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. 1997 EQUITY PARTICIPATION PLAN
(Full title of the plan)
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BRIAN L. SCHORR
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
TRIARC COMPANIES, INC.
280 PARK AVENUE
NEW YORK, NEW YORK 10017
(212) 451-3045
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPY TO:
NEALE M. ALBERT
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3341
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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
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<S> <C> <C> <C> <C>
Class A common stock, par value $.10 per share 500,000 shares $25.28(1) $12,640,000(1) $3,728.80
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</TABLE>
(1) 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 April 7, 1998.
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<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectus being delivered by the Triarc
Companies, Inc. (the "Company") to participants in the Triarc Companies, Inc.
1997 Equity Participation Plan (the "Plan") as required by Rule 428 under the
Securities Act of 1933, as amended (the "Securities Act"), has been prepared in
accordance with the requirements of Form S-8 and relates to shares of Class A
common stock, par value $.10 per share, of the Company (the "Common Stock")
which have been reserved for issuance pursuant to 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 the Company (File
No. 1-2207) are incorporated by reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended December 28, 1997 filed with the Commission on March 26,
1998;
2. The Company's Current Reports on Form 8-K filed with the
Commission on March 26, 1998, March 16, 1998 and February 9, 1998 (as
amended by an amendment thereto filed with the Commission on March 6,
1998) and Current Reports on Form 8-K/A filed with the Commission on
February 4, 1998, February 3, 1998 and January 7, 1998;
3. The information required by items 10, 11, 12 and 13 of Form
10-K included in the Company's definitive Proxy Statement for the 1998
annual meeting of stockholders (except the information set forth in
the sections captioned "Executive Compensation--Report of the
Compensation Committee and Performance Compensation Subcommittee" and
"--Stock Price Performance Graph"); and
4. The description of the Common Stock set forth in the
Company's Registration Statement on Form 8-A filed pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on November 4, 1993, and any amendment or report filed for the
purpose of updating any such description.
In addition, all reports and documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and made a part hereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
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2
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 a party to any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit or proceeding (other than an action by or in the
right of the corporation, such as a derivative action) by reason of the fact
that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent for any corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise (an "Other Entity").
The Triarc Charter provides that its officers and directors, and any person
serving in any capacity at the request of the Company for an Other Entity shall
be entitled to such indemnification; however, the Board of Directors of the
Company (the "Triarc Board") may specifically grant such indemnification to
other persons in respect of service to the Company or an Other Entity. The
Triarc Charter specifies that any director or officer of the Company serving in
any capacity with a majority owned subsidiary or any employee benefit plan of
the Company or of any majority owned subsidiary shall be deemed to be doing so
at the request of the Company.
Under Section 145 of the DGCL, depending on the nature of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person so
indemnified acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his or her conduct was unlawful. In the case of a derivative action, no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation is successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred in connection therewith. However, if such
director or officer is not successful in the defense of any such action, suit or
proceeding, or in the defense of any claim, issue or matter therein, he or she
shall only be indemnified by the corporation as authorized in the specific case
upon a determination that indemnification is proper because he or she met the
applicable standard set forth above as determined by a majority of the
disinterested directors, by independent legal counsel or by the stockholders.
<PAGE>
3
The Triarc Charter provides that expenses are to be advanced prior to
the final disposition of a proceeding upon the receipt by the Company of an
undertaking, as required by the DGCL, that the director or officer or other
indemnified person will repay such advances if he or she is ultimately found not
to be entitled to indemnification under the DGCL.
The Triarc Charter permits a person entitled to indemnity to bring an
action in court to obtain such indemnity and provides that, in any such action,
the court will not be bound by a decision of the Triarc Board, independent
counsel or stockholders that such person is not entitled to indemnification.
Such person is also indemnified for any expenses incurred in connection with
successfully establishing his or her right to indemnification in any such
proceeding. The Triarc Charter expressly provides that the right to
indemnification thereunder is a contract right and, therefore, cannot be
retroactively eliminated by a later stockholder vote, and is not an exclusive
right and, therefore, the Company may provide other indemnification, if
appropriate.
