EXHIBIT 4.1
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REGISTRATION RIGHTS AGREEMENT
among
TRIARC COMPANIES, INC.
and
CERTAIN STOCKHOLDERS OF TRIARC COMPANIES, INC.
____________________________
Dated as of July 25, 2005
____________________________
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TABLE OF CONTENTS
PAGE
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Section 1. Definitions.................................................1
Section 2. Shelf Registration..........................................4
Section 3. Registration Procedures.....................................7
Section 4. RTMRG Holder's Obligations.................................11
Section 5. Registration Expenses......................................12
Section 6. Indemnification............................................12
Section 7. Information Requirements...................................16
Section 8. Miscellaneous..............................................16
-i-
REGISTRATION RIGHTS AGREEMENT dated as of July 25, 2005 (this
"AGREEMENT"), between Triarc Companies, Inc., a Delaware corporation (the
"COMPANY"), and certain stockholders of the Company listed on SCHEDULE 1
attached hereto (collectively, the "RTMRG STOCKHOLDERS").
WHEREAS, the Company, Arby's Acquisition Co., a Georgia corporation and
a direct wholly owned subsidiary of the Company ("MERGER SUB CORP."), Arby's
Restaurant, LLC, a Delaware limited liability company and a direct wholly owned
subsidiary of the Company ("MERGER SUB LLC"), RTM Restaurant Group, Inc., a
Georgia corporation ("RTMRG") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, as the RTM Representatives (as defined therein), have
entered into an Agreement and Plan of Merger, dated as of May 27, 2005 (as the
same may be amended or modified from time to time in accordance with its terms,
the "MERGER AGREEMENT"), which provides, among other things, for the merger of
Merger Sub Corp. with and into RTMRG, with RTMRG surviving the merger and
becoming an indirect wholly owned subsidiary of the Company (the "FIRST
MERGER"), followed immediately thereafter by the merger of RTMRG with and into
Merger Sub LLC, with Merger Sub LLC surviving such merger;
WHEREAS, pursuant to the transactions contemplated by the Merger
Agreement, the RTMRG Stockholders received, as consideration for the First
Merger, cash and shares of Triarc Class B-1 Common Stock; and
WHEREAS, it is a condition to the obligation of RTMRG to effect the
First Merger that the Company grant registration rights with respect to the
Registrable Securities (as hereinafter defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by or is under common control
with, such first Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGREEMENT" has the meaning set forth in the preamble.
"AMENDMENT EFFECTIVENESS DEADLINE DATE" has the meaning set forth in
Section 2(d)(i).
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which banks in New York City are permitted or required by law to be closed,
and shall consist of the time period from 12:01 a.m. through 12:00 midnight
Eastern time.
"CLOSING DATE" has the meaning set forth in the Merger Agreement.
"COMPANY" has the meaning set forth in the preamble.
"DEFERRAL NOTICE" has the meaning set forth in Section 3(h)(ii).
"DEFERRAL PERIOD" has the meaning set forth in Section 3(h).
"EFFECTIVENESS PERIOD" means the period commencing on the date hereof
and ending on the earlier of the date that is (i) two years after the date on
which the Initial Shelf Registration Statement becomes effective, as may be
extended pursuant to Section 2(b), and (ii) the date that all Registrable
Securities have ceased to be Registrable Securities or have been sold under the
Initial Shelf Registration Statement or a Subsequent Shelf Registration
Statement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"FILING DEADLINE DATE" has the meaning set forth in Section 2(a).
"FIRST MERGER" has the meaning set forth in the recitals.
"INDEMNIFIED PARTY" has the meaning set forth in Section 6(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section 6(c).
"INITIAL SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(a).
"LIQUIDATED DAMAGES AMOUNT" has the meaning set forth in Section 2(e).
"LOSSES" has the meaning set forth in Section 6(a).
"MATERIAL EVENT" has the meaning set forth in Section 3(h).
"MERGER AGREEMENT" has the meaning set forth in the recitals.
"MERGER SUB CORP." has the meaning set forth in the recitals.
"MERGER SUB LLC" has the meaning set forth in the recitals.
