-----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, O7UuiRGIMn2tb4q34yOSx9myMft6JAh+iEsYjkobJnvU6pc46wP5lycADyReUdww WehF2fnABHP9Re7xTjY33Q== 0000950142-98-000048.txt : 19980123 0000950142-98-000048.hdr.sgml : 19980123 ACCESSION NUMBER: 0000950142-98-000048 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980122 EFFECTIVENESS DATE: 19980122 SROS: NYSE 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: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-44711 FILM NUMBER: 98511122 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2124513000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 S-8 1 FORM S-8 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ TRIARC COMPANIES, INC. (Exact name of Registrant as specified in its charter) DELAWARE 38-0471180 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) ------------------ 280 PARK AVENUE NEW YORK, NEW YORK 10017 (212) 451-3000 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ------------------ TRIARC COMPANIES, INC. STOCK OPTION PLAN FOR CABLE CAR EMPLOYEES (Full title of the plan) ------------------ BRIAN L. SCHORR EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL TRIARC COMPANIES, INC. 280 PARK AVENUE NEW YORK, NEW YORK 10017 (212) 451-3000 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------ COPY TO: PAUL D. GINSBERG PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019-6064 (212) 373-3000 ------------------ CALCULATION OF REGISTRATION FEE
Proposed Maximum Amount of Title of Each Class of Amount to be Offering Price Per Proposed Maximum Registration Securities to be Registered Registered Share Aggregate Offering Price Fee - ---------------------------------------------- ------------------ ------------------ ------------------------ ------------ Class A common stock, par value $.10 per share 154,931 shares (1) $25.00 (2) $ 3,873,275.00 (2) $1,142.62 ====================================================================================================================================
(1)The amount of shares to be registered has been determined based on the product of 899,700 shares of common stock, par value $.01 per share, of Cable Car Beverage Corporation ("Cable Car") subject to outstanding options, multiplied by an exchange ratio of 0.1722, as determined pursuant to the Agreement and Plan of Merger, dated June 24, 1997, by and among Cable Car, Triarc Companies, Inc. ("Triarc") and CCB Merger Corporation, as amended. (2)Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended. The Proposed Maximum Offering Price was determined by averaging the high and low prices of the Class A common stock, par value $.10 per share, of Triarc as reported on the New York Stock Exchange composite tape on January 20, 1998. ================================================================================ EXPLANATORY NOTE Pursuant to the Agreement and Plan of Merger dated June 24, 1997, (the "Merger Agreement"), by and among Triarc Companies, Inc., a Delaware corporation (the "Company"), CCB Merger Corporation, a Delaware corporation and wholly owned subsidiary of the Company ("Mergerco"), and Cable Car Beverage Corporation, a Delaware corporation ("Cable Car"), relating to the merger of Mergerco with and into Cable Car (the "Merger"), at the Effective Time of the Merger, which occurred on November 25, 1997, each holder of an option (the "Cable Car Options") exercisable for shares of Cable Car's common stock, par value $.01 per share, issued pursuant to stock option agreements between such holder and Cable Car received, by virtue of the Merger and without any action on the part of the holder thereof, options exercisable for shares of the Company's Class A Common Stock, par value $.10 per share (the "Common Stock"), with the same terms and conditions as the Cable Car Options immediately prior to the Effective Time (the "Substitute Triarc Options"), except that (i) the exercise price and the number of shares issuable upon exercise shall be divided and multiplied, respectively, by 0.1722 and (ii) all of the Cable Car Options became immediately exercisable at the Effective Time in accordance with their terms. The Section 10(a) prospectus being delivered by the Company to holders of Cable Car Options as required by Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"), have been prepared in accordance with the requirements of Form S-8 and relate to shares of Common Stock which have been reserved for issuance pursuant to the Triarc Companies, Inc. Stock Option Plan for Cable Car Employees (the "Plan"). The information regarding the Plan required in the Section 10(a) prospectus is included in documents being maintained and delivered by the Company as required by Rule 428 under the Securities Act. The Company shall provide to participants in the Plan a written statement advising them of the availability without charge, upon written or oral request, of documents incorporated by reference herein, as is required by Item 2 of Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Commission by Triarc (File No. 1-2207) are incorporated by reference in this Registration Statement: 1. The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, as amended by amendments thereto filed with the Commission on May 1, 1997 and May 13, 1997; 2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended September 28, 1997, June 28, 1997, as amended by an amendment thereto filed with the Commission on September 30, 1997, and March 30, 1997; 2 3. Triarc's Current Reports on Form 8-K filed with the Commission on December 24, 1997 (as amended by an amendment thereto filed with the Commission on January 7, 1998), December 10, 1997, October 27, 1997, August 5, 1997, July 18, 1997, June 26, 1997, June 6, 1997 (as amended by an amendment thereto filed with the Commission on August 5, 1997), May 20, 1997 (as amended by an amendment thereto filed with the Commission on August 4, 1997), March 31, 1997, February 20, 1997 and January 10, 1997; and 4. The descriptions of Triarc Common Stock set forth in Triarc's Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange Act, and any amendment or report filed for the purpose of updating any such description. In addition, all reports and documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and made a part hereof from the date of the filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The certificate of incorporation of the Company, as amended to date (the "Triarc Charter"), provides indemnification to the extent not prohibited by Delaware law (including as such law may be amended in the future to be more favorable to directors and officers). Section 145 of General Corporation Law of the State of Delaware (the "DGCL") provides that a corporation may indemnify any person who was or is a party or is threatened to be made and party to any threatened, pending or completed civil, criminal, administrative or investigative action, suit or proceeding (other than an action by or in the right of the corporation, such as a derivative action) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for any corporation, partnership, joint venture, trust, employee benefit plan or other enterprise (an "Other Entity"). The Triarc Charter provides that its officers and directors, and any person serving in any capacity at the request of the Company for an Other Entity shall be entitled to such indemnification; however, the Board of Directors of the Company (the "Triarc Board") may specifically grant such indemnification to other persons in respect of service to the Company or an Other Entity. The Triarc Charter specifies that any director or officer of the Company serving in any capacity with a majority owned subsidiary or any 3 employee benefit plan of the Company or of any majority owned subsidiary shall be deemed to be doing so at the request of the Company. Under Section 145 of the DGCL, depending on the nature of the proceeding, a corporation may indemnify against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person so indemnified acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. In the case of a derivative action, no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, such person is fairly and reasonable entitled to indemnity for such expenses as such court shall deem proper. Section 145 further provides that to the extent that a director or officer of a corporation is successful in the defense of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred in connection therewith. However, if such director or officer is not successful in the defense of any such action, suit or proceeding, or in the defense of any claim, issue or matter therein, he or she shall only be indemnified by the corporation as authorized in the specific case upon a determination that indemnification is proper because he or she met the applicable standard set forth above as determined by a majority of the disinterested directors, by independent legal counsel or by the stockholders. The Triarc Charter provides that expenses are to be advanced prior to the final disposition of a proceeding upon the receipt by the Company of an undertaking, as required by the DGCL, that the director or officer or other indemnified person will repay such advances if he or she is ultimately found not to be entitled to indemnification under the DGCL. The Triarc Charter permits a person entitled to indemnity to bring an action in court to obtain such indemnity and provides that, in any such action, the court will not be bound by a decision of the Triarc Board, independent counsel or stockholders that such person is not entitled to indemnification. Such person is also indemnified for any expenses incurred in connection with successfully establishing his or her right to indemnification in any such proceeding. The Triarc Charter expressly provides that the right to indemnification thereunder is a contract right and, therefore, cannot be retroactively eliminated by a later stockholder vote, and is not an exclusive right and, therefore, the Company may provide other indemnification, if appropriate. The Company also enters into indemnification agreements with its directors and officers indemnifying them against liability they may incur in their capacity as such. The indemnification agreements do not provide indemnification to the extent that the indemnitee is indemnified by the Company under the Triarc Charter, its bylaws, its directors' and officers' liability insurance, or otherwise. Additionally, the indemnification agreements do not provide indemnification (i) for the return by the indemnitee of any illegal remuneration paid to him or her; (ii) for