As filed with the Securities and Exchange Commission on August 2, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRIARC COMPANIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 38-0471180
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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280 PARK AVENUE
NEW YORK, NEW YORK 10017
(212) 451-3000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN
(Full title of the plan)
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BRIAN L. SCHORR
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
TRIARC COMPANIES, INC.
280 PARK AVENUE
NEW YORK, NEW YORK 10017
(212) 451-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPY TO:
PAUL D. GINSBERG, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE(2) PRICE(2) FEE
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Class A common stock, par value $.10 per 5,000,000 shares $25.35 $126,750,000 $11,661
share
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(1) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement shall be deemed to cover any additional securities to be offered
or issued from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act of 1933,
as amended. The Proposed Maximum Offering Price Per Share was determined by
averaging the high and low prices of the Class A common stock, par value
$.10 per share, of Triarc Companies, Inc. as reported on the New York Stock
Exchange composite tape on July 30, 2002.
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EXPLANATORY NOTE
The Section 10(a) prospectus being delivered by Triarc
Companies, Inc. (the "Company") (the "Plan"), as required by Rule 428 under the
Securities Act of 1933, as amended (the "Securities Act"), has been prepared in
accordance with the requirements of Form S-8 and relates to shares of Class A
common stock, par value $.10 per share, of the Company (the "Common Stock")
which have been reserved for issuance pursuant to the Plan. The information
regarding the Plan required in the Section 10(a) prospectus is included in
documents being maintained and delivered by the Company as required by Rule 428
under the Securities Act. The Company shall provide to participants in the Plan
a written statement advising them of the availability without charge, upon
written or oral request, of documents incorporated by reference herein, as is
required by Item 2 of Part I of Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I will
be sent or given to employees as specified by Rule 428(b)(1). Such documents
need not be filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Those documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company (File
No. 1-2207) are incorporated by reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 30, 2001 filed with the Commission on March 27,
2002;
2. The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2002 filed with the Commission on May
15, 2002;
3. The Company's Current Reports on Form 8-K filed with the
Commission on March 27, 2002 and May 1, 2002; and
4. The description of the Class A Common Stock set forth in the
Company's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on November 4, 1993, and any amendment
or report filed for the purpose of updating any such
description.
In addition, all reports and documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and made a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein and to be a part hereof shall be deemed to be
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modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The certificate of incorporation of the Company, as amended to date
(the "Triarc Charter"), provides indemnification to the extent not prohibited by
Delaware law (including as such law may be amended in the future to be more
favorable to directors and officers). Section 145 of the General Corporation Law
of the State of Delaware (the "DGCL") provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit or proceeding (other than an action by or in the
right of the corporation, such as a derivative action) by reason of the fact
that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent for any corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise (an "Other Entity").
The Triarc Charter provides that its officers and directors, and any person
serving in any capacity at the request of the Company for an Other Entity shall
be entitled to such indemnification; however, the Board of Directors of the
Company (the "Triarc Board") may specifically grant such indemnification to
other persons in respect of service to the Company or an Other Entity. The
Triarc Charter specifies that any director or officer of the Company serving in
any capacity with a majority owned subsidiary or any employee benefit plan of
the Company or of any majority owned subsidiary shall be deemed to be doing so
at the request of the Company.
Under Section 145 of the DGCL, depending on the nature of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person so
indemnified acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his or her conduct was unlawful. In the case of a derivative action, no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation is successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred in connection therewith. However, if such
director or officer is not successful in the defense of any such action, suit or
proceeding, or in the defense of any claim, issue or matter therein, he or she
shall only be indemnified by the corporation as authorized in the specific case
upon a determination that indemnification is proper because he or she met the
applicable standard set
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forth above as determined by a majority of the disinterested directors, by
independent legal counsel or by the stockholders.
The Triarc Charter provides that expenses are to be advanced prior to
the final disposition of a proceeding upon the receipt by the Company of an
undertaking, as required by the DGCL, that the director or officer or other
indemnified person will repay such advances if he or she is ultimately found not
to be entitled to indemnification under the DGCL.
The Triarc Charter permits a person entitled to indemnity to bring an
action in court to obtain such indemnity and provides that, in any such action,
the court will not be bound by a decision of the Triarc Board, independent
counsel or stockholders that such person is not entitled to indemnification.
Such person is also indemnified for any expenses incurred in connection with
successfully establishing his or her right to indemnification in any such
proceeding. The Triarc Charter expressly provides that the right to
indemnification thereunder is a contract right and, therefore, cannot be
retroactively eliminated by a later stockholder vote, and is not an exclusive
right and, therefore, the Company may provide other indemnification, if
appropriate.
The Company also enters into indemnification agreements with its
directors and officers indemnifying them against liability they may incur in
their capacity as such. The indemnification agreements do not provide
indemnification to the extent that the indemnitee is indemnified by the Company
under the Triarc Charter, its bylaws, its directors' and officers' liability
insurance, or otherwise. Additionally, the indemnification agreements do not
provide indemnification (i) for the return by the indemnitee of any illegal
remuneration paid to him or her; (ii) for any profits payable by the indemnitee
to the Company pursuant to Section 16(b) of the Exchange Act; (iii) for any
liability resulting from the indemnitee's fraudulent, dishonest or willful
misconduct; (iv) for any amount the payment of which is not permitted by
applicable law; (v) for any liability resulting from conduct producing unlawful
personal benefit; or (vi) if a final court adjudication determines such
indemnification is not lawful.
