FIRST SUPPLEMENTAL INDENTURE
Dated as of November 21, 2003
between
TRIARC COMPANIES, INC.,
as Issuer
and
WILMINGTON TRUST COMPANY,
as Trustee
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5% Convertible Notes Due 2023
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of November 21, 2003, between TRIARC COMPANIES, INC., a Delaware
corporation (the "Company"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee are parties to that
certain Indenture, dated as of May 19, 2003 (the "Original Indenture" and,
together with the Supplemental Indenture, the "Indenture"), pursuant to which
the Company duly issued its 5% Convertible Notes due 2023 (the "Notes") in the
aggregate principal amount of $175 million;
WHEREAS, Section 10.01(f) of the Original Indenture provides
that the Company, when authorized by resolutions of the Board of Directors
certified by the Secretary or Assistant Secretary of the Company, and the
Trustee may enter into supplemental indentures without the consent of the
Noteholders for the purpose of, among other things, making such other provisions
in regard to matters or questions arising under the Indenture that shall not
materially adversely affect the interests of the holders of the Notes;
WHEREAS, on August 11, 2003, the Company declared a special
stock dividend (the "Stock Dividend") of two shares of Class B Common Stock,
Series 1, par value $0.10 per share (the "Class B Stock"), for each outstanding
share of Class A Common Stock, par value $0.10 per share (the "Class A Common
Stock") to be paid on September 4, 2003 to holders of record of Class A Common
Stock on August 21, 2003;
WHEREAS, pursuant to Section 14.05(d) of the Original
Indenture, in lieu of effecting an adjustment to the Conversion Rate as a result
of the Stock Dividend the Company has instead elected to reserve shares of Class
B Stock for distribution to Noteholders upon conversion of the Notes so that any
such holder converting Notes will receive upon such conversion, in addition to
shares of Common Stock to which such holder is entitled, the amount of Class B
Stock which such holder would have received if such holder had converted its
Notes into Common Stock immediately prior to the record date for the Stock
Dividend (the "Reserved Class B Stock");
WHEREAS, it is anticipated that the Closing Sale Price of the
Common Stock will be affected by the issuance of the shares of Class B Stock in
the Stock Dividend;
WHEREAS, the right of holders to convert Notes as provided
under Section 14.01(a)(i) of the Original Indenture is determined based on the
Closing Sale Price of the Common Stock exceeding 120% of the Conversion Price
for a specified period;
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WHEREAS, the right of holders to convert Notes as provided
under Section 14.01(a)(ii) is determined based on the Trading Price of the Notes
being less than, for a specified period, 95% of the product of (i) the Closing
Sale Price of the Common Stock and (ii) the number of shares of Common Stock
issuable upon conversion of the Notes;
WHEREAS, the Company believes it is equitable and appropriate
to provide for a conversion right, in addition to the rights contained in
Sections 14.01(a)(i) and (ii), in recognition of the anticipated effect of the
Stock Dividend on the Closing Sale Price of the Common Stock and thereby the
holders' rights to convert the Notes under Sections 14.01(a)(i) and (ii);
WHEREAS, Section 14.05 of the Original Indenture provides for
adjustments to the Conversion Rate that result from certain actions taken by the
Company with respect to the Common Stock and Section 14.06 of the Original
Indenture addresses the consequences of a reclassification or change of the
outstanding shares of Common Stock and a consolidation, merger or combination of
the Company or a sale or conveyance of all or substantially all of the
properties and assets of the Company as a result of which holders of Common
Stock shall be entitled to receive stock, other securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock;
WHEREAS, the Company believes it is equitable and appropriate
to provide for adjustments to the Reserved Class B Stock in the event that the
Company takes actions with respect to the Class B Stock of the type described in
Section 14.05 and provide for the consequences to the Reserved Class B Stock
upon the occurrence of an event or transaction of the type described in Section
14.06; and
WHEREAS, the Company and the Trustee wish and have agreed to
execute and deliver this Supplemental Indenture as herein provided and all
conditions and requirements necessary to make this Supplemental Indenture a
valid, binding and legal instrument in accordance with its terms have been
performed and fulfilled and the execution and delivery hereof have been in all
respects duly authorized by all necessary parties.
