EXHIBIT 99.6.1
EXECUTION COPY
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ESCROW AGREEMENT
by and among
WILMINGTON TRUST COMPANY
as Escrow Agent,
TRIARC COMPANIES, INC.,
ARBY'S RESTAURANT GROUP, INC.,
CERTAIN SHAREHOLDERS OF RTM RESTAURANT GROUP, INC.,
EACH MEMBER OF RTM ACQUISITION COMPANY, L.L.C.,
RTM MANAGEMENT COMPANY, L.L.C.
EACH MEMBER OF RTM MANAGEMENT COMPANY, L.L.C.,
and
XXXXXXX X. XXXXXXXXX, XX.,
XXXXXX X. XXXXXX,
and
J. XXXXXXX XXXXX,
as the RTM Representatives
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Dated: as of July 25, 2005
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TABLE OF CONTENTS
Page
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1. Appointment of Escrow Agent.....................................................................5
2. Deposit of RTMRG Escrow Shares and RTMRG Cash Escrow Deposit....................................6
3. Distributions of Proceeds.......................................................................7
4. Voting of RTMRG Escrow Shares...................................................................7
5. RTM Escrow Fund.................................................................................8
6. Other Instructions Received By Escrow Agent....................................................13
7. Release of Escrow..............................................................................14
8. RTM Escrow Fund Statements.....................................................................16
9. Compensation...................................................................................17
10. Limitations On Duties of Escrow Agent..........................................................17
11. Indemnification................................................................................19
12. Resignation of Escrow Agent; Appointment of Successor Escrow Agent.............................19
13. Definitions....................................................................................20
14. Amendment, etc.................................................................................23
15. Notices........................................................................................24
16. Governing Law..................................................................................25
17. Consent to Jurisdiction and Service of Process.................................................25
18. WAIVER OF JURY TRIAL...........................................................................26
19. No Third-Party Beneficiaries...................................................................26
20. Severability...................................................................................26
21. Assignment.....................................................................................26
22. Remedies.......................................................................................26
23. Specific Performance...........................................................................27
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24. Counterparts...................................................................................27
25. Certain Tax Matters............................................................................27
26. Entire Agreement...............................................................................27
27. Payment Dates..................................................................................27
Schedules
Schedule I Shareholders of RTMRG
Schedule II Members of RTMAC
Schedule III Members of RTMMC
Schedule IV Pro Rata Interests in RTM Escrow Fund
Schedules
Annex I Form of Certificate of Instruction
Annex II Form of RTM [Tax] Objection Certificate
Annex III Form of RTM [Tax] Resolution Certificate
Annex IV Form of RTM Litigation/Final Determination Certificate
Annex V Form of Triarc Cancellation Certificate
Annex VI Form of RTM Cancellation Certificate
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
July 25, 2005 by and among Wilmington Trust Company, a Delaware banking
corporation, as escrow agent (the "Escrow Agent"), Triarc Companies, Inc., a
Delaware corporation ("Triarc"), Arby's Restaurant Group, Inc. a Delaware
corporation and an indirect wholly owned subsidiary of Triarc ("ARG"), each
shareholder of RTM Restaurant Group, Inc., a Georgia corporation ("RTMRG")
immediately prior to the First Merger (as defined below) who is listed on
Schedule I hereto as an RTMRG Principal Shareholder (collectively, the "RTMRG
Principal Shareholders" and each, an "RTMRG Principal Shareholder" and, together
with the other persons and entities listed on Schedule I hereto, the "RTMRG
Shareholders"), each of the members of RTM Acquisition Company, L.L.C. ("RTMAC")
immediately prior to the RTMAC Purchase (as defined below), each of whom is
listed on Schedule II hereto (collectively, the "RTMAC Members" and each, an
"RTMAC Member"), RTM Management Company, L.L.C. ("RTMMC"), each of the members
of RTMMC immediately prior to the RTMMC Purchase (as defined below), each of
whom is listed on Schedule III hereto (collectively, the "RTMMC Members" and
each, an "RTMMC Member" and, together with the RTMRG Shareholders, the RTMAC
Members and RTMMC, the "RTM Parties"), and each of Xxxxxxx X. Xxxxxxxxx, Xx.,
Xxxxxx X. Xxxxxx and J. Xxxxxxx Xxxxx, appointed by the RTM Parties as their
representatives, attorneys-in-fact and agents for all purposes under this
Agreement (collectively, the "RTM Representatives"). Capitalized terms used in
this Agreement without definition shall have the meanings ascribed to them in
Section 13.
WHEREAS, Triarc, Arby's Acquisition Co., a Georgia corporation and a
direct wholly owned subsidiary of Triarc ("Merger Sub Corp."), Arby's
Restaurant, LLC, a Delaware limited liability company and a direct wholly owned
subsidiary of Triarc ("Merger Sub LLC"), RTMRG and the RTM Representatives have
entered into the Agreement and Plan of Merger, dated as of May 27, 2005 (the
"RTMRG Merger Agreement"), pursuant to which and on the terms and subject to the
conditions set forth therein, inter alia, at the First Effective Time (as
defined therein), Merger Sub Corp. will, in accordance with the Georgia Business
Corporation Code, merge with and into RTMRG and each of the outstanding shares
of common stock, no par value per share, of RTMRG (the "RTMRG Common Stock")
will be converted into the right to receive the Merger Consideration (as defined
therein) (the "First Merger");
WHEREAS, pursuant to Section 2.05(a) of the RTMRG Merger Agreement,
Triarc will deliver to the Escrow Agent, on behalf of the RTMRG Shareholders,
(a) a certificate or certificates representing 1,203,372 shares (the "RTMRG
Escrow Shares") of Class B Common Stock, Series 1, par value $0.10 per share, of
Triarc (the "Triarc Class B-1 Common Stock") and (b) by wire transfer of
immediately available funds for deposit into a separate account, cash in the
amount of $2 million (the "RTMRG Cash Escrow Deposit"), in each case, in partial
satisfaction of the payment of the Aggregate Merger Consideration (as defined
therein) payable to the RTMRG Shareholders pursuant to Section 2.03(c) of the
RTMRG Merger Agreement and as
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security for the obligations of the RTMRG Shareholders, the RTMAC Members, RTMMC
and the RTMMC Members under this Agreement, and the RTM Representatives will
deliver to the Escrow Agent executed stock transfer powers related to the RTMRG
Escrow Shares;
WHEREAS, Triarc, ARG, each of the RTMAC Members and Xxxxxxx X.
Xxxxxxxxx, Xx., Xxxxxx X. Xxxxxx and J. Xxxxxxx Xxxxx, as the RTM
Representatives have entered into the Membership Interest Purchase Agreement,
dated as of May 27, 2005 (the "RTMAC Purchase Agreement"), pursuant to which,
inter alia, at the Closing (as defined therein), Triarc or its assignee(s) will
purchase, on the terms and subject to the conditions set forth therein, all of
the outstanding membership interests of RTMAC owned by each such RTMAC Member
(the "RTMAC Purchase") for an amount in cash equal to the Aggregate Purchase
Price (as defined therein);
WHEREAS, Triarc, ARG, RTMMC Acquisition, LLC, a Delaware limited
liability company and a direct wholly owned subsidiary of ARG ("RTMMC
Acquisition Sub"), RTMMC, the RTMMC Members and Xxxxxxx X. Xxxxxxxxx, Xx.,
Xxxxxx X. Xxxxxx and J. Xxxxxxx Xxxxx, as the RTM Representatives have entered
into the Asset Purchase Agreement, dated as of May 27, 2005 (the "RTMMC Purchase
Agreement"), pursuant to which, inter alia, at the Closing (as defined therein),
RTMMC Acquisition Sub will acquire from RTMMC, on the terms and subject to the
conditions set forth therein, the Purchased Assets (as defined therein) and
assume the Assumed Liabilities (as defined therein) (the "RTMMC Purchase") for
an amount in cash equal to the Aggregate Purchase Price (as defined therein);
WHEREAS, Triarc and the RTM Representatives desire to create an escrow
account for the RTMRG Escrow Shares and the RTMRG Cash Escrow Deposit, and to
appoint the Escrow Agent as the escrow agent for such account upon the terms and
conditions set forth below;
WHEREAS, it is a condition to the obligations of the parties to effect
the RTM Transactions (as defined in the RTMRG Merger Agreement) that the parties
hereto enter into this Agreement; and
WHEREAS, the Escrow Agent is not a party to the RTMRG Merger Agreement,
the RTMAC Purchase Agreement or the RTMMC Purchase Agreement, is not bound by
any of their respective terms and will not be required to refer to any of such
agreements for any reason whatsoever.
NOW THEREFORE, in consideration of the foregoing and the agreements
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties to this Agreement hereby
agree as follows:
1. Appointment of Escrow Agent. Triarc and the RTM Representatives
hereby appoint the Escrow Agent as the escrow agent under and pursuant to the
terms, conditions and provisions of this Agreement, and the Escrow Agent hereby
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accepts such appointment and agrees to perform the duties thereof subject to the
terms, conditions and provisions of this Agreement. The Escrow Agent
acknowledges receipt of an executed copy of this Agreement.
