-----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, V/DxOnjA4gcUVLRcqvq2BsUKxdrs3YNFpryVCUyK4GHs/FIkELH1noCwBlX8pLlE y/0dRANWJFRqV1E6UVgijw== 0000030697-99-000057.txt : 19990820 0000030697-99-000057.hdr.sgml : 19990820 ACCESSION NUMBER: 0000030697-99-000057 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990819 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990819 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-02207 FILM NUMBER: 99696200 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2124513000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 8-K 1 TRIARC COMPANIES, INC. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported) August 19, 1999 TRIARC COMPANIES, INC. -------------------------------------------------- (Exact Name of Registrant as Specified in Charter) DELAWARE 1-2207 38-0471180 ----------------- -------------- -------------- (State or Other (Commission (I.R.S. Employer Jurisdiction of File Number) Identification No.) Incorporation) 280 Park Avenue New York, NY 10017 ----------------------------------------------- ------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (212) 451-3000 - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) Item 5. Other Events. Agreement to Repurchase Class B Common Stock On August 19, 1999, the Company announced that its Board of Directors had unanimously approved a stock purchase agreement between the Company and two entities controlled by Victor Posner, Victor Posner Trust No. 6 and Security Management Corp. (collectively, the "Posner Entities"), pursuant to which the Company will acquire from the Posner Entities all of the 5,997,622 issued and outstanding shares of the Company's non-voting Class B Common Stock in three separate transactions. Pursuant to the agreement, on August 19, 1999, the Company acquired one-third of the shares (1,999,208 shares) at a price of $20.44 per share (which was the trading price of the Company's Class A Common Stock at the time the transaction was negotiated), for an aggregate cost of $40,863,812. The Company will acquire one-half of the remaining shares (1,999,207 shares) on or before the first anniversary of the date of the initial closing (subject to extension in certain limited circumstances) at a price of $21.18 per share (an aggregate cost of $42,343,204) and the remaining shares (1,999,207 shares) on or before the second anniversary of the date of the initial closing (subject to extension in certain limited circumstances) at a price of $21.93 per share (an aggregate cost of $43,842,610). The Posner Entities have placed the shares to be acquired at the subsequent closings in escrow pending their repurchase. A copy of the definitive stock purchase agreement and two press releases relating to the foregoing transaction are being filed as exhibits hereto. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits (c) Exhibits 10.1 Amended and Restated Stock Purchase Agreement dated August 19, 1999 by and among Triarc, Victor Posner Trust No. 6 and Security Management Corp. 99.1 Press Release dated August 19, 1999. 99.2 Press Release dated August 19, 1999. Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on behalf by the undersigned hereunto duly authorized. TRIARC COMPANIES, INC. By: BRIAN L. SCHORR ------------------------------ Name: Brian L. Schorr Title: Executive Vice President and General Counsel Dated: August 19, 1999 EXHIBIT INDEX Exhibit No. Description Page No. 10.1 -- Amended and Restated Stock Purchase Agreement dated August 19, 1999 by and among Triarc, Victor Posner Trust No. 6 and Security Management Corp. 99.1 -- Press Release dated August 19, 1999 99.2 -- Press Release dated August 19, 1999 EX-10.1 2 AMEND & RESTAT STOCK PURC AGMT Exhibit 10.1 - -------------------------------------------------------------------------------- AMENDED AND RESTATED STOCK PURCHASE AGREEMENT by and among TRIARC COMPANIES, INC., VICTOR POSNER TRUST NO. 6 and SECURITY MANAGEMENT CORP. ------------------------- for all of the shares of Class B Common Stock of TRIARC COMPANIES, INC. ------------------------- August 19, 1999 ------------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS PAGE # 1. Sale and Purchase of Shares............................................. 1.1. Sale and Purchase of Shares...................................... 1.2. Payment of the Purchase Price.................................... 1.3. Delivery of Shares............................................... 1.4. Changes in Capitalization........................................ 2. Closing; Closing Date................................................... 3. Representations and Warranties of the Sellers........................... 3.1. Title to the Shares.............................................. 3.2. Due Incorporation and Authority.................................. 3.3. Authority to Execute and Perform Agreement....................... 3.4. No Conflict...................................................... 3.5. Representations and Warranties on Closing Date................... 4. Representations and Warranties of the Company.......................... 4.1. Due Incorporation and Authority.................................. 4.2. Authority to Execute and Perform Agreement....................... 4.3. No Conflict...................................................... 4.4. Representations and Warranties on Closing Date................... 5. Covenants and Agreements................................................ 5.1. Sophisticated Seller............................................. 5.2. Publicity........................................................ 5.3. Expenses......................................................... 5.4. Further Assurances............................................... 