Registration No. 333-48082
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO FORM S-3
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 (I.R.S. Employer
Incorporation Or Organization) Identification Number)
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)
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 Of Process)
Copies to
Paul D. Ginsberg, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to Be Amount to Offering Price Per Aggregate Offering Amount of
Registered Be Registered (1) Unit (2) Price (3) Registration Fee (4)
---------- ----------------- -------- --------- --------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.10
par value.................. 3,407,400 $24.09 $82,084,266 $21,671
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of shares to
be offered to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Based on the average high and low trading price of the common stock, as
reported on the New York Stock Exchange, on October 11, 2000.
(3) Estimated pursuant to Rule 457(c) solely for the purpose of computing
the registration fee.
(4) Previously paid.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this preliminary prospectus is not complete and may be
changed. No one may deliver these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell nor does it seek an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, Dated November 13, 2000.
3,407,400 SHARES
TRIARC COMPANIES, INC.
CLASS A COMMON STOCK
All of the shares of Class A common stock offered by this prospectus
are being delivered from time to time to the holders of Zero Coupon Convertible
Subordinated Debentures Due 2018 upon conversion by those holders of their
convertible subordinated debentures.
We originally issued the convertible subordinated debentures pursuant
to an indenture between us and The Bank of New York, as trustee, dated February
9, 1998. In connection with the sale of our subsidiaries Snapple Beverage Group,
Inc. and Royal Crown Company, Inc. to Cadbury Schweppes plc, Cadbury has agreed
to assume, either directly or through its subsidiaries, our obligations under
the convertible subordinated debentures and the indenture. Nevertheless,
following this assumption, the convertible subordinated debentures remain
convertible into our Class A common stock.
The conversion rate is currently 9.465 shares per $1,000 principal
amount at maturity of convertible subordinated debenture converted. The
conversion rate is subject to adjustment to prevent dilution resulting from
stock splits, stock dividends or similar transactions as provided in the
indenture.
Our Class A common stock is quoted on the New York Stock Exchange under
the symbol "TRY." On November 9, 2000, the last reported sale price of our Class
A common stock on the New York Stock Exchange was $24.81 per share.
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INVESTING IN OUR CLASS A COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 5.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
November , 2000
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TABLE OF CONTENTS
PROSPECTUS
PAGE
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Summary ......................................................................3
Risk Factors...................................................................5
Special Note Regarding Forward-Looking Statements.............................12
Selling Securityholders.......................................................14
Use of Proceeds...............................................................14
Plan of Distribution..........................................................14
Certain Federal Income Tax Considerations.....................................15
Legal Matters.................................................................17
Experts.......................................................................17
Incorporation of Information We File with the SEC.............................17
Available Information.........................................................18
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You should only rely on the information contained in this prospectus.
We have not authorized anyone to provide you with information different from
that contained in this prospectus. Neither we nor Cadbury is offering to
deliver, or seeking offers to deliver, shares of Class A common stock in any
jurisdiction where offers and deliveries are not permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any delivery of our
Class A common stock.
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SUMMARY
THE COMPANY
We are a holding Company. On October 25, 2000, we sold Snapple Beverage
Group, Inc., our premium beverage subsidiary, and Royal Crown Company, Inc., our
soft drink concentrates subsidiary, to Cadbury Schweppes plc for a total of
approximately $901 million in cash plus the assumption of approximately $425
million of debt. In terms of the business segments identified in our audited
financial statements and Annual Report on Form 10-K for the fiscal year ended
January 2, 2000, the businesses sold to Cadbury include our Premium Beverages
and Soft Drink Concentrates business segments. Following the sale, we continue
to operate the Restaurant Franchising business segment through our subsidiary,
Arby's, Inc., which does business as the Triarc Restaurant Group.
Through the Arby's restaurant franchising business, we participate in
the quick service restaurant segment of the domestic restaurant industry. Arby's
offers various slow-roasted roast beef sandwiches and a selected menu of
chicken, turkey, ham and submarine sandwiches, side-dishes and salads. Arby's
also currently offers franchisees the opportunity to multi-brand at Arby's
locations with T.J. Cinnamons products, which are primarily gourmet cinnamon
rolls, gourmet coffees and other related products. Arby's also offers
franchisees the opportunity to multi-brand with Pasta Connection products, which
are pasta dishes with a variety of different sauces. As of July 2, 2000, the
Arby's restaurant system consisted of 3,256 franchised restaurants, of which
3,096 operate within the United States and 160 operate outside the United
States. Of the domestic restaurants, approximately 337 are multi-branded
locations that sell T.J. Cinnamons products and 64 are multi-branded locations
that sell Pasta Connection products. Currently all of the Arby's restaurants are
owned and operated by franchisees.
