UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) January 11, 1995
TRIARC COMPANIES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 1-2207 38-0471180
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(State or other (Commission (I.R.S. Employer
jurisdiction of File No.) Identification No.)
incorporation of
organization)
900 Third Avenue
New York, New York 10022
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(Address of principal executive office) (Zip code)
Registrant's telephone number, including area code: (212) 230-3000
--
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(Former name or former address, if
changed since last report)
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Item 5. Other Events.
Pursuant to a Settlement Agreement dated as of January 9, 1995
(the "Settlement Agreement") among the Registrant and Victor Posner
and certain of his affiliates, an affiliate of Victor Posner
converted the $71.8 million stated value of the Registrant's 8 1/8%
Redeemable Convertible Preferred Stock (which paid an aggregate
dividend of approximately $5.8 million per annum) owned by it into
4,985,722 shares of the Registrant's non-voting Class B Common
Stock. In addition, in consideration for, among other things, the
settlement of amounts due to another affiliate of Mr. Posner for
the termination of the lease for the former DWG Corporation
headquarters and receipt by the Registrant of an indemnification by
Mr. Posner and one of his affiliates of third-party claims and
expenses involving NVF Company, APL Corporation ("APL") and
Pennsylvania Engineering Corporation, an additional 1,011,900
shares of Class B Common Stock were issued to Mr. Posner and one of
his affiliates. All of the newly issued shares of Class B Common
Stock are identical to the Registrant's Class A Common Stock,
except that the shares of Class B Common Stock do not vote, and
they can only be sold subject to a right of refusal in favor of the
Registrant or its designee. In addition, pursuant to the
Settlement Agreement, Mr. Posner has paid the Registrant in cash
for certain additional expenses related to these claims, and the
Registrant has agreed to waive certain claims against APL if Mr.
Posner acquires APL and APL gives the Registrant a general release.
The foregoing description of the Settlement Agreement is qualified
in its entirety by the terms of the Settlement Agreement, a copy of
which is being filed as an Exhibit hereto and is incorporated
herein by reference. A copy of the press release issued by the
Registrant relating to the closing of the Settlement Agreement is
also being filed as an Exhibit hereto and is incorporated herein by
reference.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits
99.1 Settlement Agreement dated as of January 9, 1995 among
the Registrant, Security Management Corp., Victor Posner
Trust No. 6 and Victor Posner.
99.2 Press Release dated January 12, 1995.
PAGE
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
TRIARC COMPANIES, INC.
Date: January 18, 1995 By: /s/Joseph A. Levato
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Joseph A. Levato
Executive Vice President and
Chief Financial Officer
PAGE
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Exhibit Index
Exhibit
No. Description Page No.
- - -------- ------------ --------
99.1 Settlement Agreement dated as of January 5
9, 1995 among the Registrant, Security
Management Corp., Victor Posner Trust No.
6 and Victor Posner
99.2 Press Release dated January 12, 1995 18
PAGE
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EXHIBIT 99.1
SETTLEMENT AGREEMENT
Settlement Agreement (the "Agreement") made and entered
into as of the 9th day of January, 1995, among Triarc Companies,
Inc. ("Triarc"), a Delaware corporation and the successor by merger
to Triarc Companies, Inc., formerly known as DWG Corporation, an
Ohio corporation, Security Management Corp. ("SMC"), a Maryland
corporation, Victor Posner Trust No. 6 ("Trust No. 6"), a trust
organized by an instrument executed in Dade County, Florida in
September 1968, and Victor Posner ("Posner").
On April 23, 1993, DWG Acquisition Group, L.P., a
Delaware limited partnership, purchased (the "Acquisition")
5,982,867 shares of Common Stock, par value $.10 per share, of
Triarc ("Common Stock") from SMC, Posner and Victor Posner Trust
No. 20, a trust organized under the laws of the State of Florida.
Pursuant to an Exchange Agreement (the "Exchange
Agreement") dated as of October 1, 1992, between Triarc and SMC,
SMC transferred and delivered to Triarc 5,982,866 shares of Common
Stock, and Triarc issued and delivered to SMC, in exchange for such
shares of Common Stock, 5,982,866 shares of Cumulative Convertible
Preferred Stock, par value $.10 per share, of Triarc ("Preferred
Stock").
