On this 25th day of December 2008 in Moscow, Russian Federation
On this 25th day of December 2008 in Moscow, Russian Federation
Frito Lay Manufacturing LLC whose registered address is Mezheninova, 5, Kashira, Moscow
Region, Russian Federation in the person of its general director, Paul Kiesler acting on the
basis of the charter of the company on the one hand
PepsiCo Holdings LLC whose registered address is Sherrizone, Moscow Region, Russian
Federation in the person of its general director, Marina Ostrovskaya acting on the basis of
the charter of the company on the other hand have reached the following agreement:
Throughout this Agreement, unless the context expressly admits otherwise, the following words
and phrases shall have the following meanings:
Agreement means this master distribution agreement signed between FLM and PCH.
AOP means FLM’s prevailing annual operating plan for the sale of the Products in the Russian
Federation to be determined by FLM and communicated to PCH.
Beverages means any beverage distributed by PCH.
Case means a raw case of the Products, determined according to the Product list, set forth in
Schedule F as amended from time to time by FLM.
Channel means either the Modern Trade, the Traditional Trade or the Indirect Channel (as the
case may be.)
Combined Sales Force means all those sales persons employed by PCH and engaged in the sale of
the Products together with the sale of the Beverages.
Combined Cities means all those cities or oblasts in which the Combined Sales Force collects
orders for the Products and which at the Effective Date are those set forth in Schedule S.
Credit Limit means the total amount of money which PCH may owe FLM at any time for the
Products and which shall not exceed the value of all Products purchased by PCH during any
thirty day period or such other period as the Parties may agree from time to time, such value
being determined on the basis of the prevailing Price List.
Credit Terms means those credit terms granted by PCH to Customers from time to time in
Customers means any legal or physical entity purchasing the Products and/or Beverages from
Database means a data base containing Customer and transactional information and maintained
by PCH in accordance with clause 11.
Dedicated Sales Force means all those sales persons employed by PCH and engaged solely in the
sale of the Products.
Dedicated Cities means all those cities and oblasts in which the Dedicated Sales Force
collects some or all of orders for the Products arising in such city and which at the
Effective Date are those set forth in Schedule S.
DS3 Customer means any 3PD Customer some or all of whose sales force is employed by PCH. Any
sales made by such sales force shall be deemed to have been made by the Sales Force. Any
sales made directly by a DS3 Customer (and not by such sales force) shall be deemed to form
part of sales into the Indirect Channel.
Effective Date means the date on which this Agreement shall come into force and this shall be
1st of January 2009.
FLM means Frito Lay Manufacturing LLC whose registered address is 142 900, Mezheninova, 5,
Kashira, Moscow Region, Russian Federation.
Forecast means a forecast jointly prepared by the Parties pursuant to clause 6.2 setting out,
inter alia, the Parties’ commercial expectations for the following year and the financial
assumptions on which they are based.
Indirect Channel means that channel comprised of 3PD Customers or wholesalers who purchase
the Products primarily for resale to other distributors or retailers.
KPI(s) means all those key performance indicators determined by FLM (taking into account the
reasonable opinions of PCH) and which PCH shall track and report to FLM in accordance with
Schedules L and S. and the introduction of which shall be subject to the prior approval of
PCH, such approval not to be unreasonably withheld or delayed.
Modern Trade means any hypermarket, supermarket, discounter or any other Customer falling
within this channel according to PCH’s channel classification prevailing on the Effective
Date together with such other Customers as the Parties may determine (from time to time)
Pallet means those pallets belonging to FLM on which the Product is shipped to PCH.
Parties means FLM and PCH.
PCH means PepsiCo Holdings LLC whose registered address is Sherrizone, Moscow Region, Russian
Price List shall mean the rouble price list setting out the prices at which FLM shall sell
the Products to PCH and such list shall be determined in accordance with Schedule F, subject
to clause 6.5. The Price List prevailing on the Effective Date is set forth at Schedule F.
Products means all those products sold by FLM to PCH from time to time pursuant hereto, all
of which shall conform to the Quality Documents.
