-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OSwQD6j95K2e8t5idRrz6P2v388LiuWf5s6AoYzIM0d7YqLErYBTj8VXChEa50/6 UeyD/vbjzS/8AbS3tRV2nA== 0000950142-04-002639.txt : 20040727 0000950142-04-002639.hdr.sgml : 20040727 20040723172800 ACCESSION NUMBER: 0000950142-04-002639 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040723 GROUP MEMBERS: DWG ACQUISITION GROUP, L.P. GROUP MEMBERS: NELSON PELTZ GROUP MEMBERS: PETER W. MAY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-30388 FILM NUMBER: 04929578 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-451-3000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DWG ACQUISITION GROUP L P CENTRAL INDEX KEY: 0000928266 IRS NUMBER: 380471180 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 900 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2122303000 MAIL ADDRESS: STREET 1: 900 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 sc13da19-dwg.txt AMENDMENT NO. 19 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _______________________ SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 19)* _______________________ TRIARC COMPANIES, INC. (Name of Issuer) CLASS A COMMON STOCK, PAR VALUE $.10 PER SHARE CLASS B COMMON STOCK, SERIES 1, PAR VALUE $.10 PER SHARE (Title of Class of Securities) CLASS A COMMON STOCK: 895927 10 1 CLASS B COMMON STOCK: 895927 30 9 (CUSIP Number) PETER W. MAY C/O TRIARC COMPANIES, INC. 280 PARK AVENUE NEW YORK, NEW YORK 10017 TEL. NO.: (212) 451-3000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) _______________________ JULY 23, 2004 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 1(f) or 1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). ================================================================================ - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 2 of 14 - --------------------------------------------- -------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON NELSON PELTZ - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (b) - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER (See Item 5) NUMBER OF ----------------------------------------------------------- SHARES 8 SHARED VOTING POWER (See Item 5)* BENEFICIALLY OWNED 10,062,200 (Class A Common Stock) BY EACH 12,602,036 (Class B Common Stock) REPORTING ----------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER (See Item 5) WITH 7,073,091 (Class A Common Stock) 9,496,564 (Class B Common Stock) ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER (See Item 5) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) * 10,062,200 (Class A Common Stock) 12,602,036 (Class B Common Stock) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) * 46.3% (Class A Common Stock) 29.0% (Class B Common Stock) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ---------- * Does not include options that may be exercised by Mr. May within 60 days of the date of this Statement. - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 3 of 14 - --------------------------------------------- -------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PETER W. MAY - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (b) - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER (See Item 5) NUMBER OF ----------------------------------------------------------- SHARES 8 SHARED VOTING POWER (See Item 5)* BENEFICIALLY OWNED 9,440,533 (Class A Common Stock) BY EACH 11,358,702 (Class B Common Stock) REPORTING ----------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER (See Item 5) WITH 3,865,775 (Class A Common Stock) 4,858,804 (Class B Common Stock) ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER (See Item 5) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) * 9,440,533 (Class A Common Stock) 11,358,702 (Class B Common Stock) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) * 44.7% (Class A Common Stock) 27.0% (Class B Common Stock) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ---------- * Does not include options that may be exercised by Mr. Peltz within 60 days of the date of this Statement. - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 4 of 14 - --------------------------------------------- -------------------------- AMENDMENT NO. 19 TO SCHEDULE 13D This Amendment No. 19 amends and supplements the Schedule 13D dated October 13, 1992 (the "Original Statement"), as amended and restated by Amendment No. 6 dated May 3,1993, as amended by Amendment No. 7 dated February 14, 1996, as amended by Amendment No. 8 dated October 13, 1998, as amended by Amendment No. 9 dated March 12, 1999, as amended by Amendment No. 10 dated May 4, 1999, as amended by Amendment No. 11 dated November 12, 2002, as amended by Amendment No. 12 dated April 25, 2003, as amended by Amendment No. 13 dated July 1, 2003, as amended by Amendment No. 14 dated September 24, 2003, as amended by Amendment No. 15 dated December 4, 2003, as amended by Amendment No. 16 dated January 15, 2004, as amended by Amendment No. 17 dated April 20, 2004 and as amended by Amendment No. 18 dated June 29, 2004 (the Original Statement, as so amended shall be known as the "Statement"), with respect to the Class A Common Stock, par value $.10 per share (the "Class A Common Stock"), and the Class B Common Stock, Series 1, par value $.10 per share (the "Class B Common Stock"), in each case of Triarc Companies, Inc., a Delaware corporation and successor by merger to Triarc Companies, Inc., an Ohio corporation formerly named DWG Corporation (the "Company"). Unless otherwise indicated, all capitalized terms used herein shall have the same meaning as set forth in the Statement. Except as set forth below, there are no changes to the information set forth in the Statement. As noted in Amendment Nos. 14, 15, 16, 17 and 18, all references in the Statement to "Common Stock" shall be deemed to refer to the Class A Common Stock. - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 5 of 14 - --------------------------------------------- -------------------------- ITEM 2. IDENTITY AND BACKGROUND. Part (a), (b), (c) and (f) of Item 2 is amended by deleting the first paragraph thereof and replacing it with the following: (a), (b), (c) and (f). This Statement is being filed by Nelson Peltz ("Peltz"), and Peter W. May ("May" and together with Peltz, the "Reporting Persons") to reflect the dissolution of DWG Acquisition Group, L.P. (the "Purchaser") and related transactions. As further described in Item 3 below, Messrs. Peltz and May, the general partners of the Purchaser have, for personal estate planning purposes, dissolved the Purchaser. In connection with the dissolution, Messrs. Peltz and May have entered into a Voting Agreement (described below) in order to continue the voting arrangements between them formerly established through the Partnership Agreement with respect to the shares of Class A Common Stock and Class B Common Stock owned by the Purchaser. The Voting Agreement covers all shares of Class A Common Stock and Class B Common Stock beneficicially owned or acquired in the future by Messrs. Peltz and May, including shares of Class A Common Stock and Class B Common Stock held by Messrs. Peltz and May outside of the Purchaser that were not subject to the voting arrangements established through the Partnership Agreement with respect to the Purchaser. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3 of the Statement is amended by adding the following: For purposes of personal estate planning, on July 23, 2004, Messrs. Peltz and May, as the general partners of the Purchaser, dissolved the Purchaser. In connection with such dissolution, 4,059,055 shares of Class A Common Stock - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 6 of 14 - --------------------------------------------- -------------------------- and 3,610,376 shares of Class B Common Stock owned by the Purchaser were distributed to Mr. Peltz (the "Peltz Dissolution Shares"), and 1,965,607 shares of Class A Common Stock and 1,153,058 shares of Class B Common Stock owned by the Purchaser were distributed to Mr. May (the "May Dissolution Shares"). Following these distributions, a certificate of cancellation was filed with the Secretary of State of the State of Delaware terminating the Purchaser's existence. Pursuant to the Partnership Agreement, all acts and decisions of the Purchaser (including without limitation the voting of shares of Class A Common Stock and Class B Common Stock owned by the Purchaser) required the approval, consent or agreement of both Messrs. Peltz and May, as the sole general partners of the Purchaser. Messrs. Peltz and May wish to continue the voting arrangements contained in the Partnership Agreement for all shares of Class A Common Stock and Class B Common Stock owned or acquired in the future by them. Accordingly, in connection with the dissolution of the Purchaser and the distributions of shares of Class A Common Stock and Class B Common Stock described above, Messrs. Peltz and May entered into a Voting Agreement, dated as of July 23, 2004 (as amended, the "Voting Agreement"). See Item 6, below. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Part (a) through (c) of Item 5 is amended by deleting the first, second and sixth paragraphs thereof. Part (a) through (c) of Item 5 is amended by deleting the thirteenth through twentieth paragraphs thereof and replacing them with the following: This Statement reflects the distribution of an aggregate of 200 shares of Class A Common Stock and 400 shares of Class B Common Stock to - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 7 of 14 - --------------------------------------------- -------------------------- the minor children of Mr. Peltz from the Peltz Family Limited Partnership (the "Peltz L.P."). Mr. Peltz may be deemed to beneficially own the shares of Class A Common Stock and Class B Common Stock owned by his minor children. Mr. Peltz disclaims beneficial ownership of such shares. Mr. Peltz directly owns and has the sole power to dispose of and the shared power to vote 5,574,758 shares of Class A Common Stock and beneficially owns 1,498,333 shares of Class A Common Stock issuable upon exercise of options that he may exercise within 60 days of the date of this Statement. Mr. May directly owns and has the sole power to dispose of and the shared power to vote 2,989,109 shares of Class A Common Stock and beneficially owns 876,666 shares of Class A Common Stock issuable upon exercise of options that he may exercise within 60 days of the date of this Statement. The Peltz L.P. is the beneficial owner of 23,550 shares of Class A Common Stock. By virtue of his position as general partner of the Peltz L.P., Mr. Peltz may be deemed to beneficially own the shares of Class A Common Stock owned by the Peltz L.P. Mr. Peltz disclaims beneficial ownership of such shares. Pursuant to the Voting Agreement, Mr. Peltz may also be deemed to own beneficially the 3,865,775 shares of Class A Common Stock beneficially owned by Mr. May (including options that may be exercised by Mr. May within 60 days of the date of this Statement), and Mr. May may also be deemed to own beneficially the 7,073,091 shares of Class A Common Stock beneficially owned by Mr. Peltz (including options that may be exercised by Mr. Peltz within 60 days of the date of this Statement and shares beneficially owned by the Peltz L.P.). - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 8 of 14 - --------------------------------------------- -------------------------- Accordingly, Messrs. Peltz and May may be deemed to share voting power with each other with respect to such shares of Class A Common Stock. As a result, Mr. Peltz may be deemed to beneficially own an aggregate of 10,938,866 shares of Class A Common Stock (including shares that Mr. May may also be deemed to beneficially own), representing approximately 48.4% of the outstanding shares of Class A Common Stock. Mr. May may be deemed to beneficially own an aggregate of 10,938,866 shares of Class A Common Stock (including shares that Mr. Peltz may also be deemed to beneficially own), representing approximately 48.4% of the outstanding shares of Class A Common Stock. Mr. Peltz directly owns and has the sole power to dispose of and the shared power to vote 6,499,898 shares of Class B Common Stock and beneficially owns 2,996,666 shares of Class B Common Stock issuable upon exercise of options that he may exercise within 60 days of the date of this Statement. Mr. May directly owns and has the sole power to dispose of and the shared power to vote 3,105,472 shares of Class B Common Stock and beneficially owns 1,753,332 shares of Class B Common Stock issuable upon exercise of options that he may exercise within 60 days of the date of this Statement. The Peltz L.P. is the beneficial owner of 47,100 shares of Class B Common Stock. By virtue of his position as general partner of the Peltz L.P., Mr. Peltz may be deemed to beneficially own the shares of Class B Common Stock owned by the Peltz L.P. Mr. Peltz disclaims beneficial ownership of such shares. Pursuant to the Voting Agreement, Mr. Peltz may also be deemed to own beneficially the 4,858,804 shares of Class B Common Stock beneficially - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 9 of 14 - --------------------------------------------- -------------------------- owned by Mr. May (including options that may be exercised by Mr. May within 60 days of the date of this Statement), and Mr. May may also be deemed to own beneficially the 9,496,564 shares of Class B Common Stock beneficially owned by Mr. Peltz (including options that may be exercised by Mr. Peltz within 60 days of the date of this Statement and shares beneficially owned by the Peltz L.P.). Accordingly, Messrs. Peltz and May may be deemed to share voting power with each other with respect to such shares of Class B Common Stock. As a result, Mr. Peltz may be deemed to beneficially own an aggregate of 14,355,368 shares of Class B Common Stock (including shares that Mr. May may also be deemed to beneficially own), representing approximately 31.7% of the outstanding shares of Class B Common Stock. Mr. May may be deemed to beneficially own an aggregate of 14,355,368 shares of Class B Common Stock (including shares that Mr. Peltz may also be deemed to beneficially own), representing approximately 31.7% of the outstanding shares of Class B Common Stock. Accordingly, Mr. Peltz may be deemed to beneficially own approximately 45.6% of our voting power (including the voting power of shares that Mr. May may also be deemed to beneficially own) and Mr. May may be deemed to beneficially own approximately 45.6% of our voting power (including the voting power of shares that Mr. Peltz may also be deemed to beneficially own). ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE COMMON STOCK OF THE ISSUER. Item 6 of the Statement is amended by adding the following: - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 10 of 14 - --------------------------------------------- -------------------------- As discussed in Item 3, above, in connection with the dissolution of the Purchaser and the distributions of shares of Class A Common Stock and Class B Common Stock described above, Messrs. Peltz and May entered into the Voting Agreement. The descriptions of the provisions of the Voting Agreement contained herein are qualified in their entirety by the actual terms of such Voting Agreement, a copy of which is filed as Exhibit 29 to this Statement and is incorporated herein by reference. Pursuant to the Voting Agreement, Messrs. Peltz and May have agreed that, at any stockholders meeting of the Company (or written consent in lieu thereof), Messrs. Peltz and May (and any of their family members or affiliates to whom they have transferred any shares of Class A Common Stock or Class B Common Stock) will not vote any shares of Class A Common Stock or Class B Common Stock beneficially owned or acquired in the future by them without the prior approval of both Messrs. Peltz and May. Both Messrs. Peltz and May may sell, give, assign or otherwise dispose of (whether by operation of law or otherwise) any and all shares of Class A Common Stock and Class B Common Stock to non-affiliates free and clear of the rights and obligations of the Voting Agreement. The Voting Agreement will be terminated on the date either Messrs. Peltz or May determines and notifies the other in writing or upon the date of the death of either Messrs. Peltz or May. All of the Class A Common Stock and 2,346,000 shares of the Class B Common Stock included in the Peltz Dissolution Shares had been pledged by the Purchaser to secure the BOA Loans to Mr. Peltz and, upon the distribution of such shares to Mr. Peltz, such shares were pledged directly by Mr. Peltz to BOA to secure such loans pursuant to a Pledge and Security Agreement entered into by Mr. Peltz in favor of BOA, a copy of which is filed as Exhibit 30 to this Statement - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 11 of 14 - --------------------------------------------- -------------------------- and is incorporated herein by reference. All of the May Dissolution Shares had been pledged by the Purchaser to secure the BOA Loans to Mr. May and, upon the distribution of such shares to Mr. May, such shares were pledged directly by Mr. May to BOA to secure such loans pursuant to an amendment to a Pledge and Security Agreement entered into by Mr. May in favor of BOA, a copy of which is filed as Exhibit 31 to this Statement and is incorporated herein by reference. - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 12 of 14 - --------------------------------------------- -------------------------- SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this Statement is true, complete and correct. Dated: July 23, 2004 /s/ Nelson Peltz ---------------------------------- Nelson Peltz /s/ Peter W. May ---------------------------------- Peter W. May - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 13 of 14 - --------------------------------------------- -------------------------- EXHIBIT INDEX ------------- EXHIBIT DESCRIPTION PAGE NO. - ------- ----------- -------- 1 Stock Purchase Agreement dated as of October 1, Filed with Original 1992 by and between the Statement Purchaser, Posner, Posner Trust and Security Management. 2 Exchange Agreement dated as of October 12, 1992 Filed with Original between the Company and Security Management. Statement 3 Agreement dated as of October 1, 1992 between Filed with Original the Company and the Purchaser. Statement 4 Agreement of Limited Partnership of the Filed with Original Purchaser dated as of September 25, 1992. Statement 5 Joint Filing Agreement of the Purchaser, Peltz Filed with Amendment and May. No. 14 6 Memorandum of Understanding, dated January 21, Filed with Amendment 1993, by and between the Purchaser and No. 2 William A. Ehrman, individually and derivatively on behalf of SEPSCO. 7 Letter dated January 25, 1993 from Steven Posner Filed with Amendment to the Purchaser (including proposed terms and No. 2 conditions of Consulting Agreement to be entered into between the Company and Steven Posner). 8 Undertaking and Agreement, dated February 9, Filed with Amendment 1993, executed by the Purchaser. No. 3 9 Amendment No. 3 dated as of April 14, 1993 to Filed with Amendment Agreement of Limited Partnership of the No. 4 Purchaser. 10 Citibank Loan Documents (Exhibits and Schedule Filed with Amendment omitted). No. 4 11 Republic Loan Documents (Exhibits and Schedules Filed with Amendment omitted). No. 4 12 Pledge and Security Agreement, dated as of Filed with Amendment April 5, 1993, between the Purchaser and No. 5 Citibank. 13 Custodial Loan Documents. Filed with Amendment No. 5 14 Agreement, dated May 2, 1994 among Nelson Peltz, Filed with Amendment Peter W. May and Leon Kalvaria. No. 6 15 Amended and Restated Pledge and Security Filed with Amendment Agreement, dated as of July 25, 1994 between No. 6 the Purchaser and Citibank. - --------------------------------------------- -------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 14 of 14 - --------------------------------------------- -------------------------- 16 Amendment No. 1 dated as of November 15, 1992 Filed with Amendment to Agreement of Limited Partnership of the No. 7 Purchaser. 17 Amendment No. 2 dated as of March 1, 1993 to Filed with Amendment Agreement of Limited Partnership of the No. 7 Purchaser. 18 Amendment No. 4 dated a January 1, 1995 to Filed with Amendment Agreement of Limited Partnership of the No. 7 Purchaser. 