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. STOCK OPTION PLAN FOR CABLE CAR EMPLOYEES
(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
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
<TABLE>
<CAPTION>
Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Per Proposed Maximum Registration
Securities to be Registered Registered Share Aggregate Offering Price Fee
- ---------------------------------------------- ------------------ ------------------ ------------------------ ------------
<S> <C> <C> <C> <C>
Class A common stock, par value $.10 per share 154,931 shares (1) $25.00 (2) $ 3,873,275.00 (2) $1,142.62
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</TABLE>
(1)The amount of shares to be registered has been determined based on the
product of 899,700 shares of common stock, par value $.01 per share, of
Cable Car Beverage Corporation ("Cable Car") subject to outstanding options,
multiplied by an exchange ratio of 0.1722, as determined pursuant to the
Agreement and Plan of Merger, dated June 24, 1997, by and among Cable Car,
Triarc Companies, Inc. ("Triarc") and CCB Merger Corporation, as amended.
(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 was determined by averaging the
high and low prices of the Class A common stock, par value $.10 per share, of
Triarc as reported on the New York Stock Exchange composite tape on January
20, 1998.
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<PAGE>
EXPLANATORY NOTE
Pursuant to the Agreement and Plan of Merger dated June 24, 1997,
(the "Merger Agreement"), by and among Triarc Companies, Inc., a
Delaware corporation (the "Company"), CCB Merger Corporation, a Delaware
corporation and wholly owned subsidiary of the Company ("Mergerco"), and Cable
Car Beverage Corporation, a Delaware corporation ("Cable Car"), relating to the
merger of Mergerco with and into Cable Car (the "Merger"), at the Effective Time
of the Merger, which occurred on November 25, 1997, each holder of an option
(the "Cable Car Options") exercisable for shares of Cable Car's common stock,
par value $.01 per share, issued pursuant to stock option agreements between
such holder and Cable Car received, by virtue of the Merger and without any
action on the part of the holder thereof, options exercisable for shares of the
Company's Class A Common Stock, par value $.10 per share (the "Common Stock"),
with the same terms and conditions as the Cable Car Options immediately prior to
the Effective Time (the "Substitute Triarc Options"), except that (i) the
exercise price and the number of shares issuable upon exercise shall be divided
and multiplied, respectively, by 0.1722 and (ii) all of the Cable Car Options
became immediately exercisable at the Effective Time in accordance with their
terms.
The Section 10(a) prospectus being delivered by the Company to
holders of Cable Car Options as required by Rule 428 under the Securities Act of
1933, as amended (the "Securities Act"), have been prepared in accordance with
the requirements of Form S-8 and relate to shares of Common Stock which have
been reserved for issuance pursuant to the Triarc Companies, Inc. Stock Option
Plan for Cable Car Employees (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 II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Triarc (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 31, 1996, as amended by amendments thereto filed with the
Commission on May 1, 1997 and May 13, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended September 28, 1997, June 28, 1997, as amended by an
amendment thereto filed with the Commission on September 30, 1997, and
March 30, 1997;
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2
3. Triarc's Current Reports on Form 8-K filed with the Commission on
December 24, 1997 (as amended by an amendment thereto filed with the
Commission on January 7, 1998), December 10, 1997, October 27, 1997,
August 5, 1997, July 18, 1997, June 26, 1997, June 6, 1997 (as amended by
an amendment thereto filed with the Commission on August 5, 1997), May 20,
1997 (as amended by an amendment thereto filed with the Commission on
August 4, 1997), March 31, 1997, February 20, 1997 and January 10, 1997;
and
4. The descriptions of Triarc Common Stock set forth in Triarc's
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act, 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 Securities Exchange Act of 1934
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.
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 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 and 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
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3
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 reasonable 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 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
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4
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 consent 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 it 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
$30,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibits
4.1 Certificate of Incorporation of the Company, as in effect,
incorporated herein by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-4 (Reg. No. 333-4857).
4.2 By-laws of the Company, incorporated herein by reference to Exhibit
3.1 to the Company's Current Report on Form 8-K dated March 31, 1997
(SEC file No. 1-2207).
4.3* Triarc Companies, Inc. Stock Option Plan for Cable Car Employees.
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Company, regarding the legality of the Common Stock being
registered.
<PAGE>
5
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5.1).
24* Power of Attorney (included on page 6 of this Registration
Statement).