any profits payable by the indemnitee to the Company pursuant to Section 16(b) of the Exchange Act; (iii) for any liability resulting from the indemnitee's fraudulent, dishonest or willful misconduct; (iv) for any amount the payment of which is not permitted by applicable law; (v) for any liability 4 resulting from conduct producing unlawful personal benefit; or (vi) if a final court adjudication determines such indemnification is not lawful. Determinations as to whether an indemnitee is entitled to be paid under the indemnification agreements may be made by the majority vote of a quorum of disinterested directors, independent legal counsel selected by the Triarc Board, a majority of disinterested Company stockholders or by a final adjudication of a court of competent jurisdiction. In the event that the Company undergoes a "Change of Control" (as defined in the indemnification agreements) all such determinations shall be made by special independent counsel selected by the indemnitee and approved by the Company, which consent may not be unreasonably withheld. In certain circumstances, an indemnitee may require the Company to establish a trust fund to assure that funds will be available to pay any amounts which may be due such indemnitee under an indemnification agreement. As permitted by Section 102(b)(7) of the DGCL, the Triarc Charter includes a provision which eliminates the personal liability of a director to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, other than liability (i) for the breach of a director's duty of loyalty to the Company and it stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to unlawful payment of a dividend and unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived any improper personal benefit. Finally, the Triarc Charter authorizes the Company, as permitted by the DGCL, to purchase directors' and officers' liability insurance. The Company carries directors' and officers' liability insurance covering losses up to $30,000,000. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS Exhibits 4.1 Certificate of Incorporation of the Company, as in effect, incorporated herein by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-4 (Reg. No. 333-4857). 4.2 By-laws of the Company, incorporated herein by reference to Exhibit 3.1 to the Company's Current Report on Form 8-K dated March 31, 1997 (SEC file No. 1-2207). 4.3* Triarc Companies, Inc. Stock Option Plan for Cable Car Employees. 5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the Company, regarding the legality of the Common Stock being registered. 5 23.1* Consent of Deloitte & Touche LLP. 23.2* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5.1). 24* Power of Attorney (included on page 6 of this Registration Statement). - --------------------- * Filed herewith. ITEM 9. UNDERTAKINGS The undersigned Registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement (i) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; (ii) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (iii) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the registrant pursuant to the registrant's Certificate of Incorporation or by-laws, by contract, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 6 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on January 22, 1998. TRIARC COMPANIES, INC. (Registrant) By: /s/ Nelson Peltz ------------------------------------ Nelson Peltz Chairman and Chief Executive Officer POWER OF ATTORNEY The officers and directors of Triarc Companies, Inc. whose signatures appear below hereby constitute and appoint Nelson Peltz and Peter W. May, and each of them (with full power to each of them to act alone), their true and lawful attorneys-in-fact, with full powers of substitution and resubstitution, to sign and execute on behalf of the undersigned any and all amendments, including any post-effective amendments, to this Registration Statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and each of the undersigned does hereby ratify and confirm all that said attorneys-in-fact shall do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below on January 22, 1998 by the following persons in the capacities indicated. SIGNATURE TITLES /s/ Nelson Peltz Chairman and Chief Executive Officer and - --------------------------------- Director (Principal Executive Officer) Nelson Peltz /s/ Peter W. May President and Chief Operating Officer and - --------------------------------- Director (Principal Operating Officer) Peter W. May /s/ John L. Barnes, Jr. Senior Vice President and Chief Financial - --------------------------------- Officer (Principal Financial Officer) John L. Barnes, Jr. 7 SIGNATURE TITLES /s/ Fred H. Schaefer Vice President and Chief Accounting Officer - --------------------------------- (Principal Accounting Officer) Fred H. Schaefer /s/ Hugh L. Carey Director - --------------------------------- Hugh L. Carey /s/ Clive Chajet Director - --------------------------------- Clive Chajet /s/ Stanley R. Jaffe Director - --------------------------------- Stanley R. Jaffe /s/ Joseph A. Levato Director - --------------------------------- Joseph A. Levato /s/ David E. Schwab II Director - --------------------------------- David E. Schwab II /s/ Raymond S. Troubh Director - --------------------------------- Raymond S. Troubh /s/ Gerald Tsai, Jr. Director - --------------------------------- Gerald Tsai, Jr. 8 INDEX TO EXHIBITS Exhibits - -------- 4.1 Certificate of Incorporation of the Company, as in effect, incorporated herein by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-4 (Reg. No. 333-4857). 