EXHIBIT 2.4
-----------
EXECUTION COPY
FIRST AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT
FIRST AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT (this
"AMENDMENT"), dated as of July 25, 2005, by and among Triarc Companies, Inc., a
Delaware corporation ("TRIARC"); Arby's Restaurant Group, Inc., a Delaware
corporation and an indirect wholly owned subsidiary of Triarc ("ARG"); and
Russell V. Umphenour, Jr., Dennis E. Cooper and J. Russell Welch, as the RTM
Representatives on behalf of each of the Sellers (as defined below).
W I T N E S S E T H:
WHEREAS, each of Triarc, ARG, each of the persons listed on the
signature pages thereto under the heading "Sellers" (collectively, the
"SELLERS") and the RTM Representatives is a party to the Membership Interest
Purchase Agreement, dated as of May 27, 2005 (the "PURCHASE AGREEMENT");
WHEREAS, each of Triarc, ARG, the Sellers and the RTM Representatives
wish to amend the Purchase Agreement as set forth herein; and
WHEREAS, Section 9.03 of the Purchase Agreement provides that the
Purchase Agreement may be amended by an instrument in writing signed by each of
Triarc, ARG and the RTM Representatives on behalf of the Sellers.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
2. AMENDMENT AND RESTATEMENT OF SECTION 5.01(B) OF THE PURCHASE
AGREEMENT. Section 5.01(b) of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
"(b) DIVIDENDS. Make, declare or pay any dividend or distribution
on its membership interests or similar equity interests, other than (i)
distributions to members in an amount equal to their aggregate liability for
income Taxes based on the operations of RTMAC, as reasonably determined by
RTMAC, (ii) cash dividends or distributions in an amount that the RTM
Representatives have demonstrated to the reasonable satisfaction of Triarc
(based upon reasonably detailed information provided by the RTM Representatives
to Triarc), after taking into account any distributions described in clause (i)
that have been made or are expected to be made prior to the Closing, would not
reasonably be expected to result in the sum of (x) the absolute value of the Net
Liabilities of the RTM Parties and their Subsidiaries as of the close of
business on the Closing Date PLUS (y) the aggregate amount of cash received by
any RTM Party or their Subsidiaries after the date hereof and on or prior to the
Closing Date that would be
2
excluded from current assets under paragraph (c)(y)(I), (V) or (VI) under the
definition of Net Liabilities if such cash were an asset of any RTM Party or
their Subsidiaries as of the close of business on the Closing Date (the
"EXCLUDED RTM CASH AMOUNT") being more than the sum of (A) the absolute value of
the RTM Benchmark PLUS (B) the Excluded RTM Cash Amount and (iii) dividends or
distributions of proceeds from Excluded Asset Dispositions;"
3. AUTHORIZATION OF TRIARC AND ARG; ENFORCEABILITY. Each of
Triarc and ARG represents and warrants that: (i) it has all requisite corporate
power and authority, and has taken all corporate action necessary, in order to
execute and deliver this Amendment; and (ii) this Amendment has been duly
executed and delivered by each of Triarc and ARG and constitutes the legal,
valid and binding obligation of each of Triarc and ARG, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar Laws of general applicability
relating to or affecting creditors' rights, and to general equity principles.
4. AUTHORIZATION OF RTM REPRESENTATIVES; ENFORCEABILITY. Each RTM
Representative, on behalf of each Seller, represents and warrants that: (i) he
has all requisite power and authority, and has taken all action necessary, in
order to execute and deliver this Amendment on behalf of each Seller; and (ii)
this Amendment has been duly executed and delivered by such RTM Representative
on behalf of each Seller and constitutes the legal, valid and binding obligation
of such Seller, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of
general applicability relating to or affecting creditors' rights, and to general
equity principles.
5. INDEMNIFICATION. The parties agree that (x) the Triarc
Indemnified Parties shall be entitled to indemnification under Section
10.04(b)(i) of the Purchase Agreement for any Losses based upon or arising from
any breach of or inaccuracy in the representations and warranties contained in
Section 4 hereof to the same extent as if such representations and warranties
were made in Section 3.02 of the Purchase Agreement, and such representations
and warranties shall be deemed to be an RTMAC Basket Exclusion for such
indemnification purposes and (y) the Seller Indemnified Parties shall be
entitled to indemnification under Section 10.02(a) of the Purchase Agreement for
any Losses based upon or arising from any breach of or inaccuracy in the
representations and warranties contained in Section 3 hereof to the same extent
as if such representations and warranties were made in Section 4.02 of the
Purchase Agreement, and such representations and warranties shall be deemed to
be an ARG Basket Exclusion for such indemnification purposes.
6. MISCELLANEOUS.
(a) EFFECTIVENESS OF PURCHASE AGREEMENT. Except to the
extent specifically amended, modified or supplemented hereby, the
provisions of the Purchase Agreement shall remain unamended, unmodified
and unsupplemented, and the Purchase Agreement is hereby confirmed as
being in full force and effect.
3
(b) APPLICATION OF CERTAIN SECTIONS IN ARTICLE XI OF THE
PURCHASE AGREEMENT. Sections 11.05, 11.06, 11.07, 11.09, 11.10, 11.11,
11.12, 11.13 and 11.14 of the Purchase Agreement shall be deemed to
apply to this Amendment.
(c) ENTIRE AGREEMENT. This Amendment and the Purchase
Agreement and the other agreements and documents referred to therein
constitute the entire agreement between the parties with respect to the
subject matter hereof and thereof and supersedes all prior agreements
and understandings, both oral and written, between the parties with
respect to the subject matter hereof and thereof.
(d) COUNTERPARTS. This Amendment may be executed and
delivered (including by facsimile transmission) 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 Amendment shall become effective when each party hereto shall have
received a counterpart hereof signed by the other party hereto.
4
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of
the date first above written.
TRIARC COMPANIES, INC.
By: /s/ Stuart I. Rosen
-------------------------------
Name: Stuart I. Rosen
Title: Senior Vice President
and Secretary
ARBY'S RESTAURANT GROUP, INC.
By: /s/ Brian L. Schorr
-------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
RTM REPRESENTATIVES (ON BEHALF
OF EACH OF THE SELLERS):
/s/ Russell V. Umphenour, Jr.
------------------------------------
RUSSELL V. UMPHENOUR, JR.
/s/ Dennis E. Cooper
------------------------------------
DENNIS E. COOPER
/s/ J. Russell Welch
------------------------------------
J. RUSSELL WELCH