EXHIBIT 18
Amendment No. 4 dated as of January 1, 1995 to Agreement of Limited
Partnership of the Purchaser
AMENDMENT NO. 4
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
DWG ACQUISITION GROUP, L.P.
Amendment No. 4, dated as of January 1, 1995 ("Amendment No.
4"), to the Agreement of Limited Partnership of DWG Acquisition Group,
L.P., as amended, by and among Xxxxxx Xxxxx and Xxxxx X. May, as general
partners (the "General Partners"), and Xxxxxx Xxxxx and Xxxxx X. May, as
limited partners (the "Initial Limited Partners").
The General Partners and the Initial Limited Partners formed a
limited partnership under the name DWG Acquisition Group, L.P. (the
"Partnership") in accordance with the Delaware Revised Uniform Limited
Partnership Act (6 DEL. C. 17-101, ET SEQ.) and are parties to
an Agreement of Limited Partnership of the Partnership dated as of
September 25, 1992, as amended by Amendment No. 1 dated as of November
15, 1992, Amendment No. 2 dated as of March 1, 1993 and Amendment No. 3
dated as of April 14, 1993 (as so amended, the "Partnership Agreement").
NOW, THEREFORE, the General Partners and the Initial Limited
Partners, in consideration of the premises and the mutual covenants
contained herein, hereby agree as follows:
7. Capitalized terms used herein but not otherwise defined
herein shall have the respective meanings ascribed thereto in the
Partnership Agreement.
8. The limited partner interests held by the Initial Limited
Partners are hereby converted to general partner interests in the
Partnership.
9. The admission of Xxxx Xxxxxxxx to the Partnership as a
limited partner as of January 1, 1995 (the "Admission Date") is hereby
confirmed.
10. As of the Admission Date, the Partners' Capital Account
balances were as follows:
Xxxxxx Xxxxx $46,241,185
Xxxxx X. May $23,120,592
Xxxx Xxxxxxxx $ - 0 -
11. The first two paragraphs of the Partnership Agreement are
hereby amended to read in their entireties as follows:
"This Agreement of Limited Partnership of DWG Acquisition
Group, L.P., is entered into by and among Xxxxxx Xxxxx
("Xxxxx") and Xxxxx X. May, as general partners ("May," and
together with Xxxxx, the "General Partners"), and Xxxx
Xxxxxxxx ("Kalvaria"), as limited partner (the "Limited
Partner").
The General Partners and Xxxxx and May, as initial
limited partners (the "Initial Limited Partners") formed a
limited partnership pursuant to and in accordance with the
Delaware Revised Uniform
Limited Partnership Act (6 DEL. C.
Section 17-101 ET SEQ.) (the "Act"). As more fully set
forth in Amendment No. 4 to the Agreement of Limited
Partnership, dated as of January 1, 1995, Kalvaria was
admitted as a limited partner, the Initial Limited Partners'
interests were converted into general partner interests, and
the General Partners and the Limited Partner (collectively,
the "Partners") hereby agree as follows:"
12. The Partnership Agreement is hereby amended (i) by
deleting all references to "Initial Limited Partners" other than
references thereto contained in the Partnership Agreement after giving
effect to this Amendment No. 4 and substituting in its place the words
"Limited Partner" and (ii) by deleting all references to "DWG
Corporation" and substituting the words "Triarc Companies, Inc."
13. Section 2 of the Partnership Agreement is hereby amended
by adding the words ", a Delaware corporation ("Triarc")" immediately
following the reference to "Triarc Companies, Inc."
14. Section 5 of the Partnership Agreement is hereby amended
to read in its entirety as follows:
"5. PARTNERS. The names and the business, residence or
mailing addresses of the General Partners and the Limited
Partner are as follows:
NAME ADDRESS
Xxxxxx Xxxxx c/o Triarc Companies, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx X. May c/o Triarc Companies, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxx Xxxxxxxx c/o Triarc Companies, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000"
15. Section 6.1 of the Partnership Agreement is hereby amended
by adding the following sentence at the end thereof:
"Such powers shall include, without limitation, (a) the power
to cause the Partnership to sell, assign, transfer or pledge
any and all shares of common stock of Triarc now or hereafter
owned by the Partnership (the "Triarc Shares") or any non-cash
proceeds received upon a sale or other disposition of any
Triarc Shares (a "Disposition"), including for the purpose of
securing loans made to the General Partners, and (b) the power
to cause the Partnership to make loans to the General Partners,
whether on a secured or unsecured basis."