4.2 By-laws of the Company, incorporated herein by reference to Exhibit 3.1 to the Company's Current Report on Form 8-K dated March 31, 1997 (SEC file No. 1-2207). 4.3* Triarc Companies, Inc. Stock Option Plan for Cable Car Employees. 5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the Company, regarding the legality of the Common Stock being registered. 23.1* Consent of Deloitte & Touche LLP. 23.2* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5.1). 24* Power of Attorney (included on page 6 of this Registration Statement). - --------------------- * Filed herewith. EX-4.3 2 STOCK OPTION PLAN EXHIBIT 4.3 TRIARC COMPANIES, INC. STOCK OPTION PLAN FOR CABLE CAR EMPLOYEES WHEREAS, pursuant to the Agreement and Plan of Merger dated June 24, 1997, as amended (the "Merger Agreement"), by and among Triarc Companies, Inc., a Delaware corporation (the "Company"), CCB Merger Corporation, a Delaware corporation and a wholly owned subsidiary of the Company ("Mergerco") and Cable Car Beverage Corporation ("Cable Car"), relating to the merger of Mergerco with and into Cable Car (the "Merger"), each option (the "Cable Car Optionee") exercisable for shares of Cable Car's common stock, par value $.01 per share, issued pursuant to stock option agreements between such holder and Cable Car (the "Cable Car Options") at the effective time of the Merger, which occurred on November 25, 1997 (the "Effective Time"), by virtue of the Merger and without any action on the part of the holder thereof, was assumed by the Company and became and represented an option exercisable for shares of the Company's Class A Common Stock, par value $.10 per share (the "Replacement Options"); WHEREAS, (i) the exercise price of the shares issuable upon exercise of a Replacement Option shall be determined by dividing the exercise price of the applicable Cable Car Option by 0.1722, (ii) the number of shares issuable upon exercise of a Replacement Option shall be determined by multiplying the number of shares issuable upon exercise of the applicable Cable Car Option by 0.1722, (iii) all of the Replacement Options are immediately exercisable and (iv) each Replacement Option has the same expiration date as the Cable Car Option it is replacing; WHEREAS, the Company wishes to adopt this Plan to evidence the Replacement Options; NOW, THEREFORE, SECTION 1. PURPOSE. The purpose of this Triarc Companies, Inc. Stock Option Plan for Cable Car Employees is to promote the interests of Cable Car and the Company and their stockholders by enabling the Cable Car Optionees to participate in the long-term growth and financial success of the Company and Cable Car. SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall have the meanings set forth below: 2 "Affiliate" shall mean (i) any entity that, directly or indirectly, is controlled by, controls or is under common control with, the Company and (ii) any entity in which the Company has a significant equity interest, in either case as determined by the Committee. "Award Agreement" shall mean an agreement, contract or other instrument evidencing an Option hereunder. "Cable Car Award Agreement" shall mean each Agreement, contract, or other instrument or document evidencing a Cable Car Option, which, as a result of the Merger was assumed by the Company and became a Replacement Option Award Agreement. "Board" shall mean the Board of Directors of the Company. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. "Committee" shall mean the compensation committee of the Board, the Performance Compensation Subcommittee or such other committee or subcommittee of the Board as may be designated by the Board to administer the Plan. "Common Stock" shall mean the Company's Class A Common Stock, par value $.10 per share. "Company" shall mean Triarc Companies, Inc., together with any successor thereto. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Fair Market Value" shall mean, (A) with respect to any property other than Shares, the fair market value of such property determined by such methods or procedures as shall be established from time to time by the Committee and (B) with respect to the Shares, as of any date, (i) the closing price per Share as reported on the composite tape for securities traded on the New York Stock Exchange for such date (or if not then trading on the New York Stock Exchange, the closing price per Share on the stock exchange or over-the-counter market on which the Shares are principally trading on such date), or, if there were no sales on such date, on the closest preceding date on which there were sales of Shares, or (ii) in the event there shall be no public market for the Shares on such date, the fair market value of the Shares as determined in good faith by the Committee. 