UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) May 13, 1998
TRIARC COMPANIES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 1-2207 38-0471180
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(State or other (Commission (I.R.S. Employer
jurisdiction of File No.) Identification No.)
incorporation of
organization)
280 Park Avenue
New York, NY 10017
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (212) 451-3000
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(Former name or former address, (Zip Code)
if changed since last report)
Page 1 of 3 Pages
Exhibit Index appears on Page 3
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
10.1 - Triarc's 1998 Equity Participation Plan, as currently in effect.
10.2 - Form of Non-Incentive Stock Option Agreement under Triarc's
1998 Equity Participation Plan.
10.3 - Letter agreement, dated as of March 10, 1998, between Triarc and
John L. Barnes, Jr.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on behalf by the undersigned
hereunto duly authorized.
TRIARC COMPANIES, INC.
By: BRIAN L. SCHORR
Brian L. Schorr
Executive Vice President
Dated: May 13, 1998
EXHIBIT
Exhibit
No. Description Page No.
10.1 Triarc's 1998 Equity Participation Plan, as currently
in effect.
10.2 Form of Non-Incentive Stock Option Agreement under
Triarc's 1998 Equity Participation Plan.
10.3 Letter agreement, dated as of March 10, 1998, between
Triarc and John L. Barnes, Jr.
Exhibit 10.1
TRIARC COMPANIES, INC.
1998 EQUITY PARTICIPATION PLAN
1. Purpose. The purpose of the 1998 Equity Participation Plan
(the "Plan") of Triarc Companies, Inc. ("Company") is to promote the interests
of the Company and its stockholders by (i) securing for the Company and its
stockholders the benefits of the additional incentive inherent in the ownership
of the capital stock of the Company (the "Capital Stock") by selected officers,
directors ("Directors") and key employees of, and consultants to, the Company
and its subsidiaries and affiliates who are important to the success and growth
of the business of the Company and its subsidiaries and (ii) assisting the
Company to secure and retain the services of such persons. The Plan provides
for granting such persons (a) options ("Options") for the purchase of shares of
Capital Stock (the "Shares"), (b) tandem stock appreciation rights ("SARs") and
(c) Shares which are both restricted as to transferability and subject to a
substantial risk of forfeiture ("Restricted Shares"). The Plan also provides
for automatic grants of Options to non-employee Directors and permits such non-
employee Directors to elect to receive all or a portion of their annual retainer
fees and/or board of directors or committee meeting attendance fees in Shares.
2. Administration. The Plan shall be administered by a Committee
(the "Committee") consisting of two or more Directors appointed by the Board of
Directors of the Company. It is intended, but not required, that the directors
appointed to serve on the Committee shall be "Non-Employee Directors" (within
the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934,
as amended (the "Act")), and "outside directors" within the meaning of Section
162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), to the
extent Rule 16b-3 and Section 162(m), respectively, are applicable to the
Company and the Plan; however, the fact that a Committee member shall fail to
qualify under either of the foregoing requirements shall not invalidate any
award which is otherwise validly made under the Plan. The members of the
Committee may be changed at any time and from time to time in the discretion of
the Board of Directors of the Company. Subject to the limitations and conditions
hereinafter set forth, and except with respect to automatic grants to
non-employee Directors pursuant to Section 11.1 hereof, the Committee shall have
authority to grant Options hereunder, to determine the number of Shares for
which each Option shall be granted and the Option price or prices, to determine
any conditions pertaining to the exercise or to the vesting of each Option, to
grant tandem SARs in connection with any Option either at the time of the Option
grant or thereafter, to make awards of Restricted Shares, to determine the
number of Restricted Shares to be granted, and to establish in its discretion
the restrictions to which any such Restricted Shares shall be subject. The
Committee shall have full power to construe and interpret the Plan and any Plan
agreement executed pursuant to the Plan to establish and amend rules for its
administration, and to establish in its discretion terms and conditions
applicable to the exercise of Options and SARs and the grant of Restricted
Shares. The determination of the Committee on all matters relating to the Plan
or any Plan agreement shall be conclusive. No member of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any award hereunder.
3. Shares Subject to the Plan. The Shares to be transferred or sold
pursuant to the grant of Restricted Shares or the exercise of Options or SARs
granted under the Plan or pursuant to the election by a Director to receive all
or a portion of their annual retainer fees and/or board of directors or
committee meeting attendance fees, if any ("Fees"), in Shares shall be
authorized Shares, and may be issued Shares reacquired by the Company and held
in its treasury or may be authorized but unissued Shares. Subject to the
provisions of Section 19 hereof (relating to adjustments in the number and
classes or series of Capital Stock to be delivered pursuant to the Plan), the
maximum aggregate number of Shares to be granted as Restricted Shares or to be
delivered on the exercise of Options or SARs or upon a Director's election to
receive Fees in Shares shall be 5,000,000 and all such shares shall be shares of
the Company's Class A Common Stock, par value $0.10 per share (the "Class A
Common Stock").
