-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, j4tJ8xNzTFfzQSwmrTQ1DPwhREU6jfeg5+A43+iz+M24TKfDo7hu3cS+/gpBwvtF MDfBV+BXMs40Kad5IdvMuQ== 0000950142-95-000015.txt : 19950607 0000950142-95-000015.hdr.sgml : 19950607 ACCESSION NUMBER: 0000950142-95-000015 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19950126 SROS: NONE 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: BROADWOVEN FABRIC MILLS, COTTON [2211] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-11818 FILM NUMBER: 95503212 BUSINESS ADDRESS: STREET 1: 900 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 4076534000 MAIL ADDRESS: STREET 1: 900 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DWG ACQUISITION GROUP L P CENTRAL INDEX KEY: 0000928266 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 380471180 FILING VALUES: FORM TYPE: SC 13D 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 1 FORM SC 13D This document was originally filed on 9/1/94. However, the Subject- Company and Filer tags in the header were inadvertently switched. This filing is an exact copy of the document filed on 9/1/94 except for the corrected information in the header. UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 6) Triarc Companies, Inc. (formerly known as DWG Corporation) (Name of Issuer) Class A Common Stock, Par Value $.10 per share (Title of Class of Securities) 895927 10 1 (CUSIP Number) Peter W. May c/o Triarc Companies, Inc. 900 Third Avenue New York, N.Y. 10022 Tel. No.: (212) 230-3000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 12, 1994 (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 statement because of Rule 13d-1(b)(3) or (4), check the following box. Check the following box if a fee is being paid with the statement. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7). Note: Six copies of this statement, including all exhibits, should be filed with the Commission. 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). SCHEDULE 13D CUSIP No. 895927 10 1 Page 2 of Pages 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 See Item 3 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 NUMBER OF 7 SOLE VOTING POWER SHARES -0- (See Item 5) BENEFICIALLY OWNED BY EACH REPORTING 8 SHARED VOTING POWER PERSON 5,982,867 (See Item 5) WITH 9 SOLE DISPOSITIVE POWER -0- (See Item 5) 10 SHARED DISPOSITIVE POWER 5,982,867 (See Item 5) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,982,867 (See Item 5) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.9% (See Item 5) 14 TYPE OF REPORTING PERSON PN SCHEDULE 13D CUSIP No. 895927 10 1 Page 3 of Pages 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 See Item 3 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 200,100 (See Item 5) NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED 5,982,867 (See Item 5) BY EACH REPORTING PERSON 9 SOLE DISPOSITIVE POWER WITH 200,100 (See Item 5) 10 SHARED DISPOSITIVE POWER 5,982,867 (See Item 5) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,182,967 (See Item 5) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.5% (See Item 5) 14 TYPE OF REPORTING PERSON IN SCHEDULE 13D CUSIP No. 895927 10 1 Page 4 of Pages 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 See Item 3 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 NUMBER OF 7 SOLE VOTING POWER SHARES 133,333 (See Item 5) BENEFICIALLY OWNED BY EACH REPORTING 8 SHARED VOTING POWER PERSON 5,982,867 (See Item 5) WITH 9 SOLE DISPOSITIVE POWER 133,333 (See Item 5) 10 SHARED VOTING POWER 5,982,867 (See Item 5) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,116,200 (See Item 5) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.3% (See Item 5) 14 TYPE OF REPORTING PERSON IN CUSIP NO.: 895927 10 1 Page 5 AMENDMENT NO. 6 TO SCHEDULE 13D This Amendment No. 6 amends and restates in its entirety the Schedule 13D dated October 13, 1992 (the "Original Statement"), as amended by Amendment No. 1 dated January 7, 1993 and Amendment No. 2 dated January 28, 1993, as amended and restated by the Amended and Restated Schedule 13D dated March 22, 1993, and as amended by Amendment No. 4 dated May 3, 1993 and Amendment No. 5 dated May 21, 1993 (the Original Statement, as so amended shall be known as the "Statement"), with respect to the Class A Common Stock (formerly Common Stock), par value $.10 per share (the "Common Stock"), of Triarc Companies, Inc., a Delaware corporation and successor by merger to Triarc Companies, Inc., an Ohio corporation formerly named DWG Corporation (the "Company"). Item 1. Security and Issuer. The security to which this Statement relates is the Common Stock. The Company's principal executive office is located at 900 Third Avenue, New York, New York 10022. Pursuant to a Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of October 1, 1992 among DWG Acquisition Group, L.P. (the "Purchaser"), Victor Posner ("Posner"), Victor Posner Trust No. 20 ("Posner Trust") and Security Management Corp. ("Security Management" and, together with Posner and the Posner Trust, the "Sellers"), CUSIP NO.: 895927 10 1 Page 6 the Purchaser purchased (the "Acquisition") an aggregate of 5,982,867 shares of Common Stock (the "Shares") from the Sellers. All of the conditions to the consummation of the transactions contemplated by the Stock Purchase Agreement were satisfied or waived on or prior to April 23, 1993 and the transactions contemplated by the Stock Purchase Agreement were consummated (the "Closing") on April 23, 1993. Item 2. Identity and Background. (a), (b), (c) and (f). This Statement is being filed by the Purchaser, a Delaware limited partnership, Nelson Peltz, a general partner of the Purchaser ("Peltz"), and Peter W. May, a general partner of the Purchaser ("May") (the Purchaser and Messrs. Peltz and May are referred to collectively herein as the "Reporting Persons"). The principal business of the Purchaser is to acquire and hold securities of the Company. The Partnership Agreement Messrs. Peltz and May, as general partners and limited partners of the Purchaser, entered into the Agreement of Limited Partnership of the Purchaser dated as of September 25, 1992, as amended (the "Partnership Agreement"). The descriptions of the provisions of the Partnership Agreement contained herein are qualified in their entirety by the actual terms of such Agreement, a copy of which is filed as Exhibits 4 and 9 and is incorporated CUSIP NO: 895927 10 1 Page 7 herein by reference. Pursuant to the Partnership Agreement, the Purchaser will dissolve on September 25, 2011, or at such earlier time as (i) either general partner shall determine in writing, (ii) the Purchaser sells or otherwise disposes of its interest in all or substantially all of its properties, (iii) an event of withdrawal of any of the general partners has occurred under the Delaware Revised Uniform Limited Partnership Act (the "Act") (unless the remaining general partner(s) elect to continue the Purchaser) or (iv) an entry of a decree of judicial dissolution has occurred under the Act. The Partnership Agreement provides that the Purchaser's profits and losses will be allocated in proportion to the capital contributions of the partners. No partner may transfer any interest in the Purchaser without the unanimous written consent of the general partners. All acts and decisions of the Purchaser, with certain limited exceptions, require the approval of both general partners. Pursuant to the Partnership Agreement, the general partners may admit additional limited partners to the Purchaser. The business address of Messrs. Peltz and May is c/o the Company, 900 Third Avenue, New York, New York 10022. The address of the principal business and the office of the Purchaser is 1201 North Market Street, Wilmington, Delaware 19801. Messrs. Peltz and May are investors and are citizens of the United States. On April 23, 1993, Messrs. Peltz and CUSIP NO: 895927 10 1 Page 8 May were elected directors of the Company. See Item 4, "Changes in the Board of Directors and Management," below. On April 24, 1993, Mr. Peltz was elected Chairman and Chief Executive Officer and Mr. May was elected President and Chief Operating Officer, of the Company. (d) and (e). During the last five years, no Reporting Person has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or adminis- trative body of competent jurisdiction and as a result of which any such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. The aggregate purchase price (the "Purchase Price") for the Shares was $71,794,404. Mr. Peltz con- tributed two-thirds of the Purchase Price to the Purchaser and Mr. May contributed one-third of the Purchase Price to the Purchaser. Of such funds, approximately $26.8 million of the amount contributed by Mr. Peltz and approximately $14.3 million of the amount contributed by Mr. May was made available to Messrs. Peltz and May through certain loans (the "Citibank Loans") made in the ordinary course of business by Citibank, N.A ("Citibank"). Approximately $21.1 CUSIP NO: 895927 10 1 Page 9 million of the amount contributed by Mr. Peltz and approxi- mately $1.7 million of the amount contributed by Mr. May was made available to Messrs. Peltz and May through certain loans (the "Republic Loans") made in the ordinary course of business by Republic National Bank of New York ("Republic"). The remaining approximately $7.9 million of the Purchase Price was contributed to the Purchaser by Mr. May from his personal funds. The Citibank Loans are demand loans bearing interest at such bank's base rate and are secured by certain assets of Messrs. Peltz and May (other than the Shares and their partnership interests in the Purchaser). As noted in Item 6, subsequent to the date of the Citibank Loans, the Purchaser delivered certain Shares on behalf of Messrs. Peltz and May to replace certain collateral originally pledged to secure the Citibank Loans. The loan documentation in connection with the Citibank Loans contains standard default and similar provisions. The documents evi- dencing the Citibank Loans are filed as Exhibit 10 hereto and are incorporated herein by reference. The Republic Loans are revolving loans bearing interest at either such bank's reference rate or a rate based upon the London interbank market rate and are secured by certain assets of Messrs. Peltz and May (other than the Shares and their partnership interests in the Purchaser). The loan documentation in connection with the Republic Loans CUSIP NO: 895927 10 1 Page 10 contains standard default and similar provisions. The documents evidencing the Republic Loans are filed as Exhibit 11 hereto and are incorporated herein by reference. On April 30, 1993, Mr. May purchased as a gift for a minor child of Mr. Peltz in an open market purchase an additional 100 shares of Common Stock at a price of $19.00 per share. Mr. Peltz disclaims beneficial ownership of such shares. The balance of the shares of stock beneficially owned by each of Messrs. Peltz and May consist of options to purchase shares of Common Stock which are exercisable within 60 days awarded to Messrs. Peltz and May pursuant to the Company's 1993 Equity Participation Plan. Item 4. Purpose of Transaction. Introduction The Purchaser purchased the Shares for the purpose of acquiring a significant equity investment in the Company. The Purchaser will continuously evaluate its ownership of the Shares and the Company's business and industry. Depending on market conditions and other factors that it may deem material to its investment decision, any of the Reporting Persons may from time to time acquire shares of Common Stock in addition