NOW, THEREFORE, for and in consideration of the premises
contained herein, it is mutually covenanted and agreed for the benefit of all
Holders of the Notes as follows:
SECTION 1. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Original Indenture.
SECTION 2. The Original Indenture is hereby amended as
follows:
(a) The following definitions are added to Section 1.01:
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"Class B Stock" means Class B Common Stock, Series 1,
par value $0.10 per share, of the Company.
"Reserved Class B Stock" means the amount of Class B
Stock which a Noteholder would have received in
connection with the Class B Stock dividend declared
by the Company on August 11, 2003 if such holder had
converted its Notes into Common Stock immediately
prior to the record date for such dividend.
(b) Section 1.01 is hereby further amended by changing the
definition of "Closing Sale Price" to read, in its entirety, as
follows:
"Closing Sale Price" of the shares of Common Stock or
Class B Stock on any date means the closing sale
price per share (or, if no closing sale price is
reported, the average of the closing bid and ask
prices or, if more than one in either case, the
average of the average closing bid and the average
closing ask prices) of the Common Stock or the Class
B Stock, as applicable, on such date as reported in
composite transactions for the principal United
States securities exchange on which shares of Common
Stock or Class B Stock, as applicable, are traded or,
if the shares of Common Stock or Class B Stock, as
the case may be, are not listed on a United States
securities exchange, as reported by the Nasdaq system
or by the National Quotation Bureau Incorporated. In
the absence of such quotations, the Company shall be
entitled to determine the Closing Sale Price of the
Common Stock or Class B Stock, as applicable, on the
basis of such quotations as it considers appropriate.
Closing Sale Price shall be determined without
reference to extended or after hours trading.
(c) In Section 14.01(a) the word "or" is hereby deleted
immediately before clause (iv) and at the end of clause (iv) a
semi-colon and the word "or" are hereby inserted and the following new
clauses (v) and (vi) are hereby added:
(v) during any fiscal quarter commencing after
June 29, 2003, if the Combined Closing Sale
Price exceeds 120% of the Conversion Price
for at least 20 Trading Days in the 30
consecutive Trading Day period ending on the
last Trading Day of the immediately
preceding fiscal quarter (it being
understood for purposes of this Section
14.01(a)(v) that the Conversion Price in
effect at the close of business on each of
the 30 consecutive Trading Days should be
used). For purposes of this Section
14.01(a)(v), Section 14.05(a)(vi) and
Section 14.12, "Combined Closing Sale Price"
shall mean the sum of (x) the Closing Sale
Price per share of the Common Stock and (y)
the product of
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(A) two multiplied by (B) the Closing Sale
Price of the Class B Stock.
(vi) during each of the five Business Day periods
after any ten consecutive Trading Day period
in which the Trading Price per $1,000
principal amount of the Notes for each day
of such ten day period was less than 95% of
the product of the Combined Closing Sale
Price on the applicable date and the number
of shares of Common Stock issuable upon
conversion of $1,000 principal amount of
Notes.