6. Conditions Precedent to the Obligation of the Company to Close.......... 7. Conditions Precedent to the Obligation of the Sellers to Close.......... 8. Termination of Agreement................................................ 8.1. Termination...................................................... 8.2. Survival After Termination....................................... 9. Miscellaneous........................................................... 9.1. Consent to Jurisdiction and Service of Process................... 9.2. Notices.......................................................... 9.3. Entire Agreement................................................. 9.4. Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies......................................... 9.5. Governing Law.................................................... 9.6. Binding Effect; Assignment....................................... 9.7. Counterparts..................................................... 9.8. Exhibits and Schedules........................................... 9.9. Headings......................................................... 9.10. Interpretation................................................... 9.11. Fees of Legal Disputes........................................... 9.12. Severability of Provisions....................................... Exhibit: A - Form of Escrow Agreement AMENDED AND RESTATED STOCK PURCHASE AGREEMENT AGREEMENT, dated August 19, 1999, by and among TRIARC COMPANIES, INC., a Delaware corporation (the "Company"), and VICTOR POSNER TRUST NO. 6, a trust organized by an instrument executed in Florida (the "Posner Trust"), and SECURITY MANAGEMENT CORP., a Maryland corporation ("SM") (each of the Posner Trust and SM, a "Seller" and, collectively, the "Sellers") for the purchase and sale of all of the issued and outstanding shares of Class B Common Stock of the Company. The Sellers are the beneficial and record owners of 5,997,622 of the issued and outstanding shares of Class B Common Stock, par value $0.10 per share (the "Shares"), of the Company. The Sellers wish to sell to the Company, and the Company wishes to purchase from the Sellers, all of the Shares upon the terms and subject to the conditions of this Agreement. The Company, the Posner Trust and SM are parties to a Stock Purchase Agreement, dated August 12, 1999 (the "Stock Purchase Agreement"). The Company, the Posner Trust and SM wish to amend and restate the terms and conditions of the Stock Purchase Agreement. Accordingly, the parties agree as follows: 1. Sale and Purchase of Shares. 1.1. Sale and Purchase of Shares. At each of the closings provided for in Article 2 (collectively the "Closings" and each a "Closing"), upon the terms and subject to the conditions of this Agreement and in reliance upon the representations, warranties and agreements of the parties contained herein, the Sellers shall sell to the Company, and the Company shall purchase from the Sellers, the Shares as follows: (i) at the First Closing (as defined below) the Company shall purchase from the Sellers 1,999,208 Shares (the "First Closing Shares") for an aggregate purchase price of $40,863,812 (the "First Purchase Price") (the First Purchase Price is based on a price of $20.44, per Share, which was the current trading price of the Company's Class A Common Stock at the time the transaction was negotiated); and (ii) at each of the Second Closing and the Third Closing (each as defined below), the Company shall purchase from the Sellers 1,999,207 Shares (the "Subsequent Closing Shares") for an aggregate purchase price (at each closing) of $42,343,204 (the "Second Purchase Price") based on a price of $21.18 and $43,842,610 (the "Third Purchase Price") based on a price of $21.93, respectively, to be paid in accordance with Section 1.2 below. Each of the First Purchase Price, the Second Purchase Price and the Third Purchase Price shall be referred to herein as a "Purchase Price". 1.2. Payment of the Purchase Price. At each Closing the applicable Purchase Price shall be delivered by the Company to the Escrow Agent to be disbursed by the Escrow Agent to the Sellers as provided in the Escrow Agreement. 1.3. Delivery of Shares. Not less than 1 business day prior to the First Closing the Sellers shall deliver stock certificates representing the Shares to a financial institution reasonably satisfactory to the parties, as escrow agent (the "Escrow Agent"), pursuant to an escrow agreement substantially in the form of Exhibit A with such changes as the Escrow Agent may require subject to the parties consent, such consent not to be unreasonably withheld (the "Escrow Agreement"), each such certificate duly endorsed in blank or accompanied by stock powers duly executed in blank, in proper form for transfer, and with all appropriate stock transfer tax stamps affixed. At each Closing, the Sellers and the Company shall cause the Escrow Agent to deliver to the Company stock certificates representing the applicable number of Shares, duly endorsed in blank or accompanied by stock powers duly executed in blank, in proper form for transfer, and with all appropriate stock transfer stamps affixed. 1.4. Changes in Capitalization. Any and all cash or other property distributed to, or to be distributed to, the Sellers with respect to any of the Subsequent Shares, other than regular quarterly dividends, if any, shall be promptly delivered to the Escrow Agent to be held in accordance with the Escrow Agreement. If any stock dividend, stock distribution, spinoff, stock split, recapitalization, combination or exchange of shares, merger, consolidation, reorganization, liquidation or other similar change or transaction of or by the Company occurs as a result of which shares of any securities are issued in respect of outstanding Shares, or in respect of outstanding shares of Class A Common Stock, par value $0.10 (the "Class A Stock"), of the Company, or outstanding Shares, or shares of Class A Stock, are changed into the same or a different number of shares of the same or another class or classes, all references to the Shares and prices per share of the Shares shall be appropriately adjusted to reflect such transaction. A written certification by Deloitte & Touche LLP of any such adjustment shall be binding on the parties hereto, absent demonstrable error. 