-----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, MMEmQBBqtsLE2cVe7rkgYth2st9RDZPyQq+KSaxNFJAfI8j+X5yRikTMZptVaDoF 9ex2Qro/Jwwjr+oSZmebZw== 0000950142-04-002281.txt : 20040629 0000950142-04-002281.hdr.sgml : 20040629 20040629165656 ACCESSION NUMBER: 0000950142-04-002281 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040629 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: 04889101 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 sc13da18-dwg.txt AMENDMENT NO. 18 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________________ SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 18)* _______________________ 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) _______________________ June 26, 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 10 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DWG ACQUISITION GROUP, L.P. - -------------------------------------------------------------------------------- 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 Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER (See Item 5) -0- -------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER (See Item 5) SHARES BENEFICIALLY OWNED 6,024,662 (Class A Common Stock) BY EACH REPORTING 4,763,434 (Class B Common Stock) PERSON -------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER (See Item 5) -0- -------------------------------------------------- 10 SHARED DISPOSITIVE POWER (See Item 5) 6,024,662 (Class A Common Stock) 4,763,434 (Class B Common Stock) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 6,024,662 (Class A Common Stock) 4,763,434 (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) 29.8% (Class A Common Stock) 11.8% (Class B Common Stock) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 3 of 10 - -------------------------------------------------------------------------------- 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) 3,014,036 (Class A Common Stock) 5,886,188 (Class B Common Stock) -------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER (See Item 5) SHARES BENEFICIALLY OWNED 6,024,662 (Class A Common Stock) BY EACH REPORTING 4,763,434 (Class B Common Stock) PERSON -------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER (See Item 5) 3,014,036 (Class A Common Stock) 5,886,188 (Class B Common Stock) -------------------------------------------------- 10 SHARED DISPOSITIVE POWER (See Item 5) 6,024,662 (Class A Common Stock) 4,763,434 (Class B Common Stock) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 9,038,698 (Class A Common Stock) 10,649,622 (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) 41.6% (Class A Common Stock) 24.5% (Class B Common Stock) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 4 of 10 - -------------------------------------------------------------------------------- 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) 1,900,168 (Class A Common Stock) 3,705,746 (Class B Common Stock) -------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER (See Item 5) SHARES BENEFICIALLY OWNED 6,024,662 (Class A Common Stock) BY EACH REPORTING 4,763,434 (Class B Common Stock) PERSON -------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER (See Item 5) 1,900,168 (Class A Common Stock) 3,705,746 (Class B Common Stock) -------------------------------------------------- 10 SHARED DISPOSITIVE POWER (See Item 5) 6,024,662 (Class A Common Stock) 4,763,434 (Class B Common Stock) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 7,924,830 (Class A Common Stock) 8,469,180 (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) 37.5% (Class A Common Stock) 20.0% (Class B Common Stock) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 5 of 10 - -------------------------------------------------------------------------------- AMENDMENT NO. 18 TO SCHEDULE 13D This Amendment No. 18 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 and as amended by Amendment No. 17 dated April 26, 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 and 17, 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 6 of 10 - -------------------------------------------------------------------------------- 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: As disclosed by the Company, on June 26, 2004, the Company entered into a Purchase Agreement (the "Deerfield Purchase Agreement") with Sachs Capital Management LLC, Deerfield Partners Fund II LLC, Scott A. Roberts and Marvin Shrear (collectively, the "Deerfield Sellers"), pursuant to which, inter alia, the Company agreed to purchase from the Deerfield Sellers, upon the terms and subject to the conditions set forth therein, approximately 63.6% of the membership interests in Deerfield & Company LLC ("Deerfield"). In connection with the transactions contemplated by the Deerfield Purchase Agreement, Deerfield and Deerfield Capital Management LLC, a wholly owned subsidiary of Deerfield ("DCM"), entered into an Employment Agreement with Gregory H. Sachs, the Chairman and Chief Executive Officer of Deerfield (the "Sachs Employment Agreement"), to become effective and subject to the consummation of the transactions contemplated by the Deerfield Purchase Agreement. Pursuant to the Sachs Employment Agreement, Mr. Sachs is entitled to, among other things, an annual bonus based on the EBITDA (as defined therein) of Deerfield and its consolidated subsidiaries during the applicable fiscal year, subject to adoption by the Company's stockholders of an amendment to the Company's 1999 Executive Bonus Plan (the "Amendment"). In connection with the transactions contemplated by the Deerfield Purchase Agreement, Messrs. Peltz and May entered into a Voting Agreement, dated as of June 26, 2004 (the "Sachs Voting Agreement") with Mr. Sachs. - -------------------------------------------------------------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 7 of 10 - -------------------------------------------------------------------------------- Pursuant to the Sachs Voting Agreement, Messrs. Peltz and May agreed to vote, or to cause their respective affiliates and certain family members to vote, on the terms and subject to the conditions set forth therein, at the next annual or special meeting of the Company's stockholders, all shares of Class A Common Stock and Class B Common Stock beneficially owned by them and their respective family members or affiliates, as the case may be, in favor of the adoption of the Amendment. The descriptions of the provisions of the Sachs Voting Agreement contained herein are qualified in their entirety by the actual terms of such Sachs Voting Agreement, a copy of which is filed as Exhibit 28 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 8 of 10 - -------------------------------------------------------------------------------- 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: June 29, 2004 DWG ACQUISITION GROUP, L.P. By: /s/ Nelson Peltz ----------------------- Name: Nelson Peltz Title: General Partner By: /s/ Peter W. May ----------------------- Name: Peter W. May Title: General Partner /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 9 of 10 - -------------------------------------------------------------------------------- Exhibit Index -------------
Exhibit Description Page No. ------- ----------- -------- 1 Stock Purchase Agreement dated as of October 1, 1992 by Filed with Original and between the Purchaser, Posner, Posner Trust and Statement Security Management. 2 Exchange Agreement dated as of October 12, 1992 between Filed with Original the Company andSecurity Management. Statement 3 Agreement dated as of October 1, 1992 between the Filed with Original Company and the Purchaser. Statement 4 Agreement of Limited Partnership of the Purchaser dated as Filed with Original of September 25, 1992. Statement 5 Joint Filing Agreement of the Purchaser, Peltz and May. Filed with Amendment No. 14 6 Memorandum of Understanding, dated January 21, 1993, by Filed with and between the Purchaser and William A. Ehrman, Amendment No. 2 individually and derivatively on behalf of SEPSCO. 7 Letter dated January 25, 1993 from Steven Posner to the Filed with Purchaser (including proposed terms and conditions of Amendment No. 2 Consulting Agreement to be entered into between the Company and Steven Posner). 8 Undertaking and Agreement, dated February 9, 1993, Filed with executed by the Purchaser. Amendment No. 3 9 Amendment No. 3 dated as of April 14, 1993 to Agreement Filed with of Limited Partnership of the Purchaser. Amendment No. 4 10 Citibank Loan Documents (Exhibits and Schedule omitted). Filed with Amendment No. 4 11 Republic Loan Documents (Exhibits and Schedules omitted). Filed with Amendment No. 4 12 Pledge and Security Agreement, dated as of April 5, 1993, Filed with between the Purchaser and Citibank. Amendment No. 5 13 Custodial Loan Documents. Filed with Amendment No. 5 14 Agreement, dated May 2, 1994 among Nelson Peltz, Filed with Peter W. May and Leon Kalvaria. Amendment No. 6 15 Amended and Restated Pledge and Security Agreement, Filed with dated as of July 25, 1994 between the Purchaser and Amendment No. 6 Citibank.
- -------------------------------------------------------------------------------- Class A Common Stock: CUSIP NO. 895927 10 1 Class B Common Stock: CUSIP NO. 895927 30 9 Page 10 of 10 - --------------------------------------------------------------------------------
Exhibit Description Page No. ------- ----------- -------- 16 Amendment No. 1 dated as of November 15, 1992 to Filed with Agreement of Limited Partnership of the Purchaser. Amendment No. 7 17 Amendment No. 2 dated as of March 1, 1993 to Agreement Filed with of Limited Partnership of the Purchaser. Amendment No. 7 18 Amendment No. 4 dated a January 1, 1995 to Agreement of Filed with Limited Partnership of the Purchaser. Amendment No. 7 19 Amendment No. 5 dated as of January 1, 1996 to Filed with Agreement of Limited Partnership of the Purchaser. Amendment No. 7 20 BOA Loan documents (Exhibits and Schedules omitted). Filed with Amendment No. 7 21 Letter, dated October 12, 1998, from Messrs. Nelson Peltz Filed with and Peter W. May to the Company. Amendment No. 8 22 Press release, issued by the Company, dated October 12, Filed with 1998. Amendment No. 8 23 Letter, dated October 12, 1998, from the Company to Filed with Messrs. Nelson Peltz and Peter W. May. Amendment No. 8 24 Press release issued by the Company, dated March 10, Filed with 1999. Amendment No. 9 25 Amended and Restated Agreement of Limited Partnership Filed with of the Purchaser, amended and restated as of November 11, Amendment No. 11 2002. 26 Pledge Agreement dated April 2, 2001, made by Peltz Filed with Family Limited Partnership, in favor of Bank of America, Amendment No. 13 N.A. 27 Pledge and Security Agreement dated April 2, 2003, made Filed with by Peter W. May, in favor of Bank of America, N.A. Amendment No. 13 (Schedule II omitted). 28 Voting Agreement, dated June 26, 2004, by and among Filed herewith Messrs. Nelson Peltz, Peter W. May and Gregory H. Sachs.