"NOTICE AND QUESTIONNAIRE" means a written notice and questionnaire in
customary form delivered by an RTMRG Holder to the Company.
"PERSON" has the meaning set forth in the Merger Agreement.
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"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"REGISTRABLE SECURITIES" means: (a) any and all shares of Triarc Class
B-1 Common Stock received by the RTMRG Stockholders pursuant to the Merger
Agreement and any shares of capital stock issued or issuable to any of the RTMRG
Holders with respect to such shares of Triarc Class B-1 Common Stock by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e).
"REGISTRATION STATEMENT" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"RESTRICTED SECURITIES" means "restricted securities" as defined in
Rule 144.
"RTM PARTIES" means RTMRG, RTM Management Company, LLC, and RTM
Acquisition Company, LLC and each of their subsidiaries.
"RTM REPRESENTATIVES" has the meaning set forth in the Merger
Agreement.
"RTMRG" has the meaning set forth in the recitals.
"RTMRG HOLDER" means any RTMRG Stockholder holding Registrable
Securities and each transferee of Registrable Securities from an RTMRG
Stockholder, other than a transferee to whom Registrable Securities have been
transferred pursuant to a Registration Statement under the Securities Act or
Rule 144 or Regulation S under the Securities Act (or any successor rule
thereto).
"RTMRG NOTICE HOLDER" means, on any date, any RTMRG Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such date.
"RTMRG STOCKHOLDERS" has the meaning set forth in the preamble.
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"RULE 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"RULE 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission or any successor
agency then having jurisdiction to enforce the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a).
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(b).
"TRIARC CLASS B-1 COMMON STOCK" has the meaning set forth in the Merger
Agreement.
"TRIARC MATERIAL ADVERSE EFFECT" has the meaning set forth in the
Merger Agreement.
Section 2. SHELF REGISTRATION.
(a) The Company shall prepare and file or cause to be
prepared and filed with the SEC, as soon as practicable after the date hereof
but in any event not later than 30 days after the date hereof (the "FILING
DEADLINE DATE"), a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a "SHELF
REGISTRATION STATEMENT") registering the resale from time to time by RTMRG
Holders of all of the Registrable Securities (the "INITIAL SHELF REGISTRATION
Statement"). The Initial Shelf Registration Statement shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by such RTMRG Holders in accordance with the methods of distribution
elected by the RTMRG Holders and set forth in the Initial Shelf Registration
Statement. The Company shall use its commercially reasonable efforts to cause
the Initial Shelf Registration Statement to be declared effective under the
Securities Act as promptly as is reasonably practicable, and, subject to any
Deferral Periods, to keep the Initial Shelf Registration Statement (or any
Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time the
Initial Shelf Registration Statement is declared effective, each RTMRG Holder
that became an RTMRG Notice Holder on or prior to the date ten Business Days
prior to such time of effectiveness shall be named as a selling securityholder
in the Initial Shelf Registration Statement and the related Prospectus in such a
manner as to permit such
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RTMRG Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with applicable law.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall use
its commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
commercially reasonable efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is practicable after such filing
and, subject to any Deferral Periods, to keep such Registration Statement (or
subsequent Shelf Registration Statement) continuously effective until the end of
the Effectiveness Period. In the event that the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement ceases to be effective
as described in this paragraph, the Effectiveness Period shall be extended by a
period of time equal to the period of time during which there was no effective
Shelf Registration Statement covering all of the Registrable Securities.
(c) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement, or if required by the Securities Act.