16. Section 7 of the Partnership Agreement is hereby amended
by adding the following sentences at the end thereof:
"Notwithstanding the foregoing, in the event that, pursuant to
clause (a) above, either of the General Partners determines to
dissolve the Partnership and distribute the assets of the
Partnership at any time when the Limited Partner's interest in
the Partnership has a fair market value (taking into account
the potential for appreciation in Partnership assets) in excess
of zero, each General
Partner shall cause the Triarc Shares and
any Non-Cash Proceeds (as hereinafter defined) so distributed
to be contributed to a new separate partnership with the
Limited Partner (each, a "Liquidation Partnership"). Except as
set forth below, the terms of the agreements governing the
Liquidation Partnerships shall, to the extent possible,
replicate the terms set forth herein. If either of the General
Partners determines to dissolve a Liquidation Partnership the
Limited Partner's interest in such Liquidation Partnership
shall be redeemed in full by a distribution from such
Liquidation Partnership of Triarc Shares with a fair market
value (determined as set forth in Section 20) equal to the fair
market value of the Limited Partner's interest in such
Liquidation Partnership (determined as set forth in Section
20)."
17. Section 8 of the Partnership Agreement is hereby amended
to read in its entirety as follows:
"8. CAPITAL CONTRIBUTIONS. The Partners have contributed the
following amounts, in cash, and no other property, to the
Partnership:
GENERAL PARTNERS
Xxxxxx Xxxxx $48,111,708
Xxxxx X. May $24,055,854
LIMITED PARTNER
Xxxx Xxxxxxxx - 0 - "
18. Section 11 of the Partnership Agreement is hereby amended
(i) by deleting the reference to "profits" contained in clause (i)
thereof and substituting in its place the words "Net Income" and (ii) by
deleting the reference to "losses" contained in clause (ii) thereof and
substituting in its place the words "Net Losses."
19. Section 12 of the Partnership Agreement is hereby amended
to read in its entirety as follows:
"12. ALLOCATIONS OF PROFITS AND LOSSES.
12.1 NET INCOME. For each fiscal year of the
Partnership, Net Income (as hereinafter defined) shall be
allocated as follows:
(a) Net Income recognized by the Partnership with
respect to a Disposition or an Extraordinary Dividend shall be
allocated as follows and in the following order of priority:
(i) First, to the General Partners in
accordance with their respective Residual Percentage Interests
until the excess of (x) the aggregate amount of Net Income
allocated to each of them for the current and all prior years
pursuant to this Section 12.1(a)(i) over (y) the aggregate
amount of Net Loss allocated to each of them for the current
and all prior years pursuant to Section 12.2(a)(ii) equals
$2,805,786; and
(ii) Thereafter, to the Partners in accordance
with their respective Disposition Percentage Interests; and
(b) Any other Net Income shall be allocated to the
General Partners in accordance with their respective Residual
Percentage Interests.
12.2 NET LOSS. For each fiscal year of the Partnership,
Net Loss (as hereinafter defined) shall be allocated as
follows:
(a) Net Loss recognized by the Partnership with
respect to a Disposition or an Extraordinary Dividend shall be
allocated as follows and in the following order of priority:
(i) First, to the Partners, in accordance with
their respective Disposition Percentage Interests, until the
Limited Partner's Capital Account balance is reduced to zero;
and
(ii) Thereafter, to the General Partners in
accordance with their Residual Percentage Interests; and
(b) Any other Net Loss shall be allocated to the
General Partners in accordance with their respective Residual
Percentage Interests.
12.3 SPECIAL ALLOCATION. Income, gain, loss or
deductions of the Partnership shall, solely for income tax
purposes, be allocated among the Partners in accordance with
Section 704(c) of the Internal Revenue Code of 1986, as amended
(the "Code") and the Internal Revenue Service regulations
promulgated thereunder so as to take account of any difference
between the adjusted basis to the Partnership of any asset for
federal income tax purposes and its Book Basis.
12.4 DEFINITIONS.
"Disposition Percentage Interest" means, for each Partner,
the respective percentage set forth below:
Xxxxx 63-1/3%
May 31-2/3%
Kalvaria 5%
"Residual Percentage Interest" means, for each Partner,
the respective percentage set forth below:
Xxxxx 66-2/3%
May 33-1/3%
Kalvaria 0%
"Disposition Proceeds" means the excess, if any, of (i)
the amount received by the Partnership in connection with a
Disposition of part or all of the Triarc Shares or any non-cash
proceeds received upon any such Disposition over (ii) to the
extent not otherwise taken into account in clause (i), the
aggregate amount of all fees, expenses and other costs paid or
payable by the Partnership in connection with each Disposition,
but only to the extent that such amounts have not been used to
reduce Disposition Proceeds with respect to any other
Disposition. If any proceeds received by the Partnership in
connection with a Disposition include any consideration other
than cash ("Non-Cash Proceeds"), such Non-Cash Proceeds shall
not be includable in Disposition Proceeds until cash is
actually received with respect to such Non-Cash Proceeds,
unless the General Partners, in their sole discretion, decide
to distribute such Non-Cash Proceeds in kind.
