exv10w3



 






EXHIBIT 10.3




7 June 2007




PUT AND CALL OPTION AGREEMENT




Between




MARINA BEZZUB

AGNE TUMENAITE




as Sellers




and




PEPSIAMERICAS, INC.

PEPSICO, INC.




as Buyers




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Table of Contents




	 	 	 	 	 
	1. INTERPRETATION
	 	 	3	 
	2. GRANT OF THE OPTIONS
	 	 	5	 
	3. CONDITIONS
	 	 	5	 
	4. OPTION PERIOD
	 	 	5	 
	5. EXERCISE OF PUT OPTION
	 	 	6	 
	6. WARRANTIES
	 	 	6	 
	7. CONFIDENTIALITY
	 	 	7	 
	8. ANNOUNCEMENTS
	 	 	8	 
	9. ASSIGNMENT
	 	 	8	 
	10. VARIATION
	 	 	8	 
	11. WAIVER
	 	 	8	 
	12. ENTIRE AGREEMENT
	 	 	8	 
	13. COSTS
	 	 	8	 
	14. COUNTERPARTS
	 	 	8	 
	15. NOTICES; POWER OF ATTORNEY
	 	 	9	 
	16. GOVERNING LAW; ARBITRATION
	 	 	10	 
	17. LANGUAGE
	 	 	11	 
	ANNEX 1 SALE AND PURCHASE AGREEMENT
	 	 	13	 






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THIS AGREEMENT is made on 7 June 2007 between the following parties:





	(1)	 	Marina Bezzub and Agne Tumenaite, each of whom are individuals residing in Republic of
Lithuania (the “Sellers”); and
	 
	(2)	 	PepsiAmericas, Inc., a company incorporated in Delaware and PepsiCo, Inc., a company
incorporated in North Carolina (the “Buyers”),
	 
	 	 	(each a “Party” and together the “Parties”).





RECITALS





	(A)	 	Limited Liability Company “Sandora” (the “Company”) was registered in the Ukraine on 8
October 1998 with registered number 1511 120 0000 0000 23 and identification number 22430008
and is a limited liability company.






	(B)	 	As of the date hereof, the Sellers together hold 20% (twenty per cent.) of the participation
interests in the Company. The remaining 80% (eighty per cent.) of the participation interests
are held as of the date hereof by Igor Yevgenovych Bezzub, Raimondas Tumenas, Sergiy
Oleksandrovych Sypko, Olena Mykhailivna Sypko, Oleksiy Sergiyovich Sypko and Andriy
Sergiyovich Sypko (together, the “Other Participants”).






	(C)	 	The Sellers have agreed the terms of a possible sale and purchase of their participation
interests in the Company to the Buyers as set out in the Sale and Purchase Agreement attached
hereto as Annex 1.





IT IS AGREED as follows:





	1.	 	INTERPRETATION
	 
	1.1	 	In this Agreement, the following expressions have the following meanings:





	 	 	 	 	 	 	 
	 

	 	“Applicable Law”
	 	means, with respect to any subject matter,
action or document, each applicable statute,
law, regulation, ordinance, rule, judgment,
rule of common law (to the extent relevant),
as well as any order, decree, directive,
licence, and other restriction of any
Governmental Entity;
	 	 
	 
	 	 	 	 	 	 
	 

	 	“Business Day”
	 	means any day other than a Saturday or Sunday
on which banks are normally open for general
business in London, Kiev and Vilnius;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Buyers”
	 	has the meaning given to it in the Preamble;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Buyers’ Subsidiary”
	 	means any entity which is majority owned,
directly or indirectly, by PepsiCo, Inc.
and/or PepsiAmericas, Inc;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Call Option”
	 	has the meaning given to it in Clause 2.2;	 	 