Upon completion of the sale of Snapple Beverage Group and Royal Crown,
we had cash, cash equivalents and investments, net of current cash tax
liabilities related to the sale, in excess of $400 million and total debt of
approximately $20 million. We are evaluating options for the use of the Snapple
Beverage Group and Royal Crown sale proceeds, including acquisitions, share
repurchases and investments.
Our principal executive offices are located at 280 Park Avenue, New
York, New York 10017 and our telephone number is (212) 451-3000.
THE OFFERING
In 1998 we issued $360,000,000 aggregate principal amount at maturity
of zero coupon convertible subordinated debentures due 2018. In connection with
its purchase of Snapple Beverage Group and Royal Crown, Cadbury has agreed to
assume the convertible subordinated debentures and Snapple's $300 million 10
1/4% senior subordinated notes due 2009. Cadbury has also agreed to call for
redemption the convertible subordinated debentures on February 9, 2003, the
first date on which the convertible subordinated debentures may be redeemed.
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Despite the assumption of the convertible subordinated debentures by
Cadbury and the release of Triarc from its obligations related to the
subordinated convertible debentures, the convertible subordinated debentures
will remain convertible into shares of our Class A common stock. We have agreed
to deliver to a custodian a sufficient number of shares of Class A common stock
to provide for the conversion of all outstanding convertible subordinated
debentures. We have also agreed to deliver to the custodian additional shares if
the conversion rate is adjusted to prevent dilution resulting from stock splits,
stock dividends or similar transactions or other securities or cash if the
convertible subordinated debentures become convertible into something other than
our Class A common stock. This prospectus relates to the delivery of shares of
our Class A Common Stock to holders of convertible subordinated debentures upon
conversion of their convertible subordinated debentures.
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RISK FACTORS
AN INVESTMENT IN OUR SHARES IS RISKY. YOU SHOULD CAREFULLY CONSIDER THE
FOLLOWING RISKS, TOGETHER WITH ALL OTHER INFORMATION INCLUDED IN, OR
INCORPORATED BY REFERENCE INTO, THIS PROSPECTUS IN EVALUATING OUR BUSINESS OR
MAKING ANY INVESTMENT DECISION.
RISKS RELATED TO OUR BUSINESS
WE WILL HAVE BROAD DISCRETION IN THE USE OF THE PROCEEDS OF THE
DISPOSITION OF SNAPPLE BEVERAGE GROUP AND ROYAL CROWN.
We have not designated any specific use for the proceeds we received
from Cadbury in connection with our sale of Snapple Beverage Group and Royal
Crown. We are evaluating options for the use of these proceeds, including
acquisitions, share repurchases and investments. We will have significant
flexibility in selecting the opportunities that we will pursue.
ACQUISITIONS ARE A KEY ELEMENT OF OUR BUSINESS STRATEGY FOR OPERATING
COMPANY SUBSIDIARIES, BUT WE CANNOT ASSURE YOU THAT WE WILL BE ABLE TO
IDENTIFY APPROPRIATE ACQUISITION TARGETS IN THE FUTURE AND THAT WE WILL
BE ABLE TO SUCCESSFULLY INTEGRATE ANY FUTURE ACQUISITIONS INTO OUR
EXISTING OPERATIONS.
In addition to reinvesting the proceeds of our sale of Snapple Beverage
Group and Royal Crown, a key element of our strategy is to continuously evaluate
acquisitions, investments and business combinations. Acquisitions involve
numerous risks, including difficulties assimilating new operations and products.
In addition, our acquisition program may require significant management time and
capital resources. We cannot assure you that we will have access to the capital
required to finance potential acquisitions on satisfactory terms, that any
acquisition would result in long-term benefits to us or that management would be
able to manage effectively the resulting business. Future acquisitions are
likely to result in the incurrence of additional indebtedness or the issuance of
additional equity securities.
WE BELIEVE THAT OUR SUCCESS HAS BEEN AND WILL CONTINUE TO BE DEPENDANT
TO A SIGNIFICANT EXTENT UPON THE EFFORTS AND ABILITIES OF OUR SENIOR MANAGEMENT
TEAM.
Our failure to retain members of our senior management team could
adversely affect our ability to build on the efforts undertaken by our current
management to increase the efficiency and profitability of our businesses. The
loss of Nelson Peltz, our Chairman and Chief Executive Officer, or Peter W. May,
our President and Chief Operating Officer, other senior members of our senior
management or the senior management of Arby's could adversely affect us.
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WE MAY HAVE TO TAKE ACTIONS THAT WE WOULD NOT OTHERWISE TAKE SO AS NOT
TO BE DEEMED AN "INVESTMENT COMPANY."