If an Option expires or terminates for any reason during the term of
the Plan and prior to the exercise in full of such Option or the related SAR, if
any, or if Restricted Shares are forfeited as provided in the grant of such
Shares, the number of Shares previously subject to but not delivered under such
Option, related SAR or grant of Restricted Shares shall be available to be
awarded thereafter. An Option that terminates upon the exercise of a tandem SAR
shall be deemed to have been exercised at the time of the exercise of such
tandem SAR, and the Shares subject thereto shall not be available for further
grants under the Plan.
4. Eligibility. Options, SARs or Restricted Shares may be granted
from time to time to selected officers, and subject to the provisions of Section
2 hereof, Directors (including non-employee Directors) and key employees of, and
consultants to, the Company or any consolidated subsidiary or affiliate, each as
defined in this Section 4. From time to time, the Committee shall designate from
such eligible officers those who will be granted Options, SARs or Restricted
Shares, and in connection therewith, the number of Shares to be covered by each
grant of Options or Restricted Shares. In addition, Options shall be granted
automatically to non-employee Directors and non-employee Directors shall be
entitled to receive all or a portion of their Fees in Shares as provided in
Section 11 hereof. Persons granted Options are referred to hereinafter as
"optionees," and persons granted Restricted Shares are referred to hereinafter
as "grantees." Nothing in the Plan, or in any grant of Options, SARs, Restricted
Shares or Shares pursuant to the Plan, shall confer on any person any right to
continue in the employ or service of the Company or any of its subsidiaries or
affiliates, nor in any way interfere with the right of the Company or any of its
subsidiaries or affiliates to terminate the person's employment or service at
any time.
The term "subsidiary" shall mean, at the time of reference, any
corporation organized or acquired (other than the Company) in an unbroken chain
of corporations beginning with the Company if each of the corporations
(including the Company) other than the last corporation in the unbroken chain
owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain. The term
"affiliate" shall mean any person or entity which, at the time of reference,
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company. Notwithstanding any
other provision of the Plan to the contrary, in no event may the aggregate
number of shares of Class A Common Stock with respect to which Options and SARs
are granted under the Plan to any individual exceed 1,000,000 in any one
calendar year.
PROVISIONS RELATING TO OPTIONS AND SARs
5. Character of Options. Options granted hereunder shall not be
incentive stock Options as such term is defined in Section 422 of the Code.
Options granted hereunder shall be "non-qualified" stock options subject to the
provisions of Section 83 of the Code.
If an Option granted under the Plan (other than an Option granted
pursuant to Section 11 of the Plan) is exercised by an optionee, then, at the
discretion of the Committee, the optionee may receive a replacement or reload
Option hereunder to purchase a number of Shares equal to the number of Shares
utilized to pay the exercise price and/or withholding taxes on the Option
exercise, with an exercise price equal to the "fair market value" (as defined in
Section 7 of the Plan) of a Share on the date such replacement or reload Option
is granted, and, unless the Committee determines otherwise, with all other terms
and conditions (including the date or dates on which the Option shall become
exercisable and the term of the Option) identical to the terms and conditions of
the Option with respect to which the reload Option is granted. No replacement or
reload Option shall be granted in respect of the exercise of any Option granted
pursuant to Section 11 of the Plan.
6. Stock Option Agreement. Each Option granted under the Plan,
whether or not accompanied by SARs, shall be evidenced by a written stock Option
agreement, which shall be executed by the Company and by the person to whom the
Option is granted. The agreement shall contain such terms and provisions, not
inconsistent with the Plan, as shall be determined by the Committee.
7. Option Exercise Price. The price per Share to be paid by the
optionee on the date an Option is exercised shall not be less than 85 percent of
the fair market value of one Share on the date the Option is granted.
For purposes of this Plan, the "fair market value" as of any date in
respect of any Shares of Common Stock shall mean either (i) the closing price
per share of Common Stock on such date or (ii) the average of the high and low
sales prices of a share of Common Stock on such date, as determined by the
Committee in its sole discretion. The closing price for such day shall be (a) as
reported on the composite transactions tape for the principal exchange on which
the Common Stock is listed or admitted to trading (the "Composite Tape"), or if
the Common Stock is not reported on the Composite Tape or if the Composite Tape
is not in use, the last reported sales price regular way on the principal
national securities exchange on which such Common Stock shall be listed or
admitted to trading (which shall be the national securities exchange on which
the greatest number of such shares of Common Stock has been traded during the 30
consecutive trading days commencing 45 trading days before such date), or, in
either case, if there is no transaction on any such day, the average of the bid
and asked prices regular way on such day, or (b) if such Common Stock is not
listed on any national securities exchange, the closing price, if reported, or,
if the closing price is not reported, the average of the closing bid and asked
prices, as reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"). If on any such date the Common Stock is not quoted
by any such exchange or NASDAQ, the fair market value of the Common Stock on
such date shall be determined by the Committee in its sole discretion. In no
event shall the fair market value of any share be less than its par value.