In connection with the Acquisition, Trust No. 6 and
Triarc entered into a Lease Agreement (the "Lease Agreement") dated
as of April 1, 1993, with respect to the premises known as
Victorian Plaza ("Victorian Plaza") in Miami Beach, Florida,
pursuant to which Triarc leased Victorian Plaza for a term of four
years commencing April 1, 1993, with a base rent of $4,000,000 per
year. Triarc terminated the Lease Agreement effective February 1,
1994. Prior to the date of this Agreement, Triarc had not made the
termination payment to Trust No. 6 provided for in the Lease
Agreement.
Posner and Triarc are defendants in an adversary
proceeding entitled Official Committee of Unsecured Creditors of
APL Corporation, et al. v. Victor Posner, et al., Case No. 94-0150-
BKC-PGH-A (the "APL Action"). APL Corporation ("APL") is involved
in a bankruptcy proceeding, In re APL Corporation, Debtor, Case
No. 93-12506-BKC-PGH.
Posner and Triarc are defendants in an adversary
proceeding entitled Official Committee of Unsecured Creditors of
NVF Company v. Victor Posner et al., Case No. 94-400 (RRM) (the
"NVF Action"). NVF Company ("NVF") is involved in a bankruptcy
proceeding, In re NVF Company, Debtor, Case No. 93-1020.
Pennsylvania Engineering Corp. and certain of its
subsidiaries are involved in bankruptcy proceedings, In re
Pennsylvania Engineering Corp., Debtor, Case No. 94-722, In re
Lectromelt Corporation, Debtor, Case No. 94-723, and In re
Birdsboro Corporation, Debtor, Case No. 94-724 (collectively, the
"PEC Proceedings").
The parties hereto wish to satisfy and resolve
substantially all claims and issues among them that have been or
could have been or could be asserted by Triarc, on the one hand,
and SMC, Trust No. 6 and Posner, on the other hand, including, but
not limited to, all claims and issues relating to the Preferred
Stock, the Lease Agreement, the Victorian Plaza, the NVF Action,
the APL Action and the PEC Proceedings.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, each of the
parties hereto agrees as follows:
1. Definitions.
"Affiliate" shall mean, with respect to any Person,
any other Person controlling, controlled by or under common control
with, such Person.
"Agents" shall mean, with respect to any Person,
such Person's officers, directors, employees, attorneys,
accountants, representatives and agents.
"Business Day" shall mean a day other than a
Saturday, Sunday or other day on which commercial banks in New
York, New York are authorized or required by law to close.
"Certificate" shall mean the Certificate of
Incorporation of Triarc, as amended.
"Permitted Transfer" shall mean (i) a transfer, in
any amount without limitation, of Class B Common Stock issued and
outstanding at the time of such transfer, to a Permitted
Transferee, provided such Permitted Transferee agrees to be bound
by the provisions of this Agreement prior to such Permitted
Transfer; and (ii) a transfer to any Person other than a Permitted
Transferee, provided that the Class B Common Stock so transferred,
when aggregated with all the Class B Common Stock previously
transferred to one or more Persons other than Permitted
Transferees, does not in the aggregate exceed 299,881 shares.
"Permitted Transferee" shall mean a Posner Affiliate
or the spouse, lineal descendant or other relative of a family
member of Posner.
"Person" shall mean any individual, corporation,
partnership, firm, joint venture, association, trust,
unincorporated organization, governmental or regulatory body or
other entity.
"Posner Affiliate" shall mean SMC, Trust No. 6, the
beneficiaries of Trust No. 6, Posner or any Agent or Affiliate of
any of them.
"Triarc Persons" shall mean Triarc, its Affiliates,
its Agents and its Affiliates' Agents.
2. Lease; Victorian Plaza. Trust No. 6 has delivered
to Triarc a written general release which releases the Triarc
Persons from all claims, causes of action or defenses of any kind
whatsoever, whether known or unknown, relating to the Lease
Agreement or the termination thereof or otherwise with respect to
the Victorian Plaza. Thus, as of this date, the Triarc Persons
have no continuing obligation to make any further cash payment or
to pay any other consideration whatsoever under the Lease Agree-
ment, and Trust No. 6 has no further rights or remedies against any
of the Triarc Persons under the Lease Agreement or otherwise with
respect to Victorian Plaza. Without limiting the generality of the
foregoing, Posner and Trust No. 6 expressly acknowledge and agree
that the Triarc Persons shall have no obligation to make or cause
to be made any repairs or to pay for any repairs at Victorian Plaza
or to pay to any Posner Affiliate any amounts with respect to
Victorian Plaza, including, without limitation, any proceeds of any
insurance claim with respect to any damage or purported damage at
Victorian Plaza, nor have any other obligation under the Lease
Agreement or otherwise with respect to the Victorian Plaza.
