EXHIBIT 3.1
TRIARC COMPANIES, INC.
BY-LAWS
(as amended through June 29, 2007)
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 2711 Centerville Road, Suite 400, 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 of the Board of
Directors (the "Chairman"), the Vice-Chairman of the Board of Directors (the
"Vice-Chairman"), the Chief Executive Officer, or by resolution adopted by a
majority of 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, the Vice-Chairman, the Chief Executive 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. Subject to the Certificate of Incorporation,
at every meeting of stockholders of the Corporation, the Chairman or, in the
absence of the Chairman, the Vice-Chairman, or in the absence of both the
Chairman and the Vice-Chairman, the Chief Executive Officer or, in the absence
of all such persons, such individual as shall have been designated by the
Chairman, or if the Chairman has not done so, then by the Vice-Chairman, or if
theVice-Chairman has not done so, then by the Chief Executive 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 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, the
Vice-Chairman, the Chief Executive 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, the
Vice-Chairman, the Chief Executive 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. Organizational 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, the Vice-Chairman, the Chief Executive
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 written notice
at least two (2) days before the meeting to his or her last known address or by
delivering such notice either by personal delivery, by telegraph, by telephone
or by any other lawful means (including electronic transmission) to each
director at least twenty-four (24) hours before the meeting.
SECTION 14. Organization. The Chairman or, in the absence of the
Chairman, the Vice-Chairman, or in the absence of both the Chairman and
Vice-Chairman, the Chief Executive Officer, shall call meetings of the Board of
Directors to order and shall act as the chairman thereof. In the absence of the
Chairman, the Vice-Chairman and the Chief Executive 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, the Vice-Chairman or the
Chief Executive 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 delivering such notice either by
personal delivery, by telegraph, by telephone or by any other lawful means
(including electronic transmission) 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.
Members of a committee constituting at least fifty percent (50%) of such
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 organizational meeting of the
Board of Directors following the annual meeting of stockholders (the
"Organizational Meeting"), the Board of Directors shall elect as executive
officers of the Corporation a Chief Executive Officer, a Secretary and a
Treasurer, and may elect as executive officers of the Corporation a President, a
Chief Operating Officer, 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
Chief Executive 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 President,
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 Organizational Meeting 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 Chief Executive Officer; provided, however, that no such term
shall be for a period longer than the term of office of the appointing Chief
Executive 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 Chief Executive 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 Chief Executive
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 (and/or any subcommittee
thereof), if there 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 (or the Compensation Committee and/or any subcommittee
thereof if there be one), or by the Chief Executive Officer.
SECTION 7. Chairman of the Board. At the Organizational Meeting, the
Board of Directors shall designate one member of the Board of Directors to serve
as Chairman of the Board. The Chairman shall also serve as Chairman of the
Executive Committee, if any. The Chairman shall preside at all meetings of
stockholders of the Corporation and the Board of Directors at which the Chairman
is present. The Chairman shall perform all duties as are properly required of
him or her by the Board of Directors, and shall enjoy all other powers which are
commonly incident to the position of Chairman, or are delegated to the Chairman
from time to time by the Board of Directors or are or may at time be authorized
or required by law.
SECTION 8. Vice-Chairman of the Board. At the Organizational Meeting,
the Board of Directors shall designate one member of the Board of Directors to
serve as Vice-Chairman of the Board. The Vice-Chairman shall also serve as
Vice-Chairman of the Executive Committee, if any. Subject to the Certificate of
Incorporation, in the absence of the Chairman, the Vice-Chairman shall preside
at all meetings of stockholders of the Corporation and the Board of Directors at
which the Vice-Chairman is present. The Vice-Chairman shall perform all duties
as are properly required of him or her by the Board of Directors, and shall
enjoy all other powers which are commonly incident to the position of
Vice-Chairman, or are delegated to the Vice-Chairman from time to time by the
Board of Directors or are or may at time be authorized or required by law.
SECTION 9. Chief Executive Officer. The Chief Executive Officer 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
perform all other duties and enjoy all other powers which are commonly incident
to the office of 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 10. Chief Operating Officer. The Chief Operating Officer, if
there be one, shall be 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, the Chairman, the
Vice-Chairman, and the 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 Chief Operating Officer or which are delegated to such officer
by the Board of Directors, the Chairman, the Vice-Chairman or the Chief
Executive Officer. In the absence of the Chief Executive Officer, the Chief
Operating Officer shall perform all duties and may exercise all powers of the
Chief Executive Officer.
SECTION 11. President, Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents Elected by the Board. The President, 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, the Vice-Chairman or
the Chief Executive Officer.
SECTION 12. 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, the Vice-Chairman or the Chief Executive Officer.
SECTION 13. 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 Chief Executive Officer, the 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 or the Chief Executive Officer.
SECTION 14. 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 or the Chief Executive 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 Chief Executive Officer, the Chief Operating Officer, the
President, 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 Officer 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 Officer or Other Officer, agent or employee except the
Chief Executive Officer, the Chief Operating Officer, the President, or any
Executive Vice President or Senior Vice President 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 Chief Executive Officer,
the Chief Operating Officer, the President, any Executive Vice President 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 Chief Executive Officer or the Chief Operating Officer.
SECTION 4. Proxies in Respect of Securities of Other Corporations. The
Chief Executive Officer, the Chief Operating Officer, the President, any
Executive Vice President or Senior Vice President, and such other Executive
Officers or Other Officers as are designated by the Chief Executive Officer or
the Chief Operating Officers 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, limited
liability company, partnership 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.