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	 	“Company”
	 	has the meaning given to it in the Recitals;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Confidential Information”
	 	has the meaning given to it in Clause 13.1;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Encumbrance”
	 	means a mortgage, charge, pledge, lien,
option, restriction, right of first refusal,
right of pre-emption, third party right or
interest, other encumbrance or security
interest of any kind having similar effect;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Exercise Date”
	 	has the meaning given to it in Clause 5.1(a);	 	 
	 
	 	 	 	 	 	 
	 

	 	“Exercise Notice”
	 	means the written notice given in accordance
with Clause 5.1 or Clause 6.1;	 	 
	 
	 	 	 	 	 	 
	 

	 	“LCIA Court”
	 	has the meaning given to it in Clause 16.2;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Option Period”
	 	means the time during which the Options are
capable of exercise, as set out in Clause 4.1
and Clause 4.2 respectively;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Option”
	 	means the Put Option and the Call Option or
either of them;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Other Participants”
	 	has the meaning given to it in the Recitals;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Other Party”
	 	has the meaning given to it in Clause 5.1;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Party” and “Parties”
	 	has the meaning given to it in the Preamble;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Put Option”
	 	has the meaning given to it in Clause 2.1;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Related Agreement”
	 	has the meaning given to it in Clause 16.4;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Rules”
	 	has the meaning given to it in Clause 16.2;	 	 
	 
	 	 	 	 	 	 
	 

	 	“Sale and Purchase
Agreement”
	 	means the agreement for the sale and purchase
of 20% of the participation interests in the
Company in the form of Annex 1; and	 	 
	 
	 	 	 	 	 	 
	 

	 	“Sellers”
	 	has the meaning given to it in the Preamble;	 	 







	1.2	 	In this Agreement:






	 	1.2.1	 	references to a “person” include an individual, body corporate (wherever
incorporated), unincorporated association, trust or partnership (whether or not having
separate legal personality), government, state or agency of a state, or two or more of
the foregoing;
	 
	 	1.2.2	 	references to the Preamble, a Recital, Clause or Schedule are to the preamble,
recital, clause or schedule of this Agreement, and references to this Agreement include
the Schedules;
	 
	 	1.2.3	 	the headings in this Agreement do not affect its construction or
interpretation;
	 
	 	1.2.4	 	a reference to a document is a reference to that document as amended or
modified from time to time in writing by the mutual consent of the Parties;




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	 	1.2.5	 	references to writing shall be deemed to include any modes of reproducing
words in a legible or non-transitory form;
	 
	 	1.2.6	 	the singular includes the plural and vice versa and any gender includes any
other gender; and
	 
	 	1.2.7	 	references to an English legal term for any action, remedy, method of judicial
proceeding, legal document, legal status, court, official, tax principle, provision or
any other legal concept shall, in respect of the Ukraine and Lithuania, be deemed to
include the legal concept which most nearly approximates in that legal jurisdiction to
the English legal term.






	2.	 	GRANT OF THE OPTIONS
	 
	2.1	 	Subject to the condition in Clause 3.1 and in consideration of the Sellers granting the
Buyers the Call Option referred to in Clause 2.2, the Buyers grant to the Sellers an option to
require the Buyers to enter into the Sale and Purchase Agreement (the “Put Option”).
	 
	2.2	 	Subject to the condition in Clause 3.1 and in consideration of the Buyers granting the
Sellers the Put Option referred to in Clause 2.1, the Sellers grant to the Buyers an option to
require the Sellers to enter into the Sale and Purchase Agreement (the “Call Option”).
	 
	3.	 	CONDITIONS
	 
	3.1	 	The Options may only be exercised if the Buyers have, or a Buyers’ Subsidiary has completed
the acquisition of at least 70% (seventy per cent) of the remaining participation interests in
the charter capital of the Company from the Other Participants.
	 
	3.2	 	If the condition specified in Clause 3.1 has not been satisfied on 15 December 2007 or such
later time as the parties may agree in writing, the Options shall lapse and this Agreement
shall terminate and, subject to Clause 3.3, no Party shall have any claim against any other
Party under this Agreement except in relation to any breach occurring before that date.
	 
