Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
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.)
____________________
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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REPLACEMENT STOCK OPTION AGREEMENT, DATED JULY 25, 2005, BETWEEN TRIARC
COMPANIES, INC. AND THOMAS A. GARRETT RELATING TO OPTIONS TO
PURCHASE 203,328 SHARES OF CLASS B COMMON STOCK, SERIES 1
REPLACEMENT STOCK OPTION AGREEMENT, DATED JULY 25, 2005, BETWEEN TRIARC
COMPANIES, INC. AND THOMAS A. GARRETT RELATING TO OPTIONS TO
PURCHASE 334,331 SHARES OF CLASS B COMMON STOCK, SERIES 1
REPLACEMENT STOCK OPTION AGREEMENT, DATED JULY 25, 2005, BETWEEN TRIARC
COMPANIES, INC. AND MICHAEL I. LIPPERT RELATING TO OPTIONS TO
PURCHASE 78,802 SHARES OF CLASS B COMMON STOCK, SERIES 1
REPLACEMENT STOCK OPTION AGREEMENT, DATED JULY 25, 2005, BETWEEN TRIARC
COMPANIES, INC. AND J. DAVID PIPES RELATING TO OPTIONS TO
PURCHASE 157,605 SHARES OF CLASS B COMMON STOCK, SERIES 1
(Full titles of the plans)
____________________
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)
____________________
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered(1) Offering Price Per Aggregate Offering Registration
Share Price Fee
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Class B Common Stock, Series 1, par value 203,328 shares(2) $4.4897 $912,882 $107(6)
$.10 per share
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Class B Common Stock, Series 1, par value 334,331 shares(3) $7.5664 $2,529,682 $298(6)
$.10 per share
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Class B Common Stock, Series 1, par value 78,802 shares(4) $15.5857 $1,228,184 $145(6)
$.10 per share
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Class B Common Stock, Series 1, par value 157,605 shares(5) $14.1848 $2,235,595 $263(6)
$.10 per share
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(1) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement shall be deemed to cover any additional securities to be offered
or issued from stock splits, stock dividends or similar transactions.
(2) Represents 203,328 shares of Class B common stock, Series 1 reserved for
issuance with an exercise price of $4.4897 pursuant to the Replacement
Stock Option Agreement, dated July 25, 2005, between Triarc Companies,
Inc. and Thomas A. Garrett. The registration fee for such shares was
calculated in accordance with Rule 457(h)(1) under the Securities Act of
1933, as amended, based on the exercise price of the options.
(3) Represents 334,331 shares of Class B common stock, Series 1 reserved for
issuance with an exercise price of $7.5664 pursuant to the Replacement
Stock Option Agreement, dated July 25, 2005, between Triarc Companies,
Inc. and Thomas A. Garrett. The registration fee for such shares was
calculated in accordance with Rule 457(h)(1) under the Securities Act of
1933, as amended, based on the exercise price of the options.
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(4) Represents 78,802 shares of Class B common stock, Series 1 reserved for
issuance with an exercise price of $15.5857 pursuant to the Replacement
Stock Option Agreement, dated July 25, 2005, between Triarc Companies,
Inc. and Michael I. Lippert. The registration fee for such shares was
calculated in accordance with Rule 457(h)(1) under the Securities Act of
1933, as amended, based on the exercise price of the options.
(5) Represents 157,605 shares of Class B common stock, Series 1 reserved for
issuance with an exercise price of $14.1848 pursuant to the Replacement
Stock Option Agreement, dated July 25, 2005, between Triarc Companies,
Inc. and J. David Pipes. The registration fee for such shares was
calculated in accordance with Rule 457(h)(1) under the Securities Act of
1933, as amended, based on the exercise price of the options.