2. Closing; Closing Date. The Closings of the sale and purchase of the Shares contemplated hereby shall take place at the offices of the Escrow Agent, New York, New York at 10:00 a.m. local time, as follows: (i) the First Closing shall take place on the third business day following the date on which all of the conditions set forth in Sections 6 and 7 (other than conditions to be satisfied as of the Closing Date) have been satisfied or waived, or such other time or date as the parties may mutually agree in writing, provided that all of the conditions to the Closing set forth in Articles 6 and 7 have been satisfied or waived by the party entitled to waive the same (the time and date upon which the First Closing occurs is herein called the "First Closing Date"); (ii) the Second Closing shall take place on the first anniversary of the First Closing Date, or such earlier time or date as determined by the Company upon three business days prior written notice, provided that the conditions set forth in Articles 6 and 7 have been satisfied or waived by the party entitled to waive the same (the time and date upon which the Second Closing occurs is herein called the "Second Closing Date"); and (iii) the Third Closing shall take place on the second anniversary of the First Closing Date, or such earlier time or date as determined by the Company upon three business days prior written notice, provided that the conditions set forth in Articles 6 and 7 have been satisfied or waived by the party entitled to waive the same (the time and date upon which the Third Closing occurs is herein called the "Third Closing Date" and each of the First Closing Date, the Second Closing Date and the Third Closing Date are herein called a "Closing Date"). 3. Representations and Warranties of the Sellers. The Sellers, severally and jointly, represent and warrant to the Company as follows: 3.1. Title to the Shares. The Sellers own beneficially and of record, free and clear of any lien, pledge, mortgage, deed of trust, security interest, claim, lease, license, charge, option, right of first refusal (other than to the Buyer), easement, servitude, transfer restriction, encumbrance or any other restriction or limitation whatsoever (collectively, "Liens"), the Shares, and, upon delivery of and payment for the Shares at each of the Closings as herein provided, the Sellers will convey to the Company good and valid title thereto, free and clear of any Lien. 3.2. Due Incorporation and Authority. SM is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland and has all requisite corporate power and lawful authority to carry on its business as now being and heretofore conducted. The Posner Trust is duly organized by a validly executed document and is validly existing. 3.3. Authority to Execute and Perform Agreement. Each of the Sellers has full legal right and power and all authority and approvals required to enter into, execute and deliver this Agreement and each and every agreement and instrument contemplated hereby to which the Posner Trust or SM is or will be a party and to perform fully its obligations hereunder and thereunder. This Agreement has been duly executed and delivered by each of the Sellers, and on each Closing Date, each and every agreement and instrument contemplated hereby to which the Posner Trust or SM is a party will be duly executed and delivered by the Posner Trust and/or SM, as applicable and (assuming due execution and delivery hereof and thereof by the Company) this Agreement and each such other agreement and instrument will be valid and binding obligations of each of the Sellers enforceable against each of the Sellers in accordance with their respective terms. 3.4. No Conflict. The execution and delivery by each of the Sellers of this Agreement and each and every agreement and instrument contemplated hereby to which either of the Sellers is a party, the consummation of the transactions contemplated hereby and thereby and the performance by each of the Sellers of this Agreement and each such other agreement and instrument in accordance with their respective terms and conditions will not (a) violate any provision of the Certificate of Incorporation or By-laws (or comparable instruments) of SM; (b) require the Sellers to obtain any consent, approval, authorization or action of, or make any filing with or give any notice to, any governmental body or any other person; (c) violate, conflict with or result in the breach of any of the terms and conditions of, result in a material modification of the effect of, otherwise cause the termination of or give any other contracting party the right to terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any contract, agreement, indenture, note, bond, loan, instrument, lease, conditional sale contract, mortgage, license, franchise, commitment or other binding arrangement (each a "Contract") to which either of the Sellers is a party or by or to which either of the Sellers is or the Shares held by the Sellers are or may be bound or subject; (d) violate any law or order of any governmental body applicable to either of the Sellers or to the Shares held by the Sellers; (e) result in the creation of any Lien on the Shares held by the Sellers or (f) violate any provision of the organizational documents of the Posner Trust;. 