(d) Each RTMRG Holder agrees that if such RTMRG Holder
wishes to sell Registrable Securities pursuant to a Shelf Registration Statement
and related Prospectus, it will do so only in accordance with this Section 2(d)
and Section 3(h). Each RTMRG Holder wishing to sell Registrable Securities
pursuant to a Shelf Registration Statement and related Prospectus agrees to
deliver a Notice and Questionnaire to the Company at least three Business Days
prior to any intended distribution of Registrable Securities under the Shelf
Registration Statement. From and after the date the Initial Shelf Registration
Statement is declared effective, the Company shall, as promptly as practicable
after the date a Notice and Questionnaire is delivered, and in any event upon
the later of (x) five Business Days after such date or (y) five Business Days
after the expiration of any Deferral Period in effect when the Notice and
Questionnaire is delivered or put into effect within five Business Days of such
delivery date:
(i) if required by applicable law, file with the SEC
a post-effective amendment to the Shelf Registration Statement or prepare and,
if required by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference or
file any other required
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document so that the RTMRG Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such RTMRG Holder to deliver
such Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement, use its commercially reasonable efforts to cause
such post-effective amendment to be declared effective under the Securities Act
as promptly as is practicable, but in any event by the date (the "AMENDMENT
EFFECTIVENESS DEADLINE DATE") that is 45 days after the date such post-effective
amendment is required by this clause to be filed;
(ii) provide such RTMRG Holder copies of any
documents filed pursuant to Section 2(d)(i); and
(iii) notify such RTMRG Holder as promptly as
practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i);
PROVIDED, that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the RTMRG Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(h). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any RTMRG Holder that is not an RTMRG
Notice Holder as a selling securityholder in any Registration Statement or
related Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be
extended by up to five Business Days from the expiration of a Deferral Period if
such Deferral Period shall be in effect on the Amendment Effectiveness Deadline
Date.
(e) The parties to this Agreement agree that the RTMRG
Holders will suffer damages, and that it would not be feasible to ascertain the
extent of such damages with precision, if the Company fails to file the Initial
Shelf Registration Statement or any Subsequent Shelf Registration Statement
within the time periods set forth in Section 2(a) and 2(b), respectively (each,
a "REGISTRATION DEFAULT"). Accordingly, if a Registration Default shall have
occurred and be continuing, the Company agrees to pay, as liquidated damages and
not as a penalty, to the RTMRG Holders, in the aggregate, $40,000 (which amount
shall be reduced by a pro rata amount for any Registrable Securities as of the
date hereof that cease to be Registrable Securities after the date hereof) (the
"LIQUIDATED DAMAGES AMOUNT") for each day during the period beginning on the
date that a Registration Default shall have occurred and ending on (but
excluding) the date on which no Registration Default is continuing.
Notwithstanding the foregoing, no Liquidated Damages Amount shall accrue as to
any Registrable Security from and after the earlier of (x) the date such
security is not longer a Registrable Security and (y) expiration of the
Effectiveness Period. The parties to this Agreement agree that the liquidated
damages provided for in this Section 2(e) constitute a reasonable estimate of
the damages that may be incurred by RTMRG Holders by reason of any Registration
Default and that the sole damages payable for a Registration Default shall be
the Liquidated Damages Amount.
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(f) Notwithstanding anything to the contrary set forth in
this Agreement (including Section 2(e)), Triarc shall have no liability to any
RTMRG Holder under this Agreement for any breach of this Agreement by Triarc to
the extent related to, or arising or resulting from, any matter related to
information included or required to be included in the Shelf Registration
Statement or Prospectus concerning any RTM Party, including any delay caused by
the failure to obtain the requisite consents of Ernst & Young LLP to the
inclusion of financial statements of any RTM Party for any period prior to the
Closing Date in the Shelf Registration Statement or Prospectus, the
unavailability of required financial information concerning any RTM Party for
any period prior to the Closing Date or any actions taken by the SEC with
respect to any information concerning any RTM Party.
Section 3. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Prepare and file with the SEC a Registration Statement
or Registration Statements on Form S-3 or another appropriate form under the
Securities Act available for the sale of the Registrable Securities by the RTMRG
Holders in accordance with the intended method or methods of distribution
thereof, and use its commercially reasonable efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; PROVIDED, that before filing any Registration Statement or Prospectus or
any amendments or supplements thereto with the SEC, furnish to the RTM
Representatives copies of all such documents proposed to be filed and within
five Business Days of the delivery of such copies to the RTM Representatives in
good faith consider reflecting in each such document when so filed with the SEC
all comments, if any, that the RTM Representatives shall propose; PROVIDED, that
the Company shall not be required to take any actions under this Section 3(a)
that are not, in the opinion of nationally-recognized counsel experienced in
such matters, required by applicable law or to include in the disclosure which
at the time could have a Triarc Material Adverse Effect, as determined in good
faith by the Company. The Company shall promptly provide copies of any written
correspondence from the SEC with respect to a Prospectus, prospectus supplement,
Registration Statement or post-effective amendment to the RTMRG Representatives.
