Section 240.14a-101 Schedule 14A.
Information required in proxy statement.
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
Exchange Act of 1934
(Amendment No. 1)
Filed by the Registrant [X]
Filed by a party other than the Registrant [_]
Check the appropriate box:
[X] Preliminary Proxy Statement
[_] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[_] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14A-11(c) or
Section 240.14a-12
TRIARC COMPANIES, INC.
-------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
N/A
--------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
[GRAPHIC OMITTED]
[TRIARC LOGO]
TRIARC COMPANIES, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON __________, __ __, 2001
________ A.M., LOCAL TIME
Notice is hereby given that a Special Meeting of Stockholders of Triarc
Companies, Inc. will be held on _________, ___, 2001, at ______ a.m., local
time, at ___, for the following purposes:
(1) to amend the Certificate of Incorporation of the Company to
(i) increase the total number of shares of capital stock which
the Company has authority to issue to three hundred million
(300,000,000) shares, (ii) eliminate the authorization of the
existing Class B Common Stock, (iii) increase the total number
of authorized shares of Preferred Stock to one hundred million
(100,000,000) shares and (iv) authorize one hundred million
(100,000,000) shares of new Class B Common Stock; and
(2) to transact such other business as may properly come before
the meeting or any adjournment or postponement thereof.
Stockholders entitled to vote at the meeting or any adjournment or
postponement thereof are holders of record of the Company's Class A
Common Stock at the close of business on September 7, 2001.
By Order of the Board of Directors
___________________________________
STUART I. ROSEN
Senior Vice President and Associate
General Counsel, and Secretary
_________________ __, 2001
YOUR VOTE IS IMPORTANT! STOCKHOLDERS ARE CORDIALLY INVITED TO ATTEND
THE MEETING. WHETHER OR NOT YOU PLAN TO ATTEND, PLEASE COMPLETE, SIGN
AND DATE THE ENCLOSED PROXY AND RETURN IT PROMPTLY IN THE ENCLOSED
ENVELOPE. YOU MAY NEVERTHELESS VOTE IN PERSON IF YOU ATTEND THE
MEETING.
[TRIARC LOGO]
TRIARC COMPANIES, INC.
280 PARK AVENUE
NEW YORK, NEW YORK 10017
(212) 451-3000
________________ __, 2001
Dear Stockholders:
It is our pleasure to invite you to join us at the Special Meeting of
Stockholders of Triarc Companies, Inc. which will be held at _______ a.m., on
___, _____________ __, 2001, at ________. The Board of Directors and management
hope that many of you will be able to attend in person.
At the meeting, you will be asked to consider and vote on a proposal to amend
Article IV of Triarc's Certificate of Incorporation. The Board of Directors has
unanimously approved and declared advisable the proposal and recommends that you
vote FOR it.
Notice of the Special Meeting and the Proxy Statement follow. It is important
that your shares be represented and voted, regardless of the size of your
holdings. Accordingly, whether or not you plan to attend the meeting in person,
please complete, sign, date and return the enclosed proxy. If you attend the
meeting and wish to vote your shares personally, you may revoke your proxy.
Sincerely,
______________________ _________________________
NELSON PELTZ PETER W. MAY
Chairman and Chief President and Chief
Executive Officer Operating Officer
2
TRIARC COMPANIES, INC.
280 PARK AVENUE
NEW YORK, NEW YORK 10017
(212) 451-3000
PROXY STATEMENT
INTRODUCTION
GENERAL
The accompanying proxy is solicited by the Board of Directors (the "Board of
Directors" or the "Board") of Triarc Companies, Inc. (the "Company" or "Triarc")
in connection with the Special Meeting of Stockholders of the Company (the
"Meeting"), to be held on __________, __, 2001, at _____ a.m., local time, at
___________________ and at any adjournment or postponement of the Meeting. This
Proxy Statement and a proxy are first being mailed to stockholders on or about
__________ ___, 2001. The mailing address of the Company's principal executive
office is 280 Park Avenue, New York, New York 10017.