Proposing Party shall have the meaning ascribed to it in clause 6.5 of this Agreement.
Quality Specifications means all those quality specifications to which the Products shall
conform in accordance with Russian law.
Quality Documents means the certificate of conformity, sanitary epidemiological conclusion
and confirmation of quality and fitness for consumption for each of the Products.
Sales Force means either the Combined Sales Force or the Dedicated Sales Force (as the case
Schedule(s) mean all those schedules of this Agreement, which form an integral part hereof.
Total Sales Force means the Combined Sales Force and the Dedicated Sales Force.
Trademarks means “Lays”, “Lays Max”, “Cheetos” and “Hrusteam” and such other snack food
trademarks under which the Products are sold from time to time.
Traditional Trade means any Customer falling within this channel according to PCH’s channel
classification prevailing on the Effective Date (and this shall include on-premise customers)
together with such other Customers as the Parties may determine (from time to time) acting
Term means the term of this Agreement which shall be five years from the Effective Date
subject to the relevant provisions of clause 6 and 17.
Volume Plan means the annual plan setting out by region, city, Sales Force and Channel the
volume of the Products to be sold during the following year throughout the Russian
3PD Agreements means a distribution or wholesale supply agreement (as the case may be)
concluded by PCH with a 3PD Customer for the supply of the Products and/or the Beverages.
3PD Customers means any wholesaler or distributor within the Indirect Channel which purchases
the Products from PCH.
With effect from the Effective Date FLM hereby appoints PCH as its distributor of the
Products in the Channels throughout the Term in accordance with the terms and conditions
hereof and PCH hereby accepts such appointment.
Sale of Products to PCH
FLM shall sell the Products to PCH at the Price List, prevailing on the day on which
shipment of the Products [is scheduled to take place] [takes place.]
Any amendments to the Price List made in accordance herewith shall become effective 30
calendar days after PCH’s receipt of electronic notice thereof.
FLM shall recognize the income from the sale of Products to PCH at the moment of their
delivery to PCH, which shall be deemed to have taken place upon signing of an act of
acceptance by a duly authorized representative of PCH, whereupon title and risk in the
Products shall pass to PCH.
If FLM delivers Products directly to Customers, FLM shall recognize the income from such
sale from the moment a duly authorized representative of PCH confirms in writing that the
Products have been loaded onto the delivery truck, whereupon title in the Products shall pass
The Parties shall exchange between each other in accordance with their usual practices
information confirming shipment and delivery of the Products to ensure their respective
finance departments effect mutual reconciliation of such information by the last working day
of each week and by the end of the first working day after each month of the Term.
The rights and obligations of the Parties with respect to the acceptance, rejection, and
repackaging of the Products together with the presentation and settlement of any claims by PCH
arising from the Products’ failure to conform to the Quality Specifications are set forth in
PCH’s Payment Terms
PCH shall pay for the Products within 30 calendar days of the date of their shipment.
The Parties shall ensure that at any time PCH shall not owe FLM an amount in excess of the Credit Limit.
The Credit Limit shall be tracked by the Parties on a monthly basis.
The Parties shall review the Credit Limit annually in good faith taking into account
prevailing market conditions and shall endeavour to make reasonable changes thereto in the
light of such review.
The Credit Limit does not include the cost of any Pallets. If PCH fails to return a Pallet to
FLM within 6 months of its shipment in case of return to FLM’s Samara, Yekaterinburg &
Novosibirsk branches and 3 month of its shipment in case of return to FLM’s Moscow and St.
Petersburg branches PCH shall promptly pay FLM an amount equal to the prevailing invoice price
at which FLM purchases replacement Pallets pursuant to arm’s length transactions.
All those other rights and obligations of the Parties in relation to the Pallets are set
forth in Schedule L.
Terms of Delivery to PCH
The prices set forth in the prevailing Price List shall include the cost of primary
transportation to the agreed place of delivery, which FLM shall bear.
The delivery destinations and the standard delivery terms to which all Product sold and
distributed pursuant to the terms hereof shall be subject are more particularly described in
Schedules S & L.