to the Shares, either in the open market or in privately negotiated transactions, or may dispose of all or a portion of the Shares or any additional shares of Common Stock that such Reporting Person hereafter CUSIP NO: 895927 10 1 Page 11 may acquire. As a result of the Reporting Persons' stock ownership and Board representation in the Company and the executive positions that are held by Messrs. Peltz and May and certain of their associates with the Company (as more fully described below), the Reporting Persons are in a position to influence the management and policies of the Company. Accordingly, the Reporting Persons should not be considered to be passive investors. The Acquisition and the Exchange On October 1, 1992, the Purchaser and the Sellers entered into the Stock Purchase Agreement. The descriptions of the provisions of the Stock Purchase Agreement contained herein are qualified in their entirety by the actual terms of such Agreement, a copy of which is filed as Exhibit 1 hereto and is incorporated herein by reference. As a result of the Closing, the Purchaser owned 5,982,867 shares of Common Stock, representing approximately 24.9% of the outstanding shares of the Common Stock as of April 25, 1994 (based on the Company's Proxy Statement for the Annual Meeting of Shareholders held on June 9, 1994). See Item 5 for additional information concerning the Reporting Persons' percentage ownership. Certain Conditions to the Acquisition The consummation of the transactions contemplated by the Stock Purchase Agreement was subject to the satisfac- tion of certain conditions (unless waived as provided in the CUSIP NO: 895927 10 1 Page 12 Stock Purchase Agreement). Certain of the more significant of these conditions included: (1) the consummation by the Company of an exchange (the "Exchange") of the balance of the shares of Common Stock beneficially owned by the Sellers (after giving effect to the sale of the Shares to the Purchaser contemplated by the Stock Purchase Agreement) for 5,982,866 shares of newly-created non-voting redeemable convertible preferred stock (the "Convertible Preferred Stock") of the Company (the proposed material terms of which (including certain proposed arrangements concerning voting trust arrangements, conversion and transfer) are summarized on Schedule 6 to the Stock Purchase Agreement and are incor- porated herein by reference) pursuant to the terms of the Exchange Agreement dated as of October 1, 1992 between the Company and Security Management (the "Exchange Agreement"), a copy of which is filed as Exhibit 2 hereto and incor- porated herein by reference, (2) the refinancing of certain indebtedness of the Company and its subsidiaries on signifi- cantly improved terms and conditions (as described below), (3) the resolution of certain financial matters between the Company and its subsidiaries and the Sellers and certain of their affiliates, including the purchase by the Company of certain minority share interests (see Schedule 8 to the Stock Purchase Agreement) of Victor Posner and certain corporations which may be deemed to be affiliates of Victor Posner and certain subsidiaries of the Company (the CUSIP NO: 895927 10 1 Page 13 "Minority Share Acquisitions"), (4) the entering into of a Modification of Stipulation of Settlement (the "Modification"), as described below, which provides for, among other things, the Company having given to certain current and former directors of the Company, including Victor Posner, a release with respect to claims that have been or could have been asserted by or on behalf of the Company against such persons arising out of a certain stipulation of settlement and the orders of the District Court (as hereinafter defined) approving, interpreting or otherwise addressing the same, and an indemnity with respect to any litigation or claims by any shareholder of the Company against such individuals arising out of such stipulation or such orders including indemnification for damages, if any, and reasonable attorneys' fees as incurred to the fullest extent permitted by Ohio law, and (5) certain amendments of the Articles of Incorporation of the Company (the "Amendments") as set forth below. It was a requirement that the conditions to Closing be satisfied (or waived) on or prior to April 30, 1993 (unless such date was extended by agreement of the parties). As described above, it was also a condition to the Closing that certain financial and other matters between the Company and its subsidiaries, on the one hand, and the Sellers and certain of their affiliates, on the other hand, be resolved, including: (a) the modification of the lease CUSIP NO: 895927 10 1 Page 14 between the Company and Victor Posner Trust No. 6 (the "Lease Modification") with respect to the Company's headquarters and the forgiveness of certain past due rent and late charges owed in connection therewith (the material terms of the Lease Modification are set forth in Schedule 6 to the Stock Purchase Agreement; for additional information concerning the Lease Modification, see the Company's proxy statement (the "Proxy Statement") sent to shareholders in connection with the meeting of the Company's shareholders held to approve the Amendments), (b) the termination of employment, consulting and other similar arrangements between the Company and certain persons other than Victor Posner (the Purchaser advised the Sellers that it had agreed to waive this condition as a Closing condition), (c) the resignation of Victor Posner as a director and officer of the Company and its subsidiaries, and (d) the Minority Share Acquisitions. The Closing was further subject to the conditions that certain proceedings (the "Proceedings") pending in the United States District Court for the Northern District of Ohio, Eastern Division (the "District Court") be dismissed with prejudice, that the Modification with respect to such proceedings shall have been entered into and the District Court shall have entered an order and final judgment approving the Modification and providing for the items set forth on Schedule 7 to the Stock Purchase Agreement. CUSIP NO: 895927 10 1 Page 15 These conditions were satisfied by the issuance of an Order and Final Judgment of Dismissal and Final Order and Judgment, each dated April 21, 1993. On April 26, 1993, the District Court held a hearing confirming the occurrence of all conditions preceding the Closing and the fact of the Closing by the Purchaser. It was also a condition to the Closing (which was satisfied on April 23, 1993) that the Company and the Purchaser enter into a registration rights agreement pursuant to which the Company granted to the Purchaser (a) the right to require the Company on two occasions to file a registration statement to register any or all of the Shares under the Securities Act of 1933, as amended (the "1933 Act"), and (b) subject to certain proration provisions contained in any other registration rights agreements to which the Company is a party with respect to the demand registration rights of the parties to such agreements, the right to have any or all of the Shares included in any or all of the registration statements filed by the Company under the 1933 Act with respect to its securities (other than a registration statement on Form S-4, Form S-8 or any successor form). Immediately prior to the Closing (in satisfaction of a condition to the Closing), the Board of Directors of the Company was reconstituted to consist of the following 13 persons: Harold E. Kelley, Richard M. Kerger, Daniel R. CUSIP NO: 895927 10 1 Page 16 McCarthy, William L. Pallot, Thomas A. Prendergast, Messrs. Peltz and May, Leon Kalvaria, Irving Mitchell Felt, Russell A. Boyle, H. Douglas Kingsmore, Martin Rosen and Stephen S. Weisglass. In addition, Steven Posner resigned as a director of the Company effective upon the Closing. As required by the Stock Purchase Agreement, immediately prior to the Closing, Victor Posner resigned as Chairman of the Board, President and Chief Executive Officer and a director of the Company and as an officer and director of the Company's subsidiaries. Since the Closing, the Company has held two annual meetings of shareholders. Messrs. Pallot, Prendergast, Boyle, Kingsmore, Rosen and Weisglass no longer serve as directors of the Company. Certain Other Provisions As described above, pursuant to the Stock Purchase Agreement the Sellers sold to the Purchaser one-half of the shares of Common Stock owned by the Sellers and pursuant to the Exchange Agreement, the Sellers exchanged the remaining one-half of the shares of Common Stock owned by them for shares of Convertible Preferred Stock. Such holdings constituted all of the equity securities of the Company owned by the Sellers. The Stock Purchase Agreement also provided, among other things, that (i) subject to certain exceptions, the Purchaser will not, for a period of five years after the date of the Closing (the "Closing Date"), sell, assign or otherwise transfer any of the Shares to a CUSIP NO: 895927 10 1 Page 17 third party not affiliated with the Purchaser unless the Sellers are afforded the opportunity to sell certain of their shares of Convertible Preferred Stock (or common stock into which such Convertible Preferred Stock is converted) to such third party, (ii) after the Closing and as long as the Sellers and their affiliates, in the aggregate, are beneficial owners of equity securities of the Company representing or convertible into more than one-half of one percent of the issued and outstanding common stock of the Company, the Purchaser (a) will not vote its shares in favor of a director (other than Harold E. Kelley, Richard M. Kerger and Daniel R. McCarthy (the "New Directors")) who knowingly causes the Company to breach or vote in favor of any action that would constitute a breach of the Company's obligations under certain transactions to be entered into between the Sellers and their affiliates, on the one hand, and the Company and its affiliates, on the other hand, (b) will, in the event certain specified directors cease to be directors of the Company, vote its shares in favor of any appropriate person nominated by Steven Posner (other than Victor Posner or certain of his family members) to fill such vacancy and (c) from the Closing Date until the earlier of (x) the fifth anniversary of the Closing Date and (y) the date on which Security Management ceases to own more than 50% of the Convertible Preferred Stock issued to it in exchange for its remaining shares of Common Stock (or the CUSIP NO: 895927 10 1 Page 18 common stock of the Company that such Convertible Preferred Stock may be converted into), will, in the event certain other specified directors cease to be directors of the Company, vote its shares to fill such vacancy in favor of any person (other than Victor Posner or certain of his family members) acceptable to both the Purchaser and Steven Posner, (iii) Victor Posner will cease to be a director and officer of the Company and its subsidiaries and the Purchaser will at no time under any circumstances vote for the election of Victor Posner as a director of the Company, and Victor Posner will not accept any votes so cast for him, (iv) the Sellers will not, and will use their best efforts not to permit the Company or its subsidiaries to, directly or indirectly, solicit, seek, offer to effect, negotiate, enter into or consummate any agreements (other than the Stock Purchase Agreement) with any other person with respect to (a) the sale, assignment, transfer or other disposition of any of the Shares