When a proxy is returned properly dated and signed, the shares represented
thereby will be voted by the persons named as proxies in accordance with each
stockholder's directions. Stockholders may specify their choices by marking the
appropriate boxes on the enclosed proxy. If a proxy is dated, signed and
returned without specifying choices, the shares will be voted as recommended by
the Board of Directors FOR Proposal 1. Under the Company's By-Laws (the
"By-Laws"), business transacted at the Meeting is confined to the purposes
stated in the Notice of the Meeting. The proxy being solicited does, however,
convey discretionary authority to the persons named therein as proxies to vote
on matters incident to the conduct of the Meeting. The proxy may be revoked by
the stockholder at any time prior to the time it is voted by giving notice of
such revocation either personally or in writing to the Secretary of the Company
at the address provided above.
VOTING SECURITIES
All holders of record of the Company's Class A Common Stock, par value $.10 per
share (the "Class A Common Stock"), at the close of business on September 7,
2001 are entitled to vote on all business of the Meeting. At the close of
business on such day, the Company had ___________ shares of Class A Common Stock
outstanding and entitled to vote at the Meeting. Each share of Class A Common
Stock entitles the holder to one vote per share. The presence, in person or by
proxy, of stockholders entitled to cast at least a majority of the votes which
all stockholders are entitled to cast shall constitute a quorum. Broker
"non-votes" and the shares as to which a stockholder abstains are included for
purposes of determining whether a quorum of shares is present at the Meeting. A
broker "non-vote" occurs when a nominee holding shares for a beneficial owner
does not vote on a particular proposal because the nominee does not have
discretionary voting power with respect to that item and has not received
instructions from the beneficial owner.
Under the General Corporation Law of the State of Delaware (the "Delaware Law"),
the state in which the Company is incorporated, the Company's Certificate of
Incorporation and the By-Laws, the affirmative vote of a majority of the
outstanding shares of Class A Common Stock is required for approval of Proposal
1. Under the Delaware Law, abstentions and broker non-votes have the effect of
votes against Proposal 1.
3
The Company has been informed that the 5,982,867 shares of Class A Common Stock
(constituting approximately 29.4% of the outstanding shares of Class A Common
Stock as of August 10, 2001) owned by DWG Acquisition Group, L.P., a Delaware
limited partnership of which Nelson Peltz and Peter W. May are the sole general
partners ("DWG Acquisition"), will be voted in accordance with the
recommendation of the Board of Directors FOR Proposal 1.
4
VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF
The following table sets forth the beneficial ownership as of August 10, 2001 by
each person known by the Company to be the beneficial owner of more than 5% of
the outstanding shares of Class A Common Stock (constituting the only class of
voting capital stock of the Company), each director of the Company who has such
ownership, the Company's Chairman and Chief Executive Officer, the President and
Chief Operating Officer and each of the other three (3) most highly compensated
officers as of the end of the Company's last fiscal year. Except as otherwise
indicated, each person has sole voting and dispositive power with respect to
such shares.
AMOUNT AND
NAME AND ADDRESS OF NATURE OF
BENEFICIAL OWNER BENEFICIAL OWNERSHIP PERCENT OF CLASS
---------------- -------------------- ----------------
DWG Acquisition Group, L.P................................ 5,982,867 shares(1) 29.4%
1201 North Market Street
Wilmington, DE 19801
Nelson Peltz.............................................. 7,490,209 shares(1)(2)(3) 34.3%
280 Park Avenue
New York, NY 10017
Peter W. May.............................................. 6,998,000 shares(1)(2) 32.8%
280 Park Avenue
New York, NY 10017
Lockheed Martin Investment
Management Company........................................ 1,763,863 shares(4) 8.7%
6705 Rockledge Drive
Bethesda, MD 20817-1814
Neuberger Berman Inc...................................... 1,232,875 shares(5) 6.1%
Neuberger Berman, LLC
605 Third Avenue
New York, NY 10158
Hugh L. Carey............................................. 49,252 shares *
Clive Chajet.............................................. 39,800 shares(6) *
Joseph A. Levato.......................................... 54,375 shares *
David E. Schwab II........................................ 39,440 shares *
Jeffrey S. Silverman...................................... 62,590 shares *
Raymond S. Troubh......................................... 52,000 shares *
Gerald Tsai, Jr........................................... 37,855 shares *
John L. Barnes, Jr........................................ 104,001 shares *
Eric D. Kogan............................................. 80,667 shares *
Brian L. Schorr........................................... 72,957 shares(7) *
Directors and Executive Officers as a group
(19 persons).............................................. 9,408,280 shares 39.9%
* Less than 1%
(1) The Company is informed that DWG Acquisition has pledged such shares to a
financial institution on behalf of Messrs. Peltz and May to secure loans
made to them.
