such other duties and have such other powers as the Board of Directors shall designate from time to time.
Section 4.2 (Chairman of the Board), Section 4.3 (Chief Executive Officer) and Section 4.4 (President) were amended to reflect the role of Chairman of the Board as distinct from the Chief Executive Officer and President and to revise and clarify that the Chief Executive Officer and President shall perform their respective duties in managing the business and affairs of the Company within the scope of what has been assigned to each of them by the Board of Directors acting within its authority.
| Item 8.01 | Other Events |
Appointment of Mr. Scott Fine as Vice Chairman of the Board of Directors
In light of Mr. Tariko’s increased responsibilities at the Company, the Board of Directors has appointed Mr. Scott Fine to serve as Vice Chairman of the Board of Directors of the Company. Mr. Fine will continue to serve as lead director of the Board of Directors of the Company.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit |
Description | |
| 3.1 | Amendment No. 2 to the Amended and Restated Bylaws of Central European Distribution Corporation. | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, Central European Distribution Corporation has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CENTRAL EUROPEAN DISTRIBUTION CORPORATION | ||
| By: | /s/ Bartosz Kolacinski | |
| Bartosz Kolacinski | ||
| Interim Chief Financial Officer | ||
Date: October 25, 2012
EXHIBIT INDEX
| Exhibit |
Description | |
| 3.1 | Amendment No. 2 to the Amended and Restated Bylaws of Central European Distribution Corporation. | |
Exhibit 3.1
AMENDMENT NO. 2 TO THE AMENDED AND RESTATED BYLAWS
OF
CENTRAL EUROPEAN DISTRIBUTION CORPORATION
The Amended and Restated Bylaws (the “Bylaws”) of Central European Distribution Corporation, a Delaware corporation, are amended, effective October 23, 2012, as follows:
Section 2.1 of the Bylaws is amended to read in its entirety as follows:
“All meetings of the stockholders shall be held at such place as may be fixed from time to time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.”
Section 3.1 of the Bylaws is amended to read in its entirety as follows:
“The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things, subject to any limitation set forth in the Certificate of Incorporation or as otherwise may be provided in the Delaware General Corporation Law. The Board of Directors shall annually elect a Chairman of the Board from among its members . The Board of Directors shall also annually elect a Lead Director from among its members upon the nomination of a director to serve as Lead Director by a committee of the Board of Directors consisting of directors that (a) have not been appointed or designated by, or are affiliated with, Roust Trading Ltd. or its affiliates and (b) are not employed by the Corporation. The Board of Directors shall designate, when present, either the Chairman of the Board or the President to preside at its meetings, except when the Chairman of the Board is also serving as President, Chief Executive Officer or in another similar executive capacity at the Corporation, in which case the Board of Directors shall, when present, designate the Lead Director to preside at its meetings. If none of the Chairman of the Board, the President or the Lead Director is present, the Board of Directors may designate another officer or director to preside at such meeting. The Chairman of the Board and the President may be the same person. The Board of Directors may also annually elect one or more Vice Chairmen from among its members, with such duties as the Board of Directors shall from time to time prescribe. The Chairman of the Board shall retain his or her right to chair any meeting of the Board he or she may choose to call during any period during which the Chairman of the Board of Directors is also serving as Chief Executive Officer, President or in another similar executive capacity at the Corporation.”
Section 3.2 of the Bylaws is amended to read in its entirety as follows:
“The term “entire Board of Directors” as used herein shall mean the total number of directors constituting the entire Board of Directors irrespective of the number of directors then in office or vacancies. The total number of directors constituting the entire Board of Directors shall be determined by resolution of the Board of Directors passed by the affirmative vote of at least two-thirds of the directors then in office, provided, that such number shall be consistent with the minimum and maximum number of directors set forth in the Certificate of Incorporation. Directors shall be elected at annual meetings of the stockholders, except as provided in Section 3.3 hereof, and each director elected shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal. Directors need not be stockholders. Unless and until Roust Trading Ltd. acquires a majority of the outstanding class or classes of stock of the Corporation entitled to elect directors, a majority of the then-serving directors shall consist of directors that have not been appointed or designated by, or are affiliated with, Roust Trading Ltd. or its affiliates, provided, that so long as the number of directors appointed or designated by Roust Trading Ltd does not exceed the number of directors that Roust Trading Ltd is entitled to appoint pursuant to Section 2.1 of the Governance Agreement, no director appointed or designated by, or are affiliated with, Roust Trading Ltd. or its affiliate shall be required to resign or vacate his or her position as a director to preserve such a majority.”
Section 3.3 of the Bylaws is amended to read in its entirety as follows:
“Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled by a majority of the directors then in office, whether or not a quorum, or by a sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by the sole remaining director so elected. Each director so chosen shall hold office until the next election, and until such director’s successor is elected and qualified, or until
the director’s earlier resignation or removal. In the event that one or more directors resigns from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next election, and until such director’s successor is elected and qualified, or until the director’s earlier resignation or removal, provided, that when the majority of then-serving directors includes directors that have been appointed or designated by, or are affiliated with, Roust Trading Ltd, such vacancy or vacancies shall be filled by a vote of the majority of then-serving directors that have not been appointed or designated by, or are affiliated with, Roust Trading Ltd.”
Section 3.4.2 of the Bylaws is amended to read in its entirety as follows:
“Special meetings of the Board may be called by the Chairman of the Board, the President or the Lead Director on one day’s notice to each director, either personally or by telephone, express delivery service (so that the scheduled delivery date of the notice is at least one day in advance of the meeting), telegram or facsimile transmission. The notice need not describe the purpose of a special meeting.”
A new Section 3.9 of the Bylaws is inserted to read in its entirety as follows:
“Lead Director
The Lead Director serves to coordinate the activities of the non–employee directors and to perform such other duties and have such other powers as the Board of Directors shall designate from time to time. The Lead Director shall have the authority of the Chairman in the event the position of Chairman is vacant. If the Chairman is also serving as President, Chief Executive Officer or in another similar executive capacity for the Corporation, the Lead Director shall be required to consult with the Chairman of the Board in connection with setting the agenda for any meeting and shall have no ability to limit the authority of the Chairman of the Board, including the authority of the Chairman of the Board to call a meeting of the Board and set the agenda. The Chairman of the Board shall retain his or her right to set the agenda for and chair any meeting of the Board he or she may choose to call during any period.”
Section 4.2 of the Bylaws is amended to read in its entirety as follows:
“Subject to Section 3.1 of these bylaws, the Chairman of the Board shall (when present) preside at all meetings of the Board of Directors and stockholders and shall ensure that all orders and resolutions of the Board of Directors are carried into effect. ”
Section 4.3 of the Bylaws is amended to read in its entirety as follows:
“Subject to the authority of the Board of Directors, the Chief Executive Officer shall have such executive responsibility and authority for management of the business, affairs and operations of the Corporation as may be assigned to him or her by the Board of Directors, and shall perform such other duties as, from time to time, may be assigned to him or her by the Board of Directors.”
Section 4.4 of the Bylaws is amended to read in its entirety as follows:
“Subject to the authority of the Board of Directors, the President shall have such executive responsibility and authority for management of the business, affairs and operations of the Corporation as may be assigned to him or her by the Board of Directors, and shall perform such other duties as, from time to time, may be assigned to him or her by the Board of Directors.”