or other equity securities of the Company or its subsidiaries beneficially owned by the Sellers, (b) the sale, assignment, transfer or other disposition of the Company's or its subsidiaries' assets or business or any substantial part thereof, or (c) any issuance or sale of the Company's or its subsidiaries' equity securities, (v) prior to the Closing Date, the Sellers will not, without the prior written consent of the Purchaser, sell, assign, transfer, exchange or otherwise CUSIP NO: 895927 10 1 Page 19 dispose of, or grant any option with respect to, the Shares or enter into an agreement for any of the foregoing, (vi) subject to certain exceptions, for a period of seven years after the Closing Date, the Sellers and their affiliates will not acquire, directly or indirectly, record or beneficial ownership of any capital stock or other securities of the Company or its subsidiaries or affiliates, solicit proxies with respect to any capital stock or other securities of the Company or its subsidiaries or affiliates, become a participant in any election contest relating to the election of directors of the Company or its subsidiaries or affiliates or initiate or solicit shareholders of the Company or its subsidiaries or affiliates for the approval of any shareholder proposal, engage in a tender offer or exchange offer for capital stock or other securities of the Company or its subsidiaries or affiliates, take any action to obtain or change the control of the Company or its sub- sidiaries or affiliates or seek to control the management, Board of Directors or policies of the Company or its subsidiaries or affiliates, (vii) on the Closing Date, the Board of Directors of the Company will be comprised of the persons set forth on Schedule 9 to the Stock Purchase Agreement (for more information concerning the reconstitution of the Board of Directors, see "Changes in the Board of Directors and Management," below), (viii) the Articles of Incorporation of the Company will be amended CUSIP NO: 895927 10 1 Page 20 (a) to create two classes of common stock, Class A Common Stock and Class B Common Stock, to reclassify the Common Stock into Class A Common Stock and to increase the authorized number of shares of Class A Common Stock, (b) to create a new class of convertible preferred stock to be issued to Security Management in connection with the Exchange which will be convertible into Class A Common Stock or Class B Common Stock of the Company under certain conditions, (c) to create blank check preferred stock in accordance with Ohio law, (d) to eliminate cumulative voting and (e) to opt out of Section 1707.043 of the Ohio Revised Code relating to recapture of profits realized from the disposition of stock within 18 months after a proposal to acquire control of a corporation and (ix) the Company will purchase or will cause its subsidiaries to purchase the minority share interests of certain subsidiaries of the Company owned by the Sellers or their affiliates on substantially the terms set forth in Schedule 8 to the Stock Purchase Agreement. Prior to the Closing, the Articles of Incorporation of the Company were amended (and corresponding changes made to the Company's Code of Regulations) to provide for the items set forth in clause (viii) of the immediately preceding paragraph. CUSIP NO: 895927 10 1 Page 21 The DWG Agreement Concurrently with the execution of the Stock Purchase Agreement, the Company entered into an agreement with the Purchaser, a copy of which is filed as Exhibit 3 hereto and incorporated herein by reference (the "DWG Agreement"), pursuant to which the Company agreed, among other things, (i) not to, directly or indirectly, solicit, seek, offer to effect, negotiate, enter into or consummate any agreements with respect to any issuance or sale of the Company's (or any of its subsidiaries') equity securities, with certain permitted exceptions and (ii) to reimburse the Purchaser for its reasonable expenses incurred in connection with the Exchange, the Lease Modification, the Minority Share Acquisitions, the Modification, the Refinancing (as defined below), the reconstitution of the Company's Board of Directors, the offering of employment to Steven Posner and the amendments to the Company's Articles of Incorporation described above. Refinancing of Indebtedness As set forth above, it was a condition to the Closing that on or prior to the Closing Date, certain indebtedness of the Company and its subsidiaries be refinanced (the "Refinancing") on significantly improved terms and conditions. As part of the Refinancing, Royal Crown Corporation, now known as RC/Arby's Corporation ("RC/Arby's"), a subsidiary of the Company, entered into a CUSIP NO: 895927 10 1 Page 22 commitment letter with DLJ Investment, Inc., an affiliate of Donaldson, Lufkin & Jenrette ("DLJ"), and Merrill Lynch & Co. Incorporated ("Merrill Lynch") pursuant to which they or their affiliates committed to purchase in a private placement an aggregate of $225 million principal amount of senior secured notes of RC/Arby's, subject to the terms and conditions set forth in such letter. In addition, Graniteville Company ("Graniteville"), an indirect subsidiary of the Company, entered into a commitment letter with The CIT Group/Commercial Services, Inc. ("CIT") pursuant to which CIT committed to underwrite a $180 million senior secured credit facility, subject to the terms and conditions set forth in such letter. See the Proxy Statement for additional information concerning the terms of the Refinancing. Prior to the Closing, the Refinancing was consummated on substantially the terms set forth in the above-mentioned commitment letters. Equity Offering In connection with the Closing, the Company issued and sold (the "Equity Offering"), for an aggregate price of $10 million, shares of Common Stock to DLJ Capital Corporation and Merrill Lynch and related investors (collectively, the "DLJ/Merrill Lynch Investors") at a price of $12.00 per share. Such issuances and sales were conditioned upon, among other things, the Closing and the consummation of the Refinancing. However, the consummation CUSIP NO:895927 10 1 Page 23 of the Equity Offering was not a condition to the Closing or the consummation of the Refinancing. See the Proxy Statement for more information regarding the Equity Offering. In connection with the issuance of shares of Common Stock to the DLJ/Merrill Lynch Investors, the Company and the DLJ/Merrill Lynch Investors entered into registration rights agreements granting to the DLJ/Merrill Lynch Investors certain "demand" and "piggyback" registration rights with respect to the registration of such shares under the 1933 Act and that the Company will have a right of first refusal in connection with any proposed disposition of the Company's shares by the DLJ/Merrill Lynch Investors. Following the consummation of the SEPSCO Transaction (as defined below), Graniteville became an indirect wholly owned subsidiary of the Company (Graniteville was previously owned 51% by the Company with the Company owning the remaining 49% through its controlling interest in Southeastern Public Service Company ("SEPSCO")). Changes in the Board of Directors and Management As described above, the Board of Directors of the Company was reconstituted and Victor Posner resigned as Chairman of the Board, President and Chief Executive Officer and a director of the Company and as an officer and director of the Company's subsidiaries. In addition, Steven Posner, CUSIP NO: 895927 10 1 Page 24 formerly Vice Chairman and a director of the Company, resigned from such positions and as an officer and director of the Company's subsidiaries. On January 25, 1993, Steven Posner sent a letter to the Purchaser, a copy of which is filed as Exhibit 7 hereto and which is incorporated herein by reference, in which Steven Posner acknowledged that he had been offered and rejected the employment agreement referred to in the Stock Purchase Agreement and stated that he was resigning as a Director and Vice Chairman of the Company and as an officer and director of the Company's subsidiaries, effec- tive upon the Closing. Steven Posner's decision not to accept such employment was conditioned, in part, on his being offered a five-year consulting agreement (the "Consulting Agreement") with the Company providing for an initial payment of $1,000,000 at the commencement of the term of such agreement (reflecting Steven Posner's services in connection with the consummation of the transactions contemplated by the Stock Purchase Agreement and the Refinancing) and an annual consulting fee of $1,000,000 per annum, and containing such other terms and conditions as set forth on Exhibit 7 hereto. The Reporting Persons were advised that the Chairman of the Special Committee of the Company's Board of Directors approved such terms and conditions of the Consulting Agreement as well as a bonus of $700,000 for past services to the Company. Immediately CUSIP NO: 895927 10 1 Page 25 after the Closing, the Company wrote off the total amount of such payments (on a present value basis) to be made by the Company under the Consulting Agreement. Steven Posner entered into the Consulting Agreement on substantially the terms and conditions described above. Messrs. Peltz and May were elected to the positions of Chairman and Chief Executive Officer of the Company and President and Chief Operating Officer of the Company, respectively, following the Closing and Leon Kalvaria, Vice Chairman of Trian Group, Limited Partnership ("Trian"), an affiliate of the Reporting Persons, was elected a Vice Chairman of the Company. In addition, other persons who were formerly officers and employees of Trian and certain of its affiliates have been elected officers of and/or are now employed by the Company and its subsidiaries and are no longer officers and employees of Trian. Following the Closing, the position of President and Chief Executive Officer was filled at each of Arby's, Inc. ("Arby's"), Royal Crown Cola Co. ("RC Cola"), National Propane Corporation ("National Propane") and Graniteville, subsidiaries of the Company, by the following persons: Donald L. Pierce, John C. Carson, Ronald D. Paliughi and H. Douglas Kingsmore, respectively. New executive management has developed a business strategy intended to address the Company's past inability to attract strong operating management, lack of focused CUSIP NO: 895927 10 1 Page 26 advertising and marketing programs, and failure to make sufficient investments in capital projects. The key elements of this business strategy include (i) focusing the Company's resources on the four core businesses - soft drink, fast food, textiles and liquefied petroleum gas, (ii) building strong operating management teams for each of the core businesses, and permitting each of these teams to operate in a newly decentralized environment, (iii) providing strategic leadership and financial resources to enable the management teams to develop and implement specific, growth-oriented business plans and (iv) rationalizing the Company's organizational structure by eliminating minority interests and settling previously outstanding shareholder litigation. The new chief executive officers of the Company's four core businesses, three of whom came from outside the Company, have developed and begun to implement individual plans focused on increasing revenues and improving operating efficiency. In addition, the Company expects to undertake, and is actively pursuing, acquisitions and business combinations to augment the four core businesses and