-----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, S5A+bGfAbC0BadWHZeVkg/tE/q/o0KaQcomEYHOZ4d7vVkZ836lhN2ZMjR3z2uaj rfXEbSGeplr5MtwQO2D6NQ== 0000950142-98-000774.txt : 19981015 0000950142-98-000774.hdr.sgml : 19981015 ACCESSION NUMBER: 0000950142-98-000774 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981014 SROS: NYSE GROUP MEMBERS: DWG ACQUISITION GROUP L P GROUP MEMBERS: DWG ACQUISITION GROUP, L.P. GROUP MEMBERS: NELSON PELTZ GROUP MEMBERS: PETER W. MAY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-11818 FILM NUMBER: 98725365 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DWG ACQUISITION GROUP L P CENTRAL INDEX KEY: 0000928266 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 380471180 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 900 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2122303000 MAIL ADDRESS: STREET 1: 900 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 AMENDMENT NO. 8 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (AMENDMENT NO. 8) ----------------------- TRIARC COMPANIES, INC. (Name of Issuer) CLASS A COMMON STOCK, PAR VALUE $.10 PER SHARE (Title of Class of Securities) 895927 10 1 (CUSIP Number) ----------------------- PETER W. MAY C/O TRIARC COMPANIES, INC. 280 PARK AVENUE NEW YORK, N.Y. 10017 TEL. NO.: (212) 451-3000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) ----------------------- OCTOBER 12, 1998 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 250.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for the other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP NO. 895927 10 1 Page 2 of 16 Pages ----------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DWG ACQUISITION GROUP, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ] (b)[ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY OWNED -0- (See Item 5) BY EACH REPORTING PERSON 8 SHARED VOTING POWER WITH 5,982,867 (See Item 5) 9 SOLE DISPOSITIVE POWER -0- (See Item 5) 10 SHARED DISPOSITIVE POWER 5,982,867 (See Item 5) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,982,867 (See Item 5) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25% (See Item 5) 14 TYPE OF REPORTING PERSON PN SCHEDULE 13D CUSIP NO. 895927 10 1 Page 3 of 16 Pages ----------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON NELSON PELTZ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ] (b)[ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY OWNED 637,100 (See Item 5) BY EACH REPORTING PERSON 8 SHARED VOTING POWER WITH 5,982,867 (See Item 5) 9 SOLE DISPOSITIVE POWER 637,100 (See Item 5) 10 SHARED DISPOSITIVE POWER 5,982,867 (See Item 5) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,619,767 (See Item 5) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27% (See Item 5) 14 TYPE OF REPORTING PERSON IN SCHEDULE 13D CUSIP NO. 895927 10 1 Page 4 of 16 Pages ----------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PETER W. MAY 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ] (b)[ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY OWNED 433,466 (See Item 5) BY EACH REPORTING PERSON 8 SHARED VOTING POWER WITH 5,982,867 (See Item 5) 9 SOLE DISPOSITIVE POWER 433,466 (See Item 5) 10 SHARED DISPOSITIVE POWER 5,982,867 (See Item 5) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,416,333 (See Item 5) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.4% (See Item 5) 14 TYPE OF REPORTING PERSON IN CUSIP NO. 895927 10 1 ----------- AMENDMENT NO. 8 TO SCHEDULE 13D This Amendment No. 8 amends and supplements the Schedule 13D dated October 13, 1992 (the "Original Statement"), as amended and restated by Amendment No. 6 dated May 3, 1993 and as amended by Amendment No. 7 dated February 14, 1996 (the Original Statement, as so amended shall be known as the "Statement"), with respect to the Class A Common Stock (formerly Common Stock), par value $.10 per share (the "Common Stock"), of Triarc Companies, Inc., a Delaware corporation and successor by merger to Triarc Companies, Inc., an Ohio corporation formerly named DWG Corporation (the "Company"). Except as set forth below, there are no changes to the information set forth in the Statement. Item 4. Purpose of Transaction. Item 4 of the Statement is supplemented in the following manner: On October 12, 1998, Messrs. Nelson Peltz and Peter W. May made a proposal (the "Proposal") to the Board of Directors of the Company (the "Board of