As filed with the Securities and Exchange Commission on June 23,
1995
Registration No. 33-
- ---------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------------
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
-------------------------------
TRIARC COMPANIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13 - 3772588
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
900 Third Avenue
New York, New York 10022
(Address of Principal Executive Offices) (Zip Code)
1993 Equity Participation Plan
(Full Title of the Plan)
Brian L. Schorr, Esq.
Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
(Name and Address of Agent For Service)
(212) 230-3000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ---------- ------------ --------- ------------ ------------
Class A 10,000,000 $16.250 $162,500,000 $56,034.48
Common Shares (2) (2) (2)
Stock
$.10 par
(1) Based upon the maximum aggregate number of shares of Class
A Common Stock to be granted as restricted shares or to be
delivered on the exercise of options granted under the Plan
described herein. Also registered hereunder pursuant to
Rule 416 are an indeterminate number of shares of Class A
Common Stock that may become issuable pursuant to anti-
dilution adjustments arising under the Plan.
(2) The registration fee for all the securities registered
hereby, $56,034.48, has been calculated pursuant to Rule
457(h)(1) under Securities Act of 1933, as amended, as
follows: one twenty-ninth of 1% of the product of (a)
$16.250, the average of the high and low prices of shares
of Class A Common Stock reported on the New York Stock
Exchange on June 20, 1995, and (b) 10,000,000, the maximum
number of shares of Class A Common Stock which may be
granted under the Plan before giving effect to any
adjustments in such number as a result of certain anti-
dilution protections set forth in the Plan.
<PAGE>
PROSPECTUS
10,000,000 SHARES
TRIARC COMPANIES, INC.
1993 EQUITY PARTICIPATION PLAN
This Prospectus relates to 10,000,000 shares of Class A
Common Stock of Triarc Companies, Inc., a Delaware corporation
(the "Company"), par value $.10 per share (the "Class A Common
Stock"), issuable (i) upon the exercise of certain stock options
(the "Options"), (ii) as restricted shares of Class A Common
Stock that are both restricted as to transferability and subject
to a substantial risk of forfeiture (the "Restricted Shares")
which in each case have been granted or which may be granted to
selected officers, directors and key employees of, and key
consultants to, the Company and its subsidiaries pursuant to the
Company's 1993 Equity Participation Plan (the "Plan"), and (iii)
under the Plan to non-employee directors upon each such
director's initial election and any reelection to the board of
directors or pursuant to an election by a director to receive in
shares all or any portion of annual retainer fees and/or board
of directors or committee meeting attendance fees that would
otherwise be payable in cash and stock appreciation rights
("SARs") granted in connection with the Options.
This Prospectus is intended to furnish participants in the
Plan with information regarding such Plan. This Prospectus may
be supplemented from time to time and consequently should be
retained for future reference.
This Prospectus does not constitute an offer to sell, or
the solicitation of an offer to buy, the securities to which
this Prospectus relates in any jurisdiction to any person to
whom it is unlawful to make such an offer or solicitation in
such jurisdiction.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to
make any representations other than those set forth in this
Prospectus in connection with the offer of securities made
hereby and, if given or made, such information or
representations must not be relied upon as having been
authorized by the Company. Neither delivery of this Prospectus
nor the issuance or exercise of the stock options described
herein shall create under any circumstances any implication that
there have been no changes in the Company's affairs since the
date hereof.
The date of this Prospectus is June 23, 1995.
<PAGE>
PART I
Item 1. Plan Information.
Introduction
In 1993, as a part of the on-going program of Triarc
Companies, Inc. (the "Company") to provide senior management and
other key personnel and consultants with incentives linked to
longer-term business unit and corporate performance, the board
of directors of the Company (the "Board of Directors") and the
Company's stockholders approved the Company's 1993 Equity
Participation Plan (as amended and restated to date, the
"Plan"). The Plan is designed to provide senior corporate and
business unit managers, key employees and consultants with stock
based incentives which overall are intended to provide
competitive long-term incentive opportunities and tie executive
and consultants long-term financial gain to increases in the
Company's stock price. To further the purposes of the Plan, it
was amended by the Board of Directors in 1994, which amendments
were approved by the Company's stockholders in June 1994 and
June 1995.
