EXHIBIT 3.3
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CERTIFICATE OF DESIGNATION
OF
CLASS B COMMON STOCK, SERIES 1
OF
TRIARC COMPANIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
Triarc Companies, Inc., a Delaware corporation (the "Corporation"),
certifies that pursuant to the authority contained in Section 2 of Part A of
Article IV of its Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), and in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, its Board of Directors has
adopted the following resolution creating a series of its Class B Common Stock,
par value $.10 per share (the "Class B Common Stock"), designated as Class B
Common Stock, Series 1.
RESOLVED, that a series of the authorized Class B Common Stock, par
value $.10 per share, of the Corporation be hereby created, and that the
designation and amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as the "Class B Common Stock, Series 1" (the "Series 1 Stock") and
the number of shares constituting such series shall be one hundred million
(100,000,000), which number may be increased or decreased by the Board of
Directors without a vote of stockholders; PROVIDED, HOWEVER, that such number
may not be decreased below the number of then outstanding shares of Series 1
Stock.
Section 2. Voting rights. The holders of Series 1 Stock shall possess
voting powers for the election of directors and for all other corporate
purposes, each share of Series 1 Stock being entitled to one tenth (1/10) of one
(1) vote on each matter properly submitted to the stockholders of the
Corporation for their vote; PROVIDED, HOWEVER, that, except as otherwise
required by law, the holders of Series 1 Stock shall not be entitled to vote on
any amendment to this Certificate of Incorporation that relates solely to the
terms of the Class A Common Stock, par value $.10 per share (the "Class A Common
Stock"), of the Corporation or any other outstanding series or class of stock,
where the holders of such affected class or series are entitled, either
separately or together as a class with the holders of one or more other said
class or series, to vote thereon by law or pursuant to this Certificate of
Incorporation (including any certificate of designation relating to any other
series or class of stock).
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Section 3. Dividends. If and when dividends on the Class A Common Stock
are declared payable from time to time by the Board, whether payable in cash, in
property or in shares of stock of the Corporation, the holders of Series 1 Stock
shall be entitled to share equally, with the holders of the Class A Common
Stock, on a per share basis, in such dividends, subject to the limitations
described below; PROVIDED, HOWEVER, that with respect to a regular quarterly
cash dividend declared as such by the Board, paid by the Corporation on the
Class A Common Stock on or prior to September 4, 2006, the holders of the Series
1 Stock shall be entitled to receive a dividend in a per share amount (such
amount to be subject to upward or downward rounding at the discretion of the
Board) equal to at least 110% of the dividends paid per share on the Class A
Common Stock. If a dividend is paid at any time on the Class A Common Stock in
shares of Class A Common Stock, a mandatory dividend shall be paid at the same
rate on the Series 1 Stock and such mandatory dividend shall be payable to
holders of Series 1 Stock in shares of Series 1 Stock. If the Corporation shall
in any manner subdivide or combine the outstanding shares of Class A Common
Stock, the outstanding shares of Series 1 Stock shall be proportionally
subdivided or combined in the same manner and on the same basis.
Section 4. Liquidation, Dissolution or Winding Up. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary (sometimes referred to as liquidation), after payment or provision
for payment of the debts and other liabilities of the Corporation and the
preferential amounts to which the holders of any stock ranking prior to the
Series 1 Stock in the distribution of assets shall be entitled upon liquidation,
the Series 1 Stock shall be entitled to receive, prior to any payment being made
to the holders of Class A Common Stock and any other stock that ranks junior to
the Series 1 Stock in the event of liquidation, an amount per share equal to
$.01 (as adjusted for stock splits, combinations, reclassifications and the
like), and, once the holders of Class A Common Stock shall then have received an
amount per share equal to $.01 (as adjusted for stock splits, combinations,
reclassifications and the like), thereafter to share pro rata, together with the
holders of the Class A Common Stock and the holders of any other stock ranking
on parity therewith in the distribution of assets upon liquidation, in the
remaining assets of the Corporation according to their respective interests.
Section 5. Merger or Consolidation. The approval of holders of a
majority of the outstanding shares of Series 1 Stock, voting separately as a
class, shall be required for any merger or consolidation of the Corporation with
another entity (whether or not the Corporation is the surviving entity) unless
the holders of shares of Series 1 Stock shall be entitled to receive in such
transaction in respect of each share of Series 1 Stock the same consideration as
the holders of shares of Class A Common Stock shall be entitled to receive in
respect of each share of Class A Common Stock; PROVIDED THAT, if all or part of
the consideration so received consists of common stock of the surviving entity,
the common stock so issued may differ as to voting rights, liquidation
preference and dividend rights to the same extent that the Class A Common Stock
and Series 1 Stock differ as set forth herein.
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IN WITNESS WHEREOF, said Triarc Companies, Inc. has caused this
Certificate of Designation of Class B Common Stock, Series 1 to be duly executed
by its Executive Vice President this 11th day of August, 2003.
TRIARC COMPANIES, INC.
By: /s/ Brian L. Schorr
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Brian L. Schorr
Executive Vice President