Directors") to acquire, through an entity to be formed by them, all of the shares of Common Stock and Class B Common Stock, par value $.10 per share (the "Class B Common Stock" and, together with the Common Stock, collectively, the "Stock"), of the Company not currently owned by DWG Acquisition Group, L.P. ("Group"). Each holder (other than Group) of the Stock Page 5 of 16 CUSIP NO. 895927 10 1 ----------- would receive for each share of Stock $18.00 payable in cash and securities. The specific terms of the securities will be negotiated with a Special Committee (the "Special Committee"), formed by the Board of Directors on October 12, 1998, to evaluate the Proposal, and will be valued on a fully distributed basis in a normalized market. If the transaction is consummated, the Common Stock would be delisted from the New York Stock Exchange. The Proposal is subject to, among other things, (i) the execution of a definitive acquisition agreement containing the terms and conditions set forth in the proposal letter, dated October 12, 1998, from Messrs. Peltz and May to the Company (a copy of which is attached hereto as Exhibit 1) and such other conditions as are customary in agreements of that sort (including but not limited to customary representations, warranties, covenants and conditions), (ii) the approval of the transaction by the Special Committee, the Board of Directors and the Stockholders of the Company, (iii) receipt of satisfactory financing for the transaction, (iv) receipt of a fairness opinion from the financial advisor to the Special Committee that indicates that the proposed transaction is fair from a financial point of view to the Stockholders of the Company and (v) the expiration of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. A copy of the press release issued by the Company on October 12, 1998 is attached hereto as Exhibit 2. Messrs. Peltz and May expressly reserve the right to modify or withdraw the Proposal, and do not have any Page 6 of 16 CUSIP NO. 895927 10 1 ----------- obligation to the Company or its Stockholders with respect to the Proposal, prior to the execution and delivery of the definitive acquisition agreement. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Item 6 of the Statement is supplemented in the following manner: The Company has a transferable right of first refusal with respect to all of the shares of Class B Common Stock (the "Right"). In order to induce Messrs. Peltz and May to make the Proposal, the Company has agreed that if the Right is triggered and the Company determines not to exercise the Right, the Company will immediately assign the Right to Group. A copy of the letter agreement, dated October 12, 1998, from the Company to Messrs. Peltz and May, is attached hereto as Exhibit 3. Item 7. Material To Be Filed as Exhibits. The following documents are included in this Statement as Exhibits hereto: 1. Letter, dated October 12, 1998, from Messrs. Nelson Peltz and Peter W. May to the Company. 2. Press release issued by the Company, dated October 12, 1998. 3. Letter, dated October 12, 1998, from the Company to Messrs. Nelson Peltz and Peter W. May. Page 7 of 16 CUSIP NO. 895927 10 1 ----------- SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this Statement is true, complete and correct. Dated: October 13, 1998 DWG ACQUISITION GROUP, L.P. By: /s/ Nelson Peltz -------------------- Name: Nelson Peltz Title: General Partner By: /s/ Peter W. May -------------------- Name: Peter W. May Title: General Partner /s/ Nelson Peltz ---------------- Nelson Peltz /s/ Peter W. May ---------------- Peter W. May Page 8 of 16 CUSIP NO. 895927 10 1 ----------- Exhibit Index ------------- Exhibit Description Page No. - ------- ----------- -------- 1 Stock Purchase Agreement dated Filed with as of October 1, 1992 by and Original between the Purchaser, Posner, Statement Posner Trust and Security Management. 2 Exchange Agreement dated as of Filed with October 1, 1992 between the Original Company and Security Management. Statement 3 Agreement dated as of October 1, Filed with 1992 between the Company and the Original Purchaser. Statement 4 Agreement of Limited Partnership Filed with of the Purchaser dated as of Original September 25, 1992. Statement 5 Joint Filing Agreement of the Filed with Purchaser, Peltz and May. Original Statement 6 Memorandum of Understanding, Filed with dated January 21, 1993, by and Amendment between the Purchaser and No. 2 William A. Ehrman, individually and derivatively on behalf of SEPSCO. 