These excerpts taken from the WEN 8-K filed Apr 29, 2008.
VOTING AGREEMENT, dated as of April 23, 2008 (this “Agreement”), by and among Triarc Companies Inc., a Delaware corporation (“Triarc”), and the parties listed on Annex I hereto (each, a “Stockholder”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, as of the date hereof, each Stockholder is the record or beneficial holder of, and has the sole right to vote and dispose of, the number of issued and outstanding shares of Triarc Class A Common Stock and Triarc Class B Common Stock (collectively, the “Shares”), as set forth opposite such Stockholder’s name on Annex I (all such Shares owned of record or beneficially by any Stockholder as of the date hereof, together with any Shares that are hereafter issued to or otherwise acquired by such Stockholder prior to the termination of this Agreement (including pursuant to any exercise of stock options or exercise or conversion of other securities, or pursuant to a stock dividend, distribution, split-up, recapitalization, combination or similar transaction), and any Shares with respect to which any Stockholder has of the date hereof, or acquires prior to the termination hereof, the right to exercise or direct the vote, whether by proxy or otherwise being hereinafter referred to as the “Subject Shares”):
WHEREAS, concurrently with the execution and delivery of this Agreement, Triarc, Merger Sub, a Delaware corporation and a wholly-owned subsidiary of Triarc (“Merger Sub”), and Wendy’s International, Inc., an Ohio corporation (“Wendy’s”) are entering into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), whereby, among other things in accordance with the applicable provisions of the Ohio General Corporation Law, Merger Sub will be merged with and into Wendy’s, with Wendy’s as the surviving corporation (the “Merger”) and as a result of the Merger, Wendy’s will become a wholly-owned subsidiary of Triarc; and
WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Triarc and Wendy’s required that each Stockholder, and in order to induce Triarc and Wendy’s to enter into the Merger Agreement, each Stockholder (in such Stockholder’s capacity as a holder of the Subject Shares) has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
On April 23, 2008, Nelson Peltz, Peter W. May (collectively, the “Stockholders”) and Triarc entered into a Voting Agreement (the “Voting Agreement”). The Voting Agreement will terminate upon the earlier of (i) the termination of the Merger Agreement in accordance with its terms and (ii) the consummation of the Merger (the “Termination Date”).
Pursuant to the Voting Agreement, the Stockholders have agreed that until the Termination Date, at any meeting of the stockholders of Triarc and at every adjournment or postponement thereof, the Stockholders will vote (or cause to be voted) the 10,736,315 shares of Class A Common Stock, representing 37.17% of outstanding shares of Class A Common Stock and the 13,893,599 shares of Class B Common Stock, representing 21.75% of outstanding shares of Class B Common Stock, together with any shares subsequently acquired, for which they have the right to exercise or direct the vote (the “Subject Shares”) (i) in favor of the proposals (A) to adopt the Charter Amendment and (B) the issuance of the Class A Common stock required to be issued in the Merger, (ii) against the approval of such matter or proposal submitted to the shareholders of Triarc for approval, if approval of such matter or proposal would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Wendy’s under the Merger Agreement and (iii) against (A) any merger, rights offering, reorganization, recapitalization or liquidation
involving Triarc or any of its subsidiaries (other than the Merger), (B) a sale or transfer of a material amount of assets or capital stock of Triarc or any of its subsidiaries or (C) any action that is intended, or could reasonably be expected, to materially impede, interfere with, delay, postpone or adversely affect the Merger and the other transactions contemplated by the Merger Agreement.
Pursuant to the terms of the Voting Agreement, the Stockholders have agreed that until the Termination Date, the Stockholders shall be prohibited from, with certain exceptions, directly or indirectly (i) disposing of the Subject Shares, (ii) granting proxies or powers of attorney or entering into a voting agreement or other arrangement with respect to the Subject Shares, (iii) taking any action that would result in a diminution of the voting power represented by any of such Shareholder’s Subject Shares, or (iv) committing or agreeing to take any of the foregoing actions.
The foregoing description of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the Voting Agreement, which is filed as Exhibit 99.1 hereto and is incorporated into this report by reference.