UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
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TRIARC COMPANIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 38-0471180
(State of incorporation or organization) (I.R.S. Employer Identification Number)
280 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Class B Common Stock, Series 1, par value New York Stock Exchange
$.10 per share
If this Form relates to the If this Form relates to the
registration of a class of registration of a class of
securities pursuant to Section securities pursuant to Section
12(b) of the Exchange Act and is 12(g) of the Exchange Act and is
effective pursuant to General effective pursuant to General
Instruction A. (c), check the Instruction A. (d) check the
following box [X] following box [ ]
Securities Act registration statement file number to which this form relates:
________
Securities to be registered pursuant to Section 12(g) of the Act: None
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
CLASS B COMMON STOCK, SERIES 1
Pursuant to authority vested in the Board of Directors of
Triarc Companies, Inc., a Delaware corporation (the "Corporation"), under the
provisions of Section 151 of the General Corporation Law of the State of
Delaware and under Section 2 of Part A of Article IV of the Corporation's
Certificate of Incorporation, as amended (the "Certificate of Incorporation"),
on August 11, 2003 the Board of Directors created out of its authorized but
unissued shares of Class B Common Stock, par value $0.10 per share, a newly
designated Class B Common Stock, Series 1, par value $0.10 per share (the "Class
B Common Stock"), and declared a special stock dividend (the "Stock Dividend")
on the Corporation's existing Class A Common Stock, par value $0.10 per share
(the "Class A Common Stock"), consisting of two shares of Class B Common Stock
for each share of Class A Common Stock outstanding as of the close of business
on August 21, 2003 (the "Record Date").
The rights of the Class B Common Stock and the Class A Common
Stock will be identical except as otherwise set forth below. The terms of the
Class B Common Stock are set forth in full in the Certificate of Designation
attached hereto as Exhibit 3.3 and incorporated herein by reference. The
following summary should be read in conjunction with, and is qualified in its
entirety by reference to, such Exhibit 3.3.
VOTING. Under the Certificate of Incorporation, the holders of
Class A Common Stock will continue to be entitled to one (1) vote per share of
Class A Common Stock on all matters submitted to the common stockholders of the
Corporation for vote at all meetings of stockholders of the Corporation. The
holders of Class B Common Stock shall possess voting powers, voting together
with all other voting capital stock as a single class, for the election of
directors and for all other general corporate purposes, with each share of Class
B Common Stock being entitled to one tenth (1/10) of one (1) vote on each matter
properly submitted to the stockholders of the Corporation for their vote;
provided, however, that, except as otherwise required by law, the holders of
Class B Common Stock shall not be entitled to vote on any amendment to the
Certificate of Incorporation that relates solely to the terms of the Class A
Common Stock or any other outstanding series or class of stock, where the
holders of such affected class or series are entitled, either separately or
together as a class with the holders of one or more other said class or series,
to vote thereon by law or pursuant to the Certificate of Incorporation
(including any certificate of designation relating to any other series or class
of stock). Under the Certificate of Incorporation, 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.
DIVIDENDS. If and when dividends on the Class A Common Stock
are declared payable from time to time by the Board, whether payable in cash, in
property or in shares of stock of the Corporation, the holders of Class B Common
Stock shall be
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entitled to share equally with the holders of the Class A Common Stock, on a per
share basis, in such dividends, subject to the limitations described below;
provided, however, that with respect to a regular quarterly cash dividend
declared as such by the Board, paid by the Corporation on the Class A Common
Stock on or prior to September 4, 2006, the holders of the Class B Common Stock
shall be entitled to receive a dividend in a per share amount (such amount to be
subject to upward or downward rounding at the discretion of the Board) equal to
at least 110% of the dividends paid per share on the Class A Common Stock. If
dividends are declared at any time on the Class A Common Stock that are payable
in shares of Class A Common Stock, such dividends shall be payable at the same
rate on the Class B Common Stock and the dividends shall be payable to holders
of Class B Common Stock in shares of Class B Common Stock. If the Corporation
shall in any manner subdivide or combine the outstanding shares of Class A
Common Stock, the outstanding shares of Class B Common Stock shall be
proportionally subdivided or combined in the same manner and on the same basis.
LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary (sometimes referred to as liquidation), after payment or provision
for payment of the debts and other liabilities of the Corporation and the
preferential amounts to which the holders of any stock ranking senior to the
Class B Common Stock in the distribution of assets shall be entitled upon
liquidation, the holders of Class B Common Stock shall be entitled to receive,
prior to any payment being made to the holders of Class A Common Stock and any
other stock that ranks junior to the Class B Common Stock in the event of
liquidation, an amount per share equal to $.01 (as adjusted for stock splits,
combinations, reclassifications and the like), and, once the holders of Class A
Common Stock shall then have received an amount per share equal to $.01 (as
adjusted for stock splits, combinations, reclassifications and the like),
thereafter to share pro rata, together with the holders of the Class A Common
Stock and the holders of any other stock ranking on parity therewith in the
distribution of assets upon liquidation, in the remaining assets of the
Corporation according to their respective interests.
MERGER OR CONSOLIDATION. The approval of holders of a majority
of the outstanding shares of Class B Common Stock, voting separately as a class,
shall be required for any merger or consolidation of the Corporation with
another entity (whether or not the Corporation is the surviving entity) unless
the holders of shares of Class B Common Stock shall be entitled to receive in
such transaction in respect of each share of Class B Common Stock the same
consideration as the holders of shares of Class A Common Stock shall be entitled
to receive in respect of each share of Class A Common Stock; PROVIDED THAT, if
all or part of the consideration so received consists of common stock of the
surviving entity, the common stock so issued may differ as to voting rights,
liquidation preference and dividend rights to the same extent that the Class A
Common Stock and Class B Common Stock differ as set forth herein.
TRANSFERABILITY. The Class A Common Stock and Class B Common
Stock will be freely transferable and, except for federal and state securities
laws restrictions on directors, officers and other affiliates of the Corporation
and on persons
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holding "restricted" stock, the Corporation's stockholders will not be
restricted in their ability to sell or transfer shares of the Class A Common
Stock or Class B Common Stock. Application has been made to authorize the Class
B Common Stock for listing on the NYSE and it is currently anticipated that the
Class B Common Stock will commence regular way trading on the NYSE on September
5, 2003, under the symbol "TRY.B." The Class A Common Stock will continue to
trade on the NYSE under the existing trading symbol "TRY."
NO PREEMPTIVE, SUBSCRIPTION, REDEMPTION OR CONVERSION RIGHTS.
Neither the Class A Common Stock nor the Class B Common Stock will carry any
preemptive, subscription, redemption or conversion rights.
STOCKHOLDER INFORMATION. The Corporation will deliver to the
holders of the Class B Common Stock the same proxy statements, annual reports
and other information and reports as it currently delivers to the holders of the
Class A Common Stock.
CERTAIN ANTI-TAKEOVER PROVISIONS
Certain provisions in the Corporation's certificate of
incorporation are intended to discourage or delay a hostile takeover of control
of the Corporation. These provisions, in general terms, (i) 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 then
in office; (ii) provide that vacancies on the board of directors 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 (iii) require the
affirmative vote of the holders of shares representing at least 75% of the
voting power of the "voting shares" (as defined below) in order to enter into
certain "business combinations" (as defined below), unless (A) 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" (as defined below), or (B) certain minimum price, form of
consideration and procedural requirements are met. The term "voting shares" is
defined as any issued and outstanding shares of the Corporation's capital stock
entitled to vote generally in the election of directors. Each of the provisions
has particular anti-takeover effects associated with it, and these effects
together with a more detailed description of each provision are set forth below.
In addition, the anti-takeover provisions are interrelated and have cumulative
anti-takeover effects.
The principal purpose of these provisions is to provide a
measure of assurance that a stockholder or group of stockholders owning a
controlling interest in the Corporation's stock do not exercise their voting
power in a manner which the Board believes would be to the detriment of the
remaining stockholders. The provisions are further intended to make it more
difficult for a hostile or unfriendly party to obtain control over the
Corporation by replacing the Board.
SIZE OF THE BOARD OF DIRECTORS AND FILLING VACANCIES ON THE
BOARD OF DIRECTORS. The Corporation's certificate of incorporation states that
its Board must
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consist of not less than seven nor more than 15 members; provided, however, that
the maximum number may be increased to reflect the right of holders of preferred
stock to elect directors in certain circumstances with the exact number of
directors to be fixed by a majority vote of the directors then in office and
that such authority of the Board is exclusive. The Corporation's certificate of
incorporation further provides that vacancies that may occur between annual
meetings, including vacancies caused by an increase in the number of directors,
may be filled only by a majority of the remaining directors then in office, even
if less than a quorum, subject to the rights of holders of any class or series
of preferred stock to elect directors. In addition, the provision provides that
any new director elected to fill a vacancy on the Board will serve for the
remainder of the full term of that director for which the vacancy occurred and
no decrease in the number of directors shall shorten the term of any incumbent.