(2) Includes 5,982,867 shares held by DWG Acquisition, of which Mr. Peltz and
Mr. May are the sole general partners.
(3) Includes 23,750 shares owned by a family limited partnership of which Mr.
Peltz is a General Partner. Mr. Peltz disclaims beneficial ownership of
these shares.
(4) The information set forth herein with respect to Lockheed Martin Investment
Management Company ("Lockheed Martin") is based solely on information
contained in a Schedule 13G/A filed with the SEC on February 8, 2001
pursuant to the Exchange Act. Lockheed Martin is deemed to be the
beneficial owner of 1,763,863 shares of Class A Common Stock. Lockheed
Martin has sole voting and dispositive power over these shares.
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Lockheed Martin Master Retirement Trust, of which Lockheed Martin is the named
fiduciary and investment adviser, has the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, shares
beneficially owned by Lockheed Martin in an amount exceeding 5%.
(5) The information set forth herein with respect to Neuberger Berman, LLC
("Neuberger LLC") and Neuberger Berman, Inc. (the parent holding company of
Neuberger LLC, "Neuberger Inc.") is based solely on information contained
in a Schedule 13G/A filed with the SEC on February 6, 2001 pursuant to the
Exchange Act. Neuberger LLC and Neuberger Berman Management Inc.
("Neuberger Management"), serve as sub-adviser and investment manager,
respectively, of Neuberger Inc.'s various mutual funds. Neuberger LLC and
Neuberger Management are deemed to be beneficial owners of 1,232,875 shares
of Class A Common Stock. These shares are included as shares over which
Neuberger LLC and Neuberger Management have shared voting and dispositive
power. Neuberger LLC and Neuberger Management disclaim beneficial ownership
of an additional 86,000 shares of Class A Common Stock owned by employees
in their own personal securities accounts.
(6) Includes 1,300 shares owned by Mr. Chajet's wife, as to which shares Mr.
Chajet disclaims beneficial ownership.
(7) Includes 100 shares owned by a minor child of Mr. Schorr, as to which
shares Mr. Schorr disclaims beneficial ownership.
The above beneficial ownership table includes options to purchase shares of
Class A Common Stock which have vested or will vest within 60 days of August 10,
2001 by the following persons:
NUMBER OF SHARES
NAME OF BENEFICIAL OWNER REPRESENTED BY OPTIONS
------------------------ ----------------------
Nelson Peltz............................................. 1,456,667 shares
Peter W. May............................................. 968,333 shares
Hugh L. Carey............................................ 32,000 shares
Clive Chajet............................................. 32,000 shares
Joseph A. Levato......................................... 41,000 shares
David E. Schwab II....................................... 32,000 shares
Jeffrey S. Silverman..................................... 20,000 shares
Raymond S. Troubh........................................ 32,000 shares
Gerald Tsai, Jr.......................................... 35,000 shares
John L. Barnes, Jr....................................... 100,001 shares
Eric D. Kogan............................................ 66,667 shares
Brian L. Schorr.......................................... 66,667 shares
Directors and Executive Officers as a
group (19 persons)..................................... 3,190,334 shares
Except for the arrangements relating to the shares described in footnote (1) to
the beneficial ownership table, there are no arrangements known to the Company
the operation of which may at a subsequent date result in a change in control of
the Company.
6
PROPOSAL 1.
AMENDMENT TO THE COMPANY'S CERTIFICATE OF INCORPORATION
INTRODUCTION
Article IV of the Company's Certificate of Incorporation currently provides that
the total number of shares of capital stock which the Company is authorized to
issue is one hundred fifty million (150,000,000), of which one hundred million
(100,000,000) are shares of Class A Common Stock, par value ten cents ($.10) per
share (the "Class A Common Stock"), twenty five million are shares of Class B
Common Stock, par value ten cents ($.10) per share (the "Old Class B Common
Stock"), and twenty five million (25,000,000) are shares of Preferred Stock, par
value ten cents ($.10) per share (the "Preferred Stock"). No shares of Old Class
B Common Stock or Preferred Stock are currently outstanding.