The Parties shall abide by the procedure for the collection and submission of orders for the
Products by PCH together with the procedure for the fulfilment of such orders set forth in
Determining & Amending the Price List
The Price List and growth bonuses, which shall be in force from the Effective Date
throughout 2009, subject to the provisions of clause 6.5 is set forth at Schedule F.
By 31st of October of each year of the Term commencing in 2009, the Parties shall
acting in good faith use all reasonable endeavours to agree the Forecast and the Price List.
The Forecast on which the Price List for 2009 is based is set forth in Schedule F.
No later than 30th of September each year the Parties shall commence the
negotiation of the Forecast and the Price List. If by 31st of October of each year
of the Term the Parties fail to agree in writing either the Forecast or the Price List for the
following year, this Agreement shall terminate on 1st of May of the following year.
At least once every quarter the Parties shall use their reasonable endeavours to review in
good faith the prevailing Forecast against the latest actual market
data to which each
component of the Forecast relates. If in the reasonable opinion of either party the Forecast
is materially different to such actual data, such party may propose in writing appropriate
amendment(s) to the Price List in the light of such difference (“the Proposing Party”) and the
Parties shall use all reasonable endeavours to agree such amendments. If 30 days after the
date upon which the Proposing Party delivers notice of its proposal to the other party, the
Parties have failed to reach agreement on the amendments to the Price List, either party may
terminate this Agreement by delivering written notice thereof on the other party in which case
this Agreement shall terminate six months after the date of delivery of such notice.
Upon reasonable notice each party shall grant to the other prompt, full and unfettered access
to all books and records maintained by such party in order to permit the other party to
exercise its right of review set forth in clause 6.5.
If this Agreement is terminated pursuant to clauses 6.4 or 6.5, such termination shall not
amount to a breach of contract by either party and the Price List prevailing immediately prior
to (i) 31st of October (in the case of clause 6.4) or (ii) the delivery of the
Proposing Party’s notice (in the case of clause 6.5) shall remain in force until termination.
If the Parties fail to reach agreement on appropriate amendments to the Price List following
notice from the Proposing Party pursuant to clause 6.5 and neither Party terminates the
Agreement, the prevailing Price List shall remain in force until either the next quarterly
review pursuant to clause 6.5 or (if sooner than the next quarterly review) the next
determination of the Forecast pursuant to clause 6.2. If the Parties continue to fail to
the amendments to the Price List pursuant to clause 6.5, then the applicable
provisions of this clause shall again apply or
the new Price List pursuant to clause 6.2, then the provisions of clause 6.4 shall apply.
PCH shall determine the Credit Terms, at all times taking into account the reasonable opinions of FLM.
PCH shall bear all risk of each Customer’s failure to pay for the Products without recourse to FLM.
PCH shall grant its Customers the same Credit Terms in respect of the Products as it does in
respect of the Beverages, irrespective of the Customer’s purchases of each and determined
solely by reference to the Customer’s creditworthiness and the total value of purchases made
by the Customer.
PCH shall ensure that:
the Total Sales Force consists of a sufficient number of people having sufficient
experience in the sales and distribution of snack foods to permit PCH to sell
prevailing Volume Plan.
those members of its senior management who shall determine the activities and
working conditions (including salary and bonuses) of the Total Sales Force shall be
specialists having significant prior knowledge and experience of best practices in
relation to the sale of the Products.
PCH shall ensure that:
the Total Sales Force is equipped with hand held computers capable of collecting
in store data in line with FLM’s reasonable requirements (as communicated by FLM to PCH
during the AOP process).
such data is electronically transferred to FLM daily.
The Parties have agreed the allocation of Customers to Channels for 2009. No later than
31st of October of each year of the Term commencing in 2009 the Parties shall
jointly determine the Channel to which a Customer belongs during the following year.
The Parties shall review the composition of the Dedicated Cities and the Combined Cities at
least twice a year and shall, acting reasonably, make appropriate changes in the light of
prevailing market conditions it being agreed that no changes shall be effected in April, May
or June of any year.