3.5. Representations and Warranties on Closing Date. The representations and warranties contained in this Article 3 shall be true on and as of each Closing Date with the same force and effect as though such representations and warranties had been made on and as of such Closing Date and shall survive each Closing Date indefinitely; provided, however, that for each of the Second Closing and Third Closing the representations and warranties contained in Section 3.1 shall only apply to the Subsequent Closing Shares purchased at such Closing. 4. Representations and Warranties of the Company. The Company represents and warrants to the Sellers as follows: 4.1. Due Incorporation and Authority. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being and as heretofore conducted. 4.2. Authority to Execute and Perform Agreement. Subject to the approval of the Board of Directors of the Company, the Company has the full legal right and power and all authority and approvals required to enter into, execute and deliver this Agreement and each and every agreement and instrument contemplated hereby to which the Company is or will be a party and to perform fully its obligations hereunder and thereunder. This Agreement has been duly executed and delivered by the Company, and on each Closing Date, each and every agreement and instrument contemplated hereby to which the Company is a party will be duly executed and delivered by the Company and (assuming due execution and delivery hereof and thereof by the other parties hereto and thereto) this Agreement and each such other agreement and instrument will be valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms. 4.3. No Conflict. The execution and delivery by the Company of this Agreement and each and every other agreement and instrument contemplated hereby to which the Company is a party, the consummation of the transactions contemplated hereby and thereby and the performance by the Company of this Agreement and each such other agreement and instrument in accordance with their respective terms and conditions will not (a) violate any provision of the Certificate of Incorporation or By-laws (or comparable instruments) of the Company; (b) other than any filings required under the Exchange Act or the rules of the New York Stock Exchange, require the Company to obtain any consent, approval, authorization or action of, or make any filing with or give any notice to, any governmental body or any other person; (c) violate, conflict with or result in the breach of any of the terms and conditions of, result in a material modification of the effect of, otherwise cause the termination of or give any other contracting party the right to terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any material Contract to which the Company is a party or by or to which the Company or any of its properties is or may be bound or subject; or (d) violate any law or order of any governmental body applicable to the Company. 4.4. Representations and Warranties on Closing Date. The representations and warranties contained in this Article 4 shall be true on and as of each Closing Date with the same force and effect as though such representations and warranties had been made on and as of such Closing Date and shall survive each Closing Date for a period of one year. 5. Covenants and Agreements. 5.1. Sophisticated Seller. The Sellers covenant and agree that they are sophisticated sellers with respect to the Shares and have independently and without reliance upon the Company, and based on such information as the Sellers have deemed appropriate in their independent judgment, made their own analysis and decision to enter into this Agreement. The Buyer has not made and does not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. 5.2. Publicity. The parties agree that no publicity release or announcement concerning this Agreement or the transactions contemplated hereby shall be made without advance approval thereof by the Sellers and the Company except to the extent required to be made by the Company by applicable law or the requirements of the New York Stock Exchange. 5.3. Expenses. he parties to this Agreement shall, except as otherwise specifically provided herein, bear their respective expenses incurred in connection with the preparation, execution and performance of this Agreement and the transactions contemplated hereby, including all fees and expenses of agents, representatives, counsel and accountants. 5.4. Further Assurances. Each of the parties shall execute such documents and take such further actions as may be reasonably required or desirable to carry out the provisions hereof and the transactions contemplated hereby. The Sellers hereby agree not to sell, assign, transfer, encumber, hypothecate or create any Lien on any of the Shares, other than as provided herein, during the term of this Agreement. 6. Conditions Precedent to the Obligation of the Company to Close. The obligation of the Company to enter into and complete each of the Closings is subject, at the option of the Company acting in accordance with the provisions of Article 8 with respect to termination of this Agreement, to the fulfillment on or prior to each of the Closing Dates of the following conditions, which may be waived by the Company: (i) The representations and warranties of the Sellers contained in this Agreement shall be true on and as of each such Closing Date with the same force and effect as though made on and as of each such Closing Date; (ii) each of the Sellers shall have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by such Seller on or prior to such Closing Date; (iii) each of the Sellers shall have delivered to the Company a certificate, dated each such Closing Date and signed by such Seller, to the effect of clauses (i) and (ii); (iv) there shall not exist any injunction, court order, law or other governmental action prohibiting or restraining the consummation of the transaction; (v) the Board of Directors of the Company shall have approved the transactions contemplated hereby; and (vi) with respect to the First Closing, the Company, the Sellers and the Escrow Agent shall have entered into the Escrow Agreement. 