The Company also enters into indemnification agreements with its
directors and officers indemnifying them against liability they may incur in
their capacity as such. The indemnification agreements do not provide
indemnification to the extent that the indemnitee is indemnified by the Company
under the Triarc Charter, its bylaws, its directors' and officers' liability
insurance, or otherwise. Additionally, the indemnification agreements do not
provide indemnification (i) for the return by the indemnitee of any illegal
remuneration paid to him or her; (ii) for any profits payable by the indemnitee
to the Company pursuant to Section 16(b) of the Exchange Act; (iii) for any
liability resulting from the indemnitee's fraudulent, dishonest or willful
misconduct; (iv) for any amount the payment of which is not permitted by
applicable law; (v) for any liability resulting from conduct producing unlawful
personal benefit; or (vi) if a final court adjudication determines such
indemnification is not lawful.
Determinations as to whether an indemnitee is entitled to be paid under
the indemnification agreements may be made by the majority vote of a quorum of
disinterested directors, independent legal counsel selected by the Triarc Board,
a majority of disinterested Company stockholders or by a final adjudication of a
court of competent jurisdiction. In the event that the Company undergoes a
"Change of Control" (as defined in the indemnification agreements) all such
determinations shall be made by special independent counsel selected by the
indemnitee and approved by the Company, which approval may not be unreasonably
withheld. In certain circumstances, an indemnitee may require the Company to
establish a trust fund to assure that funds will be available to pay any amounts
which may be due such indemnitee under an indemnification agreement.
As permitted by Section 102(b)(7) of the DGCL, the Triarc Charter
includes a provision which eliminates the personal liability of a director to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, other than liability (i) for the breach of a director's duty
of loyalty to the Company and its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL (relating to unlawful payment of a
dividend and unlawful stock purchase and redemption) or (iv) for any transaction
from which the director derived any improper personal benefit.
Finally, the Triarc Charter authorizes the Company, as permitted by the
DGCL, to purchase directors' and officers' liability insurance. The Company
carries directors' and officers' liability insurance covering losses up to
$30,000,000.
<PAGE>
4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibits
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4.1 Certificate of Incorporation of the Company, as 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. 1997 Equity Participation Plan.
4.4* Form of Non-Incentive Stock Option Agreement.
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel
to the Company, regarding the legality of the 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.
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, 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.
<PAGE>
5
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
6
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 April 14, 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, this Registration
Statement has been signed below on April 14, 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. Executive Vice President and Chief Financial
----------------------- Officer (Principal Financial Officer)
John L. Barnes, Jr.
<PAGE>
7
SIGNATURE TITLES
/s/ Fred H. Schaefer Vice President and Chief Accounting Officer
-------------------- (Principal Accounting Officer)
Fred H. Schaefer
/s/ Hugh L. Carey Director
-----------------
Hugh L. Carey
/s/ Clive Chajet Director
----------------
Clive Chajet
/s/ Stanley R. Jaffe Director
--------------------
Stanley R. Jaffe
/s/ Joseph A. Levato Director
--------------------
Joseph A. Levato
/s/ David E. Schwab II Director
----------------------
David E. Schwab II
/s/ Raymond S. Troubh Director
---------------------
Raymond S. Troubh
/s/ Gerald Tsai, Jr. Director
--------------------
Gerald Tsai, Jr.
<PAGE>
8
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. 1997 Equity Participation Plan.
4.4* Form of Non-Incentive Stock Option Agreement.
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to
the Company, regarding the legality of the 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.
1997 EQUITY PARTICIPATION PLAN
1. PURPOSE
The purpose of the 1997 Equity Participation Plan (the "Plan") of
Triarc Companies, Inc. (the "Company") 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 (the "Capital Stock") by key employees of,
and key consultants to, the Company and its subsidiaries and affiliates who are
not "directors," "executive officers" or "officers" of the Company as such terms
are defined in either the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder, the rules of the New York Stock Exchange, Inc. or the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder
("Eligible Participants"), and 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 Plan provides for
granting such persons options ("Options") for the purchase of shares of Capital
Stock (the "Shares").
2. ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the
Board of Directors of the Company or such other committee or subcommittee of the
Board of Directors of the Company as may be designated by the Board of Directors
of the Company to administer the Plan (the "Committee"). The members of the
Committee may be changed at any time and from time to time in the discretion of
the Board of Directors of the Company. Subject to the limitations and conditions
hereinafter set forth, the Committee shall have authority to grant Options
hereunder, to determine the number of Shares for which each Option shall be
granted and the Option price or prices and to determine any conditions
pertaining to the exercise or to the vesting of each Option. The Committee shall
have full power to construe and interpret the Plan and any Plan agreement
executed pursuant to the Plan to establish and amend rules for its
administration, and to establish in its discretion terms and conditions
applicable to the exercise of Options. The determination of the Committee on all
matters relating to the Plan or any Plan agreement shall be conclusive. No
member of the Committee shall be liable for any action or determination made in
good faith with respect to the Plan or any award hereunder.
3. SHARES SUBJECT TO THE PLAN
The Shares to be transferred or sold pursuant to the exercise of
Options granted under the Plan shall be authorized Shares, and may be issued
Shares reacquired by the Company and held in
<PAGE>
its treasury or may be authorized but unissued Shares. Subject to the provisions
of Section 11 hereof (relating to adjustments in the number and classes or
series of Capital Stock to be delivered pursuant to the Plan), the maximum
aggregate number of Shares to be delivered on the exercise of Options shall be
500,000 and all such shares shall be shares of the Company's Class A Common
Stock, par value $0.10 per share (the "Class A Common Stock").
If an Option expires or terminates for any reason during the term of
the Plan and prior to the exercise in full of such Option, the number of Shares
previously subject to but not delivered under such Option shall be available for
the grant of Options thereafter.
4. ELIGIBILITY
Options may be granted from time to time to selected Eligible
Participants of the Company or any subsidiary or affiliate, as defined in this
Section 4. From time to time, the Committee shall designate from such Eligible
Participants those who will be granted Options and in connection therewith, the
number of Shares to be covered by each grant of Options. Persons granted Options
are referred to hereinafter as "optionees." Nothing in the Plan, or in any grant
of Options pursuant to the Plan, shall confer on any person any right to
continue in the employ of the Company or any of its subsidiaries, nor in any way
interfere with the right of the Company or any of its subsidiaries to terminate
the person's employment at any time.
The term "subsidiary" shall mean, at the time of reference, any
corporation organized or acquired (other than the Company) in an unbroken chain
of corporations beginning with the Company if, at the time of reference, each of
the corporations (including the Company) other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
The term "affiliate" shall mean any person or entity which, at the time of
reference, directly, or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with, the Company.
PROVISIONS RELATING TO OPTIONS
5. CHARACTER OF OPTIONS
Options granted hereunder shall not be incentive stock Options as such
term is defined in Section 422 of the Internal Revenue Code of 1986, as amended
from time to time (the "Code"). Options granted hereunder shall be
"non-qualified" stock options subject to the provisions of Section 83 of the
Code.
If an Option granted under the Plan is exercised by an optionee, then,
at the discretion of the Committee, the optionee may receive a replacement or
reload Option hereunder to purchase a number of Shares equal to the number of
Shares utilized to pay the exercise price and/or withholding taxes on the Option
exercise, with an exercise price equal to the "fair market value" (as defined in
<PAGE>
Section 7 of the Plan) of a Share on the date such replacement or reload Option
is granted, and, unless the Committee determines otherwise, with all other terms
and conditions (including the date or dates on which the Option shall become
exercisable and the term of the Option) identical to the terms and conditions of
the Option with respect to which the reload Option is granted.
6. STOCK OPTION AGREEMENT
Each Option granted under the Plan shall be evidenced by a written
stock Option agreement, which shall be executed by the Company and by the person
to whom the Option is granted. The agreement shall contain such terms and
provisions, not inconsistent with the Plan, as shall be determined by the
Committee.
7. OPTION EXERCISE PRICE
The price per Share to be paid by the optionee on the date an Option is
exercised shall not be less than 50 percent of the fair market value of one
Share on the date the Option is granted.