2. Deposit of RTMRG Escrow Shares and RTMRG Cash Escrow Deposit.
Simultaneously with the execution and delivery of this Agreement, (a) Triarc is
depositing with the Escrow Agent, on behalf of the RTM Parties, (x) a
certificate or certificates representing the RTMRG Escrow Shares, and (y) by
wire transfer of immediately available funds, an amount in cash equal to the
RTMRG Cash Escrow Deposit and (b) the RTMRG Shareholders who have certified to
Triarc, as of the date of the RTMRG Merger Agreement, as to his, her or its
status as an "accredited investor," as such term is defined in Rule 501(a) of
the Securities Act, all of whom are shown on Schedule I hereto as "Accredited
Investors" (collectively the "RTMRG Accredited Shareholders" and each an "RTMRG
Accredited Shareholder") are delivering to the Escrow Agent duly executed stock
transfer powers relating to the RTMRG Escrow Shares. The RTMRG Cash Escrow
Deposit, together with the RTMRG Escrow Shares, is referred to herein as the
"RTM Escrow Fund". The Escrow Agent hereby agrees to establish and maintain the
RTM Escrow Fund in a separate account and shall invest the cash portion of the
RTM Escrow Fund as directed by the RTM Representatives, from time to time, in
writing, in (i) designated readily marketable direct obligations of, or
obligations the principal and interest on which are unconditionally guaranteed
by, the United States of America ("U.S. Securities"), (ii) bank time deposits
evidenced by certificates of deposit issued by commercial banks in the United
States having capital and surplus in excess of $500,000,000, (iii) commercial
paper rated at least A-1 or the equivalent thereof by Standard and Poor's
Corporation of at least P-1 or the equivalent thereof by Xxxxx'x Investors
Service Inc., (iv) repurchase agreements with the Escrow Agent or one of the
Escrow Agent's affiliates using U.S. Securities as collateral, in each case with
a maturity of not more than 60 days, (v) money market funds registered as
investment companies under the Investment Company Act of 1940, as amended, that
seek to maintain a stable $1 net asset value and that are rated AAA (or the
equivalent thereof) or better by Xxxxx'x Investors Service Inc. or Standard and
Poor's Corporation, or (vi) the Escrow Agent's insured money market fund or a
money market fund that invests only in U.S. Securities, or if not so directed,
in Service Class Shares of the U.S. Government Portfolio of the Wilmington
Funds, a mutual fund managed by Xxxxxx Square Management Corporation, a
subsidiary of the Escrow Agent (the "Wilmington Mutual Fund") (collectively, all
investments referred to in this sentence are referred to herein as "Permitted
Investments"). The parties hereto acknowledge that (w) shares in the Wilmington
Mutual Fund are not obligations of Wilmington Trust Company, are not deposits
and are not insured by the FDIC, (x) the Escrow Agent or its affiliates are
compensated by the Wilmington Mutual Fund for services rendered in its capacity
as investment advisor, custodian and/or transfer agent, (y) Wilmington Trust
Company, or its affiliates, are also compensated by the Wilmington Mutual Fund
for providing shareholder services and (z) such compensation is both described
in detail in the prospectus for the fund, and is in addition to the compensation
paid to Wilmington Trust Company in its capacity as the Escrow Agent hereunder.
The Escrow Agent shall hold and dispose of the RTM Escrow Fund in accordance
with the terms, conditions and
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provisions of this Agreement. The RTM Escrow Fund shall not be subject to any
Lien by any creditor of any party hereto or any RTM Party and shall be used
solely for the purpose set forth on this Agreement. The RTM Escrow Fund, and any
income and interest earned or accrued with respect to the cash portion of the
RTM Escrow Fund and any dividends and other distributions declared with respect
to the RTMRG Escrow Shares, shall not be available to, and shall not be used by,
the Escrow Agent to set off any obligations of Triarc or the RTM Parties owing
to the Escrow Agent in any capacity.
3. Distributions of Proceeds.
(a) Upon the receipt of any income or interest earned with
respect to the cash portion of the RTM Escrow Fund, the Escrow Agent shall,
within two Business Days, distribute such income or interest to the RTM
Representatives for distribution by the RTM Representatives to each of the RTMRG
Shareholders pro rata based on the number of shares of RTMRG Common Stock owned
immediately prior to the First Merger (the "Ownership Allocation").
(b) Except for tax-free distributions paid in stock declared
with respect to the RTMRG Escrow Shares pursuant to Section 305(a) of the Code
(which shares shall be held in the RTM Escrow Fund and for all purposes under
this Agreement shall be deemed to be RTM Escrow Shares), the Escrow Agent shall,
upon receipt thereof, promptly (and, in any event, within two Business Days)
distribute to the RTM Representatives for distribution by the RTM
Representatives to each of the RTMRG Accredited Shareholders pro rata based on
the Ownership Allocation, any dividends or other distributions of any kind made
in respect of the RTMRG Escrow Shares. In the event that the RTMRG Escrow Shares
are exchanged for any other securities and/or cash or other property by reason
of a merger, consolidation, recapitalization, reorganization or similar
corporate transaction, such securities and/or property shall be substituted for
the RTMRG Escrow Shares for purposes of this Agreement, and the RTM
Representatives and Triarc shall agree to such equitable adjustments in the
provisions of this Agreement as may be necessary to give effect to this
sentence. Prompt written notice of any such exchange shall be provided by Triarc
to the Escrow Agent and the Escrow Agent shall be entitled to conclusively rely
on such notice. No such exchange shall affect the Escrow Agent's rights, duties
or immunities under this Agreement.
4. Voting of RTMRG Escrow Shares. Prior to the later to occur of (i)
the Termination Date (as defined below) and (ii) the time at which all RTMRG
Escrow Shares have been distributed to the RTMRG Accredited Shareholders
pursuant to this Agreement, each RTMRG Accredited Shareholder will have voting
rights with respect to his or her RTMRG Escrow Shares, and the Escrow Agent and
Triarc shall cooperate with the exercise of such rights as reasonably requested
by such RTMRG Accredited Shareholder. While the RTMRG Escrow Shares remain in
the Escrow Agent's possession pursuant to this Agreement, the RTMRG Accredited
Shareholders shall retain and be able to exercise all other incidents of
ownership of the RTMRG Escrow Shares which are not inconsistent with the terms
and conditions of this Agreement or the RTMRG Merger Agreement.
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5. RTM Escrow Fund. Except as otherwise provided in Section 6, the RTM
Escrow Fund shall be held and disposed of by the Escrow Agent as follows:
(a) Post-Closing Adjustment Based on RTM Closing Net
Liabilities. On the date of the final determination of the RTM Closing Net
Liabilities in accordance with Section 2.09 of the RTMRG Merger Agreement, (i)
if payment is required from the RTM Escrow Fund thereunder then each of Triarc
and the RTM Representatives promptly shall provide a joint written notice to the
Escrow Agent instructing the Escrow Agent to deliver to Triarc, within five
Business Days after such date, from the RTM Escrow Fund, cash in an amount equal
to the lesser of (x) the amount of such payment due to Triarc and (y) all cash
and Permitted Investments contained in the RTM Escrow Fund up to an amount equal
to $2 million; and (ii) if payment is not required from the RTM Escrow Fund
thereunder then each of Triarc and the RTM Representatives promptly shall
provide a joint written notice thereof to the Escrow Agent.
(b) Claims for General Indemnification Against the RTM
Parties.
(i) Concurrently with the delivery by a Triarc
Indemnified Party to the RTM Representatives of a Claims Notice under the RTMRG
Merger Agreement, the RTMAC Purchase Agreement or the RTMMC Purchase Agreement,
Triarc will deliver to the Escrow Agent a certificate in substantially the form
of Annex I attached hereto (an "RTM Certificate of Instruction"). No RTM
Certificate of Instruction may be delivered by Triarc after the close of
business on the day on which the claim underlying such RTM Certificate of
Instruction expires under Section 11.01 of the RTMRG Merger Agreement, Section
10.01 of the RTMAC Purchase Agreement or Section 10.01 of the RTMMC Purchase
Agreement, as applicable, and in any event no RTM Certificate of Instruction may
be delivered by Triarc after the close of business on the Business Day
immediately preceding the Termination Date. The Escrow Agent shall give written
notice to the RTM Representatives of its receipt of an RTM Certificate of
Instruction not later than the third Business Day following receipt thereof,
together with a copy of such RTM Certificate of Instruction. The Escrow Agent
shall be entitled to conclusively rely on any RTM Certificate of Instruction
provided to it by Triarc and shall have no duty to determine if any such RTM
Certificate of Instruction has been provided to the Escrow Agent in violation of
this Section 5(b).
(ii) If the Escrow Agent (A) shall not, within 30
calendar days following its receipt of an RTM Certificate of Instruction (the
"RTM Objection Period"), have received from the RTM Representatives a
certificate in substantially the form of Annex II attached hereto (an "RTM
Objection Certificate") disputing the applicable RTM Parties' obligation to pay
the Owed Amount referred to in such RTM Certificate of Instruction, or (B) shall
have received such an RTM Objection Certificate within the RTM Objection Period
and shall thereafter have received either (i) a certificate from Triarc and the
RTM Representatives substantially in the form of Annex III attached hereto (an
"RTM Resolution Certificate") stating that the applicable Triarc Indemnified
Parties and the RTM Representatives have agreed that the Owed
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Amount referred to in such RTM Certificate of Instruction (or a specified
portion thereof) is payable to the applicable Triarc Indemnified Parties or (ii)
a copy of a final and non-appealable order of a court of competent jurisdiction
(accompanied by a certificate of Triarc and the RTM Representatives
substantially in the form of Annex IV attached hereto (an "RTM Litigation
Certificate")) stating that the Owed Amount referred to in such RTM Certificate
of Instruction (or a specified portion thereof) is payable by the applicable RTM
Parties to the applicable Triarc Indemnified Parties, then the Escrow Agent
shall, on the Business Day next following (I) the expiration of the RTM
Objection Period or (II) the Escrow Agent's receipt of an RTM Resolution
Certificate or an RTM Litigation Certificate, as the case may be, deliver to the
applicable Triarc Indemnified Parties, from the RTM Escrow Fund, an amount equal
to the Owed Amount (or, if such RTM Resolution Certificate or RTM Litigation
Certificate specifies that a lesser amount than such Owed Amount is payable,
such lesser amount). The Escrow Agent shall give written notice to Triarc of its
receipt of an RTM Objection Certificate not later than the third Business Day
following receipt thereof, together with a copy of such RTM Objection
Certificate. The Escrow Agent shall be entitled to conclusively rely on any RTM
Objection Certificate, RTM Resolution Certificate or RTM Litigation Certificate
provided to it by the RTM Representatives, Triarc and the RTM Representatives or
Triarc and the RTM Representatives, respectively, and shall have no duty to
determine if any such RTM Objection Certificate, RTM Resolution Certificate or
RTM Litigation Certificate has been provided to the Escrow Agent in violation of
this Section 5(b).
(iii) Upon the payment by the Escrow Agent of the
Owed Amount referred to in an RTM Certificate of Instruction, such RTM
Certificate of Instruction shall be deemed canceled. Upon the receipt by the
Escrow Agent of an RTM Resolution Certificate or an RTM Litigation Certificate
and the payment by the Escrow Agent of the Owed Amount referred to therein, the
related RTM Certificate of Instruction shall be deemed canceled.