Summary of Plan Provisions
Purpose. The purpose of the Equity Participation Plan is
to promote the interests of the Company and its stockholders by
(i) securing for the Company and its stockholders the benefits
of the additional incentive inherent in the ownership of the
capital stock of the Company by directors, selected officers,
and key employees of, and key consultants to, the Company and
its subsidiaries who are important to the success and growth of
the business of the Company and its subsidiaries and (ii)
assisting the Company to secure and retain the services of such
persons. The Equity Participation Plan provides for granting to
such persons (a) options for the purchase of shares of Class A
Common Stock, (b) SARs, (c) Restricted Shares and (d) in the
case of non-employee directors, shares of Class A Common Stock.
Approximately 120 employees and approximately 10 non-employee
directors are currently eligible to participate under the Equity
Participation Plan, and as of June 15, 1995, Shares, SARs and
Options have been granted in the aggregate to approximately 100
employees and to all the non-employee directors of the Company.
Administration. The Equity Participation Plan is being
administered by the Compensation Committee of the Board of
Directors (the "Committee"). The current members of the
Committee are Messrs. Stanley R. Jaffe, David E. Schwab II and
Gerald Tsai, Jr. For certain biographical information regarding
Messrs. Jaffe Schwab and Tsai, see the Company's Notice of
Annual Meeting of Stockholders and Proxy Statement (the "Proxy")
for its annual meeting of stockholders held on June 8, 1995.
Except for certain automatic grants to non-employee directors
and shares of Class A Common Stock which may be issued in lieu
of cash retainer and meeting fees, as described below, no member
of the Committee may be, or within one year before having become
a member of the Committee may have been, granted or awarded
pursuant to the Equity Participation Plan or any other plan of
the Company or any of its subsidiaries, any options, SARs or
Restricted Shares. Subject to the limitations and conditions of
the Equity Participation Plan, the Committee has the authority
to determine the amounts, times, forms and terms and conditions
of grants under the Equity Participation Plan.
Although the Committee has discretion (within the limits of
the Equity Participation Plan) to determine the terms of options
granted under the Equity Participation Plan, generally, the
options previously granted under the Equity Participation Plan,
other than the options automatically granted to the non-employee
directors under Section 11 of the Equity Participation Plan, the
"performance stock options" (the "Performance Options")
described below and certain options granted to certain employees
of the Company in November, 1994, vest and become exercisable
either (i) one-third on each of the first, second and third
anniversaries of the grant date or (ii) one-third on each of the
third, fourth and fifth anniversaries of the grant date.
In April 1994, an aggregate of 3,500,000 Performance
Options which were granted to Mr. Peltz (the Chairman and Chief
Executive Officer of the Company) and to Mr. May (the President
and Chief Operating Officer of the Company) were granted in lieu
of base salary, annual performance bonus and long-term
compensation for a six-year period commencing April 1993. In
addition, 350,000 Performance Options were granted to Mr.
Kalvaria (the Vice Chairman of the Company). All of the
Performance Options have an exercise price of $20.125 per share
and will vest and become exercisable as follows: if the closing
price of a share of Class A Common Stock is at least $27.1875
(approximately 135% of the exercise price of each Performance
Option) for 20 out of 30 consecutive trading days ending on or
prior to April 21, 1999, each Performance Option will vest and
become exercisable as to one-third of the shares subject to such
Performance Option; if the closing price of a share of Class A
Common Stock is at least $36.25 per share (approximately 180% of
the exercise price of each Performance Option) for 20 out of 30
consecutive trading days ending on or prior to April 21, 2000,
each Performance Option will vest and become exercisable as to
one-third of the shares subject to such Performance Option; and
if the closing price of a share of Class A Common Stock is at
least $45.3125 (approximately 225% of the exercise price of each
Performance Option) for 20 out of 30 consecutive trading days
ending on or prior to April 21, 2001, each Performance Option
will vest and become exercisable as to one-third of the shares
subject to such Performance Option. In addition to early vesting
in the event such closing price levels are attained, each such
option will also vest and become exercisable after nine years
and six months after the date of grant even if the price of
Class A Common Stock does not so appreciate. Such options have
a term of 10 years from the date of grant.
