SEC Division of Corporation Finance no-action letter: Wimm-Bill-Dann Foods OJSC

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Securities Exchange Act of 1934 Section 14(d)(5) Rule 14d-7 Rule 14d-10(a)(1) Rule 13e-3

March 18, 2011

Response of the Office of Mergers and Acquisitions Division of Corporation Finance

Re:

Exemptive Letter: Offer by Pepsi-Cola (Bermuda) Ltd. for Ordinary Shares and American Depositary Shares of Wimm-Bill-Dann Foods OJSC Incoming letter dated March 17, 2011

Via Facsimile (212) 701-5336 and U.S. Mail

Peter R. Douglas, Esq. Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017

Re: Tender offer by Pepsi-Cola (Bermuda) Ltd. for Ordinary Shares and American Depositary Shares of Wimm-Bill-Dann Foods OJSC

Dear Mr. Douglas:

We are responding to your letter dated March 17, 2011 addressed to Mauri L. Osheroff and Christina Chalk, as supplemented by telephone conversations with the staff, with regard to your request for exemptive and no-action relief in connection with the above transaction. To avoid having to recite or summarize the facts set forth in your letter, we attach the enclosed photocopy of your correspondence. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter of March 17, 2011.

On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission hereby grants exemptions from the following provisions of the Exchange Act and rules thereunder:

Rule 14d-10(a)(1) under the Exchange Act. This exemption permits PCBL to make the U.S. Offer open only to holders of ADSs, wherever located, and the Russian Offer open only to holders of Shares, wherever located. We note that we have confirmed through direct contacts with the Russian regulators reviewing this transaction that Russian law does not permit the U.S. Offer to include holders of Shares located in the United States. We also note that PCBL will provide a mechanism by which holders of Shares can exchange their Shares for ADSs which can then be tendered into the U.S. Offer, and that PCBL will pay any fees associated with this exchange for U.S. holders.

Section 14(d)(5) of the Exchange Act and Rule 14d-7 thereunder. This relief permits PCBL to provide withdrawal rights in the Russian Offer as specified by Russian law. Under Russian law, a tendering shareholder can submit an amended acceptance notice at any time while the Russian Offer is open, which amended notice can decrease the number of Shares tendered, but not to less than one Share. This relief is necessary for the Russian Offer because, as noted above, U.S. holders of Shares who which to tender must participate in the Russian Offer unless they elect to convert their Shares into ADSs. The U.S. Offer will fully comply with Section 14(d)(5) and Rule 14d-7 under the Exchange Act.

In addition, based on the representations in your letter dated March 17, 2011, as supplemented by telephone conversations with the staff, the staff of the Division of Corporation Finance will not recommend enforcement action if PCBL and the other parties to this transaction do not comply with Rule 13e-3 in connection with the Offers. In this regard, we note that under Russian law, PCBL could not structure the acquisition of WBD as a single-step cash merger or a two-step tender offer followed by a squeeze our merger, as it could in a U.S. transaction. In addition, PCBL did not own any securities of WBD or have any other control relationship with WBD before its purchase of securities from the Selling Shareholders on February 3, 2011. Finally, the material terms of the Offers were fixed by Russian law at a time when PCBL had no ability to elect directors, influence management of WBD or otherwise impact the terms of the Offers, and those terms may not be changed under Russian law because this is a mandatory offer. The foregoing exemptive and no-action relief is based solely on the representations and the facts presented in your letter dated March 17, 2011 and the accompanying letter from Russian local counsel at Linklaters CIS of the same date, and does not represent a legal conclusion with respect to the applicability of the statutory or regulatory provisions of the federal securities laws. The relief is strictly limited to the application to this transaction of the statutory provisions and rules listed above. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change. In addition, this position is subject to modification or revocation if at any time the Commission or the Division of Corporation Finance determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act.

We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 10(b) and 14(e) of the Exchange Act, and Rule 10b-5 thereunder. The participants in this transaction must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation Finance expresses no view on any other questions that may be raised by the proposed transaction, including but not limited to, the adequacy of disclosure concerning and the applicability of any other federal or state laws to the proposed transaction.

Sincerely,

For the Commission, By the Division of Corporation Finance pursuant to delegated authority,

Mauri L. Osheroff Associate Director Division of Corporation Finance

Enclosures

Incoming Letters:

Letter 1 (DavisPolk)

Letter 2 (Linklaters)

http://www.sec.gov/divisions/corpfin/cf-noaction/2011/wimmbilldannfoods031811.htm

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Modified: 03/18/2011