The purpose of including these provisions with respect to the size of the Board
and the filling of vacancies is to prevent the elimination of such provisions
through amendment of the Corporation's by-laws by a stockholder or group owning
or controlling a substantial voting block so as to permit stockholders directly
to increase the size of the Corporation's Board and to fill vacancies resulting
therefrom or otherwise, which would enable such stockholder or group of
stockholders to elect its own nominees to the vacancies. This would be possible
because, under Delaware law, stockholders may amend the by-laws without prior
approval of the board of directors, whereas the Corporation's certificate of
incorporation may be amended only if its Board first approves and recommends
such action to stockholders.
BUSINESS COMBINATION PROVISION. The Corporation's certificate
of incorporation further provides that the approval of the holders of shares
representing at least 75% of the voting power of the voting shares is required
in order to approve certain business combinations if an "interested stockholder"
(as defined below) is a party to the transaction or its percentage equity
interest in the Corporation or any of its subsidiaries would be increased by the
transaction. The required 75% approval of any business combination must include
the affirmative vote of the holders of shares representing at least a majority
of the voting power of all of the then outstanding voting shares exclusive of
those shares beneficially owned by any interested stockholder.
The voting requirements outlined above will not apply,
however, if:
(i) immediately prior to the time the business
combination is consummated, the Corporation is the
"beneficial owner" (defined below) of a majority of
each class of the outstanding equity securities of
the interested stockholder;
(ii) the business combination was approved by at least a
majority of the Corporation's Board (even though not
the entire Board), but only if a majority of the
directors acting favorably upon such matter are
continuing directors; or
(iii) the consideration to be received by the holders of
each class of the Corporation's outstanding voting
shares acquired by the interested stockholder is at
least equal to the greater of the highest per share
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price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees and with
approximate adjustments for recapitalizations, stock
splits, reverse stock splits and stock dividends)
paid by the interested stockholder for any shares of
such class
(1) within the two-year period immediately prior
to the first public announcement of the
proposal of the business combination or
(2) in the transaction in which it became an
interested stockholder, and is in cash or in
the same form of consideration as the
interested stockholder paid to acquire the
largest number of voting shares previously
acquired by it.
The pricing provision does not guarantee that a stockholder will receive the
highest market price paid for such shares, rather it ensures that a stockholder
will receive the highest price paid for such shares by an interested stockholder
during the prior two years. If either the ownership or form of consideration
requirements set forth in clauses (i) and (iii) above are satisfied, the
business combination will require the approval of the holders of at least
two-thirds of the votes entitled to be cast by the holders of all the then
outstanding voting shares (the "ratification percentage") (and the additional
majority vote described in the previous paragraph).
If the Corporation's Board approves a business combination in
accordance with the requirements set forth in clause (ii) above, the Board may,
in accordance with the voting provisions of such clause (ii), determine to
require a vote of stockholders. If a stockholder vote is required for such
business combination under applicable law (such as, for example, in the case of
a merger or liquidation), the Board will require the affirmative vote of the
then outstanding voting shares equal to the higher of:
(i) the ratification percentage (such affirmative vote
shall not require the additional majority vote), and
(ii) such other percentage as is required by law.
If a stockholder vote is not required for such business
combination under law, the Corporation's Board may, in its discretion, either
decide not to require a stockholder vote to approve the business combination or
require the affirmative vote of the outstanding voting shares equal to (A) the
ratification percentage (such affirmative vote shall not require the additional
majority vote) or (B) such other percentage as it so determines.
An "interested stockholder" generally is defined under the
Corporation's certificate of incorporation as the beneficial owner of 10% or
more of the voting power of the outstanding voting shares (other than Triarc,
its employee benefit plans, or its
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majority owned subsidiaries) excluding, however, DWG Acquisition Group, LP or
any "affiliate" or "associate" (as each term is defined in the Corporation's
certificate of incorporation). The Corporation's Board considers that a 10%
holding, which causes a person to be classified as an "insider" under Section 16
of the Exchange Act, and is double the percentage ownership required to trigger
reporting obligations under Section 13(d) of the Exchange Act, for stockholders
of public companies, is appropriate to define an interested stockholder. At the
present time, the Corporation is not aware of the existence of any stockholder
or group of stockholders that would be an interested stockholder.
