EXHIBIT 29
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VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated July 23, 2004, by
and among XXXXXX XXXXX ("Xxxxx") and XXXXX X. MAY ("May"). Xxxxx and May are
sometimes each referred to as a "Stockholder".
BACKGROUND
DWG Acquisition Group, L.P., a Delaware limited partnership
("DWG"), is the record owner of shares of Class A Common Stock, par value $0.10
per share (the "Class A Common Stock"), of Triarc Companies, Inc., a Delaware
corporation (the "Company"), and shares of Class B Common Stock, par value $0.10
per share (the "Class B Common Stock" and, together with the Class A Common
Stock, the "Common Stock"), of the Company. 67.37% of such shares of Class A
Common Stock and 75.79% of such shares of Class B Common Stock are beneficially
owned by Xxxxx and 32.63% of such shares of Class A Common Stock and 24.21% of
such shares of Class B Common Stock are beneficially owned by May.
Pursuant to the Agreement of Limited Partnership of DWG, dated
as of September 25, 1992, as amended (the "DWG Partnership Agreement"), all acts
and decisions of DWG (including without limitation the voting of shares of
Common Stock owned by DWG) require the approval, consent or agreement of both
Xxxxx and May, as the sole general partners of DWG.
Xxxxx and May desire to dissolve and wind up the affairs of
DWG and to distribute 4,059,055 shares of Class A Common Stock and 3,610,376
shares of Class B Common Stock to Xxxxx and 1,965,607 shares of Class A Common
Stock and 1,153,058 shares of Class B Common Stock to May.
The parties wish to replicate the voting arrangements
contained in the DWG Partnership Agreement for all shares of Common Stock owned
or hereafter acquired by them (the "Shares") and to provide for certain other
rights and obligations.
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:
ARTICLE I
VOTING
1.1 General. From and after the execution of this Agreement
and the dissolution and winding up of DWG, at any regular or special meeting of
stockholders of the Company or in any written consent executed in lieu of such a
meeting of stockholders, no Stockholder and no Affiliate Transferee (as defined
below) shall vote his or its Shares without the prior approval, consent or
agreement of both Xxxxx and May.
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1.2 After-Acquired Securities. All of the provisions of this
Agreement shall apply to all of the Shares now owned or which may be issued or
transferred hereafter to a Stockholder in consequence of any additional
issuance, purchase, exchange or reclassification of any of such Shares,
corporate reorganization, or any other form of recapitalization, consolidation,
merger, share split or share dividend, or which are acquired by a Stockholder in
any other manner.
ARTICLE II
TRANSFERS
2.1 Transfers Generally. Subject to Section 2.2, either
Stockholder and any Affiliate Transferee may sell, give, assign or otherwise
dispose of (whether by operation of law or otherwise) (each a "transfer") any
and all Shares free and clear of the rights and obligations of this Agreement.
2.2 Transfers to Family Members and Affiliates.
Notwithstanding anything to the contrary contained in this Agreement, (a) no
Stockholder who is an individual may transfer all or a portion of his Shares to
(i) a member of such Stockholder's immediate family, which shall include his
spouse, siblings, children or grandchildren or nieces or nephews ("Family
Members") or (ii) a trust, corporation, partnership or limited liability
company, all or part of the beneficial interests in which are held by such
Stockholder or one or more Family Members of such Stockholder and (b) no
Stockholder who is an entity may transfer all or a portion of its Shares to any
of its "affiliates" (as defined in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended) (the
transferees referred to in the preceding clauses (a) and (b) are each referred
to as an "Affiliate Transferee"), unless, in either case, such Affiliate
Transferee has agreed in writing to be bound by the terms and conditions of this
Agreement pursuant to an instrument substantially in the form attached hereto as
Exhibit A. Upon becoming a party to this Agreement, such Affiliate Transferee
shall be bound to the terms and conditions of this Agreement as an Affiliate
Transferee with respect to the Shares transferred to such Affiliate Transferee.
2.3 Stock Certificate Legend. A copy of this Agreement shall
be filed with the Secretary of the Company and kept with the records of the
Company. Each certificate representing Shares now held or hereafter acquired by
either Stockholder and any Affiliate Transferee shall for as long as this
Agreement is effective bear legends substantially in the following forms:
THE SALE, GIFT, ASSIGNMENT OR OTHER DISPOSITION (EACH A
"TRANSFER") AND VOTING OF ANY OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE VOTING
AGREEMENT, DATED AS OF JULY 23, 2004, BETWEEN THE STOCKHOLDERS
NAMED THEREIN, A COPY OF WHICH MAY BE INSPECTED AT THE
COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE
TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE
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COMPANY UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN
COMPLIANCE WITH THE TERMS OF THE VOTING AGREEMENT.
ARTICLE III
MISCELLANEOUS
3.1 Notices. All notices, demands or other communications
provided for or permitted hereunder to any Stockholder shall be made in writing
and shall be by registered or certified first class mail, return receipt
requested, telecopier, courier service, or personal delivery to the Stockholder,
at his or its address as it appears on the record books of the Company. All such
notices, demands and other communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 3.1 designate another address or individual or
entity for receipt of notices hereunder.
3.2 Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon successors and
permitted assigns of the parties hereto. This Agreement is not assignable except
in connection with a transfer of Shares in accordance with this Agreement. No
individual or entity other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement.
3.3 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 and May. Any such amendment, supplement,
modification, waiver or consent shall be binding upon the all of the
Stockholders and Affiliate Transferees.
3.4 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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3.5 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
3.6 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.
3.7 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.
3.8 Rules of Construction. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
3.9 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.
3.10 Term of Agreement. This Agreement shall become effective upon the execution
hereof and shall terminate upon the date either Xxxxx or May determines and
notifies in writing to the other or upon the date of the death of either Xxxxx
or May.
3.11 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.
[Remainder of page intentionally left blank]
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
EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT
The undersigned wishes to receive from [insert name]
("Transferor") certain shares or certain options, warrants or other rights to
purchase [insert number] shares, par value $0.10 per share, of [Class A] [Class
B] Common Stock (the "Shares") of Triarc Companies, Inc., a Delaware corporation
(the "Company");
The Shares are subject to the Voting Agreement, dated July 23,
2004 (as amended from time to time, the "Agreement"), by and among Xxxxxx Xxxxx
and Xxxxx X. May;
The undersigned has been given a copy of the Agreement and
afforded ample opportunity to read and to have counsel review it, and the
undersigned is thoroughly familiar with its terms;
Pursuant to the terms of the Agreement, the Transferor may not
transfer such Shares to an Affiliate Transferee (as defined in the Agreement)
unless and until such Affiliate Transferee agrees to be bound by the terms and
conditions of the Agreement pursuant to an instrument substantially in the form
hereto; and
The undersigned, being an Affiliate Transferee, wishes to
receive such Shares.
In consideration of the mutual promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to induce the Transferor to transfer such Shares to
the undersigned Affiliate Transferee, the undersigned does hereby acknowledge
and agree that (i) he[/she] has been given a copy of the Agreement and afforded
ample opportunity to read and to have counsel review it, and the undersigned is
thoroughly familiar with its terms, (ii) the Shares are subject to the terms and
conditions set forth in the Agreement, and (iii) the undersigned does hereby
agree fully to be bound thereby as a "Stockholder" (as therein defined).
This ________ day of ________, 20__.
[insert name of Affiliate Transferee]
By:
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Name:
Title:
