Exhibit 3.1
TRIARC COMPANIES, INC.
BY-LAWS
(as amended through November 16, 2000)
ARTICLE I
Offices
SECTION 1. Registered Office in Delaware. The registered office
of the Corporation (as defined in Article IX below) in the State of Delaware
shall be located at 1209 Orange Street in the City of Wilmington, County of
New Castle, and the name of the resident agent in charge thereof shall be The
Corporation Trust Company.
SECTION 2. Executive Offices. The Corporation shall maintain an
executive office in New York, New York, or such other location as the Board
of Directors shall determine.
SECTION 3. Other Offices. In addition to the registered office
in the State of Delaware and the principal executive office, the Corporation
may have offices at such other places within and without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
Meeting of Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders
of the Corporation for the election of directors and the transaction of such
other business as may be brought before the meeting in accordance with the
Certificate of Incorporation (as defined in Article IX below) and these
By-Laws shall be held on the date and at the time fixed from time to time
within thirteen (13) months after the date of the preceding annual meeting by
the Board of Directors, by a resolution adopted by the affirmative vote of a
majority of the total number of directors determined from time to time by the
Board of Directors pursuant to a resolution adopted pursuant to Section 3 of
Article III of these By-Laws. The annual meeting of stockholders of the
Corporation shall not be called or held otherwise than as provided in the
Certificate of Incorporation or in these By-Laws.
SECTION 2. Special Meeting. Special meetings of stockholders of
the Corporation may be called only at the direction of the Chairman and Chief
Executive Officer, the President and Chief Operating Officer or the Board of
Directors.
SECTION 3. Place of Meeting. Annual and special meetings of
stockholders of the Corporation shall be held at the registered office of the
Corporation in the City of Wilmington, County of New Castle, State of
Delaware, unless some other place within or without the State of Delaware
shall have been fixed by a resolution adopted by the Board and designated in
the notice of meeting.
SECTION 4. Notice of Meetings. Notice of every meeting of
stockholders of the Corporation, annual or special, stating the time, place,
if any, and, for special meetings, in general terms, the purpose or purposes
thereof, shall be given by the Chairman and Chief Executive Officer or the
President and Chief Operating Officer or the Secretary of the Corporation to
each stockholder of record entitled to vote at the meeting. Notice of the
time, place, if any, and purposes of any annual or special meeting of
stockholders may be dispensed with if every stockholder entitled to notice of
and to vote at such meeting shall attend, either in person or by proxy, or if
every absent stockholder entitled to such notice and vote shall, in a writing
or writings or by electronic transmission filed with the records of the
meeting either before or after the holding thereof, waive such notice.
SECTION 5. Means of Giving Notice. A notice of any annual or
special meeting of stockholders of the Corporation may be given either
personally or by mail or other means of written communication, charges
prepaid, addressed to the stockholder at such stockholder's address appearing
on the books of the Corporation or given by such stockholder to the
Corporation for the purpose of notice. Notices given to stockholders may be
given by electronic transmission in the manner provided by law.
SECTION 6. Time of Notice. Any required notice of any meeting
of stockholders of the Corporation shall be sent to each stockholder entitled
thereto not less than ten (10) nor more than sixty (60) days prior to the
date of the meeting.
SECTION 7. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date on which the resolution fixing the record date is
adopted and which record date shall not be more than sixty (60) or less than
ten (10) days before the date of any meeting of stockholders, nor more than
sixty (60) days prior to the time for such other action as hereinbefore
described; provided, however, that if no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held, and, for determining stockholders entitled to receive
payment of any dividend or other distribution or allotment of rights or to
exercise any rights of change, conversion or exchange of stock or for any
other purpose, the record date shall be at the close of business on the day
on which the Board of Directors adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting
(including by telegram, cablegram or other electronic transmission as
permitted by law), the Board of Directors may fix a record date, which shall
not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall be not more
than ten (10) days after the date upon which the resolution fixing the record
date is adopted. If no record date has been fixed by the Board of Directors
and no prior action by the Board of Directors is required by the Delaware
General Corporation Law, the record date shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken
is delivered to the Corporation in the manner prescribed by Article II,
Section 14 hereof. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the
Delaware General Corporation Law with respect to the proposed action by
written consent of the stockholders, the record date for determining
stockholders entitled to consent to corporate action in writing shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
SECTION 8. List of Stockholders. A complete list of
stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order for each class of stock and showing the address of each
such stockholder and the number of shares registered in the name of such
stockholder, shall be open to the examination of any such stockholder in the
manner provided by law.
