-----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, Sqh3alRGX71C4fmHlwNDvFfMijgw0Bi0tzmFCSi65MkicOJpMVPKeztx/1XOzjAk /5XnXz7Ssz2Umwq9j0xE9g== 0000030697-07-000158.txt : 20070606 0000030697-07-000158.hdr.sgml : 20070606 20070606172721 ACCESSION NUMBER: 0000030697-07-000158 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20070605 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070606 DATE AS OF CHANGE: 20070606 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: 07904872 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 DATED JUNE 5, 2007 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): June 5, 2007 TRIARC COMPANIES, INC. -------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 1-2207 38-047118 - ----------------- -------------- -------------- (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 1.01. Entry into a Material Definitive Agreement. On June 5, 2007, the stockholders of Triarc Companies, Inc. ("Triarc" or the "Company") approved an amendment (the "2002 Plan Amendment") to Triarc's Amended and Restated 2002 Equity Participation Plan (the "2002 Plan"). The 2002 Plan Amendment adds additional performance criteria that may be selected in establishing appropriate performance goals for awards made under the 2002 Plan that are intended to satisfy the requirements of Section 162(m) of the Internal Revenue Code of 1986, as amended. On June 5, 2007, the stockholders of Triarc also approved an amendment (the "1999 Plan Amendment") to Triarc's 1999 Executive Bonus Plan (the "1999 Plan"). The 1999 Plan Amendment adds an additional performance criterion that may be selected in establishing appropriate performance goals for "Performance Goal Bonus Awards" (as defined in the 1999 Plan) made under the 1999 Plan. Copies of the 2002 Plan Amendment and 1999 Plan Amendment are being filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K. A copy of the press release announcing the foregoing is filed as Exhibit 99.1 to this Current Report on Form 8-K. Item 8.01. Other Events Extension of Higher Dividend Rate on Shares of Class B Common Stock, Series 1 On June 5, 2007, Triarc issued a press release announcing that its Board of Directors has determined that until December 30, 2007, the Company will continue to pay regular quarterly cash dividends on the Company's Class B Common Stock, Series 1, that are at least 110% of any regular quarterly cash dividends that are paid on the Company's Class A Common Stock, if any regular quarterly cash dividends are paid on the Class A Common Stock. The Board of Directors has not yet made any determination of the relative amounts of any regular quarterly cash dividends that will be paid on the Class A Common Stock and Class B Common Stock, Series 1, after December 30, 2007. After December 30, 2007, each share of Class B Common Stock, Series 1, is entitled to at least 100% of any regular quarterly cash dividend paid on each share of Class A Common Stock. There can be no assurance that any additional regular quarterly cash dividends will be declared or paid, or of the amount or timing of such dividends, if any. Future dividend payments, if any, are subject to applicable law, will be made at the discretion of Triarc's Board of Directors and will be based on such factors as Triarc's earnings, financial condition, cash requirements and other factors. Stock Repurchase Program On June 5, 2007, Triarc also announced that it has adopted a new common stock repurchase program that will allow Triarc to purchase up to an aggregate of $50 million of Triarc's Class A Common Stock and/or Class B Common Stock, Series 1. The new repurchase program will replace Triarc's current stock repurchase program when it expires on June 30, 2007. The new stock repurchase program will remain in effect until December 28, 2008 and will allow the Company to continue repurchasing Class A and/or Class B shares when and if market conditions warrant and to the extent legally permissible. A copy of the press release announcing the foregoing is filed as Exhibit 99.2 to this Current Report on Form 8-K. Item 9.01. Financial Statements and Exhibits. (d) Exhibits 10.1 Amendment No. 2 to Triarc Companies, Inc. Amended and Restated 2002 Equity Participation Plan. 10.2 Amendment to the Triarc Companies, Inc. 1999 Executive Bonus Plan. 99.1 Press release of Triarc Companies, Inc. dated June 5, 2007. 99.2 Press release of Triarc Companies, Inc. dated June 5, 2007. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on behalf by the undersigned hereunto duly authorized. TRIARC COMPANIES, INC. By: /s/STUART ROSEN ----------------------- Stuart I. Rosen Senior Vice President and Secretary Dated: June 6, 2007 EXHIBIT INDEX Exhibit No. Description - ------- ----------- 10.1 Amendment No. 2 to Triarc Companies, Inc. Amended and Restated 2002 Equity Participation Plan. 10.2 Amendment to the Triarc Companies, Inc. 1999 Executive Bonus Plan. 99.1 Press release of Triarc Companies, Inc. dated June 5, 2007. 