19 Amendment No. 5 dated as of January 1, 1996 to Filed with Amendment Agreement of Limited Partnership of the No. 7 Purchaser. 20 BOA Loan documents (Exhibits and Schedules Filed with Amendment omitted). No. 7 21 Letter, dated October 12, 1998, from Messrs. Filed with Amendment Nelson Peltz and Peter W. May to the Company. No. 8 22 Press release, issued by the Company, dated Filed with Amendment October 12, 1998. No. 8 23 Letter, dated October 12, 1998, from the Filed with Amendment Company to Messrs. Nelson Peltz and No. 8 Peter W. May. 24 Press release issued by the Company, dated Filed with Amendment March 10, 1999. No. 9 25 Amended and Restated Agreement of Limited Filed with Amendment Partnership of the Purchaser, amended and No. 11 restated as of November 11, 2002. 26 Pledge Agreement dated April 2, 2001, made by Filed with Amendment Peltz Family Limited Partnership, in favor of No. 13 Bank of America, N.A. 27 Pledge and Security Agreement dated April 2, Filed with Amendment 2003, made by Peter W. May, in favor of Bank of No. 13 America, N.A. (Schedule II omitted). 28 Voting Agreement, dated June 26, 2004, by and Filed with Amendment among Messrs. Nelson Peltz, Peter W. May and No. 18 Gregory H. Sachs. 29 Voting Agreement dated July 23, 2004, between Filed herewith Messrs. Nelson Peltz and Peter W. May. 30 Pledge and Security Agreement dated July 23, Filed herewith 2004, made by Nelson Peltz, in favor of Bank of America, N.A. (Exhibit and Schedules omitted). 31 Form of Amendment No. 5 to Pledge and Security Filed herewith Agreement dated July 23, 2004, made by Peter W. May, in favor of Bank of America, N.A. (Schedules omitted). EX-99 2 ex29_sc13da19-dwg.txt EXHIBIT 29 EXHIBIT 29 ---------- VOTING AGREEMENT VOTING AGREEMENT (this "Agreement") dated July 23, 2004, by and among NELSON PELTZ ("Peltz") and PETER W. MAY ("May"). Peltz and May are sometimes each referred to as a "Stockholder". BACKGROUND DWG Acquisition Group, L.P., a Delaware limited partnership ("DWG"), is the record owner of shares of Class A Common Stock, par value $0.10 per share (the "Class A Common Stock"), of Triarc Companies, Inc., a Delaware corporation (the "Company"), and shares of Class B Common Stock, par value $0.10 per share (the "Class B Common Stock" and, together with the Class A Common Stock, the "Common Stock"), of the Company. 67.37% of such shares of Class A Common Stock and 75.79% of such shares of Class B Common Stock are beneficially owned by Peltz and 32.63% of such shares of Class A Common Stock and 24.21% of such shares of Class B Common Stock are beneficially owned by May. Pursuant to the Agreement of Limited Partnership of DWG, dated as of September 25, 1992, as amended (the "DWG Partnership Agreement"), all acts and decisions of DWG (including without limitation the voting of shares of Common Stock owned by DWG) require the approval, consent or agreement of both Peltz and May, as the sole general partners of DWG. Peltz and May desire to dissolve and wind up the affairs of DWG and to distribute 4,059,055 shares of Class A Common Stock and 3,610,376 shares of Class B Common Stock to Peltz and 1,965,607 shares of Class A Common Stock and 1,153,058 shares of Class B Common Stock to May. The parties wish to replicate the voting arrangements contained in the DWG Partnership Agreement for all shares of Common Stock owned or hereafter acquired by them (the "Shares") and to provide for certain other rights and obligations. In consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I VOTING 1.1 General. From and after the execution of this Agreement and the dissolution and winding up of DWG, at any regular or special meeting of stockholders of the Company or in any written consent executed in lieu of such a meeting of stockholders, no Stockholder and no Affiliate Transferee (as defined below) shall vote his or its Shares without the prior approval, consent or agreement of both Peltz and May. 2 1.2 After-Acquired Securities. All of the provisions of this Agreement shall apply to all of the Shares now owned or which may be issued or transferred hereafter to a Stockholder in consequence of any additional issuance, purchase, exchange or reclassification of any of such Shares, corporate reorganization, or any other form of recapitalization, consolidation, merger, share split or share dividend, or which are acquired by a Stockholder in any other manner. ARTICLE II TRANSFERS 2.1 Transfers Generally. Subject to Section 2.2, either Stockholder and any Affiliate Transferee may sell, give, assign or otherwise dispose of (whether by operation of law or otherwise) (each a "transfer") any and all Shares free and clear of the rights and obligations of this Agreement. 2.2 Transfers to Family Members and Affiliates. Notwithstanding anything to the contrary contained in this Agreement, (a) no Stockholder who is an individual may transfer all or a portion of his Shares to (i) a member of such Stockholder's immediate family, which shall include his spouse, siblings, children or grandchildren or nieces or nephews ("Family Members") or (ii) a trust, corporation, partnership or limited liability company, all or part of the beneficial interests in which are held by such Stockholder or one or more Family Members of such Stockholder and (b) no Stockholder who is an entity may transfer all or a portion of its Shares to any of its "affiliates" (as defined in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended) (the transferees referred to in the preceding clauses (a) and (b) are each referred to as an "Affiliate Transferee"), unless, in either case, such Affiliate Transferee has agreed in writing to be bound by the terms and conditions of this Agreement pursuant to an instrument substantially in the form attached hereto as Exhibit A. Upon becoming a party to this Agreement, such Affiliate Transferee shall be bound to the terms and conditions of this Agreement as an Affiliate Transferee with respect to the Shares transferred to such Affiliate Transferee. 2.3 Stock Certificate Legend. A copy of this Agreement shall be filed with the Secretary of the Company and kept with the records of the Company. Each certificate representing Shares now held or hereafter acquired by either Stockholder and any Affiliate Transferee shall for as long as this Agreement is effective bear legends substantially in the following forms: THE SALE, GIFT, ASSIGNMENT OR OTHER DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE VOTING AGREEMENT, DATED AS OF JULY 23, 2004, BETWEEN THE STOCKHOLDERS NAMED THEREIN, A COPY OF WHICH MAY BE INSPECTED AT THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE 3 COMPANY UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE VOTING AGREEMENT. ARTICLE III MISCELLANEOUS 3.1 Notices. All notices, demands or other communications provided for or permitted hereunder to any Stockholder shall be made in writing and shall be by registered or certified first class mail, return receipt requested, telecopier, courier service, or personal delivery to the Stockholder, at his or its address as it appears on the record books of the Company. All such notices, demands and other communications shall be deemed to have been duly given when delivered by hand, if personally delivered; when delivered by courier, if delivered by commercial courier service; five (5) business days after being deposited in the mail, postage prepaid, if mailed; and when receipt is mechanically acknowledged, if telecopied. Any party may by notice given in accordance with this Section 3.1 designate another address or individual or entity for receipt of notices hereunder. 3.2 Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon successors and permitted assigns of the parties hereto. This Agreement is not assignable except in connection with a transfer of Shares in accordance with this Agreement. No individual or entity other than the parties hereto and their successors and permitted assigns is intended to be a beneficiary of this Agreement. 3.3 Amendment and Waiver. (a) No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the parties hereto at law, in equity or otherwise. (b) Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement, and any consent to any departure by any party from the terms of any provision of this Agreement, shall be effective only if it is made or given in writing and signed by Peltz and May. Any such amendment, supplement, modification, waiver or consent shall be binding upon the all of the Stockholders and Affiliate Transferees. 3.4 Counterparts. This Agreement may be executed in any number of counterparts, and by the parties hereto in separate counterparts each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 4 3.5 Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 3.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. 3.7 Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof. 3.8 Rules of Construction. Unless the context otherwise requires, references to sections or subsections refer to sections or subsections of this Agreement. 3.9 Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties or undertakings, other than those set forth or referred to herein. This Agreement supersedes all prior agreements and understandings among the parties with respect to such subject matter. 