For purposes of this Plan, the "fair market value" as of any date in
respect of any Shares of Common Stock shall mean either (i) the closing price
per share of Common Stock on such date or (ii) the average of the high and low
sales prices of a share of Common Stock on such date, as determined by the
Committee in its sole discretion. The closing price for such day shall be (a) as
reported on the composite transactions tape for the principal exchange on which
the Common Stock is listed or admitted to trading (the "Composite Tape"), or if
the Common Stock is not reported on the Composite Tape or if the Composite Tape
is not in use, the last reported sales price regular way on the principal
national securities exchange on which such Common Stock shall be listed or
admitted to trading (which shall be the national securities exchange on which
the greatest number of such shares of Common Stock has been traded during the 30
consecutive trading days commencing 45 trading days before such date), or, in
either case, if there is no transaction on any such day, the average of the bid
and asked prices regular way on such day, or (b) if such Common Stock is not
listed on any national securities exchange, the closing price, if reported, or,
if the closing price is not reported, the average of the closing bid and asked
prices, as reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"). If on any such date the Common Stock is not quoted
by any such exchange or NASDAQ, the fair market value of the Common Stock on
such date shall be determined by the Committee in its sole discretion. In no
event shall the fair market value of any share be less than its par value.
8. OPTION TERM
The period after which Options granted under the Plan may not be
exercised shall be determined by the Committee with respect to each Option
granted, but may not exceed fifteen years from the date on which the Option is
granted, subject to the third paragraph of Section 9 hereof.
9. EXERCISE OF OPTIONS
<PAGE>
The time or times at which or during which Options granted under the
Plan may be exercised, and any conditions pertaining to such exercise or to the
vesting in the optionee of the right to exercise Options, shall be determined by
the Committee in its sole discretion. Subsequent to the grant of an Option which
is not immediately exercisable in full, the Committee, at any time before
complete termination of such Option, may accelerate or extend the time or times
at which such Option may be exercised in whole or in part.
No Option granted under the Plan shall be assignable or otherwise
transferable by the optionee, either voluntarily or involuntarily, except by
will or the laws of descent and distribution and an Option shall be exercisable
during the optionee's lifetime only by the optionee.
The unexercised portion of any Option granted under the Plan shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
(a) the expiration of the period of time determined by the Committee
upon the grant of such Option; provided that such period shall not
exceed fifteen years from the date on which such Option was granted;
(b) the termination of the optionee's employment by, or services to,
the Company and its subsidiaries if such termination constitutes or is
attributable to a breach by the optionee of an employment or consulting
agreement with the Company or any of its subsidiaries, or if the
optionee is discharged or if his or her services are terminated for
cause; or
(c) the expiration of such period of time or the occurrence of such
event or events as the Committee in its discretion may provide upon the
granting thereof.
The Committee and the Board of Directors shall have the right to
determine what constitutes cause for discharge or termination of services,
whether the optionee has been discharged or his or her services terminated for
cause and the date of such discharge or termination of services, and such
determination of the Committee or the Board of Directors shall be final and
conclusive.
In the event of the death of an optionee, Options exercisable by the
optionee at the time of his or her death may be exercised within one year
thereafter by the person or persons to whom the optionee's rights under the
Options shall pass by will or by the applicable law of descent and distribution.
However, in no event may any Option be exercised by anyone after the earlier of
(a) the final date upon which the optionee could have exercised it had the
optionee continued in the employment of the Company or its subsidiaries to such
date, or (b) one year after the optionee's death.
An Option may be exercised only by a notice in writing complying in all
respects with the applicable stock Option agreement. Such notice may instruct
the Company to deliver Shares due
<PAGE>
upon the exercise of the Option to any registered broker or dealer approved by
the Company (an "approved broker") in lieu of delivery to the optionee. Such
instructions shall designate the account into which the Shares are to be
deposited. The optionee may tender such notice, properly executed by the
optionee, together with the aforementioned delivery instructions, to an approved
broker. The purchase price of the Shares as to which an Option is exercised
shall 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
(at their fair market value on the date of exercise), or by a combination of
cash, check and unrestricted Shares.