"Net Income" or "Net Loss" means, for any accounting
period, the net income or net loss, as the case may be, of the
Partnership during such
accounting period for federal income
tax purposes, plus any income earned by the Partnership during
such accounting period that is exempt from federal income tax,
minus the amount of any expenditures accrued by the Partnership
during such accounting period that are described in Section
705(a)(2)(B) of the Code, and adjusted, with respect to any
asset the Book Basis of which differs from its adjusted basis
for federal income tax purposes, as described in the following
sentence. For purposes of computing Net Income or Net Loss,
gain or loss with respect to the disposition (including a
distribution in kind by the Partnership) of any such asset
shall be determined by the difference between (1) the amount
realized with respect to such disposition and (2) the Book
Basis.
"Book Basis" means an asset's adjusted basis for federal
income tax purposes, except that, upon the admission of
Kalvaria as a Partner, the Book Basis of all Partnership assets
at the time of such admission is hereby adjusted to equal the
respective fair market values of such assets as reflected in
the Partners' Capital Account balances.
"Extraordinary Dividends" means any dividends received
with respect to the Triarc Shares other than regularly
scheduled cash dividends."
14. Section 13 of the Partnership Agreement is hereby amended
to read in its entirety as follows:
"13. DISTRIBUTIONS. The General Partners may, in their
discretion, from time to time, cause the Partnership (a) to
distribute all cash held by it or (b) to make distributions in
kind of any of its non-cash assets. All such distributions
shall be made in accordance with the priorities set forth in
this Section 13.
13.1 DISPOSITION PROCEEDS. In the case of (1) cash
received by the Partnership in respect of Disposition Proceeds
and Extraordinary Dividends and (2) to the extent distributed,
any Non-Cash Proceeds, distributions shall be made to the
Partners as follows and in the following priority:
(a) First, to the General Partners, in accordance
with their respective Residual Percentage Interests, until the
General Partners
have received aggregate distributions pursuant
to this Section 13.1(a) for the current and all prior years
equal to $72,167,563; and
(b) Thereafter, to the Partners in accordance with
their respective Disposition Percentage Interests.
13.2 OTHER PROCEEDS. In the case of any other cash or
assets not described in Section 13.1, distributions shall be
made to the General Partners in accordance with their
respective Residual Percentage Interests."
13.3 WITHDRAWAL OF TRIARC SHARES. Notwithstanding
provisions of Section 13.2, the General Partners may not cause
the Partnership to distribute to them, in the aggregate, more
than 50% of the Triarc Shares, and no such distribution may be
made unless the Partners' respective Disposition Percentage
Interests are adjusted as appropriate to ensure that the
Limited Partner's interest in the Partnership is not adversely
affected by such distribution."
15. The Partnership Agreement shall be amended by adding new
Sections 19 and 20 to read in their entirety as follows:
"19. TERMINATION OF EMPLOYMENT.
19.1 PAYOUT AMOUNT. In the event that
(a) the Limited Partner's employment with Triarc pursuant to
the employment agreement, dated as of November 1, 1993, between
the Limited Partner and Triarc (as may be amended from time to
time, the "Triarc Employment Agreement"), is terminated because
of the Limited Partner's death as provided in Section 4.1 of
the Triarc Employment Agreement, or disability pursuant to
Section 4.2 of the Triarc Employment Agreement, or (b) the Term
(as defined in the Triarc Employment Agreement) is terminated
by Triarc for any reason (other than any such termination by
Triarc for Cause as provided in Section 4.3 of the Triarc
Employment Agreement) or by the Limited Partner pursuant to a
notice not to extend the Triarc Employment Agreement delivered
in accordance with Section 2 thereof (any termination described
in clause (a) or (b) above is hereinafter referred to as a
"Termination"), the Limited
Partner (or his estate, as the case
may be) shall sell to the Partnership, and the Partnership
shall purchase, all of the Limited Partner's partnership
interest in the Partnership on the date of Termination at a
purchase price equal to the Payout Amount (as hereinafter
defined). The "Payout Amount" shall be equal to the amount
that would be required to be distributed to the Limited Partner
under Section 13.1(b) hereof if all the Triarc Shares owned by
the Partnership on the date of such Termination were sold on
the date of such Termination for their fair market value
(determined as set forth in Section 20), and the resulting gain
or loss from such deemed sale were allocated among the Partners
as provided in Section 12. Any Payout Amount required to be
paid pursuant to this Section 19.1 shall be due and payable in
five equal installments (with interest accruing from the
Payment Date (as hereinafter defined) at the rate of 8% per
annum); the first installment to be due and payable on the
Payment Date and the subsequent installments to be due and
payable on the first, second, third and fourth anniversaries of
the Payment Date. The "Payment Date" shall mean the thirtieth
day after the fair market value of the Triarc Shares owned by
the Partnership is determined pursuant to the terms hereof.