Generally, options (including the Performance Options but
excluding options granted to certain executives of the Company
or its subsidiaries pursuant to the terms of their employment),
are exercisable immediately prior to termination of such
optionee's employment remain exercisable after termination of
such optionee's employment during the period of three months
immediately following such termination, except upon termination
for cause. Upon the optionee's death or permanent disability
while employed by the Company or upon the optionee's death
during the three months following the optionee's termination of
employment, the option becomes fully exercisable and, in the
case of the optionee's death, remains exercisable until six
months after the issuance of letters testamentary or letters of
administration to the executor or administrator of the deceased
optionee's estate, but in no event later than one year after the
optionee's death. Pursuant to the employment agreements with
certain executive officers of the Company or its subsidiaries,
if such executive officers' employment with the Company or its
subsidiaries terminates for any reason other than for cause, all
outstanding stock option awards granted to such executives
(other than any Performance Options) will immediately vest in
their entirety and remain exercisable for a period of one year
following the date of such termination.
Shares Subject to the Plan. Subject to certain anti-
dilution adjustments, the maximum aggregate number of shares of
Class A Common Stock that may granted as Restricted Shares,
delivered on the exercise of options (including the Performance
Options) or issued pursuant to automatic grants to non-employee
directors in lieu of receipt of certain fees pursuant to the
Equity Participation Plan is 10,000,000. In addition, the
maximum number of shares of Class A Common Stock with respect to
which options or SARs may be granted to any individual optionee
during the term of the Equity Participation Plan is 5,000,000.
The shares of Class A Common Stock may be either authorized but
unissued shares or treasury shares, including such shares
reacquired by the Company.
If an option expires or terminates for any reason during
the term of the Equity Participation Plan and prior to the
exercise in full of such option or the related SAR, if any, or
if Restricted Shares are forfeited as provided in the grant of
such Restricted Shares, the number of shares of Class A Common
Stock previously subject to but not delivered under such option,
related SAR or grant of Restricted Shares will be available for
the grant of options, SARs or Restricted Shares thereafter. An
option that terminates upon the exercise of a tandem SAR will be
deemed to have been exercised at the time of the exercise of
such tandem SAR, and the shares of Class A Common Stock subject
thereto shall not be available for further grants under the
Equity Participation Plan.
Eligibility. Options, SARs or Restricted Shares may be
granted from time to time to selected officers and key employees
of, key consultants to, and directors (including non-employee
directors) of the Company or any consolidated subsidiary, as are
designated from time to time by the Committee.
Certain Provisions Relating to Options and SARs. For
Federal income tax purposes, options granted pursuant to the
Equity Participation Plan will be "nonqualified" options, i.e.,
they will not be "incentive stock options" as such term is
defined in Section 422 of the Internal Revenue Code of 1986, as
amended. The price per share to be paid by the optionee on the
date an option is exercised may not be less than 50% of the fair
market value on the date such option is granted. The Equity
Participation Plan provides that options may be granted for a
maximum of 15 years from the date on which the option is
granted. The purchase price of the shares of Class A Common
Stock as to which an option is exercised is to be paid in cash
or by check, except that the Committee may in its discretion
allow such payment to be made by surrender of unrestricted
shares of Class A Common Stock (at their fair market value on
the date of exercise) or by a combination of cash, check and
unrestricted shares of Class A Common Stock. In addition, an
optionee may also elect to purchase shares of Class A Common
Stock on exercise of an option by assigning to the Company a
sufficient amount of the proceeds from the sale of shares upon
such exercise to pay for the purchase price of all such
exercised options, through a cashless exercise program (as more
fully described in the Equity Participation Plan) or by any
combination of the foregoing.
The Committee may in its discretion grant SARs in
connection with any option, either at the time the option is
granted or at any time thereafter while the option remains
outstanding, to any person who at that time is eligible to be
granted an option. The number of SARs granted to a person which
will be exercisable during any given period of time may not
exceed the number of shares of Class A Common Stock which he or
she may purchase upon the exercise of the related option or
options during such period of time. Upon the exercise of an
option pursuant to the Equity Participation Plan, the SARs
relating to the shares of Class A Common Stock covered by such
exercise will terminate. Upon the exercise of SARs pursuant to
the Equity Participation Plan, the related option to the extent
of an equal number of shares of Class A Common Stock will
terminate.