The stockholder list shall also be open to the examination of any
stockholder during the whole time of the meeting as provided by law.
SECTION 9. Quorum. At any meeting of stockholders of the
Corporation the presence in person or by proxy of the holders of a majority
in voting power of the outstanding stock of the Corporation entitled to vote
shall constitute a quorum for the transaction of business brought before the
meeting in accordance with the Certificate of Incorporation and these By-Laws
and, a quorum being present, the affirmative vote of the holders of a
majority in voting power present in person or represented by proxy and
entitled to vote shall be required to effect action by stockholders;
provided, however, that the affirmative vote of a plurality in voting power
present in person or represented by proxy and entitled to vote shall be
required to effect elections of directors. The stockholders present at any
duly organized meeting of stockholders may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to have
less than a quorum.
SECTION 10. Adjournment. Any meeting of stockholders of the
Corporation may be adjourned from time to time, without notice other than by
announcement at the meeting by the chairman of the meeting at which such
adjournment is taken, and at any such adjourned meeting at which a quorum
shall be present any action may be taken that could have been taken at the
meeting originally called; provided, however, that if the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned meeting.
SECTION 11. Organization. At every meeting of stockholders of
the Corporation, the Chairman and Chief Executive Officer or, in the absence
of such officer, the President and Chief Operating Officer or, in the absence
of both such officers, such individual as shall have been designated by the
Chairman and Chief Executive Officer, or if such officer has not done so,
then by the President and Chief Operating Officer, or if such officer has not
done so, by a resolution adopted by the affirmative vote of a majority of the
Board of Directors, shall act as chairman of the meeting. The Secretary of
the Corporation or, in the absence of such officer, an Assistant Secretary in
attendance or, in the absence of the Secretary and an Assistant Secretary, an
individual appointed by the chairman of the meeting shall act as secretary of
the meeting and keep a record of the proceedings of the meeting.
SECTION 12. Agenda and Rules of Order. The chairman of the
meeting shall have sole authority to prescribe the agenda and rules of order
for the conduct of any meeting of stockholders of the Corporation and to
determine all questions arising thereat relating to the order of business and
the conduct of the meeting, except as otherwise required by law.
SECTION 13. Conduct of Business at Meetings. Except as
otherwise provided by law, at any annual or special meeting of stockholders
only such business shall be conducted as shall have been properly brought
before the meeting. Except as otherwise provided in this Article II or in
the Certificate of Incorporation, in order to be properly brought before the
meeting, such business must have either been:
(A) specified in the written notice of the meeting (or any supplement
thereto) given to stockholders of record on the record date for such meeting
by or at the direction of the Board of Directors; or
(B) brought before the meeting at the direction of the Chairman and
Chief Executive Officer, the President and Chief Operating Officer or the
Board of Directors.
SECTION 14. Stockholder Action by Consent. Any action required
or permitted to be taken by the holders of the issued and outstanding stock
of the Corporation may be effected at an
annual or special meeting of stockholders or by the consent in writing of
such stockholders or any of them, which writing shall be filed with the
minutes of proceedings of the stockholders. A telegram, cablegram or other
electronic transmission consenting to an action to be taken and transmitted
by a stockholder shall be deemed to be in writing for purposes of this
section to the extent permitted by law.
ARTICLE III
Board of Directors
SECTION 1. Board of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 2. Qualification of Director. Each director shall be
at least eighteen (18) years of age. Directors need not be stockholders of
the Corporation.
SECTION 3. Number of Directors. The Board of Directors shall
consist of not fewer than seven (7) nor more than fifteen (15) individuals,
the exact number to be fixed from time to time by the Board of Directors
pursuant to a resolution adopted by a majority of directors then in office.
SECTION 4. Election and Term of Office. The members of the
Board of Directors shall be elected by the stockholders at the annual meeting
of stockholders and each director shall hold office until the annual meeting
of stockholders next succeeding his or her election and until his or her
successor is elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification or removal.