At the Special Meeting, the Company's stockholders are being asked to consider
and vote upon a proposal to approve an amendment, in the form attached hereto as
Annex A (the "Amendment"), to Article IV of the Company's Certificate of
Incorporation that would (i) increase the total number of shares of capital
stock which the Company has authority to issue to three hundred million
(300,000,000) shares, (ii) cancel the authorization of the Old Class B Common
Stock, (iii) increase the total number of authorized shares of Preferred Stock
to one hundred million (100,000,000) shares, and (iv) authorize one hundred
million (100,000,000) shares of a new Class B Common Stock.
The powers, designations, preferences, rights and qualifications, limitations or
restrictions of the new Class B Common Stock will not be stated in the
Amendment. Instead, the Amendment will authorize the Board to establish the
powers, designations, preferences, rights and qualifications, limitations or
restrictions thereof for the new Class B Common Stock, or any series thereof, in
a resolution or resolutions of the Board of Directors of the Company providing
for the issue of the new Class B Common Stock, or any series thereof, as set
forth in a certificate of designation filed with the Secretary of State of the
State of Delaware. The Company's current Certificate of Incorporation grants
this power to the Board with respect to the Preferred Stock. The Amendment
increases the number of authorized shares of Preferred Stock as to which this
power relates.
The Board of Directors has declared advisable and unanimously recommends that
the stockholders of the Company approve the Amendment.
If the Amendment is approved by the stockholders, the Company intends to file a
Certificate of Amendment to the Certificate of Incorporation of the Company in
accordance with the Amendment. The Amendment will be effective immediately upon
the acceptance of this filing by the Secretary of State of the State of Delaware
(the "Effective Date"). Although the Company presently intends to file the
Certificate of Amendment if the Amendment is approved by stockholders, the
resolution of the stockholders will reserve to the Board of Directors the right
to defer or abandon the Amendment and not file the Certificate of Amendment. The
Company currently knows of no reason why the Amendment would not be filed if
adopted by the stockholders.
7
Following the Effective Date, the Board of Directors may approve the issuance of
authorized shares at such times and to such persons and for such legal
consideration as it may determine to be in the best interests of the Company and
its stockholders without prior approval of or ratification by the stockholders.
REQUIRED VOTE
Approval of the Amendment requires the affirmative vote of a majority of the
outstanding shares of Class A Common Stock.
DESCRIPTION OF THE AMENDMENT
The full text of Article IV as proposed to be amended is set forth as Annex A to
this Proxy Statement and is incorporated herein by reference. The following
summary should be read in conjunction with, and is qualified in its entirety to
reference to, Annex A.
1. The Amendment will increase the total number of shares of
capital stock which the Company is authorized to issue to three hundred million
(300,000,000) shares.
2. The Amendment will eliminate the authorization of the Old
Class B Common Stock.
3. The Amendment will increase the total number of authorized
shares of Preferred Stock from twenty-five million (25,000,000) to one hundred
million (100,000,000). The powers, designations and preferences, rights and
qualifications, limitations or restrictions thereof for the Preferred Stock will
not be stated in the Company's Certificate of Incorporation as amended by the
Amendment. Instead, the powers, designations, preferences, rights and
qualifications, limitations or restrictions thereof for the Preferred Stock or
any series thereof may be stated and expressed in a resolution or resolutions of
the Board of Directors of the Company providing for the issue of the Preferred
Stock, or any series thereof, as set forth in a certificate of designation filed
with the Secretary of State of the State of Delaware.
4. The Amendment will authorize a new class of one hundred
million (100,000,000) shares of Class B Common Stock. The powers, designations,
preferences, rights and qualifications, limitations or restrictions thereof for
the new Class B Common Stock will not be stated in the Company's Certificate of
Incorporation as amended by the Amendment. Instead, the powers, designations,
preferences, rights and qualifications, limitations or restrictions thereof for
the new Class B Common Stock or any series thereof may be stated and expressed
in a resolution or resolutions of the Board of Directors of the Company
providing for the issue of the new Class B Common Stock or any series thereof,
as set forth in a certificate of designation filed with the Secretary of State
of the State of Delaware.