EX-99 2 ex28_sc13da18-dwg.txt EXHIBIT 28 EXHIBIT 28 ---------- EXECUTION COPY VOTING AGREEMENT VOTING AGREEMENT (this "Agreement") dated June 26, 2004, by and among NELSON PELTZ ("Peltz"), PETER W. MAY ("May") and GREGORY H. SACHS ("Sachs"). Peltz and May are sometimes each referred to herein as a "Stockholder". RECITALS WHEREAS, Triarc Companies, Inc., a Delaware corporation ("Triarc"), Sachs Capital Management LLC, Scott A. Roberts, Deerfield Partners Fund II LLC, Marvin Shrear and Sachs are parties to that certain Purchase Agreement, dated as of the date hereof (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), relating to the sale of certain membership interests in Deerfield & Company LLC ("D&C") to Triarc; WHEREAS, in connection with the transactions contemplated by the Purchase Agreement, on the date hereof Sachs has entered into an employment agreement (the "Employment Agreement") with D&C and Deerfield Capital Management LLC, which Employment Agreement shall become effective upon the Closing (as defined in the Purchase Agreement); and WHEREAS, as an inducement to Sachs to enter into the Employment Agreement, the Stockholders agree to take the actions specified herein on the terms and conditions set forth below; NOW, THEREFORE, in consideration of the mutual agreements set forth herein and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I VOTING 1.1 Agreement to Vote. In order to induce Sachs to enter into the Purchase Agreement and the Employment Agreement, each Stockholder agrees that he shall, and shall cause the record holder thereof to, at any meeting of Triarc's stockholders at which such matter is presented, vote all outstanding Shares (as defined below) "beneficially owned" (as defined in Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Act")) as of such date by such Stockholder or any of his Family Members or Affiliates (as such terms are defined below) and entitled to vote thereon in favor of the approval of the Additional Bonus (as defined in the Employment Agreement). As used in this Agreement, "Shares" shall mean the shares of Class A Common Stock, par value $0.10 per share, of Triarc, and shares of Class B Common 2 Stock, par value $0.10 per share, of Triarc; "Family Members" shall mean as to any Stockholder, such Stockholder's spouse or minor children; and "Affiliate" shall have the meaning set forth in Rule 12b-2 of the General Rules and Regulations under the Act. ARTICLE II REPRESENTATIONS AND WARRANTIES Each Stockholder, severally and not jointly, represents and warrants to Sachs as follows: 2.1 Power. Such Stockholder has the requisite legal capacity to execute and deliver this Agreement, to perform his obligations hereunder and to consummate the transactions contemplated hereby. 2.2 Enforceability. This Agreement has been duly executed and delivered by such Stockholder and constitutes a legal, valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms. 2.3 Ownership. As of the date set forth therein, the Stockholders beneficially own the number of Shares disclosed as beneficially owned by them in Amendment No.17 to the Schedule 13-D filed by the Stockholders relating to Triarc. ARTICLE III MISCELLANEOUS 3.1 Effectiveness; Termination. This Agreement shall not become effective unless the Closing (as defined in the Purchase Agreement) has occurred. Upon the earlier of (i) a termination of the Purchase Agreement pursuant to Article X of the Purchase Agreement or (ii) the first date following the 2005 Annual Meeting of Triarc's stockholders, if the Stockholders have been in material compliance with the terms of this Agreement and Triarc has materially complied with its obligations under the Purchase Agreement concerning the seeking of stockholder approval of the Additional Bonus and retaining a proxy solicitation firm to solicit proxies in favor of such approval, this Agreement shall automatically be terminated and be of no force or effect without any of the parties hereto being required to take any action. 3.2 Notices. Any notice, request, instruction or other communication under this Agreement shall be in writing and delivered by hand or overnight courier service or by facsimile: To a Stockholder: Triarc Companies, Inc. 280 Park Avenue New York, New York 10017 3 Attn: Brian L. Schorr, Esq. Facsimile No.: (212) 451-3216 To Sachs: Deerfield & Company LLC 8700 West Bryn Mawr Avenue 12th Floor Chicago, IL 60631 Attn: Gregory H. Sachs Facsimile No.: (773) 380-1631 or to such other persons, addresses or facsimile numbers as may be designated in writing by the person entitled to receive such communication as provided above. Each such communication shall be effective (a) if delivered by hand, when such delivery is made at the address specified in this Section 3.2, (b) if delivered by overnight courier service, the next business day after such communication is sent to the address specified in this Section 4.2, or (c) if delivered by facsimile, when such facsimile is transmitted to the facsimile number specified in this Section 3.2 and appropriate confirmation is received. 3.3 Transferees, Successors and Assigns; Third Party Beneficiaries. Except for transfers to Family Members or Affiliates, either Stockholder may sell, give, assign or otherwise dispose of (whether by operation of law or otherwise) any and all Shares free and clear of the rights and obligations of this Agreement. No individual or entity other than the parties hereto is intended to be a beneficiary of this Agreement. 3.4 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, May and Sachs. 3.5 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 3.6 Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 3.7 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. 3.8 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. 3.9 Rules of Construction. Unless the context otherwise requires, references to sections or subsections refer to sections or subsections of this Agreement. 3.10 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. 3.11 Remedies. Except as otherwise provided in this Agreement, any and all remedies expressly conferred upon a party shall be cumulative with and not exclusive of any other remedy conferred in this Agreement, at law or in equity, and the exercise by a party of any one remedy shall not preclude the exercise of any other remedy. 3.12 Specific Performance. The parties to this Agreement agree that irreparable damage would occur in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. 3.13 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 /s/ Gregory H. Sachs ----------------------------------- GREGORY H. SACHS -----END PRIVACY-ENHANCED MESSAGE-----