99.2 Press release of Triarc Companies, Inc. dated June 5, 2007. EX-10.1 2 exh101.txt AMENDMENT NO. 2 A&R 2002 EQUITY PARTICIPATION PLAN EXHIBIT 10.1 AMENDMENT NO. 2 TO TRIARC COMPANIES, INC. AMENDED AND RESTATED 2002 EQUITY PARTICIPATION PLAN The Triarc Companies, Inc. Amended and Restated 2002 Equity Participation Plan, as amended (as so amended, the "Plan") is hereby amended as follows, to be effective as of March 26, 2007, subject to approval of this Amendment No. 2 by the holders of a majority of the votes cast on a proposal to approve this Amendment No. 2 at the next Annual Meeting of Stockholders of Triarc Companies, Inc., currently scheduled to be held on June 6, 2007, provided that the total votes cast on the proposal represent over 50% in interest of all securities entitled to vote on the proposal: 1. Items 9 and 10 following the first paragraph of Section 27 of the Plan are replaced in their entirety and new Items 11 and 12 are added to read as follows: 9. stock price; 10. net investment income; 11. consolidated net income, plus (without duplication and only to the extent such amount was deducted in calculating such consolidated net income) interest expense, income taxes, depreciation expense and amortization expense; or 12. aggregate consolidated net income for the applicable fiscal year determined in accordance with United States generally accepted accounting principles as in effect from time to time ("GAAP"), applied on a basis consistent with past practice, modified as follows (as so modified, "Modified EBITDA"): plus(without duplication and only to the extent such amount was deducted in calculating such consolidated net income) the following items on a consolidated basis: (a) interest expense; (b) income taxes; (c) depreciation expense; and (d) amortization expense; minus (without duplication and only to the extent such amount was included in calculating such consolidated net income) the following items on a consolidated basis: (e) interest income; and (f) other income not included in operating profit under GAAP; and further adjusted to exclude the impact of: (i) Annual Operating Plan net expense variances attributable to the financing of new units (opened during the applicable fiscal year) through capital leases instead of operating leases as contemplated by the Annual Operating Plan, provided that (A) no adjustment under this clause (i) shall be made in respect of such new units in excess of the total number of new units contemplated by the Annual Operating Plan, (B) no adjustment under this clause (i) shall be made in respect of (1) new units financed through capital leases, other than such new units in excess of the total number of new units contemplated by the Annual Operating Plan to be financed through capital leases or (2) new units financed through operating leases, other than such new units in excess of the total number of new units contemplated by the Annual Operating Plan to be financed through operating leases; (ii) acquisitions and dispositions, by (A) disregarding for any portion of the fiscal year in which any assets are acquired (and any later fiscal years) any portion of actual Modified EBITDA attributable to any such acquired assets and (B) reducing the applicable Performance Goal and Cumulative Performance Goal for the fiscal year in which any assets are disposed (and any later fiscal years) by the projected amount of Modified EBITDA attributable to any such disposed assets for the portion of the fiscal year of disposition (and any later fiscal years) that was reflected in such Performance Goal and Cumulative Performance Goal; (iii) all items of gain, loss or expense determined to be extraordinary or unusual in nature or infrequent in occurrence, as determined in accordance with standards established by Opinion No. 30 of the Accounting Principles Board, and any amendment, restatement, modification, supplement or successor thereto; and (iv) all items of expense related to equity based compensation determined in accordance with the standards established by Statement of Financial Accounting Standards No.123(R), and any amendment, modification or successor thereto. 