19.2 DEFERRED AMOUNT. If on the date of Termination
the Partnership holds any Non-Cash Proceeds received by it with
respect to any sale or other disposition of Triarc Shares
during the Term (which Non-Cash Proceeds have not been included
in Disposition Proceeds), then, notwithstanding the sale by the
Limited Partner (or his estate, as the case may be) of all of
his partnership interest in the Partnership pursuant to Section
19.1, after the date of Termination, the Limited Partner (or
his estate, as the case may be) shall continue to have the
right to receive the Deferred Amount (as hereinafter defined).
The "Deferred Amount" shall be equal to the amount that would
have been required to be distributed to the Limited Partner
under Section 13.1(b) of the Partnership Agreement upon the
sale of such Non-Cash Proceeds if he had not sold his
partnership interest to the Partnership pursuant to Section
19.1 and the resulting gain or loss from such sale had been
allocated among the Partners as provided in Section 12. Any
Deferred Amount that is payable by the Partnership to the
Limited Partner (or his estate, as the case may be) under this
Section 19.2
shall be paid within 30 days after actual receipt
by the Partnership of Disposition Proceeds with respect to the
sale of the Non-Cash Proceeds.
19.3 CASH-OUT AMOUNT. If on the tenth anniversary
of the date of Termination, the Limited Partner (or his estate,
as the case may be) continues to have the right to receive a
Deferred Amount under Section 19.2 with respect to any sale or
other disposition of Triarc Shares during the Term for which
the Partnership received Non-Cash Proceeds that as of such
tenth anniversary date have not been included in Disposition
Proceeds because cash has not been realized with respect
thereto (the "Remaining Non-Cash Proceeds"), then the
Partnership shall pay the Limited Partner the Cash-Out Amount
as provided below. The "Cash-Out Amount" shall be an amount
equal to the Deferred Amount the Limited Partner would have
been entitled to receive under Section 19.2 if the Remaining
Non-Cash Proceeds were sold on the tenth anniversary of the
Termination for its fair market value in cash (determined as
set forth in Section 20). Any Cash-Out Amount required to be
paid pursuant to the terms of this Section 19.3 shall be due
and payable in five equal installments (with interest accruing
from the Cash-Out Payment Date (as hereinafter defined) at the
rate of 8% per annum); the first installment to be due and
payable on the Cash-Out Payment Date and the subsequent
installments to be due and payable on the first, second, third
and fourth anniversaries of the Cash-Out Payment Date. The
"Cash-Out Payment Date" shall mean the thirtieth day after the
fair market value is determined pursuant to the terms hereof.
20. FAIR MARKET VALUE. For purposes of this Amendment
No. 4, "fair market value" shall mean
(a) with respect to part or all of the Triarc Shares,
the closing price of the Triarc Shares on the New York Stock
Exchange (or, if the Triarc Shares are not listed on the New
York Stock Exchange, the principal national securities exchange
on which the Triarc Shares are then listed) or, if they are not
so listed, the average of the representative bid and asked
prices quoted in the NASDAQ System as of 4 o'clock P.M., New
York time, or, if on any day the Triarc Shares are 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
(b) with respect to part or all of any Non-Cash
Proceeds, any interest of the Limited Partner in a Liquidation
Partnership, or any Triarc Shares that cannot be valued as set
forth in clause (a) above, the fair market value of such
property as determined by the mutual agreement of the
Partnership or the Liquidation Partnership, as the case may be,
and the Limited Partner or, if no such agreement can be
reached, by an investment banking firm that is satisfactory to
both the Partnership or the Liquidation Partnership, as the
case may be, and the Limited Partner. The determination of the
fair market value by an investment banking firm hereunder shall
be final and binding upon the Partnership or the Liquidation
Partnership, as the case may be, and the Limited Partner. The
fees of such investment banking firm shall be shared equally by
the Partnership or the Liquidation Partnership, as the case may
be, and the Limited Partner."
16. Except as specifically set forth in this Amendment No. 4,
the Partnership Agreement shall remain unmodified and in full force and
effect and is hereby ratified, as amended by this Amendment No. 4.
17. This Amendment No. 4 shall be governed by, and construed
in accordance with, the laws of the State of Delaware, applicable to
agreements made and to be performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Amendment No. 4 as of the day and year first above
written.
GENERAL PARTNERS:
/S/ XXXXXX XXXXX
------------------------------
Xxxxxx Xxxxx
/S/ XXXXX X. MAY
------------------------------
Xxxxx X. May
The undersigned hereby agrees to the terms of the Partnership
Agreement, as amended by this Amendment No. 4, and hereby becomes a
Limited Partner of the Partnership.
/S/ XXXX XXXXXXXX
------------------------------
Xxxx Xxxxxxxx