3. Surrender of Preferred Stock. SMC has delivered to
Triarc for conversion and cancellation all of the shares of
Preferred Stock held by SMC (5,982,866 shares in the aggregate) by
delivering to Triarc the certificates evidencing ownership of all
such shares of Preferred Stock, which SMC represents and warrants
to be free and clear of all liens, encumbrances and claims, with
proper endorsements and instruments of transfer and with all
appropriate stock transfer tax stamps affixed thereto, if any are
required. Thus, as of the date hereof, such shares of Preferred
Stock shall be deemed converted and cancelled and Triarc shall have
no further obligations to any Posner Affiliate with respect to such
Preferred Stock, including, without limitation, no further
obligation to declare or pay dividends on such Preferred Stock or
to pay any other consideration whatsoever with respect to such
Preferred Stock. Without limiting the generality of the foregoing,
Triarc shall have no obligation to pay to any Posner Affiliate, and
the Posner Affiliates have waived their right to receive, any
dividends accrued on such Preferred Stock since the last preceding
dividend payment date.
4. Posner's and SMC's Indemnity Obligations.
(a) APL Claims. Posner and SMC shall, jointly and
severally, indemnify, defend and hold harmless the Triarc Persons
and all current and former Agents (including, but not limited to,
Jack Coppersmith and Raymond J. Dettore) and Affiliates of Triarc
and DWG Corporation (collectively, the "Triarc Indemnitees") from
and against any and all liabilities, losses, damages, costs and
expenses of any kind (including the reasonable fees, disbursements
and other charges of counsel in connection with any investigative,
administrative or judicial proceeding, whether or not such
indemnified person is a party thereto) (collectively, "Losses")
that may be suffered or incurred by any such Triarc Indemnitee on
or after December 1, 1994, relating to or arising out of (i) any
claim made in the APL Action whether as now pleaded or as it may be
amended, (ii) any actual or potential claim, whether known or
unknown, whenever arising, which relates to APL and is based upon
allegations of the type giving rise to the claims made in the APL
Action, (iii) any claim which is related to or arising out of any
alleged or actual action, inaction, liability, obligation or
indebtedness by or of any Posner Affiliate which relates to APL and
(iv) any claim by any Person against any Triarc Indemnitee for
indemnification with respect to the APL Action or any other claim
referred to in this Section 4(a) (collectively, the "APL Claims").
(b) NVF Claims. Posner and SMC shall, jointly and
severally, indemnify, defend and hold harmless the Triarc
Indemnitees from and against any and all Losses that may be
suffered or incurred by any such Triarc Indemnitee on or after
December 1, 1994, relating to or arising out of (i) any claim made
in the NVF Action, whether as now pleaded or as it may be amended,
(ii) any actual or potential claim, whether known or unknown,
whenever arising, which relates to NVF and is based upon
allegations of the type giving rise to the claims made in the NVF
Action, (iii) any claim which is related to or arising out of any
alleged or actual action, inaction, liability, obligation or
indebtedness by or of any Posner Affiliate which relates to NVF,
and (iv) any claim by any Person against any Triarc Indemnitee for
indemnification with respect to the NVF Action or any other claim
referred to in this Section 4(b) (collectively, the "NVF Claims").
(c) Pennsylvania Engineering. Posner and SMC
shall, jointly and severally, indemnify, defend and hold harmless
the Triarc Indemnitees from and against any and all Losses that may
be suffered or incurred by any such Triarc Indemnitee on or after
December 1, 1994, relating to or arising out of any claim, whether
known or unknown, by any Person with respect to the PEC
Proceedings, Pennsylvania Engineering Corp., Lectromelt Corporation
or Birdsboro Corporation.
