proceedings
shall pay the reasonable attorneys' fees and other reasonable out-of-pocket
costs and expenses incurred by the prevailing party in such proceedings.
58
Section 10.9. Mutual Drafting
This Agreement shall be deemed to be the joint work product of the Company and
the Purchaser, and any rule of construction that a document shall be interpreted
or construed against a drafter of such document shall not be applicable.
Section 10.10. Obligations That Do Not Fall on Business Days.
Notwithstanding anything in this Agreement to the contrary, if any payment
obligation under this Agreement, or any of the dates specified in Section 2.5
below, are to occur on a day that is not a Business Day, such obligation or date
shall be the next following Business Day.
Section 10.11. Amendment and Restatement
This Agreement amends, supersedes and restates the Original Agreement in all
respects.
[Signature Page to Follow]
59
IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase
Agreement as of the day and year first above written.
CENTRAL EUROPEAN DISTRIBUTION CORPORATION By:
/s/ David Bailey
Name:
David Bailey Title:
Interim Chief Executive Officer ROUST TRADING LTD.
By:
/s/ Wendell M. Hollis
Name:
Wendell M. Hollis Title:
Director By:
/s/ Dana Bean
Name:
Dana Bean Title:
Secretary
[Signature Page to the Amended and Restated Securities Purchase Agreement]
Exhibit A
FORM OF ROLLOVER NOTE
Exhibit A-1
SCHEDULE 1
FORM OF NOTE CERTIFICATE
On the front:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
(1) REPRESENTS THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, (A) IS A
"QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) OR (B) IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
"OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S AND, WITH
RESPECT TO (A) AND (B), EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO
SUCH ACCOUNT, (2) AGREES FOR THE BENEFIT OF THE ISSUER THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST
HEREIN, EXCEPT (A) (I) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (II) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,
(III) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (IV) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE REQUIREMENTS
OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT AND SUBJECT TO
ANY APPLICABLE 40-DAY DISTRIBUTION COMPLIANCE PERIOD IN ACCORDANCE WITH
REGULATION S, OR (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT (IF AVAILABLE), AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND