--------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
SCHEDULE 13D
under the Securities Exchange Act of 1934 as amended
WIMM-BILL-DANN FOODS OJSC
--------------------------------------------------------------------------------
(Name of Issuer)
ORDINARY SHARES, PAR VALUE 20 RUSSIAN RUBLES EACH
--------------------------------------------------------------------------------
(Title of Class of Securities)
97263M10
--------------------------------------------------------------------------------
(CUSIP Number)
Roman V. Bolotovsky
Wimm-Bill-Dann Foods OJSC
16/15 Yauzsky Blvd. Moscow 109028 Russia
Tel: +7-095-105-5805
Fax: +7-095-105-5800
with a copy to:
William S. Lamb, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th St., New York, NY 10019
Tel.: 1-212-424-8170
Fax: 1-212-424-8500
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
February 25, 2003
--------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
-----------------
If the filing person has previously filed a statement on Schedule 13 G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
/ /
(Continued on following pages)
(Page 1 of 30 Pages)
CUSIP NO. 97263M10 13D Page 2 of 30
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gavril A. Yushvaev
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Russian Federation
-------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
8,272,948
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 3 of 30
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
Mikhail V. Dubinin
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Russian Federation
-------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
4,471,421
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|-|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 4 of 30
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
Sergei A. Plastinin
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Russian Federation
-------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
5,351,421
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 5 of 30
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
Alexander S. Orlov
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Russian Federation
-------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
2,738,282
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 6 of 30
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
David Iakobachvili
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Kingdom of Sweden
-------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
2,818,347
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 7 of 30
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
Mikhail I. Vishnyakov
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Russian Federation
-------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
1,357,798
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 8 of 30
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
Evgeny L. Yaroslavskiy
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Russian Federation
-------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
1,163,163
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
-------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 9 of 30
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
Victor E. Evdokimov
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Russian Federation
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
264,405
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
-------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 10 of 30
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
United Burlington Investments Limited
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|_|
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Great Britain
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
None
-------------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 29,209,049
EACH REPORTING -------------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
2,771,264
-------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
29,209,049
--------------------------------------------------------------------------------
12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.38%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
CUSIP NO. 97263M10 13D Page 11 of 30
SCHEDULE 13D
Item 1. Security and Issuer:
This Schedule 13D is filed with respect to the ordinary shares, par value
20 Russian rubles per ordinary share (the "Ordinary Shares"), of Wimm-Bill-Dann
Foods OJSC, a joint stock company organized under the laws of the Russian
Federation (the "Issuer"), having its principal executive offices at 16/15
Yauzsky Boulevard, Moscow 109028, Russian Federation. The Ordinary Shares are
traded on the New York Stock Exchange through an American Depositary Share
facility in which each American Depositary Share of the Issuer (the "American
Depositary Shares" or "ADSs") represents one Ordinary Share. Each reference in
this Statement to Ordinary Shares refers also (where applicable) to the
corresponding American Depositary Shares representing such Ordinary Shares.
Item 2. Identity and Background
(a)-(c) and (f) This statement on Schedule 13D is being filed by Gavril A.
Yushvaev, Mikhail V. Dubinin, Sergei A. Plastinin, Alexander S. Orlov, David
Iakobachvili, Mikhail I. Vishnyakov, Evgeny L. Yaroslavskiy and Victor E.
Evdokimov (the "Natural Reporting Persons") and United Burlington Investments
Limited, a private limited company organized under the laws of England and Wales
("United Burlington", and together with the Natural Reporting Persons, the
"Reporting Persons").
Exhibit 1 sets forth the following information with respect to each
Natural Reporting Person: (i) name; (ii) residence or business address; and
(iii) present principal occupation or employment and the name of any corporation
or other organization in which such employment is conducted. Please see Item 6
of the cover page to this Schedule 13D for the citizenship of each Natural
Reporting Person.
United Burlington has its principal offices at Unit B, CIL Trading
Estate, Fonthill Road, London, N4 3HN, England, and it is principally engaged in
investment business. The executive officers and directors of United Burlington,
the persons controlling United Burlington, and the directors and executive
officers of the persons controlling United Burlington are set forth on Exhibit 2
hereto. Exhibit 2 sets forth the following information with respect to each such
person that is a natural person: (i) name; (ii) residence or business address;
(iii) present principal occupation or employment and the name of any corporation
or other organization in which such employment is conducted; and (iv)
citizenship. Exhibit 2 sets forth the following information with respect to each
such person that is a legal entity: (i) name; (ii) jurisdiction of organization;
(iii) principal business; and (iv) principal office.
(d) During the last five years, none of the Reporting Persons nor, to the
knowledge of the Reporting Persons, any person identified in Exhibit 2 has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, none of the Reporting Persons nor, to the
knowledge of the Reporting Persons, any person identified in Exhibit 2 was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, Federal or State securities laws or finding any
violation with respect to such laws
Item 3. Source and Amount of Funds or Other Consideration
(1) All Natural Reporting Persons acquired their Ordinary Shares in exchange
for their respective common registered shares of "Lianozovo dairy" OJSC and
common registered shares of "Production and Analytical Group "Rodnik" ZAO,
both of which thereby became and still remain subsidiaries of
Wimm-Bill-Dann Foods OJSC.
CUSIP NO. 97263M10 13D Page 12 of 30
Sources and amount of consideration used by each of the Natural Reporting
Persons to acquire Ordinary Shares:
Gavril A. Yushvaev: common registered shares of "Lianozovo dairy"
OJSC - 38,207
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 5,343
Mikhail V. Dubinin: common registered shares of "Lianozovo dairy"
OJSC - 24,715
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 3,456
Sergei A. Plastinin: common registered shares of "Lianozovo dairy"
OJSC - 24,715
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 3,456
Alexander S. Orlov: common registered shares of "Lianozovo dairy"
OJSC - 13,967
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 1,953
David Iakobachvili: common registered shares of "Lianozovo dairy"
OJSC - 12,736
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 1,781
Mikhail I. Vishnyakov: common registered shares of "Lianozovo dairy"
OJSC - 6,368
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 890
Evgeny L. Yaroslavskiy: common registered shares of "Lianozovo dairy"
OJSC - 6,368
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 890
Victor E. Evdokimov: common registered shares of "Lianozovo dairy"
OJSC - 1,830
common registered shares of "Production and
Analytical Group "Rodnik" ZAO - 256
(2) United Burlington used its working capital to purchase Ordinary Shares.
CUSIP NO. 97263M10 13D Page 13 of 30
Item 4. Purpose of Transaction
(1) Each of the Natural Reporting Persons acquired his Ordinary Shares before
the Ordinary Shares were registered under the Securities Exchange Act of
1934, as amended. The purpose of the acquisition by each Natural Reporting
Person of the Ordinary Shares was to make an investment in the Issuer.
(2) On February 25, 2003, United Burlington entered into a share transfer
agreement to acquire 3,057,264 Ordinary Shares from Aleksandrs Timohins at
a price per share of USD 19.00, in a privately negotiated sale under
Regulation S that was completed on March 4, 2003. In connection with such
acquisition, United Burlington confirmed its accession as of March 4, 2003,
to that certain Amended and Restated Partnership and Cooperation Agreement,
dated 16 January 2002 (the "Shareholders Agreement"), to which each of the
Natural Reporting Persons is also a party. The Shareholders Agreement is
described in additional detail in Item 6, below. The purpose of the
acquisition by United Burlington of the Ordinary Shares was to make an
investment in the Issuer. On May 5, 2003 United Burlington sold 286,000
Ordinary Shares at a price per share of USD 17.50 in a private placement
under Regulation S.
The Reporting Persons may acquire or dispose of Ordinary Shares in the future
depending upon market conditions, personal objectives and other facts and
circumstances. The Reporting Persons have in the past had various exploratory
discussions regarding potential combinations, joint ventures or partnerships
between the Issuer and Groupe Danone. As of the date hereof, the Reporting
Persons are engaged in preliminary discussions with Groupe Danone in relation to
a possible transaction, which may or may not result in the acquisition of all or
a majority of the outstanding Ordinary Shares by Groupe Danone. The Issuer has,
at the request of the Reporting Persons, cooperated in such preliminary
discussions. As of the date hereof, the material terms and conditions with
respect to a transaction have not been agreed to. No assurance can be made that
these discussions will continue or that any agreement with respect to a
transaction will be reached, or, if reached, what the form of the transaction
will be. In addition, to the extent such current discussions do not result in
any transaction, further discussions may take place in the future with Groupe
Danone regarding possible business combinations, joint ventures, partnerships or
other material transactions. However, there can be no assurance that any such
discussions would occur, or, if they do occur, that they would result in any
such possible transaction.
Item 5. Interest in Securities of the Issuer
(a) and (b) Amount and Nature of Beneficial Ownership Reported
The Reporting Persons collectively have, by virtue of the
Shareholders Agreement, beneficial ownership of and shared voting
power over an aggregate of 29,209,049 Ordinary Shares,
representing approximately 66.38% of the aggregate amount of the
issuer's shares. The percentage amount is calculated based upon
44,000,000 Ordinary Shares outstanding as of May 10, 2003, based
on information contained in the Issuer's Annual Report on Form
20-F filed with the Securities and Exchange Commission on June 30,
2003. The Ordinary Shares beneficially owned by the Reporting
Persons are directly held as follows:
(i) Gavril A. Yushvaev is a direct holder of 8,272,948 Ordinary
Shares, as to which Gavril A. Yushvaev possesses sole
investment power;
(ii) Mikhail V. Dubinin is a direct holder of 4,471,421 Ordinary
Shares, as to which Mikhail V. Dubinin possesses sole
investment power;
CUSIP NO. 97263M10 13D Page 14 of 30
(iii) Sergei A. Plastinin is a direct holder of 5,351,421
Ordinary Shares, as to which Sergei A. Plastinin possesses
sole investment power;
(iv) Alexander S. Orlov is a direct holder of 2,738,282 Ordinary
Shares, as to which Alexander S. Orlov possesses sole
investment power;
(v) David Iakobachvili is a direct holder of 2,818,347 Ordinary
Shares, as to which David Iakobachvili possesses sole
investment power;
(vi) Mikhail I. Vishnyakov is a direct holder of 1,357,798
Ordinary Shares, as to which Mikhail I. Vishnyakov
possesses sole investment power;
(vii) Evgeny L. Yaroslavskiy is a direct holder of 1,163,163
Ordinary Shares, as to which Evgeny L. Yaroslavskiy
possesses sole investment power;
(viii) Victor E. Evdokimov is a direct holder of 264,405 Ordinary
Shares, as to which Victor E. Evdokimov possesses sole
investment power; and
(ix) United Burlington is a direct holder of 2,771,264 Ordinary
Shares, as to which its sole shareholder, Arteks Generation
Privatstiftung, and its sole director, Aleksandrs Timohins,
possess shared investment power.
(c) On April 30, 2003 and on May 5, 2003, certain Reporting Persons sold an
aggregate of 1,760,000 Ordinary Shares, representing in the aggregate
approximately 4% of the Ordinary Shares, at a price per share of USD 17.50
in a private placement under Regulation S. The following Reporting Persons
individually sold the following number of Ordinary Shares:
Mikhail V. Dubinin 880,000 Ordinary Shares
Alexander S. Orlov 286,000 Ordinary Shares
Evgeny L. Yaroslavskiy 176,000 Ordinary Shares
Victor E. Evdokimov 132,000 Ordinary Shares
United Burlington Investments Limited 286,000 Ordinary Shares
(d) Aleksandrs Timohins, as the sole director of United Burlington, has the
right to receive and power to direct the receipt of dividends from, or the
proceeds from the sale of, the Ordinary Shares held by United Burlington.
(e) Reporting Persons that ceased to be beneficial owners of more than five
percent of the Ordinary Shares: Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer
1. Description of the Shareholders Agreement (and Accession Letter):
A copy of the Shareholders Agreement is attached as Exhibit 99.1 to the
Registration Statement on Form F-1 (No. 333-14 278) filed by the issuer
with the U.S. Securities and Exchange Commission ("SEC") and declared
effective by the SEC on February 07, 2002 (the "Registration
CUSIP NO. 97263M10 13D Page 15 of 30
Statement"). United Burlington confirmed its accession to the Shareholders
Agreement as of March 4, 2003, by executing an accession letter (the
"Accession Letter").
The Shareholders Agreement includes, among other things, the following
restrictions on the Reporting Persons:
Independent Directors. The parties to the agreement undertake to use their
best efforts to ensure that a majority of the directors of the Issuer are
"independent." A director is considered "independent" if that person is
not:
o an employee of the Issuer or an employee or director of any of the
Issuer's subsidiaries;
o a party to the agreement, a family member of a party to the agreement,
or a person or entity controlled by a party to the agreement;
o an employee or director of
- a party to the agreement;
- a family member of a party to the agreement;
- a person or entity controlled by a party to the agreement;
- any other person or entity controlled by a family member of a
party to the agreement;
- a person or entity controlled by any employee or director of any
of the parties to the agreement; or
- a person or entity controlled by any family member of a party to
the agreement or a person or entity controlled by any employee or
director of a party to the agreement.
Voting. The parties to the agreement are required to vote all of the Shares
that they own in the same way. In order to determine how the parties will
vote, the agreement requires them to attempt to agree unanimously on a
single voting position on each item on the agenda for a shareholders'
meeting. If they are unable to do so, then the following procedures are
followed:
o The parties will vote their Shares as determined by parties holding a
two-thirds majority of the Shares held by the parties;
o If there is no two-thirds majority among the parties, then the parties
will vote their Shares consistent with the recommendation of the
majority of individuals who are on the Issuer's board of directors;
and
o If no voting position can be determined using the procedures noted
above, then the parties will abstain from voting on that issue.
Term. The agreement may not be terminated until the earlier to occur of:
o any party to the agreement owning of all of the Issuer's issued and
outstanding shares;
o the Issuer is liquidated pursuant to the laws of the Russian
Federation; or
CUSIP NO. 97263M10 13D Page 16 of 30
o January 16, 2004.
Upon the occurrence of the first two events described above, the agreement
automatically terminates. Otherwise, subject to these conditions, the
agreement continues in full force and effect until terminated by any party
to the agreement by giving 30 days' prior written notice to all other
parties to the agreement and to the Issuer.
2. Description of Pledge Agreements of Mikhail V. Dubinin.
Mikhail V. Dubinin entered into a number of agreements (the "Pledge
Agreements") to pledge Ordinary Shares held by him as security for personal
credits or credit lines of up to an aggregate maximum principal amount of
USD 17,500,000. As of the date hereof, an aggregate of 2,410,806 Ordinary
Shares have been pledged to secure an aggregate outstanding principal
amount of USD 15,100,000. In the event of a default under any of the Pledge
Agreements, the Ordinary Shares pledged thereunder would be subject to sale
at a public auction, pending which Mikhail V. Dubinin would cease to have
investment power over such Ordinary Shares and may cease to have voting
power with respect to such Ordinary Shares (or such voting power may be
restricted) if an appropriate court order were to be obtained by the
pledgee. In addition, certain of the Pledge Agreements and agreements
ancillary thereto purport to cause investment power to vest in the pledgee
immediately and without judicial intervention.
Item 7. Material to be Filed as Exhibits
(1) Information Concerning Natural Reporting Persons.
(2) Information Concerning Directors and Executive Officers of United
Burlington, Control Persons of United Burlington, and Directors and
Executive Officers of such Control Persons.
(3) Joint Filing Agreement, dated September 4, 2003 by and among the Reporting
Persons.
(4) Power of Attorney, dated September 4, 2003 by each of the Natural Reporting
Persons, appointing Roman V. Bolotovsky and Tatiana A. Mikhaylova as
attorneys-in-fact
(5) Shareholders Agreement
(6) Accession Letter
CUSIP NO. 97263M10 13D Page 17 of 30
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, we,
the undersigned, hereby certify that the information set forth in this statement
is true, complete and correct.
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
Gavril A. Yushvaev
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
Mikhail V. Dubinin
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
Sergei A. Plastinin
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
Alexander S. Orlov
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
David Iakobachvili
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
Mikhail I. Vishnyakov
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
Victor E. Evdokimov
Date: September 5, 2003 By /s/ Roman V. Bolotovsky
-------------------------------------
Name: Roman V. Bolotovsky
as Attorney-in-Fact for
Evgeny L. Yaroslavskiy
Date: September 5, 2003 United Burlington Investments Limited
By /s/ Aleksandrs Timohins
-------------------------------------
Name: Aleksandrs Timohins
Title: Director
CUSIP NO. 97263M10 13D Page 18 of 30
Exhibit Index
Exhibit 1 Information Concerning Natural Reporting Persons.
Exhibit 2 Information Concerning Directors and Executive Officers of
United Burlington, Control Persons of United Burlington, and
Directors and Executive Officers of such Control Persons.
Exhibit 3 Joint Filing Agreement, dated September 4, 2003, by and among
the Reporting Persons.
Exhibit 4 Power of Attorney, dated September 4, 2003, by each of the
Natural Reporting Persons, appointing each of Roman V. Bolotovsky
and Tatiana A. Mikhaylova as attorneys-in-fact.
Exhibit 5 Shareholders Agreement
Exhibit 6 Accession Letter
CUSIP NO. 97263M10 13D Page 19 of 30
Exhibit 1
Set forth below are the name, business address and present principal occupation
or employment and the name of any corporation or other organization in which
such employment is conducted for each of the Natural Reporting Persons.
Name Business Address Employment and Employer
---- ---------------- -----------------------
Gavril A. Yushvaev Wimm-Bill-Dann Foods OJSC President of "RusAgroProject" CJSC
16/15 Yauzsky Blvd.
Moscow 109028 Russia
Mikhail V. Dubinin Wimm-Bill-Dann Foods OJSC Member of the Board of Directors of
16/15 Yauzsky Blvd. Wimm-Bill-Dann Foods OJSC
Moscow 109028 Russia
Sergei A. Plastinin Wimm-Bill-Dann Foods OJSC Director and Chairman of the
16/15 Yauzsky Blvd. Management Board of Wimm-Bill-Dann
Moscow 109028 Russia Foods OJSC
Alexander S. Orlov Wimm-Bill-Dann Foods OJSC Member of the Board of Directors of
16/15 Yauzsky Blvd. Wimm-Bill-Dann Foods OJSC
Moscow 109028 Russia
David Iakobachvili Wimm-Bill-Dann Foods OJSC Chairman of the Board of Directors
16/15 Yauzsky Blvd. of Wimm-Bill-Dann Foods OJSC
Moscow 109028 Russia
Mikhail I. Vishnyakov Wimm-Bill-Dann Foods OJSC Member of the Board of Directors of
16/15 Yauzsky Blvd. "Lianozovo Dairy" OJSC
Moscow 109028 Russia
Evgeny L. Yaroslavskiy Wimm-Bill-Dann Foods OJSC Deputy General Director of "Nikli"
16/15 Yauzsky Blvd. Ltd
Moscow 109028 Russia
Victor E. Evdokimov Wimm-Bill-Dann Foods OJSC Investment counselor to Chairman of
16/15 Yauzsky Blvd. the Management Board of
Moscow 109028 Russia Wimm-Bill-Dann Foods OJSC
CUSIP NO. 97263M10 13D Page 20 of 30
Exhibit 2
Set forth below are the name, business address, present principal occupation or
employment and the name of any corporation or other organization in which such
employment is conducted and citizenship of each natural person that is a
director or executive officer of United Burlington, a control person of United
Burlington, or a director or executive officer of such a control person.
Name Business Address Employment and Employer Citizenship
---- ---------------- ----------------------- -----------
Aleksandrs Timohins United Burlington Sole Director, United Passport holder of the
Investments Limited, Burlington Republic of Latvia with
Bol'shoi Zlatoustinskiy the status of Alien
Lane 9, Moscow
101111 Russia
Igor V. Malishkov OOO "Moscow City Acting General Russian
Golf Club", 1/1 Director, OOO
Dovzhenko Street, "Moscow City Golf
Moscow 119590 Club"
Russia
Mag. Heinz Adolf Kolping Attorney, Austrian
Kupferschmid Gasse 2, Graz 8010, Rechtsanwaltskanzlei
Austria "Medved-
Kupferschmid-
Medved"
Gunter Singer Pestalozzistrasse 25, Economist, "GFB Austrian
Graz 8010, Austria Treuhand" Gesellschaft
Fur Betriebswirtschaft
Graz
Mag. Gerlinde Bratl Adolf Kolping Assistant Director, Austrian
Gasse 2, Graz 8010, "MGA Sport-
Austria TourismusgesmbH"
Set forth below are the name, jurisdiction of organization, principal business
and principal office of each legal entity that is a director or executive
officer of United Burlington, a control person of United Burlington, or a
director or executive officer of such a control person.
Name Jurisdiction of Principal Business Principal Office
---- Organization ------------------ ----------------
------------
Arteks Generation Austria Investment business Adolf Kolping Gasse 2
Privatstiftung Graz A-8010
Austria
CUSIP NO. 97263M10 13D Page 21 of 30
Exhibit 3
Joint Filing Agreement
The undersigned acknowledge and agree that a statement on Schedule 13D is
filed on behalf of each of the undersigned and that all subsequent amendments to
such statement shall be filed on behalf of each of the undersigned without the
necessity of filing additional joint filing agreements. The undersigned
acknowledge that each shall be responsible for the timely filing of such
amendments, and for the completeness and accuracy of the information concerning
it contained therein, but shall not be responsible for the completeness and
accuracy of the information concerning the others, except to the extent that it
knows or has reason to believe that such information is inaccurate.
This Agreement may be executed in counterparts and each of such
counterparts taken together shall constitute one and the same instrument.
Date: September 4, 2003 By /s/ Gavril A. Yushvaev
-------------------------------------
Name: Gavril A. Yushvaev
Date: September 4, 2003 By /s/ Mikhail V. Dubinin
-------------------------------------
Name: Mikhail V. Dubinin
Date: September 4, 2003 By /s/ Sergei A. Plastinin
-------------------------------------
Name: Sergei A. Plastinin
Date: September 4, 2003 By /s/ Alexander S. Orlov
-------------------------------------
Name: Alexander S. Orlov
Date: September 4, 2003 By /s/ David Iakobachvili
-------------------------------------
Name: David Iakobachvili
Date: September 4, 2003 By /s/ Mikhail I. Vishnyakov
-------------------------------------
Name: Mikhail I. Vishnyakov
Date: September 4, 2003 By /s/ Victor E. Evdokimov
-------------------------------------
Name: Victor E. Evdokimov
Date: September 4, 2003 By /s/ Evgeny L. Yaroslavskiy
-------------------------------------
Name: Evgeny L. Yaroslavskiy
Date: September 4, 2003 United Burlington Investments Limited
By /s/ Aleksandrs Timohins
-------------------------------------
Name: Aleksandrs Timohins
Title: Director
CUSIP NO. 97263M10 13D Page 22 of 30
Exhibit 4
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that Gavril A. Yushvaev, Mikhail V.
Dubinin, Sergei A. Plastinin, Alexander S. Orlov, David Iakobachvili, Mikhail I.
Vishnyakov, Victor E. Evdokimov and Evgeny L. Yaroslavskiy hereby make,
constitute and appoint Roman V. Bolotovsky and Tatiana A. Mikhaylova as their
true and lawful attorneys with power to act without any other and with full
power of substitution, to prepare, execute, deliver and file in their name and
on their behalf, all filings required under Section 13 of the Securities
Exchange Act of 1934, and all exhibits thereto and all documents in support
thereof or supplemental thereto, and any and all amendments or supplements to
the foregoing, hereby ratifying and confirming all acts and things which said
attorneys or attorney might do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, Gavril A. Yushvaev, Mikhail V. Dubinin, Sergei A.
Plastinin, Alexander S. Orlov, David Iakobachvili, Mikhail I. Vishnyakov, Victor
E. Evdokimov and Evgeny L. Yaroslavskiy have each caused this power of attorney
to be signed on their behalf as of the date indicated below.
This power of attorney may be executed in counterparts and each of such
counterparts taken together shall constitute one and the same instrument.
Date: September 4, 2003 By /s/ Gavril A. Yushvaev
-------------------------------------
Name: Gavril A. Yushvaev
Date: September 4, 2003 By /s/ Mikhail V. Dubinin
-------------------------------------
Name: Mikhail V. Dubinin
Date: September 4, 2003 By /s/ Sergei A. Plastinin
-------------------------------------
Name: Sergei A. Plastinin
Date: September 4, 2003 By /s/ Alexander S. Orlov
-------------------------------------
Name: Alexander S. Orlov
Date: September 4, 2003 By /s/ David Iakobachvili
-------------------------------------
Name: David Iakobachvili
Date: September 4, 2003 By /s/ Mikhail I. Vishnyakov
-------------------------------------
Name: Mikhail I. Vishnyakov
CUSIP NO. 97263M10 13D Page 23 of 30
Date: September 4, 2003 By /s/ Victor E. Evdokimov
-------------------------------------
Name: Victor E. Evdokimov
Date: September 4, 2003 By /s/ Evgeny L. Yaroslavskiy
-------------------------------------
Name: Evgeny L. Yaroslavskiy
CUSIP NO. 97263M10 13D Page 24 of 30
Exhibit 5
AMENDED AND RESTATED PARTNERSHIP AND COOPERATION
AGREEMENT
This Partnership and Cooperation Agreement (this "Agreement") is made as of
January 16, 2002, by and among Gavril Abramovich Yushvaev, a citizen of the
Russian Federation, Mikhail Vladimirovich Dubinin, a citizen of the Russian
Federation, Sergei Arkadievich Plastinin, a citizen of the Russian Federation,
Aleksanders Sergeevich Timohins, a non-citizen of the Republic of Latvia,
Alexander Sergeevich Orlov, a citizen of the Russian Federation, David
Iakobachvili, a citizen of the Kingdom of Sweden, Mikhail Ivanovich Vishnyakov,
a citizen of the Russian Federation, Evgeny Lvovich Yaroslavskiy, a citizen of
the Russian Federation, and Viktor Egorovich Evdokimov, a citizen of the Russian
Federation (each of the foregoing, a "Shareholder" and, collectively, the
"Shareholders"), and amends and restates the Partnership and Cooperation
Agreement referred to below.
RECITALS
WHEREAS, the Shareholders entered into a Partnership and Cooperation Agreement
in 1997 regarding the control of companies within the Wimm-Bill-Dann group of
companies prior to the establishment of a single holding company;
WHEREAS, Wimm-Bill-Dann Foods OJSC (the "Company") was established as such
holding company, and the Shareholders are shareholders of the Company;
WHEREAS, the Company intends to complete an initial public offering of its
shares in the form of American Depositary Shares ("ADSs"); and
WHEREAS, the Shareholders wish to amend and restate the Partnership and
Cooperation Agreement by entering into this Agreement in order to continue to
regulate certain of the rights and obligations of the Shareholders in relation
to the Company in anticipation of its initial public offering;
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the Shareholders agree as follows:
ARTICLE 1.
BOARD OF DIRECTORS
1.1 Directors. Each Shareholder agrees to use his best efforts, in cooperation
with the other Shareholders, to ensure that the directors of the Company who are
Independent (as hereinafter defined) constitute a majority of the Company's
board of directors. A person is "Independent" if that person is not (a) an
employee of the Company or any employee or director of any subsidiary of the
Company; (b) a Shareholder, a family member of a Shareholder or a Controlled
Person (as hereinafter defined) of a Shareholder; (c) an employee or director of
a Shareholder, of a family member of a Shareholder, of a Controlled Person (as
hereinafter defined) of a Shareholder, or of any other person referred to in
clause (d) below; or (d) a Controlled Person (as hereinafter defined) of any
family member or any employee or director of a Shareholder. "Controlled Person"
means any legal entity, other than the Company or any subsidiary of the Company,
that is Controlled (as hereinafter defined) by the person to whom reference is
made, or any legal entity or natural person that is a trustee, foundation or
other fiduciary, or an agent, of or for the to whom reference is made. A legal
entity shall be considered to be "Controlled" by the reference person if,
individually or together with other persons also so referenced, they have the
direct or indirect power to influence its management or policies, whether by the
direct or indirect ownership of
CUSIP NO. 97263M10 13D Page 25 of 30
shares or other interests in the entity, by contract or otherwise. As used in
these definitions, the term "Shareholder" means the original parties to this
Agreement, as well as any person who accedes to this Agreement pursuant to
Article 3.1.
1.2 Election of Directors. Without limiting the generality of the foregoing,
each Shareholder agrees at all times to cooperate with the other Shareholders
(a) to make nominations to the board of directors of the Company and (b) to vote
for the election of directors to the board of directors of the Company, in each
case in a manner that is consistent with his obligations under Article 1.1.
ARTICLE 2.
VOTING
2.1 Voting.
(a) The Shareholders hereby agree that, with the exception of the election
of directors for the board of directors of the Company, the Shareholders shall
use their best efforts to determine a unanimous voting position on each item on
the agenda of a shareholders' meeting of the Company requiring a vote (each, a
"Voting Issue") at least ten (10) days prior to such shareholders' meeting. If
the Shareholders determine a unanimous voting position on a Voting Issue in
accordance with this Article 2.1(a) at least ten (10) days prior to such
shareholders' meeting, each Shareholder shall vote all shares of the Company
owned by such Shareholder on such Voting Issue in accordance with such unanimous
voting position.
(b) In the event that the Shareholders are unable to determine a unanimous
voting position pursuant to Article 2.1(a) for a Voting Issue at least ten (10)
days prior to such shareholders' meeting, then each Shareholder shall indicate
his voting position on such Voting Issue at least five (5) days prior to such
shareholders' meeting. If Shareholders holding at least two-thirds of the total
number of shares of the Company owned by the Shareholders indicate the same
voting position, then each Shareholder shall vote all shares of the Company
owned by such Shareholder on such Voting Issue in accordance with such
supermajority voting position.
(c) In the event that the Shareholders are unable to determine a unanimous
voting position pursuant to Article 2.1(a) and are unable to determine a
supermajority voting position pursuant to Article 2.1(b) for a Voting Issue,
then the Shareholders shall immediately refer such Voting Issue to the
individuals who are members of the Board of Directors of the Company at that
time. Such reference shall be made by means of a notice in writing, given to the
Chairman of the Board of Directors of the Company and copied to the Chief
Executive Officer of the Company, requesting each director to give a prompt
recommendation in writing, to be delivered to a Shareholder to be specified in
such notice, as to how the Shareholders should vote on that Voting Issue. If, by
not later than the day before such shareholders' meeting, a majority of the
individuals who are members of the Board of Directors of the Company at that
time shall have notified the Shareholders in writing of their recommendation
that the Shareholders vote on such Voting Issue in the same manner, then each
Shareholder shall vote all shares of the Company owned by such Shareholder on
such Voting Issue in accordance with the position so recommended to the
Shareholders by the majority of the individuals who are members of the Board of
Directors of the Company at that time.
(d) In the event that (i) the Shareholders are unable to determine a
unanimous voting position pursuant to Article 2.1(a), (ii) the Shareholders are
unable to determine a supermajority voting position pursuant to Article 2.1(b),
and (iii) a majority of the individuals who are members of the Board of
Directors of the Company at that time do not recommend a single voting position
pursuant to Article 2.1(c) for a Voting Issue, then all Shareholders shall
abstain from voting on such Voting Issue at the shareholders' meeting.
CUSIP NO. 97263M10 13D Page 26 of 30
(e) For the avoidance of doubt, a voting position on a Voting Issue may be
a vote in favor, opposed, or abstaining.
ARTICLE 3.
CERTAIN TRANSFERS
3.1 Transfer Restrictions. Any Shareholder may transfer his shares, or the
voting rights pertaining thereto, without restriction under this Agreement;
provided, however, that, prior to any such transfer to any of the persons
referred to in clause (b), (c), or (d) of the definition of "Independent"
contained in Article 1.1. or to any person, other than the Company or any of its
subsidiaries, who is otherwise an Affiliate (as defined in Rule 405 under the
U.S. Securities Act of 1933) of a Shareholder, such transferee shall have
acceded to this Agreement as a Shareholder party hereto. For purposes of this
proviso, the term "Shareholder" shall mean the original parties to this
Agreement, as well as any person who accedes to this Agreement pursuant to this
Article 3.1 (and for the avoidance of doubt shall be considered to be a
Shareholder for all purposes hereof).
3.2 Depositary Shares. If any Shareholder elects to hold his shares in the form
of depositary shares, including ADSs, such Shareholder shall use his best
efforts to fulfill his obligations hereunder, mutatis mutandis, including for
example by withdrawing his shares from the deposit facility if required to
exercise his voting rights.
ARTICLE 4.
DURATION AND TERMINATION
4.1 Former Shareholder not Bound. This Agreement shall cease to be binding upon,
or to inure to the benefit of a Shareholder who no longer owns directly or
indirectly any shares of the Company (including in the form of depositary shares
representing shares of the Company).
4.2 Term. Subject to Article 4.1, this Agreement may not be terminated and shall
continue in full force and effect until the earlier to occur of (a) any
Shareholder owning all of the issued and outstanding shares of the Company; (b)
the Company being liquidated pursuant to the laws of the Russian Federation, or
(c) the second (2nd) anniversary of the date hereof. Upon the occurrence of an
event described in (a) or (b) of the prior sentence, this Agreement shall
automatically terminate. Subject to the foregoing, this Agreement shall continue
in full force and effect until terminated by any Shareholder by giving thirty
(30) days' written notice prior to the effective date of such termination to all
other Shareholders and the Chairman of the Management Board of the Company. For
the avoidance of doubt, following the expiration of the thirty (30) days'
written notice period for termination, this Agreement shall cease to be in force
and effect. Notwithstanding the foregoing, the termination of this Agreement
shall not relieve the parties of any obligation they may have had hereunder
prior to the date of such termination.
ARTICLE 5.
GOVERNING LAW AND DISPUTE RESOLUTION
5.1 Arbitration; Settlement of Disputes.
(a) Any dispute, controversy or cause of action brought by any party hereto
arising out of or relating to this Agreement, or the breach hereof, shall be
referred to, and finally resolved by, arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in effect
on the date of this Agreement, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof; provided,
however, that any such dispute, controversy or cause of action brought by
beneficial owners of more than 50% of the outstanding ADSs (excluding any ADSs
held by the Shareholders or on their behalf) brought pursuant to Article 6.1(b)
may, but need not, be submitted to arbitration as provided in this Article 5, at
the option of such beneficial owners. The place of
CUSIP NO. 97263M10 13D Page 27 of 30
the arbitration shall be The Borough of Manhattan, and the language of the
arbitration shall be English. The number of arbitrators shall be three, each of
whom shall be disinterested in such dispute, controversy or cause of action,
shall have no connection with any party thereto, and shall be an attorney
experienced in international securities transactions. If a dispute, controversy
or cause of action shall involve more than two parties, the parties shall
attempt to align themselves in two sides (i.e., claimant and respondent), each
of which shall appoint one arbitrator as if there were only two parties to such
dispute, controversy or cause of action. If such alignment and appointment shall
have not occurred within twenty (20) calendar days after the initiating party
serves the arbitration demand, the American Arbitration Association shall
appoint the three arbitrators. The parties and the American Arbitration
Association may appoint from among the nationals of any country, whether or not
a party is a national of that country. The arbitrators shall have no authority
to award punitive or other damages not measured by the prevailing party's actual
damages and may not, in any event, make any ruling, finding or award that does
not conform to the terms and conditions of this Agreement.
(b) Any dispute, controversy or cause of action rising out of or relating
to this Agreement not subject to arbitration shall be litigated in the federal
or state courts in the Borough of Manhattan.
5.2 Submission to Jurisdiction; Appointment of Agent for Service of Process.
Each Shareholder hereby (a) irrevocably designates and appoints CT Corporation
System (the "Agent"), currently having its office at 111 Eighth Avenue, New
York, New York 10011, United States of America, as such Shareholder's authorized
agent upon which process may be served in any suit or proceeding (including, but
not limited to, any arbitral proceeding as contemplated by Article 5.1) arising
out of or relating to this Agreement; (b) consents and submits to the
jurisdiction of any court in which any such suit or proceeding may be instituted
and waives, to the fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of venue of any such proceedings, and (c)
agrees that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon such Shareholder in any such
suit or proceeding. Each Shareholder agrees to deliver, upon execution and
delivery of this Agreement, a written acceptance by such Agent of its
appointment. Each Shareholder further agrees to take any and all action,
including the filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment in full force and effect
for so long as this Agreement remains in force. In the event any Shareholder
fails to continue such designation and appointment in full force and effect,
such Shareholder hereby waives personal service of process upon him and consents
that any such service of process may be made by established overnight courier
service, directed to such Shareholder at his address last specified for notices
hereunder, and service so made shall be deemed completed five (5) days after the
same shall have been so couriered. Each Shareholder hereby irrevocably
designates, appoints and empowers the Agent to receive and accept for and on his
behalf service by mail of any and all legal process, summons, notices and
documents that may be served in any suit, action or proceeding brought against
such Shareholder in any federal or state court or arbitration as described in
this Article 5.
5.3 Governing Law. This Agreement and all acts and transactions pursuant hereto
and the rights and obligations of the Shareholders (and any dispute,
controversy, proceedings or claims or whatever nature arising out of or in any
way relating to this Agreement or its or their formulation) shall be governed,
construed and interpreted in accordance with the laws of the State of New York.
ARTICLE 6.
MISCELLANEOUS
6.1 Third Party Beneficiaries.
(a) Except as provided in Article 6.1(b), the terms and provisions of this
Agreement are intended solely for the benefit of the parties hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any person.
CUSIP NO. 97263M10 13D Page 28 of 30
(b) Each of the Shareholders acknowledges that (i) beneficial owners of the
ADSs from time to time are intended third-party beneficiaries of, and as such
are entitled to enforce and bring actions in respect of, this Agreement;
provided, however, that such beneficial owners may only enforce and bring
actions in respect of this Agreement in the event that beneficial owners of ADSs
constituting more than 50% of the outstanding ADSs (excluding any ADSs held by
the Shareholders or on their behalf) are parties to such action. The rights of
such third-party beneficiaries shall not at any time be prejudiced or impaired
by any act or failure to act on the part of any Shareholder or by any act or
failure to act by any beneficial owners of an ADS, or by any non-compliance by
any Shareholder with the terms of this Agreement, regardless of any knowledge
thereof which such Shareholder may have or otherwise be charged with; and (ii)
no failure or delay on the part of any beneficial owner of ADSs in the exercise
of any power, right or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of such power, right or
privilege preclude other or further exercises of any right, power or privilege.
No amendment of this Agreement that is disadvantageous to beneficial owners of
ADSs shall be effective without the written consent of beneficial owners of more
than 50% of the outstanding ADSs (excluding any ADSs held by the Shareholders or
on their behalf). For the avoidance of doubt, no such written consent from
beneficial owners of the outstanding ADSs shall be required for any termination
of this Agreement in accordance with Article 4.2.
6.2 Entire Agreement. This Agreement contains the entire agreement of the
Shareholders with respect to the subject matter hereof and supersedes all
earlier agreements of the Shareholders (whether written or oral) with respect to
their subject matter. For the avoidance of doubt, the Partnership and
Cooperation Agreement referred to above is amended and restated hereby and,
except as so amended and restated, shall cease to have force and effect.
6.3 Counterparts. This Agreement may be executed in any number of counterparts.
All counterparts will be taken to constitute one instrument.
[The remainder of this page intentionally left blank.]
CUSIP NO. 97263M10 13D Page 29 of 30
IN WITNESS WHEREOF, the Shareholders have executed this Agreement as of the day
and year first above written.
/s/ Gavril Abramovich Yushvaev /s/ David Iakobachvili
---------------------------------- --------------------------------
Gavril Abramovich Yushvaev David Iakobachvili
/s/ Mikhail Vladimirovich Dubinin /s/ Mikhail Ivanovich Vishnyakov
---------------------------------- --------------------------------
Mikhail Vladimirovich Dubinin Mikhail Ivanovich Vishnyakov
/s/ Sergei Arkadievich Plastinin /s/ Evgeny Lvovich Yaroslavskiy
---------------------------------- --------------------------------
Sergei Arkadievich Plastinin Evgeny Lvovich Yaroslavskiy
/s/ Aleksanders Sergeevich Timohins /s/ Viktor Egorovich Evdokimov
---------------------------------- --------------------------------
Aleksanders Sergeevich Timohins Viktor Egorovich Evdokimov
/s/ Alexander Sergeevich Orlov
----------------------------------
Alexander Sergeevich Orlov
CUSIP NO. 97263M10 13D Page 30 of 30
Exhibit 6
[ON THE LETTERHEAD OF UNITED BURLINGTON INVESTMENTS LIMITED]
United Burlington Investments Limited
241 Camden High Street
London NW1 7BU, England
Date: February 4, 2003
Board of Directors
WIMM-BILL-DANN FOODS OJSC
United Burlington Investments Limited, a private limited company incorporated in
England, Great Britain, on December 30, 1999, registered under No. 3901202,
hereby confirms that upon acquisition of three million fifty-seven thousand two
hundred and sixty-four (3,057,264) shares in WIMM-BILL-DANN FOODS OJSC in
accordance with the records of the Central Moscow Depositary as of March 4,
2003, it accedes to the Amended and Restated Partnership and Cooperation
Agreement, dated January 16, 2002, and pursuant to Article 3.1 of the
aforementioned Agreement, undertakes to observe the rights and obligations of
the Parties thereunder as if it participated in said Agreement upon its
execution by the other Parties.
/s/ A. Timohins
Director