In the case of a 3PD Customer who purchases both Beverages and Products, PCH shall use all
reasonable endeavours to ensure that the terms and conditions of the supply of the Products
shall be no worse than those of the supply of the Beverages. PCH shall use all commercially
reasonable endeavours to ensure that such 3PD Customers enter into two commercial agreements
per annum, one setting out the commercial conditions to which the supply of Beverages shall be
subject and one setting out the commercial conditions to which the supply of the Products
shall be subject.
With respect to the Modern Trade, the Parties have agreed the following:
FLM shall hire, instruct and bear the costs of all third party merchandisers
working together with the Dedicated Sales Force.
Shipments of the Products from FLM warehouses shall be effected in accordance
with Schedule L.
FLM shall prepare a Volume Plan and submit it to PCH by 1st of September of each
year of the Term commencing in 2009.
PCH shall use all commercially reasonable efforts to ensure that the Total Sales Force
delivers the prevailing Volume Plan.
The Parties shall jointly review the Volume Plan by the end of each quarter throughout the
Term and shall, acting reasonably, amend the Volume Plan in accordance with Schedule S.
By 1st of October of each year of the Term commencing in 2009, PCH shall, taking
into account the prevailing Volume Plan, submit to FLM for its approval (such approval not to
be unreasonably withheld or delayed) a volume target for the Total Sales Force (split between
the Combined and Dedicated) for each month of the following year (expressed by region, city
and Channel) and PCH shall use all commercially reasonably endeavours to ensure that the Total
Sales Force attains such volume target, which shall be subject to revisions commensurate with
those made to the Volume Plan in accordance with clause 10.3.
PCH shall maintain a Database in accordance with Schedule S.
PCH shall ensure that it reports all relevant data to FLM in accordance with the applicable
provisions of Schedules S&L.
During the final quarter of each year commencing in 2009 FLM shall determine those KPIs which
PCH shall track and report to FLM during the following years, subject to the Parties agreeing
in advance on the timing and procedure for such tracking and reporting.
Marketing, Trade Support & Use of Trademarks
FLM shall alone determine all activities relating to and shall bear all costs arising in
connection with the marketing and trade support for the Products (including the development of
all in store materials and promotional activities.)
In order to increase the sales of the Products throughout the Russian Federation, FLM has the
provide PCH with such sales materials (including racks) and other advertising
materials as FLM shall determine and PCH shall place them at points of sale in
accordance with procedures which the Parties shall separately agree, acting reasonably;
engage in such merchandising activities at points of sale as it so chooses;
appoint and manage third party merchandisers on its own or in connection with
When FLM determines the prevailing Price List, FLM shall include all costs incurred pursuant
to this Clause 13 in the price at which it sells Products to PCH pursuant to the prevailing
FLM hereby authorises PCH to use the Trademarks for the purposes hereof in accordance with
those written instructions, which FLM shall, acting reasonably, issue to PCH from time to
If PCH becomes aware of any unauthorised use of the Trademarks by any third party, PCH shall
promptly inform FLM thereof.
FLM’s Right of Field Audit
Upon reasonable notice to PCH, FLM may visit any premises owned or controlled by PCH with a
view to verifying PCH’s compliance with FLM’s transportation, operating and warehousing
standards set forth in Schedule L.
If FLM exercises its right of field audit set forth in clause 14.1, PCH shall:
make available to FLM or its authorised representative(s) such records and
personnel as FLM may reasonably request in order for FLM to complete the audit in
accordance with PepsiCo, Inc’s usual auditing practices.
if the right of audit can only be exercised by visiting premises owned or
controlled by a third party, use all commercially reasonable endeavours to facilitate
Warehousing & Logistics
PCH shall ensure that at all times it maintains sufficient capacity throughout the Russian
Federation to store, load and unload ordered Products (as more particularly defined in
Schedule L) and subject to those procedures set forth in Schedule L.
The Parties shall enjoy all those rights and submit to all those obligations relating to:
warehousing, storing and ordering which are more particularly set forth in
logistics which are more particularly set forth in Schedule L.
PCH shall ensure the Products are sold, transported and delivered to Customers in accordance
with those provisions set forth in Schedule L.