8. Option Term. The period after which Options granted under the
Plan (other than Options granted pursuant to Section 11) may not be exercised
shall be determined by the Committee with respect to each Option granted, but
may not exceed ten years from the date on which the Option is granted, subject
to the third paragraph of Section 9 hereof.
9. Exercise of Options. The time or times at which or during which
Options granted under the Plan may be exercised, and any conditions pertaining
to such exercise or to the vesting in the optionee of the right to exercise
Options or SARs, shall be determined by the Committee in its sole discretion,
except as otherwise specifically set forth herein. Subsequent to the grant of an
Option which is not immediately exercisable in full, the Committee, at any time
before complete termination of such Option, may accelerate or extend the time or
times at which such Option and the related SAR, if any, may be exercised in
whole or part.
Except as provided in this paragraph, no Option or SAR granted under
the Plan shall be assignable or otherwise transferable by the optionee, either
voluntarily or involuntarily, except by will or the laws of descent and
distribution and an Option or SAR shall be exercisable during the optionee's
lifetime only by the optionee. The Committee may in the applicable Option
agreement or at any time thereafter in an amendment to an Option agreement
provide that Options granted hereunder may be transferred with or without
consideration by the Optionee, subject to such rules as the Committee may adopt
to preserve the purposes of the Plan, (i) pursuant to a domestic relations order
or (ii) to one or more of:
(x) the optionee's spouse, children or grandchildren (including
adopted children, stepchildren and grandchildren)
(collectively, the "Immediate Family");
(y) a trust solely for the benefit of the optionee and/or his or
her Immediate Family;
(z) a partnership or limited liability company, the partners or
members of which are limited to the optionee and his or her
Immediate Family, or
(zz) any other person or entity authorized by the Committee.
(each transferee is hereinafter referred to as a "Permitted Transferee");
provided, however, that the optionee gives the Committee advance written
notice describing the terms and conditions of the proposed transfer and
the Committee notifies the optionee in writing that such a transfer would
comply with the requirements of the Plan, any applicable Option agreement
and any amendments thereto.
The terms and conditions of any Option transferred in accordance with the
immediately preceding sentence shall apply to the Permitted Transferee and any
reference in the Plan or in an Option agreement or any amendment thereto to an
optionee or grantee shall be deemed to refer to the Permitted Transferee,
except that (a) Permitted Transferees shall not be entitled to transfer any
Options, other than by will or the laws of descent and distribution;
(b) Permitted Transferees shall not be entitled to exercise any transferred
Options unless there shall be in effect a registration statement on an
appropriate form covering the shares to be acquired pursuant to the exercise
of such Option if the Committee determines that such a registration statement
is necessary or appropriate and; (c) the Committee or the Company shall
not be required to provide any notice to a Permitted Transferee, whether
or not such notice is or would otherwise have been required to be given to the
optionee under the Plan or otherwise; and (d) the events of termination of
employment by, or services to, the Company under clause (b) of the third
paragraph of Section 9 and Section 11.1, as the case may be, hereof shall
continue to be applied with respect to the original optionee, following which
the Options shall be exercisable by the Permitted Transferee only to the extent,
and for the periods, specified in Section 9 and Section 11.1, as the case may
be.
The unexercised portion of any Option (other than Options granted
pursuant to Section 11) or SAR granted under the Plan shall automatically and
without notice terminate and become null and void at the time of the earliest to
occur of the following:
(a) the expiration of the period of time determined by the
Committee upon the grant of such Option; provided that such period shall not
exceed ten years from the date on which such Option was granted;
(b) the termination of the optionee's employment by, or
services to, the Company and its subsidiaries if such termination constitutes or
is attributable to a breach by the optionee of an employment agreement with the
Company or any of its subsidiaries, or if the optionee is discharged or if his
or her services are terminated for cause; or
(c) the expiration of such period of time or the occurrence of
such event as the Committee in its discretion may provide upon the granting
thereof.
The Committee and the Board of Directors shall have the right to
determine what constitutes cause for discharge or termination of services,
whether the optionee has been discharged or his or her services terminated for
cause and the date of such discharge or termination of services, and such
determination of the Committee or the Board of Directors shall be final and
conclusive.