7. Conditions Precedent to the Obligation of the Sellers to Close. The obligation of the Sellers to enter into and complete each of the Closings is subject, at the option of the Sellers acting in accordance with the provisions of Article 8 with respect to termination of this Agreement, to the fulfillment on or prior to each of the Closing Dates of the following conditions, which may be waived by the Sellers: (i) the representations and warranties of the Company contained in this Agreement shall be true on and as of such Closing Date with the same force and effect as though made on and as of each such Closing Date; (ii) the Company shall have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by it on or prior to each such Closing Date; (iii) the Company shall have delivered to the Sellers a certificate, dated such Closing Date and signed by an officer of the Company, to the effect of clauses (i) and (ii); (iv) with respect to the First Closing, the Company, the Sellers and the Escrow Agent shall have entered into the Escrow Agreement; and (v) there shall not exist any injunction, court order, law, or other governmental action prohibiting or restraining the consummation of the transaction. 8. Termination of Agreement. 8.1. Termination. (i) This Agreement may be terminated prior to the First Closing as follows: (a) subject to subsection (d) below, at the election of the Sellers if the conditions to the obligation of the Sellers to close set forth in Article 7 have not been fulfilled as of August 31, 1999; (b) subject to subsection (d) below, at the election of the Company, if the conditions to the obligation of the Company to close set forth in Article 6 have not been fulfilled as of August 31, 1999; (c) at any time on or prior to the First Closing Date, by mutual written consent of the Sellers and the Company; and (d) in the event the Closing has not occurred because the condition contained in Section 6(iv) and 7(v) has not been satisfied, the date in subsections (a) and (b) shall be extended to September 30, 1999. (ii) This Agreement may be terminated prior to the first anniversary of the First Closing Date as follows: (a) subject to subsection (d) below, at the election of the Sellers if the conditions to the obligation of the Sellers to close set forth in Article 7 have not been fulfilled as of the first anniversary of the First Closing Date; (b) subject to subsection (d) below, at the election of the Company, if the conditions to the obligation of the Company to close set forth in Article 6 (other than Clause v thereof) have not been fulfilled as of the first anniversary of the First Closing Date; (c) at any time on or prior to the first anniversary of the First Closing Date, by mutual written consent of the Sellers and the Company; and (d) in the event the Closing has not occurred because the condition contained in Section 6(iv) and 7(v) has not been satisfied, the date in subsections (a) and (b) shall be extended by one month. (iii) This Agreement may be terminated prior to the second anniversary of the First Closing Date as follows: (a) subject to subsection (d) below, at the election of the Sellers if the conditions to the obligation of the Sellers to close set forth in Article 7 have not been fulfilled as of the second anniversary of the First Closing Date; (b) subject to subsection (d) below, at the election of the Company, if the conditions to the obligation of the Company to close set forth in Article 6 (other than Clause v thereof) have not been fulfilled as of the second anniversary of the First Closing Date; (c) at any time on or prior to the second anniversary of the First Closing Date, by mutual written consent of the Sellers and the Company; and (d) in the event the Closing has not occurred because the condition contained in Section 6(iv) and 7(v) has not been satisfied, the date in subsections (a) and (b) shall be extended by one month. If this Agreement so terminates, it shall become null and void and have no further force or effect, except as provided in Section 8.2. 8.2. Survival After Termination. If this Agreement terminates pursuant to Section 8.1 and the Contemplated Transactions are not consummated, this Agreement shall become null and void and have no further force or effect, except that any such termination shall be without prejudice to the rights of any party on account of the nonsatisfaction of the conditions set forth in Articles 6 and 7 resulting from the intentional or willful breach or violation of the representations, warranties, covenants or agreements of another party under this Agreement. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 5.2 and 5.3, this Section 8.2 and Article 9 shall survive any termination of this Agreement. 9. Miscellaneous. 