FLM may in its absolute and unqualified discretion recall the Products from Customers and PCH
shall effect such recall in accordance with Schedule L on condition that (save where the
recall is the result of any act or omission by PCH) FLM shall compensate PCH for all direct
costs incurred by PCH connected therewith.
Throughout the Term the Parties shall undertake the following reviews within the period
Following FLM’s determination of the Volume Plan by 1st of September
of each year of the Term, the Parties shall agree the following by 1st of
October of each year of the Term:
The following year’s volume target for the Combined Sales Force
expressed by brand and city.
The following year’s roll out for the Dedicated Team.
KPIs for the following year.
By the third week of every month during the Term the Parties shall jointly
review, inter alia, the year to date sales data for the Products (including the sales
volumes) versus the corresponding AOP targets together with any other joint projects.
Following FLM’s determination of the three year strategic volume plan for the
sale of the Products in the Russian Federation by 30th of April of each year
of the Term, the Parties shall agree promptly thereafter in the light thereof the roll
out for the Dedicated Sales Force during the next three years and the schedule for the
conversion of 3PD Customers to DS3 Customers.
By the end of the third week of every month during the Term PCH shall review the year to date
performance of the Combined Sales Team against the relevant KPIs set out in the AOP.
Term & Termination
Subject to clauses 6.4, 6.5, 17.2 and 17.3 (respectively), the Term of this Agreement shall
be five years commencing on the Effective Date and expiring automatically on the fifth
Either Party may terminate this Agreement by giving the other two years prior written notice
thereof. For the avoidance of doubt if either Party serves such
notice on the other, this
Agreement shall automatically terminate on the second anniversary of the delivery of notice of
This Agreement shall automatically terminate six months after the occurrence of the
termination for whatever reason of any of the following:
the joint venture agreement between PepsiCo Ireland Limited and PR Beverages
Ireland Limited in relation to the establishment and operation of PR Beverages Limited.
Any master bottling appointment issued by PepsiCo, Inc. or its affiliates to PR
Beverages Limited in respect of any of the following trademarks: Pepsi, 7-UP or Mirinda.
If the joint venture agreement described in clause 17.2 (i) is terminated by virtue of the
material breach of PR Beverages Ireland Limited or if any master bottling appointment
described in clause 17.2 (i) is terminated by virtue of the material breach of PR Beverages
Limited, this Agreement shall be deemed to have been terminated due to the material breach of
If the joint venture agreement described in clause 17.2 (i) is terminated by virtue of the
material breach of PepsiCo Ireland Limited or if any master bottling appointment described in
clause 17.2 (i) is terminated by virtue of the material breach of PepsiCo, Inc. or its
affiliates, this Agreement shall be deemed to have been terminated due to the material breach
If this Agreement terminates for whatever reason, then immediately prior to termination;
PCH undertakes to :
sell to FLM any unsold Products in PCH’s possession at the book
return to FLM all equipment or materials owned by FLM in PCH’s
deliver to FLM an electronic copy of the Customer master files and
credit history of all Customers, subject to PCH’s legal right to do so.
cease the sale of the Products.
The Parties shall make all payments due to each other pursuant to the terms
hereof and either Part may set off monies owed to the other against monies due from the
No term shall survive expiry or termination of this Agreement unless expressly provided
The expiry or termination of this Agreement shall be without prejudice to any rights which
have accrued already to either of the Parties under this Agreement or (subject to clause 24)
accrue to either Party under any applicable legislation.
The Parties acknowledge that the full commercial understanding which they have reached from
the Effective Date is set forth in this Agreement together with all the Schedules hereto.
The Parties may from time to time amend this Agreement or its Schedules on condition that no
amendment shall be effective unless signed by duly authorised representatives of both Parties.
If there is a conflict between the provisions set forth in this Agreement with any set forth
in the Schedules, the former shall prevail.
Governing Law & Jurisdiction
This Agreement shall be governed by Russian law and interpretation and the Parties
irrevocably submit to the exclusive jurisdiction of the Russian courts for all purposes
connected with it.