The Company has no present plan or intention to issue any Preferred
Stock or any of the new Class B Common Stock.
8
REASON FOR THE AMENDMENT
In recent years a number of publicly-held companies have adopted capital
structures utilizing two or more classes of common stock. After reviewing the
Company's market liquidity, shareholder positions, growth objectives and capital
structure and after consultation with the Company's financial and legal
advisors, the Board of Directors believes that such a structure offers the
Company a number of possible advantages that outweigh the potential
disadvantages. The Board of Directors believes that the continued success and
growth of the Company will be enhanced by the flexibility to issue stock to
raise capital, acquire other companies and/or pay stock dividends. The Board of
Directors believes that the Amendment will give the Board the flexibility to
create a series of Preferred Stock or Class B Common Stock with the powers,
designations, preferences, rights and qualifications, limitations or
restrictions suitable or appropriate for a particular transaction without prior
approval of or ratification by the stockholders.
CERTAIN POTENTIAL BENEFITS OF THE AMENDMENT
After careful consideration, the Board has identified the following potential
benefits of the Amendment for the Company and its stockholders:
INCREASED FLEXIBILITY IN RAISING CAPITAL AND IN RESPONDING TO FUTURE ACQUISITION
OPPORTUNITIES. The Company has followed, and continues to follow, a long term
strategy for growth. The Board of Directors believes that this strategy will
best maximize the value of the Company. The Board believes that implementation
of the Amendment will provide the Company with increased flexibility to issue
equity in the future in connection with acquisitions and to raise equity capital
or to issue convertible debt as a means to finance future growth. For example,
the Board of Directors could create a series of stock from the new Class B
Common Stock with less than one vote per share or with no vote, which would
substantially maintain the relative voting strength of the existing stockholders
of the Company. Or the Board of Directors could create a series of the new Class
B Common Stock with a guaranteed dividend for some period of time. The Board's
ability to create a series of Preferred Stock, which might be convertible into
Class A Common Stock or Class B Common Stock, further increases the Company's
flexibility in raising capital and responding to future acquisition
opportunities.
CERTAIN POTENTIAL DISADVANTAGES OF THE AMENDMENT
In addition to the potential benefits of the Amendment discussed above, the
Board also considered potential disadvantages of the Amendment, including the
following:
UNCERTAIN EFFECT ON STOCK PRICE. An issuance of shares of Class B Common Stock
could affect the price of the Class A Common Stock. Many factors, including
general market conditions, future performance of the Company and the performance
of other companies which compete with the Company's operating subsidiaries,
could cause fluctuations in the prices for both the Class A Common Stock and
Class B Common Stock, and could cause the Class A Common Stock and Class B
Common Stock to trade at different prices. The Company cannot predict the
relative or absolute effect of the Amendment or any issuance of Class B Common
Stock or Preferred Stock on the market price of the Class A Common Stock.
9
POTENTIAL NEGATIVE RESPONSE OF INSTITUTIONAL INVESTORS. Implementation of the
Amendment may affect the decision of certain institutional investors that would
otherwise consider investing in the Class A Common Stock but who object to the
capital structure implemented by the Amendment. To the extent that institutional
investors avoid purchasing the Company's stock, the stock price may be
negatively affected by the decreased demand.
RISK OF DISCOUNTED VALUE OF CLASS B COMMON STOCK OR PREFERRED STOCK IN FUTURE
ACQUISITIONS OR FINANCINGS. If the Amendment is approved and implemented, the
Company could issue Class B Common Stock or Preferred Stock in future
acquisitions, financings or offerings. If the Class B Common Stock or Preferred
Stock trades at a discount to the Class A Common Stock, then acquisitions,
financings or offerings involving the issuance of Class B Common Stock or
Preferred Stock will be economically more dilutive to existing stockholders than
such transactions would be if the Company issued Class A Common Stock. This
dilution, if it occurs, will result in decreased earnings per share and lower
stock prices for the Class A Common Stock, the Class B Common Stock and the
Preferred Stock, as the case may be.