The Investment Company Act requires the registration of, and imposes
various restrictions on, companies that do not meet certain financial tests
regarding the composition of their assets and source of income. A company may be
deemed to be an investment company if it owns "investment securities" with a
value exceeding 40% of its total assets (excluding government securities and
cash items) or if more than 45% of its total assets consists of, or more than
45% of its income/loss is derived from, securities of companies it does not
control.
We intend to make acquisitions and other investments in a manner that
will satisfy these tests. As a result, we may forego investments that we might
otherwise make or retain or dispose of investments or assets that we might
otherwise sell or hold on to.
WE COULD HAVE LIABILITY UNDER ENVIRONMENTAL LAWS.
Our operations are, and those of our predecessor companies have been,
subject to federal, state and local environmental laws and regulations
concerning the discharge, storage, handling and disposal of hazardous or toxic
substances. These laws and regulations provide for significant fines, penalties
and liabilities, in certain cases without regard to whether the owner or
operator of the property knew of, or was responsible for, the release or
presence of such hazardous or toxic substances. In addition, third parties may
make claims against owners or operators of properties for personal injuries and
property damage associated with releases of hazardous or toxic substances.
Although we believe that we are in compliance in all material respects with all
applicable environmental laws and regulations, we cannot predict what
environmental legislation or regulations will be enacted in the future or how
existing or future laws or regulations will be administered or interpreted. We
cannot predict the amount of future expenditures which may be required in order
to comply with any environmental laws or regulations or to satisfy any such
claims.
RISKS RELATED TO ARBY'S
ARBY'S' REVENUES ARE DEPENDENT ON RESTAURANT REVENUES AND OPENINGS AND
THEIR DECLINE COULD ADVERSELY AFFECT ARBY'S' PAYMENTS TO US.
Arby's principal source of revenues are royalty fees received from its
franchisees. Accordingly, Arby's future revenues will be highly dependent on the
gross revenues of Arby's franchisees and the number of Arby's restaurants that
its franchisees operate. In addition, interruptions in the distribution of
supplies to our franchisees could adversely affect sales by our franchisees and
cause a decline in the royalty fees that we receive from them.
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COMPETITION AND OTHER FACTORS MAY CAUSE THE LEVEL OF GROSS REVENUES OF
ARBY'S RESTAURANTS TO FLUCTUATE AND NEGATIVELY AFFECT THE REVENUE WE
DERIVE FROM ARBY'S.
Competition among national brand franchisors and smaller chains in the
restaurant industry to grow their franchise systems is significant. Many of our
competitors have substantially greater financial, marketing, personnel and other
resources than we do. Arby's franchisees are generally in competition for
customers with franchisees of other national and regional fast food chains and
locally owned restaurants. We cannot assure you that the level of gross revenues
of Arby's franchisees, upon which our royalty fees are dependent, will continue.
THE NUMBER OF OPENINGS OF NEW ARBY'S RESTAURANTS MAY FALL BELOW
PREDICTIONS, THUS REDUCING ARBY'S CAPACITY TO MAKE PAYMENTS TO US.
Numerous factors beyond our control affect restaurant openings. These
factors include the ability of a potential restaurant owner to obtain financing,
locate an appropriate site for a restaurant and obtain all necessary state and
local construction, occupancy or other permits and approvals. Although as of
July 2, 2000, franchisees have signed commitments to open approximately 1,100
Arby's restaurants and have made or are required to make deposits of $10,000 per
restaurant, we cannot assure you that these commitments will result in open
restaurants.
ARBY'S FRANCHISE REVENUES DEPEND, TO A LARGE EXTENT, ON A SMALL NUMBER
OF LARGE FRANCHISEES AND A DECLINE IN THEIR REVENUE MAY INDIRECTLY
ADVERSELY AFFECT US.
During 1999, Arby's received approximately 26.8% of its royalties from
RTM Inc., our single largest franchisee, and its affiliates, which are
franchisees of approximately 700 Arby's restaurants, and received approximately
7% of its royalties from each of two other franchisees. Arby's franchise
royalties could decline from their present levels if any of these franchisees
suffered significant declines in their respective businesses.
In addition, RTM has assumed certain lease obligations and indebtedness
in connection with the restaurants that it acquired from Arby's. We remain
contingently liable if RTM fails to make payments on those leases and
indebtedness.
THE AMOUNT OF INDEBTEDNESS INCURRED BY OUR ARBY'S BUSINESS COULD
INCREASE.
Upon the completion of the sale of Snapple Beverage Group and Royal
Crown, our outstanding consolidated indebtedness was approximately $20 million.
However, we are reviewing our financial alternatives with respect to Arby's and
we may incur significant additional debt, which may have important consequences,
including:
o our ability to borrow additional amounts for working capital, capital
expenditures or other purposes for our Arby's business could be
limited;
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o a substantial portion of the cash flow from our Arby's operations would
be used to make debt service payments rather than to fund further
growth or make distributions to us; and
o increased leverage could limit our ability to capitalize on significant
business opportunities and our flexibility to react to changes in
general economic conditions, competitive pressures and changes in
government regulation.