(iv) Upon the determination by the applicable Triarc
Indemnified Parties that they have no claim or have released their claim with
respect to an Owed Amount referred to in an RTM Certificate of Instruction (or a
specified portion thereof), Triarc shall, not later than the third Business Day
following such determination or release, deliver to the Escrow Agent a
Certificate substantially in the form of Annex V attached hereto (a "Triarc
Cancellation Certificate") canceling such RTM Certificate of Instruction (or
such specified portion thereof, as the case may be), and such RTM Certificate of
Instruction (or portion thereof) shall thereupon be deemed canceled. The Escrow
Agent shall give written notice to the RTM Representatives of its receipt of a
Triarc Cancellation Certificate not later than the third Business Day following
receipt thereof, together with a copy of such Triarc Cancellation Certificate.
The Escrow Agent shall be entitled to conclusively rely on any Triarc
Cancellation Certificate provided to it by Triarc and shall have no duty to
determine if any such Triarc Cancellation Certificate has been provided to the
Escrow Agent in violation of this Section 5(b).
(v) If an RTM Resolution Certificate or an RTM
Litigation Certificate delivered pursuant to 5(b)(ii) indicates that the portion
of the Owed Amount that is payable is less than the entire Owed Amount indicated
on the applicable
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RTM Certificate of Instruction, the RTM Certificate of Instruction shall be
deemed cancelled as to the difference between the Owed Amount and the portion of
the Owed Amount payable pursuant to the RTM Resolution Certificate or the RTM
Litigation Certificate, as the case may be. Upon receipt of a final and
non-appealable order of a court of competent jurisdiction stating that none of
the Owed Amount referred to in an RTM Certificate of Instruction as to which the
RTM Representatives delivered an RTM Objection Certificate within the RTM
Objection Period is payable by the applicable RTM Parties to any Triarc
Indemnified Party who delivered the applicable Claims Notice, the RTM
Representatives may deliver a copy of such order (accompanied by a certificate
of the RTM Representatives substantially in the form of Annex VI attached hereto
(an "RTM Cancellation Certificate")) canceling such RTM Certificate of
Instruction, and such RTM Certificate of Instruction shall thereupon be deemed
canceled. The Escrow Agent shall give written notice to Triarc of its receipt of
an RTM Cancellation Certificate not later than the third Business Day following
receipt thereof, together with a copy of such RTM Cancellation Certificate. The
Escrow Agent shall be entitled to conclusively rely on any RTM Cancellation
Certificate provided to it by the RTM Representatives and shall have no duty to
determine if any such RTM Cancellation Certificate has been provided to the
Escrow Agent in violation of this Section 5(b).
(vi) Notwithstanding the foregoing, all distributions
from the RTM Escrow Fund pursuant to this Section 5(b) shall be subject to the
applicable limitations on the indemnification rights of the Triarc Indemnified
Parties contained in Article XI of the RTMRG Merger Agreement, Article X of the
RTMAC Purchase Agreement or Article X of the RTMMC Purchase Agreement, as
applicable.
(c) Claims for Tax Indemnification Against the RTM Parties.
(i) Concurrently with the delivery by a Triarc
Indemnified Party to the RTM Representative of a written notice under Section
8.02 of the RTMRG Merger Agreement, Section 7.02 of the RTMAC Purchase Agreement
or Section 7.02 of the RTMMC Purchase Agreement, Triarc will deliver to the
Escrow Agent a certificate in substantially the form of Annex I attached hereto
(an "RTM Tax Certificate of Instruction"). No RTM Tax Certificate of Instruction
may be delivered by Triarc after the close of business on the Business Day
immediately preceding the Termination Date. The Escrow Agent shall give written
notice to the RTM Representatives and TRH of its receipt of an RTM Tax
Certificate of Instruction not later than the third Business Day following
receipt thereof, together with a copy of such RTM Certificate of Instruction.
The Escrow Agent shall be entitled to conclusively rely on any RTM Tax
Certificate of Instruction provided to it by Triarc and shall have no duty to
determine if any such RTM Tax Certificate of Instruction has been provided to
the Escrow Agent in violation of this Section 5(c).
(ii) If the Escrow Agent (A) shall not, within 10
Business Days following its receipt of an RTM Tax Certificate of Instruction
(the "RTM Tax Objection Period"), have received from the RTM Representative a
certificate in substantially the form of Annex II attached hereto (an "RTM Tax
Objection Certificate") disputing the applicable RTM Parties' obligation to pay
the Owed Amount referred to in
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such RTM Tax Certificate of Instruction, or (B) shall have received such an RTM
Tax Objection Certificate within the RTM Tax Objection Period and shall
thereafter have received either (i) a certificate from Triarc and the RTM
Representatives substantially in the form of Annex III attached hereto (an "RTM
Tax Resolution Certificate") stating that Triarc and the RTM Representatives
have agreed that the Owed Amount referred to in such RTM Tax Certificate of
Instruction (or a specified portion thereof) is payable to the applicable Triarc
Indemnified Parties or (ii) a copy of the "final determination" by the
appropriate Governmental Entity or a court of competent jurisdiction
(accompanied by a certificate of Triarc and the RTM Representatives
substantially in the form of Annex IV attached hereto (an "RTM Final
Determination Certificate")) stating that the Owed Amount referred to in such
RTM Tax Certificate of Instruction (or a specified portion thereof) is payable
by the applicable Triarc Indemnified Parties to the appropriate Governmental
Entity or other applicable third party, then the Escrow Agent shall, on the
Business Day next following (I) the later to occur of the expiration of the RTM
Objection Period or five Business Days before the Owed Amount referred to in
such RTM Tax Certificate of Instruction is due to the appropriate Governmental
Entity or other applicable third party or (II) the Escrow Agent's receipt of an
RTM Tax Resolution Certificate or an RTM Final Determination Certificate, as the
case may be, deliver to the applicable Triarc Indemnified Parties, from the RTM
Escrow Fund, an amount equal to the Owed Amount (or, if such RTM Tax Resolution
Certificate or RTM Final Determination Certificate specifies that a lesser
amount than such Owed Amount is payable, such lesser amount); provided, that in
the case of Taxes for a Straddle Period that is the subject of a "final
determination," the RTM Final Determination Certificate shall set forth the
portion of such Taxes for which the RTM Parties are responsible as determined in
accordance with the applicable Transaction Agreement and such portion shall be
considered the Owed Amount. The Escrow Agent shall give written notice to Triarc
of its receipt of an RTM Tax Objection Certificate not later than the third
Business Day following receipt thereof, together with a copy of such RTM
Objection Certificate. A "final determination" shall mean a settlement,
compromise, or other agreement with the relevant Governmental Entity, whether
contained in an IRS Form 870 or other comparable form, or otherwise, or such
procedurally later event, such as a closing agreement with the relevant
Governmental Entity, and agreement contained in an IRS Form 870 D or other
comparable form, an agreement that constitutes a "determination" under Section
1313(a)(4) of the Code, a deficiency notice with respect to which the period for
filing a petition with the Tax Court or the relevant state local or foreign
tribunal has expired or a decision of any court of competent jurisdiction that
is not subject to appeal or as to which the time for appeal has expired. The
Escrow Agent shall be entitled to conclusively rely on any RTM Tax Objection
Certificate, RTM Tax Resolution Certificate or RTM Final Determination
Certificate provided to it by the RTM Representatives, Triarc and the RTM
Representatives or Triarc and the RTM Representatives, respectively, and shall
have no duty to determine if any such RTM Tax Objection Certificate, RTM Tax
Resolution Certificate or RTM Final Determination Certificate has been provided
to the Escrow Agent in violation of this Section 5(c).
(iii) Upon the payment by the Escrow Agent of the
Owed Amount referred to in an RTM Tax Certificate of Instruction, such RTM Tax
Certificate of Instruction shall be deemed canceled. Upon the receipt by the
Escrow
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Agent of an RTM Tax Resolution Certificate or an RTM Final Determination
Certificate and the payment by the Escrow Agent of the Owed Amount referred to
therein, the related RTM Tax Certificate of Instruction shall be deemed
canceled.
(iv) Upon the determination by the applicable Triarc
Indemnified Parties that it has no claim or has released its claim with respect
to an Owed Amount referred to in an RTM Tax Certificate of Instruction (or a
specified portion thereof), Triarc shall, not later than the third Business Day
following such determination or release, deliver to the Escrow Agent a Triarc
Cancellation Certificate canceling such RTM Tax Certificate of Instruction (or
such specified portion thereof, as the case may be), and such RTM Tax
Certificate of Instruction (or portion thereof) shall thereupon be deemed
canceled. The Escrow Agent shall give written notice to the RTM Representatives
of its receipt of a Triarc Cancellation Certificate not later than the third
Business Day following receipt thereof, together with a copy of such Triarc
Cancellation Certificate. The Escrow Agent shall be entitled to conclusively
rely on any Triarc Cancellation Certificate provided to it by Triarc and shall
have no duty to determine if any such Triarc Cancellation Certificate has been
provided to the Escrow Agent in violation of this Section 5(c).
(v) If an RTM Tax Resolution Certificate or an RTM
Final Determination Certificate delivered pursuant to Section 5(c)(ii) indicates
that the portion of the Owed Amount that is payable is less than the entire Owed
Amount indicated on the applicable RTM Tax Certificate of Instruction, the RTM
Tax Certificate of Instruction shall be deemed cancelled as to the difference
between the Owed Amount and the portion of the Owed Amount payable pursuant to
the RTM Tax Resolution Certificate or the RTM Final Determination Certificate,
as the case may be. Upon receipt of a "final determination" by the appropriate
Governmental Entity or a court of competent jurisdiction stating that none of
the Owed Amount referred to in an RTM Tax Certificate of Instruction as to which
the RTM Representative delivered an RTM Tax Objection Certificate within the RTM
Tax Objection Period is payable by the applicable Triarc Indemnified Parties to
the appropriate Governmental Entity or other applicable third party, the RTM
Representatives may deliver a copy of such order (accompanied by an RTM
Cancellation Certificate) canceling such RTM Tax Certificate of Instruction, and
such RTM Tax Certificate of Instruction shall thereupon be deemed canceled. The
Escrow Agent shall give written notice to Triarc of its receipt of an RTM
Cancellation Certificate not later than the third Business Day following receipt
thereof, together with a copy of such RTM Cancellation Certificate. The Escrow
Agent shall be entitled to conclusively rely on any RTM Cancellation Certificate
provided to it by the RTM Representatives and shall have no duty to determine if
any such RTM Cancellation Certificate has been provided to the Escrow Agent in
violation of this Section 5(c).