dispositions of the non-core businesses. The implementation of the Company's business strategy is expected to result in significant increases in expenditures for, among other things, capital projects and acquisitions and, over time, marketing and advertising. To provide liquidity to finance CUSIP NO: 895927 10 1 Page 27 these expenditures and to reduce interest costs, the Company refinanced a significant portion of its high cost debt during 1993. Settlement of Certain Legal Proceedings The Proceedings As provided above, it was a condition to the Closing that the Modification be entered into and that the District Court shall have entered an order and final judg- ment approving the Modification. The Modification was executed by all of the parties to the Proceedings and a pre- liminary order approving the Modification was issued by the District Court on February 19, 1993. A hearing was held by the District Court on March 22, 1993 concerning the "fairness" of the Modification and prior to the Closing, the District Court entered an Order and Final Judgment of Dismissal and Final Order and Judgment approving the Modification on April 21, 1993. On April 26, 1993, the District Court held a hearing confirming the occurrence of all conditions preceding the Closing and the fact of the Closing by the Purchaser. See the Proxy Statement for more information concerning the Modification. In connection with the Modification, the Purchaser and Messrs. Peltz and May entered into an Undertaking and Agreement, dated February 9, 1993 (the "Undertaking"), a copy of which is filed as Exhibit 8 hereto and is incorporated herein by reference. Pursuant to the terms of CUSIP NO: 895927 10 1 Page 28 the Undertaking, the Reporting Persons agreed to be bound by certain provisions of the Modification, including (a) never to vote any shares of the Company owned or controlled by the Purchaser for the election of Victor Posner as a director of the Company, (b) causing any slate of directors of the Com- pany directly or indirectly proposed or recommended by the Purchaser during the Effective Period (defined in the Modification as the period commencing February 12, 1991 and terminating on the earliest of (i) five years from the date of the closing of the transactions contemplated by the Stock Purchase Agreement, (ii) the date on which Victor Posner (and his affiliates) ceases to own Common Stock or convert- ible securities of the Company equal in the aggregate to more than 5.0% of the issued and outstanding Common Stock and (iii) the date on which the shares of common stock of the Company cease to be publicly held) to include the New Directors, (c) with respect to the special meeting in lieu of the 1992 Annual Meeting of Shareholders of the Company (the "1992 Special Meeting"), to cause the slate of directors to include William Pallot and Thomas Prendergast, (d) during the Effective Period, subject to the Purchaser's absolute right to vote the minimum number of shares neces- sary to accomplish the election of Messrs. Peltz, May and Kalvaria and Mr. Irving Mitchell Felt, or their successors, to cast any other votes available to it for the election of the New Directors, and with respect to the 1992 Special CUSIP NO: 895927 10 1 Page 29 Meeting, for Messrs. Pallot and Prendergast (if the shares of common stock of the Company are subject to cumulative voting, the Purchaser is obligated to cumulate its votes and to vote as described in this clause (d)), (e) not to consent to the amendment or waiver of certain conditions to closing contained in the Stock Purchase Agreement without the prior written approval of the New Directors, and (f) not to amend certain covenants and agreements contained in the Stock Purchase Agreement without the prior written approval of the New Directors. The Ehrman Litigation Pursuant to the terms of a memorandum of understanding (the "Memorandum of Understanding") dated January 21, 1993 entered into by the Purchaser and the plaintiff in an action (the "Ehrman Litigation") brought derivatively on behalf of SEPSCO against, among others, the Company, the Purchaser agreed to use its best efforts to cause the Company to settle such action. A copy of such memorandum of understanding is filed as Exhibit 6 hereto and incorporated herein by reference. Following the Closing, the Board of Directors of the Company approved the terms of the proposed settlement set forth in the Memorandum of Understanding and the settlement was consummated on April 14, 1994. Pursuant to the settlement, on such date a wholly-owned subsidiary of the Company was merged into SEPSCO (the "SEPSCO Transaction"). Each holder of common CUSIP NO: 895927 10 1 Page 30 stock of SEPSCO other than the Company or its subsidiaries received in exchange for each share of common stock of SEPSCO .8 of a share of Common Stock of the Company, and the SEPSCO common stock was delisted from the Pacific Stock Exchange and was terminated from registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended. This resulted in the issuance of 2,691,822 shares of Common Stock. As a result of the SEPSCO Transaction, SEPSCO became a wholly-owned subsidiary of the Company. Accordingly, following the consummation of the transactions contemplated by the Stock Purchase Agreement and after the consummation of the Minority Share Acquisi- tions and the restructuring and the settlement of the Ehrman Litigation (each, as referred to above), the Company owns 100% of the stock of CFC Holdings Corp. ("CFC Holdings") (approximately 94.6% was owned by the Company and 5.4% by SEPSCO), SEPSCO and Graniteville. In addition, the Company owns approximately 59% of the stock of Wilson Brothers (approximately 54% was owned by the Company and 5% by Victor Posner). CFC Holdings continues to hold 100% of the outstanding stock of Chesapeake Insurance Company Limited and RC/Arby's. RC/Arby's continues to own 100% of the out- standing stock of Arby's and RC Cola. Miscellaneous The Proxy Statement contained pro forma condensed balance sheets and consolidated statements of operations of CUSIP NO: 895927 10 1 Page 31 the Company and its subsidiaries which reflect the financial effect of the transactions contemplated by the Stock Purchase Agreement, the Exchange Agreement, the DWG Agreement, the Modification, the Lease Modification, the agreements for the Minority Share Acquisitions, the Memorandum of Understanding, the Consulting Agreement and the Equity Offering. Since the execution of the Stock Purchase Agree- ment, the Purchaser and Messrs. Peltz and May, and certain of their affiliates, have had numerous discussions with management of the Company to develop a better understanding of the Company and its businesses and to assist the Company, RC/Arby's and Graniteville in connection with the Refinanc- ing. As a result of this process, the Purchaser and Messrs. Peltz and May have considered the plans and proposals described above in this Item 4. Messrs. Peltz and May have guaranteed a loan in the amount of $175,000 made to Steven Posner by an unaffili- ated commercial banking institution. Except as described in the Stock Purchase Agree- ment, the Exchange Agreement, the DWG Agreement or the Part- nership Agreement or as set forth above in this Item 4, no Reporting Person has any present plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company; (b) an extra- CUSIP NO: 895927 10 1 Page 32 ordinary corporate transaction such as a merger, reorganiza- tion or liquidation, involving the Company or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (d) any change in the present board of directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Company's business or corporate structure; (g) changes in the Company's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (h) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities associ- ation; (i) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) any action similar to those enumerated above. Item 5. Interest in Securities of the Issuer. (a) through (c). As a result of the Acquisition, the Purchaser beneficially owns 5,982,867 shares of Common Stock, representing approximately 24.9% of the outstanding shares of Common Stock as of April 25, 1994 (based on the CUSIP NO: 895927 10 1 Page 33 Company's Proxy Statement for the Annual Meeting of Shareholders held on June 9, 1994). By virtue of their positions as general partners of the Purchaser, Messrs. Peltz and May may be deemed to own beneficially the 5,982,867 shares of Common Stock owned of record by the Purchaser. In such capacity, Messrs. Peltz and May may be deemed to share voting and dispositive power with the Purchaser and with each other with respect to such shares of Common Stock. On April 30, 1993, Mr. May purchased as a gift for a minor child of Mr. Peltz in an open market purchase an additional 100 shares of DWG Common Stock at a price of $19.00 per share. Mr. Peltz disclaims beneficial ownership of such shares. In addition to the foregoing, Messrs. Peltz and May beneficially own 200,000 and 133,333 shares of Common Stock, respectively, representing stock options that may be exercised within 60 days. As a result, Messrs. Peltz and May may be deemed to beneficially own an aggregate of 6,182,967 and 6,116,200 shares of Common Stock, respectively, representing approximately 25.5% and 25.3%, respectively, of the outstanding shares of Common Stock (based on the Company's Proxy Statement for the Annual Meeting of Shareholders held on June 9, 1994 plus the shares subject to the stock options that may be exercised by Messrs. Peltz and May, respectively, within 60 days). CUSIP NO: 895927 10 1 Page 34 On July 12, 1994, Messrs. Peltz and May entered into an agreement (the "Kalvaria Agreement") with Leon Kalvaria, Vice Chairman of the Company, as described in Item 5(d) below. Except as set forth above, no Reporting Person beneficially owns any shares of Common Stock or has effected any transaction in shares of Common Stock during the preced- ing 60 days. As a result of the consummation of the transactions contemplated by the Stock Purchase Agreement, the Reporting Persons possess shared power to vote or to direct the vote and shared power to dispose or direct the disposition of the 5,982,867 shares of Common Stock purchased by the Purchaser from the Sellers pursuant to the Stock Purchase Agreement. (d) On July 12, 1994, Messrs. Peltz and May entered into the Kalvaria Agreement. The descriptions of the provisions of the Kalvaria Agreement contained herein are qualified in their entirety by the actual terms of such Agreement, a copy of which is filed as Exhibit 14 hereto and is incorporated herein by reference. Pursuant to the Kalvaria Agreement, Messrs. Peltz and May, severally and not jointly, agreed to pay Mr. Kalvaria an amount (a "Deal Bonus") equal to 3-1/3% and 1-2/3%, respectively, of the Net Profit (as defined in the Kalvaria Agreement) realized during the period from the date of the Kalvaria Agreement to CUSIP NO: 895927 10 1 Page 35 the date on which Mr. Kalvaria's employment with the Company is terminated under his employment agreement with the Company (the "Term") by the Purchaser in connection with each sale by the Purchaser of part or all of the Shares. The Kalvaria Agreement also provides for certain payments if the Term is terminated because of Mr. Kalvaria's death or disability or if the Term is terminated by the Company for any reason (other than for cause) or by Mr. Kalvaria pursuant to a notice not to extend his employment agreement with the Company or if the Shares are distributed by the Purchaser, in