Upon an optionee's exercise of some or all of his or her
SARs, the optionee will receive in settlement of such SARs an
amount equal to the value of the stock appreciation for the
number of SARs exercised. The stock appreciation for a SAR will
be the difference between (i) the fair market value of the
underlying share of Class A Common Stock on the date of the
exercise of such SAR and (ii) the option price per share of
Class A Common Stock specified for the related option. Upon an
optionee's exercise of SARs, the optionee will receive in
settlement thereof an amount equal to the value of the stock
appreciation for the number of SARs exercised, payable in cash,
shares of Class A Common Stock or a combination thereof, as
determined in the sole discretion of the Committee.
A SAR will be exercisable only during the period when the
option to which it is related is also exercisable. However, in
no event may a SAR be exercisable during the first six months
after being granted, except that a SAR is exercisable at the
time of death or disability of the optionee if the related
option is then exercisable. No SAR may be exercised for cash, in
whole or in part, except during the period beginning on the
third business day following the date of release of the
Company's quarterly and annual summary statements of sales and
earnings and ending on the twelfth business day following such
date.
The Committee may, at its discretion, issue replacement or
reload options to an option holder who has utilized shares of
Class A Common Stock to pay the exercise price of an option
granted under the Equity Participation Plan and/or to pay any
withholding taxes applicable to such exercise. If granted, a
replacement or reload option will be exercisable for the same
number of shares as were utilized by the exercising option
holder to pay such exercise price and/or withholding taxes. Any
such replacement or reload option will have an exercise price
equal to the fair market value of a share of Class A Common
Stock on the date such replacement or reload option is granted,
and, unless the Committee determines otherwise, all other terms
and conditions of such replacement or reload option (including
the date or dates on which such option shall become exercisable
and the term of the option) will be identical to the terms and
conditions of the exercised option with respect to which the
replacement or reload option is granted. No replacement or
reload option may be granted in respect of the exercise of any
option granted pursuant to the Equity Participation Plan as an
automatic grant to a non-employee director (see "Automatic
Grants to Non-Employee Directors" below).
Automatic Grants to Non-Employee Directors. Each director
of the Company who is not then an employee of the Company or any
subsidiary thereof receives under the Equity Participation Plan
on the later of (i) the date of his or her initial election or
appointment to the Board of Directors and (ii) April 24, 1993,
options to purchase 15,000 shares (which amount was 3,000 shares
prior to June 9, 1994) of Class A Common Stock and, in
connection therewith, SARs for the same number of shares of
Class A Common Stock. On the date of each subsequent annual
meeting of shareholders of the Company at which a director is
reelected, he or she receives options to purchase 3,000 shares
(which amount was 1,000 shares prior to June 9, 1994) of Class A
Common Stock and, in connection therewith, SARs for the same
number of shares of Class A Common Stock. Each such option has a
term of ten years, subject to earlier termination upon the
option holder's termination of service to the Company. Each such
option becomes exercisable to the extent of one-half thereof on
each of the two immediately succeeding anniversaries of the date
of grant. The price per share of Class A Common Stock to be paid
by the holder of such an option is equal to the fair market
value of one share of Class A Common Stock on the date the
option is granted. The purchase price of the shares of Class A
Common Stock as to which such an option is exercised may be paid
in cash, by check, by delivery of previously acquired shares of
Class A Common Stock held by the optionee for at least six
months, through the cashless exercise program described above
under "Certain Provisions Relating to Options and SARs" or by
any combination of the foregoing. SARs are exercisable only for
shares of Class A Common Stock.
Elective Purchase of Shares. Each director may elect to
receive in shares of Class A Common Stock all or any portion of
the annual retainer fees and/or Board of Directors or committee
meeting attendance fees (the "Fees") that otherwise would be
payable to him or her in cash.