A "business combination" includes:
(i) a merger or consolidation involving the Corporation
or any of its subsidiaries and an interested
stockholder or an affiliate or associate of an
interested stockholder, or an affiliate thereof,
(ii) a sale, lease or other disposition (in one or a
series of transactions) of a "substantial part" (as
defined in the Corporation's certificate of
incorporation) of the Corporation's assets or the
assets of any of its subsidiaries to an interested
stockholder or an affiliate or associate of any
interested stockholder, or an affiliate thereof;
(iii) any sale, lease or other disposition (in one or a
series of transactions) to the Corporation or any of
its subsidiaries of any assets (excluding any voting
shares, but including without limitation any
securities whether outstanding, authorized but
unissued or in treasury, issued by an interested
stockholder, or by an affiliate or associate of an
interested stockholder or by an affiliate thereof) of
(a) any interested stockholder or (b) an affiliate or
associate of an interested stockholder, or an
affiliate thereof, if the amount paid therefor
constitutes a substantial part of the assets of
Triarc or any subsidiary; or
(iv) an issuance or transfer (or a related series of
issuances or transfers) of the Corporation's
securities or the securities of any of its
subsidiaries (except upon conversion of convertible
securities as a result of a pro rata stock dividend
or stock split) to an interested stockholder or an
affiliate or associate of an interested stockholder
or an affiliate thereof, for consideration
aggregating $5,000,000 or more;
(v) a liquidation, dissolution, spinoff, split up or
split off of the Corporation (if as of the record
date for the determination of stockholders entitled
to vote with respect thereto or, if no vote would
otherwise be required, the date the transaction is
planned to be consummated, any person is an
interested stockholder);
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(vi) a reclassification or recapitalization of securities
(including, without limitation, any combination of
shares or reverse stock split) of the Corporation or
any of its subsidiaries or a reorganization, in any
case having the effect, directly or indirectly, of
increasing the percentage interest of an interested
stockholder in any class of equity securities of the
Corporation or such subsidiary; and
(vii) any agreement, contract or other arrangement
providing for any of the transactions described in
this definition of business combination.
A "continuing director" is defined as one serving as a
director whose election or appointment or recommendation by the Corporation's
Board for election by the Corporation's stockholders was approved by at least a
majority of the continuing directors then on the Board.
The business combination provision described above is intended
to provide safeguards to the Corporation's stockholders by requiring a higher
stockholder vote than required under Delaware law in the event another person
first obtains a substantial interest in the Corporation and then wishes to
accomplish a combination of such person's business with that of the Corporation,
or otherwise eliminate the share holdings of the other stockholders. The federal
securities law and applicable regulations govern the disclosure required to be
made to minority stockholders in such transactions but do not assure to
stockholders the fairness of the terms of the business combination. Moreover,
the statutory right of the remaining stockholders to dissent in connection with
certain business combinations and receive the "fair value" of their shares in
cash may involve significant expense, delay and uncertainty to dissenting
stockholders. Further, the "fair value" of a stockholder's shares, as determined
under this standard, may not be equivalent to the minimum price as determined
pursuant to the provisions.
The business combination provision is to close partially these
gaps in the federal and state laws and to minimize certain of the potential
inequities of those business combinations that involve two or more steps by
requiring that in order to complete a business combination that is not approved
by the continuing directors, such interested stockholder must obtain the
affirmative votes of at least 75% of the voting power of the outstanding voting
shares prior to proposing the business combination (including the affirmative
vote of the holders of shares representing at least a majority of the voting
power of the outstanding voting shares exclusive of those shares beneficially
owned by the interested stockholder), or meet the minimum price and procedural
requirements of the provision and obtain the approval of at least two-thirds of
the voting power of the outstanding voting shares (and the additional majority
vote). The provision also is designed to protect those stockholders who have not
tendered or otherwise sold their shares to a purchaser who is attempting to
acquire control by ensuring that at least the same price and form of
consideration are paid to such stockholders in a business combination as were
paid to stockholders in the initial step of the acquisition. In the
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absence of the provision, an interested stockholder who acquired control of the
Corporation could subsequently, by virtue of such control, force minority
stockholders to sell or exchange their shares at a price that would not reflect
any premium such purchaser may have paid in order to acquire its controlling
interest, but rather at a price set by such interested stockholder. Such a price
might not only be lower than the price paid by such purchaser in acquiring
control, but also could be in a less desirable form of consideration (e.g.,
equity or debt securities of the purchaser).