(d) Notice of Asserted Liability. After receipt by
a Triarc Indemnitee of written notice of any demand, claim or
circumstances that would give rise to a claim or the commencement
(or threatened commencement) of any action or proceeding against or
investigation (each, an "Asserted Liability") with respect to which
an indemnitor is obligated to provide indemnification pursuant to
Section 4 hereof (the "Indemnifying Party"), the Triarc Indemnitee
shall promptly give notice thereof (each, a "Claims Notice") to the
Indemnifying Party. The failure to promptly give such a Claims
Notice with respect to any Asserted Liability shall absolve the
Indemnifying Parties from liability under Section 4 with respect to
such Asserted Liability only if, and only to the extent that,
rights of the Indemnifying Parties are actually prejudiced thereby.
The Claims Notice shall describe the Asserted Liability in
reasonable detail, and shall indicate the amount of the claim only
if an amount is indicated in the Asserted Liability. Posner and
SMC hereby acknowledge receipt of Claims Notices for the APL Claims
and the NVF Claims.
(e) Settlement of NVF Action. Triarc hereby agrees
to use its best efforts in good faith, and within the bounds of law
and ethics, to cooperate with the Posner Affiliates in defending
against the claims asserted by the Official Committee of Unsecured
Creditors of NVF Company in the NVF Action including, inter alia,
sharing of mutually beneficial information and documents pursuant
to a joint defense agreement to be executed by and among the
parties hereto (the parties heretofore having cooperated in the
defense pursuant to an oral joint defense agreement); making
witnesses under Triarc's control reasonably available for
interviews; and sharing of legal and factual research supporting
dismissal of the NVF Action on the grounds that it constitutes an
inappropriate collateral attack on transactions which were approved
by orders or other actions of the United States District Court for
the Northern District of Ohio in Case No. 1:89 CV0641, Case No.
1:92 CV1164. Triarc's obligation to use its best efforts in good
faith to cooperate under this Section 4(e) shall be a continuing
obligation and shall terminate upon the final settlement or
dismissal of the NVF Action; provided that Posner and SMC shall, on
a joint and several and an ongoing basis, promptly pay directly as
directed by Triarc or reimburse Triarc for all of its costs and
expenses (including fees, expenses and disbursements of counsel)
incurred on or after December 1, 1994 in connection with the NVF
Action.
(f) Settlement of APL Action. In order to assist
Posner in settling the claims asserted in the APL Action, Triarc
hereby agrees, as part of any final settlement of the APL Action,
to waive its claims in the bankruptcy proceeding of APL and claims
against subsidiaries of APL; provided that the Triarc Persons
receive a general release from the APL Claims and from claims by
all APL subsidiaries by APL and each plaintiff in the APL Action
and the APL subsidiaries; and provided, further, that Posner and
SMC shall have promptly reimbursed Triarc for all of its costs and
expenses (including fees, expenses and disbursements of counsel)
for services rendered and disbursements incurred on or after
December 1, 1994, in connection with the APL Action.
(g) Costs and Expenses. Without limiting the
generality of the indemnification provided for in this Article 4,
and in lieu of providing security for such indemnification
obligations, Posner and SMC agree to be jointly and severally
responsible for, and hereby agree to promptly (and in any event
within ten (10) Business Days of demand on Posner for reimbursement
or payment) reimburse Triarc or pay directly to any other Person as
directed by Triarc for, all costs and expenses (including fees,
expenses and disbursements of counsel) incurred by any Triarc
Person and any other Person on behalf of any Triarc Person for
services rendered to or disbursements incurred on behalf of any
Triarc Person and any other Person on behalf of any Triarc Person
on or after December 1, 1994 in connection with the APL Action, the
NVF Action, the PEC Proceedings or the enforcement by a Triarc
Person of its rights under this Article 4. Posner has entered into
a retainer agreement with Triarc pursuant to which Posner has paid
to Triarc for the benefit of each Person entitled to payment under
this Section 4(g) a retainer in the amount specified in such
agreement, and Posner and SMC shall, on the first day of each
month, make an additional payment to Triarc in the amount, if any,
necessary to restore the retainer to its full amount. Amounts for
which Persons are entitled to payment under this Section 4(g) shall
be paid first from the retainer and after the retainer has been
exhausted, by Posner and SMC directly. Triarc agrees to use its
reasonable best efforts in good faith and within the bounds of law
and ethics to cooperate and to cause each Person entitled to
payment hereunder to cooperate in order to prevent unnecessary
duplication of efforts that would result in significantly higher
cost reimbursement hereunder.