In the event of the death of an optionee, Options or SARs, if any,
exercisable by the optionee at the time of his or her death may be exercised
within one year thereafter by the person or persons to whom the optionee's
rights under the Options or SARs, if any, shall pass by will or by the
applicable law of descent and distribution. However, in no event may any Option
or SAR be exercised by anyone after the earlier of (a) the final date upon which
the optionee could have exercised it had the optionee continued in the
employment of the Company or its subsidiaries to such date, or (b) one year
after the optionee's death.
An Option may be exercised only by a notice in writing complying in
all respects with the applicable Option agreement. Such notice may instruct the
Company to deliver Shares due upon the exercise of the Option to any registered
broker or dealer approved by the Company (an "approved broker") in lieu of
delivery to the optionee. Such instructions shall designate the account
into which the Shares are to be deposited. The optionee may tender such
notice, properly executed by the optionee, together with the aforementioned
delivery instructions, to an approved broker. The purchase price of the
Shares as to which an Option is exercised shall be paid in cash or by check,
except that the Committee may, in its discretion, allow such payment to be
made by surrender of unrestricted Shares (at their fair market value on the
date of exercise) which have been held by the optionee for at least six
months, or by a combination of cash, check and unrestricted Shares.
Payment in accordance with Section 9 may be deemed to be satisfied,
if and to the extent provided in the applicable Option agreement, by delivery to
the Company of an assignment of a sufficient amount of the proceeds from the
sale of Shares acquired upon exercise to pay for all of the Shares acquired upon
exercise and an authorization to the broker or selling agent to pay that amount
to the Company, which sale shall be made at the grantee's direction at the time
of exercise, provided that the Committee may require the grantee to furnish an
opinion of counsel acceptable to the Committee to the effect that such delivery
would not result in the grantee incurring any liability under Section 16 of the
Securities Exchange Act of 1934, as amended, and does not require the consent,
clearance or approval of any governmental or regulatory body (including any
securities exchange or similar self-regulatory organization).
Wherever in this Plan or any Option agreement an optionee is
permitted to pay the exercise price of an Option or taxes relating to the
exercise of an Option by delivering Shares, the optionee may, subject to
procedures satisfactory to the Committee, satisfy such delivery requirement by
presenting proof of beneficial ownership of such Shares, in which case the
Company shall treat the Option as exercised without further payment and shall
withhold such number of Shares from the Shares acquired by the exercise of the
Option (or if the Option is paid in cash, cash in an amount equal to the fair
market value of such shares on the date of exercise).
10. Stock Appreciation Rights. The Committee may in its discretion
grant SARs in connection with any Option, either at the time the Option is
granted or at any time thereafter while the Option remains outstanding, to any
person who at that time is eligible to be granted an Option. The number of SARs
granted to a person which shall be exercisable during any given period of time
shall not exceed the number of Shares which such optionee may purchase upon the
exercise of the related Option or Options during such period of time. Upon the
exercise of an Option pursuant to the Plan, the SARs relating to the Shares
covered by such exercise shall terminate. Upon the exercise of SARs pursuant to
the Plan, the related Option to the extent of an equal number of Shares shall
terminate.
Upon an optionee's exercise of some or all of such optionee's SARs,
the optionee shall receive in settlement of such SARs an amount equal to the
value of the stock appreciation for the number of SARs exercised, payable in
cash, Shares or a combination thereof, as determined in the sole discretion of
the Committee. The stock appreciation for an SAR is the difference between (i)
the fair market value, as determined by the Committee as set forth in the
underlying agreement, of the underlying Share on the date of the exercise of
such SAR and (ii) the Option price specified for the related Option. At the time
of such exercise, the optionee shall have the right to elect the portion of the
amount to be received that shall consist of cash and the portion that shall
consist of Shares, which, for purposes of calculating the number of Shares
to be received, shall be valued at their fair market value on the date of the
exercise of such SARs. The Committee in its sole discretion shall have the
right to disapprove an optionee's election to receive cash in full or partial
settlement of the SARs exercised, and to require the Shares to be delivered in
lieu of cash. If Shares are to be received upon exercise of an SAR, cash shall
be delivered in lieu of any fractional share.
An SAR is exercisable only during the period when the Option to
which it is related is also exercisable. However, in no event shall an SAR be
exercisable during the first six months after being granted except that an SAR
shall be exercisable at the time of death or disability of the optionee if the
related Option is then exercisable.
11. Automatic Grants to Non-Employee Directors; Elective Purchase of
Shares.
