Wendy's Co — Merger & Acquisition 2008

Aug 2, 2008

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[Letterhead of Paul, Weiss, Rifkind, Wharton & Garrison LLP]

(212) 373-3025

(212) 492-0025

jkennedy@paulweiss.com

August 1, 2008

Via EDGAR

Securities and Exchange Commission 100 F. Street N.E. Washington, D.C. 20549 Mail Stop 3561

Triarc Companies, Inc. — Amendment No. 2 to Registration Statement on Form S-4 (File No. 333-151336)

Ladies and Gentlemen:

On behalf of Triarc Companies, Inc. (“ Triarc ” or the “ Company ”), we submit in electronic form for filing the accompanying Amendment No. 2 to the Registration Statement on Form S-4 (“ Amendment No. 2 ”) of the Company, together with Exhibits, marked to indicate changes from Amendment No. 1 to the Company’s Registration Statement as filed with the Securities and Exchange Commission (the “ Commission ”) on July 11, 2008 (the “ Registration Statement ”).

Amendment No. 2 reflects the responses of the Company and Wendy’s International, Inc. (“ Wendy’s ”) to comments received from the Staff of the Commission (the “ Staff ”) in a letter from Max Webb, dated July 23, 2008 (the “ Comment Letter ”). The discussion below is presented in the order of the numbered comments in the Comment Letter. Certain capitalized terms set forth in this letter are used as defined in the Registration Statement. For your convenience, references in the responses to page numbers are to the marked version of Amendment No. 2. We are also delivering courtesy copies of the marked version of Amendment No. 2 to Julie Bell.

Securities and Exchange Commission 2

Form S-4

Wendy’s/Arby’s Unaudited Pro Forma Combined Adjusted EBITDA and Reconciliation to Pro Forma Net Income from Continuing Operations, page 27

| | We
note your response to prior comment 9. The current reasons provided
represent management’s use of the measure; however, the substantive
reasons specific to you that management believes the measure is useful
to investors is also required to be disclosed. Therefore, we reissue
our previous comment. Please revise to disclose why it is useful to
investors to disregard each of the items eliminated from the measures.
In the alternative, please revise to eliminate the presentation of
these non-GAAP performance measures. As it is reasonably likely that future
restructuring costs will recur as a result of the combination of the
two companies, and since there have been similar charges within the
prior two years, these items should not be eliminated or substantial
additional disclosure should be added to note (1) on page 26 to clearly
describe why management believes it is useful to disregard each of
these items eliminated from the measure presented. Please see the Frequently
Asked Questions Regarding Management’s use of Non-GAAP Measures
located on the Commission website at www.sec.gov for further guidance. We note that adjusted EBITDA is also
used to determine compliance with key financial covenants of ARG’s
credit agreement dated July 25, 2005. If this covenant is material
to investors, the covenant requirements should be disclosed along with
the presentation of the current period’s measure. Response to Comment 1: |
| --- | --- |
| In
response to the Staff’s comment, the entire section titled “Wendy’s/Arby’s
Unaudited Pro Forma Combined Adjusted EBITDA and Reconciliation to Pro
Forma Net Income from Continuing Operations” has been deleted from
the Registration Statement. | |
| 2. | We
note your response to prior comment 10. Please revise your presentation
to remove the reconciliation of operating profit to EBITDA on page
28. Response to Comment 2: |
| In response
to the Staff’s comment, the entire section titled “Wendy’s/Arby’s
Unaudited Pro Forma Combined Adjusted EBITDA and Reconciliation to Pro
Forma Net Income from Continuing Operations” has been deleted from
the Registration Statement. | |

Securities and Exchange Commission 3

The Merger, page 35

Background of the Merger, page 35

| | We
note your response to our prior comment 14. Please clarify in the third
full paragraph on page 50 which side proposed the final exchange ratio.
We also note your disclosure on page 66 in response to our prior comment
24. Please provide a discussion of the negotiations that occurred prior
to the Wendy’s board of directors meeting on April 23, 2008 which
resulted in an increase of the exchange ratio from 4.20x to 4.25x. Response to Comment 3: |
| --- | --- |
| The
Registration Statement has been revised as requested. See page 49 of
Amendment No. 2. | |
| 4. | We
note your response to our prior comment 17. Please revise the last
full paragraph on page 48 to include a sentence that both Mr. May’s
and Mr. Pickett’s letters were made
publicly available on the SEC’s website on April 18, 2008. Response to Comment 4: |
| The
Registration Statement has been revised as requested. See page 48 of
Amendment No. 2. | |
| Triarc Board of Directors’ Recommendation,
page 53 | |
| 5. | We
note your response to our prior comment 19 and reissue. Please revise
into two lists: one of the factors the board believed favored the merger;
the other of factors that did not favor the merger. We note the reasons
for the merger the Triarc board of directors considered in making its
determination on page 7 of the summary is presented in a list of strategic
and financial benefits and a list of risks which is inconsistent with
your previous response. Please provide the information on page 53 in
a similar presentation. Response to Comment 5: |
| The
Registration Statement has been revised as requested. See pages 53 and 54 of
Amendment No. 2. | |
| 6. | Depending
on whether the first and twelfth bullet points on page 54 will fall under
the strategic and financial benefits list or risk list, please provide
an explanation of how these bullet points either supported or did not
support approving this merger. |
| The
Registration Statement has been revised as requested. See page 54 of
Amendment No. 2. | |