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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
(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, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, 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, as amended, 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 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 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 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 January 22, 1998.
TRIARC COMPANIES, INC.
(Registrant)
By: /s/ Nelson Peltz
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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), 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 of 1933, this
Registration Statement has been signed below on January 22, 1998 by the
following persons in the capacities indicated.
SIGNATURE TITLES
/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 Officer)
Peter W. May
/s/ John L. Barnes, Jr. Senior Vice President and Chief Financial
- --------------------------------- Officer (Principal Financial Officer)
John L. Barnes, Jr.
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SIGNATURE TITLES
/s/ Fred H. Schaefer Vice President and Chief Accounting Officer
- --------------------------------- (Principal Accounting Officer)
Fred H. Schaefer
/s/ Hugh L. Carey Director
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Hugh L. Carey
/s/ Clive Chajet Director
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Clive Chajet
/s/ Stanley R. Jaffe Director
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Stanley R. Jaffe
/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/ 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
Exhibits
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4.1 Certificate of Incorporation of the Company, as in effect,
incorporated herein by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-4 (Reg. No. 333-4857).
4.2 By-laws of the Company, incorporated herein by reference to Exhibit
3.1 to the Company's Current Report on Form 8-K dated March 31, 1997
(SEC file No. 1-2207).
4.3* Triarc Companies, Inc. Stock Option Plan for Cable Car Employees.
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Company, regarding the legality of the Common Stock being
registered.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5.1).
24* Power of Attorney (included on page 6 of this Registration
Statement).
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* Filed herewith.
EXHIBIT 4.3
TRIARC COMPANIES, INC.
STOCK OPTION PLAN
FOR CABLE CAR EMPLOYEES
WHEREAS, pursuant to the Agreement and Plan of Merger dated June 24,
1997, as amended (the "Merger Agreement"), by and among Triarc Companies, Inc.,
a Delaware corporation (the "Company"), CCB Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company ("Mergerco") and Cable
Car Beverage Corporation ("Cable Car"), relating to the merger of Mergerco with
and into Cable Car (the "Merger"), each option (the "Cable Car Optionee")
exercisable for shares of Cable Car's common stock, par value $.01 per share,
issued pursuant to stock option agreements between such holder and Cable Car
(the "Cable Car Options") at the effective time of the Merger, which occurred on
November 25, 1997 (the "Effective Time"), by virtue of the Merger and without
any action on the part of the holder thereof, was assumed by the Company and
became and represented an option exercisable for shares of the Company's Class A
Common Stock, par value $.10 per share (the "Replacement Options");
WHEREAS, (i) the exercise price of the shares issuable upon exercise
of a Replacement Option shall be determined by dividing the exercise price of
the applicable Cable Car Option by 0.1722, (ii) the number of shares issuable
upon exercise of a Replacement Option shall be determined by multiplying the
number of shares issuable upon exercise of the applicable Cable Car Option by
0.1722, (iii) all of the Replacement Options are immediately exercisable and
(iv) each Replacement Option has the same expiration date as the Cable Car
Option it is replacing;
WHEREAS, the Company wishes to adopt this Plan to evidence the
Replacement Options;
NOW, THEREFORE,
SECTION 1. PURPOSE. The purpose of this Triarc Companies, Inc. Stock
Option Plan for Cable Car Employees is to promote the interests of Cable Car and
the Company and their stockholders by enabling the Cable Car Optionees to
participate in the long-term growth and financial success of the Company and
Cable Car.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms
shall have the meanings set forth below:
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2
"Affiliate" shall mean (i) any entity that, directly or indirectly,
is controlled by, controls or is under common control with, the Company and (ii)
any entity in which the Company has a significant equity interest, in either
case as determined by the Committee.
"Award Agreement" shall mean an agreement, contract or other
instrument evidencing an Option hereunder.
"Cable Car Award Agreement" shall mean each Agreement, contract, or
other instrument or document evidencing a Cable Car Option, which, as a result
of the Merger was assumed by the Company and became a Replacement Option Award
Agreement.
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean the compensation committee of the Board, the
Performance Compensation Subcommittee or such other committee or subcommittee of
the Board as may be designated by the Board to administer the Plan.
"Common Stock" shall mean the Company's Class A Common Stock, par
value $.10 per share.