RISKS RELATED TO OUR CORPORATE STRUCTURE
AS A HOLDING COMPANY, IN ADDITION TO OUR CASH, CASH EQUIVALENTS AND
SHORT TERM INVESTMENTS ON HAND, WE LARGELY DEPEND ON OUR SUBSIDIARIES
TO PROVIDE US WITH SUFFICIENT FUNDS TO MEET OUR OPERATING NEEDS, AND
ANY FAILURE BY THEM TO PROVIDE US WITH NECESSARY FUNDING COULD HARM OUR
LIQUIDITY.
Because we are a holding company, our ability to service debt and pay
dividends, including dividends on our common stock, is primarily dependent upon,
in addition to our cash, cash equivalents and short term investments on hand,
cash flows from our subsidiaries, including loans, cash dividends and
reimbursement by subsidiaries to us in connection with management services and
tax sharing agreements.
The ability of any of our subsidiaries to pay cash dividends and/or
make loans or advances to us is dependent upon the respective abilities of our
subsidiaries to achieve sufficient cash flows after satisfying their respective
cash requirements, including debt service, to enable the payment of such
dividends or the making of such loans or advances. The payment of dividends or
other distributions may also be limited by the terms of indebtedness incurred by
our subsidiaries.
In addition, our equity interests in our subsidiaries rank junior to
all of the respective indebtedness, whenever incurred, of such entities in the
event of their respective liquidation or dissolution.
THE ANTI-TAKEOVER PROVISIONS OF OUR CORPORATE CHARTER DOCUMENTS AND
DELAWARE LAW MAY DELAY OR PREVENT AN ACQUISITION OF US, WHICH MAY
PREVENT YOU FROM REALIZING A PREMIUM OVER THE MARKET PRICE OF OUR CLASS
A COMMON STOCK.
Our board of directors has the authority to issue up to 25,000,000
shares of preferred stock and to determine the rights, preferences and
privileges of those shares without any further vote or action by our
stockholders. Your rights as a holder of common stock may be adversely affected
by the rights of the holders of any preferred stock that may be issued in the
future. Additional provisions of our certificate of incorporation and bylaws
could have the effect of making it more difficult for a third party to acquire a
majority of our outstanding voting common stock. These provisions, in general
terms:
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o provide that the number of directors shall not be less than seven nor
more than 15, with the exact number to be determined from time to time
by a majority of the board of directors then in office;
o provide that vacancies on our board resulting from an increase in size,
removal of directors or otherwise may be filled only by a majority of
the remaining directors then in office; and
o require the affirmative vote of the holders of shares representing at
least 75% of the voting power of the issued and outstanding shares of
our capital stock entitled to vote generally in the election of
directors in order to enter into certain business combinations, unless
(i) such business combinations are approved by at least a majority of
the entire board, but only if a majority of the directors acting
favorably on the matter are continuing directors, or (ii) certain
minimum price, form of consideration and procedural requirements are
met.
We are also subject to the provisions of Section 203 of the Delaware
General Corporation Law which prohibits a publicly-held Delaware corporation
from engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in
a prescribed manner. For purposes of Section 203, a "business combination"
includes a merger, asset sale or other transaction resulting in a financial
benefit to the interested stockholder, and an "interested stockholder" is a
person who, either alone or together with affiliates and associates, owns (or
within a three (3) years prior, did own) 15.0% or more of the corporation's
voting stock.
OUR TWO LARGEST STOCKHOLDERS' OWNERSHIP OF OUR COMMON STOCK MAY HAVE
ADVERSE CONSEQUENCES TO YOU
Nelson Peltz, our Chief Executive Officer and a director, and Peter W.
May, our Chief Operating Officer and a director, as of October 31, 2000
collectively beneficially own approximately 37.4% of our voting common stock.
You should consider the following risks of this ownership:
o MESSRS. PELTZ AND MAY CAN EXERT SIGNIFICANT CONTROL OVER US
AND AS A RESULT OUR OTHER STOCKHOLDERS WILL HAVE A REDUCED
INFLUENCE OVER STOCKHOLDER DECISIONS
Messrs. Peltz and May have significant influence over
the election of directors to our board of directors. As a
result, they may be able to influence significantly our
actions and therefore the outcome of corporate actions
requiring our stockholders' approval.
o TRANSFERS OF COMMON STOCK BY MESSRS. PELTZ AND MAY COULD
ADVERSELY AFFECT YOUR RIGHTS AS STOCKHOLDERS AND THE
PREVAILING PRICE OF OUR CLASS A COMMON STOCK
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Because Messrs. Peltz and May can dispose of all or a portion of their
Class A common stock at some future date, they may transfer a large interest in
us without allowing you to participate or realize a premium for your shares of
Class A common stock. A sale of a large interest to a third party may adversely
affect the market price of our Class A common stock and our business and results
of operations because the change in control may result in a change in management
decisions and business policy.