Any election (other than an initial election made within a
specified period following the time a director first becomes a
member of the Board of Directors) to receive shares of Class A
Common Stock rather than cash must be made at least six months
in advance of payment and shall continue in effect until revoked
by an election made at least six months in advance. There is no
limit on the number of elections or revocations that may be made
by a director, except that no such election (other than an
initial election made within the time a director first becomes a
member of the Board of Directors) or revocation may take effect
until at least six months after such election or revocation will
have been delivered to the Secretary of the Company. Any shares
of Class A Common Stock payable under such an election will be
issued on the same date that the Fees would have been paid in
cash. The number of shares of Class A Common Stock to be issued
on account of an election to receive shares of Class A Common
Stock in payment of Fees will be based on the average of the
closing prices of the shares of Class A Common Stock for the 20
consecutive trading days immediately preceding the date as of
which the Fees are payable. Cash will be paid in lieu of issuing
any fractional share of Class A Common Stock.
Certain Provisions Applicable to Restricted Shares. The
Committee may grant Restricted Shares to certain eligible
persons at any time. In granting Restricted Shares, the
Committee shall determine in its sole discretion the period or
periods during which the restrictions on transferability
applicable to such Restricted Shares will be in force (the
"Restricted Period"). During the Restricted Period applicable to
each grant of Restricted Shares, such Restricted Shares may not
be sold, assigned, transferred or otherwise disposed of, or
mortgaged, pledged or otherwise encumbered. Furthermore, a
grantee's eventual right, if any, to such Restricted Shares may
not be assigned or transferred except by will or by the laws of
descent and distribution. With respect to each grant of
Restricted Shares, the Committee will determine in its sole
discretion the restrictions on vesting which will apply to the
Restricted Shares for the Restricted Period. If the Committee
deems restrictions on vesting inappropriate for any grantee, it
may approve the award and delivery to such grantee of all or any
portion of the Restricted Shares free and clear of all
restrictions on transferability. The Company is not obligated to
deliver any Restricted Shares free and clear of the restrictions
on transferability until the Company has satisfied itself that
such delivery complies with all applicable laws and regulations.
Shareholder Rights. Except for the restrictions on
transferability, a grantee of Restricted Shares will have the
rights of a holder of the shares of Class A Common Stock,
including the right to receive dividends paid on such shares and
the right to vote such shares at meetings of stockholders of the
Company. No optionee will have any of the rights of a
stockholder with respect to any shares of Class A Common Stock
unless and until he or she has exercised his or her option with
respect to such shares of Class A Common Stock and has paid the
full purchase price therefor.
Changes in Control. The Equity Participation Plan also
provides that upon (i) the acquisition by any person of 50% or
more of the combined voting power of the Company's outstanding
securities entitled to vote generally in the election of
directors, or (ii) a majority of the directors of the Company
being individuals who are not nominated by the Board of
Directors (a "Plan Change of Control"), any outstanding options
granted under the Equity Participation Plan to officers or
directors of the Company shall become fully and immediately
exercisable and any restrictions on vesting applicable to any
Restricted Shares held by an officer of the Company will lapse
and such Restricted Shares will be delivered free and clear of
all transferability restrictions. The acquisition of any portion
of the combined voting power of the Company by (a) DWG
Acquisition Group, L. P., a Delaware limited partnership, the
sole general partners of which are Nelson Peltz and Peter W.
May, which owns approximately 25% of the Company's voting
securities, (b) Nelson Peltz or (c) Peter W. May or by any
person affiliated with such persons will not constitute a Plan
Change of Control.
Amendment and Discontinuance. The Board of Directors may
alter, suspend, or discontinue the Equity Participation Plan,
but, with certain exceptions relating to anti-dilution
adjustments, may not, without the approval of the holders of a
majority of the Class A Common Stock, make any alteration or
amendment which operates to (a) materially increase the number
of shares of Class A Common Stock which are available for the
grant of options, SARs and Restricted Shares under the Equity
Participation Plan, (b) extend the term during which options may
be granted under the Equity Participation Plan or the maximum
option period provided in the Equity Participation Plan, (c)
decrease the minimum option price provided in the Equity
Participation Plan, (d) materially increase the rights of
optionees with respect to SARs in a manner which would not
comply with Rule 16b-3 under the Securities Exchange Act of
1934, as amended ("Rule 16b-3"), (e) amend the provisions for
automatic grants to non-employee directors in a manner which
would not comply with Rule 16b-3, or (f) materially modify the
requirements as to eligibility for participation in the Equity
Participation Plan, except as otherwise required to comply with
Rule 16b-3.
