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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): APRIL 19, 2007
TRIARC COMPANIES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction
of incorporation)
1-2207 38-0471180
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(Commission File Number) (IRS Employer Identification No.)
280 PARK AVENUE
NEW YORK, NY 10017
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(Address of principal executive offices) (Zip Code)
(212) 451-3000
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Registrant's telephone number, including area code:
NOT APPLICABLE
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(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 (SEE General Instruction A.2. below):
|_| 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))
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ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
In connection with its corporate restructuring, Triarc Companies,
Inc. ("Triarc") announced on April 20, 2007 that a definitive agreement had
been entered into pursuant to which Deerfield Triarc Capital Corp. (the
"Buyer"), a diversified financial company that is externally managed by a
subsidiary of Deerfield & Company LLC ("Deerfield"), will acquire Deerfield, a
Chicago-based fixed income asset manager in which Triarc owns a controlling
interest.
This definitive agreement, the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of April 19, 2007, has been entered into by and
among the Buyer, DFR Merger Company, LLC, a subsidiary of the Buyer ("Buyer
Sub"), Deerfield and Triarc (in its capacity as the sellers' representative).
Simultaneously with the entering into of the Merger Agreement, the Buyer also
entered into a Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of April 19, 2007, with Triarc Deerfield Holdings, LLC (a
subsidiary of Triarc) and Triarc (in its capacity as the sellers'
representative).
Set forth below are brief descriptions of the material terms and
conditions of each of the Merger Agreement and the Registration Rights
Agreement. These descriptions do not purport to be complete and are qualified
in their entirety by the Merger Agreement, which is attached hereto as Exhibit
2.1, and the Registration Rights Agreement, which is attached as Exhibit 10.1,
each of which are incorporated herein by reference.
MERGER AGREEMENT
Upon the terms and subject to the conditions set forth in the
Merger Agreement, at the contemplated effective time, Buyer Sub will be merged
with and into Deerfield, the result of which will be that Deerfield will become
an indirect wholly-owned subsidiary of the Buyer (the "Merger").
The aggregate consideration to be received by Triarc and other
members of Deerfield in connection with the Merger is approximately $300
million, consisting of $145 million in cash, approximately 9.6 million shares
of common stock of the Buyer (the "Buyer Common Stock") (which had a value of
approximately $145 million based on the average of the closing prices over the
10 trading days prior to April 19, 2007), the distribution of approximately
309,000 shares of Buyer Common Stock currently owned by Deerfield (having a
value as of April 19, 2007 of approximately $4.6 million), and cash
distributions from Deerfield of approximately $6 million plus amounts for taxes
relating to pre-closing periods prior to the closing. The consideration to be
received by Triarc and the other members of Deerfield is subject to adjustment
under certain circumstances, including a deduction of an amount equal to the
principal amount of specified debt of Deerfield outstanding (together with all
accrued and unpaid interest).
Accordingly, Triarc expects to receive a minimum of approximately
$170 million in consideration for its capital interest of approximately 64% and
its profits interest of at least 52% in Deerfield. As a result of the
transaction, Triarc expects that it will own in excess of 10% of the Buyer
Common Stock.
Approximately 2.5 million shares of the Buyer Common Stock being
issued in the Merger will be deposited into an escrow account (the "Escrow
Fund") and will be available to satisfy the post-closing indemnification and
other payment obligations of the pre-closing members of Deerfield. Subject to
certain limitations (including caps and baskets) and qualifications, the Merger
Agreement contains customary indemnification provisions for the benefit of the
Buyer as well as the pre-closing members of Deerfield. Barring no outstanding
indemnification claims, the Escrow Fund will terminate one year from closing
date of the Merger, and any remaining shares of Buyer Common Stock and other
assets in the Escrow Fund will be released to the pre-closing members of
Deerfield, including Triarc.