RISKS RELATED TO OUR CLASS A COMMON STOCK AND THIS OFFERING
WE DO NOT EXPECT TO PAY DIVIDENDS
We have not paid a dividend on our Class A common stock in more than
five years. We currently intend to reinvest all of our earnings for use in our
business and to finance future growth. Accordingly, we do not anticipate paying
cash dividends on our Class A common stock in the foreseeable future. In
addition, the terms of future financings by us or any of our subsidiaries may
restrict our ability to pay dividends or may restrict our ability to receive
dividends from our subsidiaries, making it more difficult or impossible to pay
dividends to you.
WE EXPECT THE PRICE OF OUR CLASS A COMMON STOCK TO CONTINUE TO BE
VOLATILE AND MAY EXPOSE YOUR INVESTMENT TO LOSS.
The trading price for our Class A common stock has been and is likely
to continue to be highly volatile. The market prices for companies in the
restaurant business have historically been volatile. Factors that could
adversely affect our stock price include:
o success of our business strategy and acquisitions program;
o strategic actions by us or our competitors, such as acquisitions or
restructurings;
o actual or anticipated variations in our quarterly operating results;
o changes in financial estimates of, or any shortfall in, revenue or net
income or any increase in losses from levels expected by securities
analysts or investors;
o fluctuations in the valuation of companies perceived by investors to be
comparable to us; and
o synergies and integrations of our future acquisitions.
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SUBSTANTIAL SALES OF OUR CLASS A COMMON STOCK FOLLOWING THE OFFERING
COULD CAUSE THE MARKET PRICE OF OUR CLASS A COMMON STOCK TO DROP
SIGNIFICANTLY, REGARDLESS OF THE PERFORMANCE OF OUR BUSINESS.
The issue or sale of a substantial number of shares of common stock, or
the perception that sales could occur, could adversely affect the market price
of our Class A common stock and could impair our ability to raise capital
through the sale of additional equity securities.
At October 31, 2000, we had outstanding options and warrants to
purchase up to 3,479,611 shares of common stock which are currently exercisable
and options to purchase up to approximately 4,271,140 additional shares of Class
A common stock are exercisable over the next three years. The holders of these
options and warrants have an opportunity to profit from a rise in the market
price of our Class A common stock with a resulting dilution in the interests of
the other stockholders. The terms on which we may obtain additional financing
during the period when such options and warrants are exercisable may be
adversely affected by the existence of these options and warrants.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus and the documents we refer
you to, as well as written and oral statements made or incorporated by reference
from time to time by us and our representatives in reports, filings with the
SEC, press releases, conferences or otherwise, may be deemed to be
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. This
information is subject to the "safe harbor" provisions of those statutes.
Forward-looking statements include statements concerning Triarc's and
management's plans, objectives, goals, strategies and future operations and
performance and the assumptions underlying these forward-looking statements. We
use the words "anticipates," "estimates," "expects," "believes," "intends,"
"plans," "may," "will," "should," and the corresponding negations and similar
expressions to identify forward-looking statements. These statements include
information regarding:
o the evolution of competition, including product and pricing pressures;
o the success of our operating initiatives;
o our ability to attract and retain franchisees;
o our development and operating costs;
o the success of our advertising and promotional efforts;
o our capacity to create and maintain brand awareness;
o the existence or absence of adverse publicity;
o the market acceptance of our new product offerings;
o new product and concept development by our competitors;
o changing trends in customer tastes and demographic patterns;
o the success of multi-branding;
o the availability, location and terms of sites for restaurant
development by our franchisees;
o the ability of our franchisees to open new restaurants in accordance
with their development commitments, including the ability of
franchisees to finance restaurant development;
o the performance by Arby's material franchisees of their obligations
under their franchise agreements;
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o the success of our business strategy or development plans, including
acquisitions and other strategic investments;
o the quality of our management;
o the business abilities and judgment of our personnel and the
availability of qualified personnel;
o the availability, terms and deployment of capital and our ability to
meet our future capital needs;
o labor and employee benefit costs;
o the potential impact on royalty revenues and franchisees' store level
sales that could arise from interruptions in the distribution of food
and other products to franchisees;
o general economic, business and political conditions in the countries
and territories where we operate, including our ability to form
successful strategic business alliances with local participants;
o changes in, or our failure to comply with, government regulations,
including franchising law, accounting standards, environmental laws and
taxation requirements;
o the costs, uncertainties and other effects of legal and administrative
proceedings; and
o the impact of general economic conditions on consumer spending and
other risks and uncertainties affecting us and our competitors, all of
which are difficult or impossible to predict accurately and many of
which are beyond our control.