3.10 Term of Agreement. This Agreement shall become effective upon the execution hereof and shall terminate upon the date either Peltz or May determines and notifies in writing to the other or upon the date of the death of either Peltz or May. 3.11 Further Assurances. Each of the parties shall, and shall cause their respective affiliates to, execute such documents and perform such further acts as may be reasonably required or desirable to carry out or to perform the provisions of this Agreement. [Remainder of page intentionally left blank] IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Voting Agreement on the date first written above. /s/ Nelson Peltz ----------------------------------- NELSON PELTZ /s/ Peter W. May ----------------------------------- PETER W. MAY EXHIBIT A --------- ACKNOWLEDGMENT AND AGREEMENT The undersigned wishes to receive from [insert name] ("Transferor") certain shares or certain options, warrants or other rights to purchase [insert number] shares, par value $0.10 per share, of [Class A] [Class B] Common Stock (the "Shares") of Triarc Companies, Inc., a Delaware corporation (the "Company"); The Shares are subject to the Voting Agreement, dated July 23, 2004 (as amended from time to time, the "Agreement"), by and among Nelson Peltz and Peter W. May; The undersigned has been given a copy of the Agreement and afforded ample opportunity to read and to have counsel review it, and the undersigned is thoroughly familiar with its terms; Pursuant to the terms of the Agreement, the Transferor may not transfer such Shares to an Affiliate Transferee (as defined in the Agreement) unless and until such Affiliate Transferee agrees to be bound by the terms and conditions of the Agreement pursuant to an instrument substantially in the form hereto; and The undersigned, being an Affiliate Transferee, wishes to receive such Shares. In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce the Transferor to transfer such Shares to the undersigned Affiliate Transferee, the undersigned does hereby acknowledge and agree that (i) he[/she] has been given a copy of the Agreement and afforded ample opportunity to read and to have counsel review it, and the undersigned is thoroughly familiar with its terms, (ii) the Shares are subject to the terms and conditions set forth in the Agreement, and (iii) the undersigned does hereby agree fully to be bound thereby as a "Stockholder" (as therein defined). This ________ day of ________, 20__. [insert name of Affiliate Transferee] By: ---------------------------- Name: Title: EX-99 3 ex30_sc13da19-dwg.txt EXHIBIT 30 EXHIBIT 30 ---------- PLEDGE AND SECURITY AGREEMENT PLEDGE AND SECURITY AGREEMENT dated July 23, 2004, made by Nelson Peltz, an individual whose principal residence is in the State of New York (the "Pledgor"), in favor of Bank of America, N.A., a national banking association (the "Bank" and, together with its successors and assigns, collectively the "Lenders"), as agent for the Bank and its permitted successors and assigns (in such capacity and together with its successors and assigns, the "Agent"). W I T N E S S E T H: WHEREAS, the Pledgor, Claudia Peltz (collectively, the "Borrowers") and the Bank are parties to the Third Amended and Restated Credit Agreement dated as of January 18, 1996, as amended and restated on June 19, 1997, as amended and restated as of January 2, 1999, and as amended and restated as of April 2, 2001 (as amended or otherwise modified from time to time, the "Credit Agreement"), pursuant to which the Bank agreed to make loans (each a "Loan" and collectively the "Loans") and issue letters of credit (the "Letters of Credit") to the Borrowers in an aggregate amount at any time outstanding not to exceed the amounts of the Commitments referred to therein; WHEREAS, it was a condition precedent to the making of the Loans to the Borrowers pursuant to the Credit Agreement that DWG Acquisition Group, L.P., a Delaware limited partnership ("DWG") of which the Pledgor and Peter W. May are the sole general partners ("General Partners"), execute and deliver to the Agent the Triarc Pledge Agreement, pursuant to which DWG pledged to the Agent, and granted to the Agent a security interest in, the outstanding shares of capital stock ("Triarc Shares") issued by Triarc Companies, Inc. (the "Issuer") from time to time owned by DWG; and WHEREAS, (a) the Pledgor has (i) notified the Collateral Agent that pursuant to Section 7.3 of the Credit Agreement, the General Partners intend to liquidate DWG and transfer approximately two-thirds of the Triarc Shares owned by DWG (the "Peltz Interest") to the Pledgor (subject to the perfected, first priority Lien and security interest of the Collateral Agent) and (ii) requested that the Collateral Agent amend certain terms and provisions of the Credit Agreement relating to the liquidation of DWG; and (b) the Collateral Agent is willing to permit such Triarc Shares to be distributed to its partners so long as (i) concurrently with the liquidation of DWG, the Triarc Shares comprising the Peltz Interest shall have been transferred (subject to the perfected, first priority Lien and security interest of the Collateral Agent, securing the Obligations) to the Pledgor, (ii) immediately after such liquidation, the Collateral Agent shall have a perfected, first priority Lien on, and security interest in, the Triarc Shares owned by DWG comprising the Peltz Interest, as security for the Obligations, and (iii) the Pledgor shall have executed and delivered, among other things, this Pledge Agreement; NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to induce the Bank to make and maintain the Loans pursuant to the Credit Agreement, the Pledgor hereby agrees with the Agent as follows: SECTION 1. Definitions. Reference is hereby made to the Credit Agreement for a statement of the terms thereof. All terms used in this Pledge Agreement which are defined in the Credit Agreement or in Article 8 or Article 9 of the Uniform Commercial Code (the "Code") as in effect from time to time in the State of New York and which are not otherwise defined herein shall have the same meanings herein as set forth therein. SECTION 2. Pledge and Grant of Security Interest. As collateral security for all of the Obligations (as defined in Section 3 hereof), the Pledgor hereby pledges and assigns to the Agent, for the benefit of the Lenders, and grants to the Agent, for the benefit of the Lenders, a continuing security interest in, the Pledgor's right, title and interest in and to the following (collectively, the "Pledged Collateral"): (a) the shares of stock described in Schedule I hereto (the "Pledged Shares") issued by the Issuer, the certificates representing the Pledged Shares, all options and other rights, contractual or otherwise, in respect thereof (including, without limitation, any registration rights, whether under the Registration Rights Agreement dated as of April 23, 1993 (as amended or otherwise modified from time to time, the "Registration Rights Agreement"), between the Issuer and the Pledgor, any other registration rights agreement between the Issuer and the Pledgor or otherwise), and all dividends, distributions, cash, instruments, investment property and other property (including, without limitation, any stock dividend and any distribution in connection with a stock split) from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares; (b) all security entitlements of the Pledgor in any and all of the foregoing; and (c) all proceeds (including proceeds of proceeds) of any and all of the foregoing; in each case, whether now owned or hereafter acquired by the Pledgor and howsoever such interest therein may arise or appear (whether by ownership, security interest, claim or otherwise). SECTION 3. Security for Obligations. The security interest created hereby in the Pledged Collateral constitutes continuing collateral security for all of the following obligations whether now existing or hereafter incurred (collectively, the "Obligations"): (a) the prompt payment by each Borrower, as and when due and payable (whether by scheduled maturity, maturity, required prepayment, acceleration, demand or otherwise), of all amounts from time to time owing by either of them in respect of any Loan Document, whether for principal, interest, fees or otherwise (including, without limitation, amounts that but for the operation of Section 362(a) of the Bankruptcy Code would become due); and (b) the due performance and observance by the Borrowers of all of their other obligations from time to time existing under any Loan Document. Without limiting the generality of the foregoing, this Pledge Agreement secures the payment of all amounts that constitute part of the Obligations and would be owed by a Borrower to the 2 Agent or any of the Lenders but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving either Borrower. SECTION 4. Delivery of the Pledged Collateral. (a) All certificates currently representing the Pledged Shares shall be delivered to the Agent on or prior to the execution and delivery of this Pledge Agreement. All other certificates and instruments constituting Pledged Collateral from time to time or required to be pledged to the Agent by the Pledgor pursuant to the terms of this Pledge Agreement (the "Additional Collateral") shall be delivered to the Agent within five (5) days of receipt thereof by or on behalf of the Pledgor. All such certificates and instruments shall be held by or on behalf of the Agent pursuant hereto and shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance reasonably satisfactory to the Agent. (b) If the Pledgor shall receive, by virtue of the Pledgor's being or having been an owner of any Pledged Collateral, any (i) stock certificate (including, without limitation, any certificate representing a stock dividend or distribution in connection with any increase or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares, stock split, spin-off or split-off), promissory note or other instrument, (ii) option or right, whether as an addition to, substitution for, or in exchange for, any Pledged Collateral, or otherwise, (iii) dividends payable in cash (except such dividends permitted to be retained by the Pledgor pursuant to Section 7(a) hereof) or in securities or other property or (iv) dividends or other distributions in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in surplus, the Pledgor shall receive such stock certificate, promissory note, instrument, option, right, payment or distribution in trust for the benefit of the Agent, shall segregate it from the Pledgor's other property and shall deliver it forthwith to the Agent in the exact form received, with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Agent as Pledged Collateral and as further collateral security for the Obligations. SECTION 5. Representations and Warranties. The Pledgor represents and warrants as follows: (a) The Pledgor has the legal capacity and right to execute, deliver and perform this Pledge Agreement. (b) Schedule II hereto sets forth (i) the exact legal name of the Pledgor and all other names used by the Pledgor at any time during the five years preceding the date hereof, and (ii) the Pledgor's principal residence