-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HMqViJHEyDFxxmOUnAB1wJLHdJ7W+pD0jYy5BZyC0btzfMFeNzy7cCP+uyCBGGGC Y2ea9nFepLT/OHSsdlDC3w== 0000030697-06-000225.txt : 20061116 0000030697-06-000225.hdr.sgml : 20061116 20061116164955 ACCESSION NUMBER: 0000030697-06-000225 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20061109 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20061116 DATE AS OF CHANGE: 20061116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-02207 FILM NUMBER: 061223719 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-451-3000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 8-K 1 try8k.txt TRIARC 8-K NOVEMBER 9, 2006 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT Pursuant To Section 13 or 15 (d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): November 9, 2006 TRIARC COMPANIES, INC. -------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 1-2207 38-0471180 ----------------- -------------- ------------- (State or Other (Commission (I.R.S. Employer Jurisdiction of File Number) Identification No.) Incorporation) 280 Park Avenue New York, NY 10017 - ------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (212) 451-3000 N/A - ------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers. On November 10, 2005, the Compensation Committee of the Board of Directors of Triarc Companies, Inc. (the "Company") unanimously approved certain equity arrangements pursuant to which the Company's management was authorized to subscribe for Class B Units representing equity interests in Triarc Deerfield Holdings, LLC ("TDH"), the Company's holding company for Deerfield & Company LLC ("D&C"), and Jurl Holdings, LLC ("Jurl Holdings"), the Company's holding company for Jurlique International Pty Ltd. ("Jurlique"). A summary of the material terms of the equity arrangements, and the interests subscribed for by certain members of the Company's senior management team, are described in the Company's Quarterly Report on Form 10-Q for the quarter ended October 2, 2005 (the "Form 10-Q"). Copies of the Amended and Restated Limited Liability Company Agreements for TDH and Jurl Holdings were filed as Exhibits 10.4 and 10.5 to the Form 10-Q. On November 9, 2006, the Compensation Committee adopted technical corrections to the Amended and Restated Limited Liability Company Agreement of TDH and to the Amended and Restated Limited Liability Company Agreement of Jurl Holdings. Each of the amendments (i) eliminates the unintended effect of certain non-cash accounting charges which would have otherwise reduced any distributable profits and (ii) corrects the manner in which the participant's share of available profits is determined to eliminate a duplicative reduction based on adjusted capital contributions. The Company estimates that these technical corrections may result in up to an additional approximate $1.6 million (in the aggregate) in possible profit distributions to the participants to the extent profits are in fact otherwise available. A copy of the amendments to the Amended and Restated Limited Liability Company Agreements of TDH and Jurl Holdings are filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K. Item 9.01. Financial Statements and Exhibits. (d) Exhibits 10.1 Amendment No. 1, dated as of November 16, 2006, to the Amended and Restated Limited Liability Company Agreement, dated as of November 10, 2005, of Triarc Deerfield Holdings, LLC, a Delaware limited liability company. 10.2 Amendment No. 1, dated as of November 16, 2006, to the Amended and Restated Limited Liability Company Agreement, dated as of November 10, 2005, of Jurl Holdings, LLC, a Delaware limited liability company. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. TRIARC COMPANIES, INC. By: /s/STUART ROSEN ----------------------- Stuart I. Rosen Senior Vice President and Secretary Dated: November 16, 2006 EXHIBIT INDEX Exhibit Description - ------- ----------- 10.1 Amendment No. 1, dated as of November 16, 2006, to the Amended and Restated Limited Liability Company Agreement, dated as of November 10, 2005, of Triarc Deerfield Holdings, LLC, a Delaware limited liability company. 10.2 Amendment No. 1, dated as of November 16, 2006, to the Amended and Restated Limited Liability Company Agreement, dated as of November 10, 2005, of Jurl Holdings, LLC, a Delaware limited liability company. EX-10 2 exh101.txt EXH. 10.1 AMENDMENT NO. 1 TO A&R LLC AGREEMENT OF TRIARC DEERFIELD HOLDINGS, LLC EXHIBIT 10.1 TRIARC DEERFIELD HOLDINGS, LLC Amendment No. 1 to the Amended and Restated Limited Liability Company Agreement THIS AMENDMENT NO. 1 (this "Amendment") to the Amended and Restated Limited Liability Company Agreement, dated as of November 10, 2005 (the "LLC Agreement"), of Triarc Deerfield Holdings, LLC, a Delaware limited liability company (the "Company") is made as of November 16, 2006. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the LLC Agreement. R E C I T A L S: Pursuant to clause (ii)(z) of the proviso to Section 12.1 of the LLC Agreement, the Board of Managers wishes to adopt this Amendment to cure a defect in the LLC Agreement. NOW, THEREFORE, the LLC Agreement is hereby amended as follows: 1. Amendment to Definition of "Attributable GAAP Net Profits." Section 1.8(a) of the LLC Agreement is hereby amended by deleting the definition of "Attributable GAAP Net Profits" and replacing it in its entirety as follows: "Attributable GAAP Net Profits" means, as of any date of determination, with respect to any Class B Member, the product of (x) the excess of (i) cumulative net profits of the Company earned since the Issuance Date as determined in accordance with GAAP, excluding any net profits and net losses attributable to any Special Investment, over (ii) the sum of (A) the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 3.1(a)(i) and (B) the excess, if any, of the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 11.2(b)(iv)(x), over the aggregate amount of Capital Contributions theretofore made by all Class B Members, and (y) such Class B Member's Class B Percentage. For the avoidance of any doubt, (i) in the event of a sale or other disposition of all or a portion of the Company's assets or any similar transaction, subclause (x) shall, to the extent otherwise required under this Agreement, include the net profits and losses of the Company attributable to such sale or disposition computed from the Deerfield Acquisition Date as determined in accordance with GAAP, excluding any net profits and losses attributable to any Special Investment; and (ii) subclause (x) shall, to the extent otherwise required under this Agreement, include the net profits and losses of the Company as determined in accordance with GAAP attributable to any hypothetical or deemed liquidation of the Company or sale, or adjustment to fair market value, of Company assets, as if such events actually occurred (including pursuant to Sections 4.1(a), 4.3(h), 9.3, 9.4 and 11.2(d)). 2. Amendment to Definition of "Class A Attributable GAAP Net Profits." Section 1.8(a) of the LLC Agreement is hereby amended by deleting the definition of "Class A Attributable GAAP Net Profits" and replacing it in its entirety as follows: "Class A Attributable GAAP Net Profits" means, with respect to each Class A Member, an amount equal to the product of (A) the excess, if any, of (x) the cumulative net profits of the Company earned since the Issuance Date as determined in accordance with GAAP, excluding any net profits and net losses attributable to any Special Investment, over (y) the sum of (i) an amount equal to cumulative Class B Attributable GAAP Net Profits with respect to all Class A Members, (ii) the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 3.1(a)(i) and (iii) the excess, if any, of the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 11.2(b)(iv)(x), over the aggregate amount of the Capital Contributions theretofore made by all Class B Members; and (B) a fraction, the numerator of which is such Class A Member's Adjusted Capital Contributions and the denominator of which is the aggregate Adjusted Capital Contributions of the Class A Members. For the avoidance of any doubt, (i) in the event of a sale or other disposition of all or a portion of the Company's assets or any similar transaction, subclause (x) shall include the net profits and losses of the Company attributable to such sale or disposition computed from the Deerfield Acquisition Date as determined in accordance with GAAP, excluding any net profits and losses attributable to any Special Investment; and (ii) subclause (x) shall, to the extent otherwise required under this Agreement, include the net profits and losses of the Company as determined in accordance with GAAP attributable to any hypothetical liquidation of the Company or sale, or adjustment to fair market value, of Company assets, as if such events actually occurred (including pursuant to Sections 4.1(a), 4.3(h), 9.3, 9.4 and 11.2(d)). 3. Clarification Regarding Amortization Charges. Section 1.8(a) of the LLC Agreement is hereby amended by deleting the definition of "GAAP" and replacing it in its entirety as follows: "GAAP" means generally accepted accounting principles of the United States of America, except that, for all purposes of this Agreement, GAAP shall be determined without regard to any amortization or write-off charges related to the issuance of the Class B Units (i.e., any such charges that would otherwise be deducted in accordance with GAAP, shall not be so deducted). 4. Ratification of the LLC Agreement. Except as otherwise expressly provided herein, all of the terms and conditions of the LLC Agreement are ratified and shall remain unchanged and continue in full force and effect. 5. Applicable Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws principles thereof. [remainder of page left intentionally blank] IN WITNESS WHEREOF, this Amendment has been executed as of the date first above written. BOARD OF MANAGERS: /s/PETER W. MAY ------------------------------------ Peter W. May /s/FRANCIS T. MCCARRON ------------------------------------- Francis T. McCarron /s/BRIAN L. SCHORR ------------------------------------- Brian L. Schorr EX-10 3 exh102.txt EXH. 10.2 AMENDMENT NO. 1 TO A&R LLC AGREEMENT OF JURL HOLDINGS, LLC EXHIBIT 10.2 JURL HOLDINGS, LLC Amendment No. 1 to the Amended and Restated Limited Liability Company Agreement THIS AMENDMENT NO. 1 (this "Amendment") to the Amended and Restated Limited Liability Company Agreement, dated as of November 10, 2005 (the "LLC Agreement"), of Jurl Holdings, LLC, a Delaware limited liability company (the "Company") is made as of November 16, 2006. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the LLC Agreement. R E C I T A L S: Pursuant to clause (ii)(z) of the proviso to Section 12.1 of the LLC Agreement, the Board of Managers wishes to adopt this Amendment to cure a defect in the LLC Agreement. NOW, THEREFORE, the LLC Agreement is hereby amended as follows: 1. Amendment to Definition of "Attributable GAAP Net Profits." Section 1.8(a) of the LLC Agreement is hereby amended by deleting the definition of "Attributable GAAP Net Profits" and replacing it in its entirety as follows: "Attributable GAAP Net Profits" means, as of any date of determination, with respect to any Class B Member, the product of (x) the excess of (i) cumulative net profits of the Company earned since the Issuance Date as determined in accordance with GAAP, over (ii) the sum of (A) the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 3.1(a)(i) and (B) the excess, if any, of the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 11.2(b)(iv)(x), over the aggregate amount of Capital Contributions theretofore made by all Class B Members, and (y) such Class B Member's Class B Percentage. For the avoidance of any doubt, (i) in the event of a sale or other disposition of all or a portion of the Company's assets or any similar transaction, subclause (x) shall, to the extent otherwise required under this Agreement, include the net profits and losses of the Company attributable to such sale or disposition computed from the Jurlique Acquisition Date as determined in accordance with GAAP; and (ii) subclause (x) shall, to the extent otherwise required under this Agreement, include the net profits and losses of the Company as determined in accordance with GAAP attributable to any hypothetical or deemed liquidation of the Company or sale, or adjustment to fair market value, of Company assets, as if such events actually occurred (including pursuant to Sections 4.1(a), 4.3(h), 9.3, 9.4 and 11.2(d)). 2. Amendment to Definition of "Class A Attributable GAAP Net Profits." Section 1.8(a) of the LLC Agreement is hereby amended by deleting the definition of "Class A Attributable GAAP Net Profits" and replacing it in its entirety as follows: "Class A Attributable GAAP Net Profits" means, with respect to each Class A Member, an amount equal to the product of (A) the excess, if any, of (x) the cumulative net profits of the Company earned since the Issuance Date as determined in accordance with GAAP, over (y) the sum of (i) an amount equal to cumulative Class B Attributable GAAP Net Profits with respect to all Class A Members, (ii) the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 3.1(a)(i) and (iii) the excess, if any, of the aggregate amount of distributions theretofore made by the Company to all Class B Members pursuant to Section 11.2(b)(iv)(x), over the aggregate amount of the Capital Contributions theretofore made by all Class B Members; and (B) a fraction, the numerator of which is such Class A Member's Adjusted Capital Contributions and the denominator of which is the aggregate Adjusted Capital Contributions of the Class A Members. For the avoidance of any doubt, (i) in the event of a sale or other disposition of all or a portion of the Company's assets or any similar transaction, subclause (x) shall include the net profits and losses of the Company attributable to such sale or disposition computed from the Jurlique Acquisition Date as determined in accordance with GAAP; and (ii) subclause (x) shall, to the extent otherwise required under this Agreement, include the net profits and losses of the Company as determined in accordance with GAAP attributable to any hypothetical liquidation of the Company or sale, or adjustment to fair market value, of Company assets, as if such events actually occurred (including pursuant to Sections 4.1(a), 4.3(h), 9.3, 9.4 and 11.2(d)). 3. Clarification Regarding Amortization Charges. Section 1.8(a) of the LLC Agreement is hereby amended by deleting the definition of "GAAP" and replacing it in its entirety as follows: "GAAP" means generally accepted accounting principles of the United States of America, except that, for all purposes of this Agreement, GAAP shall be determined without regard to any amortization or write-off charges related to the issuance of the Class B Units (i.e., any such charges that would otherwise be deducted in accordance with GAAP, shall not be so deducted). 4. Ratification of the LLC Agreement. Except as otherwise expressly provided herein, all of the terms and conditions of the LLC Agreement are ratified and shall remain unchanged and continue in full force and effect. 5. Applicable Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws principles thereof. [remainder of page left intentionally blank] IN WITNESS WHEREOF, this Amendment has been executed as of the date first above written. BOARD OF MANAGERS: /s/PETER W. MAY ------------------------------------ Peter W. May /s/FRANCIS T. MCCARRON ------------------------------------ Francis T. McCarron /s/BRIAN L. SCHORR ------------------------------------ Brian L. Schorr -----END PRIVACY-ENHANCED MESSAGE-----