Payment in accordance with this Section 9 may be deemed to be
satisfied, if and to the extent provided in the applicable Option agreement, by
delivery to the Company of an assignment of a sufficient amount of the proceeds
from the sale of Shares acquired upon exercise to pay for all of the Shares
acquired upon exercise and an authorization to the broker or selling agent to
pay that amount to the Company, which sale shall be made at the grantee's
direction at the time of exercise, provided that the Committee may require the
grantee to furnish an opinion of counsel acceptable to the Committee to the
effect that such delivery would not result in the grantee incurring any
liability under Section 16 of the Securities Exchange Act of 1934, as amended,
and does not require the consent, clearance or approval of any governmental or
regulatory body (including any securities exchange or similar self-regulatory
organization).
Wherever in this Plan or any Option agreement an optionee is permitted
to pay the exercise price of an Option or taxes relating to the exercise of an
Option by delivering Shares, the optionee may, subject to procedures
satisfactory to the Committee, satisfy such delivery requirement by presenting
proof of beneficial ownership of such Shares, in which case the Company shall
treat the Option as exercised without further payment and shall withhold such
number of Shares from the Shares acquired by the exercise of the Option (or if
the Option is paid in cash, cash in an amount equal to the fair market value of
such shares on the date of exercise).
The obligation of the Company to deliver Shares upon such exercise
shall be subject to all applicable laws, rules and regulations, and to such
approvals by governmental agencies as may be deemed appropriate by the
Committee, including, among others, such steps as counsel for the Company shall
deem necessary or appropriate to comply with requirements of relevant securities
laws. Such obligation shall also be subject to the condition that the Shares
reserved for issuance upon the exercise of Options granted under the Plan shall
have been duly listed on any national securities exchange which then constitutes
the principal trading market for the Shares.
GENERAL PROVISIONS
10. SHAREHOLDER RIGHTS
No optionee shall have any of the rights of a shareholder with respect
to any Shares unless and until he or she has exercised his or her Option with
respect to such Shares and has paid the full purchase price therefor.
<PAGE>
11. CHANGES IN SHARES
In the event of (i) any split, reverse split, combination of shares,
reclassification, recapitalization or similar event which involves, affects or
is made with regard to any class or series of Capital Stock which may be
delivered pursuant to the Plan ("Plan Shares"), (ii) any dividend or
distribution on Plan Shares payable in Capital Stock, or (iii) a merger,
consolidation or other reorganization as a result of which Plan Shares shall be
increased, reduced or otherwise changed or affected, then in each such event the
Committee shall, to the extent it deems it to be consistent with such event and
necessary or equitable to carry out the purposes of the Plan, appropriately
adjust (a) the maximum number of shares of Capital Stock and the classes or
series of such Capital Stock which may be delivered pursuant to the Plan, (b)
the number of shares of Capital Stock and the classes or series of Capital Stock
subject to outstanding Options, (c) the Option price per share of all Capital
Stock subject to outstanding Options, and (d) any other provisions of the Plan,
provided, however, that (i) any adjustments made in accordance with clauses (b)
and (c) shall make any such outstanding Option as nearly as practicable,
equivalent to such Option immediately prior to such change and (ii) no such
adjustment shall give any optionee any additional benefits under any outstanding
Option.
12. REORGANIZATION
In the event that the Company is merged or consolidated with another
corporation, or in the event that all or substantially all of the assets of the
Company are acquired by another corporation, or in the event of a reorganization
or liquidation of the Company (each such event being hereinafter referred to as
a "Reorganization Event") or in the event that the Board of Directors shall
propose that the Company enter into a Reorganization Event, then the Committee
may in its discretion take any or all of the following actions: (i) by written
notice to each optionee, provide that his or her Options will be terminated
unless exercised within thirty days (or such longer period as the Committee
shall determine in its sole discretion) after the date of such notice (without
acceleration of the exercisability of such Options); and (ii) advance the date
or dates upon which any or all outstanding Options shall be exercisable.
Whenever deemed appropriate by the Committee, any action referred to in
subparagraph (a) above may be made conditional upon the consummation of the
applicable Reorganization Event. The provisions of this Section 12 shall apply
notwithstanding any other provision of the Plan.