and each place of residence of the Pledgor during the five years preceding the Closing Date. (c) The execution, delivery and performance by the Pledgor of this Pledge Agreement (i) do not and will not contravene any law or any contractual restriction binding on or affecting the Pledgor or any of the Pledgor's properties (including, without limitation, any governing document of the Issuer or any rule, directive or policy of the Issuer), and (ii) do not and will not result in or require the creation of any Lien upon or encumbrance upon or with 3 respect to any of the Pledgor's properties other than pursuant to this Pledge Agreement. The exercise by the Agent of its rights and remedies under this Pledge Agreement (including, without limitation, the sale or other disposition of the Pledged Shares) will not violate any contractual restriction binding on or affecting the Pledgor or the Pledged Shares. (d) This Pledge Agreement is a legal, valid and binding obligation of the Pledgor, enforceable against the Pledgor in accordance with its terms. (e) The Pledgor is and will be at all times the legal and beneficial owner of the Pledged Collateral of the Pledgor free and clear of any Lien, except for the security interest created by this Pledge Agreement. (f) The exercise by the Agent of any of its rights and remedies hereunder (including, without limitation, the sale or other disposition of the Pledged Shares by the Agent) will not contravene any law (subject to compliance with laws affecting the offering and sale of securities generally) or any contractual restriction binding on or affecting any the Pledgor or any of the Pledgor's properties (including, without limitation, any governing document of the Issuer) and will not result in or require the creation of any Lien upon or with respect to any of the Pledgor's properties other than pursuant to this Pledge Agreement and the other Loan Documents. (g) The Pledged Shares are fully paid and nonassessable and, to the best of the Pledgor's knowledge, have been duly authorized and validly issued. All other shares of stock constituting Pledged Collateral will be duly authorized and validly issued, fully paid and nonassessable. The Pledgor has legally and beneficially owned the Pledged Shares described in Schedule I hereto since the dates set forth opposite the applicable certificate evidencing such Pledged Shares as set forth in Schedule I hereto. The information set forth in Schedule I hereto is true and correct. (h) There is no action, suit or proceeding pending or, to the Pledgor's knowledge, threatened or otherwise affecting the Pledgor before any court or other Governmental Authority or arbitrator that is reasonably likely to materially adversely affect the financial condition of the Pledgor or the Pledgor's ability to perform his obligations hereunder and under the other Loan Documents. (i) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other regulatory body or any other Person is required for (i) the due execution, delivery and performance by the Pledgor of this Pledge Agreement or the other Loan Documents to which the Pledgor is a party, (ii) the grant by the Pledgor, or the perfection, of the security interest purported to be created hereby in the Pledged Collateral or (iii) the exercise by the Agent of any of its rights and remedies hereunder, except for the filing of a Form 144. (j) The Pledgor is and will be at all times the legal and beneficial owner of the Pledged Collateral in existence, free and clear of any lien, security interest, option or other charge or encumbrance except for the security interest created by this Pledge Agreement. There is no financing statement naming the Pledgor as debtor (or similar documents or instrument of 4 registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of the Pledgor in the Pledged Collateral, except in favor of the Agent. (k) This Pledge Agreement creates a valid security interest in favor of the Agent in the Pledged Collateral, as security for the Obligations. The Agent's having possession of the Pledged Shares and all other certificates, instruments and cash constituting Pledged Collateral from time to time results in the perfection of such security interest. Such security interest is, or in the case of Pledged Collateral in which the Pledgor obtains rights after the date hereof, will be, a perfected, first priority security interest. All action necessary or desirable to perfect and protect such security interest has been duly taken, except for the Agent's having possession of certificates, instruments and cash constituting Pledged Collateral after the date hereof. (l) The information on Exhibit A hereto (the Restricted Securities Statement) is accurate and complete. (m) The Pledgor has furnished the Agent with a true, correct and complete copy of the Registration Rights Agreement and each other registration rights and other agreement in respect of or otherwise affecting any of the Pledged Shares in existence on the date hereof. SECTION 6. Covenants as to the Pledged Collateral. So long as any of the Obligations shall remain outstanding, any Letter of Credit shall remain outstanding or any Lender shall have any Commitment under the Credit Agreement, unless the Agent shall otherwise consent in writing: (a) Records. The Pledgor will keep adequate records concerning the Pledged Collateral and permit the Agent or any agents or representatives thereof at any reasonable time and from time to time to examine and make copies of and abstracts from such records. (b) Notices. The Pledgor will, at his expense, promptly deliver to the Agent a copy of each notice or other communication received by the Pledgor in respect of the Pledged Collateral of the Pledgor. (c) Defend Title. The Pledgor will (at the expense of the Pledgor) defend his right, title and interest in and to the Pledged Collateral against the claims of any Person. (d) Further Assurances. The Pledgor will (at the expense of the Pledgor), at any time and from time to time, promptly execute and deliver all further instruments and documents and take all further action that may be necessary or desirable or that the Agent may reasonably request in order (i) to perfect and protect the security interest created or purported to be created hereby (whether pursuant to laws, rules, regulations or general practices currently in effect or adopted subsequent to the date hereof); (ii) to enable the Agent to exercise and enforce its rights and remedies hereunder in respect of the Pledged Collateral (including, without limitation, by executing one or more Forms 144); or (iii) to otherwise effect the purposes of this Pledge Agreement, including, without limitation: (A) at the request of the Agent, marking conspicuously each of the records of the Pledgor pertaining to the Pledged Collateral with a legend, in form and substance satisfactory to the Agent, indicating that such Pledged Collateral is subject to the security interest 5 created hereby; (B) if any Pledged Collateral shall be evidenced by a promissory note or other instrument or chattel paper, delivering and pledging to the Agent hereunder such note, instrument or chattel paper duly indorsed and accompanied by executed instruments of transfer or assignment, all in form and substance satisfactory to the Agent; (C) delivering to the Agent irrevocable proxies in respect of the Pledged Collateral and executing and filing such financing or continuation statements, or amendments thereto, as may be necessary or desirable or that the Agent may request in order to perfect and preserve the security interest created or purported to be created hereby; and (D) furnishing to the Agent from time to time statements and schedules further identifying and describing the Pledged Collateral and such other reports in connection with the Pledged Collateral as the Agent may reasonably request, all in reasonable detail. (e) Change of Name or Address. The Pledgor will give the Agent at least 30 days' prior written notice of any change in the Pledgor's name or principal residence. (f) Transfers and Other Restrictions. The Pledgor will not (i) sell, assign (by operation of law or otherwise), exchange or otherwise dispose of any Pledged Collateral except as expressly permitted by Section 7(a) hereof. (g) Rule 144 Covenants. The Pledgor will not sell any securities of the same class or convertible into the same class of securities as the Pledged Shares, whether or not such securities are pledged hereunder, and in the event of any such sale consented to by the Agent will furnish the Agent with a copy of any Form 144 filed in respect of such sale. The Pledgor will use his reasonable efforts to cause any Person with whom he shall be deemed one "person" for purposes of Rule 144(a)(2) (the Pledgor and all such parties being hereinafter collectively referred to as the "Attribution Group") to refrain from selling any securities of the same class or convertible into the same class of securities as the Pledged Shares, whether or not such securities are pledged hereunder, and in the event of any such sale consented to by the Agent will furnish the Agent with a copy of any Form 144 filed in respect of such sale. (h) Cooperation. The Pledgor will cooperate fully with the Agent with respect to any sale by the Agent of any of the Pledged Collateral after the occurrence and during the continuance of an Event of Default, including full and complete compliance with all requirements of Rule 144, and will give to the Agent all information and will do all things necessary, including the execution of all documents, forms, instruments and other items, to comply with Rule 144 for the complete and unrestricted sale and/or transfer of any or all of the Pledged Collateral. (i) Lien. The Pledgor will not create or suffer to exist any (i) Lien upon or with respect to any of the Pledged Collateral except for the security interests created by this Pledge Agreement or (ii) any contractual restriction on the transferability of any of the Pledged Collateral (including, without limitation, any market standoff or other "lock-up" agreement) other than the restriction in the Registration Rights Agreement (as in effect on the date hereof), which applies only to the Pledgor (and not to any sale or disposition