(b) Subject to its ability to issue a Deferral Notice,
prepare and file with the SEC such amendments and post-effective amendments to
each Registration Statement as may be necessary to keep such Registration
Statement continuously effective for the applicable period specified in Section
2(a); cause the related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and use its
commercially reasonable efforts to comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all securities covered
by such Registration Statement during the Effectiveness Period in accordance
with the intended methods of disposition by the sellers thereof set forth in
such Registration Statement as so amended or such Prospectus as so supplemented.
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(c) As promptly as practicable give notice to the RTMRG
Notice Holders, (i) when any Prospectus, prospectus supplement, Registration
Statement or post-effective amendment to a Registration Statement has been filed
with the SEC and, with respect to a Registration Statement or any post-effective
amendment, when the same has been declared effective, (ii) of any request,
following the effectiveness of the Initial Shelf Registration Statement under
the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of any Registration Statement or the initiation or threatening
of any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of a Material Event and (vi) of the determination
by the Company that a post-effective amendment to a Registration Statement will
be filed with the SEC, which notice may, at the discretion of the Company (or as
required pursuant to Section 3(h)), state that it constitutes a Deferral Notice,
in which event the provisions of Section 3(h) shall apply.
(d) Use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
or the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any jurisdiction
in which they have been qualified for sale, in either case at the earliest
possible moment, and provide prompt notice to the RTM Notice Holders of the
withdrawal of any such order.
(e) As promptly as practicable, furnish to each RTMRG Notice
Holder, without charge, at least one conformed copy of the Registration
Statement and any amendment thereto, excluding all schedules, exhibits and all
documents incorporated or deemed to be incorporated therein by reference (unless
requested in writing by such RTMRG Notice Holder).
(f) During the Effectiveness Period, deliver to each RTMRG
Notice Holder, in connection with any sale of Registrable Securities pursuant to
a Registration Statement, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such RTMRG Notice Holder
may reasonably request; to provide a "reasonable number" of copies thereof to
the New York Stock Exchange as contemplated by Rule 153 under the Securities
Act; and the Company hereby consents (except during such periods that a Deferral
Notice is outstanding and has not been revoked) to the use of such Prospectus or
each amendment or supplement thereto by each RTMRG Notice Holder in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto in the manner set forth
therein.
(g) Prior to any public offering of the Registrable
Securities pursuant to a Registration Statement, use its commercially reasonable
efforts to register
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or qualify or cooperate with the RTMRG Notice Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any RTMRG Notice Holder reasonably requests in writing (which request may be
included in the Notice and Questionnaire); prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the Effectiveness Period in connection
with such RTMRG Notice Holder's offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption therefrom) and do
any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities in the manner
set forth in the relevant Registration Statement and the related Prospectus;
PROVIDED, that the Company will not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Agreement or (ii) take any action
that would subject it to general service of process in suits or to taxation in
any such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or
the existence of any fact (a "MATERIAL EVENT") as a result of which any
Registration Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or (C) the
occurrence or existence of any pending corporate development that, in the sole
judgment of the Company, makes it appropriate to suspend the availability of the
Shelf Registration Statement and the related Prospectus for a discrete period of
time:
(i) in the case of clause (B) above, subject to the
next sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such Registration
Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would be
incorporated by reference into such Registration Statement and Prospectus so
that such Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and such Prospectus
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use its commercially
reasonable efforts to cause it to be declared effective as promptly as is
practicable, and
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(ii) give notice to the RTM Representatives that the
availability of the Shelf Registration Statement is suspended (a "DEFERRAL
NOTICE") and, upon receipt of any Deferral Notice, each RTMRG Notice Holder
agrees not to sell any Registrable Securities pursuant to the Registration
Statement until such RTMRG Notice Holder's receipt of copies of the supplemented
or amended Prospectus provided for in clause (i) above, or until it is advised
in writing by the Company that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus.