whole or in part, to Messrs. Peltz and May. Except as set forth above, to the best knowledge of the Reporting Persons, no person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to the Common Stock of the Issuer. In connection with the Citibank Loans, the Purchaser agreed to deliver subsequent to the date of the Citibank Loans certain Shares on behalf of Messrs. Peltz and May to replace certain collateral originally pledged to secure such loans. The Purchaser entered into a Pledge and Security Agreement (the "Pledge Agreement"), dated as of CUSIP NO: 895927 10 1 Page 36 April 5, 1993, with Citibank, a copy of which is filed as Exhibit 12 hereto and incorporated herein by reference, pursuant to which the Purchaser agreed to pledge (the "DWG Pledge") to Citibank, on behalf of Messrs. Peltz and May, an aggregate of 740,000 shares of Common Stock of the Company. On May 6, 1993, the Pledged Shares were pledged in substitution for certain other collateral securing the Citibank Loans, which other collateral was released by Citibank upon delivery of the pledged shares. The Purchaser entered into an Amended and Restated Pledge and Security Agreement (the "Amended and Restated Pledge Agreement"), dated as of July 25, 1994, with Citibank, a copy of which is filed as Exhibit 15 hereto and incorporated herein by reference, pursuant to which the Purchaser agreed to pledge to Citibank, on behalf of Messrs. Peltz and May, an additional 300,000 shares of Common Stock in substitution for and in addition to certain other collateral securing the Citibank Loans. The Pledge Agreement and the Amended and Restated Pledge Agreement contain standard provisions concerning the maturity of the loans and other provisions with respect thereto and with respect to the pledged shares. On May 14, 1993, Messrs. Peltz and May entered into certain loan documentation with respect to certain loans aggregating $24 million (the "Custodial Loans") made in the ordinary course of business to Messrs. Peltz and May by Custodial Trust Company. The Custodial Loans are demand loans bearing CUSIP NO: 895927 10 1 Page 37 interest at the prime rate and are secured by 3,300,000 of the Shares owned by the Purchaser and certain other securities owned by Messrs. Peltz and May (and their spouses) other than the Shares. The loan documentation in connection with the Custodial Loans contains standard provisions concerning the maturity of the loans and other provisions with respect thereto and with respect to the Shares pledged pursuant thereto. The documents evidencing the Custodial Loans are filed as Exhibit 13 hereto and are incorporated herein by reference. As described in Item 5(d) above, Messrs. Peltz and May entered into the Kalvaria Agreement with Mr. Kalvaria providing for the payment to Mr. Kalvaria of certain amounts with respect to the sale of the Shares. See Item 5(d). Except as described elsewhere in this Statement or as set forth in the Stock Purchase Agreement, the Exchange Agreement, the DWG Agreement, the Partnership Agreement, the Undertaking, the Pledge Agreement, the Kalvaria Agreement or the Amended and Restated Pledge Agreement, copies of which are filed as Exhibits 1, 2, 3, 4, 8, 9, 12, 14 and 15, respectively, hereto, and are incorporated herein by reference, to the best knowledge of the Reporting Persons, there exist no contracts, arrangements, understandings or relationships (legal or otherwise) among the Purchaser and Messrs. Peltz and May and between such persons and any person with respect to any securities of the Company, CUSIP NO: 895927 10 1 Page 38 including but not limited to transfer or voting of any securities of the Company, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantee of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Material To Be Filed as Exhibits. 1. Stock Purchase Agreement dated as of October 1, 1992 by and between the Purchaser, Posner, Posner Trust and Security Management. 2. Exchange Agreement dated as of October 1, 1992 between the Company and Security Management. 3. Agreement dated as of October 1, 1992 between the Company and the Purchaser. 4. Agreement of Limited Partnership of the Pur- chaser dated as of September 25, 1992. 5. Joint Filing Agreement of the Purchaser, Peltz and May. 6. Memorandum of Understanding, dated January 21, 1993, by and between the Purchaser and William A. Ehrman, individually and derivatively on behalf of SEPSCO. 7. Letter dated January 25, 1993 from Steven Posner to the Purchaser (including proposed terms and condi- tions of Consulting Agreement to be entered into between the Company and Steven Posner). CUSIP NO: 895927 10 1 Page 39 8. Undertaking and Agreement, dated February 9, 1993, executed by the Purchaser. 9. Amendment No. 3 dated as of April 14, 1993 to Agreement of Limited Partnership of the Purchaser. 10. Citibank Loan Documents (Exhibits and Schedules omitted). 11. Republic Loan Documents (Exhibits and Schedules omitted). 12. Pledge and Security Agreement, dated as of April 5, 1993, between the Purchaser and Citibank. 13. Custodial Loan Documents. 14. Agreement, dated May 2, 1994, among Nelson Peltz, Peter W. May and Leon Kalvaria. 15. Amended and Restated Pledge and Security Agreement, dated as of July 25, 1994, between the Purchaser and Citibank. CUSIP NO: 895927 10 1 Page 40 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: September 1, 1994 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 CUSIP NO: 895927 10 1 Page 41 Exhibit Index Exhibit Description Page No. 1 Stock Purchase Agreement dated Filed with as of October 1, 1992 by and Original between the Purchaser, Posner, Statement Posner Trust and Security Management. 2 Exchange Agreement dated as of Filed with October 1, 1992 between the Original Company and Security Management. Statement 3 Agreement dated as of October 1, Filed with 1992 between the Company and the Original Purchaser. Statement 4 Agreement of Limited Partnership Filed with of the Purchaser dated as of Original September 25, 1992. Statement 5 Joint Filing Agreement of the Filed with Purchaser, Peltz and May. Original Statement 6 Memorandum of Understanding, Filed with dated January 21, 1993, by and Amendment between the Purchaser and No. 2 William A. Ehrman, individually and derivatively on behalf of SEPSCO. 7 Letter dated January 25, 1993 Filed with from Steven Posner to the Amendment Purchaser (including proposed No. 2 terms and conditions of Consulting Agreement to be entered into between the Company and Steven Posner). 8 Undertaking and Agreement, dated Filed with February 9, 1993, executed by Amendment the Purchaser. No. 3 9 Amendment No. 3 dated as of Filed with April 14, 1993 to Agreement of Amendment Limited Partnership of the No. 4 Purchaser. 10 Citibank Loan Documents Filed with (Exhibits and Schedules Amendment omitted). No. 4 CUSIP NO: 895927 10 1 Page 42 Exhibit Description Page No. 11 Republic Loan Documents Filed with (Exhibits and Schedules Amendment omitted). No. 4 12 Pledge and Security Agreement, Filed with dated as of April 5, 1993, Amendment between the Purchaser and No. 5 Citibank. 13 Custodial Loan Documents. Filed with Amendment No. 5 14 Agreement, dated May 2, 1994 Filed among Nelson Peltz, Peter W. May herewith and Leon Kalvaria 15 Amended and Restated Pledge and Filed Security Agreement, dated as of herewith July 25, 1994 between the Purchaser and Citibank. EX-1 2 EXHIBIT 14 [CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN REDACTED] EXHIBIT 14 AGREEMENT made May 2, 1994 among NELSON PELTZ ("Peltz"), PETER W. MAY ("May") and LEON KALVARIA ("Kalvaria"). 1. Deal Bonuses. 1.1 Deal Bonuses. Each of Peltz and May, severally and not jointly, agrees to pay Kalvaria an amount (a "Deal Bonus") equal to 3-1/3% and 1-2/3%, respectively, of the Net Profit (as defined in Section 1.2), if any, realized during the Term (as defined in Section 1.3) by DWG Acquisition Group, L.P., a Delaware limited partnership of which Peltz and May are currently the sole partners ("DWG Acquisition"), in connection with each sale by DWG Acquisition of part or all of the DWG Investment (as defined in Section 1.3) (a "Sale"). Any such Deal Bonus shall be paid to Kalvaria within 30 days after the realization of such Net Profit (except as otherwise provided in Sections 2.1, 2.2 and 2.3). Within 30 days after each Sale, Kalvaria shall be given a statement setting forth in reasonable detail the calculation of the Net Profit and Kalvaria's Deal Bonuses, if any, with respect to such Sale. The parties acknowledge and agree that the foregoing provisions with respect to the payment of Deal Bonuses shall not be construed to create or grant to Page 2 Kalvaria any partnership interest in DWG Acquisition or any beneficial interest in the equity securities of Triarc Companies, Inc., an Ohio corporation ("Triarc"), owned by DWG Acquisition, and that no amounts payable hereunder shall constitute or be deemed to be a lien, charge, security interest or other encumbrance on the DWG Investment or otherwise affect the right of DWG Acquisition in its sole discretion to sell, assign or otherwise transfer, for security purposes or otherwise, in whole or in part, any of the DWG Investment, or the right of Peltz and May to sell, assign or otherwise transfer, for security purposes or otherwise, in whole or in part, any of their interests in DWG Acquisition. 1.2 Net Profit. "Net Profit" realized by DWG Acquisition with respect to a Sale means an amount equal to (i) the aggregate cash proceeds actually received by DWG Acquisition in connection with such Sale and all Sales of the DWG Investment made by it prior to the time of such Sale, minus (ii) $71,794,404, minus (iii) the aggregate Acquisition Costs (as defined in Section 1.3), minus (iv) the aggregate Disposition Costs (as defined in Section 1.3) incurred by DWG Acquisition in connection with all such Sales, minus (v) the amount of Net Profit, if any, with respect to which Deal Bonuses have been paid by Peltz and May to Kalvaria prior to the time of such Sale. If any proceeds received by DWG Acquisition in connection with any Sale include any consideration other than cash ("Non-Cash Page 3 Proceeds"), such Non-Cash Proceeds shall not be includible in Net Profits until cash is actually received with respect to such Non-Cash Proceeds, unless DWG Acquisition, in its sole discretion, decides to distribute such Non-Cash Proceeds in kind to its partners. If DWG Acquisition distributes any Non-Cash Proceeds in kind to its partners, the then Fair Market Value of such Non-Cash Proceeds shall be included in the calculation of Net Profits. 