of the Pledged Collateral by the Agent or any Lender). (j) Agreements Affecting Pledged Collateral. The Pledgor will not make or consent to any amendment or other modification or waiver with respect to any of the Pledged 6 Collateral (including, without limitation, to the Registration Rights Agreement), or enter into any agreement or permit to exist any restriction with respect to any of the Pledged Collateral other than pursuant hereto. (k) Other Actions. The Pledgor will not take or fail to take any action that would in any manner impair the value or enforceability of the Agent's security interest in the Pledged Collateral. SECTION 7. Voting Rights, Dividends, Etc. in Respect of the Pledged Collateral. (a) So long as no Default or Event of Default shall have occurred and be continuing: (i) the Pledgor may exercise any and all voting and other consensual rights pertaining to any Pledged Collateral in a manner not inconsistent with the terms of this Pledge Agreement; (ii) the Pledgor may receive and retain any and all dividends or other distributions paid in respect of the Pledged Collateral of the Pledgor; provided, however, that any and all (A) dividends paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of or in exchange for, any Pledged Collateral (including, without limitation, shares of stock or other instruments issued in respect of any "spin-off" of any division or subsidiary of the Issuer), (B) dividends and other distributions paid or payable in cash in respect of any Pledged Collateral in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in surplus, and (C) cash paid, payable or otherwise distributed in redemption of, or in exchange for, any Pledged Collateral shall be, and shall forthwith be delivered to the Agent to hold as, Pledged Collateral and shall, if received by the Pledgor, be received in trust for the benefit of the Agent, shall be segregated from the other property or funds of the Pledgor, and shall be forthwith delivered to the Agent in the exact form received with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Agent as Pledged Collateral and as further collateral security for the Obligations; and (iii) the Agent will execute and deliver (or cause to be executed and delivered) all such proxies and other instruments as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the voting and other rights that the Pledgor is entitled to exercise pursuant to paragraph (i) of this Section 7(a) and to receive the dividends that the Pledgor is authorized to receive and retain pursuant to paragraph (ii) of this Section 7(a). (b) Upon the occurrence and during the continuance of any Default or Event of Default: (i) all rights of the Pledgor to exercise the voting and other consensual rights that the Pledgor would otherwise be entitled to exercise pursuant to paragraph (i) of subsection (a) of this Section 7, and to receive the dividends and other distributions that the Pledgor would otherwise be authorized to receive and retain pursuant to paragraph (ii) of subsection (a) of this Section 7, shall cease, and (A) all such rights shall thereupon become 7 vested in the Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights and to receive and hold as Pledged Collateral such dividends and other distributions, and (B) the Pledgor shall execute and deliver all such proxies and other instruments as the Agent may reasonably request for the purpose of enabling Agent to exercise the voting and other rights that it is entitled to exercise pursuant to this Section 7(b)(i); (ii) without limiting the generality of the foregoing, the Agent may at its option exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any of the Pledged Collateral as if it were the absolute owner thereof, including, without limitation, the right to exchange, in its discretion, any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other adjustment of any issuer of Pledged Collateral, or upon the exercise by any issuer of Pledged Collateral of any right, privilege or option pertaining to any Pledged Collateral, and, in connection therewith, to deposit and deliver any and all of the Pledged Collateral with any committee, depository, transfer agent, registrar or other designated agent upon such terms and conditions as it may determine; and (iii) all dividends and other distributions that are received by the Pledgor contrary to the provisions of paragraph (i) of this Section 7(b) shall be received in trust for the benefit of the Agent, shall be segregated from the other funds of the Pledgor, and shall be forthwith paid over to the Agent as Pledged Collateral in the exact form received with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Agent as Pledged Collateral hereunder. SECTION 8. Additional Provisions Concerning the Pledged Collateral. (a) The Pledgor hereby authorizes the Agent to file, without the signature of the Pledgor where permitted by law, one or more financing or continuation statements, and amendments thereto, relating to the Pledged Collateral. The Agent hereby agrees to notify the Pledgor promptly after any such filing. (b) The Pledgor hereby irrevocably appoints the Agent the Pledgor's attorney-in-fact and proxy, with full authority in the place and stead of the Pledgor and in the name of the Pledgor or otherwise, from time to time in the Agent's discretion, to take any action and to execute any instrument (at the expense of the Pledgor) that the Agent may reasonably deem necessary or advisable to accomplish the purposes of this Pledge Agreement including, without limitation, (i) at any time and from time to time, to receive, indorse and collect all instruments made payable to the Pledgor representing any distribution in respect of any Pledged Collateral and to give full discharge for the same, (ii) to complete, execute and file one or more Forms 144 with respect to any of the Pledged Collateral and (iii) to receive, endorse and collect any drafts or other instruments, documents and chattel paper representing any dividend or other distribution in respect of the Pledged Collateral and, in addition to the foregoing and without limitation: (A) to ask, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Pledged Collateral and to receive, indorse, and collect any drafts or other instruments, documents and chattel paper in connection therewith; and (B) to file any claims or take any action or institute any proceedings that the Agent may deem necessary or desirable for the collection of any of the Pledged Collateral or otherwise to enforce the rights of the 8 Agent with respect to any of the Pledged Collateral; provided, however, that the Agent shall exercise such powers only during the occurrence and continuance of an Event of Default. This power is coupled with an interest and is irrevocable until all of the Obligations are paid in full and the termination of all of the Letters of Credit and each Commitment. (c) If the Pledgor fails to perform any agreement or obligation contained herein, the Agent (immediately after giving notice to the Pledgor) may itself perform, or cause performance of, such agreement or obligation, and the expenses of the Agent incurred in connection therewith shall be payable by the Pledgor pursuant to Section 11 hereof, together with interest from the date such expenses are paid by the Agent until repaid in full, at the rate for overdue principal under the Credit Agreement, all payable on demand. (d) The powers conferred on the Agent hereunder are solely to protect its interest in the Pledged Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care to assure the safe custody of any Pledged Collateral in its possession, the Agent shall have no duty or liability to preserve rights pertaining thereto and shall be relieved of all responsibility for the Pledged Collateral upon surrendering it or tendering surrender of it to the Pledgor. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if the Pledged Collateral is accorded treatment substantially equal to that which the Agent accords its own property, it being understood that the Agent shall not have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Pledged Collateral, whether or not the Agent has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any Pledged Collateral. (e) The Agent may at any time in its discretion (i) subject only to the rights of the Pledgor under Section 7(a) hereof and so long as an Event of Default has occurred and is continuing, without prior notice to the Pledgor, transfer or register in the name of the Agent or any of its nominees any or all of the Pledged Collateral, and (ii) exchange certificates or instruments constituting Pledged Collateral for certificates or instruments of smaller or larger denominations. SECTION 9. Remedies Upon Default. If any Event of Default shall have occurred and be continuing: (a) The Agent may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all of the rights and remedies of a secured party on default under the Code then in effect in the State of New York (whether or not the Code applies to the affected Pledged Collateral); and without limiting the generality of the foregoing, also may without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange or broker's board or elsewhere, at such price or prices and on such other terms as the Agent may deem commercially reasonable. The Pledgor agrees that, to the extent notice of sale shall be required by law, at least 10 days' notice to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Agent shall not be obligated to make any sale of Pledged Collateral regardless 9 of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Pledgor agrees to complete and execute one or more Forms 144, and to cooperate in the completion and execution of one or more Forms 144 if completed and executed by the Agent, to the extent necessary or desirable to permit a sale of the Pledged Collateral in compliance with Rule 144. (b) The Pledgor agrees that in any sale of any Pledged Collateral hereunder the Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of applicable law, rule or regulation (including, without limitation, compliance with such procedures as may restrict the number of prospective bidders and purchasers, require that such prospective bidders and purchasers