	3.3	 	On termination of this Agreement in accordance with Clause 3.2 or otherwise, unless stated
otherwise, Clauses 1 (Interpretation), 7 (Confidentiality), 8 (Announcements), 9 (Assignment),
10 (Variation), 12 (Entire Agreement), 13 (Costs), 15 (Notices; Power of Attorney) and 16
(Governing Law; Arbitration) shall continue in full force and effect but all other rights and
obligations of the Parties shall cease immediately. Termination does not affect the Parties’
accrued rights and obligations as at termination.
	 
	4.	 	OPTION PERIOD
	 
	4.1	 	The Put Option may only be exercised after 4 November 2007 or, if later, the date on which
the condition set out in Clause 3.1 is satisfied.
	 
	4.2	 	The Call Option may only be exercised after 4 November 2007 or, if later, the date on which
the condition set out in Clause 3.1 is satisfied.




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	4.3	 	For the purposes of Clause 4.1 and Clause 4.2, the date of exercise of the Option is the date
on which the Exercise Notice is served and not the date on which the Exercise Notice is deemed
to be received in accordance with Clause 15.3.
	 
	5.	 	EXERCISE OF PUT OPTION
	 
	5.1	 	The Put Option shall be exercised only by the Sellers and the Call Option shall be exercised
only by the Buyers (each, upon such exercise, the “Exercising Party”), in each case by giving
notice (the “Exercise Notice”) to the other Party (the “Other Party”), which notice shall:






	 	(a)	 	include the date on which the Exercise Notice is given (the “Exercise Date”) as
well as a statement to the effect that the Exercising Party is exercising the Option;
	 
	 	(b)	 	be accompanied by a counterpart of the Sale and Purchase Agreement dated with
the Exercise Date and duly executed by the Exercising Party.






	5.2	 	Upon receipt of the Exercise Notice the Other Party shall promptly execute a counterpart of
the Sale and Purchase Agreement and return the so executed Sale and Purchase Agreement to the
Exercising Party.
	 
	5.3	 	Once given, an Exercise Notice may not be revoked by the Exercising Party without the written
consent of the other Party.
	 
	6.	 	WARRANTIES
	 
	6.1	 	The Sellers warrant to the Buyers as of the date hereof and of the Exercise Date as follows:






	 	(a)	 	The Sellers have full power and authority without requiring the consent of any
other person, and have taken all necessary actions, to enter into and exercise their
rights and perform their obligations under this Agreement and all other documents to be
executed by them hereunder.
	 
	 	(b)	 	This Agreement and all other documents to be executed by the Sellers hereunder
will, when executed, constitute lawful, valid and binding obligations of the Sellers in
accordance with their respective terms.
	 
	 	(c)	 	The execution, delivery and performance by the Sellers of this Agreement will
not constitute a violation of any law applicable or relating to the Sellers.
	 
	 	(d)	 	Each of the Sellers warrants that such Seller is not (i) a United States
Shareholder as defined in Section 951(b) of the United States Internal Revenue Code of
1986, or (ii) a resident of Ukraine for purposes of Applicable Laws governing Ukrainian
currency control or tax regulations.
	 
	 	(e)	 	Each of the Sellers is the registered legal owner of the participation interest
set opposite her name in schedule 2 of the Sale and Purchase Agreement and is
beneficially entitled to effect or procure the sale and transfer of such participation
interest, and such participation interest shall be fully paid in and free from all
Encumbrances (other than those expressly provided for in the 




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	 	 	 	Sale and Purchase
Agreement, the organisational documents of the Company and/or those that arise by
application of Applicable Law).






	 	(f)	 	None of the Sellers is a party to any option, warrant, purchase right, or other
contract or commitment that could require such Seller to sell, transfer, or otherwise
dispose of any of her participation interest (other than this Agreement).
	 