11.1 Automatic Grants to Non-Employee Directors.
Notwithstanding any other provision of the Plan, each Director who is initially
elected or appointed as a Director after the date of the adoption of the Plan by
the Board of Directors and who is not then an employee of the Company, any
subsidiary or any affiliate shall receive on the later of (i) the date of the
approval of the Plan by the stockholders, or (ii) the date of such Director's
initial election or appointment to the Board of Directors, nonqualified Options
to purchase 15,000 Shares. On the date of each annual meeting of stockholders of
the Company held after the Plan is adopted by the Board of Directors at which a
Director is reelected, such Director shall receive nonqualified Options to
purchase 3,000 Shares. Each such Option shall have a term of ten years, subject
to the provisions of this Section 11.1 below. Each such Option shall become
exercisable to the extent of one-half thereof on each of the two immediately
succeeding anniversaries of the date of grant, subject to continued service on
the Board. The price per Share to be paid by the holder of such an Option shall
equal the fair market value of one Share on the date the Option is granted. The
purchase price of the Shares as to which such an Option is exercised shall be
paid in cash, by check, by the delivery of unrestricted Shares held by the
Director for at least six months, through the cashless exercise program
described in Section 9, or any combination thereof, at the Director's election.
Any Director holding Options granted under this Section 11.1 who is a member of
the Committee shall not participate in any action of the Committee with respect
to any claim or dispute involving such Director.
Subject to the provisions of the applicable Plan agreement, the
unexercised portion of any such Option shall automatically and without notice
terminate and become null and void at the time of the earliest to occur of the
following:
(a) the expiration of ten years from the date on which such
Option was granted;
(b) the termination of the optionee's services to the Company
and its subsidiaries if the optionee's services are terminated for "cause." For
purposes of this section, "cause" shall mean that the Optionee's services are
terminated (i) on account of fraud, embezzlement or other unlawful or tortious
conduct, whether or not involving or against the Company or any affiliate,
(ii) for violation of a policy of the Company or any affiliate, (iii) for
serious and willful acts or misconduct detrimental to the business or
reputation of the Company of any affiliate or (iv) for "cause" or any like term
as defined in any written contract between the Company and the optionee; or
(c) if the optionee's service terminates for reasons other
than as provided in subsection (a), (b) or (d) of this Section 11.1, the portion
of Options granted to such optionee which were not exercisable immediately prior
to such termination shall immediately terminate and expire and the portion which
was exercisable immediately prior to such termination may be exercised until the
earlier of (i) 90 days after his termination of service or (ii) the date on
which such Options terminate or expire in accordance with the provisions of the
Plan (other than this Section 11.1) and the Plan agreement; or
(d) if the optionee's service terminates by reason of his
death, or if the optionee's service terminates in the manner described in
Subsection (c) of this Section 11.1 and he dies within such period for exercise
provided for therein, the portion of Options not exercisable immediately prior
to such termination shall immediately terminate and expire and the portion which
was exercisable by him immediately prior to his death shall be exercisable by
the person to whom such Options pass under such optionee's will (or, if
applicable, pursuant to the laws of descent and distribution) until the earlier
of (i) one year after the optionee's death or (ii) the date on which such
Options terminate or expire in accordance with the provisions of the Plan (other
than this Section 11.1) and the Plan agreement.
11.2 Elective Purchase of Shares. In addition to any other
benefit to which any Director may be entitled under the terms of the Plan, a
Director shall be permitted to elect to receive all or any portion of the Fees
that otherwise would be payable in cash to such Director, in Shares rather than
cash in accordance with the provisions of this Section 11.2.
Any Director may elect to receive all or any portion of his or her
Fees in Shares rather than cash by delivering a written election (an "Election
Notice," the election set forth therein being referred to as the "Election") to
the Secretary of the Company. An Election shall continue in effect until it is
revoked by delivery to the Secretary of the Company of a written revocation
notice (a "Revocation") or modified by delivery to the Secretary of the Company
of a new Election Notice. Any Election or Revocation under this Section 11.2
shall be effective with respect to Fees that otherwise would be paid after the
later of (x) with respect to an Initial Election (as defined below), the date of
receipt by the Secretary of the Company of the Election Notice or, if later, the
date specified in such Election Notice, and (y) with respect to any Revocation
or any Election, other than an Initial Election, six months after the date of
receipt by the Secretary of the Company of such Revocation or Election Notice.
There shall be no limit on the number of Elections or Revocations that may be
made a Director. A Director who does not elect that all or a portion of his Fees
be paid in Shares shall receive his Fees in cash on the date that such Fees are
otherwise due. Any Shares payable under this Section 11.2 shall be issued to the
Director on the same date that the Fees would have been paid in cash. The number
of Shares to be issued to a Director who makes an Election under this Section
11.2 shall be determined by dividing:
(i) The amount of the Director's Fees for which he has made an
Election under this Section 11.2, by
(ii) the average of the fair market value of the Shares (as defined
in Section 7 of the Plan) for the twenty (20) consecutive trading days
immediately preceding the date as of which the Fees otherwise would be
payable. Only full Shares shall be issued pursuant to this Section. If the
formula set forth above would result in a Director receiving any
fractional Share, then, in lieu of such fractional Share, the Director
shall be paid cash.