13. CHANGE OF CONTROL
Notwithstanding anything in the Plan to the contrary, 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 "Change of Control"), any
outstanding Options granted under the Plan shall be fully and immediately
exercisable. The acquisition of any portion of the combined voting power of the
Company by DWG Acquisition
<PAGE>
Group, L.P., Nelson Peltz or Peter May or by any person affiliated with such
persons (or the acquisition or disposition by any person or persons who receive
any award under Section 11 of the 1993 Plan) shall in no event constitute a
Change of Control.
14. WITHHOLDING TAXES
Whenever under the Plan shares of Common Stock are to be delivered
pursuant to an award, the Committee may require as a condition of delivery that
the optionee or grantee remit an amount sufficient to satisfy all federal, state
and other governmental holding tax requirements related thereto. Whenever cash
is to be paid under the Plan, the Company may, as a condition of its payment,
deduct therefrom, or from any salary or other payments due to the grantee, an
amount sufficient to satisfy all federal, state and other governmental
withholding tax requirements related thereto or to the delivery of any shares of
Common Stock under the Plan.
Without limiting the generality of the foregoing, (i) an optionee may
elect to satisfy all or part of the foregoing withholding requirements by
delivery of unrestricted shares of Common Stock owned by the optionee for at
least six months (or such other period as the Committee may determine) having a
fair market value (determined as of the date of such delivery by the optionee)
equal to all or part of the amount to be so withheld, provided that the
Committee may require, as a condition of accepting any such delivery, the
optionee to furnish an opinion of counsel acceptable to the Committee to the
effect that such delivery would not result in the optionee incurring any
liability under Section 16(b) of the Act; and (ii) the Committee may permit any
such delivery to be made by withholding shares of Common Stock from the Shares
otherwise issuable pursuant to the award giving rise to the tax withholding
obligation (in which event the date of delivery shall be deemed the date such
award was exercised).
15. AMENDMENT AND DISCONTINUANCE
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 stockholder
approval if such approval is necessary to comply with any tax or 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 optionee or any holder or beneficiary of any Option theretofore
granted shall not to that extent be effective without the consent of the
affected optionee, holder or beneficiary.
16. SECURITIES LAWS.
Notwithstanding any provision of the Plan or any Option agreement to
the contrary, the exercise of the Options and delivery of Shares in connection
therewith will be subject to completion of any registration or qualification (or
satisfaction of an available exemption from registration or qualification) of
the Options or the Shares under applicable state and federal securities or other
laws, or under any ruling or regulation of any governmental body or national
securities exchange that the
<PAGE>
Company, on the advice of counsel, determines to be necessary or advisable.
17. GOVERNING LAWS
The Plan shall be applied and construed in accordance with an governed
by the law of the State of Delaware, to the extent such law is not superseded by
or inconsistent with Federal law.
18. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective on December 11, 1997, the date of its
adoption by the Executive Committee of the Board of Directors. The term during
which Options may be granted under the Plan shall expire on December 11, 2002.
19. AMENDMENTS TO AGREEMENTS
Notwithstanding any other provision of the Plan, the Board of
Directors, or any authorized committee thereof, may amend the terms of any
agreement entered into in connection with any award granted pursuant to the
Plan, provided that the terms of such amendment are not inconsistent with the
terms of the Plan.
EXHIBIT 4.4
FORM OF
NON-INCENTIVE STOCK OPTION AGREEMENT
Under
TRIARC COMPANIES, INC.
1997 EQUITY PARTICIPATION PLAN
__________ Shares of Common Stock
TRIARC COMPANIES, INC. (the "Company"), pursuant to the terms
of its 1997 Equity Participation Plan (the "Plan"), hereby irrevocably grants to
__________ (the "Optionee") the right and option to purchase __________ shares
of Class A Common Stock, par value $.10 per share (the "Common Stock"), of the
Company upon and subject to the following terms and conditions:
1. The Option is not intended to qualify as an incentive stock
option under the provisions of Section 422 of the Internal Revenue Code of 1986
or its predecessor (the "Code").
2. ______________ is the date of grant of the Option ("Date of
Grant").