3 "Option" shall mean a right to purchase Shares from the Company pursuant to the Plan. "Participant" shall mean any Cable Car Optionee whose Cable Car Option became a Replacement Option as a result of the Merger and is eligible to participate in the Plan pursuant to Section 5 hereof. "Person" shall mean any individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity. "Plan" shall mean this Triarc Companies, Inc. Stock Option Plan for Cable Car Employees. "Replacement Option Award Agreements" shall mean those Cable Car Award Agreements that were assumed by the Company pursuant to the Merger and evidence the Replacement Options. "Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time. "SEC" shall mean the Securities and Exchange Commission or any successor thereto, and shall include the Staff thereof. "Shares" shall mean the common shares of the Company, $.10 par value, or such other securities of the Company (i) into which such common shares shall be changed by reason of a recapitalization, merger, consolidation, split-up, combination, exchange of shares or other similar transaction or (ii) as may be determined by the Committee pursuant to Section 4(b). "Subsidiary" shall mean (i) any entity that, directly or indirectly, is controlled by the Company and (ii) any entity in which the Company has a significant equity interest, in either case as determined by the Committee SECTION 3. ADMINISTRATION. (a) The Plan shall be administered by the Committee. Subject to the terms of the Plan, the Replacement Option Award Agreements and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: (i) determine the terms and conditions of any Option; (ii) determine whether, to what extent and under what circumstances Options may be canceled, forfeited or suspended and the method or methods by which Options may be settled, exercised, canceled, forfeited or suspended; (iii) interpret, administer reconcile 4 any inconsistency, correct any default and/or supply any omission in the Plan and any instrument or Agreement relating to, or Option made under, the Plan; (iv) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (vi) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. (b) Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Option shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all Persons, including the Company, any Affiliate, any Participant, any holder or beneficiary of any Option and any shareholder. (c) No member of the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any Option hereunder. SECTION 4. SHARES AVAILABLE FOR OPTIONS. (a) SHARES AVAILABLE. Subject to adjustment as provided in Section 4(b), the aggregate number of Shares with respect to which Options may be granted under the Plan shall be 154,931. (b) ADJUSTMENTS. In the event that the Committee determines that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company, or other similar corporate transaction or event affects the Shares such that an adjustment is determined by the Committee in its discretion to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number of Shares or other securities of the Company (or number and kind of other securities or property) with respect to which Options may be granted, (ii) the number of Shares or other securities of the Company (or number and kind of other securities or property) subject to outstanding Options, and (iii) the exercise price with respect to any Option or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Option in consideration for the cancellation of such Option in an amount equal to the excess, if any, of the Fair Market Value of the Shares subject to the Options over the aggregate exercise price of such Option. 5 (c) SOURCES OF SHARES DELIVERABLE UNDER OPTIONS. Any Shares delivered pursuant to an Option may consist, in whole or in part, of authorized and unissued Shares or of treasury Shares or of Shares purchased on the open market. SECTION 5. ELIGIBILITY. Any Cable Car Optionee who was a holder of a Cable Car Option immediately prior to the Effective Time of the Merger and who received a Replacement Option (which has not been exercised or expired prior to the Effective Date) shall be a Participant under the Plan. SECTION 6. STOCK OPTIONS. (a) OPTIONS. The Replacement Options issued hereunder shall have the following terms and conditions: (i) the exercise price of the Replacement Options will be determined pursuant to Section 6(b) below, (ii) the number of Shares issuable upon exercise of each Replacement Option shall be determined by multiplying the number of Shares issuable upon exercise of the applicable Cable Car Option by 0.1722 (with the result of such calculation rounded to the nearest whole number), (iii) all Replacement Options shall be fully vested and exercisable pursuant to the Merger, and (iv) each Replacement Option shall have the same expiration date as the Cable Car Option it is replacing. (b) EXERCISE PRICE. The exercise price of a Replacement Option shall be determined by dividing the exercise price of the Cable Car Option as set forth in the applicable Cable Car Award Agreement by 0.1722 (with the result of such calculation rounded to the nearest whole cent). (c) EXERCISE. Each Replacement Option shall be exercisable at such times and subject to such terms and conditions as specified in the applicable Cable Car Award Agreement or thereafter (taking into account the acceleration of vesting as a result of the Merger). The Committee may impose such conditions with respect to the exercise of Options, including without limitation, any relating to the application of federal or state securities laws, as it may deem necessary or advisable. (d) PAYMENT. No Shares shall be delivered pursuant to any exercise of an Option until payment in full of the aggregate exercise price therefor is received by the Company. Such payment may be made in cash or by check. SECTION 7. AMENDMENT AND TERMINATION. (a) AMENDMENTS TO THE PLAN. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; PROVIDED that no such amendment, alteration, suspension, discontinuation or termination shall be made without shareholder approval if such approval is necessary to comply with any tax or 6 regulatory requirement applicable to the Plan; and PROVIDED, FURTHER, that any such amendment, alteration, suspension, discontinuance or termination that would impair the rights of any Participant or any holder or beneficiary of any Option theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary. (b) AMENDMENTS TO OPTIONS. The Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Option theretofore granted, prospectively or retroactively; PROVIDED that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would impair the rights of any Participant or any holder or beneficiary of any Option theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary. (c) ADJUSTMENT OF OPTIONS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR NONRECURRING EVENTS. The Committee is hereby authorized to make adjustments in the terms and conditions of, and the criteria included in, Options in recognition of unusual or nonrecurring events (including, without limitation, the events described in Section 4(b) hereof) affecting the Company, any Affiliate or the financial statements of the Company or any Affiliate, or of changes in applicable laws, regulations or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan. SECTION 8. GENERAL PROVISIONS. (a) NONTRANSFERABILITY. Each Option shall be exercisable only by the Participant during the Participant's lifetime, or, if permissible under applicable law, by the Participant's legal guardian or representative and no Option may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant otherwise than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate; provided that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. (b) NO RIGHTS TO OPTIONS. No Participant or other Person shall have any claim to be granted any Option, and there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Options. The terms and conditions of Options and the Committee's determinations and interpretations with respect thereto need not be the same with respect to each Participant (whether or not such Participants are similarly situated). 7 (c) SHARE CERTIFICATES. All certificates for Shares or other securities of the Company or any Affiliate delivered under the Plan pursuant to any Option or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Shares or other securities are then listed, and any applicable Federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. (d) WITHHOLDING. A Participant may be required to pay to the Company or any Affiliate and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any Option, from any payment due or transfer made under any Option or under the Plan or from any compensation or other amount owing to a Participant the amount (in cash, Shares, other securities, other Option or other property) of any applicable withholding taxes in respect of an Option, its exercise, or any payment or transfer under an Option or under the Plan and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. (e) AWARD AGREEMENTS. Each Cable Car Award Agreement has been assumed by the Company, as amended pursuant to the Merger Agreement, and as provided for herein. (f) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained in the Plan shall prevent the Company or any Affiliate from adopting or continuing in effect other compensation arrangements, which may, but need not, provide for the grant of options (subject to shareholder approval if such approval is required), and such arrangements may be either generally applicable or applicable only in specific cases. (g) NO RIGHT TO EMPLOYMENT. The grant of an Option shall not be construed as giving a Participant the right to be retained in the employ of, or in any consulting relationship to, the Company or any Affiliate. Further, the Company or an Affiliate may at any time dismiss a Participant from employment or discontinue any consulting relationship, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or in any Cable Car Award Agreement or Award Agreement. (h) NO RIGHTS AS SHAREHOLDER. Subject to the provisions of the applicable Option, no Participant or holder or beneficiary of any Option shall have any rights as a shareholder with respect to any Shares to be distributed under the Plan until he or she has become the holder of such Shares. 