Effective Date and Duration of the Plan. The Plan became
effective as of April 24, 1993, the date of its adoption by the
Board of Directors. The term during which options, SARs,
Restricted Shares and shares of Class A Common Stock may be
granted under the Equity Participation Plan expires on April 24,
1998.
Resale Restrictions. Shares of Class A Common Stock that
may be granted as Restricted Shares, delivered on the exercise
of options (including the Performance Options) or issued
pursuant to automatic grants to non-employee directors in lieu
of receipt of Fees pursuant to the Equity Participation Plan may
not be resold by any participant in the Equity Participation
Plan who would be deemed to be an "affiliate" of the Company
under the Securities Act of 1933, as amended (the "Act"), except
pursuant to an effective registration statement under the Act or
any exemption from the registration requirements of the Act,
such as that afforded by Section 4(1) thereof or Rule 144
thereunder.
Additional information about the Equity Participation Plan
and the Committee may be obtained from Stuart I. Rosen, Vice
President and Secretary, Triarc Companies, Inc., at 900 Third
Avenue, New York, New York 10022; the telephone number at such
address is (212) 230-3000.
Federal Tax Consequences
An employee who has been granted an option, SAR or
Restricted Shares will not generally realize taxable income at
the date of grant and the Company will not be entitled to a
deduction at that time.
An employee who exercises an option or a SAR generally will
realize ordinary income in an amount measured by the excess, if
any, of the fair market value of the shares of Class A Common
Stock on the date of exercise over the option price, or, in the
case of an SAR, the fair market value of the shares of Class A
Common Stock and any cash delivered upon exercise. In each case,
the Company will generally be entitled to a corresponding
deduction for federal income tax purposes.
At the time Restricted Shares vest (that is, upon
expiration of the Restriction Period) the holder of Restricted
Shares will generally realize ordinary income in an amount equal
to the fair market value of such Restricted Shares and any cash
delivered at the time of vesting, and the Company will generally
be entitled to a corresponding deduction for federal income tax
purposes. However, if an employee makes a special tax election
to recognize income with respect to the Restricted Shares on the
date of grant, then the amount of ordinary income will be
determined on such date. Dividends paid to the holder during the
Restriction Period will also be compensation income to the
employee and deductible as such by the Company.
If a director's Fees are paid in the form of shares of
Class A Common Stock, generally the director will realize
ordinary income equal to the value of those shares (plus any
cash received in lieu of a fractional share). If the sale of
such shares by the director could give rise to suit under
Section 16(b) of the Securities Exchange Act of 1934, as
amended, taxation is generally deferred for up to six months.
On August 10, 1993, President Clinton signed into law the
Omnibus Budget Reconciliation Act of 1993 (the "Tax Act"), which
includes a provision that may preclude a publicly held
corporation from deducting annual compensation in excess of
$1,000,000 paid to certain of its highly compensated officers.
However, there are exceptions for qualified performance based
compensation (including certain stock options and SARs) if
certain conditions are met. Although the Company intends that
awards under the Equity Participation Plan will satisfy the
requirements to be considered performance based for purposes of
Tax Act, there can be no assurance such awards will satisfy such
requirements. The foregoing is only a general summary of the tax
effects to the employee and the Company of options, SARs and
Restricted Shares granted or awarded under the Equity
Participation Plan. There are a number of special tax rules
(including the alternative minimum tax, rules applicable in the
event of a change in control and withholding requirements) and
elections which may be applicable under certain circumstances.
Item 2. Registrant Information and Employee Plan Annual
Information.
Item 3 of Part II of this Registration Statement
incorporates by reference documents which are not presented
herein or delivered herewith. Copies of such documents, other
than exhibits to such documents unless they are specifically
incorporated by reference, as well as copies of other documents
required to be delivered to employees pursuant to Rule 428(b)
under the Securities Act of 1933, as amended, are available
without charge upon written or oral request to: Stuart I. Rosen,
Vice President and Secretary, Triarc Companies, Inc., 900 Third
Avenue, New York, New York 10022; the telephone number at such
address is (212) 230-3000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission pursuant
to Section 13 of the Exchange Act with respect to the Company
(File No. 1-2207) are hereby incorporated by reference into this
Registration Statement on Form S-8:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 filed with the Commission on
March 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1995 filed with the Commission on
May 15, 1995;
(c) The Company's Notice of Annual Meeting of
Stockholders and Proxy Statement for its annual meeting of
stockholders held on June 8, 1995; and
(d) The description of the Class A Common Stock contained
in the Company's registration statement on Form 8-A dated
November 2, 1993, filed under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date hereof and prior to the filing of a post-
effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such
documents.