1.3 Other Definitions. For the purposes of this Agreement: (i) "Acquisition Costs" means all fees, expenses and other costs paid or payable by DWG Acquisition, Peltz or May in connection with the acquisition or holding of the DWG Investment by DWG Acquisition, Peltz or May (but not including any interest costs incurred by DWG Acquisition, Peltz or May in connection with the financing of the acquisition or the holding of the DWG Investment). "Disposition Costs" means all fees, expenses and other costs paid or payable in connection with a Sale of part or all of the DWG Investment, including, without limitation, all taxes (other than income taxes) paid by DWG Acquisition as a result of such sale. (ii) "DWG Investment" means the 5,982,867 shares of Class A Common Stock, par value $.10 per share (the "Common Stock"), of Triarc now owned by DWG Acquisition. Page 4 (iii) "Fair Market Value" means: (x) with respect to part or all of the DWG Investment at any time, the closing price of the Common Stock on the New York Stock Exchange (or, if the Common Stock is not listed on the New York Stock Exchange, the principal national securities exchange on which the Common Stock is then listed) or, if the Common Stock is not so listed, the average of the representative bid and asked prices quoted in the NASDAQ System as of 4:00 p.m., New York time, or, if on any day the Common Stock is not quoted in the NASDAQ System, the average of the highest bid and lowest asked prices on such day in the over-the-counter market as reported by the National Quotation Bureau Incorporated, or any similar successor organization, in each such case averaged over a period of 20 trading days ending on and including the date of determination; and (y) with respect to part or all of Non- Cash Proceeds at any time, the fair market value of such Non-Cash Proceeds at such time as determined by the mutual agreement of Peltz, May and Kalvaria or, if no such agreement can be reached, by an investment banking firm that is satisfactory to Peltz, May and Kalvaria, in which event the determination of the fair market value by the investment banking firm shall be final and binding. Page 5 (iv) "Term" means the period commencing on the date hereof and ending on the date on which Kalvaria's employment pursuant to the employment agreement, dated as of November 1, 1993, between Kalvaria and Triarc (the "Triarc Employment Agreement") is terminated. 2. Termination. 2.1 Payout Amount. In the event that (i) the Term is terminated because of Kalvaria's death (as provided in Section 4.1 of the Triarc Employment Agreement), or his disability (as provided in Section 4.2 of the Triarc Employment Agreement), or (ii) the Term is terminated by Triarc for any reason (other than by Triarc for Cause as provided in Section 4.3 of the Triarc Employment Agreement) or by Kalvaria pursuant to a notice not to extend the Triarc Employment Agreement delivered in accordance with Section 2 thereof (in each case, a "Termination"), each of Peltz and May, severally and not jointly, shall pay Kalvaria (or his estate, as the case may be) the Payout Amount as provided below with respect to that part of the DWG Investment which is still owned by DWG Acquisition on the date of such termination (the "Termination Date"). In the event that this Section 2.1, or Sections 2.2 and 2.3 below, are applied as a result of Kalvaria's death, all references herein and therein to Kalvaria shall be deemed to be references to his estate. The "Payout Amount" shall be an amount equal to the Deal Bonus Kalvaria would have been entitled to receive on Page 6 the Termination Date if the then unsold DWG Investment were sold on such date for its Fair Market Value. Any such Payout Amount shall be paid in five equal installments. The first installment shall be paid on the Payment Date (as hereinafter defined). The subsequent installments shall be paid on the first, second, third and fourth anniversaries of the Payment Date, with interest accruing from the Payment Date at the rate of 8% per annum. The "Payment Date" shall mean the thirtieth day after the Fair Market Value of the DWG Investment is determined. 2.2 Deferred Bonus. In the event of a Termination, after the Termination Date Kalvaria shall continue to have the right to receive a Deal Bonus with respect to any Sale of the DWG Investment during the Term for which DWG Acquisition received Non-Cash Proceeds that as of the Termination Date have not been included in the calculation of Net Profits (a "Deferred Bonus"). The Deferred Bonus with respect to any such Sale by DWG Acquisition shall be an amount equal to the excess, if any, of (i) 3-1/3% (in the case of Peltz) and 1-2/3% (in the case of May) of the Net Profit, if any, realized by DWG Acquisition in connection with such Sale over (ii) any Deal Bonus or Deferred Bonus previously paid by Peltz and May, respectively, to Kalvaria in connection therewith. For purposes of clause (i) of the previous sentence, Net Profits shall be calculated to include cash received by DWG Acquisition during or after the Term with respect to any Page 7 Sale of the DWG Investment during the Term. Any Deferred Bonus that is payable to Kalvaria under this Section 2.2 shall be paid within 30 days after the realization by DWG Acquisition of Net Profits as calculated in accordance with this Section 2.2. 2.3 Cash-Out Amount. If on the tenth anniversary of the Termination Date Kalvaria continues to have the right to receive a Deferred Bonus under Section 2.2 with respect to any Sale during the Term for which DWG Acquisition received Non-Cash Proceeds that as of such tenth anniversary date have not been included in the calculation of Net Profits because cash has not yet been realized with respect thereto (the "Remaining Non-Cash Proceeds"), then each of Peltz and May, severally and not jointly, shall pay Kalvaria the Cash-Out Amount as provided below. The "Cash-Out Amount" shall be an amount equal to the Deferred Bonus Kalvaria would have been entitled to receive under Section 2.2 if the Remaining Non-Cash Proceeds had been sold on the tenth anniversary of the Termination Date for their then Fair Market Value. Any such Cash-Out Amount shall be paid in five equal installments. The first installment shall be paid on the Cash-Out Payment Date (as hereinafter defined). The subsequent installments shall be paid on the first, second, third and fourth anniversaries of the Cash-Out Payment Date, with interest accruing from the Cash-Out Payment Date at the rate of 8% per annum. The "Cash-Out Payment Date" shall Page 8 mean the thirtieth date after the Fair Market Value of the Remaining Non-Cash Proceeds is determined. 3. Distributions of DWG Investment by DWG Acquisition. 3.1 Distribution of Entire DWG Investment. If during the Term DWG Acquisition distributes all of the DWG Investment to its partners, in connection with a dissolution of DWG Acquisition or otherwise, each of Peltz and May, severally and not jointly, shall pay Kalvaria in accordance with Section 1.1 a Deal Bonus equal to 5% of the Net Profit, if any, thereafter realized during the Term by Peltz or May in connection with each Sale by Peltz or May. For purposes of this Section 3.1, "Net Profit" shall be determined in accordance with Section 1.2, except (i) that all references in Section 1.2 to "DWG Acquisition" shall mean Peltz or May and (ii) the figure in clause (ii) of Section 1.2 shall not be $71,794,404, but shall be an amount equal to the product of $12 times the aggregate number of shares of DWG Investment owned by Peltz or May at the time of the distribution. In the event of a Termination after such a distribution, each of Peltz and May, severally and not jointly, shall pay Kalvaria (or his estate, as the case may be) (i) the Payout Amount, if any, with respect to that part of the DWG Investment which is still owned by Peltz or May on the Termination Date, calculated and payable in accordance with Section 2.1, (ii) a Deferred Bonus, if any, Page 9 with respect to any Sale of the DWG Investment during the Term for which Peltz or May received Non-Cash Proceeds that as of the Termination Date have not been included in the calculation of Net Profits, calculated and payable in accordance with Section 2.2 except that the Payout Amount shall be equal to 5% of Net Profit, if any, realized by Peltz or May and (iii) the Cash-Out Amount, if any, with respect to any Non-Cash Proceeds received by Peltz or May that as of the tenth anniversary of the Termination Date have not been included in the calculation of Net Profits, calculated and payable in accordance with Section 2.3. 3.2 Partial Distribution of DWG Investment. If during the Term DWG Acquisition distributes a portion of the DWG Investment to Peltz and May, each of Peltz and May, severally and not jointly, shall pay to Kalvaria (i) the Deal Bonus, Payout Amount, Deferred Bonus and Cash-Out Amount, if any, thereafter realized by Peltz or May with respect to the DWG Investment so distributed to Peltz and May, calculated and payable in accordance with Section 3.1 and (ii) the Deal Bonus, Payout Amount, Deferred Bonus and Cash-Out Amount, if any, realized by DWG Acquisition with respect to the DWG Investment owned by DWG Acquisition after the distribution, calculated and payable in accordance with Sections 1.1, 2.1, 2.2 and 2.3, respectively (except that in determining Net Profit, the figure in clause (ii) of Section 1.2 shall not be $71,794,404 but shall be an amount equal to the product of $12 times the aggregate number of Page 10 shares of DWG Investment owned by DWG Acquisition after the distribution). 4. Fees of Investment Banking Firm. If any investment banking firm is retained to determine the Fair Market Value of part or all of Non-Cash Proceeds, the fees of such investment banking firm shall be paid by Peltz, May and Kalvaria in the following proportions: Peltz - 33-1/3%; May - 16-2/3%; and Kalvaria - 50%. 5. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 6. Notices. All notices, requests, consents and other communications, required or permitted to be given hereunder, shall be in writing and shall be deemed to have been duly given if delivered personally or sent by prepaid telegram, or mailed, first-class, postage prepaid, by registered or certified mail, as follows: If to PELTZ: [Redacted] If to MAY: [Redacted] If to KALVARIA: [Redacted] or to such other address as any party shall designate by notice in writing to the other in accordance herewith. Page 11 7. Waiver. No waiver of any provision of this Agreement or modification or amendment of the same shall be effective, binding or enforceable unless in writing and signed by the party to be charged therewith. 8. Governing Law. This Agreement shall be governed by and administered in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. /s/ Nelson Peltz ----------------------------- Nelson Peltz /s/ Peter W. May ----------------------------- Peter W. May /s/ Leon Kalvaria ----------------------------- Leon Kalvaria EX-2 3 EXHIBIT 15 [CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN REDACTED] EXHIBIT 15 AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT, dated as of July 25, 1994, made by DWG Acquisition Group, L.P., a Delaware limited partnership (the "Pledgor"), in favor of Citibank, N.A., a national banking association (the "Bank"). W I T N E S S E T H : WHEREAS, (i) Nelson Peltz, a general partner of the Pledgor, and Claudia Peltz (collectively, the "Peltzs"), and (ii) Peter May, a general Partner of the Pledgor, and Leni May (collectively, the "Mays", and together with the Peltzs, collectively the "Borrowers"), have executed four demand promissory notes, dated April 5, 1993 (as amended or otherwise modified from time to time and any promissory note or notes issued in exchange or replace- ment therefor, collectively the "Notes"), made payable to the order of the Bank in the respective principal amounts of $20,476,000 and $11,524,000 and $9,357,900 and $6,642,100, evidencing four loans (the "Loans") made by the Bank to the Borrowers in such principal amounts; WHEREAS, the Borrowers used the proceeds of the Loans to, inter alia, finance the purchase by the Pledgor of common stock of Triarc Companies, Inc.; WHEREAS, as collateral security for the payment by the Borrowers of the Loans, the Pledgor granted to the Bank a security interest in certain of the shares of common stock of Triarc Companies, Inc. owned by the Pledgor pursuant to a Pledge and Security Agreement dated as of April 5, 1993 (the "Existing Pledge Agreement"), made by the Pledgor in