(h) Representations, Warranties and Covenant. For
as long as it has any obligations hereunder SMC agrees and
covenants with and to Triarc that it shall not create, assume or
suffer to exist any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind on its Class B Common Stock,
par value $.10 per share, of Triarc ("Class B Common Stock").
5. Class B Common Stock.
(a) Issuance of Class B Common Stock. Triarc has
delivered 5,402,384 shares of Class B Common Stock to SMC, and
595,238 shares of Class B Common Stock to Trust No. 6, by
delivering to SMC and to Trust No. 6 certificates representing such
shares. Such shares of Class B Common Stock are duly and validly
issued, fully paid and non-assessable.
(b) Conversion Right. Subject to the terms and
conditions set forth herein and in the Certificate and upon
compliance with the provisions hereof and thereof, each share of
Class B Common Stock is convertible into one fully paid and non-
assessable share of Class A Common Stock, par value $.10 per share,
of Triarc ("Class A Common Stock"). Although the Certificate does
not provide otherwise, for purposes of clarity, it is expressly
acknowledged and agreed that the number of shares of Class A Common
Stock issuable upon conversion of the Class B Common Stock shall
not at any time be adjusted notwithstanding issuance or sale of any
shares of Class A Common Stock for a consideration per share less
than the current market price in effect immediately prior to such
issuance or sale of Class A Common Stock. SMC and Trust No. 6
hereby waive the right to convert the shares of Class B Common
Stock into Class A Common Stock which is set forth in Article IV,
Section 3(a)(ii) of the Certificate; this waiver shall be effective
on behalf of all Permitted Transferees of such shares. Each of SMC
and Trust No. 6 hereby irrevocably agree to vote in favor of an
amendment to the Certificate to eliminate therefrom the right which
is referred to in the preceding sentence.
(c) Right of First Refusal. SMC, Trust No. 6 and
their Permitted Transferees hereby agree that they will not,
directly or indirectly, sell, transfer, assign or otherwise dispose
of, or enter into any contract, option or other arrangement with
respect to the sale, transfer, assignment or other disposition of,
any shares of the Class B Common Stock (whether for cash or other
consideration) to a Person (a "Third Party"), other than to any
Permitted Transferee which assumes in writing the obligations of
SMC or Trust No. 6, as the case may be, contained in this Agreement
or to Triarc or its designee, unless (A) such transaction is a
Permitted Transfer or (B) prior to any such transaction with a
Third Party, the transferor shall have offered, by written notice
(a "Proposed Sale Notice"), to sell the number of shares of the
Class B Common Stock proposed to be purchased by the Third Party
(the "Offered Shares") to Triarc or its designee upon the same
terms and conditions as the proposed transaction. The Proposed
Sale Notice shall state the number of Offered Shares, the terms and
conditions of the Third Party transaction and the name and address
of the Third Party. Upon receipt of the Proposed Sale Notice,
Triarc or its designee shall be entitled to purchase the Offered
Shares upon the terms and conditions set forth in the Proposed Sale
Notice. The right of first refusal shall be exercisable by Triarc
or its designee giving written notice (an "Acceptance Notice") to
the transferor within ten (10) Business Days of its receipt of the
Proposed Sale Notice. A closing of any purchase of Offered Shares
by Triarc or its designee under this Section 5(c) shall be held at
the principal offices of Triarc at 2 p.m. on the tenth (10th)
Business Day following delivery of the Acceptance Notice to the
transferor and at such closing the transferor and Triarc or its
designee shall consummate the sale and purchase of the Offered
Shares in accordance with the terms and conditions set forth in the
Proposed Sale Notice. If Triarc or its designee does not so elect
and give an Acceptance Notice within such ten (10) Business Day
period after its receipt of the Proposed Sale Notice, such failure
shall be deemed a rejection of the offer, and the transferor shall
be free to consummate such transaction with the Third Party in
accordance with its contemplated terms or terms not less favorable
to the transferor so long as such transaction is consummated on
such terms within ninety (90) days following the expiration of such
ten (10) Business Day period. In the event such transaction is not
consummated within such ninety (90) day period, the Offered Shares
shall remain subject to the provisions of this Section 5(c).
