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).
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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"),
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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,
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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
<PAGE>
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
<PAGE>
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
<PAGE>
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
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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
<PAGE>
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
<PAGE>
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
<PAGE>
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-
<PAGE>
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
<PAGE>
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).
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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,
<PAGE>
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).
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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.
[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>
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>
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>
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(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>
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
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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>
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>
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>
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>
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>
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
[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>
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>
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>
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>
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>
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>
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>
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
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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>
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
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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>
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>
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>
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>
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>
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.