"Company" shall mean Triarc Companies, Inc., together with any
successor thereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, (A) with respect to any property
other than Shares, the fair market value of such property determined by such
methods or procedures as shall be established from time to time by the Committee
and (B) with respect to the Shares, as of any date, (i) the closing price per
Share as reported on the composite tape for securities traded on the New York
Stock Exchange for such date (or if not then trading on the New York Stock
Exchange, the closing price per Share on the stock exchange or over-the-counter
market on which the Shares are principally trading on such date), or, if there
were no sales on such date, on the closest preceding date on which there were
sales of Shares, or (ii) in the event there shall be no public market for the
Shares on such date, the fair market value of the Shares as determined in good
faith by the Committee.
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"Option" shall mean a right to purchase Shares from the Company
pursuant to the Plan.
"Participant" shall mean any Cable Car Optionee whose Cable Car
Option became a Replacement Option as a result of the Merger and is eligible to
participate in the Plan pursuant to Section 5 hereof.
"Person" shall mean any individual, corporation, limited liability
company, partnership, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.
"Plan" shall mean this Triarc Companies, Inc. Stock Option Plan for
Cable Car Employees.
"Replacement Option Award Agreements" shall mean those Cable Car
Award Agreements that were assumed by the Company pursuant to the Merger and
evidence the Replacement Options.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto, and shall include the Staff thereof.
"Shares" shall mean the common shares of the Company, $.10 par
value, or such other securities of the Company (i) into which such common shares
shall be changed by reason of a recapitalization, merger, consolidation,
split-up, combination, exchange of shares or other similar transaction or (ii)
as may be determined by the Committee pursuant to Section 4(b).
"Subsidiary" shall mean (i) any entity that, directly or indirectly,
is controlled by the Company and (ii) any entity in which the Company has a
significant equity interest, in either case as determined by the Committee
SECTION 3. ADMINISTRATION. (a) The Plan shall be administered by the
Committee. Subject to the terms of the Plan, the Replacement Option Award
Agreements and applicable law, and in addition to other express powers and
authorizations conferred on the Committee by the Plan, the Committee shall have
full power and authority to: (i) determine the terms and conditions of any
Option; (ii) determine whether, to what extent and under what circumstances
Options may be canceled, forfeited or suspended and the method or methods by
which Options may be settled, exercised, canceled, forfeited or suspended; (iii)
interpret, administer reconcile
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4
any inconsistency, correct any default and/or supply any omission in the Plan
and any instrument or Agreement relating to, or Option made under, the Plan;
(iv) establish, amend, suspend, or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of the
Plan; and (vi) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
(b) Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Option shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive and binding
upon all Persons, including the Company, any Affiliate, any Participant, any
holder or beneficiary of any Option and any shareholder.
(c) No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option
hereunder.
SECTION 4. SHARES AVAILABLE FOR OPTIONS.
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section
4(b), the aggregate number of Shares with respect to which Options may be
granted under the Plan shall be 154,931.
(b) ADJUSTMENTS. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares such
that an adjustment is determined by the Committee in its discretion to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number of Shares or other securities of the Company (or number and kind
of other securities or property) with respect to which Options may be granted,
(ii) the number of Shares or other securities of the Company (or number and kind
of other securities or property) subject to outstanding Options, and (iii) the
exercise price with respect to any Option or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Option in
consideration for the cancellation of such Option in an amount equal to the
excess, if any, of the Fair Market Value of the Shares subject to the Options
over the aggregate exercise price of such Option.
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(c) SOURCES OF SHARES DELIVERABLE UNDER OPTIONS. Any Shares
delivered pursuant to an Option may consist, in whole or in part, of authorized
and unissued Shares or of treasury Shares or of Shares purchased on the open
market.
SECTION 5. ELIGIBILITY. Any Cable Car Optionee who was a holder of a
Cable Car Option immediately prior to the Effective Time of the Merger and who
received a Replacement Option (which has not been exercised or expired prior to
the Effective Date) shall be a Participant under the Plan.
SECTION 6. STOCK OPTIONS.
(a) OPTIONS. The Replacement Options issued hereunder shall have the
following terms and conditions: (i) the exercise price of the Replacement
Options will be determined pursuant to Section 6(b) below, (ii) the number of
Shares issuable upon exercise of each Replacement Option shall be determined by
multiplying the number of Shares issuable upon exercise of the applicable Cable
Car Option by 0.1722 (with the result of such calculation rounded to the nearest
whole number), (iii) all Replacement Options shall be fully vested and
exercisable pursuant to the Merger, and (iv) each Replacement Option shall have
the same expiration date as the Cable Car Option it is replacing.