	 	(g)	 	None of the Sellers is a party to any voting trust, proxy, or other agreement
or understanding with respect to the voting of her participation interest (other than
this Agreement).






	6.2	 	The Buyers warrant to the Sellers as of the date hereof as follows:






	 	(a)	 	The Buyers have full power and authority without requiring the consent of any
other person, and have taken all necessary actions, to enter into and exercise their
rights and perform their obligations under this Agreement and all other documents to be
executed by them hereunder.
	 
	 	(b)	 	This Agreement and all other documents to be executed by the Buyers hereunder
will, when executed, constitute lawful, valid and binding obligations of the Buyers in
accordance with their respective terms.
	 
	 	(c)	 	The execution, delivery and performance by the Buyers of this Agreement will
not constitute a violation of any law applicable or relating to the Buyers or a
violation of any of the organisational documents of the Buyers.
	 
	 	(d)	 	The Buyers are duly organised, validly existing and in good standing under the
laws of their respective jurisdiction of organisation.






	7.	 	CONFIDENTIALITY
	 
	7.1	 	From the date of this Agreement and after termination, without limit in time each Party will
keep confidential the provisions and subject matter of this Agreement and the negotiations
relating to it (together the “Confidential Information”).
	 
	7.2	 	Notwithstanding Clause 7.1, the receiving Party may disclose Confidential Information






	 	(a)	 	if and to the extent required by:






	 	(i)	 	law or by any order of a court of competent jurisdiction;
and/or
	 
	 	(ii)	 	any governmental body or other regulatory or tax authority
which is entitled to require any such disclosure, whether or not the
requirements have the force of law;






provided that, save where giving notice to the other Party is prohibited by law, it
gives the disclosing Party as much notice of such disclosure as practicable; or



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	 	(b)	 	if and to the extent the disclosing Party has given its prior written consent
to the disclosure, such consent not to be unreasonably withheld or delayed.






	8.	 	ANNOUNCEMENTS
	 
	8.1	 	Subject to Clause 8.2, no announcement or public statement concerning the existence, subject
matter or any term of this Agreement shall be made by or on behalf of any Party without the
prior written approval of the other, such approval not to be unreasonably withheld or delayed.
	 
	8.2	 	This Clause shall not apply to any announcement or public statement by any Party required by
law, or the rules of any regulatory or governmental body to which such Party is subject,
including the rules of a recognised investment exchange any stock exchange on which any
securities of the relevant Party are listed, in which case the Party concerned shall make all
reasonable attempts to agree the contents of such announcement or statement with the other
Parties before it is made.
	 
	9.	 	ASSIGNMENT
	 
	 	 	No Party shall be entitled to assign or transfer all or any of its rights, benefits or
obligations under this Agreement without the prior written consent of the other.
	 
	10.	 	VARIATION
	 
	 	 	Any variation of this Agreement must be in writing and signed by each Party or, in the case
of a body corporate, a duly authorised officer or representative of such Party.
	 
	11.	 	WAIVER
	 
	 	 	A delay in exercising, or failure to exercise, any right or remedy under this Agreement does
not constitute a waiver of such right or remedy or other rights or remedies nor shall either
operate so as to bar the exercise or enforcement thereof.
	 
	12.	 	ENTIRE AGREEMENT
	 
	 	 	This Agreement and the Schedules hereto and any other agreement or instrument contemplated
hereby constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the Parties with respect to the subject matter
hereof and thereof and, save as expressly provided in this Agreement, is not intended to
confer upon any person other than the Parties any rights or remedies hereunder pursuant to
the Contracts (Rights of Third Parties) Act 1999.
	 
	13.	 	COSTS
	 
	 	 	Save as otherwise expressly stated in this Agreement, each Party shall pay its own costs in
connection with the negotiation, preparation and implementation of this Agreement and all
agreements ancillary to it.
	 
