EXHIBIT 10.1
INDEMNITY AGREEMENT
-------------------
INDEMNITY AGREEMENT, dated as of October 25, 2000 (this
"AGREEMENT"), by and between CADBURY SCHWEPPES PLC, an English public limited
company ("CS"), and TRIARC COMPANIES, INC., a Delaware corporation (the
"PARENT"),
Pursuant to an Agreement and Plan of Merger, dated as of
September 15, 2000, among CS, CSN Acquisition Inc., CRC Acquisition Inc.,
Snapple Beverage Group, Inc., Royal Crown Company, Inc. and Parent (including
any amendments thereto, the "MERGER AGREEMENT"), CS has agreed to assume all of
the Merging Companies' and TCPG's obligations under the 10-1/4% Indenture,
including, without limitation, all obligations with respect to the 10-1/4% Notes
and to assume all of the Parent's obligations under the Parent Indenture,
including, without limitation, all obligations with respect to the 2018
Debentures (collectively, the "ASSUMED DEBT");
Capitalized terms used herein but not defined herein shall
have the meaning assigned to such terms in the Merger Agreement;
It is a condition to the obligations of Parent and the Merging
Companies to consummate the transactions contemplated by the Merger Agreement
that CS execute and deliver this Agreement.
Accordingly, the parties agree as follows:
1. INDEMNIFICATION BY CS.
1.1. CS'S INDEMNIFICATION OBLIGATIONS. CS shall be liable
to and indemnify, defend and hold harmless Parent and its directors, officers,
employees, subsidiaries (including, without limitation, New LLC), affiliates,
successors and assigns (each, an "INDEMNIFIED PARTY") from and against any and
all damages, losses, claims, charges, actions, suits, proceeding, deficiencies,
taxes, interest, penalties, liabilities, payments of any nature and costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) (each a "LOSS" and collectively the "LOSSES") based upon, arising out
of or otherwise in respect of the Assumed Debt, except to the extent CS or its
affiliates are entitled to indemnification under Section 5.11.11, 5.12.7 or 7.3
of the Merger Agreement.
<PAGE>
2
2. THIRD PARTY CLAIMS.
2.1. NOTICE OF ASSERTED LIABILITY. Promptly after receipt
by an Indemnified Party of notice of any demand, claim or circumstances by a
third party which, with the lapse of time, would or might give rise to a claim
or the commencement (or threatened commencement) of any action, audit,
proceeding or investigation (an "ASSERTED LIABILITY") that may result in a Loss
in respect of which indemnification may be sought from CS under this Agreement
such Indemnified Party shall give written notice thereof (the "INDEMNIFICATION
NOTICE") to CS. The Indemnification Notice shall describe the Asserted Liability
in reasonable detail, and shall indicate the amount (estimated, if necessary and
to the extent it is feasible) of the Loss that has been or may be suffered by
such Indemnified Party. The failure to give the Indemnification Notice promptly
shall not bar indemnification hereunder except and only to the extent such
failure materially prejudiced the party against whom indemnification is sought.
2.2. OPPORTUNITY TO DEFEND. CS shall be entitled to assume
the defense of any Asserted Liability for which it has an obligation to
indemnify an Indemnified Party pursuant to Section 1.1 hereof at its own
expense, with counsel reasonably satisfactory to such Indemnified Party;
PROVIDED, HOWEVER, that any Indemnified Party may, at its own expense, retain
separate counsel to participate in such defense. Notwithstanding the foregoing,
in any action, claim or proceeding in which the defendants include both an
Indemnified Party and CS, if, in the reasonable opinion of counsel to such
Indemnified Party, (i) there are or may be legal defenses available to such
Indemnified Party or to other Indemnified Persons that are different from or
additional to those available to CS or (ii) a conflict or potential conflict
exists between CS, on the one hand, and such Indemnified Party, on the other
hand, that would make separate representation advisable, such Indemnified Party
shall have the right to employ separate counsel reasonably satisfactory to CS at
the expense of CS and to control its own defense of such action, claim or
proceeding; PROVIDED, HOWEVER, that CS shall not be liable for the fees and
expenses of more than one counsel to all Indemnified Parties in any one legal
action or group of related legal actions. If CS does not assume the defense of
any Asserted Liability within thirty (30) days (or less if the nature of the
Asserted Liability requires its receipt of the Indemnification Notice), the
Indemnified Party shall control the investigation, defense and settlement
thereof at the reasonable cost of CS, and CS shall make or cause to be made
available to the Indemnified Party any books, records or other documents within
its control that are reasonably requested by the Indemnified Party for such
defense. CS shall not be liable for any settlement of any claim, action or
proceeding effected against an Indemnified Party without its written consent,
which consent shall not be unreasonably withheld or delayed.