Determinations as to whether an indemnitee is entitled to be paid under
the indemnification agreements may be made by the majority vote of a quorum of
disinterested directors, independent legal counsel selected by the Triarc Board,
a majority of disinterested Company stockholders or by a final adjudication of a
court of competent jurisdiction. In the event that the Company undergoes a
"Change of Control" (as defined in the indemnification agreements) all such
determinations shall be made by special independent counsel selected by the
indemnitee and approved by the Company, which approval may not be unreasonably
withheld. In certain circumstances, an indemnitee may require the Company to
establish a trust fund to assure that funds will be available to pay any amounts
which may be due such indemnitee under an indemnification agreement.
As permitted by Section 102(b)(7) of the DGCL, the Triarc Charter
includes a provision which eliminates the personal liability of a director to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, other than liability (i) for the breach of a director's duty
of loyalty to the Company and its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL (relating to unlawful payment of a
dividend and unlawful stock purchase and redemption) or (iv) for any transaction
from which the director derived any improper personal benefit.
Finally, the Triarc Charter authorizes the Company, as permitted by the
DGCL, to purchase directors' and officers' liability insurance. The Company
carries directors' and officers' liability insurance covering losses up to
specified amounts.
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The foregoing statements are subject to the detailed provisions of
Sections 145 and 102 of the DGCL, the Triarc Charter and the referenced
indemnification agreements.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
EXHIBITS
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4.1 Certificate of Incorporation of the Company, as currently in
effect, incorporated herein by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K dated November 9, 2001
(SEC file no. 1-2207).
4.2 By-laws of the Company, as currently in effect, incorporated
herein by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K dated March 30, 2001 (SEC file no. 1-2207).
4.3 Triarc Companies, Inc. 2002 Equity Participation Plan,
incorporated herein by reference to Exhibit A to the Company's
Schedule 14A filed with the Commission on April 26, 2002 (SEC
file No. 2-2207).
4.4* Form of Non-Incentive Stock Option Agreement.
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel
to the Company, regarding the legality of the Class A common
stock being registered.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Ernst & Young LLP.
23.3* Consent of BDO Seidman, LLP.
23.4* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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* Filed herewith.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) to include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in
this registration statement;
(ii) that, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
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(iii) to remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the registrant's Certificate
of Incorporation or by-laws, by contract, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on August 2, 2002.
TRIARC COMPANIES, INC.
(Registrant)
By: /s/ Nelson Peltz
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Chairman and Chief Executive
Officer
POWER OF ATTORNEY
The officers and directors of Triarc Companies, Inc. whose signatures
appear below hereby constitute and appoint Nelson Peltz and Peter W. May and
each of them (with full power to each of them to act alone), their true and
lawful attorneys-in-fact, with full powers of substitution and resubstitution,
to sign and execute on behalf of the undersigned any and all amendments,
including any post-effective amendments, to this Registration Statement, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and each of the
undersigned does hereby ratify and confirm all that said attorneys-in-fact shall
do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below on August 2, 2002 by the following persons in
the capacities indicated.
SIGNATURE TITLES
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/s/ Nelson Peltz Chairman and Chief Executive Officer and
----------------------------- Director (Principal Executive Officer)
Nelson Peltz
/s/ Peter W. May President and Chief Operating Officer
----------------------------- and Director (Principal Operating
Peter W. May Officer)
/s/ Francis T. McCarron Senior Vice President and Chief
----------------------------- Financial Officer (Principal Financial
Francis T. McCarron Officer)
/s/ Fred H. Schaefer Senior Vice President and Chief
----------------------------- Accounting Officer (Principal Accounting
Fred H. Schaefer Officer)
/s/ Hugh L. Carey Director
-----------------------------
Hugh L. Carey
/s/ Clive Chajet Director
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Clive Chajet
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SIGNATURE TITLES
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/s/ Joseph A. Levato Director
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Joseph A. Levato
/s/ David E. Schwab II Director
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David E. Schwab II
/s/ Jeffrey S. Silverman Director
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Jeffrey S. Silverman
/s/ Raymond S. Troubh Director
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Raymond S. Troubh
/s/ Gerald Tsai, Jr. Director
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Gerald Tsai, Jr.
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INDEX TO EXHIBITS
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EXHIBITS
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4.1 Certificate of Incorporation of the Company, as currently in
effect, incorporated herein by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K dated November 9, 2001
(SEC file no. 1-2207).
4.2 By-laws of the Company, as currently in effect, incorporated
herein by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K dated March 30, 2001 (SEC file no. 1-2207).
4.3 Triarc Companies, Inc. 2002 Equity Participation Plan,
incorporated herein by reference to Exhibit A to the Company's
Schedule 14A filed with the Commission on April 26, 2002 (SEC
file No. 2207).
4.4* Form of Non-Incentive Stock Option Agreement.
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel
to the Company, regarding the legality of the Class A common
stock being registered.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Ernst & Young LLP.
23.3* Consent of BDO Seidman, LLP.
23.4* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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* Filed herewith.
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