favor of the Bank; WHEREAS, it is a condition precedent to the maintenance of the Loans by the Bank that the Pledgor shall have executed and delivered to the Bank, inter alia, a pledge and security agreement providing for the pledge to the Bank of, and the grant to the Bank of a security interest in, additional shares of common stock of Triarc Companies, Inc. owned by the Pledgor; and WHEREAS, the Pledgor has determined that its execution, delivery and performance of this Amended and Page 2 Restated Pledge and Security Agreement directly benefit, and are in the best interests of, the Pledgor; 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 Bank that effectively immediately upon the receipt by the Bank of executed counterparts of this Agreement the Existing Pledge Agreement shall be amended and restated as follows: SECTION 1. Definitions. (a) Reference is hereby made to the two letter agreements dated April 5, 1993 (as amended or otherwise modified from time to time, the "Borrowers' Letters"), by the Peltzs and the Mays, respectively, to the Bank for a statement of the terms thereof. All terms used in this Agreement which are defined in the Borrowers' Letters or in Articles 8 or 9 of the Uniform Commercial Code (the "Code") currently in effect in the State of New York and which are not otherwise defined herein shall have the same meanings herein as set forth therein. (b) As used in this Agreement, the following terms shall have the respective meanings indicated below, such meanings to be applicable equally to both the singular and plural forms of the terms defined: "Obligations" shall have the meaning set forth in Section 3 hereof. "Pledged Collateral" shall have the meaning set forth in Section 2 hereof. "Triggering Event" means the occurrence of any of the following: (i) any Loan Party shall fail to pay any of such Loan Party's obligations under any Loan Document when due (whether upon demand or otherwise); or (ii) any representation or warranty made by any Loan Party under or in connection with any Loan Document shall have been incorrect in any material respect when made; or (iii) any Loan Party shall fail to perform or observe any term, covenant or agreement contained in any Loan Document; or (iv) any "Triggering Event" (as defined in any other Loan Document) shall occur. Page 3 "SEC Rule 144" means Rule 144 as promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. "Triarc Stock" means the 1,040,000 shares of common stock issued by Triarc Companies Inc. evidenced by the certificates numbers described in Schedule I hereto. 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 Bank, and grants to the Bank a continuing security interest in, the following (the "Pledged Col- lateral"): (a) the Triarc Stock, the certificates representing the Triarc Stock, all options and other rights, contractual or otherwise, in respect thereof and all dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Triarc Stock; and (b) to the extent not described above, all proceeds of any and all of the foregoing Pledged Collateral; 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 (the "Obligations"): (a) the prompt payment by the Borrowers, as and when due and payable, of the principal of, and interest on, the Notes (including, without limitation, amounts that but for the operation of Section 362(a) of the Bankruptcy Code would become due); (b) the due performance and observance by the Borrowers of all of their obligations under the Loan Documents; and (c) the due performance and observance by the Pledgor of all of its obligations under this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts that constitute Page 4 part of the Obligations and would be owed by the Borrowers to the Bank under the Notes and the other Loan Documents 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 Triarc Stock shall be delivered to the Bank on or prior to the execution and delivery of this Agreement. All other promissory notes, certificates and instruments constituting Pledged Collateral from time to time shall be delivered to the Bank promptly upon the receipt thereof by or on behalf of the Pledgor. All such promissory notes, certificates and instruments shall be held by or on behalf of the Bank 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 satisfactory to the Bank. (b) If the Pledgor shall receive, by virtue of its being or having been an owner of any Pledged Collateral, any (i) stock certificate, 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, or (iii) payment in cash or in securities or other property, the Pledgor shall receive such promissory note, instrument, option, right, payment or distribution in trust for the benefit of the Bank, shall segregate it from the Pledgor's other property and shall deliver it forthwith to the Bank in the exact form received, with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Bank 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 (i) is a limited partnership duly organized, validly existing and in good standing under the laws of the state of its organization as set forth on the first page hereof and (ii) has all requisite power and authority to execute, deliver and perform this Agreement. (b) The execution, delivery and performance by the Pledgor of this Agreement (i) have been duly autho- rized by all necessary partnership action, (ii) do not and will not contravene its Partnership Agreement, or any law or contractual restriction binding on or affecting the Pledgor or any of its properties, and (iii) do not and will not result in or require the creation of any lien, security Page 5 interest or other charge or encumbrance upon or with respect to any of its properties, other than in favor of the Bank. (c) This Agreement constitutes the legal, valid and binding obligation of the Pledgor, enforceable against the Pledgor in accordance with its terms. (d) The Triarc Stock is fully paid and non- assessable and, to the best of the Pledgor's knowledge, has 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 Triarc Stock since April 23, 1994. The information set forth in Schedule I hereto is true and correct. (e) 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 its obligations hereunder and under the other Loan Documents. (f) 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 or entity is required for (i) the due execution, delivery and performance by the Pledgor of this 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 Bank of any of its rights and remedies hereunder. (g) The Pledgor is and will be at all times the legal and beneficial owner of the Pledged Collateral, free and clear of any lien, security interest, option or other charge or encumbrance except for the security interest created by this Agreement. There is no financing statement naming the Pledgor as debtor (or similar documents or instrument of registration under the law of any jurisdic- tion) now on file or registered in any public office covering any interest of the Pledgor in the Pledged Col- lateral. (h) This Agreement creates a valid security interest in favor of the Bank in the Pledged Collateral, as security for the Obligations. The Bank's having possession of the Triarc Stock and all other certificates, instruments and cash constituting Pledged Collateral from time to time Page 6 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 Bank's having possession of certificates, instruments and cash constituting Pledged Collateral after the date hereof. SECTION 6. Covenants as to the Pledged Col- lateral. So long as any of the Obligations shall remain outstanding, the Pledgor will, unless the Bank shall otherwise consent in writing: (a) Keep adequate records concerning the Pledged Collateral and permit the Bank 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) At its expense, promptly deliver to the Bank a copy of each notice or other communication received by the Pledgor in respect of the Pledged Collateral together with a copy of any reply by the Pledgor thereto. (c) At its expense, defend the Bank's right, title and security interest in and to the Pledged Collateral against the claims of any person or entity. (d) At its expense, 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 that the Bank may reasonably request in order to (i) perfect and protect the security interest purported to be created hereby, (ii) enable the Bank 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) otherwise effect the purposes of this Agreement, including, without limitation, delivering to the Bank irrevocable proxies in respect of the Pledged Collateral. (e) Not sell, assign (by operation of law or otherwise), exchange or otherwise dispose of any Pledged Collateral or any interest therein except to the extent permitted by Section 7(a) hereof. (f) Not create or suffer to exist any lien, security interest or other charge or encumbrance upon or with respect to any Pledged Collateral except for the security interest created hereby. Page 7 (g) Not take any action which would in any manner impair the value or enforceability of the Bank's security interest in any Pledged Collateral. SECTION 7. Voting Rights, Dividends. Etc. in Respect of the Pledged Collateral; Withdrawal and Sale of Pledged Collateral. (a) So long as no Triggering Event shall have occurred: (i) the Pledgor may exercise any and all voting and other consensual rights pertaining to the Pledged Collateral in a manner not inconsistent with the terms of this Agreement; (ii) the Pledgor may receive and retain any and all dividends and other distributions and interest paid in respect of the Pledged Collateral, provided, however, that any and all (A) dividends and interest 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, (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 Bank to hold as, Pledged Collateral and shall, if received by the Pledgor, be received in trust for the benefit of the Bank, shall be segregated from the other property or funds of the Pledgor, and shall be forthwith delivered to the Bank in the exact form received with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Bank as Pledged Collateral and as further collateral security for the Obligations; (iii) the Bank will promptly deliver to the Pledgor all communications, including without limitation all notices of meetings, proxies, proxy materials and other announcements, which it receives regarding the Triarc Stock and will execute and deliver (or cause to be executed and delivered) to the Pledgor 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 which it is entitled to exercise pursuant to paragraph (i) of this Section 7(a) and to receive the dividends which it Page 8 is authorized to receive and retain pursuant to paragraph (ii) of this Section 7(a); and (iv) the Pledgor may not withdraw any part of the Pledged Collateral from the pledge created hereby except in accordance with Sections 3.1 and 3.3 of the Borrowers' Letters. (b) Upon the occurrence of any Triggering Event: (i) all rights of the Pledgor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to Section 7(a), and to receive the dividends and interest payments and other distributions which it would other- wise be authorized to receive and retain pursuant to Section 7(a), shall cease, and (A) all such rights shall thereupon become vested in the Bank 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 interest pay- ments, and (B) the Pledgor shall execute and deliver all such proxies and other instruments as the Bank may reasonably request for the purpose of enabling the Bank to exercise the voting and