Mail Stop 3561
November 10, 2005
William V. Carey, Chief Executive Officer
Central European Distribution Corporation
Two Bala Plaza, Suite 300
Bala Cynwyd, Pennsylvania 19004
Re: Central European Distribution Corporation
Registration Statement on Form S-3
Filed October 17, 2005
File No. 333-129073
Annual Report on Form 10-K for the Year Ended December 31,
2004
File No. 0-24341
Quarterly Reports on Forms 10-Q for the Quarters Ended
March 31, 2005 and June 30, 2005
File No. 0-24341
Dear Mr. Carey:
We have limited our review of your filing to those issues we
have addressed in our comments. Where indicated, we think you
should
revise your document in response to these comments. If you
disagree,
we will consider your explanation as to why our comment is
inapplicable or a revision is unnecessary. Please be as detailed
as
necessary in your explanation. In some of our comments, we may
ask
you to provide us with information so we may better understand
your
disclosure. After reviewing this information, we may raise
additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form S-3
General
1. In your Selling Stockholders section, you state that the
3,360,000
shares offered in this registration statement were acquired by
your
selling stockholders from you in a private placement completed on
October 3, 2005. Your Form 8-K filed on August 5, 2005 states
that
there are certain conditions to be satisfied or waived by November
30, 2005 before the offering is closed. Further, Section 6.1 of
the
Purchase Agreement, filed as Exhibit 10.1 to that same Form 8-K,
states that your investors have the right to decide whether the
conditions of the offering are satisfied. Therefore, it is
unclear
whether the selling stockholders are irrevocably bound to purchase
the shares of common stock underlying the agreement. Please
provide
us with your analysis as to whether this private placement was
completed prior to filing this registration statement in a manner
consistent with Rule 152 under the Securities Act.
About This Prospectus, page 1
Incorporation of Certain Information by Reference, page 1
Where You Can Fine More Information, page 1
Forward-Looking Statements, page 2
2. Please move the information on pages 1 and 2 out of the
forepart
of your registration statement.
Selling Stockholders, page 8
3. We note in the first paragraph on page 9 that you state the
share
numbers are based on information that the selling stockholders
supplied to you. Please tell us the reason for this statement
since
you are responsible for all disclosure in the prospectus.
4. Please revise your Selling Stockholders table to identify the
beneficial owners that have voting or investment control over the
shares being offered by the selling security holders. See
Interpretation 60 under Section I. Regulation S-K in the Division
of
Corporation Finance`s Manual of Publicly Available Telephone
Interpretations (July 1997) and Interpretation 4S under Regulation
S-
K in the March 1999 Interim Supplement to Division of Corporation
Finance`s Manual of Publicly Available Telephone Interpretations
(March 1999).
Plan of Distribution, page 10
5. Please tell us whether your selling stockholders are broker-
dealers or affiliated with broker-dealers. If any of your selling
stockholders are broker-dealers, please disclose that it is an
"underwriter" within the meaning of the Securities Act of 1933.
Also, you should revise this section, your prospectus cover page,
and
your Selling Stockholders section to state that the selling
stockholder is a broker-dealer, and to state that it is also an
underwriter with respect to the shares that it is offering for
resale.
6. Also, if any of your selling stockholders are affiliates of a
broker-dealer, please disclose, if true, that:
* the seller purchased the shares in the ordinary course of
business,
and
* at the time of the purchase of the securities to be resold, the
seller had no agreements or understandings, directly or
indirectly,
with any person to distribute the securities.
If these statements are not true for any selling stockholder, then
the prospectus must state that the selling stockholder is an
underwriter.
7. The selling stockholders may not short prior to effectiveness
of
this registration statement and cover with shares received from
this
registration statement. Please provide clear disclosure regarding
the ability of your selling stockholders to short, including
during
any pricing period, and the possible impact of this type of
shorting.
Also, please discuss the distinction between prohibited and
permitted
shorting with respect to your selling stockholders.
Item 16. Exhibits
8. Please file the escrow agreement from the private placement of
the
3,360,000 shares of common stock related to this offering, or tell
us
why it is not required to be filed under Item 601.
Exhibit 5.1
9. The legal opinion provided to you by counsel expresses its
opinion
only as to "the General Corporation Law of the State of Delaware."
Please have counsel confirm for us in writing that the legality
opinion concurs with our understanding that the reference and
limitation to the Delaware General Corporation Law includes the
statutory provisions and also all applicable provisions of the
Delaware Constitution and the reported judicial cases interpreting
those laws currently in effect. Please file this confirmation as
correspondence on the EDGAR system.
10. Also, in the third-to-last paragraph of the opinion, counsel
states that it assumes no obligation to revise or supplement the
opinion should the Delaware General Corporation Law be changed by
legislative action, judicial decision, or otherwise. Please be
aware
that the opinion must speak as of the date of effectiveness of the
registration statement. Accordingly, if counsel intends to retain
this statement, then the legality opinion must be dated and filed
on
the date you request acceleration of effectiveness. Otherwise,
revise the opinion to eliminate this limitation.
Form 10-K for the Fiscal Year Ended December 31, 2004
Forms 10-Q for the Quarters Ended March 31, 2005 and June 30, 2005
Exhibits 31.1 and 31.2
11. Please revise the certifications in your Form 10-K and the
Forms
10-Q to include the language regarding your internal control over
financial reporting in the first sentence of your paragraph 4, and
to
include the paragraph discussing the design of your internal
controls
over financial reporting as required by Item 601(b)(31)(b) of
Regulation S-K.
Also, please otherwise ensure the certifications do not deviate
from
the language in Item 601(b)(31). For example, we note you cite
the
officer`s title in the introduction and refer to "fourth fiscal
quarter," as opposed to your "most recent fiscal year."
Please note that the certifications relate to the entire Form 10-K
and Forms 10-Q filings. Therefore, you must re-file your entire
amended Form 10-K and Forms 10-Q again with the revised
certifications. You may not file the revised certifications with
only the Form 10-K and Forms 10-Q signature pages.
* * * * * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its
management are in possession of all facts relating to a company`s
disclosure, they are responsible for the accuracy and adequacy of
the
disclosures they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please contact John Fieldsend, Staff Attorney, at (202) 551-
3343, David Mittelman, Legal Branch Chief, at (202) 551-3214, or
me
at (202) 551-3720 with any questions.
Sincerely,
H. Christopher Owings
Assistant Director
cc: Frank R. Adams, Esq.
Dewey Ballantine LLP
Via Fax: (212) 259-6333
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William V. Carey, Chief Executive Officer
Central European Distribution Corporation
November 10, 2005
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