The Company will use its commercially reasonable efforts to ensure that
the use of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, and (y) in the case of clause (B) or (C) above, as
soon as, or, if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter, in the sole judgment of the Company, public disclosure
of such Material Event or pending corporate development would not be prejudicial
to or contrary to the interests of the Company. The Company shall be entitled to
exercise its right under this Section 3(h) to suspend the availability of the
Shelf Registration Statement or any Prospectus for a period (the "DEFERRAL
PERIOD") that shall not exceed 60 days in any three-month period or 120 days in
any 12-month period.
(i) If requested in writing in connection with a
disposition of Registrable Securities pursuant to a Registration Statement, make
reasonably available for inspection during normal business hours by a
representative for the RTMRG Notice Holders of such Registrable Securities, any
broker-dealers, attorneys and accountants retained by such RTMRG Notice Holders,
and any attorneys or other agents retained by a broker-dealer engaged by such
RTMRG Notice Holders, all relevant financial and other records and pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the appropriate officers, directors and employees of the Company and its
subsidiaries to make reasonably available for inspection during normal business
hours on reasonable notice all relevant information reasonably requested by such
representative for the RTMRG Notice Holders, or any such broker-dealers,
attorneys or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; PROVIDED, that such Persons
shall first hereby agree with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Persons and shall be used solely for the purposes of
exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration
Statement or the use of any prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such Person or (iv) such
information becomes available to any such Person from a source other than the
Company and such source is not bound by a confidentiality agreement, and
PROVIDED FURTHER, that the foregoing inspection and information gathering shall,
to the greatest extent possible, be coordinated
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on behalf of all the RTMRG Notice Holders and the other parties entitled thereto
by the counsel referred to in Section 5.
(j) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning statements
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) for a 12-month period commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall be made available no later than
45 days after the end of the 12-month period or 90 days if the 12-month period
coincides with a fiscal year of the Company.
(k) Cooperate with each RTMRG Notice Holder to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities sold or to be sold pursuant to a Registration Statement, which
certificates shall not bear any restrictive legends, and cause such Registrable
Securities to be in such names as such RTMRG Notice Holder may request in
writing at least three Business Days prior to any sale of such Registrable
Securities.
(l) Use commercially reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange on which
securities of the same class and series issued by the Company are then listed,
PROVIDED that the applicable listing requirements are satisfied.
(m) Cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. or the New York Stock
Exchange, Inc.
Section 4. RTMRG HOLDER'S OBLIGATIONS. Each RTMRG Holder agrees, by
acquisition of the Registrable Securities, that it shall be entitled to sell any
of such Registrable Securities pursuant to a Registration Statement or to
receive a Prospectus relating thereto, unless such RTMRG Holder has furnished
the Company with a Notice and Questionnaire as required pursuant to Section 2(d)
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each RTMRG
Notice Holder agrees promptly to furnish to the Company all information required
to be disclosed in order to make the information previously furnished to the
Company by such RTMRG Notice Holder not misleading and any other information
regarding such RTMRG Notice Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably request. The Company
may exclude from such registration the Registrable Securities of any RTMRG
Holder that does not furnish such information provided above so long as such
information is not so furnished. Any sale of any Registrable Securities by any
RTMRG Holder shall constitute a representation and warranty by such RTMRG Holder
that the information relating to such RTMRG Holder and its plan of distribution
is as set forth in the Prospectus delivered by such RTMRG Holder in connection
with such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to or provided by such
RTMRG Holder or its plan of
11
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to or provided by such RTMRG Holder or its
plan of distribution necessary to make the statements in such Prospectus, in the
light of the circumstances under which they were made, not misleading.