SECTION 5. Vacancies. Any vacancy in the Board of Directors
caused by death, resignation, retirement, disqualification or removal or any
other cause (including an increase in the number of directors) may be filled
solely by resolution adopted by the affirmative vote of a majority of the
directors then in office, whether or not such majority constitutes less than
a quorum, or by a sole remaining director. Any new director elected to fill
a vacancy on the Board of Directors will serve for the remainder of the full
term of the director for which the vacancy occurred. No decrease in the size
of the Board of Directors shall have the effect of shortening the term of any
incumbent director.
SECTION 6. Resignation of Directors. Any director may resign
at any time. Such resignation shall be made in writing or by electronic
transmission and shall take effect at the time specified therein, and if no
time be specified, shall take effect at the time of its receipt by the
Chairman and Chief Executive Officer, the President and Chief Operating
Officer or the Secretary of the Corporation. The acceptance of a resignation
shall not be necessary to make it effective, but no resignation shall
discharge any accrued obligation or duty of a director.
SECTION 7. Removal of Directors. A duly elected director of
the Corporation may be removed from such position, with or without cause,
only by the affirmative vote of the holders of two-thirds (2/3) of the voting
power of the outstanding capital stock of the Corporation entitled to vote in
the election of directors, voting as a single class.
SECTION 8. Quorum of Directors. Except as otherwise required
by law or by the Certificate of Incorporation or by these By-Laws, (i) a
majority of the directors in office at the time of a duly assembled meeting
shall constitute a quorum and be sufficient for the transaction of business,
and (ii) any act of a majority of the directors present at a meeting at which
there is a quorum shall be the act of the Board of Directors.
SECTION 9. Place of Meeting. Subject to the provisions of
Section 10 of this Article III, the Board of Directors may hold any meeting
at such place or places within or without the State of Delaware as it may
determine.
SECTION 10. Organization Meeting. After each annual meeting of
stockholders of the Corporation, the Board of Directors shall meet
immediately at the place where such meeting of stockholders was held for the
purpose of organization, election of Executive Officers (as defined in
Section 1 of Article V), and the transaction of other business.
SECTION 11. Regular Meetings. Regular meetings of the Board of
Directors may be held at such times and at such places within or without the
State of Delaware as the Board of Directors shall from time to time determine.
SECTION 12. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman and Chief Executive Officer, the
President and Chief Operating Officer or any two directors, and any such
meeting shall be held at such time and at such place within or without the
State of Delaware as shall be specified in the notice of meeting.
SECTION 13. Notice of Meetings. Subject to the provisions of
Section 10 of this Article III, notice of the place, day and hour of every
meeting of the Board of Directors shall be given to each director by mailing
such notice at least two (2) days before the meeting to his or her last known
address or by personally delivering, telegraphing or telephoning such notice
to him or her at least twenty-four (24) hours before the meeting.
SECTION 14. Organization. The Chairman and Chief Executive
Officer or, in the absence of such officer, the President and Chief Operating
Officer shall call meetings of the Board of Directors to order and shall act
as the chairman thereof. In the absence of the Chairman and Chief Executive
Officer and the President and Chief Operating Officer, a majority of the
directors present may elect as chairman of the meeting any director present.
The Secretary of the Corporation or, in the absence of such officer, an
Assistant Secretary in attendance or, in the absence of the Secretary and an
Assistant Secretary, an individual appointed by the chairman of the meeting
shall act as a secretary of the meeting and keep a record of the proceedings
of the meeting.
SECTION 15. Order of Business. Unless otherwise determined by
the Board of Directors the order of business and rules of order at any
meeting of the Board of Directors shall be determined by the chairman of the
meeting.
SECTION 16. Adjournment. Any meeting of the Board of Directors
may be adjourned from time to time by a majority of the directors present,
whether or not they shall constitute a quorum, and no notice shall be
required of any adjourned meeting beyond the announcement of such adjournment
at the meeting.
SECTION 17. Action by Board of Directors Without a Meeting.
Unless otherwise restricted by the Certificate of Incorporation or these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting if
all the members of the Board or the committee, as the case may be, consent
thereto in writing or by electronic transmission, and the writing or writings
or electronic transmission or transmissions are filed with the minutes of the
proceedings of the Board of Directors or committee, as the case may be. Such
filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic form.