2. Except for the foregoing amendments set forth in paragraph 1 above, all of the terms and conditions of the Plan shall remain in full force and effect. EX-10.2 3 exh102.txt AMENDMENT TO 1999 EXECUTIVE BONUS PLAN EXHIBIT 10.2 AMENDMENT TO THE TRIARC COMPANIES, INC. 1999 EXECUTIVE BONUS PLAN The Triarc Companies, Inc. 1999 Executive Bonus Plan is hereby amended, effective as of March 26, 2007, as follows: 1. Sections 4(b)(i)10 and 4(b)(i)(11) are replaced in their entirety and a new Section 4(b)(i)12 is added to read as follows: 10. net investment income; 11. consolidated net income, plus (without duplication and only to the extent such amount was deducted in calculating such consolidated net income) interest expense, income taxes, depreciation expense and amortization expense; and 12. aggregate consolidated net income for the applicable fiscal year determined in accordance with United States generally accepted accounting principles as in effect from time to time ("GAAP"), applied on a basis consistent with past practice, modified as follows (as so modified, "Modified EBITDA"): plus(without duplication and only to the extent such amount was deducted in calculating such consolidated net income) the following items on a consolidated basis: (a) interest expense; (b) income taxes; (c) depreciation expense; and (d) amortization expense; minus (without duplication and only to the extent such amount was included in calculating such consolidated net income) the following items on a consolidated basis: (e) interest income; and (f) other income not included in operating profit under GAAP; and further adjusted to exclude the impact of: (i) Annual Operating Plan net expense variances attributable to the financing of new units (opened during the applicable fiscal year) through capital leases instead of operating leases as contemplated by the Annual Operating Plan, provided that (A) no adjustment under this clause (i) shall be made in respect of such new units in excess of the total number of new units contemplated by the Annual Operating Plan, (B) no adjustment under this clause (i) shall be made in respect of (1) new units financed through capital leases, other than such new units in excess of the total number of new units contemplated by the Annual Operating Plan to be financed through capital leases or (2) new units financed through operating leases, other than such new units in excess of the total number of new units contemplated by the Annual Operating Plan to be financed through operating leases; (ii) acquisitions and dispositions, by (A) disregarding for any portion of the fiscal year in which any assets are acquired (and any later fiscal years) any portion of actual Modified EBITDA attributable to any such acquired assets and (B) reducing the applicable Performance Goal and Cumulative Performance Goal for the fiscal year in which any assets are disposed (and any later fiscal years) by the projected amount of Modified EBITDA attributable to any such disposed assets for the portion of the fiscal year of disposition (and any later fiscal years) that was reflected in such Performance Goal and Cumulative Performance Goal; (iii) all items of gain, loss or expense determined to be extraordinary or unusual in nature or infrequent in occurrence, as determined in accordance with standards established by Opinion No. 30 of the Accounting Principles Board, and any amendment, restatement, modification, supplement or successor thereto; and (iv) all items of expense related to equity based compensation determined in accordance with the standards established by Statement of Financial Accounting Standards No.123(R), and any amendment, modification or successor thereto. EX-99.1 4 exh991.txt PRESS RELEASE DATED JUNE 5, 2007 Exhibit 99.1 For Immediate Release CONTACT: Anne A. Tarbell (212) 451-3030 www.triarc.com TRIARC HOLDS 2007 ANNUAL MEETING New York, NY, June 5, 2007 - Triarc Companies, Inc. (NYSE: TRY; TRY.B) announced today that at the Company's annual meeting, stockholders elected Triarc's twelve (12) directors, approved an amendment to the Company's Amended and Restated 2002 Equity Participation Plan and re-approved the performance based provisions of that plan, approved an amendment to the Company's 1999 Executive Bonus Plan and ratified the appointment of Deloitte & Touche LLP as the Company's independent registered public accountants. The following twelve directors were elected: Nelson Peltz, Triarc's chairman and chief executive officer; Peter W. May, Triarc's president and chief operating officer; Hugh L. Carey, former governor of the State of New York and member of Congress, and currently a partner of Harris Beach LLP; Clive Chajet, chairman of Chajet Consultancy, L.L.C.; Edward P. Garden, Triarc's vice chairman; Joseph A. Levato, former executive vice president and chief financial officer of Triarc; David E. Schwab II, a senior counsel of Cowan, Liebowitz & Latman, P.C.; Roland C. Smith, Chief Executive Officer of Arby's Restaurant Group, Inc., Raymond S. Troubh, a