9.1. Consent to Jurisdiction and Service of Process. Any Claim arising out of or relating to this Agreement or the transactions contemplated hereby may be instituted in any Federal court of the Southern District of New York or any state court located in New York County, State of New York, and each party agrees not to assert, by way of motion, as a defense or otherwise, in any such claim, any claim that it is not subject personally to the jurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the jurisdiction of such court in any such claim. Each Seller hereby appoints Ferrell Schultz Carter & Fertel, P.A. (the "Agent"), at the Agent's offices of 201 South Biscayne Blvd., Miami, Florida 33131, or its office at such other address in New York, New York, as it hereafter furnishes to the other parties, as such party's authorized agent to accept and acknowledge on such party's behalf service of any and all process that may be served in any such claim. Any and all service of process and any other notice in any such claim shall be effective against any party if given personally or by registered or certified mail, return receipt requested, or by any other means of mail that requires a signed receipt, postage prepaid, mailed to such party as herein provided[, or by personal service on the Agent with a copy of such process mailed to such party by first class mail or registered or certified mail, return receipt requested, postage prepaid]. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction. 9.2. Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, sent by facsimile transmission or sent by certified, registered or express mail or by a reputable courier service, postage prepaid. Any such notice shall be deemed given when so delivered personally, or sent by facsimile transmission or, if mailed, five days after the date of deposit in the United States mails, as follows: (i) if to the Company, to Triarc Companies, Inc., 280 Park Avenue, New York, NY 10017, Attention: Brian Schorr, Esq., telephone (212) 451-3045, facsimile (212) 451-3216, with a copy to Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York 10019-6064, Attention: Neale Albert, Esq., telephone (212) 373-3000, facsimile (212) 757-3990; (ii) if to Security Management Corp., to it at 6917 Collins Avenue, Miami Beach, Florida 33141, Attention: Dave Weychert, CFO, telephone: (305) 866-7272, facsimile: (305) 868-6817, with a copy to Victor Posner, 6917 Collins Avenue, Miami Beach, Florida 33141, facsimile: (305) 935-6575, and (iii) if to the Victor Posner Trust No. 6 to it at 6917 Collins Avenue, Miami Beach, Florida 33141, Attention: Victor Posner, facsimile: (305) 935-6575, with a copy to Security Management Corp., 6917 Collins Avenue, Miami Beach, Florida 33141, Attention: Dave Weychert, CFO, telephone: (305) 866-7272, facsimile: (305) 868-6817. Any party may by notice given in accordance with this Section to the other parties designate another address or person for receipt of notices hereunder. 9.3. Entire Agreement. This Agreement and the Escrow Agreement contain the entire agreement among the parties with respect to the purchase of the Shares and supersede all prior agreements (including, without limitation, the Stock Purchase Agreement which is expressly amended and restated hereby) other than the Settlement Agreement, dated as of January 9, 1995 among the parties hereto and Victor Posner, (the "Settlement Agreement"), written or oral, with respect thereto. In the event the terms and conditions of this Agreement shall conflict with the terms and conditions of the Settlement Agreement, the terms and conditions of this Agreement shall govern. 9.4. Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the Company and the Sellers or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity. The rights and remedies of any party based upon, arising out of or otherwise in respect of any inaccuracy in or breach of any representation, warranty, covenant or agreement contained in this Agreement or any documents delivered pursuant to this Agreement shall in no way be limited by the fact that the act, omission, occurrence or other state of facts upon which any claim of any such inaccuracy or breach is based may also be the subject matter of any other representation, warranty, covenant or agreement contained in this Agreement or any documents delivered pursuant to this Agreement (or in any other agreement between the parties) as to which there is no inaccuracy or breach. 9.5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 9.6. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and legal representatives. This Agreement is not assignable except by operation of law, except that the Company may assign its rights hereunder to any of its affiliates, to any successor to all or substantially all of its business or assets or to any bank or other financial institution that may provide financing for the transactions contemplated thereby. 9.7. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto. This Agreement shall be null and void ab initio unless each of the parties execute and deliver this agreement to the other parties by 6:15 p.m. New York time on the date hereof. 9.8. Exhibits and Schedules. The Exhibits and Schedules are a part of this Agreement as if fully set forth herein and all references to this Agreement shall be deemed to include the Exhibits and Schedules. All references herein to Sections, Exhibits and Schedules shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. 9.9. Headings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this Agreement. 9.10. Interpretation. The parties acknowledge and agree that: (i) each party and its counsel reviewed and negotiated the terms and provisions of this Agreement and have contributed to its revision; (ii) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement; and (iii) the terms and provisions of this Agreement shall be construed fairly as to all parties hereto, regardless of which party was generally responsible for the preparation of this Agreement. 9.11. Fees of Legal Disputes. In the event of a legal dispute between the Company and either or both of the Sellers under this Agreement, upon the final non-appealable judgment by a court of competent jurisdiction, the prevailing party's fees and expenses with respect to such legal dispute shall be paid by the nonprevailing party. 