(vi) Notwithstanding the foregoing, all distributions
from the RTM Escrow Fund pursuant to this Section 5(c) shall be subject to the
applicable limitations on the indemnification rights of the Triarc Indemnified
Parties contained in Article VIII of the RTMRG Merger Agreement, Article VII of
the RTMAC Purchase Agreement or Article VII of the RTMMC Purchase Agreement, as
applicable.
13
(d) Other Applicable Provisions.
(i) If payment is to be made from the RTM Escrow Fund
to Triarc or a Triarc Indemnified Party under Section 5(b) or Section 5(c), such
payment shall be made, using RTMRG Escrow Shares from the RTM Escrow Fund;
provided, however, if after giving effect to Section 5(a), the RTM Escrow Fund
contains cash and Permitted Investments, such payments shall be made, to the
greatest extent possible, using such cash and RTMRG Escrow Shares from the RTM
Escrow Fund pro rata in proportion to the amounts of cash and Permitted
Investments, on the one hand, and RTMRG Escrow Shares (valued at their then
Current Market Price), on the other hand, contained in the RTM Escrow Fund at
such time. To the extent payment is to be made from the RTM Escrow Fund to
Triarc or a Triarc Indemnified Party under Section 5(b) or Section 5(c) in the
form of RTMRG Escrow Shares, (x) the value of each such share shall be deemed to
equal the Current Market Price as of the date of the RTM Resolution Certificate,
the RTM Litigation Certificate, the RTM Tax Resolution Certificate or the RTM
Final Determination Certificate, as the case may be, or (if applicable) if no
RTM Objection Certificate or RTM Tax Objection Certificate is delivered, the
date of the RTM Certificate of Instruction or RTM Tax Certificate of
Instruction, as the case may be, and (y) a certificate or certificates
evidencing in the aggregate a number of whole RTM Escrow Shares (rounding down
to the nearest whole number) shall be delivered to the recipient; provided, that
with respect to any Triarc Indemnified Party other than Triarc, the delivery of
such certificate or certificates shall be subject to applicable securities laws
and the receipt of an opinion of counsel to such Triarc Indemnified Party
reasonably satisfactory to Triarc that such delivery complies with all
applicable securities laws.
(ii) To the extent that the Escrow Agent is required
to deliver amounts from the RTM Escrow Fund to Triarc or the applicable Triarc
Indemnified Parties under Section 5(b) or Section 5(c), it shall deliver to
Triarc or the applicable Triarc Indemnified Parties such amounts from the RTM
Escrow Fund free and clear of all Liens attributable to the Escrow Agent in its
individual capacity and, in the case of RTMRG Escrow Shares, stock transfer
powers related thereto. Triarc shall cause the transfer agent for the Triarc
Class B-1 Common Stock to cooperate with the Escrow Agent in providing
replacement stock certificates for shares of Triarc Class B-1 Common Stock in
substitution for those held by the Escrow Agent in order to enable the Escrow
Agent to make the distributions of RTMRG Escrow Shares required under this
Agreement.
(iii) No certificate shall be delivered pursuant to
this Section 5 unless it shall have been prepared in good faith by the party
delivering such certificate, and all certificates delivered pursuant to this
Section 5 shall represent bona fide notice for purposes of this Agreement.
6. Other Instructions Received By Escrow Agent. Notwithstanding
anything to the contrary herein, the Escrow Agent shall dispose of the RTM
Escrow Fund in accordance with joint written instructions of Triarc and the RTM
Representatives given at any time. Whenever this Agreement provides for a
writing to be delivered by Triarc or the RTM Representatives to the Escrow
Agent, the Escrow Agent shall only
14
rely on a writing signed by any vice president or more senior corporate officer
on behalf of Triarc and a majority of Xxxxxxx X. Xxxxxxxxx, Xx., Xxxxxx X.
Xxxxxx and J. Xxxxxxx Xxxxx, or their permitted successors (the names of whom
shall be set forth in a written notice delivered by the RTM Representatives to
the Escrow Agent), in their capacities as the RTM Representatives.
7. Release of Escrow.
(a) First Interim Release. On January 25, 2007 (the "First
Interim Release Date"), the Escrow Agent shall deliver to the RTM
Representatives for distribution by the RTM Representatives to the RTMRG
Shareholders (provided, that in no event shall any RTMRG Escrow Shares be
distributed to any RTMRG Shareholder that is not an RTMRG Accredited
Shareholder), from the RTM Escrow Fund, (i) cash in an amount equal to the
excess (if any) of (A) the amount of cash and Permitted Investments remaining in
the RTM Escrow Fund as of the close of business on the date immediately prior to
the First Interim Release Date over (B) if the final determination referred to
in Section 5(a) has not been made prior to the First Interim Release Date, $2
million and (ii) a number of RTMRG Escrow Shares (valued at their then Current
Market Price) equal to the excess, if any, of (A) $8 million over (B) the
aggregate of all amounts designated in RTM Certificates of Instruction and RTM
Tax Certificates of Instruction received by the Escrow Agent at any time prior
to the First Interim Release Date that have not been canceled prior to the First
Interim Release Date in accordance with clauses (iii), (iv) or (v) of Section
5(b) and Section 5(c), respectively.
(b) Section 5(a) Release. If Triarc and the RTM
Representatives have not given the Escrow Agent either of the joint written
notices under Section 5(a) of the final determination referred to in Section
5(a) prior to the First Interim Release Date, the Escrow Agent shall promptly
following receipt of such notice given under Section 5(a) (after the First
Interim Release Date) deliver to the RTM Representatives for distribution by the
RTM Representatives to the RTMRG Shareholders any remaining cash and Permitted
Investments then held in the RTM Escrow Fund (after the payment, if any,
required under Section 5(a)) except to the extent that the aggregate of all
amounts designated in RTM Certificates of Instruction and RTM Tax Certificates
of Instruction received by the Escrow Agent at any time prior to such date that
have not been canceled prior to such date in accordance with clauses (iii), (iv)
or (v) of Section 5(b) and Section 5(c), respectively, exceed the value of all
of the RTMRG Escrow Shares (valued at their then Current Market Price) then in
the RTMRG Escrow Fund.
(c) Second Interim Release. On July 25, 2007 (the "Second
Interim Release Date"), the Escrow Agent shall deliver to the RTM
Representatives for distribution by the RTM Representatives to the RTMRG
Shareholders (provided, that in no event shall any RTMRG Escrow Shares be
distributed to any RTMRG Shareholder that is not an RTMRG Accredited
Shareholder), from the RTM Escrow Fund, the assets remaining in the RTRMG Escrow
Fund as of the close of business on the date immediately prior to the Second
Interim Release Date (the "RTM Second Release Amount") other than (A) a number
of RTMRG Escrow Shares the value of which is
15
equal to 50% of the aggregate value of all RTMRG Escrow Shares remaining as of
the close of business on the date immediately prior to the Second Interim
Release Date (with the value of each RTMRG Escrow Share deemed to equal the
Current Market Price as of such time), (B) a number of RTMRG Escrow Shares the
value of which (with the value of each RTMRG Escrow Share deemed to equal the
Current Market Price as of such time) is equal to the aggregate of all amounts
designated in RTM Certificates of Instruction and RTM Tax Certificates of
Instruction received by the Escrow Agent at any time prior to the Second Interim
Release Date that have not been canceled prior to the Second Interim Release
Date in accordance with clauses (iii), (iv) or (v) of Section 5(b) or 5(c),
respectively, (C) if the final determination referred to in Section 5(a) has not
been made prior to the Second Interim Release Date, $2 million of cash and
Permitted Investments, and (D) if the final determination referred to in Section
5(a) has been made prior to the Second Interim Release Date and no RTMRG Escrow
Shares are to be then distributed by operation of clause (A) or (B) above, an
amount of cash and Permitted Investments equal to the excess of claims referred
to in clause (B) above over 50% of the aggregate value of the RTMRG Escrow
Shares remaining as of the close of business on the date immediately prior to
the Second Interim Release Date (with the value of each RTMRG Escrow Share
deemed to equal the Current Market Price as of such time).
(d) Termination Date Release. The escrow established by this
Agreement shall terminate on January 25, 2008 (the "Termination Date");
provided, that this Agreement shall continue in effect with respect to the
escrow until the resolution of all outstanding indemnification claims as to
which the Escrow Agent has properly received an RTM Certificate of Instruction
in accordance with Section 5(b)(i) or an RTM Tax Certificate of Instruction in
accordance with Section 5(c)(i), in each case, on or prior to the Termination
Date, and such escrow shall continue with respect to such claims until such
claims have been resolved in accordance herewith. On the Termination Date, the
Escrow Agent shall deliver to the RTM Representatives for distribution by the
RTM Representatives to the RTMRG Shareholders (provided, that in no event shall
any RTMRG Escrow Shares be distributed to any RTMRG Shareholder that is not an
RTMRG Accredited Shareholder) (A) any dividends or other distributions in
respect of any RTMRG Escrow Shares received by the Escrow Agent and not
previously distributed to the RTM Representatives for distribution by them to
the RTMRG Accredited Shareholders pursuant to Section 3 and (B) the remaining
portion of the RTM Escrow Fund, if any, less (I) a number of RTMRG Escrow Shares
the value of which (with the value of each RTMRG Escrow Share deemed to equal
the Current Market Price as of such time) is equal to the aggregate of all
amounts designated in RTM Certificates of Instruction and RTM Tax Certificates
of Instruction received by the Escrow Agent prior to the Termination Date that
have not been canceled in accordance with clauses (iii), (iv) or (v) of Section
5(b) and Section 5(c), respectively plus (II) if the final determination
referred to in Section 5(a) has not been made prior to the Termination Date, $2
million in cash and Permitted Investments, plus (III) if the final determination
referred to in Section 5(a) has been made prior to the Termination Date and no
RTMRG Escrow Shares are to be then distributed by operation of clause (I) above,
an amount of cash and Permitted Investments equal to the excess of claims
referred to in clause (I) above over the aggregate value of the RTMRG Escrow
Shares remaining as of the close of business on the date immediately prior to
the Termination Release Date (with the value of each RTMRG Escrow Share deemed
to equal the Current Market Price as of such time).