For purposes of this Section 11.2 an "Initial Election" means an
Election received by the Secretary of the Company from a Director on a date not
later than the later of (a) ten days following approval of the Plan by the
stockholders, and (b) ten days after a Director is first elected a director of
the Company; provided, however, that with respect to Directors who were
participants in the Triarc Companies, Inc. 1993 Equity Participation Plan (the
"1993 Plan"), any outstanding election under the 1993 Plan shall be deemed to
continue under this Plan as an "Initial Election" and shall continue to be
effective so long as no new Election Notice is received within 10 days following
approval of the Plan by the stockholders.
PROVISIONS RELATING TO RESTRICTED SHARES
12. Granting of Restricted Shares. The Committee may grant
Restricted Shares to eligible persons at any time. In granting Restricted
Shares, the Committee shall determine in its sole discretion the period or
periods during which the restrictions on transferability applicable to such
Shares will be in force (the "Restricted Period"). The Restricted Period may be
the same for all such Shares granted at a particular time or to any one grantee
or may be different with respect to different grantees or with respect to
various of the Shares granted to the same grantee, all as determined by the
Committee in its sole discretion.
Each grant of Restricted Shares under the Plan shall be evidenced by
an agreement which shall be executed by the Company and by the person to whom
the Restricted Shares are granted. The agreement shall contain such terms and
provisions, not inconsistent with the Plan, as shall be determined by the
Committee.
13. Restrictions on Transferability. During the Restricted Period
applicable to each grant of Restricted Shares, such Shares may not be sold,
assigned, transferred or otherwise disposed of, or mortgaged, pledged or
otherwise encumbered. Furthermore, a grantee's eventual right, if any, to such
Shares may not be assigned or transferred except by will or by the laws of
descent and distribution. The restrictions on the transferability of Restricted
Shares imposed by this section are referred to in this Plan as the
"Transferability Restrictions."
14. Determination of Vesting Restrictions. With respect to each
grant of Restricted Shares, the Committee shall determine in its sole discretion
the restrictions on vesting which will apply to the Shares for the Restricted
Period, which restrictions as initially determined and as they may be modified
pursuant to the Plan, are referred to hereinafter as the "Vesting Restrictions."
By way of illustration but not by way of limitation, any such determination of
Vesting Restrictions by the Committee may provide (a) that the grantee will not
be entitled to any such Shares unless he or she is still employed by the Company
or its subsidiaries at the end of the Restricted Period; (b) the grantee will
become vested in such Shares according to such schedule as the Committee may
determine; (c) that the grantee will become vested in such Shares at the end of
or during the Restricted Period based upon the achievement (in such manner as
the Committee may determine) of such performance standards as the Committee may
determine; (d) that the grantee will become vested in such Shares in any
combination of the foregoing or under such other terms and conditions as the
Committee in its sole discretion may determine; and (e) how any such Vesting
Restrictions will be applied, modified or accelerated in the case of the
grantee's death, total and permanent disability (as determined by the Committee)
or retirement.
The performance standards, if any, set by the Committee for any
grantee may be individual performance standards applicable to the grantee, may
be performance standards for the Company or the division, business unit or
subsidiary by which the grantee is employed, may be performance standards set
for the grantee under any other plan providing for incentive compensation for
the grantee, or may be any combination of such standards. Performance standards
set at the time of the grant of any Restricted Shares may be revised at any time
prior to the beginning of the last year of the Restricted Period, but only to
take into account significant changes in circumstances as determined by the
Committee in its sole discretion.
If the Committee deems the Vesting Restrictions inappropriate for
any grantee, it may approve the award and delivery to such grantee of all or any
portion of the Restricted Shares then held in escrow pursuant to Section 15. Any
Restricted Shares so awarded and delivered to a grantee shall be delivered free
and clear of the Transferability Restrictions.
15. Manner of Holding and Delivering Restricted Shares. Each
certificate issued for Restricted Shares granted hereunder will be registered in
the name of the grantee and will be deposited with the Company or its designee
in an escrow account accompanied by a stock power executed in blank by the
grantee covering such Shares. The certificates for such Shares will remain in
escrow until the earlier of the end of the applicable Restricted Period, or, if
the Committee has provided for earlier termination of the Transferability
Restrictions following a grantee's death, total and permanent disability,
retirement or earlier vesting of such Shares, such earlier termination of the
Transferability Restrictions. At whichever time is applicable, the certificates
representing the number of such Shares to which the grantee is then entitled
will be released from escrow and delivered to the grantee free and clear of the
Transferability Restrictions, provided that in the case of a grantee who is not
entitled to receive the full number of such Shares evidenced by the certificates
then being released from escrow because of the application of the Vesting
Restrictions, such certificates will be returned to the Company and canceled,
and a new certificate representing the Shares, if any, to which the grantee is
entitled pursuant to the Vesting Restrictions, will be issued and delivered to
the grantee, free and clear of the Transferability Restrictions.