The financial statements and the related financial
statement schedules for the year ended December 31, 1994
incorporated in this Registration Statement by reference from
the Company's 1994 Annual Report on Form 10-K have been audited
by Deloitte & Touche LLP, independent auditors, as stated in
their reports, which are incorporated herein by reference, and
have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and
auditing.
The financial statements and the related financial
statement schedules for each of the two years in the period
ended April 30, 1993 and for the eight months ended December 31,
1993 incorporated in this Registration Statement by reference
from the Company's 1994 Annual Report on Form 10-K have been
audited by Arthur Andersen LLP, independent certified public
accountants, as stated in their reports, which are incorporated
herein by reference, and have been so incororated in reliance
upon the reports of such firm given upon their authority as
experts in accounting and auditing.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Irene B. Fisher, the Vice President, Assistant General
Counsel and Assistant Secretary of the Company, holds Options to
purchase shares of Class A Common Stock.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation, subject to the
applicable indemnification provisions of the General Corporation
Law of the State of Delaware ("GCL"). Section 145(a) of the GCL
provides that a Delaware 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 action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that such person 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 of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
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 his
conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware
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 action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above,
against expenses actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit
if he acted under similar standards, except that 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
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent
a director, officer, employee or agent of a corporation has been
successful on the merit, or otherwise in the defense of any
action, suit or proceeding referred to in subsections (a) and
(b) or in the defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection
therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the corporation may
purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted
against him or incurred by him in any such capacity or arising
out of his status whether or not the corporation would have the
power to indemnify him against such liabilities under such
Section 145.
Section 102(b)(7) of the GCL provides that a corporation in
its original certificate of incorporation or an amendment
thereto validly approved by stockholders may eliminate or limit
personal liability of members of its board of directors or
governing body for breach of a director's fiduciary duty.
However, no such provision may eliminate or limit the liability
of a director for breaching his duty of loyalty.
Article VII of the Company's Certificate of Incorporation
provides for the indemnification of its directors and officers
to the fullest extent permitted by the GCL. In addition,
Article VIII of the Company's By-laws provides for the
indemnification of its directors and officers to the fullest
extent permitted by the GCL.
The Company has entered into agreements to defend and
indemnify each of its directors and officers to the fullest
extent legally possible in connection with threatened, pending
or completed legal proceedings, including derivative
proceedings.
The Company's Directors' and Officers' Insurance and
Company Reimbursement Policy is designed to reimburse the
Company for certain payments made by it pursuant to the various
foregoing indemnification provisions and agreements.
Item 7. Exemptions from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No.: Description:
5.1 Opinion of Irene B. Fisher, Vice President and
Assistant General Counsel to the Company.*
23.1 Consent of Irene B. Fisher (included in Exhibit 5.1).*
23.2 Consent of Deloitte & Touche LLP.*
23.3 Consent of Arthur Andersen LLP.*
24.1 Powers of attorney (included in Part II of the
Registration Statement).
- -------------
* Being filed herewith
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) 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 prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-
effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration
statement.
(2) 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.
(3) 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.
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 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 the
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.
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 foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other that 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 Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant 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 June
21, 1995.
TRIARC COMPANIES, INC.
