As filed with the Securities and Exchange Commission on July 1, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
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.)
---------------------------
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)
---------------------------
Triarc Companies, Inc. 1998 Equity Participation Plan
(Full title of the plan)
---------------------------
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)
---------------------------
COPY TO:
Neale M. Albert
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3341
---------------------------
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 5,000,000 shares $20.21875(1) $101,093,750(1) $28,104.06
====================================================================================================================================
</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 Companies, Inc. as reported on the New York Stock Exchange
composite tape on June 28, 1999.
================================================================================
<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectus being delivered by Triarc Companies, Inc.
(the "Company") to participants in the Triarc Companies, Inc. 1998 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 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 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 January 3, 1999 filed with the Commission on April 6, 1999
as amended by the amendment thereto filed with the Commission on Form
10-K/A (Amendment No. 2) on May 10, 1999;
2. The Company's Quarterly Report on Form 10-Q for the
quarterly period ended April 4, 1999 filed with the Commission on May
19, 1999;
3. The Company's Current Reports on Form 8-K filed with the
Commission on April 30, 1999, April 1, 1999, March 11, 1999, February
26, 1999, February 4, 1999 and February 3, 1999; 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.
<PAGE>
2
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The certificate of incorporation of the Company, as amended to date
(the "Triarc Charter"), provides indemnification to the extent not prohibited by
Delaware law (including as such law may be amended in the future to be more
favorable to directors and officers). Section 145 of the General Corporation Law
of the State of Delaware (the "DGCL") provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit or proceeding (other than an action by or in the
right of the corporation, such as a derivative action) by reason of the fact
that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent for any corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise (an "Other Entity").
The Triarc Charter provides that its officers and directors, and any person
serving in any capacity at the request of the Company for an Other Entity shall
be entitled to such indemnification; however, the Board of Directors of the
Company (the "Triarc Board") may specifically grant such indemnification to
other persons in respect of service to the Company or an Other Entity. The
Triarc Charter specifies that any director or officer of the Company serving in
any capacity with a majority owned subsidiary or any employee benefit plan of
the Company or of any majority owned subsidiary shall be deemed to be doing so
at the request of the Company.
Under Section 145 of the DGCL, depending on the nature of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person so
indemnified acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his or her conduct was unlawful. In the case of a derivative action, no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation is successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred in connection therewith. However, if such
director or officer is not successful in the defense of any such action, suit or
proceeding, or in the defense of any claim, issue or matter therein, he or she
shall only be indemnified by the corporation as authorized in the
<PAGE>
3
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 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.
<PAGE>
4
Finally, the Triarc Charter authorizes the Company, as permitted by the
DGCL, to purchase directors' and officers' liability insurance. The Company
carries directors' and officers' liability insurance covering losses up to
specified amounts.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibits
4.1 Certificate of Incorporation of the Company, as currently in effect,
incorporated herein by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-4 filed with the Commission on October
22, 1997 (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 filed with the Commission
on November 5, 1998 (SEC file No. 1-2207).
4.3 Triarc Companies, Inc. 1998 Equity Participation Plan, incorporated
herein by reference to Exhibit 10.1 to the Company's Current Report on
Form 8-K filed with the Commission on May 13, 1999 (SEC file No.
1-2207).
4.4 Form of Non-Incentive Stock Option Agreement, incorporated herein by
reference to Exhibit 10.2 to the Company's Current Report on Form 8-K
filed with the Commission on May 13, 1999 (SEC file No. 1-2207).
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).
24.1* Power of Attorney (included on page 6 of this Registration Statement).
- ---------------------
* 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
<PAGE>
5
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 regis tration 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, 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 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 June 30, 1999.
TRIARC COMPANIES, INC.
(Registrant)
By: /s/ Nelson Peltz
--------------------
Nelson Peltz
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The officers and directors of Triarc Companies, Inc. whose signatures
appear below hereby constitute and appoint Nelson Peltz and Peter W. May, and
each of them (with full power to each of them to act alone), 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 June 30, 1999 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/ Joseph A. Levato Director
- --------------------
Joseph A. Levato
/s/ David E. Schwab II Director
- ----------------------
David E. Schwab II
/s/ Jeffrey S. Silverman Director
- ------------------------
Jeffrey S. Silverman
/s/ Raymond S. Troubh Director
- ---------------------
Raymond S. Troubh
/s/ Gerald Tsai, Jr. Director
- --------------------
Gerald Tsai, Jr.
<PAGE>
8
INDEX TO EXHIBITS
Exhibits
- --------
4.1 Certificate of Incorporation of the Company, as currently in effect,
incorporated herein by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-4 filed with the Commission on October
22, 1997 (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 filed with the Commission
on November 5, 1998 (SEC file No. 1- 2207).
4.3 Triarc Companies, Inc. 1998 Equity Participation Plan, incorporated
herein by reference to Exhibit 10.1 to the Company's Current Report on
Form 8-K filed with the Commission on May 13, 1999 (SEC file No.
1-2207).
4.4 Form of Non-Incentive Stock Option Agreement, incorporated herein by
reference to Exhibit 10.2 to the Company's Current Report on Form 8-K
filed with the Commission on May 13, 1999 (SEC file No. 1-2207).
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).
24.1* Power of Attorney (included on page 6 of this Registration Statement).
- ---------------------
* Filed herewith.
EXHIBIT 5.1
Paul, Weiss, Rifkind, Wharton & Garrison
June 30, 1999
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")
in accordance with 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 5,000,000 shares of Class A Common Stock, par
value $.10 per share, of the Company (the "Shares") to be issued upon exercise
of options or tandem stock appreciation rights, or as restricted shares to be
granted, under the Triarc Companies, Inc. 1998 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 before today's date, (iii) the Bylaws of the Company, as amended
on or before today's date, (iv) the Plan and (v) those corporate records,
agreements and other instruments of the Company, and all other certificates,
agreements and documents, that we have considered relevant and necessary as a
basis for the opinion expressed in this letter.
In our examination of the above 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 these latter documents. In expressing our opinion
below, we have relied, as to
<PAGE>
Triarc Companies, Inc. 2
specific matters of fact, on representations, statements or certificates of the
Company and public officials.
Based upon the above, and subject to the stated 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 consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not 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,
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 26, 1999 (April 5,
1999 as to Note 27 to the consolidated financial statements), appearing in the
Annual Report on Form 10-K of Triarc Companies, Inc. for the year ended January
3, 1999.
DELOITTE & TOUCHE LLP
New York, New York
June 30, 1999