SECTION 18. Action by Conference Telephone. Unless otherwise
restricted by the Certificate of Incorporation or these By-Laws, members of
the Board of Directors or of any committee thereof may participate in a
meeting of the Board of Directors or of such committee, as the case may be,
by means of conference telephone or other communications equipment by means
of which all persons participating in the meeting can hear each other, and
participation in a meeting in such manner shall constitute presence in person
at such a meeting.
SECTION 19. Compensation. Each director, in consideration of
his or her serving as such, shall be entitled to receive from the Corporation
such compensation as the Board of Directors shall from time to time
determine, together with reimbursement for reasonable expenses incurred by
him or her in attending meetings of the Board of Directors. Each director
who shall serve as a member of any committee of the Board of Directors, in
consideration of his or her serving as such, shall be entitled to such
additional compensation as the Board of Directors shall from time to time
determine, together with reimbursement for reasonable expenses incurred by
him or her in attending meetings of such committee. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in
any other capacity and receiving compensation therefor.
ARTICLE IV
Committees of Directors
SECTION 1. Committees. The Board of Directors may appoint one
or more committees, which may include as members directors only or directors
and non-directors, as the Board of Directors may from time to time consider
desirable, and such committees shall have such powers and duties as the Board
of Directors shall determine and as shall be specified in the resolution of
appointment; provided, however, that the powers and duties of any such
committee whose members shall include non-directors shall be limited to
making recommendations to the Board of Directors.
SECTION 2. Committee Vacancies. Any member of a committee
appointed pursuant to this Article IV shall serve at the pleasure of the
Board of Directors, which Board shall have the power at any time to remove
any member, with or without cause, and to fill vacancies in the membership of
a committee. No committee appointed pursuant to this Article IV shall have
the power to fill any vacancy in the membership of such committee. Any
committee appointed pursuant to Section 1 of this Article IV shall exist at
the pleasure of the Board of Directors, which Board shall have the power at
any time to change the powers and duties of any such committee or to dissolve
it.
SECTION 3. Committee Meetings. Regular meetings of a committee
appointed pursuant to this Article IV shall be held at such times and at such
places within or without the State of Delaware as the Board of Directors or
the committee shall from time to time determine, and no notice of such
regular meetings shall be required. Special meetings of any committee may be
called by the chairman of such committee or by the Chairman and Chief
Executive Officer or by the President and Chief Operating Officer, and shall
be called by the Secretary of the Corporation on the written request of any
member of such committee. Notice of a special meeting of any committee shall
be given to each member thereof by mailing such notice at least forty-eight
(48) hours, or by personally delivering, telegraphing or telephoning the same
at least eighteen (18) hours, before the meeting. It shall not be requisite
for the validity of any meeting of any committee that notice thereof shall
have been given to any committee member who is present at the meeting or, if
absent, waives notice thereof in writing filed with the records of the
meeting either before or after the holding thereof. The majority of the
members of a committee shall constitute a quorum for the transaction of
committee business, and the act of a majority of the members present at any
meeting at which there is a quorum shall be the act of the committee. A
committee shall keep regular minutes of its meetings and all action taken or
resolutions adopted shall be reported to the Board of Directors at the
meeting of the Board next following such action.
ARTICLE V
Officers
SECTION 1. Executive Officers. At the organization meeting of
the Board of Directors following the annual meeting of stockholders, the
Board of Directors shall elect as executive officers of the Corporation a
Chairman and Chief Executive Officer, a President and Chief Operating
Officer, a Secretary and a Treasurer, and may elect as executive officers of
the Corporation one or more Chairmen Emeriti, Vice Chairmen, Executive Vice
Presidents, Senior Vice Presidents and Vice Presidents. All such executive
officers elected by the Board of Directors are referred to in these By-Laws
as "Executive Officers." The Board of Directors may from time to time
appoint such other officers and agents of the Corporation as the interests of
the Corporation may require and may fix their duties and terms of office. To
the extent permitted by law, any number of offices may be held by the same
person.
SECTION 2. Other Officers. In addition to the Executive
Officers elected by the Board of Directors pursuant to Section 1 of this
Article V, the Chairman and Chief Executive Officer and the President and
Chief Operating Officer may from time to time appoint such other officers of
the Corporation, including, Vice Presidents, Assistant Vice Presidents, Staff
Vice Presidents, Assistant Secretaries, Assistant Treasurers and Controllers,
as the interests of the Corporation may require (the "Other Officers");
provided, however, that no Other Officer may be appointed to the office of
Chairman Emeritus, Vice Chairman, President and Chief Operating Officer,
Executive Vice President, Senior Vice President, Secretary or Treasurer.
