EXHIBIT 28
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EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated June 26, 2004, by and among
XXXXXX XXXXX ("Xxxxx"), XXXXX X. MAY ("May") and XXXXXXX X. XXXXX ("Sachs").
Xxxxx and May are sometimes each referred to herein as a "Stockholder".
RECITALS
WHEREAS, Triarc Companies, Inc., a Delaware corporation ("Triarc"),
Sachs Capital Management LLC, Xxxxx X. Xxxxxxx, Deerfield Partners Fund II LLC,
Xxxxxx Xxxxxx and Sachs are parties to that certain Purchase Agreement, dated as
of the date hereof (as amended, supplemented or otherwise modified from time to
time, the "Purchase Agreement"), relating to the sale of certain membership
interests in Deerfield & Company LLC ("D&C") to Triarc;
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreement, on the date hereof Sachs has entered into an employment
agreement (the "Employment Agreement") with D&C and Deerfield Capital Management
LLC, which Employment Agreement shall become effective upon the Closing (as
defined in the Purchase Agreement); and
WHEREAS, as an inducement to Sachs to enter into the Employment
Agreement, the Stockholders agree to take the actions specified herein on the
terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and other valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. In order to induce Sachs to enter into the
Purchase Agreement and the Employment Agreement, each Stockholder agrees that he
shall, and shall cause the record holder thereof to, at any meeting of Triarc's
stockholders at which such matter is presented, vote all outstanding Shares (as
defined below) "beneficially owned" (as defined in Rule 13d-3 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended (the
"Act")) as of such date by such Stockholder or any of his Family Members or
Affiliates (as such terms are defined below) and entitled to vote thereon in
favor of the approval of the Additional Bonus (as defined in the Employment
Agreement).
As used in this Agreement, "Shares" shall mean the shares of Class A
Common Stock, par value $0.10 per share, of Triarc, and shares of Class B Common
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Stock, par value $0.10 per share, of Triarc; "Family Members" shall mean as to
any Stockholder, such Stockholder's spouse or minor children; and "Affiliate"
shall have the meaning set forth in Rule 12b-2 of the General Rules and
Regulations under the Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each Stockholder, severally and not jointly, represents and warrants to
Sachs as follows:
2.1 Power. Such Stockholder has the requisite legal capacity to
execute and deliver this Agreement, to perform his obligations hereunder and to
consummate the transactions contemplated hereby.
2.2 Enforceability. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
2.3 Ownership. As of the date set forth therein, the Stockholders
beneficially own the number of Shares disclosed as beneficially owned by them in
Amendment No.17 to the Schedule 13-D filed by the Stockholders relating to
Triarc.
ARTICLE III
MISCELLANEOUS
3.1 Effectiveness; Termination. This Agreement shall not become
effective unless the Closing (as defined in the Purchase Agreement) has
occurred. Upon the earlier of (i) a termination of the Purchase Agreement
pursuant to Article X of the Purchase Agreement or (ii) the first date following
the 2005 Annual Meeting of Triarc's stockholders, if the Stockholders have been
in material compliance with the terms of this Agreement and Triarc has
materially complied with its obligations under the Purchase Agreement concerning
the seeking of stockholder approval of the Additional Bonus and retaining a
proxy solicitation firm to solicit proxies in favor of such approval, this
Agreement shall automatically be terminated and be of no force or effect without
any of the parties hereto being required to take any action.
3.2 Notices. Any notice, request, instruction or other
communication under this Agreement shall be in writing and delivered by hand or
overnight courier service or by facsimile:
To a Stockholder:
Triarc Companies, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attn: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
To Sachs:
Deerfield & Company LLC
0000 Xxxx Xxxx Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
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 3.2, (b) if delivered
by overnight courier service, the next business day after such communication is
sent to the address specified in this Section 4.2, or (c) if delivered by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section 3.2 and appropriate confirmation is received.
3.3 Transferees, Successors and Assigns; Third Party
Beneficiaries. Except for transfers to Family Members or Affiliates, either
Stockholder may sell, give, assign or otherwise dispose of (whether by operation
of law or otherwise) any and all Shares free and clear of the rights and
obligations of this Agreement. No individual or entity other than the parties
hereto is intended to be a beneficiary of this Agreement.
3.4 Amendment and Waiver.
(a) No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the parties
hereto at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by any party from the terms of any provision of
this Agreement, shall be effective only if it is made or given in writing and
signed by Xxxxx, May and Sachs.
3.5 Counterparts. This Agreement may be executed in any number of
counterparts, and by the parties hereto in separate counterparts each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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3.6 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
3.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
3.8 Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
3.9 Rules of Construction. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
3.10 Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings, other than those set
forth or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
3.11 Remedies. Except as otherwise provided in this Agreement, any
and all remedies expressly conferred upon a party shall be cumulative with and
not exclusive of any other remedy conferred in this Agreement, at law or in
equity, and the exercise by a party of any one remedy shall not preclude the
exercise of any other remedy.
3.12 Specific Performance. The parties to this Agreement agree that
irreparable damage would occur in the event 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 shall be entitled
to an injunction or injunctions 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.
3.13 Further Assurances. Each of the parties shall, and shall cause
their respective affiliates to, execute such documents and perform such further
acts as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Voting Agreement on the date first written above.
/s/ Xxxxxx Xxxxx
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XXXXXX XXXXX
/s/ Xxxxx X. May
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XXXXX X. MAY
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