(d) Voting. SMC, Trust No. 6 and their Permitted
Transferees hereby agree that, if it shall be required by law that
holders of Class B Common Stock be entitled to vote on a certain
matter, then SMC, Trust No. 6 and the Permitted Transferees of
their Class B Common Stock shall vote on such matter in the same
manner as the majority of the shares of Class A Common Stock are
voted. To effectuate the voting which has been agreed to in the
preceding sentence with respect to each separate matter with
respect to which the corporate law grants a voting right to holders
of Class B Common Stock, each of SMC, Trust No. 6 and their
Permitted Transferees hereby gives an irrevocable proxy to those
persons who are designated by the Board of Directors to act as
proxies with respect to the voting by the Class A Common Stock
holders on such matter or, if no such persons have been designated,
to such persons as shall be appointed by the Board of Directors
with respect to each such matter for this purpose.
6. Payment by Posner to Triarc. Posner has paid to
Triarc, by wire transfer of immediately available funds, the sum of
$6,000,000.00. Triarc hereby agrees that upon receipt of such
payment it has released the Posner Affiliates from all claims that
it may have with respect to (i) the claim of Andrew Heine for fees
in the Grenada Litigation, (ii) fees payable to the court appointed
members of the Special Committee of the Board of Directors of
Triarc and (iii) subject to the obligations of Posner and SMC under
Article 4 hereof (including, without limitation, Section 4(g)) (a)
fees paid or payable to counsel for such Special Committee and (b)
fees paid or payable to counsel for Triarc incurred in connection
with the matters referred to in this Agreement.
7. Mutual Releases. Each of Posner, SMC and Trust
No. 6, on the one hand and Triarc on the other hand has delivered
releases pursuant to which: (i) Posner, SMC and Trust No. 6, on
behalf of himself and itself, and his and its Affiliates, has
unconditionally released the Triarc Persons from all claims, causes
of action or defenses of any kind whatsoever (if any), whether
known or unknown, which Posner, SMC, Trust No. 6 or any of his or
its Affiliates might otherwise have against any Triarc Person on
account of the Lease Agreement, the Victorian Plaza, the Preferred
Stock, the NVF Action, the APL Action and the PEC Proceedings, but
excluding all claims, causes of action or defenses arising out of
the obligations under this Agreement; and (ii) Triarc on behalf of
itself and its Affiliates has unconditionally released the Posner
Affiliates from all claims, causes of action or defenses of any
kind whatsoever (if any), whether known or unknown, which Triarc or
any of its Affiliates might otherwise have against Posner, SMC or
Trust No. 6 on account of the Lease Agreement, the Victorian Plaza,
the Preferred Stock, the NVF Claim, the APL Claim and the PEC
Proceedings, but excluding all claims, causes of action or defenses
arising out of the obligations under this Agreement. The parties
hereto agree that the foregoing releases shall not apply to any
claims, causes of action or defenses arising out of any obligation
under this Agreement or any document delivered pursuant to this
Agreement.
8. NVF/Chesapeake Insurance Company Limited. NVF has
brought a claim against Chesapeake Insurance Company, Ltd., a
subsidiary of Triarc ("CIC"), in the action NVF Company v.
Chesapeake Insurance Company, Ltd., a Bermuda corporation,
Alexander & Alexander, Inc., a Maryland corporation, Does 1-50
inclusive, Case No. 94-312, D. Del. (the "CIC Action") alleging
that CIC breached a contractual obligation to pay NVF approximately
$1,000,000 for damages sustained as a result of two fires at NVF-
owned plants and demanding that CIC return to NVF approximately
$450,000 of unused insurance premiums and seeking approximately
$500,000 in consequential damages as a result of CIC's alleged bad
faith with respect to these claims and punitive damages in the
amount of $3,000,000. Posner hereby agrees that if at any time NVF
becomes an Affiliate of Posner, Posner shall immediately cause NVF
to dismiss the CIC Action with prejudice and release CIC from all
liability with respect to the subject matter of the CIC Action.