Securities and Exchange Commission 4

Opinion of Triarc’s Financial Advisor, page 57

| | Please
include the multiples used for the Selected Company Trading Analysis
and Selected Transactions Analysis for each of the Wendy’s Financial
Analyses and Triarc Financial Analyses and tell us why the multiples
were chosen. Response to Comment 7: |
| --- | --- |
| The
Registration Statement has been revised as requested. See page 59 of
Amendment No. 2. | |
| Opinion of Wendy’s
Financial Advisor, page 65 | |
| Stand-Alone Valuations
of Wendy’s; Wendy’s Discounted Cash Flow Analysis, page 68 | |
| 8. | Please
define “equity betas” in the third sentence of this section. Response to Comment 8: |
| The
Registration Statement has been revised as requested. See page 68 of
Amendment No. 2. | |
| Premia Analysis, page
69 | |
| 9. | Please
explain why you use transactions since 2004 for this test and transactions
announced since December 2005 for the preceding test. Consider
listing all transactions and use apostrophes or some other device to
indicate the ones that were used in one test but not the other. Please
disclose the range of premiums paid. Response to Comment 9: |

The Registration Statement has been revised as requested. See page 69 of Amendment No. 2. The Staff is supplementally advised that Greenhill's premia analysis is based on a market review of transactions announced within a specified time frame (in this case, from 2004 forward) whereas Greenhill's precedent transactions analysis, which examined recent transactions in the restaurant industry, is based on transactions selected by Greenhill based on its judgment of the target’s relative comparability to Wendy's. For its precedent transactions analysis, Greenhill selected the 14 recent transactions disclosed in the Registration Statement, the earliest in time of which just happened to have been announced in December 2005. The Registration Statement has been revised to remove the inference that Greenhill only looked at transactions since December 2005 in considering recent transactions for its precedent transactions analysis.

With respect to its premia analysis, the Staff is also supplementally advised that Greenhill's analysis is a market-based survey of transactions since 2004 in the U.S. between $1 billion and $7 billion in size. Greenhill reviewed 441 such transactions, with premiums ranging from -39% to 135% in value. In response to the

Securities and Exchange Commission 5

Staff's comment, Greenhill has modified its disclosure on page 69 to identify the number of transactions reviewed, but believes that disclosing the median values, rather than the wide range of transaction premias identified, is a more meaningful disclosure.

Miscellaneous, page 72

| | Please
confirm that Greenhill will not receive more than $5,000,000 under
the terms of the engagement letter between itself and Wendy’s
in connection with the merger and the issuance of its fairness opinion. Response to Comment 10: |
| --- | --- |
| The
Staff is supplementally advised that Greenhill has already received its
fee of $5,000,000 in connection with the merger and has amended its
disclosure on page 74 accordingly. The Staff is further advised that
Greenhill does not expect to receive any additional fees, other than
reimbursements for its out-of-pocket expenses incurred in connection
with the merger. | |
| The Amendment to Triarc’s
Certificate of Incorporation, page 103 | |
| 11. | We
note your response to our prior comment 29, disagree with your conclusion,
and reissue our comment. The Division of Corporation Finance’s
Manual of Publicly Available Telephone Interpretations (Fifth Supplement,
September 2004) requires the unbundling of provisions in which state
law, securities exchange listing standards, or the company’s charter
or by-laws would require shareholder approval of the proposed changes
if they were presented on their own. As the amendments in Proposal
3 on page 120 fit within such requirement, please unbundle these provisions. Response to Comment 11: |
| The
Registration Statement has been revised as requested. See pages 122-124 of
Amendment No. 2. | |
| Triarc Compensation Discussion & Analysis,
page 133 | |
| Fiscal 2008 Awards, page
137 | |
| 12. | We
note your response to our prior comment 32. Please include in this
section a similar discussion as provided in paragraph 2 of your response
to our prior comment 32. Response to Comment 12: |
| The
Registration Statement has been revised as requested. See page 141 of
Amendment No. 2. | |