	14.	 	COUNTERPARTS
	 
	 	 	This Agreement may be executed in any number of counterparts, each of which when executed
and delivered constitutes an original of this Agreement, but all the




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	 	 	counterparts shall
together constitute one and the same agreement. No counterpart shall be effective until
each Party has executed at least one counterpart.
	 
	15.	 	NOTICES; POWER OF ATTORNEY
	 
	15.1	 	A notice or other communication given under this Agreement shall be in writing and shall be
served by delivering it to the Party due to receive it at the address set out in this Clause
15 and shall be deemed to have been delivered in accordance with this Clause 15.
	 
	15.2	 	The Parties’ addresses and fax numbers for the purposes of this Agreement are:
	 
	 	 	Buyers:
	 
	 	 	PepsiCo, Inc.

700 Anderson Hill Road

Purchase, New York 10577

For the attention of: Tim Heaviside, Assistant General Counsel

Fax number: +1 914 253 2752
	 
	 	 	PepsiAmericas, Inc.

4000 Dain Rauscher Plaza

60 South Sixth Street

Minneapolis, MN 55402

For the attention of: Matt Carter, Senior Vice-President M&A
	 
	 	 	Fax number: +1 612 661 4004
	 
	 	 	Sellers:
	 
	 	 	Marina Bezzub

25 Alivu Street

Gineitishkiu Village

Zuyumu District

Vilnius Region

Republic of Lithuania
	 
	 	 	Fax number: +370 5 278 9111
	 
	 	 	Agne Tumenaite

36 Zhelvos Street

Vilnius City

Republic of Lithuania
	 
	 	 	Fax number: +370 5 278 9111




or such other address or fax number as the relevant Party notifies to the other Parties, which
change of address shall only take effect if delivered and received in accordance with this Clause.





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	15.3	 	A notice so addressed shall be deemed to have been received:






	 	(a)	 	if personally delivered, at the time of delivery;
	 
	 	(b)	 	if sent by pre-paid first class post, recorded delivery or registered post, two
Business Days after the date of posting to the relevant address;
	 
	 	(c)	 	if sent by registered air-mail, 5 (five) Business Days after the date of
posting to the relevant address; and
	 
	 	(d)	 	if sent by fax, on successful completion of its transmission as per a
transmission report from the machine from which the fax was sent, save that if such
notice of communication is received after the end of normal working hours (and “normal
working hours” shall be deemed to be 8.30 am to 5.30 pm on any Business Day in the
country of the recipient), such notice or communication shall be deemed to have been
received on the next Business Day.






	15.4	 	For the avoidance of doubt, notice given under this Agreement shall not be validly served if
sent by electronic mail.
	 
	15.5	 	Each of the Sellers hereby grants a power of attorney to Igor Yevgenovych Bezzub to accept
and serve notices and to make legally binding declarations on behalf of each of both Sellers
with regard to this Agreement and the proposed transaction. Igor Yevgenovych Bezzub accepts
this power of attorney.
	 
	16.	 	GOVERNING LAW; ARBITRATION
	 
	16.1	 	This Agreement is governed by, and shall be construed in accordance with, English law.
	 
	16.2	 	Any dispute, controversy or claim arising out of or in connection with this Agreement,
including any question regarding its existence, validity or termination, shall be referred to
and finally resolved by arbitration under the Rules of Arbitration (the “Rules”) of the London
Court of International Arbitration (the “LCIA Court”) in force at the date of this Agreement,
which Rules are deemed to be incorporated by reference to this Clause 16. There shall be three
arbitrators, and the Parties agree that one arbitrator shall be nominated by each party for
appointment by the LCIA Court in accordance with the Rules. The third arbitrator who shall
act as the chairman of the tribunal, shall be nominated by agreement of the two party-approved
arbitrators within fourteen days of the confirmation of the appointment of the second
arbitrator, or in default of such agreement, appointed by the LCIA Court. The seat of the
arbitration shall be London. The language of this arbitration shall be English.
	 