financial consultant and a director of various public companies; Gerald Tsai, Jr., a private investor; Russell V. Umphenour, Jr., former chief executive officer of the RTM Restaurant Group; and Jack G. Wasserman, attorney-at-law. Triarc is a holding company and, through its subsidiaries, is the franchisor of the Arby's restaurant system and the owner of approximately 94% of the voting interests, 64% of the capital interests and at least 52% of the profits interests in Deerfield & Company LLC (Deerfield), an asset management firm. The Arby's restaurant system is comprised of approximately 3,600 restaurants, of which, as of April 1, 2007, 1,061 were owned and operated by our subsidiaries. Deerfield, through its wholly-owned subsidiary Deerfield Capital Management LLC, is a Chicago-based asset manager offering a diverse range of fixed income and credit-related strategies to institutional investors with approximately $14.2 billion under management as of May 1, 2007. # # # EX-99.2 5 exh992.txt PRESS RELEASE DATED JUNE 5, 2007 EXHIBIT 99.2 For Immediate Release CONTACT: Anne A. Tarbell (212) 451-3030 www.triarc.com TRIARC ADOPTS NEW $50 MILLION STOCK REPURCHASE PROGRAM AND CONTINUES TO PAY HIGHER DIVIDEND ON CLASS B COMMON STOCK, SERIES 1 New York, NY, June 5, 2007 -- Triarc Companies, Inc. (NYSE: TRY, TRY.B) announced today that it has adopted a new $50 million Class A Common Stock and Class B Common Stock, Series 1, repurchase program that will replace Triarc's current stock repurchase program when it expires on June 30, 2007. The new stock repurchase program will remain in effect until December 28, 2008 and will allow the Company to continue repurchasing Class A and Class B shares when and if market conditions warrant and to the extent legally permissible. Since 1998, Triarc has repurchased approximately $340 million of its stock, including approximately 10 million Class A Common Shares for approximately $214 million and all of the then outstanding approximately 6 million Class B Common Shares for approximately $127 million. As of April 30, 2007, Triarc had 28,859,184 shares of Class A Common Stock and 63,746,932 shares of Class B Common Stock, Series 1, outstanding. The Board of Directors also determined that until December 30, 2007, the Company will continue to pay regular quarterly cash dividends on the Class B Common Stock, Series 1, that are at least 110% of any regular quarterly cash dividends that are paid on the Class A Common Stock, if any regular quarterly cash dividends are paid on the Class A Common Stock. The Board of Directors has not yet made any determination of the relative amounts of any regular quarterly cash dividends that will be paid on the Class A Common Stock and Class B Common Stock, Series 1, after December 30, 2007. After December 30, 2007, each share of Class B Common Stock, Series 1, is entitled to at least 100% of any regular quarterly cash dividend paid on each share of Class A Common Stock. The Certificate of Designation for the Class B Common Stock, Series 1, provides that the Class B Common Stock, Series 1, was entitled, through September 4, 2006, to receive regular quarterly cash dividends that are at least 110% of any regular quarterly cash dividends that were paid on the Class A Common Stock. However, the Board previously extended that date until June 30, 2007. Triarc is a holding company and, through its subsidiaries, is the franchisor of the Arby's restaurant system and the owner of approximately 94% of the voting interests, 64% of the capital interests and at least 52% of the profits interests in Deerfield & Company LLC (Deerfield), an asset management firm. The Arby's restaurant system is comprised of approximately 3,600 restaurants, of which, as of April 1, 2007, 1,061 were owned and operated by our subsidiaries. Deerfield, through its wholly-owned subsidiary Deerfield Capital Management LLC, is a Chicago-based asset manager offering a diverse range of fixed income and credit-related strategies to institutional investors with approximately $14.2 billion under management as of May 1, 2007. # # # Notes to Follow Notes 1. There can be no assurance that any share repurchases will be made in the future or that any such repurchases will result in additional shareholder value. 2. There can be no assurance that any additional regular quarterly cash dividends will be declared or paid after the date hereof, or of the amount or timing of such dividends, if any. Any future dividend payments, if any, are subject to applicable law, will be made at the discretion of the Board and will be based on such factors as Triarc's earnings, financial condition, cash requirements and other factors. -----END PRIVACY-ENHANCED MESSAGE-----