7 Letter dated January 25, 1993 Filed with from Steven Posner to the Amendment Purchaser (including proposed No. 2 terms and conditions of Consulting Agreement to be entered into between the Company and Steven Posner). 8 Undertaking and Agreement, dated Filed with February 9, 1993, executed by Amendment the Purchaser. No. 3 9 Amendment No. 3 dated as of Filed with April 14, 1993 to Agreement of Amendment Limited Partnership of the No. 4 Purchaser. 10 Citibank Loan Documents Filed with (Exhibits and Schedules Amendment omitted). No. 4 11 Republic Loan Documents Filed with (Exhibits and Schedules Amendment omitted). No. 4 Page 9 of 16 CUSIP NO. 895927 10 1 ----------- Exhibit Description Page No. - ------- ----------- -------- 12 Pledge and Security Agreement, Filed with dated as of April 5, 1993, Amendment between the Purchaser and No. 5 Citibank. 13 Custodial Loan Documents. Filed with Amendment No. 5 14 Agreement, dated May 2, 1994 Filed with among Nelson Peltz, Peter W. May Amendment and Leon Kalvaria No. 6 15 Amended and Restated Pledge and Filed with Security Agreement, dated as of Amendment July 25, 1994 between the No. 6 Purchaser and Citibank. 16 Amendment No. 1 dated as of Filed with November 15, 1992 to Agreement Amendment of Limited Partnership of the No. 7 Purchaser. 17 Amendment No. 2 dated as of Filed with March 1, 1993 to Agreement of Amendment Limited Partnership of the No. 7 Purchaser. 18 Amendment No. 4 dated as of Filed with January 1, 1995 to Agreement of Amendment Limited Partnership of the No. 7 Purchaser. 19 Amendment No. 5 dated as of Filed with January 1, 1996 to Agreement of Amendment Limited Partnership of the No. 7 Purchaser. 20 NationsBank Loan Documents Filed with (Exhibits and Schedules Amendment omitted). No. 7 21 Letter, dated October 12, 1998, Filed from Messrs. Nelson Peltz and herewith Peter W. May to the Company 22 Press release, issued by the Filed Company, dated October 12, 1998 herewith 23 Letter, dated October 12,1998, Filed from the Company to Messrs. herewith Nelson Peltz and Peter W. May Page 10 of 16 EX-21 2 EXHIBIT 21 CUSIP NO. 895927 10 1 ----------- Exhibit 21 NELSON PELTZ PETER W. MAY October 12, 1998 Board of Directors Triarc Companies, Inc. 280 Park Avenue New York, NY 10017 Gentlemen: We are pleased to propose an acquisition of all of the outstanding shares of Common Stock not currently owned by DWG Acquisition Group, L.P. ("Group") on the terms and conditions set forth in this letter. Each holder (other than Group) of Class A Common Stock, par value $.10 per share, and Class B Common Stock, par value $.10 per share (the "Common Stock") of Triarc Companies, Inc. (the "Company") would receive for each share of Common Stock $18.00 payable in cash and securities. The securities, the specific terms of which will be negotiated with the Special Committee referred to below, will be valued on a fully distributed basis in a normalized market. This offer represents approximately 37% premium over last Friday's closing stock price of $13-3/16. We understand that in transactions of this nature it is typical for a special committee of independent directors (the "Special Committee") to be established to review the Page 11 of 16 CUSIP NO. 895927 10 1 ----------- acquisition proposal. We suggest that the formation of a Special Committee be accomplished during today's Board of Directors meeting. We will forward in due course to the members of that Special Committee a form of acquisition agreement setting forth our proposed terms and conditions of the proposed transaction. Our proposal is conditioned upon the execution of a definitive acquisition agreement containing the terms and conditions set forth above and such other mutually agreeable terms and conditions as are customary in agreements of this sort, including but not limited to customary representations, warranties, covenants and conditions. It is also subject to, among other things, (1) the approval of the transaction by the Special Committee, the Board of Directors and the Stockholders of the Company, (2) receipt of satisfactory financing for the transaction, (3) receipt of a fairness opinion from the financial adviser to the Special Committee that indicates that the proposed transaction is fair from a financial point of view to the