(d) A new Section 14.12 is hereby added to the Original
Indenture to read in its entirety as follows:
Section 14.12 Adjustments to the Reserved
Class B Stock. On August 11, 2003 the Board
of Directors of the Company declared a
special stock dividend (the "Stock
Dividend") on each share of Common Stock
payable in two shares of Class B Stock on
September 4, 2003 to the holders of record
of the Common Stock on August 21, 2003 (the
"Stock Dividend Record Date"). Pursuant to
Section 14.05(d), in lieu of effecting an
adjustment to the Conversion Rate, the
Company elected to reserve shares of Class B
Stock for distribution to the Noteholders
upon conversion of the Notes so that any
such holder converting Notes will receive
upon such conversion, in addition to the
shares of Common Stock to which such holder
is entitled, the number of shares of Class B
Stock which such holder would have received
if such holder had converted its Notes
immediately prior to the Stock Dividend
Record Date. In case the Company shall take
any action with respect to the Class B Stock
of the type described in Section 14.05(a),
(b), (c), (d) or (f) that would have
required an adjustment to the Conversion
Rate if such action had been taken with
respect to the Common Stock, the Company
shall effect an adjustment to the number of
shares of Reserved Class B Stock so as to,
in the reasonable judgment of the Board of
Directors of the Company, approximate the
adjustments provided for under Section
14.05(a), (b), (c), (d) or (f), as the case
may be, with respect to the Common Stock. In
addition, in case the Company shall
distribute a cash dividend on its Class B
Stock and/or its Common Stock (other than in
connection with a liquidation, dissolution
or winding up of the Company) in an amount
such that the aggregate percentage of all
such dividends declared during the
twelve-month period through and including
the
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applicable date of declaration (calculated
as the sum of the percentages that (i) two
times each such dividend on one share of
Class B Stock during the period and (ii)
each such dividend on one share of Common
Stock during the period represents of the
average Combined Closing Sale Price (as
defined in Section 14.01(a)(v)) during the
ten Trading Days immediately prior to the
declaration date of the applicable dividend)
exceeds 5%, then the Company shall effect an
adjustment to the number of shares of
Reserved Class B Stock (and, if appropriate
in the reasonable judgment of the Board of
Directors, an adjustment to the Conversion
Rate of the Common Stock) so as to, in the
reasonable judgment of the Board of
Directors of the Company, approximate the
adjustment provided for under Section
14.05(e) with respect to the Common Stock.
Similarly, if an event or transaction of the
type described under Section 14.06 occurs
that affects the Class B Stock, the Company
shall take such actions with respect to the
Reserved Class B Stock as, in the reasonable
judgment of the Board of Directors, is
necessary to approximate the results that
would obtain under Section 14.06 with
respect to the Common Stock.
SECTION 3. The Company agrees that the Trustee is permitted
(i) to place a notation about this Supplemental Indenture on the Notes in
accordance with the provisions of Section 10.04 of the Original Indenture and
(ii) to modify new Notes to conform to this Supplemental Indenture, which shall
be authenticated and delivered by the Trustee in exchange for outstanding Notes.
SECTION 4. The Trustee accepts this Supplemental Indenture and
agrees to execute the trust created by the Indenture as hereby supplemented, but
only upon the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the trust created by
the Indenture as hereby supplemented.
SECTION 5. The Indenture, supplemented as hereinabove set
forth, is in all respects ratified and confirmed, and the terms and conditions
thereof, supplemented as hereinabove set forth, shall be and remain in full
force and effect.
SECTION 6. The recitals contained in this Supplemental
Indenture shall be taken as the statements made solely by the Company, and the
Trustee shall have no liability or responsibility for their correctness and,
without limiting the generality of the foregoing, the Trustee shall not be
responsible in any manner whatsoever for or with respect to (i) the validity or
sufficiency of this Supplemental Indenture or any of the terms or provisions
hereof, (ii) the proper authorization hereof by the Company by
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corporate action or otherwise, (iii) the due execution hereof by the Company or
(iv) the consequences (direct or indirect and whether deliberate or inadvertent)
of any amendment herein provided for, and the Trustee makes no representation
with respect to any such matters.
SECTION 7. Upon the execution and delivery hereof by the
Company and the Trustee, the Indenture shall become effective and every Holder
of Notes heretofore or hereafter authenticated and delivered shall be bound
hereby.
SECTION 8. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 9. This Supplemental Indenture 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, as of the date first above written.
TRIARC COMPANIES, INC., as Issuer
By: /s/ Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx X. XxXxxxxx
Title: Senior Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxx X. Xxxxx Xx.
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Name: Xxxxxxx X. Xxxxx Xx.
Title: Senior Financial Services Officer