9. Status of Steven Posner. Notwithstanding anything
to the contrary herein contained, nothing in this Agreement shall
affect or change in any way any legal right, obligation or
liability running between Triarc and Steven Posner, whether or not
relating to the subject matter hereof.
10. Miscellaneous.
(a) Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
(b) Headings. The descriptive headings which are
used in this Agreement are for convenience only and shall not
affect the interpretation of any provision of this Agreement.
(c) Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
(d) Notices. All notices or other communication
required or permitted hereunder shall be in writing and shall be
delivered personally, telegraphed, telecopied or sent by certified,
registered or express mail, postage prepaid. Any such notice shall
be deemed given when so delivered personally, telegraphed,
telecopied or sent by certified, registered or express mail or, if
mailed, five days after the date of deposit in the United States
mail, as follows:
(i) If to Triarc, to it at:
900 Third Avenue
New York, New York 10022
Facsimile: (212) 230-3216
Attention: Brian L. Schorr, Executive
Vice President and
General Counsel
with copies to:
(a) Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Facsimile: (212) 757-3990
Attention: Neale M. Albert, Esq.
(b) Harold Kelley, Esq.
1200 Bath Avenue, Suite 280
Ashland, Kentucky 41101
Facsimile: (606) 327-1776
(ii) if to SMC, to it at:
6917 Collins Avenue
Miami Beach, Florida 33141
Facsimile: (305) 868-6817
Attention: Victor Posner
with copies to:
(a) Donald J. Glazer
6917 Collins Avenue
Miami Beach, Florida 33141
Facsimile: (305) 865-9875
(b) Titus & McConomy
Four Gateway Center - 20th Floor
Pittsburgh, Pennsylvania 15222
Facsimile: (412) 642-2950
Attention: Paul H. Titus, Esq.
(iii) If to Trust No. 6, in care of:
6917 Collins Avenue
Miami Beach, Florida 33141
Facsimile: (305) 868-6817
Attention: Victor Posner
with copies to:
(a) Donald J. Glazer
6917 Collins Avenue
Miami Beach, Florida 33141
Facsimile: (305) 865-9875
(b) Titus & McConomy
Four Gateway Center - 20th Floor
Pittsburgh, Pennsylvania 15222
Facsimile: (412) 642-2950
Attention: Paul H. Titus, Esq.
(iv) if to Victor Posner, to:
6917 Collins Avenue
Miami Beach, Florida 33141
Facsimile: (305) 868-6817
with copies to:
(a) Donald J. Glazer
6917 Collins Avenue
Miami Beach, Florida 33141
Facsimile: (305) 865-9875
(b) Titus & McConomy
Four Gateway Center - 20th Floor
Pittsburgh, Pennsylvania 15222
Facsimile: (412) 642-2950
Attention: Paul H. Titus, Esq.
Any party may by notice given in accordance with this Section 10(d)
designate another address or person for receipt of notices
hereunder.
(e) Consent to Jurisdiction.
(i) Triarc and each of Posner, SMC and Trust
No. 6 hereby irrevocably and unconditionally submits itself in any
legal action or proceeding relating to this Agreement to the
jurisdiction of the State and Federal Courts in the State of New
York.
(ii) Each of Posner, SMC and Trust No. 6
hereby irrevocably and unconditionally:
(A) Designates and directs as its agent
Rosen & Reade, 757 Third Avenue, New York, New York 10017 to
receive service of any and all process and documents on its behalf,
in any legal action or proceeding referred to in clause (i) above
in the State of New York and agrees that service upon such agent
shall constitute valid and effective service and that failure of
such agent to give any notice of such service to its principal
shall not affect or impair in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon;
(B) Agrees to notify Triarc promptly by
registered or certified mail if such agent in the City of New York
shall cease to act as agent, and, in such event, promptly to
designate another agent in the City of New York to serve in place
of such agent and deliver to Triarc written evidence of such
substitute agent's acceptance of such designation; and
(C) Agrees that nothing herein shall
affect Triarc's right to effect service of process in any other
manner permitted by law, and that notwithstanding the provisions
set forth in Section 10(e)(i), Triarc shall have the right to bring
any legal proceedings for enforcement of a judgment entered by any
of the aforementioned courts against Posner, SMC or Trust No. 6, in
such courts or in any other court or jurisdiction in accordance
with applicable laws.