16. Transfer in the Event of Death, Disability or Retirement.
Notwithstanding a grantee's death, total and permanent disability or retirement,
the certificates for his or her Restricted Shares will remain in escrow and the
Transferability Restrictions will continue to apply to such Shares unless the
Committee determines otherwise. Upon the release of such Shares from escrow and
the termination of the Transferability Restrictions, either upon any such
determination by the Committee or at the end of the applicable Restricted
Period, as the case may be, the portion of such grantee's Restricted Shares to
which he or she is entitled, determined pursuant to his or her applicable
Vesting Restrictions, will be awarded and delivered to the grantee or to the
person or persons to whom the grantee's rights, if any, to the Shares shall pass
by will or by the applicable law of descent and distribution, as the case may
be. However, the Committee may in its sole discretion award and deliver all or
any greater portion of the Restricted Shares to any such grantee or to such
person or persons.
17. Limitations on Obligation to Deliver Shares. The Company shall
not be obligated to deliver any Restricted Shares free and clear of the
Transferability Restrictions until the Company has satisfied itself that such
delivery complies with all laws and regulations by which the Company is bound.
GENERAL PROVISIONS
18. Stockholder Rights. Except for the Transferability Restrictions,
a grantee of Restricted Shares shall have the rights of a holder of the Shares,
including the right to receive dividends paid on such Shares and the right to
vote such Shares at meetings of stockholders of the Company. However, no
optionee shall have any of the rights of a stockholder with respect to any
Shares unless and until he or she has exercised his or her Option with respect
to such Shares and has paid the full purchase price therefor.
19. Changes in Shares. In the event of (i) any split, reverse split,
combination of shares, reclassification, recapitalization or similar event which
involves, affects or is made with regard to any class or series of Capital Stock
which may be delivered pursuant to the Plan ("Plan Shares"), (ii) any dividend
or distribution on Plan Shares payable in Capital Stock, or (iii) a merger,
consolidation or other reorganization as a result of which Plan Shares shall be
increased, reduced or otherwise changed or affected, then in each such event the
Committee shall, to the extent it deems it to be consistent with such event and
necessary or equitable to carry out the purposes of the Plan, appropriately
adjust (a) the maximum number of shares of Capital Stock and the classes or
series of such Capital Stock which may be delivered pursuant to the Plan, (b)
the number of shares of Capital Stock and the classes or series of Capital Stock
subject to outstanding Options or SARs, (c) the Option price per share of all
Capital Stock subject to outstanding Options, and (d) any other provisions of
the Plan, provided, however, that (i) any adjustments made in accordance with
clauses (b) and (c) shall make any such outstanding Option or SAR as nearly as
practicable, equivalent to such Option or SAR, as the case may be, immediately
prior to such change and (ii) no such adjustment shall give any optionee any
additional benefits under any outstanding Option.
20. Reorganization. In the event that the Company is merged or
consolidated with another corporation, or in the event that all or substantially
all of the assets of the Company are acquired by another corporation, or
in the event of a reorganization or liquidation of the Company (each such
event being hereinafter referred to as a "Reorganization Event") or in the
event that the Board of Directors shall propose that the Company enter into a
Reorganization Event, then the Committee may in its discretion take any or all
of the following actions: (i) by written notice to each optionee, provided that
his or her Options will be terminated unless exercised within thirty days
(or such longer period as the Committee shall determine in its sole discretion)
after the date of such notice (without acceleration of the exercisability of
such Options); and (ii) advance the date or dates upon which any or all
outstanding Options shall be exercisable.
Whenever deemed appropriate by the Committee, any action referred to
in subparagraph (a) above may be made conditional upon the consummation of the
applicable Reorganization Event. The provisions of this Section 20 shall apply
notwithstanding any other provision of the Plan.
21. Change of Control. Notwithstanding anything in the Plan to the
contrary, upon (i) the acquisition by any person of 50% or more of the combined
voting power of the Company's outstanding securities entitled to vote generally
in the election of directors, or (ii) a majority of the directors of the Company
being individuals who are not nominated by the Board of Directors (a "Change of
Control"), any outstanding Options granted under the Plan shall be fully and
immediately exercisable and any Vesting Restrictions applicable to any
Restricted Shares shall lapse and such Restricted Shares shall be delivered free
and clear of all Transferability Restrictions. The acquisition of any portion of
the combined voting power of the Company by DWG Acquisition Group, L.P., Nelson
Peltz or Peter May or by any person affiliated with such persons (or the
acquisition or disposition by any person or persons who receive any award under
Section 11 hereof) shall in no event constitute a Change of Control.