Stockholders of the Company and (4) the expiration of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. We would like to proceed with this transaction as soon as possible. We reserve the right to modify or withdraw this proposal at any time prior to the execution and delivery of the definitive acquisition agreement in the event that we become aware of any facts or circumstances that we determine, in our sole discretion, make such action appropriate. We will not have any obligation to the Company or its Stockholders with Page 12 of 16 CUSIP NO. 895927 10 1 ----------- respect to this proposal prior to the execution and delivery of the definitive acquisition agreement. We and our advisers are prepared promptly to meet with the Special Committee and its advisers to answer any questions that may arise regarding our proposal and the proposed transaction. Very truly yours, /s/ Nelson Peltz ---------------- Nelson Peltz /s/ Peter W. May ---------------- Peter W. May Page 13 of 16 EX-22 3 EXHIBIT 22 Exhibit 22 CONTACT: Anne A. Tarbell PRESS RELEASE (212) 451-3030 For Immediate Release TRIARC RECEIVES $18 PER SHARE GOING-PRIVATE PROPOSAL NEW YORK, NY -- OCTOBER 12, 1998 -- Triarc Companies, Inc. (NYSE: TRY) announced today that its Board of Directors has formed a Special Committee to evaluate a proposal it has received from Nelson Peltz and Peter May, the Chairman and Chief Executive Officer and the President and Chief Operating Officer, respectively, of the Company, for the acquisition by an entity to be formed by them of all of the outstanding shares of Common Stock of the Company (other than the 6 million shares owned by an affiliate of Messrs. Peltz and May), for $18 per share payable in cash and securities. The proposal represents an approximate 37% premium over last Friday's closing stock price of $13-3/16. The specific terms of the securities will be negotiated with the Special Committee and will be valued on a fully distributed basis in a normalized market. The proposal is subject, among other things, to (1) the execution and delivery of a definitive acquisition agreement, (2) receipt of a fairness opinion from the financial adviser to the Special Committee of the Board, (3) receipt of satisfactory financing for the transaction, (4) approval of the proposed transaction by the Special Committee of the Board, the full Board of Directors and the Company's Stockholders and (5) the expiration of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. Page 14 of 16 There can be no assurance that a definitive acquisition agreement will be executed and delivered or that the proposed transaction will be consummated. Triarc is a branded consumer products company in beverages (Snapple(R) beverages, Mistic(R) Brands, Stewart's(R) and Royal Crown(R)) and restaurants (Arby's(R), T.J. Cinnamons(R) and Pasta Connection(TM)). # # # NOTE ---- The securities proposed to be issued have not been registered under the Securities Act of 1933, as amended, and may not be offered or sold within the United States except pursuant to an exemption from the Securities Act, or in a transaction not subject to the registration requirements of the Securities Act. This press release shall not constitute an offer to sell or a solicitation of an offer to buy such securities. Page 15 of 16 EX-23 4 EXHIBIT 23 Exhibit 23 T R I A R C Triarc Companies, Inc. 280 Park Avenue New York, NY 10017 Tel 212 451 3000 October 12, 1998 Messrs. Nelson Peltz and Peter W. May 280 Park Avenue New York, NY 10017 Gentlemen: Triarc Companies, Inc. (the "Company") has a transferable right of first refusal with respect to all of the shares of Class B Common Stock, par value $.10 per share of the Company (the "Right"). To induce you to make the going-private proposal which you have today discussed with us, the Company hereby agrees that if the Right is triggered and the Company determines not to exercise the Right, the Company will immediately assign the Right to your affiliate DWG Acquisition Group, L.P. This agreement has been authorized and approved by the Special Committee which was appointed today by the Board of Directors of the Company to consider your proposal. Very truly yours, TRIARC COMPANIES, INC. By: /s/ Jack Barnes ------------------- ACCEPTED: /s/ Nelson Peltz - ---------------- Nelson Peltz /s/ Peter W. May - ---------------- Peter W. May Page 16 of 16 -----END PRIVACY-ENHANCED MESSAGE-----