9.12. Severability of Provisions. (a) If any provision or any portion of any provision of this Agreement shall be held invalid or unenforceable, the remaining portion of such provision and the remaining provisions of this Agreement shall not be affected thereby. (b) If the application of any provision or any portion of any provision of this Agreement to any person or circumstance shall be held invalid or unenforceable, the application of such provision or portion of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. BUYER: TRIARC COMPANIES, INC. By: BRIAN L. SCHORR -------------------------------- Name: Brian L. Schorr Title: Executive Vice President SELLERS: SECURITY MANAGEMENT CORP. By: DAVID WEYCHERT -------------------------------- Name: David Weychert Title: Chief Financial Officer VICTOR POSNER TRUST NO. 6 By: VICTOR POSNER -------------------------------- Name: Victor Posner Title: Trustee Summary of Omitted Exhibit Exhibit: A - Form of Escrow Agreement The Registrant hereby agrees to furnish supplementally a copy of any omitted exhibit to the Securities and Exchange Commission upon its request. EX-99.1 3 PRESS RELEASE 8/19/99 EXHIBIT 99.1 FOR IMMEDIATE RELEASE CONTACT: Anne A. Tarbell (212) 451-3030 www.triarc.com TRIARC TO PURCHASE 6.0 MILLION CLASS B COMMON SHARES VICTOR POSNER AFFILIATES TO IMMEDIATELY SELL ONE-THIRD OF TRIARC STAKE TO COMPANY FOR $20.44 PER SHARE REMAINING 4.0 MILLION SHARES TO BE PURCHASED OVER A TWO YEAR PERIOD NEW YORK, NY, AUGUST 19, 1999 -- Triarc Companies, Inc. (NYSE: TRY) announced today that its Board of Directors has unanimously approved a definitive agreement whereby the Company will purchase for cash all of the 5,997,622 outstanding, non-voting Triarc Class B common shares held by Victor Posner affiliates in three separate transactions, at prices ranging from $20.44 to $21.93 per share, over a two year period. Mr. Posner and his affiliates originally obtained non-voting shares of Triarc when Mr. Posner sold a controlling stake in Triarc's predecessor company to Nelson Peltz, Triarc's Chairman and CEO, and Peter W. May, Triarc's President and COO, in April 1993. Commenting on today's announcement, Nelson Peltz, said: "We believe the purchase of all of the Class B common shares from Mr. Posner represents an important strategic step for Triarc on terms which are attractive to our shareholders. The transaction will greatly simplify Triarc's ownership and capital structure. We will also preserve the Company's financial flexibility as the purchases can occur over a two year period." Triarc has approximately 25.6 million shares of common stock (including the Class B common shares) currently outstanding. The definitive agreement to purchase Mr. Posner's approximate 6.0 million Class B common shares equates to approximately 24% of currently outstanding common shares. Under the terms of the definitive purchase agreement, the Class B common shares will be purchased in three separate transactions, for an aggregate purchase price of approximately $127 million. The first transaction will constitute the purchase of approximately 2.0 million shares at $20.44 per share and is expected to close as early as today or within the next few business days. The two subsequent transactions will both involve approximately 2.0 million shares at per share prices of $21.18 and $21.93, respectively. The closing dates for these transactions will be on or before the first and second anniversaries of the first transaction's closing date, subject to extension in certain limited circumstances. Triarc may accelerate the purchase of the remaining Class B common shares, pursuant to the terms and conditions of the definitive purchase agreement. Triarc is a leading premium beverage company (Snapple(R), Mistic(R), Stewart's(R)), a restaurant franchisor (Arby's(R), T.J. Cinnamons(R) and Pasta Connection(TM)) and a producer of soft drink concentrates (Royal Crown(R), Diet Rite(R), Nehi(R)). # # # Note To Follow NOTE TO PRESS RELEASE The statements in this press release that are not historical facts, including most importantly, those statements preceded by, followed by, or that include the words "may", "believes", "expects", "anticipates" or the negation thereof, or similar expressions, constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve risks, uncertainties and other factors which may cause the actual results, performance or achievements of Triarc Companies, Inc. (the "Company") and its subsidiaries to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. There can be no assurance that the purchase of the Class B common shares will be consummated. In addition, such factors include, but are not limited to, the following: competition, including product and pricing pressures; success of operating initiatives; the ability to attract and retain customers; development and operating costs; advertising and promotional efforts; brand awareness; the existence or absence of adverse publicity; market acceptance of new product offerings; new product and concept development by competitors; changing trends in customer tastes; the success of multi-branding; availability, location and terms of sites of restaurant development by franchisees; the ability of franchisees to open new restaurants in accordance with their development commitments; changes in business strategy or development plans; quality of management; business abilities and judgement of personnel; availability of qualified personnel; labor and employee benefit costs; availability and cost of raw materials and supplies; the success of the Company in identifying systems and programs that are not Year 2000 compliant; unexpected costs associated with Year 2000 compliance or the business risk associated with Year 2000 non-compliance by customers and/or