Each appointment of an Other Officer shall be in writing and shall set forth
the duties of the Other Officer being appointed and, subject to Section 3 of
this Article V, such officer's term of office.
SECTION 3. Term of Office. Each Executive Officer shall hold
office until the organization meeting of the Board of Directors following the
annual meeting of stockholders next succeeding such officer's election and
until such officer's successor is elected and qualified, or until such
officer's earlier death, resignation, retirement or removal. Each Other
Officer shall hold office for a term to be decided by the appointing Chairman
and Chief Executive Officer or President and Chief Operating Officer, as the
case may be; provided, however, that no such term shall be for a period
longer than the term of office of the appointing Chairman and Chief Executive
Officer or President and Chief Operating Officer.
SECTION 4. Removal of Officers. Any Executive Officer or Other
Officer may be removed from office with or without cause at any time by the
affirmative vote of a majority of the Board of Directors. Any Other Officer
may be removed from office at any time with or without cause by the Chairman
and Chief Executive Officer or President and Chief Operating Officer.
SECTION 5. Vacancies. A vacancy in any Executive Office or
Other Office arising from any cause may be filled for the unexpired portion
of the term by the Board of Directors. A vacancy in any Other Office arising
from any cause may be filled for the unexpired portion of the term by the
Chairman and Chief Executive Officer or President and Chief Operating Officer.
SECTION 6. Compensation of Officers. The salaries or
compensation, if any, of the Executive Officers shall be fixed by the Board
of Directors or the Compensation Committee of the Board of Directors, if
their be one. The salaries or compensation of the Other Officers and
division officers, if there be any, may be fixed from time to time by the
Board of Directors, the Chairman and Chief Executive Officer or the President
and Chief Operating Officer.
SECTION 7. Chairman and Chief Executive Officer. The Chairman
and Chief Executive Officer shall be Chairman of the Board of Directors and
of the Executive Committee, if any, shall be the chief executive officer of
the Corporation and, subject to the control of the Board of Directors, shall
have general charge and control of the business and affairs of the
Corporation with power and authority, when acting in the ordinary course of
business of the Corporation, in the name and on behalf of the Corporation and
under its seal attested by the Secretary or an Assistant Secretary of the
Corporation, or otherwise, to (i) execute and deliver agreements, contracts,
certificates and other instruments, (ii) purchase and accept delivery of
stocks, bonds, evidences of interest and indebtedness, rights and options to
acquire the same, and all other securities, whether negotiable or
non-negotiable, (iii) sell, assign, transfer and deliver all stocks, bonds,
evidence of interest and indebtedness, rights and options to acquire the
same, and all other securities, corporate or otherwise, now or hereafter
standing in the name of or owned beneficially by the Corporation, (iv) open
and maintain accounts with banking institutions, including investment banks
and brokerage firms, and (v) borrow from banks and other financial
institutions, including investment banks and brokerage firms, such sums of
money for such periods of time and upon such terms as such officer shall deem
necessary or appropriate, and execute and deliver notes, other evidences of
indebtedness and agreements for the repayment of any sums so borrowed in the
name and on behalf of the Corporation; provided, however, that no borrowing
pursuant to this clause (v) shall have an original maturity of more than one
year. Such officer shall preside at all meetings of stockholders of the
Corporation and the Board of Directors at which such officer is present.
Such officer shall perform all other duties and enjoy all other powers which
are commonly incident to the office of Chairman and Chief Executive Officer,
or are delegated to such officer from time to time by the Board of Directors
or are or may at any time be authorized or required by law.
SECTION 8. Chairman Emeritus and Vice Chairmen of the Board.
The Chairman Emeritus and Vice Chairmen of the Board, if there be any, shall
be members of the Board of Directors and shall have such powers and perform
such duties as may from time to time be assigned to them by the Board of
Directors, the Chairman and Chief Executive Officer or the President and
Chief Operating Officer.