(6) One payment in the amount of $813 has been submitted concurrently with
this filing in payment of the aggregate Registration Fee.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to shares of Class B
common stock, Series 1, par value $.10 per share (the "Class B Common Stock"),
of Triarc Companies, Inc. (the "Company") that have been reserved for issuance
pursuant to the Replacement Stock Option Agreements, dated July 25, 2005,
between Triarc Companies, Inc. and Thomas A. Garrett, the Replacement Stock
Option Agreement, dated July 25, 2005, between Triarc Companies, Inc. and
Michael I. Lippert and the Replacement Stock Option Agreement, dated July 25,
2005, between Triarc Companies, Inc. and J. David Pipes.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I will
be sent or given to the optionees as specified by Rule 428(b)(1). Those
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
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 are
incorporated by reference in this Registration Statement:
o Annual Report on Form 10-K for the fiscal year ended January 1,
2006, filed on April 3, 2006;
o Quarterly Reports on Form 10-Q for the fiscal quarter ended April
2, 2006, filed on May 12, 2006, the fiscal quarter ended July 2,
2006, filed on August 11, 2006, and the fiscal quarter ended
October 1, 2006, filed on November 13, 2006;
o Current Reports on Form 8-K, filed on January 5, 2006, January
27, 2006 (with respect to Item 8.01 and the exhibit filed
pursuant thereto only), February 3, 2006, February 6, 2006,
February 9, 2006, February 13, 2006, March 20, 2006, April 5,
2006, April 17, 2006, May 2, 2006, May 11, 2006, June 7, 2006,
August 11, 2006 (with respect to Item 8.01 and the exhibit filed
pursuant thereto only), September 20, 2006 and October 19, 2006,
October 25, 2006, November 13, 2006 (with respect to Item 8.01
and the exhibit filed pursuant thereto only), November 15, 2006,
November 16, 2006 and December 15, 2006; and
o The description of the Class B 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 August 11, 2003, and any amendment or
report filed for the purpose of updating any such description.
In addition, all reports and documents filed (but not documents or
portions of documents furnished) 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. Any statement
contained in a document incorporated or deemed to be incorporated by
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reference herein and to be a part hereof shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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
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.
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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
specified amounts.
In addition, the by-laws of the Company, as amended to date (the
"Triarc By-Laws"), also provides indemnification to its directors and officers
to the extent not prohibited by Delaware law.
The foregoing statements are subject to the detailed provisions of
Sections 145 and 102 of the DGCL, the Triarc Charter, the Triarc By-Laws and
the referenced indemnification agreements.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
EXHIBITS
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5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to
the Company, regarding the legality of the securities being
registered.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of BDO Seidman, LLP.
23.3* Consent of Ernst & Young LLP.
23.4* Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in
Exhibit 5.1).
24.1* Power of Attorney (included on signature page).
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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 prospectus required by
Section 10(a)(3) of the Securities Act;
(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 the 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% 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 (a)(i) and (a)(ii) above
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 us pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(b) 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.
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(c) To remove from registration by means of a
post-effective amendment any of the securities being registered hereby which
remain unsold at the termination of the offering.
(d) That, for the purpose of determining liability of
the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that in a
primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of
the undersigned registrant relating to the offering required
to be filed pursuant to Rule 424 (ss.230.424 of this
chapter);
(ii) any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned
registrant or used or referred to by the undersigned
registrant;
(iii) the portion of any other free writing
prospectus relating to the offering containing material
information about the undersigned registrant or its
securities provided by or on behalf of the undersigned
registrant; and
(iv) Any other communication that is an offer in
the offering made by the undersigned registrant to the
purchaser.
(e) 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering hereof.
(f) 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 foregoing provisions, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on December 21, 2006.
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 December 21, 2006 by the following persons
in the capacities indicated.
SIGNATURE TITLES
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/s/ Nelson Peltz Chairman and Chief Executive
-------------------------------------- Officer and Director
Nelson Peltz (Principal Executive Officer)
/s/ Peter W. May President and Chief Operating
-------------------------------------- Officer and Director
Peter W. May (Principal Operating Officer)
/s/ Francis T. McCarron Executive Vice President and Chief
-------------------------------------- Financial Officer
Francis T. McCarron (Principal Financial Officer)
/s/ Fred H. Schaefer Senior Vice President and Chief
-------------------------------------- Accounting Officer
Fred H. Schaefer (Principal Accounting Officer)
/s/ Hugh L. Carey
-------------------------------------- Director
Hugh L. Carey
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/s/ Clive Chajet
-------------------------------------- Director
Clive Chajet
/s/ Edward P. Garden
-------------------------------------- Vice Chairman and Director
Edward P. Garden
/s/ Joseph A. Levato
-------------------------------------- Director
Joseph A. Levato
/s/ Gregory H. Sachs
-------------------------------------- Director
Gregory H. Sachs
/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.
/s/ Russell V. Umphenour Jr.
-------------------------------------- Director
Russell V. Umphenour Jr.
/s/ Jack G. Wasserman
-------------------------------------- Director
Jack G. Wasserman
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INDEX TO EXHIBITS
EXHIBITS
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5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to
the Company, regarding the legality of the securities being
registered.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of BDO Seidman, LLP.
23.3* Consent of Ernst & Young LLP.
23.4* Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in
Exhibit 5.1).
24.1* Power of Attorney (included on signature page).
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* Filed herewith.
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