EXHIBIT 10.2
[Execution Copy]
XXXX OF SALE
THIS XXXX OF SALE is made, executed and delivered this 31st day of July
2007 (this "Xxxx of Sale"), by Triarc Companies, Inc., a Delaware corporation
("Seller"), to Trian Fund Management, L.P., a Delaware limited partnership
("Buyer").
RECITALS
WHEREAS, Seller and Buyer are parties to that certain Services Agreement
dated as of April 30, 2007 and Seller is a party to those certain Separation
Agreements, each dated April 30, 2007, with Xxxxxx Xxxxx ("Xxxxx") and Xxxxx X.
May ("May").
WHEREAS, Seller will be relocating its headquarter operations outside of
New York City and will no longer need various assets associated with its
headquarter operations.
WHEREAS, Seller desires to sell, convey, transfer and assign to Buyer the
assets described on Schedule A attached hereto (the "Purchased Assets") and
Buyer desires to purchase the Purchased Assets.
NOW, THEREFORE, in consideration for the payment of $1,668,373.70 (the
"Purchase Price") plus $139,726.30 of New York State and New York City sales
taxes, the receipt and sufficiency of which are hereby acknowledged, Seller
agrees as follows:
1. Effective as of July 31, 2007, Seller for itself and its successors and
assigns, does hereby irrevocably sell, set over, convey, grant, transfer and
assign to Buyer, its successors and assigns, forever, all its right, title and
interest in and to the Purchased Assets "as is" and "as they stand" and without
any representation or warranty whatsoever (whether express or implied) as to
condition, title, fitness for use, merchantability or any other matter, and the
Buyer further acknowledges that it is familiar with and has examined the
Purchased Assets to its satisfaction. The Purchase price shall be paid by Buyer
to Seller within three (3) business days by wire transfer to Seller's account,
as designated in writing by Seller.
2. Notwithstanding paragraph 1 above, or the assets described on Schedule A
attached hereto, the following assets are excluded from the Purchased Assets and
are not subject to the terms and conditions of this Xxxx of Sale: (A) the
furniture located in the office of Xxxxx Xxxxxx ("Xxxxxx") and owned by him
(including his desk, chairs, lamp, black rotary phone, computer table, built-in
bookcase, sports memorabilia, artwork and photographs and a conference table);
(B) the architectural desk owned by May and the architectural drawings and maps
owned by May and located throughout the premises, (C) any furniture or other
assets that are currently leased by Seller, and (D) the designated computer
server containing certain data relating to Seller.
3. Seller does hereby covenant that, from time to time after the delivery
of this instrument, at Buyer's reasonable request, it will do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, such further acts, conveyances, transfers, assignments and assurances
as Buyer may require to convey, transfer to and vest in Buyer, and to put Buyer
in possession of, any of the Purchased Assets.
4. This Xxxx of Sale shall be binding on and inure to the benefit of and be
enforceable by Seller and Buyer and their respective successors and assigns.
Nothing in this instrument shall be deemed to create or imply any right or
benefit in any person or entity other than Seller, Buyer and their respective
successors and assigns.
5. This Xxxx of Sale shall be governed by, construed and enforced in
accordance with the laws of the State of New York applicable to contracts made
and performed entirely within such State and without giving effect to the
conflict of laws rules thereof.
IN WITNESS WHEREOF, the undersigned has caused this Xxxx of Sale to be duly
executed as of the date first written above.
TRIARC COMPANIES, INC.
By:/s/XXXXXXX X. XXXXXXXX
----------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Executive Vice President and
Chief Financial Officer
TRIAN FUND MANAGEMENT, L.P.
By: Trian Fund Management GP, LLC,
its general partner
By:/s/XXXXX X. MAY
-------------------------------------------
Name: Xxxxx X. May
Title: Member
Schedule A
Purchased Assets
1. The furniture and other related items as described in Christies'
Appraisal previously provided to the Seller (unless otherwise excluded
hereunder).
2. All tangible personal property owned by Seller and used in conducting its
business on the 24th, 28th and 41st Floor of the Seller's offices at 000
Xxxx Xxxxxx, Xxx Xxxx, XX, including computers, furniture, office
equipment and supplies, and including any such property Seller keeps in
one or more storage facilities (unless otherwise excluded hereunder).
3. All laptops, printers, fax machines, cell phones and PDAs owned by Seller
and used by Seller's employees, wherever such equipment may be located.
4. The corporate name and trade name "Triarc" subject to the fully paid up,
royalty-free, worldwide, irrevocable and exclusive right and license of
the Seller (i) to continue to use such name through the earlier of June
15, 2008 and the date on which it has taken the necessary corporate
action to change its name and (ii) to continue to use the listing symbol
"TRY" and any variation thereof, until a replacement listing is obtained.
5. Cadillac Escalade 2007 automobile, Vehicle Identification Number ("VIN")
0XXXX00000X000000, owned by Seller.
6. The Seller's rights to sports tickets.
7. Purchased Assets do not include the items described in paragraph 2 of
this Xxxx of Sale.