(iii) Triarc hereby irrevocably and
unconditionally:
(A) Designates and directs as its agent
Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the
Americas, New York, New York 10019-6064 to receive service of any
and all process and documents on its behalf, in any legal action or
proceeding referred to in clause (i) above in the State of New York
and agrees that service upon such agent shall constitute valid and
effective service and that failure of such agent to give any notice
of such service to its principal shall not affect or impair in any
way the validity of such service or any judgment rendered in any
action or proceeding based thereon;
(B) Agrees to notify Posner promptly by
registered or certified mail if such agent in the City of New York
shall cease to act as agent, and, in such event, promptly to
designate another agent in the City of New York to serve in place
of such agent and deliver to Posner written evidence of such
substitute agent's acceptance of such designation; and
(C) Agrees that nothing herein shall
affect the rights of Posner, SMC or Trust No. 6 to effect service
of process in any other manner permitted by law, and that
notwithstanding the provisions of Section 10(e)(i) Posner, SMC and
Trust No. 6 shall have the right to bring any legal proceedings for
enforcement of a judgment entered by any of the aforementioned
courts against Triarc, in such courts or in any other court or
jurisdiction in accordance with applicable laws.
(f) Complete Agreement. This Agreement is the
entire agreement among the parties with respect to the subject
matter hereof, and supersedes all prior agreements and
communications, whether oral or written, among the parties hereto
with respect to such subject matter. Any amendment or modification
of this Agreement must be in writing and duly signed by all parties
hereto.
(g) Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely
within such State.
IN WITNESS WHEREOF, each of the parties has executed this
Agreement as of the date first written above.
TRIARC COMPANIES, INC.
By: /s/Joseph A. Levato
-------------------------------
Name: Joseph A. Levato
Title: Executive Vice President
SECURITY MANAGEMENT CORP.
By: /s/Brenda N. Castellano
-------------------------------
Name: Brenda N. Castellano
Title: Executive Vice President
VICTOR POSNER TRUST NO. 6
By: /s/Victor Posner
--------------------
Name: Victor Posner
Title: Trustee
/s/Victor Posner
-----------------
Victor Posner
PAGE
<PAGE>
EXHIBIT 99.2
Contact: Martin M. Shea FOR
IMMEDIATE RELEASE
(212) 230-3175
TRIARC ANNOUNCES COMPLETION OF
EARLY CONVERSION OF PREFERRED STOCK
NEW YORK, NEW YORK -- January 12, 1995 -- Triarc Companies,
Inc. (NYSE: TRY) announced today the completion of its previously
announced agreement under which an affiliate of Victor Posner has
converted the $71.8 million stated value of Triarc's 8-1/8%
Redeemable Convertible Preferred Stock owned by it into 4,985,722
shares of Triarc's non-voting Class B Common Stock and has thereby
foregone future preferred dividends on such preferred stock, which
would have aggregated $5.8 million per annum. In addition, in
consideration for, among other things, the settlement of amounts
due to another affiliate of Mr. Posner for the termination of the
lease for the former DWG Corporation headquarters and receipt by
Triarc of an indemnification by Mr. Posner and one of his
affiliates of third-party claims and expenses involving NVF
Company, APL Corporation and Pennsylvania Engineering, an
additional 1,011,900 shares of non-voting Class B Common Stock were
issued to Mr. Posner and one of his affiliates. All of the newly
issued shares of Class B Common Stock are identical to the Class A
Common Stock, except that the B shares do not vote, and they can
only be sold subject to a right of first refusal of Triarc or its
designee.
In addition, Mr. Posner has paid Triarc in cash for certain
additional expenses related to these claims, and Triarc has agreed
to waive certain claims against APL if Mr. Posner acquires APL and
APL gives Triarc a general release.
As previously announced, the net impact of the transaction is:
1. An increase in Triarc's common shareholder's equity of
approximately $83 million;
2. Elimination of all future preferred dividends payable to
Mr. Posner and his affiliates, which aggregate $5.8
million per annum; and
3. Removal of cash requirements relating to accrued rent and
certain litigations.
With annual sales of more than $1 billion, Triarc Companies is
engaged in four core businesses: restaurants (Arby's), soft drinks
(Royal Crown Cola), textiles (Graniteville) and liquefied petroleum
gas (National Propane).
(end)