(b) EXERCISE PRICE. The exercise price of a Replacement Option shall
be determined by dividing the exercise price of the Cable Car Option as set
forth in the applicable Cable Car Award Agreement by 0.1722 (with the result of
such calculation rounded to the nearest whole cent).
(c) EXERCISE. Each Replacement Option shall be exercisable at such
times and subject to such terms and conditions as specified in the applicable
Cable Car Award Agreement or thereafter (taking into account the acceleration of
vesting as a result of the Merger). The Committee may impose such conditions
with respect to the exercise of Options, including without limitation, any
relating to the application of federal or state securities laws, as it may deem
necessary or advisable.
(d) PAYMENT. No Shares shall be delivered pursuant to any exercise
of an Option until payment in full of the aggregate exercise price therefor is
received by the Company. Such payment may be made in cash or by check.
SECTION 7. AMENDMENT AND TERMINATION.
(a) AMENDMENTS TO THE PLAN. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; PROVIDED
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without shareholder approval if such approval is necessary to
comply with any tax or
<PAGE>
6
regulatory requirement applicable to the Plan; and PROVIDED, FURTHER, that any
such amendment, alteration, suspension, discontinuance or termination that would
impair the rights of any Participant or any holder or beneficiary of any Option
theretofore granted shall not to that extent be effective without the consent of
the affected Participant, holder or beneficiary.
(b) AMENDMENTS TO OPTIONS. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Option theretofore granted, prospectively or retroactively;
PROVIDED that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the rights of any
Participant or any holder or beneficiary of any Option theretofore granted shall
not to that extent be effective without the consent of the affected Participant,
holder or beneficiary.
(c) ADJUSTMENT OF OPTIONS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. The Committee is hereby authorized to make adjustments in
the terms and conditions of, and the criteria included in, Options in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4(b) hereof) affecting the Company, any
Affiliate or the financial statements of the Company or any Affiliate, or of
changes in applicable laws, regulations or accounting principles, whenever the
Committee determines that such adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan.
SECTION 8. GENERAL PROVISIONS.
(a) NONTRANSFERABILITY. Each Option shall be exercisable only by the
Participant during the Participant's lifetime, or, if permissible under
applicable law, by the Participant's legal guardian or representative and no
Option may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant otherwise than by will or by the laws
of descent and distribution and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance.
(b) NO RIGHTS TO OPTIONS. No Participant or other Person shall have
any claim to be granted any Option, and there is no obligation for uniformity of
treatment of Participants, or holders or beneficiaries of Options. The terms and
conditions of Options and the Committee's determinations and interpretations
with respect thereto need not be the same with respect to each Participant
(whether or not such Participants are similarly situated).
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7
(c) SHARE CERTIFICATES. All certificates for Shares or other
securities of the Company or any Affiliate delivered under the Plan pursuant to
any Option or the exercise thereof shall be subject to such stop transfer orders
and other restrictions as the Committee may deem advisable under the Plan or the
rules, regulations, and other requirements of the SEC, any stock exchange upon
which such Shares or other securities are then listed, and any applicable
Federal or state laws, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
(d) WITHHOLDING.
A Participant may be required to pay to the Company or any
Affiliate and the Company or any Affiliate shall have the right and is hereby
authorized to withhold from any Option, from any payment due or transfer made
under any Option or under the Plan or from any compensation or other amount
owing to a Participant the amount (in cash, Shares, other securities, other
Option or other property) of any applicable withholding taxes in respect of an
Option, its exercise, or any payment or transfer under an Option or under the
Plan and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes.
(e) AWARD AGREEMENTS. Each Cable Car Award Agreement has been
assumed by the Company, as amended pursuant to the Merger Agreement, and as
provided for herein.
(f) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained
in the Plan shall prevent the Company or any Affiliate from adopting or
continuing in effect other compensation arrangements, which may, but need not,
provide for the grant of options (subject to shareholder approval if such
approval is required), and such arrangements may be either generally applicable
or applicable only in specific cases.
(g) NO RIGHT TO EMPLOYMENT. The grant of an Option shall not be
construed as giving a Participant the right to be retained in the employ of, or
in any consulting relationship to, the Company or any Affiliate. Further, the
Company or an Affiliate may at any time dismiss a Participant from employment or
discontinue any consulting relationship, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Cable
Car Award Agreement or Award Agreement.