8 (i) GOVERNING LAW. The validity, construction and effect of the Plan and any rules and regulations relating to the Plan and any Award Agreement shall be determined in accordance with the laws of the State of Delaware. (j) SEVERABILITY. If any provision of the Plan or any Option is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or as to any Person or Option, or would disqualify the Plan or any Option under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Option, such provision shall be stricken as to such jurisdiction, Person or Option and the remainder of the Plan and any such Option shall remain in full force and effect. (k) OTHER LAWS. The Committee may refuse to issue or transfer any Shares or other consideration under an Option if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such other consideration might violate any applicable law or regulation or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Option shall be promptly refunded to the relevant Participant, holder or beneficiary. Without limiting the generality of the foregoing, no Option granted hereunder shall be construed as an offer to sell securities of the Company, and no such offer shall be outstanding, unless and until the Committee in its sole discretion has determined that any such offer, if made, would be in compliance with all applicable requirements of the U.S. federal and any other applicable securities laws. (l) NO TRUST OR FUND CREATED. Neither the Plan nor any Option shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Option, such right shall be no greater than the right of any unsecured general creditor of the Company or any Affiliate. (m) NO FRACTIONAL SHARES. No fractional Shares shall be issued or delivered pursuant to the Plan or any Option, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be canceled, terminated, or otherwise eliminated. (n) HEADINGS. Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed 9 in any way material or relevant to the construction or interpretation of the Plan or any provision thereof. SECTION 10. TERM OF THE PLAN. (a) EFFECTIVE DATE. The Plan shall be effective as of November 25, 1997 (the "Effective Date"). (b) EXPIRATION DATE. The Plan shall remain in effect until all Options hereunder have been exercised or expire. No Option shall be granted under the Plan after the Effective Date. Unless otherwise expressly provided in the Plan or in an applicable Cable Car Award Agreement, any Option evidenced hereunder may, and the authority of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Option or to waive any conditions or rights under any such Option shall, continue until all Options evidenced hereunder have been exercised or expire. EX-5.1 3 OPINION OF PWRW&G EXHIBIT 5.1 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 Avenue of the Americas New York, New York 10019-6064 January 22, 1998 Triarc Companies, Inc. 280 Park Avenue New York, New York 10017 Ladies and Gentlemen: In connection with the Registration Statement on Form S-8 (the "Registration Statement") of Triarc Companies, Inc., a Delaware corporation (the "Company"), filed with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Act"), and the rules and regulations promulgated thereunder, we have been requested by the Company to render this opinion relating to 154,931 shares of Class A Common Stock, par value $.10 per share, of the Company (the "Option Shares") to be issued upon exercise of the options granted under the Triarc Companies, Inc. Stock Option Plan for Cable Car Employees (the "Plan"). Triarc Companies, Inc. 2 In connection with furnishing this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of (i) the Registration Statement, (ii) the Certificate of Incorporation of the Company, as amended on or prior to the date hereof, (iii) the By-laws of the Company, as amended on or prior to the date hereof, (iv) the Plan and (v) all such corporate records, agreements and other instruments of the Company, and all such other certificates, agreements and documents, as we have considered relevant and necessary as a basis for the opinion hereinafter expressed. In our examination of the aforesaid documents, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the documents reviewed by us, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic, reproduced or conformed copies of valid existing agreements or other documents and the authenticity of all of such latter documents. In expressing our opinion herein, we have relied, as to certain matters of fact, on representations, statements or certificates of officers of the Company and public officials. Based upon the foregoing, and subject to the assumptions, exceptions and qualifications stated herein, we are of the opinion that, when issued in accordance with the terms of the Plan, the Shares will be duly authorized, validly issued, fully paid and non-assessable. Triarc Companies, Inc. 3 Our opinion expressed above is limited to the General Corporation Law of the State of Delaware. Our opinion is rendered only with respect to the laws and the rules, regulations and orders thereunder which are currently in effect. Please be advised that no member of this firm is admitted to practice in the State of Delaware. We hereby consent to the use of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required by the Act or the rules and regulations of the Commission thereunder. Very truly yours, PAUL, WEISS, RIFKIND, WHARTON & GARRISON EX-23.1 4 INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Triarc Companies, Inc. on Form S-8 of our reports dated March 31, 1997, appearing in and incorporated by reference in the Annual Report on Form 10-K of Triarc Companies, Inc. for the year ended December 31, 1996. DELOITTE & TOUCHE LLP New York, New York January 22, 1998 -----END PRIVACY-ENHANCED MESSAGE-----