We base our forward-looking statements on our current expectations.
These statements involve a number of risks and uncertainties, including those
described in the context of the forward-looking statements, as well as those
presented in "Risk Factors." Actual results, performance and achievements may
differ materially from those expressed in or implied by these statements. We are
not obligated to update or revise any forward-looking statements, whether as a
result of new information, future events or otherwise. For additional
information with respect to these factors, see our Annual Report on Form 10-K
for the fiscal year ended January 2, 2000, as amended by our Form 10-K/A for the
fiscal year ended January 2, 2000. See "Available Information" and
"Incorporation of Information We File with the SEC."
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SELLING SECURITYHOLDERS
All of the shares of Class A common stock offered by this prospectus
will be delivered from time to time by Cadbury to holders of convertible
subordinated debentures upon conversion of the convertible subordinated
debentures.
USE OF PROCEEDS
Cadbury will not receive any cash proceeds from its delivery of our
shares as a result of conversions of the convertible subordinated debentures.
Nevertheless, as part of any conversion, for every 9.465 shares of Class A
common stock delivered pursuant to this prospectus, the aggregate outstanding
principal amount at maturity of the convertible subordinated debentures will be
reduced by $1,000. This offering is being made so that Cadbury may fulfill its
agreement to take all actions necessary to assume all of our obligations under
the indenture governing the convertible subordinated debentures. As a condition
to our release of our shares upon conversion of convertible subordinated
debentures, we will receive from Cadbury the accreted value of the converted
debentures, less any funds necessary to pay for any fractional shares of Class A
common stock issued in the conversion, as payment for the shares delivered in
connection with the conversion.
PLAN OF DISTRIBUTION
The shares of Class A common stock covered by this prospectus are
offered for delivery upon conversion of the convertible subordinated debentures.
At the date of this Prospectus, the conversion rate is 9.465 shares of Class A
common stock per $1,000 principal amount at maturity of debentures converted.
This conversion rate may be adjusted from time to time, to prevent dilution
resulting from stock splits, stock dividends or similar transactions as provided
in the indenture governing the convertible subordinated debentures.
We are registering these shares of Class A common stock pursuant to a
registration rights agreement that we entered into with Cadbury in connection
with the sale of Snapple Beverage Group and Royal Crown to Cadbury. We will pay
the expenses of registering the Class A common stock and will indemnify Cadbury
and its affiliates against liabilities under the Securities Act. The shares of
Class A common stock offered by this prospectus will, pursuant to a custody
agreement, be segregated and will be held for the benefit of holders of the
convertible subordinated debentures by American Stock Transfer & Trust Company
until holders of convertible subordinated debentures exercise their conversion
rights. The shares of Class A common stock offered by this prospectus will
continue to be treasury shares until the conversion of the convertible
subordinated debentures and no one (including Cadbury and American Stock
Transfer) will have any rights with respect to these shares of Class A common
stock, until the shares of Class A common stock are delivered in connection with
conversions of the convertible subordinated debentures.
The registration rights agreement provides that we may suspend
deliveries of Class A common stock through the use of this prospectus in the
event of a suspension of the effectiveness of the registration statement
relating to this prospectus or if material
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developments occur that are not reflected in this prospectus or a supplement or
amendment. A suspension could delay Cadbury's delivery of a copy of this
prospectus and Class A common stock upon conversion of the convertible
subordinated debentures. Under the registration rights agreement, suspensions
may not last for more than 30 days in any three- month period, or more than an
aggregate of 90 days in any 12-month period.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain United States federal income tax
consequences of the conversion of the convertible subordinated indentures into
shares of our Class A common stock, but does not purport to be a complete
analysis of all the potential tax considerations relating thereto. Further, this
discussion does not address the United States federal income tax consequences of
the purchase, ownership or disposition of the convertible subordinated
debentures or the Class A common stock into which such convertible subordinated
debentures may be converted. This summary is based on laws, regulations, rulings
and decisions now in effect, all of which are subject to change, possibly with
retroactive effect. This summary deals only with holders that hold the
convertible subordinated debentures and Class A common stock as capital assets
and does not address tax considerations applicable to investors that may be
subject to special tax rules such as banks, insurance companies, tax-exempt
organizations, dealers in securities or currencies, persons that will hold the
convertible subordinated debentures and the Class A common stock as part of an
integrated investment (including a "straddle") comprised of such convertible
subordinated debentures or Class A common stock and one or more other positions,
persons that have a "functional currency" other than the U.S. dollar or holders
of the convertible subordinated debentures that did not acquire the convertible
subordinated debentures in the initial distribution thereof at their original
issue price. In addition, this discussion does not consider the effect of any
estate, gift or other tax laws and generally does not address any other taxes
that might be applicable on the conversion of the convertible subordinated
debentures. Holders of the convertible subordinated debentures considering
converting such convertible subordinated debentures into Class A common stock
should consult their own tax advisors with respect to the application of the
United States federal income tax laws to their particular situations as well as
any tax consequences arising under the laws of any state, local or foreign
taxing jurisdiction.