suppliers; general economic, business and political conditions in the countries and territories in which the Company operates, including the ability to form successful strategic business alliances with local participants; changes in, or failure to comply with, government regulations (including accounting standards, environmental laws and taxation requirements); the costs and other effects of legal and administrative proceedings; the impact of general economic conditions on consumer spending; and other risks and uncertainties detailed in other current and periodic filings by Triarc with the Securities and Exchange Commission. Triarc will not undertake and specifically declines any obligation to publicly release the result of any revisions which may be made to any forward-looking statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events. In addition, it is Triarc's policy generally not to make any specific projections as to future earnings, and Triarc does not endorse any projections regarding future performance that may be made by third parties. EX-99.2 4 PRESS RELEASE 8/19/99(2) EXHIBIT 99.2 FOR IMMEDIATE RELEASE CONTACT: Anne A. Tarbell (212) 451-3030 www.triarc.com TRIARC COMPLETES PURCHASE OF 2.0 MILLION CLASS B COMMON SHARES VICTOR POSNER AFFILIATES SELL ONE-THIRD OF TRIARC STAKE TO COMPANY FOR $20.44 PER SHARE REMAINING 4.0 MILLION SHARES TO BE PURCHASED OVER A TWO YEAR PERIOD NEW YORK, NY, AUGUST 19, 1999 -- Triarc Companies, Inc. (NYSE: TRY) announced today that the Company purchased 1,999,208 non-voting Triarc Class B common shares held by affiliates of Victor Posner at a per share price of $20.44, for a total purchase price of approximately $41 million. Under the terms of the definitive purchase agreement, which was unanimously approved by Triarc's Board of Directors, the remaining Class B common shares will be purchased in two separate subsequent transactions of approximately 2.0 million shares each, at per share prices of $21.18 and $21.93, respectively, for an aggregate value of approximately $86 million. The closing dates for these subsequent transactions will be on or before the first and second anniversaries of the first transaction's closing date (i.e. August 19, 1999), subject to extension in certain limited circumstances. Triarc may accelerate the purchase of the remaining approximate 4.0 million Class B common shares, pursuant to the terms and conditions of the definitive purchase agreement. Triarc has approximately 23.6 million shares of common stock (including the remaining approximate 4.0 million Class B common shares) currently outstanding. Triarc is a leading premium beverage company (Snapple(R), Mistic(R), Stewart's(R)), a restaurant franchisor (Arby's(R), T.J. Cinnamons(R) and Pasta Connection(TM)) and a producer of soft drink concentrates (Royal Crown(R), Diet Rite(R), Nehi(R)). # # # Note To Follow NOTE TO PRESS RELEASE The statements in this press release that are not historical facts, including most importantly, those statements preceded by, followed by, or that include the words "may", "believes", "expects", "anticipates" or the negation thereof, or similar expressions, constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve risks, uncertainties and other factors which may cause the actual results, performance or achievements of Triarc Companies, Inc. (the "Company") and its subsidiaries to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. There can be no assurance that the purchase of the Class B common shares will be consummated. In addition, such factors include, but are not limited to, the following: competition, including product and pricing pressures; success of operating initiatives; the ability to attract and retain customers; development and operating costs; advertising and promotional efforts; brand awareness; the existence or absence of adverse publicity; market acceptance of new product offerings; new product and concept development by competitors; changing trends in customer tastes; the success of multi-branding; availability, location and terms of sites of restaurant development by franchisees; the ability of franchisees to open new restaurants in accordance with their development commitments; changes in business strategy or development plans; quality of management; business abilities and judgement of personnel; availability of qualified personnel; labor and employee benefit costs; availability and cost of raw materials and supplies; the success of the Company in identifying systems and programs that are not Year 2000 compliant; unexpected costs associated with Year 2000 compliance or the business risk associated with Year 2000 non-compliance by customers and/or suppliers; general economic, business and political conditions in the countries and territories in which the Company operates, including the ability to form successful strategic business alliances with local participants; changes in, or failure to comply with, government regulations (including accounting standards, environmental laws and taxation requirements); the costs and other effects of legal and administrative proceedings; the impact of general economic conditions on consumer spending; and other risks and uncertainties detailed in other current and periodic filings by Triarc with the Securities and Exchange Commission. Triarc will not undertake and specifically declines any obligation to publicly release the result of any revisions which may be made to any forward-looking statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events. In addition, it is Triarc's policy generally not to make any specific projections as to future earnings, and Triarc does not endorse any projections regarding future performance that may be made by third parties. -----END PRIVACY-ENHANCED MESSAGE-----