Section 5. REGISTRATION EXPENSES. The Company shall bear all fees
and expenses incurred by it in connection with the performance by the Company of
its obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. or New York Stock
Exchange Inc. and (y) of compliance with federal and state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of
the counsel to the Company in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as RTMRG Notice
Holders holding a majority of the Registrable Securities being sold pursuant to
a Registration Statement may designate), (ii) printing expenses, (iii)
duplication expenses relating to copies of any Registration Statement or
Prospectus delivered to any RTMRG Holders hereunder, (iv) fees and disbursements
of counsel for the Company in connection with the Shelf Registration Statement
(PROVIDED, that the Company shall not be liable for the fees and expenses of
more than one separate firm for all parties participating in any transaction
hereunder), (v) reasonable fees and disbursements of the registrar and transfer
agent for the Triarc Class B-1 Common Stock and (vi) Securities Act liability
insurance obtained by the Company in its sole discretion. In addition, the
Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company. Notwithstanding the provisions of this Section
5, each seller of Registrable Securities shall pay all selling expenses
(including underwriting discounts and commissions and transfer taxes), all fees
and expenses of its counsel, any stock transfer taxes in connection with any
underwritten offering and all registration expenses to the extent required by
applicable law.
Section 6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify and hold harmless each RTMRG Notice Holder and each person, if any,
who controls any RTMRG Notice Holder (within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act) from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (collectively, "LOSSES") caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the
12
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
Losses are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon (x) information relating to the RTMRG Holders
furnished to the Company in writing by an RTMRG Holder expressly for use therein
or (y) information (including historical financial statements and other
historical financial information) contained in any Registration Statement or
Prospectus concerning any of the RTM Parties for any period prior to the Closing
Date; PROVIDED, that the Company shall not be liable to any RTMRG Notice Holder
(or any person controlling such RTMRG Notice Holder) to the extent that such
Losses arise out of or are based upon an untrue statement or alleged untrue
statement of material fact or omission or alleged omission if either (i) (A)
such RTMRG Notice Holder was required by law to send or deliver, and failed to
send or deliver, a copy of the Prospectus with or prior to delivery written
confirmation of the sale by such RTMRG Notice Holder to the Person asserting the
claims from which the Losses arise and (B) the Prospectus would have corrected
such untrue statement or omission or alleged omission or (ii) (A) such RTMRG
Notice Holder disposed of Registrable Securities to the Person asserting the
claim from which such Losses arise pursuant to a Registration Statement and sent
or delivered, or was required by law to send or deliver, a Prospectus to such
Person in connection with the disposition, (B) such RTMRG Notice Holder received
a Deferral Notice in writing prior to the date of such disposition and (C) such
untrue statement or omission or alleged omission was the reason for the Deferral
Notice.
(b) INDEMNIFICATION BY RTMRG HOLDERS. Each RTMRG Holder
agrees severally and not jointly to indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who sign the Registration
Statement, and each person, if any, who controls the Company (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act) or
any other RTMRG Holder, from and against all Losses caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only (i) with
reference to (x) information (including historical financial statements and
other historical financial information) contained in the Registration Statement
or Prospectus concerning any of the RTM Parties for any period prior to the
Closing Date or (y) information relating to such RTMRG Holder furnished to the
Company in writing by such RTMRG Holder expressly for use in such Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto and (ii) with respect to any Losses that may arise as a
result of the disposition by such RTMRG Holder of Registrable Securities to the
Person asserting the claim from which such Losses arise pursuant to a
Registration Statement, the Prospectus or any amendments or supplements thereto
if such RTMRG Holder sent or delivered, or was required by law to send or
deliver, a Prospectus in connection with such disposition, such RTMRG Holder
received
13
a Deferral Notice with respect to such prospectus in writing prior to the date
of such disposition and the untrue statement or alleged untrue statement or
omission or alleged omission was the reason for the Deferral Notice. In no event
shall the liability of any RTMRG Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such RTMRG Holder upon the sale of the
Registrable Securities pursuant to the Registration Statement giving rise to
such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 6(a) or 6(b), such Person (the "INDEMNIFIED PARTY") shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnifying Party and the
Indemnified Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any Indemnified Party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all RTMRG
Holders and all Persons, if any, who control any RTMRG Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act and
(ii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred upon presentation of a statement or statements
thereof in reasonable detail and subject to an undertaking to return such
amounts if it is determined that such party is not entitled to indemnification
under this Agreement in respect of such matter. In the case of any such separate
firm for the RTMRG Holders and such control persons of any RTMRG Holders, such
firm shall be designated in writing by the RTM Representatives. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any loss or liability by reason
of such settlement or judgment. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional
14
release of such Indemnified Party from all liability on claims that are the
subject matter of such proceeding.