	16.3	 	The arbitrators shall have the power to grant any legal or equitable remedy or relief
available under law, including but not limited to injunctive relief, whether interim and/or
final, and specific performance, and any measures ordered by the arbitrators may be
specifically enforced by any court of competent jurisdiction. Each Party retains the right to
seek interim or provisional measures, including but not limited to injunctive relief and
including but not limited to pre-arbitral attachments or




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	 	 	injunctions, from any court of
competent jurisdiction, and any such request shall not be deemed incompatible with the
agreement to arbitrate or a waiver of the right to arbitrate. For the avoidance of doubt,
this Clause 16 is not intended to limit the powers of the court exercisable in support of
arbitration proceedings pursuant to section 44 of the Arbitration Act 1996 of England.
	 
	16.4	 	In order to facilitate the comprehensive resolution of related disputes, the Parties agree
that upon request of any Party to an arbitration pursuant to this Clause 16, the arbitral
tribunal may, within 90 days of its appointment, consolidate the arbitration with any other
arbitration or proposed arbitration involving any of the Parties and relating to this
Agreement and/or any other agreement (a “Related Agreement”) for the sale and purchase of any
participation interest in the Company other than the Participation Interests executed
simultaneously with this Agreement. The arbitral tribunal shall not consolidate such
arbitrations unless it determines that (a) there are issues of fact or law common to the
arbitrations in question so that a consolidated proceeding would be more efficient than
separate proceedings, and (b) no Party would be prejudiced as a result of such consolidation
through undue delay or otherwise. In the event of different rulings on this question by the
arbitration tribunal constituted hereunder and the tribunal constituted under any Related
Agreement, the ruling of the first formed panel shall control. In the case of the consolidated
proceeding, the arbitrators in that proceeding shall be appointed by the LCIA Court.
	 
	17.	 	LANGUAGE
	 
	17.1	 	This Agreement is written in English and Russian. In the event of any discrepancy between
the English and the Russian versions, the English version shall prevail.




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IN WITNESS WHEREOF THIS AGREEMENT WAS EXECUTED AS A DEED BY THE PARTIES HERETO ON THE DATE SET OUT
ON PAGE 1.




	 	 	 	 	 	 	 	 	 
	Signed by Igor Yevgenovych Bezzub

	 	 	)	 	 	 	 	 
	For MARINA BEZZUB

	 	 	 	 	 	/s/ IGOR YEVGENOVYCH BEZZUB	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	As per the attached power of attorney
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	In the presence of

	 	 	)	 	 	/s/ PHILIPP J. WAHL	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name and occupation of witness

	 	 	 	 	 	Philipp J. Wahl, Counsel	 	 
	 
	 	 	 	 	 	 	 	 
	Signed by Raimondas Tumenas

	 	 	)	 	 	 	 	 
	For AGNE TUMENAITE

	 	 	)	 	 	/s/ RAIMONDAS TUMENAS	 	 
	 

	 	 	 	 	 	 	 	 
	As per the attached power of attorney

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	In the presence of

	 	 	)	 	 	/s/ PHILIPP J. WAHL	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name and occupation of witness

	 	 	 	 	 	Philipp J. Wahl, Counsel	 	 
	 
	 	 	 	 	 	 	 	 
	Signed for and on behalf of

	 	 	)	 	 	 	 	 
	PEPSIAMERICAS, INC.

	 	 	)	 	 	/s/ ROBERT C. POHLAD	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name and position

	 	 	 	 	 	Robert C. Pohlad	 	 
	 

	 	 	 	 	 	Chairman of the Board and	 	 
	 

	 	 	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	Signed by for and on behalf of

	 	 	)	 	 	 	 	 
	PEPSICO, INC.

	 	 	)	 	 	/s/ TIM HEAVISIDE	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name and position

	 	 	 	 	 	W. Timothy Heaviside	 	 
	 

	 	 	 	 	 	Assistant General Counsel	 	 






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ANNEX 1

SALE AND PURCHASE AGREEMENT








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