Supersedes Prior Agreements
As at the Effective Date, this Agreement supersedes any prior agreement relating to the
distribution of the Products, or any of them, in the Russian Federation between the Parties
whether written or oral and any such prior agreements are hereby cancelled but without
prejudice to any rights which have already accrued to either of the Parties.
Any notice to be served on either of the Parties by the other shall be sent by prepaid
recorded delivery or registered post or by telex or by electronic mail and shall be deemed to
have been received by the addressee within 72 hours of posting or 24 hours if sent by telex
or by electronic mail to the correct telex number (with correct answerback) or correct
electronic mail number of the addressee.
The failure by either of the Parties to enforce at any time or for any period any one or more
of the terms or conditions of this Agreement shall not be a waiver of them or of the right at
any time subsequently to enforce all terms and conditions of this Agreement.
Each Party warrants it has the full power and authority to enter into this Agreement.
Exclusion of Liability
Neither Party shall have any liability to the other in connection with this Agreement for any
loss of profit, loss of goodwill, loss of opportunity or loss of reputation suffered by such
other Party (whether in contract, tort or otherwise.)
In the event of the expiry or termination of this Agreement, PCH hereby waives any claim
(which it may otherwise have pursuant to any applicable legislation) for payment for any
goodwill which may have inured to the benefit of the Products during the Term.
If the ability of either party to perform its obligations hereunder is affected by national
emergency war terrorism riot or civil commotion, prohibitive governmental regulations, third
party industrial dispute or any other cause beyond its reasonable control the Party affected
shall forthwith notify the other Party of the nature and extent thereof.
Neither party shall be deemed to be in breach of this Agreement or otherwise be liable to
the other by reason of any delay in performance or non-performance of any of its obligations
hereunder to the extent that such delay or non-performance is due to any of the causes referred to
in Clause 25.1 hereof of which it has notified the other party and the time for performance of that
obligation shall be extended accordingly.
If the delay or non-performance in question shall extend for a continuous period in excess of
three months, the parties shall enter into bona fide discussions with a view to alleviating
its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
This Agreement (excluding the Schedules) shall be executed in English and Russian
counterparts. In the event of a conflict between these English and the Russian texts, the
English text shall prevail over the Russian.
The Schedules shall be executed in either Russian or in English and Russian. If they are
executed only in Russian, any translations shall be for information and without legal force.
If they are executed in English and Russian, the English text shall prevail over the Russian
in the event of a conflict.
Each Party shall bear all its own costs incurred in the formation and execution of this
Each Party shall bear the cost of discharging all those obligations imposed on it by the
terms hereof, unless the context expressly admits otherwise.
The Parties shall use all commercially reasonable endeavours to assist the other Party to
minimize the costs which it incurs in connection with this Agreement.
During the Term of this Agreement, each Party will be exposed to confidential proprietary
technical information belonging to the other which pertains to the operation of the other’s
business. In particular but without limitation, each Party may be exposed to know-how, process
and product information, intellectual property, methods of manufacture, business plans, sales
and marketing strategies, data and technical information pertaining to the other party
(referred to in the remainder of this paragraph as “Confidential Information”). Each Party
agrees to hold in confidence and not to disclose to others or to use for its own benefit or
the benefit of other members of its group all Confidential Information which has been or will
be disclosed to it either directly or indirectly and to use Confidential Information solely in
conjunction with its performance under this
Agreement provided that such obligation of confidentiality and non-use does not apply to any
Confidential Information which:
is already in or which comes into the possession of the non-owning party other
than as a result of a breach of this Agreement;
is or becomes generally available to the public other than as a result of a
disclosure by the non-owning party;
is or becomes available to the non-owning party on a non-confidential basis from
a third party who is not known by the non-owning party to be bound by a confidentiality
Agreement or other obligation of secrecy to the owning party; or
is required to be disclosed by the non-owning party in the course of any legal
proceedings or by any governmental or other authority or regulatory body.
Upon completion or termination of this Agreement for any reason, or upon written demand, each
Party agrees to deliver to the other all tangible forms of Confidential Information belonging
to the other.
Executed on this 25th day of December 2008 in Moscow, Russian Federation