3. The purchase price of the shares of Common Stock subject to
the Option shall be $_____ per share.
4. The Option shall be exercisable as follows:
(a) One-third of the shares of Common Stock subject to
the Option shall be exercisable after ______________.
(b) One-third of the shares of Common Stock subject to
the Option shall be exercisable after ______________.
(c) One-third of the shares of Common Stock subject to
the Option shall be exercisable after ______________.
5. The unexercised portion of the Option shall automatically
and without notice terminate and become null and void at the expiration of ten
(10) years from the Date of Grant.
6. The unexercised portion of any such Option shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
<PAGE>
(a) ______________;
(b) the termination of the Optionee's services to the
Company and its subsidiaries if the Optionee's services are terminated for
"cause," that is for "cause" or any like term, as defined in any written
contract between the Company and the optionee; or if not so defined, (i) on
account of fraud, embezzlement or other unlawful or tortious conduct, whether or
not involving or against the Company or any affiliate, (ii) for violation of a
policy of the Company or any affiliate, (iii) for serious and willful acts or
misconduct detrimental to the business or reputation of the Company or any
affiliate; or
(c) the termination of Optionee's services to the
Company and its subsidiaries for reasons other than as provided in subsection
(b) or (d) of this Section 6; provided, however, that the portion of Options
granted to such optionee which were exercisable immediately prior to such
termination may be exercised until the earlier of (i) 90 days after his
termination of service or (ii) the date on which such Options terminate or
expire in accordance with the provisions of this Agreement (other than this
Section 6); or
(d) the termination of Optionee's services to the
Company and its subsidiaries by reason of his death, or if the Optionee's
services terminate in the manner described in subsection (c) of this Section 6
and he dies within such period for exercise provided for therein; provided,
however, that the portion of Options exercisable by him immediately prior to his
death shall be exercisable by the person to whom such Options pass under such
Optionee's will (or, if applicable, pursuant to the laws of descent and
distribution) until the earlier of (i) one year after the optionee's death or
(ii) the date on which such Options terminate or expire in accordance with the
provisions of this Agreement (other than this Section 6).
To the extent necessary to comply with Rule 16b-3 of the
Securities Exchange Act of 1934, as amended (the "Act") as in effect from time
to time or any successor rule thereafter ("Rule 16b-3"), the provisions of this
Section 6 shall not be amended more than once every six months other than to
comport with changes in the Code, the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder.
7. The Option shall be exercised by the Optionee (or by the
Optionee's executors or administrators, as provided in Section 10), subject to
the provisions of the Plan and of this Agreement, as to all or part of the
shares of Common Stock covered hereby, as to which the Option shall then be
exercisable, by the giving of written notice of such exercise to the Company at
its principal business office, accompanied by payment of the full purchase price
for the shares being purchased. Payment of such purchase price shall be made (a)
by cash or by check payable to the Company and/or (b) by delivery of
unrestricted shares of Common Stock having a fair market value (determined as of
the date the Option is exercised, but in no event at a price per share less than
the par value per share of the Common Stock delivered) equal to all or part of
the purchase price and, if applicable, of a check payable to the Company for any
remaining portion of the purchase price.
<PAGE>
Whenever the Optionee is permitted to pay the exercise price of an Option or
taxes relating to the exercise of an Option by delivering shares of Common
Stock, the Optionee may, subject to procedures satisfactory to the Committee (as
defined in the Plan), satisfy such delivery requirement by presenting proof of
beneficial ownership of such shares, in which case the Company shall treat the
Option as exercised without further payment and shall withhold such number of
shares from the shares acquired by the exercise of the Option (or if the Option
is paid in cash, cash in an amount equal to the fair market value of such shares
on the date of exercise). Payment in accordance with this Section 7 may be
satisfied by delivery to the Company of an assignment of sufficient amount of
the proceeds from the sale of shares of Common Stock acquired upon exercise of
the Option to pay for all of the shares of Common Stock acquired upon such
exercise and on authorization to the broker or selling agent to pay that amount
to the Company, which sale shall be made at the Optionee's direction at the time
of exercise, provided that the Committee may require Optionee to furnish an
opinion of counsel acceptable to the Committee to the effect that such delivery
would not result in the Optionee incurring any liability under Section 16 of the
Act and does not require the consent, clearance or approval of any governmental
or regulatory body (including any securities exchange or similar self-regulatory
organization).