SECTION 9. President and Chief Operating Officer. The President
and Chief Operating Officer shall be a member of the Board of Directors and
of the Executive Committee, if any, shall be the chief operating officer of
the Corporation responsible for directing, administering and coordinating the
business operations of the Corporation in accordance with policies, goals and
objectives established by the Board of Directors and the Chairman and Chief
Executive Officer with power and authority, when acting in the ordinary
course of business of the Corporation, in the name and on behalf of the
Corporation and under its seal attested by the Secretary or an Assistant
Secretary of the Corporation, or otherwise, to, (i) execute and deliver
agreements, contracts, certificates and other instruments, (ii) purchase and
accept delivery of stocks, bonds, evidences of interest and indebtedness,
rights and options to acquire the same, and all other securities, whether
negotiable or non-negotiable, (iii) sell, assign, transfer and deliver
stocks, bonds, evidences of interest and indebtedness, rights and options to
acquire the same, and all other securities, corporate or otherwise, now or
hereafter standing in the name of or owned beneficially by the Corporation,
(iv) open and maintain accounts with banking institutions, including
investment banks and brokerage firms, and (v) borrow from banks and other
financial institutions, including investment banks and brokerage firms, such
sums of money for such periods of time and upon such terms as such officer
shall deem necessary or appropriate, and execute and deliver notes, other
evidences of indebtedness and agreements for the repayment of any sums so
borrowed in the name and on behalf of the Corporation; provided, however,
that no borrowing pursuant to this clause (v) shall have an original maturity
of more than one year. Such officer shall perform all other duties and enjoy
all other powers which are commonly incident to the office of President and
Chief Operating Officer or which are delegated to such officer by the Board
of Directors or the Chairman and Chief Executive Officer. In the absence of
the Chairman and Chief Executive Officer, the President and Chief Operating
Officer shall perform all duties and may exercise all powers of the Chairman
and Chief Executive Officer and shall preside at meetings of stockholders of
the Corporation and the Executive Committee.
SECTION 10. Executive Vice Presidents, Senior Vice Presidents
and Vice Presidents Elected by the Board. The Executive Vice Presidents, the
Senior Vice Presidents and the Vice Presidents elected by the Board of
Directors pursuant to Section 1 of this Article V, if there be any, shall
have such powers and perform such duties as may from time to time be assigned
to them by the Board of Directors, the Chairman and Chief Executive Officer
or the President and Chief Operating Officer.
SECTION 11. Secretary. The Secretary shall record the
proceedings of all meetings of stockholders of the Corporation and of the
Board of Directors which such officer attends in a book or books to be kept
for that purpose. Such officer shall attend to the giving and serving of all
notices on behalf of the Corporation, shall have custody of the records and
the seal of the Corporation and shall affix the seal to any instrument which
requires the seal of the Corporation. Such officer shall, in general,
perform all the duties and functions incident to the office of Secretary and
shall also perform such other duties as may from time to time be assigned to
such officer by the Board of Directors, the Chairman and Chief Executive
Officer or the President and Chief Operating Officer.
SECTION 12. Treasurer. The Treasurer shall have custody and
control of all funds and securities of the Corporation, except as otherwise
provided by the Board of Directors. Such officer shall keep full and
accurate accounts of all receipts and disbursements of the Corporation in
books to be kept for that purpose, shall deposit all money and other valuable
effects in the name and to the credit of the Corporation in such depositories
as may be designated by the Board of Directors, and shall render to the
Chairman and Chief Executive Officer, the President and Chief Operating
Officer or the Board of Directors, whenever any of them may require it, an
account of all such officer's transactions as Treasurer and an account of the
financial condition of the Corporation. Such officer shall also perform such
other duties as may from time to time be assigned to such officer by the
Board of Directors, the Chairman and Chief Executive Officer or the President
and Chief Operating Officer.
SECTION 13. Powers and Duties of Other Officers. The Other
Officers shall have such powers and perform such duties as may from time to
time be assigned to them by the Board of Directors, the Chairman and Chief
Executive Officer or the President and Chief Operating Officer.
ARTICLE VI
Capital Stock
SECTION 1. Certificates. Each stockholder of the Corporation
shall be entitled to a certificate or certificates signed by or in the name
of the Corporation by the Chairman and Chief Executive Officer, the President
and Chief Operating Officer, an Executive Vice President or a Senior Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, certifying the number of shares of stock of the
Corporation owned by such stockholder. Any or all of the signatures on the
certificates may be a facsimile.