<PAGE>
3
2.3. AUTHORITY OF CS. In the event an Indemnification
Notice is delivered to CS in respect of an Asserted Claim, and CS assumes the
defense thereof, CS shall have the discretion to make all decisions and
determinations permitted or required to be made by CS under Section 2.2 above
with respect to such Asserted Claim, and Parent shall make or cause to be made
available to CS any books, records or other documents within its control that
are reasonably requested by CS for such defense. CS agrees that it will not,
without the prior written consent of the Indemnified Party, which shall not be
unreasonable withheld or delayed, settle, compromise or consent to the entry of
any judgment in any pending or threatened claim, action or proceeding unless
such settlement, compromise or consent includes a full and unconditional release
of all Indemnified Parties from all liability arising or that may arise out of
such claim, action or proceeding.
3. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Any legal
action, suit or proceeding arising out of or relating to this agreement shall be
instituted in the United States District Court for the Southern District of New
York, and each party agrees not to assert, by way of motion, as a defense, or
otherwise, in any such action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of any such Court, that the action, suit
or proceeding is brought in an inconvenient forum, that the venue of the action,
suit or proceeding is improper or that this Indemnification Agreement or the
subject matter hereof may not be enforced in or by any such Court. Each party
irrevocably submits to the jurisdiction of any such Court in any such action,
suit or proceeding. Any and all service of process and any other notice in any
such action, suit or proceeding shall be effective against any party if given
personally or by registered or certified mail, return receipt requested, or by
any other means of mail that requires a signed receipt, postage prepaid, mailed
to such party as herein provided. Nothing herein contained shall be deemed to
affect the rights of any party to serve process in any manner permitted by law.
4. MISCELLANEOUS.
4.1. NOTICES. Any notice or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
delivered when delivered by hand or sent by telecopier (with receipt confirmed),
or if delivered by courier shall be deemed given on the close of business on the
second Business Day following the day when deposited with an overnight courier
or the close of business on the fifth (5th) Business Day when deposited in the
United States mail, postage prepaid, certified or registered addressed to the
party at the address set forth below, with copies sent to the persons indicated:
<PAGE>
4
(a) if to the Sellers, to:
Triarc Companies, Inc.
280 Park Avenue
New York, NY, 10017
Fax: 212-451-3216
Attn.: Brian L. Schorr, Esq.
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
Fax: 212-757-3990
Attn: Neale M. Albert, Esq.
Paul D. Ginsberg, Esq.
if to CS, to (or such other address as it
shall have furnished to the other parties in
writing):
Cadbury Schweppes plc
25 Berkeley Square
London, England W1X 6HT
Fax: (011) 44-207-830-5221
Attn: Company Secretary
with a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Fax: 212-309-6636
Attn.: Charles E. Engros, Esq.
4.2. ENTIRE AGREEMENT. This Agreement is entered into and
delivered pursuant to the Merger Agreement and as such contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto (other
than the Merger Agreement). In the event of any conflict or inconsistency
between the terms of this Agreement and the provisions of the Merger Agreement,
the parties agree that the provisions of this Agreement shall prevail.
<PAGE>
5
4.3. WAIVERS AND AMENDMENTS. This Agreement may be
amended, superseded, canceled, renewed or extended, and the terms and conditions
hereof may be waived, only by a written instrument signed by CS and Parent, or,
in the case of a waiver, by the party waiving compliance. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, nor any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of any
other such right, power or privilege.
4.4. GOVERNING LAW. This Indemnification Agreement shall
be governed and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such State.
4.5. ASSIGNMENT. CS may not assign any of its rights,
interests or obligations under this Agreement without the prior written consent
of Parent, which may be given or withheld in its sole discretion. This
Indemnification Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
4.6. FURTHER ASSURANCES. Each of the parties shall execute
such documents and other papers and take such further actions as may be
reasonably required or desirable to carry out the provisions hereof and the
transactions contemplated hereby.
4.7. COUNTERPARTS. This Indemnification Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
4.8. HEADINGS. The headings in this Indemnification
Agreement are for reference only and shall not affect the interpretation of this
Indemnification Agreement.
<PAGE>
6
IN WITNESS WHEREOF, the parties have executed this
Indemnification Agreement as of the date first above written.
CADBURY SCHWEPPES PLC
By: /s/ Mike Clark
---------------------------------------
Name: Mike Clark
Title: Secretary
TRIARC COMPANIES, INC.
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