16
(e) Final Release. At such time on or following the
Termination Date as the final determination referred to in Section 5(a) has been
made and all RTM Certificates of Instruction received by the Escrow Agent prior
to the Termination Date have been canceled in accordance with clauses (iii),
(iv) or (v) of Section 5(b) and all RTM Tax Certificates of Instruction received
by the Escrow Agent prior to the Termination Date have been canceled in
accordance with clauses (iii), (iv) or (v) of Section 5(c), the Escrow Agent
shall promptly deliver to the RTM Representatives for distribution by the RTM
Representatives to the RTMRG Shareholders (provided, that in no event shall any
RTMRG Escrow Shares be distributed to any RTMRG Shareholder that is not an RTMRG
Accredited Shareholder) the remaining portion of the RTM Escrow Fund, if any,
and this Agreement (other than Sections 9, 10, 11, 12 and 14) shall
automatically terminate. Notwithstanding the foregoing, each time a RTM
Certificate of Instruction and a RTM Tax Certificate of Instruction is canceled
after the Termination Date, if the Current Market Value of the RTMRG Escrow
Shares remaining in the RTMRG Escrow Fund at such time exceeds the aggregate of
all amounts designated in RTM Certificates of Instruction received by the Escrow
Agent prior to the Termination Date that have not been canceled in accordance
with clauses (iii), (iv) or (v) of Section 5(b) and all amounts designated in
RTM Tax Certificates of Instruction received by the Escrow Agent prior to the
Termination Date that have not been canceled in accordance with clauses (iii),
(iv) or (v) of Section 5(c), the Escrow Agent shall promptly deliver to the RTM
Representatives for distribution by the RTM Representatives to the RTMRG
Shareholders (provided, that in no event shall any RTMRG Escrow Shares be
distributed to any RTMRG Shareholder that is not an RTMRG Accredited
Shareholder) a number of RTMRG Escrow Shares the value of which is equal to such
excess (with the value of each RTMRG Escrow Share deemed to equal the Current
Market Price as of such time).
(f) Other Applicable Provisions.
(i) To the extent RTMRG Escrow Shares are delivered
in any release from the RTM Escrow Fund under this Section 7, a certificate or
certificates evidencing in the aggregate a number of whole RTMRG Escrow Shares
(rounding down to the nearest whole number) shall be delivered to the RTM
Representatives for distribution by the RTM Representatives to the RTMRG
Accredited Shareholders.
(ii) To the extent that the Escrow Agent is required
to release amounts from the RTM Escrow Fund under this Section 7, it shall
release such amounts from the RTM Escrow Fund free and clear of all Liens
attributable to the Escrow Agent in its individual capacity and, in the case of
RTMRG Escrow Shares, stock transfer powers related thereto.
8. RTM Escrow Fund Statements. Not later than ten calendar days after
the end of each calendar month during the term of this Agreement, the Escrow
Agent shall deliver to Triarc and the RTM Representatives a statement reflecting
the
17
investment activity and month-end balance with respect to the cash portion of
the RTM Escrow Fund during the prior month.
9. Compensation. In consideration of the services provided by the
Escrow Agent in the performance of its duties hereunder, ARG agrees to promptly
reimburse the Escrow Agent for all out-of-pocket costs and expenses reasonably
incurred by the Escrow Agent with respect to this Agreement, including
reasonable fees of legal counsel, and to further compensate the Escrow Agent in
accordance with the fee arrangements described in a separate Fee Agreement
between ARG and the Escrow Agent.
10. Limitations On Duties of Escrow Agent.
(a) All parties hereto acknowledge that the duties of the
Escrow Agent hereunder are solely ministerial in nature and have been requested
for their convenience. The Escrow Agent shall not be deemed to be the agent of,
or the fiduciary for, either/any party hereto, or to have any legal or
beneficial interest in the RTM Escrow Fund. The parties hereto agree that the
Escrow Agent (i) is a party to this Agreement only and has no duties or
responsibilities in connection with, and shall not be charged with knowledge of,
any agreements related hereto and (ii) shall not be liable for any act or
omission taken or suffered in good faith with respect to this Agreement unless
such act or omission is the result of the gross negligence or willful misconduct
of the Escrow Agent. In no event shall the Escrow Agent be liable for punitive,
consequential or incidental damages.
(b) The Escrow Agent may consult with legal counsel in
connection with its duties hereunder and shall be fully protected and incur no
liability relative to any action or inaction taken in good faith in accordance
with the advice of such legal counsel and the Escrow Agent shall not be liable
for the negligence of such legal counsel appointed by it with due care. The
Escrow Agent shall have no responsibility for determining the genuineness or
validity of any certificate, document, notice or other instrument or item
presented to or deposited with it and shall be fully protected in acting in
accordance with any written instruction given to it by any of the parties hereto
and reasonably believed by the Escrow Agent to have been signed by the proper
representatives of such parties.
(c) The Escrow Agent shall not be responsible for any losses
relative to the investment or liquidation of the cash portion of the RTM Escrow
Fund, provided, that the cash portion of the RTM Escrow Fund is invested and
held in accordance with Section 2. In addition, the Escrow Agent shall not be
responsible for assuring that the RTM Escrow Fund is sufficient for the
disbursements contemplated under Section 5 or under the RTMRG Merger Agreement,
the RTMAC Purchase Agreement or the RTMMC Purchase Agreement, as applicable. The
Escrow Agent shall be entitled to break or cancel any investment to the extent
reasonably necessary or appropriate to make any payment required hereby, and
shall not be responsible for any costs or penalties associated therewith.
18
(d) The parties hereto shall not require the Escrow Agent to
institute legal proceedings of any kind or to appear in, prosecute or defend any
action relating to the RTMRG Merger Agreement, the RTMAC Purchase Agreement or
the RTMMC Purchase Agreement. The Escrow Agent shall not be required to defend
any legal proceedings which may be instituted against it with respect to this
Agreement unless requested to do so in writing by any of the parties hereto, and
unless and until it is indemnified by the requesting party to the satisfaction
of the Escrow Agent, in its sole and absolute discretion, against the cost and
expense of such defense including, without limitation, the reasonable fees and
expenses of its legal counsel. If any conflicting demand shall be made upon the
Escrow Agent, it shall not be required to determine the same or take any action
thereon and may await settlement of the controversy by appropriate and
non-appealable legal proceedings. Upon the commencement of any action against or
otherwise involving the Escrow Agent with respect to this Agreement, the Escrow
Agent shall be entitled to interplead the matter of this escrow in the Chosen
Court (as defined in Section 17) and, in such event, the Escrow Agent shall be
relieved of and discharged from any and all obligations and liabilities under
this Agreement. In any such action, the Escrow Agent shall be entitled to the
indemnities provided in Section 11 below.
(e) To help the government fight the funding of terrorism and
money laundering activities, Federal law requires all financial institutions to
obtain, verify and record information that identifies each person who opens an
account. For a non-individual person such as a business entity, a charity, a
trust or other legal entity the Escrow Agent will ask for documentation to
verify its formation and existence as a legal entity. The Escrow Agent may also
ask to see financial statements, licenses, identification and authorization
documents from individuals claiming authority to represent the entity or other
relevant documentation.
(f) The Escrow Agent will at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability of
the RTMRG Merger Agreement, the RTMAC Purchase Agreement or the RTMMC Purchase
Agreement or any document referred to therein, other than this Agreement.
(g) The Escrow Agent will not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions
provided by Triarc and/or the RTM Representatives, as applicable, in accordance
with and subject to this Agreement.
(h) No provision of this Escrow Agreement will require the
Escrow Agent to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder, if the Escrow Agent
has reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it.
(i) The Escrow Agent will not be responsible for or in respect
of and makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution, delivery or performance
hereof by the other parties hereto.
19
(j) The Escrow Agent will have no personal liability for any
error or judgment made in good faith by any employee or agent of the Escrow
Agent unless such person was grossly negligent.
(k) The Escrow Agent will incur no liability if, by reason of
any provision of any present or future law or regulation thereunder, or by any
force majeure event, including natural disaster, war or other circumstances
beyond its reasonable control, the Escrow Agent will be prevented or forbidden
from doing or performing any act or thing which the terms of this Agreement
provide will or may be done or performed, or by reason of any exercise of, or
failure to exercise, any discretion provided for in this Agreement.
(l) The Escrow Agent undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement. No implied
covenants or obligations will be read into this Agreement.
(m) Whenever the Escrow Agent is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement, or is unsure as to the application, intent, interpretation or meaning
of any provision of this Agreement, the Escrow Agent will promptly give written
notice (in such form as will be appropriate under the circumstances) to Triarc
and the RTM Representatives requesting instruction as to the course of action to
be adopted, and, to the extent the Escrow Agent acts in good faith in accordance
with any such joint instruction received, the Escrow Agent will not be liable on
account of such action to any person.
11. Indemnification. ARG shall indemnify, protect, save and hold
harmless the Escrow Agent, its directors, officers, employees and agents
(collectively, the "Indemnitees") from and against any and all obligations,
liabilities, claims, suits, judgments, losses, damages, costs or expenses of any
kind or nature, including, without limitation, reasonable attorney's fees, which
may be imposed on, incurred by, or asserted against any of them in connection
with this Agreement or the Escrow Agent's duties hereunder, except to the extent
arising from the Escrow Agent's or another Indemnitee's gross negligence or
willful misconduct. The foregoing indemnities shall survive the resignation or
removal of the Escrow Agent or the termination of this Agreement.
12. Resignation of Escrow Agent; Appointment of Successor Escrow Agent.
The Escrow Agent may resign as escrow agent at any time and be discharged of its
duties hereunder after thirty calendar days' notice to Triarc and the RTM
Representatives, but only if a successor escrow agent has been jointly appointed
by Triarc and the RTM Representatives prior to the effective date of the Escrow
Agent's resignation. In addition, the Escrow Agent may be removed and replaced
on a date designated in a written instrument signed by Triarc and the RTM
Representatives and delivered to the Escrow Agent. Upon receipt of notice of
resignation or removal, Triarc and the RTM Representatives promptly shall use
their commercially reasonable efforts to designate a successor escrow agent to
serve in accordance with the terms of this
20
Agreement. In the case of a resignation, if Triarc and the RTM Representatives
cannot unanimously agree on a successor escrow agent during such thirty day
period, the Escrow Agent shall have the right to appoint (or, at the expense of
Triarc and the RTM Representatives (each of Triarc, on the other hand, and the
RTM Representatives, on the other hand, being liable for 50% of such expense),
to petition a court of competent jurisdiction to appoint) a successor escrow
agent to serve in accordance with the terms of this agreement. Any successor
escrow agent shall be a banking corporation or trust company having total assets
in excess of $300,000,000, which shall agree in writing to be bound by the
provisions hereof. Upon the appointment of a successor escrow agent by the
parties hereunder, the Escrow Agent's duties and responsibilities under this
Agreement shall terminate. If (a) the Escrow Agent shall merge or consolidate
with another corporation or shall sell all or substantially all of its corporate
trust business to another corporation and (b) such surviving corporation or
transferee is a banking corporation or trust company having total assets in
excess of $300,000,000, the surviving corporation or transferee, as applicable,
shall be the escrow agent hereunder without any further act on the part of any
of the parties to this Agreement, and shall be bound by the terms of this
Agreement.