have certain qualifications, and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Pledged Collateral), or in order to obtain any required approval of the sale or of the purchasers by any Governmental Authority, regulatory body or official, and the Pledgor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall the Agent be liable or accountable to the Pledgor for any discount allowed by reason of the fact that such Pledged Collateral is sold in compliance with any such limitation or restriction. (c) Notwithstanding the provisions of subsection (b) of this Section 9, the Pledgor recognizes that the Agent may deem it impracticable to effect a public sale of all or any part of the Pledged Collateral and that the Agent may, therefore, determine to make one or more private sales of any such Pledged Collateral to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms that might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sales shall be deemed to have been made in a commercially reasonable manner and that the Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of any securities constituting Pledged Collateral (the "Securities") to register such securities for public sale under the Securities Act of 1933, as amended (the "Securities Act"). The Pledgor further acknowledges and agrees that any offer to sell such Securities that has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such an offer may be so advertised without prior registration under the Securities Act) or (ii) made privately in the manner described above to not less than fifteen bona fide offerees shall be deemed to involve a "public disposition" for the purposes of Section 9-610 of the Code (or any successor or similar, applicable statutory provision) as then in effect in the State of New York, notwithstanding that such sale may not constitute a "public offering" under the Securities Act, and that the Agent may, in such event, bid for and purchase such Securities. (d) Any cash held by the Agent as Pledged Collateral and all cash proceeds received by the Agent in respect of any sale of, collection from, or other realization upon, all or any part of the Pledged Collateral may, in the discretion of the Agent, be held by the 10 Agent as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Agent pursuant to Section 10 hereof) in whole or in part by the Agent against, all or any part of the Obligations in such order as the Agent shall elect. Any surplus of such cash or cash proceeds held by the Agent and remaining after payment in full of all of the Obligations, the termination of all of the Letters of Credit and the termination of each Commitment shall be paid over to the Pledgor or to such Person as may be lawfully entitled to receive such surplus. (e) In the event that the proceeds of any such sale, collection or realization are insufficient to pay all amounts to which the Agent or any Lender is legally entitled, the Pledgor shall be liable for the deficiency, together with interest thereon at the highest rate specified in the Credit Agreement for interest on overdue principal thereof or such other rate as shall be fixed by applicable law, together with the costs of collection and the reasonable fees, costs and expenses of any attorneys employed by the Agent or any of the Lenders to collect such deficiency. SECTION 10. Indemnity and Expenses. (a) The Pledgor agrees to indemnify the Agent from and against any and all claims, losses and liabilities (including, without limitation, the reasonable fees, client charges and other expenses of the Agent's counsel) growing out of or resulting from this Pledge Agreement or the enforcement of any of the terms hereof (including, without limitation, the sale of Pledged Collateral pursuant to a public or private offering and each and every document produced in furtherance thereof), except claims, losses or liabilities resulting solely and directly from the Agent's gross negligence or willful misconduct. (b) The Pledgor agrees to pay to the Agent on demand the amount of any and all costs and expenses, including the reasonable fees and other client charges of the Agent's counsel and of any experts and agents, that the Agent may incur in connection with (i) the amendment, modification, administration and termination of this Pledge Agreement, (ii) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, any of the Pledged Collateral (including, without limitation, fees or commissions of any broker), (iii) the exercise or enforcement of any of the rights of the Collateral Agent hereunder, or (iv) the failure by the Pledgor to perform or observe any of the provisions hereof. SECTION 11. Notices, Etc. All notices and other communications provided for hereunder shall be in writing and shall be mailed or delivered, if to the Pledgor, to the Pledgor at to c/o Triarc Companies, Inc., 280 Park Avenue, 41st Floor, New York, New York 10017, Telecopy No.: (212) 451-3216, with a copy to Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York 10019, Attention: Neale M. Albert, Esq., telecopy No. (212) 757-3990; if to the Agent, to it at its address at Bank of America, N.A., 101 South Tryon Street, Charlotte, North Carolina 28255, with copies to Bank of America, N.A., 767 Fifth Avenue, Floor 12A, New York, New York 10153-0083, Attention: Ms. Jane R. Heller, Senior Vice President, Telecopier No. (212) 407-5402, and Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, Attention: Lawrence S. Goldberg, Esq.; or as to any such Person at such other address as shall be designated by such Person in a written notice to such other Persons complying as to delivery with the terms of this Section 11. All such notices 11 and other communications shall be effective (i) if mailed, when received or three days after mailing, whichever is earlier; (ii) if telecopied, when received; (iii) if telegraphed, when delivered to the telegraph company; or (iv) if delivered, upon delivery. SECTION 12. Miscellaneous. (a) No amendment of any provision of this Pledge Agreement shall be effective unless it is in writing and signed by the Pledgor and the Agent, and no waiver of any provision of this Pledge Agreement, and no consent to any departure by the Pledgor therefrom, shall be effective unless it is in writing and signed by the Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. (b) No failure on the part of the Agent to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Agent provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Agent against the Pledgor under any Loan Document are not conditional or contingent on any attempt by the Agent to exercise any of its rights under any other Loan Document against the Pledgor or against any other Person. (c) Any provision of this Pledge Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction. (d) This Pledge Agreement shall create a continuing security interest in the Pledged Collateral and shall (i) remain in full force and effect until the payment in full or release of the Obligations and the termination of the Letters of Credit and the Commitments, and (ii) be binding on the Pledgor and its successors and assigns and shall inure, together with all rights and remedies of the Agent hereunder, to the benefit of the Agent and its successors, transferees and assigns. Without limiting the generality of clause (ii) of the immediately preceding sentence, no Lender may assign or otherwise transfer its interests hereunder or under any other Loan Document; provided, however, that any Lender may assign or transfer, as collateral or otherwise, any or all of its interest hereunder and under the other Loan Documents in accordance with the applicable provisions of the other Loan Documents. None of the rights or obligations of the Pledgor hereunder may be assigned or otherwise transferred without the prior written consent of the Agent. (e) Upon the satisfaction in full of the Obligations and the termination of all Letters of Credit and the Commitments, (i) this Pledge Agreement and the security interest created hereby shall terminate and all rights to the Pledged Collateral shall revert to the Pledgor, and (ii) the Agent will, upon the Pledgor's request and at the Pledgor's expense, (A) return to the Pledgor such of the Pledged Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the terms hereof and (B) execute and deliver to the Pledgor such documents as the Pledgor shall reasonably request to evidence such termination. 12 (f) This Pledge Agreement shall be governed by and construed in accordance with the law of the State of New York, except as required by mandatory provisions of law and except to the extent that the validity or perfection and the effect of perfection or non-perfection of the security interest created hereby, or remedies hereunder, in respect of any particular Pledged Collateral are governed by the law of a jurisdiction other than the State of New York. (g) NOTHING IN THIS PLEDGE AGREEMENT IS INTENDED TO BE AN AMENDMENT OR MODIFICATION OF, OR LIMITATION OR RESTRICTION UPON, ANY PROVISION OF THE LOAN AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE BORROWERS' OBLIGATIONS TO PAY THE PRINCIPAL OF AND INTEREST ON THE LOANS MADE PURSUANT TO THE LOAN AGREEMENT UPON DEMAND), AND THE PROVISIONS OF THE LOAN AGREEMENT AND RELATED NOTES SHALL BE CONTROLLING AND FULLY EFFECTIVE REGARDLESS OF ANYTHING HEREIN TO THE CONTRARY. THE PLEDGOR HEREBY ACKNOWLEDGES THAT THE BANK MAY, AT ANY TIME, IN ITS SOLE AND ABSOLUTE DISCRETION, DEMAND PAYMENT OF THE REVOLVING A LOAN AND THE RELATED REVOLVING A NOTE EVEN IF THE PLEDGOR HAS FULLY COMPLIED WITH ALL OF THE TERMS AND CONDITIONS OF THIS PLEDGE AGREEMENT. SECTION 13. Security Interest Absolute. All rights of the Agent, all security interests and all obligations of the Pledgor hereunder shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of any Loan Document or any other agreement, instrument or document relating thereto, (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from any Loan Document or any other agreement, instrument or document relating thereto, (iii) any exchange or release of, or non-perfection of any lien on or security interest in, any collateral for any of the Obligations, or any release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Obligations or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a Borrower in respect of any of their obligations under the Credit Agreement , or the Pledgor in respect of any of the Obligations. SECTION 14. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS PLEDGE 13 AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS PLEDGE AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. (a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF PLEDGOR'S OFFICE REFERRED TO IN SECTION 11 HEREOF AT THE TIME OF THE EXECUTION OF THIS PLEDGE AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS. (b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT, OR DOCUMENT; OR (II) BE A WAIVER BY THE AGENT OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE AGENT HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE AGENT MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS PLEDGE AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES. SECTION 15. OTHER AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 14 IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be executed and delivered on the date first above written. /s/ Nelson Peltz ------------------------ Nelson Peltz EX-99 4 ex31_sc13da19-dwg.txt EXHIBIT 31 EXHIBIT 31 ---------- AMENDMENT NO. 5 TO PLEDGE AND SECURITY AGREEMENT AMENDMENT NO. 5, dated July 23, 2004 (the "Amendment"), to the PLEDGE AND SECURITY AGREEMENT, dated April 2, 2003 (as amended, the "Pledge Agreement"), made by PETER W. MAY, an individual whose principal residence is in the State of New York (the "Pledgor"), in favor of BANK OF AMERICA, N.A., formerly known as NationsBank, N.A. (the "Bank"), as collateral agent for the Bank (in such capacity, the "Collateral Agent"). Capitalized terms used and not defined herein have the meanings set forth in the Credit Agreement referred to below. WHEREAS, the Pledgor and the Collateral Agent are parties to the Pledge Agreement, providing for the pledge to the Collateral Agent of, and the grant to the Collateral Agent of a security interest in, (i) certain of the outstanding shares of capital stock ("Triarc Shares") issued by Triarc Companies, Inc., a Delaware corporation ("Triarc"), which are owned by the Pledgor, and (ii) all dividends, cash, instruments and other property that may thereafter be distributed by Triarc to the Pledgor in connection with such shares (collectively, "Pledged Shares"), as collateral security for certain loans and other financial accommodations (collectively, the "Loans") made by the Bank to the Pledgor and Leni May under the Third Amended and Restated Credit Agreement, dated as of April 2, 2001 (as amended, restated or otherwise modified, the "Credit Agreement"), by and among the Pledgor and Leni May, as borrowers, and the Bank; WHEREAS, it was a condition precedent to the making of the Loans to the Borrowers pursuant to the Credit Agreement that DWG Acquisition Group, L.P., a Delaware limited partnership ("DWG") of which the Pledgor and Nelson Peltz are the sole general partners ("General Partners"), execute and deliver to the Agent the Triarc Pledge Agreement, pursuant to which DWG pledged to the Agent, and granted to the Agent a security interest in, the Triarc Shares from time to time owned by DWG; WHEREAS, (a) the Pledgor has (i) notified the Collateral Agent that pursuant to Section 7.3 of the Credit Agreement, the General Partners intend to liquidate DWG and transfer approximately one-third of the Triarc Shares owned by DWG (as more fully described in Schedule II attached hereto, the "May Interest") to the Pledgor (subject to the perfected, first priority Lien and security interest of the Collateral Agent) and (ii) requested that the Collateral Agent amend certain terms and provisions of the Credit Agreement relating to the liquidation of DWG; and (b) the Collateral Agent is willing to permit the Triarc Shares owned by DWG to be distributed to its partners so long as (i) concurrently with the liquidation of DWG, the Triarc Shares comprising the May Interest shall have been transferred (subject to the perfected, first priority Lien and security interest of the Collateral Agent, securing the Obligations) to the Pledgor, (ii) immediately after such liquidation, the Collateral Agent shall have a perfected, first priority Lien on, and security interest in, the Triarc Shares comprising the May Interest (the "May Shares"), as security for the Obligations, and (iii) the Pledgor shall have executed and delivered, among other things, this Amendment; WHEREAS, in accordance with Section 2 of the Pledge Agreement, the Pledgor has delivered to the Collateral Agent the certificates representing the May Shares as additional Collateral to secure the Obligations; and WHEREAS, in order to reflect the pledge of such additional Pledged Shares, each of the undersigned desires to amend the Pledge Agreement in the manner described below; NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to induce the Bank to maintain the Loans, the Pledgor hereby agrees with the Collateral Agent as follows: 1. Definitions. All terms used herein which are defined in the Pledge Agreement and not otherwise defined herein are used herein as defined therein. 2. Schedule. Schedule I to the Pledge Agreement is hereby deleted in its entirety, and Annex A hereto is hereby substituted therefor. Any and all references to Schedule I in the Pledge Agreement shall be deemed to refer to Annex A hereto, and all references to "Pledged Shares" in the Pledge Agreement shall mean the shares of stock described in item 1 of Annex A hereto. Without limiting the generality of the foregoing or the Pledge Agreement, the Pledgor hereby pledges and assigns to the Collateral Agent for the benefit of the Bank and the other Lenders, and grants to the Collateral Agent for the benefit of the Bank and the other Lenders a security interest in, all of his right, title and interest in the shares of stock issued by Triarc and described in item 1 of Annex A hereto. 3. Representations and Warranties. The Pledgor hereby represents and warrants to the Collateral Agent as follows: (a) The representations and warranties made by the Pledgor in the Pledge Agreement and in each other Loan Document to which he is a party delivered to the Bank on or prior to the date hereof are true and correct on and as of the date hereof as though made on and as of the date hereof (except to the extent such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall be true and correct as of such earlier date). (b) The Pledgor has the legal capacity and right to execute, deliver and perform this Amendment. (c) The execution, delivery and performance by the Pledgor of this Amendment (i) do not and will not contravene any law or any contractual restriction binding on or affecting the Pledgor or any of the Pledgor's properties (including, without limitation, any governing document of Triarc or any rule, directive or policy of Triarc), and (ii) do not and will not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of the Pledgor's properties, other than in favor of the Collateral Agent. The exercise by the Collateral Agent of its rights and remedies under this Amendment or under the Pledge Agreement, as amended hereby (including, without limitation, the sale or other disposition 2 of the Pledged Shares by the Collateral Agent), will not violate any contractual restriction binding on or affecting the Pledgor or the Pledged Shares. (d) Each of this Amendment and the Pledge Agreement, as amended hereby, constitutes the legal, valid and binding obligation of the Pledgor, enforceable against the Pledgor in accordance with its terms. (e) Security Interest. The Pledge Agreement, as amended hereby, creates a valid security interest in the Pledged Collateral (including, without limitation, the shares of Triarc formerly owned by DWG allocable to the May Interest) as security for the Obligations. The Collateral Agent having possession of the certificates described in Annex A hereto results in the perfection of the Collateral Agent's security interest in the Pledged Shares (including, without limitation, the shares of Triarc formerly owned by DWG and allocable to the May Interest. (f) Continued Effectiveness of the Pledge Agreement. Except as otherwise expressly provided herein, the Pledge Agreement and the other Loan Documents to which the Pledgor is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects except that on and after the date hereof (i) all references in the Pledge Agreement to "this Agreement", "hereto", "hereof", "hereunder" or words of like import referring to the Pledge Agreement shall mean the Pledge Agreement as amended by this Amendment, and (ii) all references in the other Loan Documents to which the Pledgor is a party to the "PWM Pledge Agreement", "thereto", "thereof", "thereunder" or words of like import referring to the Pledge Agreement shall mean the Pledge Agreement as amended by this Amendment. Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Collateral Agent under the Pledge Agreement or any other Loan Document, nor constitute a waiver of any provision of the Pledge Agreement. 3 4. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. 5. Headings. Section headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose. 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the law of the State of New York. 7. Amendment as Loan Document. The Pledgor hereby acknowledges and agrees that this Amendment constitutes a "Loan Document." Accordingly, it shall be an Event of Default under the Credit Agreement if (i) any representation or warranty made by the Pledgor under or in connection with this Amendment shall have been untrue, false or misleading in any material respect when made, or (ii) the Pledgor shall fail to perform or observe any term, covenant or agreement contained in this Amendment. 8. Effectiveness. This Amendment shall become effective on the date as of which the Collateral Agent shall have received this Amendment, duly executed by the Pledgor. 4 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date first above written. ------------------------------------------- Peter May BANK OF AMERICA, N.A., as collateral agent By: -------------------------------------- Title: Vice President 5 -----END PRIVACY-ENHANCED MESSAGE-----