(d) CONTRIBUTION. To the extent that the indemnification
provided for in Section 6(a) or 6(b) is unavailable to an Indemnified Party or
insufficient in respect of any Losses referred to therein, then each
Indemnifying Party under such paragraph, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the Indemnified Party or parties on the other
hand from the offering of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Indemnifying Party or
parties on the one hand and of the Indemnified Party or parties on the other
hand in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations. Benefits
received by the Company and the RTMRG Holders shall be deemed to be equal to the
aggregate Current Market Price (as defined in the Merger Agreement) as of the
Closing Date of the Registrable Securities to which such Losses relate. The
relative fault of the RTMRG Holders on the one hand and the Company on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the RTMRG
Holders or by the Company, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The RTMRG Holders' respective obligations to contribute pursuant to this
paragraph are several in proportion to the respective number of Registrable
Securities they have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation (even if the RTMRG Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
(e) The indemnity, contribution and expense reimbursement
obligations of the parties hereunder shall be in addition to any liability any
Indemnifying
15
Party or Indemnified Party may otherwise have hereunder, under the Merger
Agreement or otherwise.
(f) The indemnity and contribution provisions contained in
this Section 6 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any RTMRG Holder or any person controlling any RTMRG Holder, or the
Company, or the Company's officers or directors or any person controlling the
Company and (iii) the sale of any Registrable Securities by any RTMRG Holder.
Section 7. INFORMATION REQUIREMENTS. The Company covenants that,
for so long as it is subject to the reporting requirements of the Exchange Act,
it will file the reports required to be filed by it under the Exchange Act so as
to enable any RTMRG Holder to sell Registrable Securities pursuant to Rule 144
under the Securities Act. The Company also covenants that, for so long as any
RTMRG Stockholder holds any Registrable Securities, it will cooperate with any
RTMRG Holder and take such further reasonable action as any RTMRG Holder may
reasonably request in writing (including, without limitation, making such
reasonable representations as any such RTMRG Holder may reasonably request), all
to the extent required from time to time to enable such RTMRG Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions. Upon the written request of any RTMRG Holder, the Company shall
deliver to such RTMRG Holder a written statement as to whether it has complied
with such filing requirements, unless such a statement has been included in the
Company's most recent report filed pursuant to Section 13 or Section 15(d) of
the Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall
be deemed to require the Company to register any of its securities (other than
the Triarc Class B-1 Common Stock) under any section of the Exchange Act.
Section 8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company that is
inconsistent with the rights granted to the RTMRG Holders in this Agreement. The
Company shall not enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the RTMRG Holders in this Agreement.
(b) INTERPRETATION. Any reference in this Agreement to a
statute shall be to such statute, as amended from time to time prior to the date
hereof, and to the rules and regulations promulgated thereunder prior to the
date hereof. Any reference to any agreement, document or instrument means such
agreement, document or instrument as amended or otherwise modified from time to
time in accordance with its terms. Unless the context otherwise requires, (1)
all references made in this Agreement to an Article or Section are to an Article
or Section of this Agreement, (2) "or" is disjunctive but not necessarily
exclusive, (3) "will" shall be deemed to have the same meaning as the word
16
"shall" and (4) words in the singular include the plural and vice versa.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation," whether or not so followed. All references to "$" or dollar amounts
are to lawful currency of the United States of America, unless otherwise
expressly stated. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
(c) AMENDMENTS AND WAIVERS. This Agreement may be amended
or modified, and any of the terms hereof may be waived, only by written
instrument duly executed by (i) the Company and (ii) the RTMRG Holders holding
Registrable Securities representing at least a majority of the aggregate number
of Registrable Securities owned by all of the RTMRG Holders. No waiver by any
party of any term or condition contained in this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition contained in this Agreement on any future occasion.