13. Definitions. The following terms, as used herein, have the
following meanings:
"Agreement" has the meaning set forth in the preamble.
"ARG" has the meaning set forth in the preamble.
"Business Day" means any day, other than Saturday, Sunday or a day on
which banks in Wilmington, Delaware or New York City are permitted or required
by law to be closed, and shall consist of the time period from 12:01 a.m.
through 12:00 midnight Eastern time.
"Chosen Court" has the meaning set forth in Section 17.
"Closing Price" means, with respect to any shares of Triarc Class B-1
Common Stock as of the date of determination, the closing price per share of a
share of Triarc Class B-1 Common Stock on such date published in The Wall Street
Journal (National Edition) or, if no such closing price on such date is
published in The Wall Street Journal (National Edition), the average of the
closing bid and asked prices on such date, as officially reported on the
principal national securities exchange on which shares of Triarc Class B-1
Common Stock are then listed or admitted to trading.
"Code" means the Internal Revenue Code of 1986, as amended.
"Current Market Price" means, with respect to a share of Triarc Class
B-1 Common Stock, on any date of determination, the average of the daily Closing
Price of shares of Triarc Class B-1 Common Stock for the immediately preceding
five days on which the national securities exchanges are open for trading.
21
"Escrow Agent" has the meaning set forth in the preamble.
"First Interim Release Date" has the meaning set forth in Section 7(a).
"First Merger" has the meaning set forth in the recitals.
"Governmental Entity" means any international, national, federal,
state, provincial or local governmental, regulatory or administrative authority,
agency, commission, court, tribunal, arbitral body or self-regulated entity,
whether domestic or foreign.
"Indemnitees" has the meaning set forth Section 11.
"IRS" means the United States Internal Revenue Service.
"Liens" means any liens, pledges, security interests, claims,
encumbrances, options, rights of first refusal or offer, mortgages, deeds of
trust, easements, restrictive covenants, encroachments or other survey defects
or any other restriction or third party right, including restrictions on the
right to vote equity interests.
"Merger Sub Corp." has the meaning set forth in the recitals.
"Merger Sub LLC" has the meaning set forth in the recitals.
"Owed Amount" has the meaning in the applicable RTM Certificate of
Instruction, RTM Tax Certificate of Instruction, RTM Resolution Certificate, RTM
Tax Resolution Certificate, RTM Litigation Certificate or RTM Final
Determination Certificate.
"Ownership Allocation" has the meaning set forth in Section 3(a).
"Permitted Investments" has the meaning set forth in Section 2.
"Person" means an individual, corporation, partnership, joint venture,
limited liability company, association, trust or other entity or organization,
including an unincorporated organization, a government or political subdivision
or an agency or instrumentality thereof.
"RTM Cancellation Certificate" has the meaning set forth in Section
5(b)(v).
"RTM Certificate of Instruction" has the meaning set forth in Section
5(b)(i).
"RTM Closing Net Liabilities" has the meaning set forth in the RTMRG
Merger Agreement.
"RTM Escrow Fund" has the meaning set forth in Section 2.
22
"RTM Final Determination Certificate" has the meaning set forth in
Section 5(c)(ii).
"RTM Litigation Certificate" has the meaning set forth in Section
5(b)(ii).
"RTM Objection Certificate" has the meaning set forth in Section
5(b)(ii).
"RTM Objection Period" has the meaning set forth in Section 5(b)(ii).
"RTM Parties" has the meaning set forth in the preamble.
"RTM Representatives" has the meaning set forth in the preamble.
"RTM Resolution Certificate" has the meaning set forth in Section
5(b)(ii).
"RTM Second Release Amount" has the meaning set forth in Section 7(b).
"RTM Tax Certificate of Instruction" has the meaning set forth in
Section 5(c)(i).
"RTM Tax Objection Certificate" has the meaning set forth in Section
5(c)(ii).
"RTM Tax Objection Period" has the meaning set forth in Section
5(c)(ii).
"RTM Tax Resolution Certificate" has the meaning set forth in Section
5(c)(ii).
"RTMAC" has the meaning set forth in the preamble.
"RTMAC Members" has the meaning set forth in the preamble.
"RTMAC Purchase" has the meaning set forth in the recitals.
"RTMAC Purchase Agreement" has the meaning set forth in the recitals.
"RTMMC" has the meaning set forth in the preamble.
"RTMMC Acquisition Sub" has the meaning set forth in the recitals.
"RTMMC Members" has the meaning set forth in the preamble.
"RTMMC Purchase" has the meaning set forth in the recitals.
"RTMMC Purchase Agreement" has the meaning set forth in the recitals.
"RTMRG" has the meaning set forth in the preamble.
23
"RTMRG Accredited Shareholders" has the meaning set forth in Section 2.
"RTMRG Cash Escrow Deposit" has the meaning set forth in the recitals.
"RTMRG Common Stock" has the meaning set forth in the recitals.
"RTMRG Escrow Shares" has the meaning set forth in the recitals.
"RTMRG Merger Agreement" has the meaning set forth in the recitals.
"RTMRG Principal Shareholders" has the meaning set forth in the
preamble.
"RTMRG Shareholders" has the meaning set forth in the preamble.
"Second Interim Release Date" has the meaning set forth in Section
7(b).
"Straddle Period" has the meaning set forth in the RTMRG Merger
Agreement.
"Subsidiary" has the meaning set forth in the RTMRG Merger Agreement.
"Taxes" has the meaning set forth in the RTMRG Merger Agreement.
"Termination Date" has the meaning set forth in Section 7(c).
"Triarc" has the meaning set forth in the recitals.
"Triarc Cancellation Certificate" has the meaning set forth in Section
5(b)(iv).
"Triarc Class B-1 Common Stock" has the meaning set forth in the
recitals.
"Triarc Indemnified Party" has the meaning set forth in the RTMRG
Merger Agreement.
"U.S. Securities" has the meaning set forth in Section 2.
14. Amendment, etc. This Agreement may be amended or modified, and any
of the terms hereof may be waived, only by written instrument duly executed by
each of Triarc, ARG, the RTM Representatives and the Escrow Agent, which in the
case of the Escrow Agent, such consent shall not be unreasonably withheld,
delayed or conditioned. No waiver by any party of any term or condition
contained in this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition contained in
this Agreement on any future occasion. Notwithstanding anything herein to the
contrary, the Escrow Agent may, but
24
will not be obligated to, enter into any such amendment which adversely affects
the Escrow Agent's rights, duties or immunities under this Agreement or
otherwise.
15. Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and shall be delivered personally,
telecopied or sent by email, overnight courier or certified, registered or
express mail, postage prepaid, and shall be deemed given when so delivered
personally, telecopied (upon electronic confirmation) or by email, or if sent by
overnight courier, one day after the date of such sending, or if mailed, two
days after the date of mailing, as follows:
If to Triarc:
Triarc Companies, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X Xxxxxxxx, Esq.
If to ARG:
Arby's Restaurant Group, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
If to the RTM Representatives:
Xxxxxxx X. Xxxxxxxxx, Xx.
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
and
Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
00
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
and
J. Xxxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Escrow Agent:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration
With a copy to:
Xxxxx, Xxxxxx & Xxxxxx, LLP
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
16. Governing Law. This Agreement and any claim or controversy related
hereto shall be governed by and construed in accordance with the law of the
State of New York without giving effect to the principles of conflict of laws
thereof.
17. Consent to Jurisdiction and Service of Process. Except as otherwise
expressly provided in this Agreement, the parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement shall be brought in the
United States District Court for the Southern District of New York or any New
York State court sitting in New York City (each, a "Chosen Court"), so long as
one of such courts shall have subject
26
matter jurisdiction over such suit, action or proceeding, and that any cause of
action arising out of this Agreement shall be deemed to have arisen from a
transaction of business in the State of New York, and each of the parties hereby
irrevocably consents to the jurisdiction of the Chosen Court (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in the Chosen Court or that any such suit, action or
proceeding which is brought in the Chosen Court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of the Chosen Court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 15 shall be deemed
effective service of process on such party.
18. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
19. No Third-Party Beneficiaries. This Agreement is not intended to
confer any rights or remedies upon any Person other than the parties to this
Agreement, the Indemnitees under Section 11 and any Triarc Indemnified Parties.
20. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions of this Agreement.
If any provision of this Agreement, or the application of that provision to any
party or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted for that provision in order to carry
out, so far as may be valid and enforceable, the intent and purpose of the
invalid or unenforceable provision and (b) the remainder of this Agreement and
the application of that provision to other parties or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of that provision, or the
application of that provision, in any other jurisdiction.
21. Assignment. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, that no party may assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement without the consent of
each other party hereto.
22. Remedies. Except as otherwise provided in this Agreement, any and
all remedies expressly conferred upon a party to this Agreement shall be
cumulative with, and not exclusive of, any other remedy contained in this
Agreement, at law or in equity. The exercise by a party to this Agreement of any
one remedy shall not preclude the exercise by it of any other remedy.
27
23. Specific Performance. The parties to this Agreement agree that
irreparable damage would occur in the event that 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 to this Agreement
shall be entitled to an injunction or injunctions (without the payment or
posting of any bond) 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.
24. Counterparts. This Agreement 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. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto.
25. Certain Tax Matters. The parties hereto agree that the RTMRG
Shareholders will be deemed to be owners of the RTM Escrow Fund (except that
only the RTMRG Accredited Shareholders will be deemed to be owners of the RTMRG
Escrow Shares) for income tax purposes in accordance with the Ownership
Allocation, and that they will report all income, if any, that is earned on, or
derived from, the cash portion of the RTM Escrow Fund as the income of such
Person in the taxable year or years in which such income is properly includible
and pay any taxes attributable thereto. The RTM Representative agrees to use its
commercially reasonable efforts to provide the Escrow Agent with certified tax
identification numbers for each of the RTM Parties by furnishing appropriate
forms W-9 (or W-8 if a non-U.S. person) upon the execution hereof and other such
documents as the Escrow Agent reasonably requests. The parties hereto understand
that if such documentation is not delivered, the Escrow Agent may be required by
the Code to withhold a portion of the cash portion of the RTM Escrow Fund.