CERTAIN ANTI-TAKEOVER EFFECTS
Currently, a person might not be able to succeed in a takeover of the Company
without making an offer acceptable to Messrs. Peltz and May, because of their
substantial ownership of voting stock. Adoption of the Amendment will not itself
change the voting power of the existing stockholders, but it will give the
Company more flexibility to issue common stock or preferred stock without
substantial diminution of the voting power of the existing stockholders, because
the Company could create one or more series of Class B Common Stock or Preferred
Stock with less than one vote per share, or with no vote. The Company has
considered doing that, but has no present intention of doing so. If the Company
issued Class B Common Stock or Preferred Stock with less than one vote per
share, or with no vote per share, the Amendment might reduce the possibility of
the stockholders receiving and accepting a hostile takeover bid, which is often
made at a premium over then-current market prices of the target company's stock.
The flexibility to issue Class B Common Stock or Preferred Stock with less than
one vote per share, or with no vote, if exercised, may also render more
difficult or discourage mergers, proxy contests, removal of current management
or other changes in control of the Company which may be desired by substantial
holders of the Company's equity securities, if their holdings were primarily
Class B Common Stock or Preferred Stock with less than one vote per share or
with no vote per share.
THE COMPANY HAS NO PRESENT PLAN OR INTENTION TO ISSUE ANY PREFERRED STOCK OR ANY
OF THE NEW CLASS B COMMON STOCK.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF THE AMENDMENT TO
THE CERTIFICATE OF INCORPORATION.
10
OTHER MATTERS
EXPENSES OF SOLICITATION
The cost of soliciting proxies will be borne by the Company. In addition to the
solicitation of proxies by use of the mails, some of the officers, directors and
regular employees of the Company and its subsidiaries, none of whom will receive
additional compensation therefor, may solicit proxies in person or by telephone
or other means. Solicitation will also be made by employees of _____, which firm
will be paid a fee of $____________, plus expenses. As is customary, the Company
will, upon request, reimburse brokerage firms, banks, trustees, nominees and
other persons for their out-of-pocket expenses in forwarding proxy materials to
their principals.
STOCKHOLDER PROPOSALS FOR THE 2002 ANNUAL MEETING
From time to time, stockholders present proposals which may be proper subjects
for inclusion in a proxy statement and for consideration at an annual meeting.
To be considered, proposals must be submitted on a timely basis. It is currently
expected that the 2002 Annual Meeting will be held during the early part of June
2002, with the related proxy statement being first mailed to stockholders on or
about May 1, 2002. To be considered for the 2002 Annual Meeting of Stockholders
of the Company, proposals must be received by the Company no later than January
17, 2002, and must otherwise comply with Rule 14a-8 under the Exchange Act.
Stockholders who do not wish to follow Rule 14a-8 under the Exchange Act in
proposing a matter for action at the next annual meeting may also submit a
proposal pursuant to the procedural requirements set forth in the Company's
Certificate of Incorporation. Any such proposals must be specified in a written
notice given by or on behalf of a stockholder of record on the record date for
such meeting entitled to vote thereat or a duly authorized proxy for such
stockholder, in accordance with all of the following requirements. Such notice
must be delivered personally to, or mailed to and received at, the principal
executive office of the Company addressed to the attention of the Secretary, not
less than 45 days nor more than 60 days prior to the meeting; provided, however,
that in the event that less than 55 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the annual or special meeting was mailed or such public disclosure was made,
whichever first occurs. Such notice must set forth (i) a full description of
each such item of business proposed to be brought before the meeting and the
reasons for conducting such business at such meeting, (ii) the name and address
of the person proposing to bring such business before the meeting, (iii) the
class and number of shares held of record, held beneficially and represented by
proxy by such person as of the record date for the meeting (if such date has
then been made publicly available) and as of the date of such notice, (iv) if
any item of such business involves a nomination for director, all information
regarding each such nominee that would be required to be set forth in a
definitive proxy statement filed with the SEC pursuant to Section 14 of the
Exchange Act, or any successor thereto, and the written consent of each such
nominee to serve if elected, (v) any material interest of the stockholder in
such item of business and (vi) all other information that would be required to
be filed with the SEC if, with respect to the business proposed to be brought
before the meeting, the person proposing such business was a participant in a
solicitation subject to Section 14 of the
11
Exchange Act, or any successor thereto. Any questions relating to stockholder
proposals should be submitted in writing to the Secretary of the Company, at 280
Park Avenue, New York, New York 10017.