In many situations, the minimum price, form of consideration
and procedural requirements of the provision would require that a purchaser pay
stockholders a higher price for their shares and/or structure the transaction
differently from what would be the case without the provision. Accordingly, to
the extent a business combination were involved as part of a plan to acquire
control of the Corporation, this provision would increase the likelihood that a
purchaser would negotiate directly with the Board.
The Corporation believes that its Board normally is in a
better position than the individual stockholders to negotiate effectively on
behalf of all stockholders in that the Board is likely to be more knowledgeable
than any individual stockholder in assessing the Corporation's business and
prospects. Accordingly, the Corporation is of the view that negotiations between
its board of directors and the purchaser would increase the likelihood that
stockholders ultimately will receive a higher price for their shares from anyone
desiring to obtain control of the Corporation through a business combination or
otherwise.
Although not all acquisitions of the Corporation's capital
stock are made with the objective of acquiring control of the Corporation
through a subsequent business combination, a purchaser in many cases desires to
have the option to consummate such a business combination. Assuming that to be
the case, the provision would tend to discourage purchasers whose objective is
to seek control of the Corporation at a relatively low price, since acquiring
the remaining equity interest may be difficult unless the minimum price, form of
consideration and procedural requirements were satisfied or a majority of the
continuing directors were to approve the transaction. The provision also should
discourage the accumulation of large blocks of the Corporation's capital stock,
which the Corporation believes to be disruptive to its stability, and which
could precipitate a change of control of the Corporation on terms unfavorable to
its other stockholders.
AMENDMENT OF CERTIFICATE OF INCORPORATION. The Corporation's
certificate of incorporation may be amended in accordance with Delaware law,
except that it provides that the business combination provision described above
may not be repealed, altered, changed or amended in any respect unless such
action is approved by the affirmative vote of the holders of at least 75% of the
Corporation's voting shares (which 75% must include the affirmative vote of the
holders of shares representing at least a majority of the voting power of the
Corporation's voting shares exclusive of those of which any interested
stockholder is the beneficial owner), unless approved by a vote of
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a majority of the Corporation's entire Board (but only if a majority of the
directors acting favorably on the matter are continuing directors), in which
case the business combination provision may be amended by the affirmative vote
of holders of at least a majority of the voting power of its voting shares (such
affirmative vote does not require the additional majority vote); and provided,
further, that the ratification percentage may be amended, altered, changed or
repealed by the affirmative vote of the holders of at least two-thirds of the
voting power of the voting shares (such affirmative vote does not require the
additional majority vote). The Corporation's by-laws may be altered, amended or
repealed, or new by-laws adopted, by (i) the affirmative vote of stockholders
holding not less than a majority of the voting power of the shares entitled to
vote on such issue, or (ii) the affirmative vote of not less than two-thirds of
all of the directors then holding office and entitled to vote on such issue.
ITEM 2. EXHIBITS
The following exhibits are incorporated by reference into this
registration statement:
3.1 Certificate of Incorporation of the Company, incorporated
herein by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K, dated November 9, 2001 (SEC file no.
1-2207).
3.2 By-laws of the Company, as currently in effect, incorporated
herein by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K, dated November 12, 2002 (SEC file no.
1-2207).
3.3 Certificate of Designation of Class B Common Stock, Series 1,
dated as of August 11, 2003.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized on this
11th day of August, 2003.
TRIARC COMPANIES, INC.
/s/ Brian L. Schorr
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By: Brian L. Schorr
Executive Vice President and
General Counsel
Exhibit Index
EXHIBIT NO. DESCRIPTION
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3.1 Certificate of Incorporation of the Company, as currently in
effect, incorporated herein by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K, dated November 9, 2001
(SEC file no. 1-2207).
3.2 By-laws of the Company, as currently in effect, incorporated
herein by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K, dated November 12, 2002 (SEC file no.
1-2207).
3.3 Certificate of Designation of Class B Common Stock, Series 1,
dated as of August 11, 2003.