The Company shall cause certificates for the shares so
purchased to be delivered to the Optionee or the Optionee's executors or
administrators, against payment of the purchase price, as soon as practicable
following the Company's receipt of the notice of exercise.
8. Neither the Optionee nor the Optionee's executors or
administrators shall have any of the rights of a stockholder of the Company with
respect to the shares subject to the Option until a certificate or certificates
for such shares shall have been issued upon the exercise of the option.
9. The Option shall not be transferable by the Optionee other
than to the Optionee's executors or administrators by will or the laws of
descent and distribution, and during the Optionee's lifetime shall be
exercisable only by the Optionee.
10. In the event of the Optionee's death, the Option shall
thereafter be exercisable (to the extent otherwise exercisable hereunder) only
by the Optionee's executors or administrators.
11. The terms and conditions of the Option, including the
number of shares and the class or series of capital stock which may be delivered
upon exercise of the Option and the purchase price per share, are subject to
adjustment as provided in Paragraph 19 of the Plan.
12. The Optionee, by the Optionee's acceptance hereof,
represents and warrants to the Company that the Optionee's purchase of shares of
capital stock upon the exercise hereof shall be for investment and not with a
view to distribution and agrees that the shares of capital stock will not be
disposed of except pursuant to an applicable effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), unless the
Company shall have received an opinion of counsel satisfactory to the Company
that such disposition is exempt from such
<PAGE>
registration under the Securities Act.
The Optionee agrees that the obligation of the Company to
issue shares upon the exercise of the Option shall also be subject, as
conditions precedent, to compliance with applicable provisions of the Act, state
securities or corporation laws, rules and regulations under any of the foregoing
and applicable requirements of any securities exchange upon which the Company's
securities shall be listed.
The Company may endorse an appropriate legend referring to the
foregoing representations and restrictions upon the certificate or certificates
representing any shares issued or transferred to the Optionee upon the exercise
of the Option.
13. The Option has been granted subject to the terms and
conditions of the Plan, a copy of which has been provided to the Optionee and
which the Optionee acknowledges having received and reviewed. Any conflict
between this Agreement and the Plan shall be decided in favor of the provisions
of the Plan. Terms used but not defined in this Agreement shall have the
meanings given to them in the Plan. This Agreement may not be amended in any
manner adverse to the Optionee except by a written agreement executed by the
Optionee and the Company.
14. Nothing herein shall confer upon the Optionee the right to
continue to serve as a director or officer to the Company or any of its
subsidiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed by an officer duly authorized thereto as of the ___ day of ________,
____.
TRIARC COMPANIES, INC.
By:___________________________
Name:
Title:
ACCEPTED AND AGREED TO:
------------------------------
EXHIBIT 5.1
[Paul, Weiss, Rifkind, Wharton & Garrison]
April 14, 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 under the Act, we have been requested by the Company to render
this opinion relating to 500,000 shares of Class A Common Stock, par value $.10
per share, of the Company (the "Option Shares") to be issued upon exercise of
options to be granted from time to time under the Triarc Companies, Inc. 1997
Equity Participation Plan (the "Plan").
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 Bylaws of the
Company, as amended on or prior to the date hereof, (iv) the Plan and (v) all
such
<PAGE>
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 foregoing 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 below, we have relied, as to certain
matters of fact, on representations, statements or certificates of the Company
and public officials.
Based upon the foregoing, and subject to the assumptions,
exceptions and qualifications stated in this letter, 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.
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 under the Act.
Very truly yours,
/s/ Paul, Weiss, Rifkind, Wharton & Garrison
--------------------------------------------
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 10, 1998 (March
24, 1998 as to Note 8), appearing in and incorporated by reference in the Annual
Report on Form 10-K of Triarc Companies, Inc. for the year ended December 28,
1997.
DELOITTE & TOUCHE LLP
New York, New York
April 13, 1998