other rights which it is entitled to exercise pursuant to this Section 7(b)(i); and (ii) all dividends and interest payments and other distributions which 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, shall be segregated from the other funds of the Pledgor, and shall be forthwith paid over to the Bank 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 Bank as Pledged Collateral hereunder. SECTION 8. Additional Provisions Concerning the Pledged Collateral. (a) The Pledgor hereby authorizes the Bank 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 Bank hereby agrees to notify the Pledgor promptly after any such filing. (b) The Pledgor hereby irrevocably appoints the Bank the Pledgor's attorney-in-fact and proxy, with full authority in the place and stead of the Pledgor and in the Page 9 name of the Pledgor or otherwise, from time to time in the Bank's discretion, to take any action and to execute any instrument which the Bank may reasonably deem necessary or advisable to accomplish the purposes of this Agreement, including, without limitation, 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; provided, however, the Bank shall exercise such powers only after the occurrence of a Triggering Event. (c) If the Pledgor fails to perform any agreement or obligation contained herein, the Bank (upon notice to the Pledgor) itself may perform, or cause performance of, such agreement or obligation, and the expenses of the Bank incurred in connection therewith shall be payable by the Pledgor pursuant to Section 10 hereof. The powers conferred on the Bank hereunder are solely to protect its interest in the Pledged Collateral and shall not impose any duty upon it to exercise any such powers. (d) Other than the exercise of reasonable care to assure the safe custody of the Pledged Collateral while held by the Bank hereunder, the Bank 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 Bank 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 Bank accords its own property, it being understood that the Bank shall not have responsibility for (i) ascer- taining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Pledged Collateral, whether or not the Bank 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. SECTION 9. Remedies Upon Triggering Event. If any Triggering Event shall have occurred and be continuing: (a) The Bank 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; and without limiting the generality of the foregoing and 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 Bank may Page 10 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 Bank shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Bank 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 Bank, to the extent necessary or desirable to permit a sale of the Triarc Stock in compliance with SEC Rule 144. (b) The Pledgor agrees that in any sale of any Pledged Collateral hereunder the Bank 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 (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 regulatory authority 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 Bank 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) Any cash held by the Bank as Pledged Collateral and all cash proceeds received by the Bank in respect of any sale of, collection from, or other realiza- tion upon, all or any part of the Pledged Collateral may, in the discretion of the Bank, be held by the Bank as col- lateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Bank pursuant to Section 10 hereof) in whole or in part by the Bank against, all or any part of the Obligations in such order as the Bank shall elect. Any surplus of such cash or cash proceeds held by the Bank and remaining after payment in full of all of the Obligations shall be paid over to the Page 11 Pledgor or to such person or entity as may be lawfully entitled to receive such surplus. (d) Notwithstanding anything herein to the contrary, the Bank agrees that the Pledgor will receive at least 5 business days notice of the intention of the Bank to sell or otherwise transfer any Pledged Collateral after the occurrence of a Triggering Event during which time the Bank will not transfer any of the Pledged Collateral, but the Pledgor will only be entitled to one such notice pursuant to this Agreement. SECTION 10. Indemnity and Expenses. (a) The Pledgor agrees to indemnify the Bank from and against any and all claims, losses and liabilities growing out of or resulting from this Agreement (including, without limitation, enforcement of this Agreement), except claims, losses or liabilities resulting solely and directly from the Bank's gross negligence or willful misconduct. (b) The Pledgor will upon demand pay to the Bank the amount of any and all costs and expenses, including the reasonable fees and disbursements of the Bank's counsel and of any experts and agents, which the Bank may incur in connection with (i) the administration of this Agreement, (ii) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, any Pledged Collateral, (iii) the exercise or enforcement of any of the rights of the Bank 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, telegraphed or delivered, if to the Pledgor, to it at its address at 900 Third Avenue, 31st Floor, New York, New York 10022, Facsimile No. [Redacted], with a copy to Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York 10019-6064, Attention: Neale Albert, Esq.; if to the Bank, to it at its address at One Citicorp Center, 153 East 53rd Street, 18th Floor, New York, New York 10043, Attention: Ms. Jane R. Heller, Private Banking Division, with a copy to Schulte Roth & Zabel, 900 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 and other communications shall be effective (i) if mailed, when received or three days after mailing, whichever is earlier; (ii) if telecopied, when received; Page 12 (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 Agreement shall be effective unless it is in writing and signed by the Pledgor and the Bank, and no waiver of any provision of this Agreement, and no consent to any departure by the Pledgor therefrom, shall be effective unless it is in writing and signed by the Bank, 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 Bank to exercise, and no delay in exercising, any right hereunder, under a Note or under any other agreement, document or instrument relating thereto 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 Bank provided herein, in the Notes and in any other agreement, document or instrument relating thereto are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Bank against the Pledgor are not conditional or contingent on any attempt by the Bank to exercise any of its rights under any other agreement, document or instrument against the Pledgor or against any other person or entity. (c) Any provision of this 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 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 (ii) be binding on the Pledgor and its successors and assigns and shall inure, together with all rights and remedies of the Bank hereunder, to the benefit of the Bank and its successors, transferees and assigns. Without limiting the generality of clause (ii) of the immediately preceding sentence, the Bank may not assign or otherwise transfer its interests hereunder or under any other Loan Document; provided, however, the Bank may assign or transfer, as collateral or otherwise, any or all of its interest hereunder and under the other Loan Documents to any Federal Reserve Bank without notice to or consent of the Pledgor or any other Loan Party. None of the Page 13 rights or obligations of the Pledgor hereunder may be assigned or otherwise transferred without the prior written consent of the Bank. (e) Upon the satisfaction in full of the Obligations, (i) this Agreement and the security interest created hereby shall terminate and all rights to the Pledged Collateral shall revert to the Pledgor, and (ii) the Bank 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. (f) This 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 AGREEMENT IS INTENDED TO BE AN AMENDMENT OR MODIFICATION OF, OR LIMITATION OR RESTRICTION UPON, ANY PROVISION OF THE NOTES (INCLUDING, WITHOUT LIMITATION, THE BORROWERS' OBLIGATIONS TO PAY THE PRINCIPAL OF AND INTEREST ON THE NOTES UPON DEMAND), AND THE PROVISIONS OF THE 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 NOTES EVEN IF THE PLEDGOR HAS FULLY COMPLIED WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. SECTION 13. Security Interest Absolute. All rights of the Bank, all security interests and all obli- gations of the Pledgor hereunder shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of either Note or any other 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 Page 14 of, the Borrower in respect of their obligations under either Note, or the Pledgor in respect of the Obligations. SECTION 14. Consent to Jurisdiction, Etc.. (a) Any legal action or proceeding with respect to this Agreement, the Notes or any document related thereto to which the Pledgor is a party may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, the Pledgor hereby accepts unconditionally the jurisdiction of the aforesaid courts. The Pledgor hereby irrevocably waives any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. (b) The Pledgor irrevocably consents to the service of process of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, and by facsimile, or by hand delivery, to the Pledgor at its address referred to in Section 11 hereof. (c) Nothing contained in this Section 14 shall affect the right of the Bank to serve process in any other manner permitted by law or to commence legal pro- ceedings or otherwise proceed against the Pledgor in any other jurisdiction. (d) To the extent that the Pledgor has or hereafter may acquire any immunity from jurisdiction of any court of the State of New York or of the United States of America for the Southern District of New York from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) with respect to itself or its property, the Pledgor hereby irrevocably waives such immunity in respect of its obligations under this Agreement. (e) THE PLEDGOR AND THE BANK HEREBY IRRE- VOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING Page 15 TO THIS AGREEMENT, NOTE OR ANY OTHER DOCUMENT TO WHICH THE PLEDGOR IS A PARTY. IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be executed and delivered by its duly authorized partners on the date first above written. DWG ACQUISITION GROUP, L.P. By:/s/ Nelson Peltz ------------------------ Nelson Peltz, a General Partner By:/s/ Peter May ------------------------- Peter May, a General Partner Acknowledged and Consented to: CITIBANK, N.A. /s/ Jane R. Heller - ----------------------- By: Jane R. Heller Title: Vice President Page 16 SCHEDULE I TO PLEDGE AND SECURITY AGREEMENT 1. Description of Triarc Stock Stock Certificate Number of Percent of Number Shares Class Class [Redacted] 650,000 A 2.7 % [Redacted] 100,000 A 0.41% [Redacted] 50,000 A 0.20% [Redacted] 90,000 A 0.37% [Redacted] 100,000 A 0.41% [Redacted] 25,000 A 0.10% [Redacted] 25,000 A 0.10% 2. IRS Identification Number of the Pledgor: [Redacted] 3. The aggregate percentage of the common stock of Triarc owned by the Pledgor is as follows: 24.9%. 4. The Pledgor acquired the Triarc Stock in the transac- tion(s), on the date(s) and for the consideration (including when the Triarc Stock was paid in full) as follows: The Triarc Stock was acquired on April 23, 1993 for $12 per share. -----END PRIVACY-ENHANCED MESSAGE-----