(d) NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be delivered by hand or overnight courier service or by facsimile:
if to the Company, to:
Triarc Companies, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the RTMRG Holders or the RTM Representatives to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
17
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other Persons, addresses or facsimile numbers as may be designated in
writing by the Person entitled to receive such communication as provided above.
Each such communication shall be effective (a) if delivered by hand, when such
delivery is made at the address specified in this Section 8(d), (b) if delivered
by overnight courier service, the next Business Day after such communication is
sent to the address specified in this Section 8 or (c) if delivered by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section 8 and appropriate confirmation is received.
(e) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto as hereinafter provided. Except as
provided in Section 6, this Agreement is not intended to confer any rights or
remedies upon any Person other than the parties to this Agreement and their
successors and permitted assigns. This Agreement may not be assigned by any
RTMRG Holder without the prior written consent of the Company.
(f) COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto.
(g) GOVERNING LAW. This Agreement and any claim or
controversy relating hereto shall be governed by and construed in accordance
with the law of the State of New York, without regard to the conflicts of law
rules of such state that would result in the application of the law of another
jurisdiction.
18
(h) JURISDICTION. Except as otherwise expressly provided
in this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby or
thereby shall be brought in the United States District Court for the Southern
District of New York or any New York State court sitting in New York City, so
long as one of such courts shall have subject matter jurisdiction over such
suit, action or proceeding, and that any cause of action arising out of this
Agreement shall be deemed to have arisen from a transaction of business in the
State of New York, and each of the parties hereby irrevocably consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 8
shall be deemed effective service of process on such party.
(i) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(j) SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions of this
Agreement. If any provision of this Agreement, or the application of that
provision to any Person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted for that provision in
order to carry out, so far as may be valid and enforceable, the intent and
purpose of the invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of that provision to other Persons or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of that provision, or the application of that provision, in any other
jurisdiction.
(k) ENTIRE AGREEMENT. This Agreement and the Merger
Agreement constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
(l) RULES OF CONSTRUCTION. The parties to this Agreement
have been represented by counsel during the negotiation and execution of this
Agreement and waive the application of any laws or rule of construction
providing that ambiguities in any agreement or other document shall be construed
against the party drafting such agreement or other document. The headings in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
19
(m) REMEDIES. Except as otherwise provided in this
Agreement, any and all remedies expressly conferred upon a party to this
Agreement shall be cumulative with, and not exclusive of, any other remedy
contained in this Agreement, at law or in equity. The exercise by a party to
this Agreement of any one remedy shall not preclude the exercise by it of any
other remedy.
(n) SPECIFIC PERFORMANCE. The parties to this Agreement
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties to this Agreement shall be entitled to an injunction or injunctions
(without the payment or posting of any bond) to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they are entitled at law or in equity.
(o) TERMINATION. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Section 4, 5, 6 or 7, each of
which shall remain in effect in accordance with its terms.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIARC COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Secretary
RTMRG STOCKHOLDERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name
/s/ ▇▇▇▇▇▇▇ Abt
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Signature
▇▇▇▇▇▇▇ Abt
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Print Name
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Print Name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Signature
▇▇▇▇▇ ▇▇▇▇▇
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Print Name
/s/ ▇▇▇ ▇▇▇▇▇▇
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Signature
▇▇▇ ▇▇▇▇▇▇
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Print Name
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name
/s/ ▇▇▇▇ ▇▇▇▇
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Signature
▇▇▇▇ ▇▇▇▇
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Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name
▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP, L.L.L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name
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Print Name
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇
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Print Name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Print Name
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Print Name
ROYAL FAMILY KIDS CAMP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Signature
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Print Name
/s/ ▇▇▇▇▇ ▇. Samples
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Signature
▇▇▇▇▇ ▇. Samples
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Print Name
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Print Name
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Signature
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Print Name
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Signature
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Print Name
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Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Print Name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
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Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
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Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Print Name
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Signature
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Print Name