26. Entire Agreement. This Agreement (including all Schedules and
Annexes hereto) constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
27. Payment Dates. Whenever any payment under this Agreement shall be
due on a day other than a Business Day, that payment shall be made on the next
succeeding Business Day.
28
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
WILMINGTON TRUST COMPANY
By:
---------------------------------------
Name:
Title:
TRIARC COMPANIES, INC.
By:
---------------------------------------
Name:
Title:
ARBY'S RESTAURANT GROUP, INC.
By:
---------------------------------------
Name:
Title:
RTMRG Principal Shareholders:
/s/ XXXXXXX X. XXXXXXXXX, XX.
------------------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ XXXXXXX X. XXXXXXXXX, III
------------------------------------------
Xxxxxxx X. Xxxxxxxxx, III
/s/ XXXXXX X. XXXXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ XXXXXXX X. XXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
XXXXXX FAMILY PARTNERSHIP, L.L.L.P.
By:
---------------------------------------
Name:
Title:
/s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ J. XXXXXXX XXXXX
------------------------------------------
J. Xxxxxxx Xxxxx
RTM MANAGEMENT COMPANY, L.L.C.
By: /s/ J. XXXXXXX XXXXX
---------------------------------------
J. Xxxxxxx Xxxxx, Manager
RTMMC Members:
/s/ XXXXXXX X. XXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXX
------------------------------------------
Xxxxx X. Xxxxx
/s/ XXX XXXXXX
------------------------------------------
Xxx Xxxxxx
/s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ XXXXXX XXXXXXXX
------------------------------------------
Xxxxxx Xxxxxxxx
/s/ XXXX X. XXXX, XX.
------------------------------------------
Xxxx X. Xxxx, Xx.
/s/ XXXXXXX X. XXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXXXX
------------------------------------------
Xxxxx X. Xxxxxxxxx
/s/ XXXXX X. XXXXXXXX
------------------------------------------
Xxxxx X. XxXxxxxx
/s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
/s/ XXXXX X. SAMPLES
------------------------------------------
Xxxxx X. Samples
/s/ XXXXXX X. XXXXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ XXXX X. XXXX, XX.
------------------------------------------
Xxxx X. Xxxx, Xx.
/s/ XXXXXXX X. XXXXXXXXX, XX.
------------------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ J. XXXXXXX XXXXX
------------------------------------------
J. Xxxxxxx Xxxxx
RTMAC Members:
/s/ XXXXXXX X. XXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXX
------------------------------------------
Xxxxx X. Xxxxx
/s/ XXX XXXXXX
------------------------------------------
Xxx Xxxxxx
/s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ XXXXXX XXXXXXXX
------------------------------------------
Xxxxxx Xxxxxxxx
/s/ XXXX X. XXXX, XX.
------------------------------------------
Xxxx X. Xxxx, Xx.
/s/ XXXXXXX X. XXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXXXX
------------------------------------------
Xxxxx X. Xxxxxxxxx
/s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
/s/ XXXXX X. XXXXXXXX
------------------------------------------
Xxxxx X. XxXxxxxx
/s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
/s/ XXXXX X. SAMPLES
------------------------------------------
Xxxxx X. Samples
/s/ XXXXXX X. XXXXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ XXXX X. XXXX, XX.
------------------------------------------
Xxxx X. Xxxx, Xx.
/s/ XXXXXXX X. XXXXXXXXX, XX.
------------------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ J. XXXXXXX XXXXX
------------------------------------------
J. Xxxxxxx Xxxxx
RTM Representatives:
XXXXXXX X. XXXXXXXXX, XX., as an RTM
Representative
/s/ XXXXXXX X. XXXXXXXXX, XX.
------------------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
XXXXXX X. XXXXXX, as an RTM Representative
/s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
J. XXXXXXX XXXXX, as an RTM Representative
/s/ J. XXXXXXX XXXXX
------------------------------------------
J. Xxxxxxx Xxxxx
ANNEX I
FORM OF
RTM [TAX] CERTIFICATE OF INSTRUCTION
to
[___________________________],
as Escrow Agent
The undersigned, Triarc Companies, Inc., a Delaware
corporation ("Triarc"), pursuant to Section [5(b)(i)] / [5(c)(i)] of the Escrow
Agreement, dated as of [_________], 2005, by and among the Escrow Agent, Triarc,
ARG, the RTM Parties and the RTM Representatives, (terms defined in said Escrow
Agreement have the same meanings when used herein), hereby:
(a) certifies that (i) [Triarc] / [a Triarc Indemnified Party]
has sent to [___________] a Claims Notice, a copy of which written notice
is attached hereto, and (ii) the amount of $___________ (the "Owed Amount")
is payable to [Triarc] / [such Triarc Indemnified Party] by [_______]
pursuant to Section [___] of the [________] Agreement by reason of the
matter described in such Claims Notice; and
(b) instructs you to deliver to [Triarc] / [such Triarc
Indemnified Party] $_____ from the [RTM Escrow Fund] payable as provided in
Section 5(d) of the Escrow Agreement within 10 Business Days following the
expiration of the RTM [Tax] Objection Period, unless you receive an RTM
[Tax] Objection Certificate from the RTM Representatives prior to the
expiration of the RTM [Tax] Objection Period.
TRIARC COMPANIES, INC.
By:
----------------------------------
Name:
Title:
Dated: , 200
----------------- --
ANNEX II
FORM OF
RTM [TAX] OBJECTION CERTIFICATE
to
[___________________________],
as Escrow Agent
The undersigned, pursuant to Section [5(b)(ii)] / [5(c)(ii)]
of the Escrow Agreement, dated as of [_________], 2005, by and among the Escrow
Agent, Triarc, ARG, the RTM Parties and the RTM Representatives (terms defined
in said Escrow Agreement have the same meanings when used herein), hereby:
(a) disputes that the Owed Amount referred to in the RTM [Tax]
Certificate of Instruction dated _________, ____ is payable to [Triarc] /
[the Triarc Indemnified Party] by [__________] pursuant to Section [__] of
the [____] Agreement;
(b) certifies that the undersigned has sent to [____] a
written statement dated ___________, ____, a copy of which is attached
hereto, disputing the liability of [_______] to [Triarc] / [the Triarc
Indemnified Party] for the Owed Amount; and
(c) objects to your making payment to [Triarc] / [such Triarc
Indemnified Party] as provided in such RTM [Tax] Certificate of
Instruction.
THE RTM REPRESENTATIVES
By:
----------------------------------
Name:
By:
----------------------------------
Name:
Dated: , 200
----------------- --
ANNEX III
FORM OF
RTM [TAX] RESOLUTION CERTIFICATE
to
[___________________________],
as Escrow Agent
The undersigned, pursuant to Section [5(b)(ii)] / [5(c)(ii)]
of the Escrow Agreement, dated as of [_________], 2005, by and among the Escrow
Agent, Triarc, ARG, the RTM Parties and the RTM Representatives (terms defined
in said Escrow Agreement have the same meanings when used herein), hereby:
(a) certify that (i) [Triarc] / [a Triarc Indemnified Party]
and [_______] have resolved their dispute as to the matter described in the
RTM [Tax] Certificate of Instruction dated __________, ____ and the related
RTM [Tax] Objection Certificate dated ___________, ____ and (ii) the final
Owed Amount with respect to the matter described in such Certificates is
$______________;
(b) instruct you to deliver to [Triarc] / [such Triarc
Indemnified Party] from the RTM Escrow Fund, an amount equal to $_______,
payable as provided in Section 5(d) of the Escrow Agreement in each case,
within 10 Business Days following your receipt of this Certificate; and
(c) agree that the Owed Amount designated in such RTM [Tax]
Certificate of Instruction, to the extent, if any, it exceeds the Owed
Amount referred to in clause (ii) of paragraph (a) above, shall be deemed
not payable by [_______] to [Triarc] / [such Triarc Indemnified Party] and
such RTM [Tax] Certificate of Instruction is hereby canceled.
TRIARC COMPANIES, INC.
By:
----------------------------------
Name:
Title:
THE RTM REPRESENTATIVES
By:
----------------------------------
Name:
By:
----------------------------------
Name:
Dated: , 200
----------------- --
ANNEX IV
FORM OF
RTM LITIGATION CERTIFICATE / RTM FINAL DETERMINATION CERTIFICATE
to
[___________________________],
as Escrow Agent
The undersigned, pursuant to Section [5(b)(ii)] / [5(c)(ii)]
of the Escrow Agreement, dated as of [_________], 2005, by and among the Escrow
Agent, Triarc, ARG, the RTM Parties and the RTM Representatives (terms defined
in said Escrow Agreement have the same meanings when used herein), hereby:
(a) certify that (i) attached hereto is an order of a court of
competent jurisdiction resolving the dispute between [Triarc] / [a Triarc
Indemnified Party] and [__________] as to the matter described in the RTM
[Tax] Certificate of Instruction dated ____________, ____ and the related
RTM [Tax] Objection Certificate dated ____________, ____ and (ii) the final
Owed Amount with respect to the matter described in such Certificates, as
provided in such order, is
$______________;
(b) instruct you to deliver to [Triarc] / [such Triarc
Indemnified Party] from the RTM Escrow Fund, an amount equal to $______,
payable as provided in Section 5(d) of the Escrow Agreement, in each case,
within 10 Business Days following your receipt of this Certificate; and
(c) agree that the Owed Amount designated in such RTM
Certificate of Instruction, to the extent, if any, it exceeds the Owed
Amount referred to in clause (ii) of paragraph (a) above, shall be deemed
not payable by [______] to [Triarc] / [such Triarc Indemnified Party] and
such RTM [Tax] Certificate of Instruction is hereby canceled.
TRIARC COMPANIES, INC.