In case any officer, Transfer Agent or Registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, Transfer Agent or Registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he, she or it was such officer, Transfer Agent or Registrar at
the date of issue.
All certificates of each class or series shall be consecutively
numbered and shall be entered in the books of the Corporation as they are
issued. Every certificate shall certify the name of the Person owning the
shares represented thereby, with the number of shares and the date of issue.
The names and addresses of all Persons owning shares of the Corporation, with
the number of shares owned by each and the date or dates of issue of the
shares held by each, shall be entered in the books of the Corporation kept
for that purpose by the proper officers, agents or employees of the
Corporation.
The Corporation shall be entitled to treat the holder of record
of any share or shares of stock of the Corporation as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
Persons, whether or not it has actual or other notice thereof, except as
provided by law.
SECTION 2. Cancellation of Certificates. All certificates
surrendered to the Corporation shall be cancelled and, except in the case of
lost, stolen or destroyed certificates, no new certificates shall be issued
until the former certificate or certificates for the same number of shares of
the same class of stock have been surrendered and cancelled.
SECTION 3. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of the fact by the Person claiming the certificate or certificates
to be lost, stolen or destroyed. In its discretion and as a condition
precedent to the issuance of any such new certificate or certificates, the
Board of Directors may require that the owner of such lost, stolen or
destroyed certificate or certificates, or such Person's legal representative,
advertise the same in such manner as the Board shall require and/or give the
Corporation and its Transfer Agent or Agents, Registrar or Registrars a bond
in such form and amount as the Board of Directors may direct as indemnity
against any claim that may be made against the Corporation and its Transfer
Agent or Agents, Registrar or Registrars, and that the owner requesting such
new certificate or certificates obtain a final order or decree of a court of
competent jurisdiction as such owner's right to receive such new certificate
or certificates.
SECTION 4. Transfer of Shares. Shares of stock shall be
transferable on the books of the Corporation by the holder thereof, in person
or by duly authorized attorney, upon the surrender of the certificate or
certificates representing the shares to be transferred, properly endorsed,
with such proof or guarantee of the authenticity of the signature as the
Corporation or its agents may reasonably require.
SECTION 5. Transfer Agents and Registrars. The Corporation may
have one or more Transfer Agents and one or more Registrars of its stocks,
whose respective duties the Board of Directors may define from time to time.
No certificate of stock shall be valid until countersigned by a Transfer
Agent, if the Corporation shall have a Transfer Agent, or until registered by
the Registrar, if the Corporation shall have a Registrar. The duties of
Transfer Agent and Registrar may be combined.
ARTICLE VII
Contracts, Checks, Drafts, Proxies
SECTION 1. Execution of Contracts. The Board of Directors may
authorize any Executive or Other Officer, agent or employee of the
Corporation to enter into any contract or execute and deliver any instrument
in the name or on behalf of the Corporation, and such authority may be
general or confined to specific instances, and, unless so authorized by the
Board of Directors, no Executive or Other Officer, agent or employee except
the Chairman and Chief Executive Officer and the President and Chief
Operating Officer shall have any power or authority to bind the Corporation
by any contract or to pledge its credit or to render it liable pecuniarily
for any purpose or to any amount.
SECTION 2. Loans. Except as otherwise provided in these
By-Laws, no loan shall be contracted in the name or on behalf of the
Corporation, and no evidence of indebtedness shall be issued, endorsed or
accepted in its name, or on its behalf, unless authorized by the Board of
Directors. Such authority may be general or confined to specific instances.
When so authorized, the Executive or Other Officer, agent or employee
thereunto authorized may effect loans and advances at any time for the
Corporation from any Person (including any bank, trust company or other
institution) and for such loans and advances may make, execute and deliver
promissory notes or other evidences of indebtedness of the Corporation, and,
when authorized as aforesaid, as security for the payment of any and all
loans and advances may make, execute and deliver promissory notes or other
evidences of indebtedness and liabilities of the Corporation, may mortgage,
pledge, hypothecate or transfer any real or personal property at any time
owned or held by the Corporation, and to that end execute instruments of
mortgage or pledge or otherwise transfer such property.