(h) NO RIGHTS AS SHAREHOLDER. Subject to the provisions of the
applicable Option, no Participant or holder or beneficiary of any Option shall
have any rights as a shareholder with respect to any Shares to be distributed
under the Plan until he or she has become the holder of such Shares.
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8
(i) GOVERNING LAW. The validity, construction and effect of the Plan
and any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of the State of Delaware.
(j) SEVERABILITY. If any provision of the Plan or any Option is or
becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction
or as to any Person or Option, or would disqualify the Plan or any Option under
any law deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform the applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Option, such provision shall be stricken
as to such jurisdiction, Person or Option and the remainder of the Plan and any
such Option shall remain in full force and effect.
(k) OTHER LAWS. The Committee may refuse to issue or transfer any
Shares or other consideration under an Option if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Option shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of
the foregoing, no Option granted hereunder shall be construed as an offer to
sell securities of the Company, and no such offer shall be outstanding, unless
and until the Committee in its sole discretion has determined that any such
offer, if made, would be in compliance with all applicable requirements of the
U.S. federal and any other applicable securities laws.
(l) NO TRUST OR FUND CREATED. Neither the Plan nor any Option shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Option, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(m) NO FRACTIONAL SHARES. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Option, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated, or otherwise eliminated.
(n) HEADINGS. Headings are given to the Sections and subsections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed
<PAGE>
9
in any way material or relevant to the construction or interpretation of the
Plan or any provision thereof.
SECTION 10. TERM OF THE PLAN.
(a) EFFECTIVE DATE. The Plan shall be effective as of November 25,
1997 (the "Effective Date").
(b) EXPIRATION DATE. The Plan shall remain in effect until all
Options hereunder have been exercised or expire. No Option shall be granted
under the Plan after the Effective Date. Unless otherwise expressly provided in
the Plan or in an applicable Cable Car Award Agreement, any Option evidenced
hereunder may, and the authority of the Board or the Committee to amend, alter,
adjust, suspend, discontinue, or terminate any such Option or to waive any
conditions or rights under any such Option shall, continue until all Options
evidenced hereunder have been exercised or expire.
EXHIBIT 5.1
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 Avenue of the Americas
New York, New York 10019-6064
January 22, 1998
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") of Triarc Companies, Inc., a Delaware corporation (the
"Company"), filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations promulgated thereunder, we have been requested by the Company to
render this opinion relating to 154,931 shares of Class A Common Stock, par
value $.10 per share, of the Company (the "Option Shares") to be issued upon
exercise of the options granted under the Triarc Companies, Inc. Stock Option
Plan for Cable Car Employees (the "Plan").
<PAGE>
Triarc Companies, Inc. 2
In connection with furnishing this opinion, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
(i) the Registration Statement, (ii) the Certificate of Incorporation of the
Company, as amended on or prior to the date hereof, (iii) the By-laws of the
Company, as amended on or prior to the date hereof, (iv) the Plan and (v) all
such corporate records, agreements and other instruments of the Company, and all
such other certificates, agreements and documents, as we have considered
relevant and necessary as a basis for the opinion hereinafter expressed.
In our examination of the aforesaid documents, we have assumed,
without independent investigation, the genuineness of all signatures, the legal
capacity of all individuals who have executed any of the documents reviewed by
us, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified,
photostatic, reproduced or conformed copies of valid existing agreements or
other documents and the authenticity of all of such latter documents. In
expressing our opinion herein, we have relied, as to certain matters of fact, on
representations, statements or certificates of officers of the Company and
public officials.
Based upon the foregoing, and subject to the assumptions, exceptions
and qualifications stated herein, we are of the opinion that, when issued in
accordance with the terms of the Plan, the Shares will be duly authorized,
validly issued, fully paid and non-assessable.
<PAGE>
Triarc Companies, Inc. 3
Our opinion expressed above is limited to the General Corporation
Law of the State of Delaware. Our opinion is rendered only with respect to the
laws and the rules, regulations and orders thereunder which are currently in
effect. Please be advised that no member of this firm is admitted to practice in
the State of Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required by the Act or the rules
and regulations of the Commission thereunder.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Triarc Companies, Inc. on Form S-8 of our reports dated March 31, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Triarc Companies, Inc. for the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
New York, New York
January 22, 1998