Deerfield and Triarc (as the sellers' representative), on the one
hand, and the Buyer and Buyer Sub, on the other hand, have made customary
representations, warranties, covenants and agreements to each other in the
Merger Agreement. The completion of the Merger is subject to the satisfaction
or waiver of conditions customary to transactions of this type including, among
others:
o the expiration or termination of the applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended;
o the approval of the issuance of shares of Buyer Common Stock
in the Merger by the Buyer's stockholders representing (1) a
majority of the votes cast at a meeting to approve such
matter and (2) a majority of the votes cast by stockholders
not affiliated with Deerfield;
o the Buyer having obtained debt financing for the aggregate
cash consideration payable in the Merger and related fees and
expenses;
o Deerfield having obtained consents from the requisite number
of its clients with respect to the Merger;
o the resale registration statement contemplated by the
Registration Rights Agreement having been declared effective
by the SEC;
o the Buyer having furnished to Deerfield the requisite REIT
qualification opinion; and
o if applicable, the satisfaction by Triarc of certain put
rights held by certain Deerfield members.
The closing of the Merger is expected to occur in the third
quarter of 2007. When the transaction closes, the Buyer will discontinue the
use of "Triarc" in its name.
The Merger Agreement also contains certain customary termination
rights for both Deerfield and the Buyer, including the right of either party to
terminate the Merger Agreement if the closing of the Merger has not occurred by
October 19, 2007. In addition, Deerfield has the right to terminate if the
Buyer has not obtained a debt financing commitment reasonably satisfactory to
the Buyer and Triarc by May 19, 2007, and both Deerfield and the Buyer have the
right to terminate if the Buyer has not obtained a debt financing commitment
reasonably satisfactory to the Buyer and Triarc by June 19, 2007.
REGISTRATION RIGHTS AGREEMENT
The Registration Rights Agreement, which was initially entered
into by the Buyer, Triarc Deerfield Holdings, LLC and Triarc (in its capacity
as sellers' representative) but may be subsequently entered into by any and all
of the other members of Deerfield, provides, among other things, that the Buyer
must file, no later than 30 days after entering into the Registration Rights
Agreement, a registration statement to permit resales of the shares of Buyer
Common Stock being issued pursuant to the Merger Agreement. The Buyer must use
commercially reasonable efforts to keep the registration statement continuously
effective (subject to specified limitations) for a period of two years or until
such shares of Buyer Common Stock cease to be registrable securities under the
Registration Rights Agreement. In addition, the Registration Rights Agreement
grants additional "demand" and "piggyback" registration rights to holders of
shares of Buyer Common Stock issued in connection with the Merger that continue
to be registrable securities under the Registration Rights Agreement after the
resale registration statement described above is no longer required to be kept
effective.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
EXHIBIT NO. DESCRIPTION
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2.1 Agreement and Plan of Merger, dated as of
April 19, 2007, by and among Deerfield
Triarc Capital Corp., DFR Merger Company,
LLC, Deerfield & Company LLC and, solely
for the purposes set forth therein, Triarc
Companies, Inc. (in such capacity, the
Sellers' Representative).
10.1 Registration Rights Agreement, dated as of
April 19, 2007, among Deerfield Triarc
Capital Corp., the parties identified as
Stockholders on the signature pages thereto
and the other persons who may become
parties thereto from time to time in
accordance therewith and Triarc Companies,
Inc., as the Sellers' Representative.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, Triarc has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: April 24, 2007
TRIARC COMPANIES, INC.
By: /s/ Stuart I. Rosen
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Name: Stuart I. Rosen
Title: Senior Vice President and
Associate General Counsel,
and Secretary
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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2.1 Agreement and Plan of Merger, dated as of April
19, 2007, by and among Deerfield Triarc Capital
Corp., DFR Merger Company, LLC, Deerfield &
Company LLC and, solely for the purposes set
forth therein, Triarc Companies, Inc. (in such
capacity, the Sellers' Representative).
10.1 Registration Rights Agreement, dated as of April
19, 2007, among Deerfield Triarc Capital Corp.,
the parties identified as Stockholders on the
signature pages thereto and the other persons who
may become parties thereto from time to time in
accordance therewith and Triarc Companies, Inc.,
as the Sellers' Representative.