As used herein, the term "United States holder" means the beneficial
owner of the convertible subordinated debentures or the Class A common stock
that is, for United States federal income tax purposes, (i) a citizen or
resident of the United States, (ii) a domestic corporation or other entity
taxable as a corporation or (iii) an estate or trust the income of which is
subject to United States federal income taxation, regardless of its source or
(iv) otherwise subject to United States federal income taxation on a net income
basis.
CONVERSION OF THE CONVERTIBLE SUBORDINATED DEBENTURES.
A United States holder of the convertible subordinated debentures
generally will recognize gain or loss, if any, equal to the difference between
the value of the Class A
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common stock received upon the conversion of the convertible subordinated
debentures and such holder's basis in the convertible subordinated debentures
immediately prior to such conversion. Such holder's basis in the Class A common
stock received on conversion of a convertible subordinated debenture will equal
the value of such Class A common stock at the time of conversion. The holding
period for the Class A common stock received on conversion of the convertible
subordinated debentures will not include the period during which such holder
held the convertible subordinated debentures, but will instead commence on the
date of such conversion.
BACKUP WITHHOLDING.
Under the backup withholding rules, a United States holder of the
convertible subordinated debentures may be subject to backup withholding at the
rate of 31% with respect to the Class A common stock received in the conversion
of such convertible subordinated debentures unless such holder is a corporation
or comes within other exempt categories and, when required, demonstrates this
fact or provides a taxpayer identification number and certifies that the
taxpayer identification number is correct and the taxpayer is not subject to
backup withholding for specified reasons, and otherwise complies with the
applicable requirements of the backup withholding rules.
Any amount withheld under these rules will be credited against the
convertible subordinated debenture's holder's federal income tax liability (and
any excess refunded) if you furnish the appropriate information to the United
States Internal Revenue Service.
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LEGAL MATTERS
Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York, will pass
upon the validity of the Class A common stock offered by this prospectus.
EXPERTS
Deloitte & Touche L.L.P., independent accountants, has audited the
consolidated financial statements and the related financial statement schedules
incorporated into this prospectus by reference to our Annual Report on Form 10-K
filed on April 3, 2000, as amended by the Amendment to our Annual Report on From
10K-A filed on April 28, 2000. Their report is also incorporated herein by
reference. We have incorporated the consolidated financial statements and the
related financial statement schedules by reference in reliance upon their report
given upon their authority as experts in accounting and auditing.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" into this prospectus
the information we file with it. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and any
later information that we file with the SEC will update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we make with the SEC under Section 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934 until this offering is completed:
o Our Annual Report on Form 10-K for the fiscal year ended January 2,
2000 as amended by our Form 10-K/A for the fiscal year ended January 2,
2000 (SEC file number 1- 2207);
o Our Quarterly Report on Form 10-Q for the quarter ended April 2, 2000
(SEC file number 1-2207);
o Our Quarterly Report on Form 10-Q for the quarter ended July 2, 2000
(SEC file number 1-2207);
o Our Current Report on Form 8-K filed on June 22, 2000 (SEC file number
1-2207);
o Our Current Report on Form 8-K filed on September 20, 2000 (SEC file
number 1- 2207);
o Our Current Report on Form 8-K filed on October 12, 2000 (SEC file
number 1-2207);
o Our Current Report on Form 8-K filed on October 30, 2000 (SEC file
number 1-2207);
o Our Current Report on Form 8-K filed on November 3, 2000 (SEC file
number 1-2207);
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o Our Current Report on Form 8-K filed on November 8, 2000 (SEC file
number 1-2207);
o Our Current Report on Form 8-K filed on November 9, 2000 (SEC file
number 1-2207); and
o The description of our common stock contained in our Registration
Statement on Form 8-A filed on November 4, 1993 pursuant to Section 12
of the Exchange Act and any amendment or report filed for the purpose
of updating such description (SEC file number 1-2207).
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone to provide you with
information that is different. If anyone provides you with different or
inconsistent information, you should not rely on it. Neither we nor Cadbury is
making an offer of securities in any jurisdiction where the offer or sale is not
permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document.
You may request a copy of any of the documents that are incorporated by
reference in this prospectus, at no cost, by writing or telephoning us as
follows: Triarc Companies, Inc., Investor Relations, 280 Park Avenue, New York,
NY 10017, telephone (212) 451-3000.