SECTION 3. Checks, Drafts, etc. All checks, drafts, bills of
exchange or other orders for the payment of money, obligations, notes or
other evidences of indebtedness, bills of lading, warehouse receipts and
insurance certificates of the Corporation, shall be signed or endorsed by the
Chairman and Chief Executive Officer, the President and Chief Operating
Officer or such other Executive Officer or Other Officer, agent, attorney, or
employee of the Corporation as shall from time to time be determined by the
Board of Directors, the Chairman and Chief Executive Officer or the President
and Chief Operating Officer.
SECTION 4. Proxies in Respect of Securities of Other
Corporations. The Chairman and Chief Executive Officer, the President and
Chief Operating Officer and such other Executive or Other Officers as are
designated by the Chairman and Chief Executive Officer or the President and
Chief Operating Officer are authorized to vote by casting a ballot in person
or by voting by proxy on behalf of the Corporation the shares owned by the
Corporation of the stock or other securities in any other Corporation at
meetings of the holders of the stock or other securities of such other
corporation, or to consent in writing, in the name of the Corporation as such
holder, to any action by such other corporation.
ARTICLE VIII
Indemnification
The Corporation shall, and by reason of the enactment of this
By-Law hereby does, indemnify each and every individual (including his or her
heirs, executors and assigns) who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "Proceeding"), by reason of the fact that he or she is or was
a director, Executive Officer or Other Officer of the Corporation, or, while
a director, Executive Officer or Other Officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter as "Indemnitee"), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with such
action, suit or proceeding, to the full extent that it has the power to do so
under Delaware Law. Such indemnification shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under the
Certificate of Incorporation or under any agreement, contract of insurance,
vote of stockholders or disinterested directors, or otherwise, or of the
broader power of the Corporation to indemnify a director, Executive Officer,
Other Officer, employee or agent of the Corporation as authorized by Delaware
Law.
ARTICLE IX
Definitions
For purposes of these By-Laws, the following terms shall have the
meanings set forth below:
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Corporation, as from time to time amended.
"Corporation" shall mean Triarc Companies, Inc.
"Delaware Law" shall mean the General Corporation Law of the State of
Delaware, as amended from time to time.
"Executive Officers" shall have the meaning set forth in Section 1 of
Article V of these By-Laws.
"Indemnitee" shall have the meaning set forth in Section 1 of Article
VIII of these By-Laws.
"Other Officer" shall have the meaning set forth in Section 2 of
Article V of these By-Laws.
"Person" shall mean any individual, firm, corporation or other entity.
"Proceeding" shall have the meaning set forth in Section 1 of Article
VIII of these By-Laws.
"Voting Shares" shall mean any issued and outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors.
ARTICLE X
Miscellaneous
SECTION 1. Books and Records. The books and records of the
Corporation may be kept at such places within or without the State of
Delaware as the Board of Directors may from time to time determine. The
stock record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the Board of
Directors.
SECTION 2. Dividends and Reserves. The Board of Directors, from
time to time, may determine whether any, and, if any, what part of the net
profits of the Corporation, or of its net assets in excess of its capital,
available therefor pursuant to law and the Certificate of Incorporation,
shall be declared by it as dividends on the stock of the Corporation. The
Board of Directors, in its discretion, in lieu of declaring any such
dividend, may use and apply any of such net profits or net assets as a
reserve for working capital, to meet contingencies, for the purpose of
maintaining or increasing the property or business of the Corporation or for
any other lawful purpose which it may think conducive to the best interests
of the Corporation.
SECTION 3. Seal. The corporate seal of the Corporation shall be
in the form of a circle and shall bear the name of the Corporation and the
year and state of its incorporation.
SECTION 4. Fiscal Year. The fiscal year of the Corporation
shall end on the Sunday that is closest to December 31 of each year unless
the Board of Directors shall determine otherwise.
ARTICLE XI
Amendments
All By-laws of the Corporation shall be subject to alteration,
amendment or repeal, in whole or in part, and new By-laws not inconsistent
with Delaware law or any provision of the Certificate of Incorporation may be
made by a vote of two-thirds of the entire Board of Directors that would be
in office if no vacancy existed, whether or not present at a meeting;
provided, however, that any By-laws made, amended or repealed by the Board of
Directors may be amended or repealed, and any By-laws may be made, by the
stockholders of the Corporation by vote of a majority of the holders of
shares of stock of the Corporation entitled to vote in the election of
directors of the Corporation.