By:
----------------------------------
Name:
Title:
THE RTM REPRESENTATIVES
By:
----------------------------------
Name:
By:
----------------------------------
Name:
Dated: , 200
----------------- --
ANNEX V
FORM OF
TRIARC CANCELLATION CERTIFICATE
to
[___________________________],
as Escrow Agent
The undersigned, Triarc Companies, Inc., a Delaware
corporation ("Triarc"), pursuant to Section [5(b)(iv)] / [5(c)(iv)] of the
Escrow Agreement, dated as of [_________], 2005, by and among the Escrow Agent,
Triarc, ARG, the RTM Parties and the RTM Representatives (terms defined in said
Escrow Agreement have the same meanings when used herein), hereby:
(a) certifies that (i) it hereby releases its claim against
the applicable RTM Parties with respect to [all] [specify portion] of the
Owed Amount designated in the RTM Certificate of Instruction dated
_____________, ____ and (ii) as a result the Owed Amount with respect to
such RTM Certificate of Instruction is $__________; and
(b) agrees that such RTM Certificate of Instruction is, to the
extent released as provided in clause (i) of paragraph (a) above, canceled.
TRIARC COMPANIES, INC.
By:
----------------------------------
Name:
Title
Dated: , 200
----------------- --
ANNEX V
FORM OF
RTM CANCELLATION CERTIFICATE
to
[___________________________],
as Escrow Agent
The undersigned, pursuant to Section [5(b)(v)] / [5(c)(v)] of
the Escrow Agreement, dated as of [_________], 2005, by and among the Escrow
Agent, Triarc, ARG, the RTM Parties and the RTM Representatives (terms defined
in said Escrow Agreement have the same meanings when used herein), hereby
certifies that (i) attached hereto is a final, nonappealable order of a court of
competent jurisdiction resolving the dispute between [Triarc] / [the Triarc
Indemnified Party] and the RTM Representatives as to the matter described in the
RTM [Tax] Certificate of Instruction dated ____________, ____ and the related
RTM [Tax] Objection Certificate dated ____________, ____, (ii) as provided in
such order, there is no Owed Amount with respect to the matter described in such
Certificate, and (iii) certifies that this RTM Cancellation Certificate is being
rendered by the RTM Representatives in good faith and that [Triarc] / [the
Triarc Indemnified Party] and the Escrow Agent may rely on such good faith
determination.
THE RTM REPRESENTATIVES
By:
----------------------------------
Name:
By:
----------------------------------
Name:
Dated: , 200
----------------- --
Schedule I
Shareholders of RTM Restaurant Group, Inc.
PRINCIPAL NUMBER OF SHARES
SHAREHOLDER SHAREHOLDER (FULLY DILUTED) ACCREDITED INVESTOR
----------- ----------- --------------- -------------------
Xxxxxxx X. Xxxxxxxxx, Xx. yes 34,787,841.00 Yes
Xxxxxx X. Xxxxxx yes 15,126,273.00 Yes
J. Xxxxxxx Xxxxx yes 9,116,386.00 Yes
Xxxxxx X. Xxxxxxx yes 6,847,642.00 Yes
Xxxxxxx X. Xxxxxxxxx, III yes 6,230,119.00 Yes
Xxxxxx X. Xxxxxxxxx yes 5,066,373.00 Yes
Xxxxxxx X. Xxxxxx yes 2,446,957.00 Yes
Xxxxxx Family Partnership, LLLP yes 2,000,000.00 Yes
Xxxxxxx X. Xxxx no 1,910,189.00 Yes
Xxxxxx Xxxxxxxx no 1,128,091.00 Yes
Royal Family Kids' Camp, Inc. No 1,000,000.00 Yes
Xxxx X. Xxxx, Xx. no 967,864.00 Yes
Xxxxxxx X. Abt no 967,864.00 Yes
Xxxxxxx X. Xxxxxxx no 967,864.00 Yes
Xxxxxx X. Xxxxxx no 967,864.00 Yes
Xxx Xxxxxx no 827,415.00 Yes
Xxxx X. Xxxx, Xx. no 290,359.00 Yes
Xxxxxx X. Xxxxxxxxx no 290,359.00 Yes
Xxxxx X. Samples no 284,813.00 Yes
Xxxxxxx X. Xxxxxxx no 196,659.00 Yes
Xxxxxxx X. Xxxx no 195,116.00 Yes
Xxxxxx X. Xxxxxxx no 193,573.00 Yes
Xxxxx X. XxXxxxxx no 193,573.00 Yes
Xxxxxxx X. Xxxxxx no 193,573.00 Yes
Xxxxx X. Xxxxx no 193,573.00 Yes
Xxxxx X. Xxxxxxxxx no 193,573.00 Yes
Xxxxx X. Xxxxxx no 150,900.00 No
Xxxxxxx X. Xxxxx no 112,218.00 Yes
Xxxx X. Xxxxx, Xx. no 106,215.00 Yes
Xxxxx X. Xxxxxxx no 105,000.00 Yes
Xxxxxxx X. Xxxxxxxx no 98,329.00 Yes
Xxxxxx X. Xxxxxx no 96,786.00 Yes
Xxxxxxx X. Xxxxxxx no 96,786.00 No
J. Xxxxx Xxxxx no 37,227.00 Yes
Xxxx X. Xxxxxxxxx no 22,000.00 Yes
Xxxxx X. Xxxxxxxxx no 14,567.00 Yes
Xxxxxxx X. Xxxxxxxxxx no 14,263.00 Yes
Xxxxx X. Xxxx no 11,343.00 No
Xxxxxxx X. Xxxxx no 11,314.00 No
Xxx X. Xxxxxxx no 10,749.00 No
Xxxxxx X. Xxxxxx no 8,024.00 No
Sch. II - 1
PRINCIPAL NUMBER OF SHARES
SHAREHOLDER SHAREHOLDER (FULLY DILUTED) ACCREDITED INVESTOR
----------- ----------- --------------- -------------------
Xxxxxxxxxxx X. Xxxxx no 7,747.00 Yes
Xxxxxxx X. Xxxxxxxxxx no 7,716.00 No
Xxxxxx X. Xxxxxx no 7,500.00 No
Xxxxx X. Xxxxxxx no 7,168.00 No
Xxxxx X. Xxxxxxx no 6,481.00 No
Xxxxxx X. Xxxxxxxxx no 6,171.00 No
Xxxxx X. Xxxxxxxx no 4,853.00 no
Xxxxx X. Xxxxxx no 4,853.00 Yes
Xxxxx X. Xxxxxxxx no 4,853.00 No
Xxxx X. Xxxxxxxxxx no 4,714.00 Yes
Xxxx X. Xxxxx no 4,714.00 Yes
Xxxxx X. Xxxxxx no 4,490.00 No
Xxxx X. Xxxxxx no 4,267.00 No
Xxxx X. Xxxxx no 3,543.00 No
Xxxxx X. Xxxxxxxx no 3,310.00 No
Xxxxxx X. Xxxxxx, Xx. no 3,275.00 No
Xxxxxx X. Xxxxx no 3,204.00 No
Xxxxx X. Xxxxxx no 3,171.00 No
Xxxxx X. Xxxxx no 3,086.00 No
Xxxxx Xxxx no 3,032.00 No
Xxxxx X. Xxxxxxxxx no 2,949.00 No
Xxxxx X. Xxxxx no 2,947.00 No
Xxxxxx X. Xxxxxxxxxxxx no 2,947.00 No
Xxx X. Battstoni no 2,500.00 No
Xxxxx X. XxXxxxx no 2,100.00 No
Xxxxxxx X. Xxxxxx no 1,966.00 No
Xxxxxx X. Xxxxx no 1,767.00 No
Xxxxxx X. Xxxx, Xx. no 1,767.00 No
Xxxx X. XxXxxxxxxxx no 1,767.00 No
Xxxxx X. Xxxxxxxxx no 1,767.00 No
Xxxx X. Xxxxx, XX no 1,767.00 No
Xxxx X. Xxxxx no 1,767.00 No
Xxxxxx Xxxxxxxx no 1,767.00 No
Xxxx Xxxxx no 1,767.00 No
Xxxxxx X. Xxxxxxx no 1,767.00 No
Xxxxxxx X. Xxxxxx no 1,767.00 No
Xxxxxxx X. Xxxxxxxx no 1,767.00 No
Xxxx X. Xxxx no 1,543.00 Yes
Xxxxxxxxx X. XxXxxx no 1,404.00 No
Xxxx X. Xxxxxx no 1,404.00 Yes
Xxxxx X. Xxxxxxxxxx no 1,404.00 No
Sch. III - 2
Schedule II
Members of RTM Acquisition Company, L.L.C.
MEMBERS PERCENTAGE INTEREST
------------------------------------------- -------------------
Xxxxxxx X. Xxxxxx 2.717%
Xxxxx X. Xxxxx 0.218%
Xxx Xxxxxx 1.087%
Xxxxxx X. Xxxxxxx 0.109%
Xxxxxx X. Xxxxxx 25.788%
Xxxxxx X. Xxxxxxx 3.804%
Xxxxxx Xxxxxxxx 1.087%
Xxxx X. Xxxx, Xx. 1.087%
Xxxxxxx X. Xxxxxxx 0.218%
Xxxxx X. Xxxxxxxxx 0.218%
Xxxxxxx X. Xxxx 0.109%
Xxxxx X. XxXxxxxx 0.218%
Xxxxxxx X. Xxxx 2.717%
Xxxxx X. Samples 0.218%
Xxxxxx X. Xxxxxxxxx 0.326%
Xxxx X. Xxxx, Xx. 0.326%
Xxxxxxx X. Xxxxxxxxx, Xx. 48.886%
J. Xxxxxxx Xxxxx 10.870%
TOTAL 100.0%
Sch. III - 3
Schedule III
Members of RTM Management Company, L.L.C.
MEMBER PERCENTAGE
------------------------------------------- -------------------
Xxxxxxx X. Xxxxxx 2.721%
Xxxxx X. Xxxxx 0.218%
Xxx Xxxxxx 1.088%
Xxxxxx X. Xxxxxxx 0.109%
Xxxxxx X. Xxxxxx 27.203%
Xxxxxx X. Xxxxxxx 10.880%
Xxxxxx Xxxxxxxx 1.088%
Xxxx X. Xxxx, Xx. 1.088%
Xxxxxxx X. Xxxxxxx 0.218%
Xxxxx X. Xxxxxxxxx 0.218%
Xxxxx X. XxXxxxxx 0.218%
Xxxxxxx X. Xxxx 2.721%
Xxxxx X. Samples 0.218%
Xxxxxx X. Xxxxxxxxx 0.327%
Xxxx X. Xxxx, Xx. 0.327%
Xxxxxxx X. Xxxxxxxxx, Xx. 40.478%
J. Xxxxxxx Xxxxx 10.880%
TOTAL 100.0%
Sch. IV - 1