By Order of the Board of Directors
STUART I. ROSEN
Secretary
New York, New York
______________ __, 2001
ANNEX A
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
TRIARC COMPANIES, INC.
------------------------------------
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
Triarc Companies, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
1. The name of the Corporation is Triarc Companies, Inc.
2. The date of filing of the Certificate of
Incorporation of the Corporation with the Secretary of State was May 6, 1994.
3. This Certificate of Amendment amends the Certificate
of Incorporation, as amended on June 4, 1997 and now in effect, to (a) eliminate
the shares of the currently authorized Class B Common Stock, par value ten cents
($.10) per share, (the "Existing Class B Common Stock,"), (b) authorize a new
class of common stock, designated as Class B Common Stock (the "Class B Common
Stock"), (c) increase the total number of authorized shares of Preferred Stock,
par value ten cents ($.10) per share, from twenty-five million (25,000,000) to
one hundred million (100,000,000) and (d) increase the total number of shares of
stock (the
2
"Capital Stock") that the Corporation shall have the authority to issue to three
hundred million (300,000,000).
4. The first paragraph of Article IV of the Certificate
of Incorporation is hereby amended to read in its entirety as follows: "The
total number of shares of all classes of stock (the `Capital Stock') which the
Corporation shall have the authority to issue is three hundred million
(300,000,000) of which
(a) one hundred million (100,000,000) shall be
shares of Class A Common Stock, par value ten cents ($.10) per
share (the 'Class A Common Stock');
(b) one hundred million (100,000,000) shall be
shares of Class B Common Stock, par value ten cents ($.10) per
share (the 'Class B Common Stock,' and together with the Class
A Common Stock, the 'Common Stock'); and
(c) one hundred million (100,000,000) shall be
shares of Preferred Stock, par value ten cents ($.10) per
share (the 'Preferred Stock')."
3
5. Part A of Article IV of the Certificate of
Incorporation is hereby amended to read in its entirety as follows:
"A. Powers and Rights of Class A Common Stock and Class B
Common Stock.
SECTION 1: Voting Power of Class A Common Stock. The
holders of Class A Common Stock shall possess voting powers for the election of
directors and for all other corporate purposes, each share of Class A Common
Stock being entitled to one vote on each matter properly submitted to the
stockholders of the Corporation for their vote; PROVIDED, HOWEVER, that, except
as otherwise required by law or as provided in Section 2 below, the holders of
Class A Common Stock shall not be entitled to vote on any amendment to this
Certificate of Incorporation (including any Certificate of Designation relating
to any series of Class B Common Stock) that relates solely to the terms of one
or more outstanding series of Class B Common Stock, if the holders of such
affected series are entitled, either separately or together as a class with the
holders of one or more other such series, to vote thereon by law or pursuant to
this Certificate of Incorporation (including any Certificate of Designation
relating to any series of Class B Common Stock).
SECTION 2: Class B Common Stock. The Board of Directors
is authorized, subject to any limitations prescribed by law, to provide for the
issuance of shares of the Class B Common Stock in one or more series, and by
filing a certificate pursuant to the applicable law of the State of Delaware
(such certificate being hereinafter referred to as a `Class B Common Stock
Designation'), to establish from time to time the number of shares to be
included in each such series, and to fix, to the fullest extent permitted by
law, the designation, powers (if any), preferences (if any), and rights of the
shares of each such series and any qualifications, limitations or restrictions
thereof. The number of authorized shares of Class B Common Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Class A
Common Stock, without a separate class vote of the holders of the Class B Common
Stock, or of any series thereof."
6. Section 2 of Part B, Article IV of the Certificate of
Incorporation is hereby deleted in its entirety and replaced by Section 3 of
Part B of Article IV.
7. Part C of Article IV of the Certificate of
Incorporation is hereby deleted in its entirety and replaced by Part D of the
Certificate of Incorporation.
8. Such amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
4
IN WITNESS WHEREOF, the Corporation has authorized the
undersigned to execute this Certificate of Amendment of the Certificate of
Incorporation of the Corporation this __th day of _______________, 2001.
TRIARC COMPANIES, INC.
By:
___________________________