AVAILABLE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document we file by visiting the SEC's public reference
rooms in Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, 7 World Trade Center, Suite 1300, New York, New York 10048, and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. You may
obtain information regarding the operation of the public reference rooms by
calling the SEC at 1-800-SEC-0330. Our SEC filings are also available over the
Internet at the SEC's web site at http://www.sec.gov. You may also inspect our
SEC reports and other information at the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an estimate of the expenses to be
incurred by Triarc in connection with the issuance and distribution of the
securities being registered:
Amount to
be paid
-------
Registration Fee - SEC.................................................$21,671
Legal Fees and Expenses................................................ 20,000
Accounting Fees and Expenses........................................... 30,000
Miscellaneous.......................................................... 20,000
-------
Total..................................................................$91,671
=======
Triarc will pay all of the expenses set forth above.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Triarc's 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 Delaware General
Corporation Law (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 of another entity. The Charter provides
that Triarc's officers and directors, and any person serving in any capacity at
the request of Triarc for another entity, shall be entitled to such
indemnification; however, the Triarc Board may specifically grant such
indemnification to other persons in respect of service to Triarc or any other
entity. Triarc's Charter specifies that any director or officer of Triarc
serving in any capacity with a majority owned subsidiary or any employee benefit
plan of Triarc or of any majority owned subsidiary shall be deemed to be doing
so at the request of Triarc.
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 a 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 interest 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 court in which such action or suit was brought shall
determine upon application that,
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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.
Triarc's Charter provides that expenses are to be advanced prior to the
final disposition of a proceeding upon the receipt by Triarc 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.
Triarc's 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 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, Triarc may provide other indemnification, if appropriate.
Triarc 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 Triarc under its Charter or
Bylaws, by Triarc's directors' and officers' liability insurance, or by any
other person. 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 Triarc
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.
Determination 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 Triarc stockholders or by a final adjudication of a
court of competent jurisdiction. In the event that Triarc 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 Triarc, which consent may not be unreasonably withheld. In certain
circumstances, an indemnitee may require Triarc to establish a trust
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fund to assure that funds will be available to pay any amounts which may be due
such indemnitee under an indemnification agreement.
Pursuant to the registration rights agreement between Triarc and
Cadbury, Triarc has agreed to indemnify Cadbury and certain related persons for
certain liabilities, including liabilities arising under the Securities Act.
ITEM 16. EXHIBITS
The following is a list of Exhibits filed as part of the Registration Statement:
4.1 Indenture dated as of February 9, 1998 between Triarc
Companies, Inc. and The Bank of New York, as Trustee, relating
to the convertible subordinated debentures; incorporated
herein by reference to Exhibit 4.1 to Triarc's Current Report
on Form 8-K/A dated March 6, 1998 (SEC file no. 1-2207).
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in Exhibit 5.1).
24.1 Power of Attorney.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than 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.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 per cent change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) of this section do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 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 November 13, 2000.
TRIARC COMPANIES, INC.
By: /s/ John L. Barnes, Jr.
-----------------------------
John L. Barnes, Jr.
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on November 13, 2000.
*
----------------------------- Chairman and Chief Executive Officer
Nelson Peltz (Principal Executive Officer)
*
----------------------------- President and Chief Operating Officer
Peter W. May (Principal Operating Officer)
/s/ John L. Barnes, Jr.
----------------------------- Executive Vice President and Chief Financial
John L. Barnes, Jr. Officer (Principal Financial Officer)
*
----------------------------- Vice President and Chief Accounting Officer
Fred H. Schaefer (Principal Accounting Officer)
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*
----------------------------- Director
Hugh L. Carey
*
----------------------------- Director
Clive Chajet
*
----------------------------- Director
Joseph A. Levato
*
----------------------------- Director
David E. Schwab II
*
----------------------------- Director
Jeffrey S. Silverman
*
----------------------------- Director
Raymond S. Troubh
*
----------------------------- Director
Gerald Tsai, Jr.
*By /s/ John L. Barnes, Jr.
------------------------
John L. Barnes, Jr.
Attorney-in-fact
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EXHIBIT INDEX
Exhibit Description
4.1 Indenture dated as of February 9, 1998 between Triarc
Companies, Inc. and The Bank of New York, as Trustee,
relating to the convertible subordinated debentures;
incorporated herein by reference to Exhibit 4.` to
Triarc's Current Report on Form 8-K/A dated March 6,
1998 (SEC file no. 1-2207).
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1* Consent of Deloitte & Touche.
23.2* Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(included in Exhibit 5.1).
24.1** Power of Attorney.
-----------------------------
* Replaces previously filed exhibit.
** Previously filed.