By: NELSON PELTZ
----------------------------
Nelson Peltz
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), the true and lawful attorney-in-fact
to sign and execute, on behalf of the undersigned, any amendment
or amendments to this Registration Statement and each of the
undersigned does hereby ratify and confirm all that said
attorneys shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Capacity Date
NELSON PELTZ Chairman and Chief June 21, 1995
- ----------------- Executive Officer,
(Nelson Peltz) Director and Principal
Executive Officer
PETER W. MAY President and Chief June 21, 1995
- ----------------- Operating Officer,
(Peter W. May) and Director
JOSEPH A. LEVATO Executive Vice President, June 21, 1995
- ----------------- Chief Financial Officer and
(Joseph A. Levato) Principal Financial Officer
FRED H. SCHAEFER Vice President, Chief June 21, 1995
- ----------------- Accounting Officer and
(Fred H. Schaefer) Principal Accounting Officer
LEON KALVARIA Vice Chairman and Director June 21, 1995
- -----------------
(Leon Kalvaria)
HUGH L. CAREY Director June 21, 1995
- -----------------
(Hugh L. Carey)
CLIVE CHAJET Director June 19, 1995
- -----------------
(Clive Chajet)
STANLEY R. JAFFE Director June 21, 1995
- -----------------
(Stanley R. Jaffe)
M. L. LOWENKRON Director June 20, 1995
- -----------------
(M. L. Lowenkron)
DAVID E. SCHWAB II Director June 21, 1995
- -----------------
(David E. Schwab II)
RAYMOND S. TROUBH Director June 21, 1995
- -----------------
(Raymond S. Troubh)
GERALD TSAI, JR. Director June 21, 1995
- -----------------
(Gerald Tsai, Jr.)
<PAGE>
EXHIBIT 5.1
June 22, 1995
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by Triarc Companies, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations promulgated thereunder (the "Rules"), I have been
requested to render my opinion in my capacity as Vice President and
Assistant General Counsel and Assistant Secretary as to the legality of the
shares of Class A Common Stock, par value $.10 per share (the "Common
Stock"), of the Company to be registered thereunder. The shares to be
registered under the Registration Statement consist of a maximum of
10,000,000 shares (the "Shares") of Class A Common Stock issuable (i) upon
the exercise of certain stock options (the "Options"), (ii) as restricted
shares of Class A Common Stock that are both restricted as to
transferability and subject to a substantial risk of forfeiture, which in
each case have been granted or which may be granted to selected officers,
directors, key employees of and key consultants to the Company and its
subsidiaries pursuant to the Company's 1993 Equity Participation Plan, as
amended and restated to date (the "Plan"), and (iii) under the Plan to non-
employee directors upon each such director's initial election and any
reelection to the board of directors of the Company or pursuant to an
election by such director to receive in Shares all or any portion of annual
retainer fees and/or board of directors or committee meeting attendance fees
that would otherwise be payable in cash, and stock appreciation rights
granted in connection with the Options.
In connection with this opinion, I have examined (i) the Registration
Statement, (ii) an original, photocopy or conformed copy of the Plan, (iii)
the Certificate of Incorporation and By-Laws of the Company, each as amended
to date, and (iv) records of certain of the Company's corporate proceedings.
In addition, I have made such other examinations of law and fact as I have
considered necessary in order to form a basis for the opinion hereinafter
expressed. In my examination of documents, I have assumed the genuineness
of all signatures, the authenticity of all documents submitted to me as
originals, and the conformity to original documents of all documents
submitted to me as photostatic, reproduced or conformed copies, and the
authenticity of all such latter documents. As to certain matters of fact, I
have relied on representations, statements or certificates of officers of
the Company.
Based on the foregoing, I am of the opinion that the Shares have been
duly authorized for issuance and that such Shares, when issued and delivered
by the Company and paid for in accordance with the terms and provisions of
the Plan, will be validly issued, fully paid and nonassessable.
My opinion expressed above is limited to the General Corporation Law
of the State of Delaware. My opinion is also rendered only with respect to
the laws and the rules, regulations and orders thereunder, which are in
effect as of the date hereof. Please be advised that I am not admitted to
practice in the State of Delaware. I consent to the filing of this opinion
as an exhibit to the Registration Statement. In giving this consent, I do
not hereby agree that I come within the category of persons whose consent is
required by the Act or the Rules.
Very truly yours,
Irene B. Fisher
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated March 24, 1995 appearing in and
incorporated by reference in Triarc Companies, Inc.'s Annual Report on Form
10-K for the fiscal year ended December 31, 1994 and to the references to us
under the heading "Incorporation of Documents by Reference" in this
Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
June 22, 1995
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated April 14, 1994 included and incorporated by reference in Triarc
Companies, Inc.'s Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Fort Lauderdale, Florida,
June 22, 1995.
<PAGE>