Securities and Exchange Commission 6

Annex B

| | We
note your response in our prior comment 39, disagree with your conclusion,
and reissue our comment. Delete the language “and may not be used
for any other purpose” in the second to last paragraph of the
opinion. Response to Comment 13: |
| --- | --- |
| The
Registration Statement has been revised as requested. See page B3 of
Annex B of Amendment No. 2. | |
| Part II | |
| Exhibit 99.3 | |
| 14. | Please
provide an updated consent from Wachovia Capital Markets, LLC to include
the references to the opinion in “The Merger – Background
of the Merger”
and “The Merger – Triarc Board of Directors’ Recommendation.” Response to Comment 14: |
| | The
Registration Statement has been revised as requested. See Exhibit 99.3
of Amendment No. 2. |
| Triarc Companies, Inc.
and Subsidiaries: Form 10-K for the year ended December 30,
2007 as filed on February 29, 2008 | |
| Note 1, Summary of Significant
Accounting Policies, Leases, page 68 | |
| 15. | We
note your response to prior comment 40. Please tell us the amounts
amortized relating to favorable and unfavorable leases for each of
the periods in the three years ended December 31, 2007. Also, please
tell us why you believe Codified Staff Accounting Bulletin Topic 11:B
includes the amortization of intangible assets within its scope. Finally,
given the amortization of the favorable and unfavorable leases are,
in substance, both adjustments to reflect rentals at fair market values,
tell us why you believe your current presentation is representationally
faithful to the underlying transactions. Response to Comment 15: |
| | The Staff is supplementally advised that
the amounts amortized related to favorable and unfavorable leases and
included in “depreciation and amortization” and “cost
of sales”, respectively, for each of the periods in the three years
ended December 30, 2007 are as follows: |

Securities and Exchange Commission 7

Fiscal Years	2005		2006		2007
			(000	’s)
Depreciation and amortization	$36,670		$66,227		$73,322
Amortization of favorable leases	1,067		2,686		2,483
Percent of total	2.91	%	4.06	%	3.39	%
Cost of sales	$417,975		$778,592		$815,180
Amortization of unfavorable leases	(2,447	)	(5,419	)	(4,360	)
Percent of total	-0.59	%	-0.70	%	-0.53	%

| | The Company
believes that the historical amounts for amortization of favorable
leases included in depreciation and amortization are not material to
such caption and are also insignificant to the amounts for costs of
sales from which they were excluded. In addition, if such amortization
was reclassified to cost of sales, there would be no impact to any
subtotals in the statement of operations as no gross margin subtotal
is presented). The Company intends, beginning with
the quarterly period that includes the consummation of the merger,
to include the amortization of favorable leases in cost of sales. |
| --- | --- |
| Note 2, Significant Risks
and Uncertainties, Sale of Deerfield, page 74 | |
| 16. | We
note your response to prior comment 41. As these expenses would have
been incurred by the company regardless of whether they were reimbursed,
it appears the amount to be repaid represents additional consideration
of the purchase and should therefore be included in the calculation
of the gain on the sale. Please tell us why you do not believe the
amount should be treated in this manner. Response to Comment 16: The Staff is supplementally advised
that substantially all of the expenses related to the sale of Deerfield
were paid directly by the REIT, the buyer, and not reimbursed to Triarc
after their payment. The Company believes that, if it would have accounted
for the expenses as if they were reimbursed by the REIT to Triarc,
the resulting gain on the sale would have been the same as that included
in the year ended December 30, 2007 income statement as illustrated
in the table below: |

Securities and Exchange Commission 8

(000’s)	As reported for the	Adjustment for	As adjusted for the
	fiscal year ended	REIT	fiscal year ended
	December 30, 2007	reimbursement and	December 30, 2007
		seller expenses
Consideration	$134,608	$6,216	$140,824
Basis in net assets	94,415	$6,216	100,631
sold
Gain on sale	$40,193		$40,193

---

If you have any questions concerning the above responses, please do not hesitate to contact me at the above number.

Very truly yours,
/s/ John C. Kennedy
John C. Kennedy

Attachments
cc:	Nils H. Okeson,
	Triarc Companies, Inc.
	Paul D. Ginsberg
	Jeffrey D. Marell
	Paul, Weiss, Rifkind, Wharton & Garrison LLP
	Leon M. McCorkle, Jr.
	Wendy’s International, Inc.
	Rick L. Burdick
	Zach N. Wittenberg
	Akin Gump Strauss Hauer& Feld LLP