22. Withholding Taxes. Whenever under the Plan shares of Common
Stock are to be delivered pursuant to an award, the Committee may require as a
condition of delivery that the optionee or grantee remit an amount sufficient to
satisfy all federal, state and other governmental holding tax requirements
related thereto. Whenever cash is to be paid under the Plan (whether upon the
exercise of an SAR or otherwise), the Company may, as a condition of its
payment, deduct therefrom, or from any salary or other payments due to the
grantee, an amount sufficient to satisfy all federal, state and other
governmental withholding tax requirements related thereto or to the delivery of
any shares of Common Stock under the Plan. Notwithstanding any provision of this
Plan to the contrary, in connection with the transfer of an Option to a
Permitted Transferee pursuant to Section 9 of the Plan, the optionee shall
remain liable for any withholding taxes required to be withheld upon the
exercise of such Option by the Permitted Transferee.
Without limiting the generality of the foregoing, (i) an optionee or
grantee may elect to satisfy all or part of the foregoing withholding
requirements by delivery of unrestricted shares of Common Stock owned by the
optionee or grantee for at least six months (or such other period as the
Committee may determine) having a fair market value (determined as of the date
of such delivery by the optionee or grantee) equal to all or part of the amount
to be so withheld, provided that the Committee may require, as a condition of
accepting any such delivery, the optionee or grantee to furnish an opinion of
counsel acceptable to the Committee to the effect that such delivery would
not result in the optionee or grantee incurring any liability under
Section 16(b) of the Act; and (ii) the Committee may permit any such delivery to
be made by withholding shares of Common Stock from the Shares otherwise
issuable pursuant to the award giving rise to the tax withholding
obligation (in which event the date of delivery shall be deemed the date such
award was exercised).
23. Amendment and Discontinuance. The Board of Directors may amend,
alter, suspend, discontinue, or terminate the Plan or any portion thereof at any
time; provided that no such amendment, alteration, suspension, discontinuation
or termination shall be made without stockholder approval if such approval is
necessary to comply with any regulatory requirement applicable to the Plan and
provided further that any such amendment, alteration, suspension, discontinuance
or termination that would impair any rights under any award theretofore made
under the Plan shall not to that extent be effective without the consent of the
person to whom such award was made.
24. Applicable Laws. The obligation of the Company to deliver Shares
shall be subject to all applicable laws, rules and regulations, and to such
approvals by governmental agencies as may be deemed appropriate by the
Committee, including, among others, such steps as counsel for the Company shall
deem necessary or appropriate to comply with requirements of relevant securities
laws. Such obligation shall also be subject to the condition that the Shares
reserved for issuance upon the exercise of Options granted under the Plan shall
have been duly listed on any national securities exchange which then constitutes
the principal trading market for the Shares.
25. Governing Laws. The Plan shall be applied and construed in
accordance with and governed by the law of the State of Delaware, to the extent
such law is not superseded by or inconsistent with Federal law.
26. Effective Date and Duration of Plan. The Plan shall become
effective on the date of its approval by the stockholders. The term during which
awards may be granted under the Plan shall expire on April 30, 2003.
27. Amendments to Agreements. Notwithstanding any other provision of
the Plan, the Board of Directors, or any authorized committee thereof, may amend
the terms of any agreement entered into in connection with any award granted
pursuant to the Plan, provided that the terms of such amendment are not
inconsistent with the terms of the Plan.
Exhibit 10.2
NON-INCENTIVE STOCK OPTION AGREEMENT
Under
TRIARC COMPANIES, INC.
1998 EQUITY PARTICIPATION PLAN
_____________ Shares of Common Stock
TRIARC COMPANIES, INC. (the "Company"), pursuant to the terms of its
1998 Equity Participation Plan (the "Plan"), hereby irrevocably grants to
_________ (the "Optionee") the right and option to purchase shares of Class A
Common Stock, par value $.10 per share (the "Common Stock"), of the Company upon
and subject to the following terms and conditions:
1. The Option is not intended to qualify as an incentive stock
option under the provisions of Section 422 of the Internal Revenue Code of 1986,
as amended, or its predecessor (the "Code").
2. _________________ is the date of grant of the Option ("Date of
Grant").
3. The purchase price of the shares of Common Stock subject to the
Option shall be $_________ per share.
4. The Option shall be exercisable as follows:
(a) One-third of the shares of Common Stock subject to the
Option shall be exercisable after ________________.
(b) One-third of the shares of Common Stock subject to the
Option shall be exercisable after ________________.
(c) One-third of the shares of Common Stock subject to the
Option shall be exercisable after ________________.
5. The unexercised portion of the Option shall automatically and
without notice terminate and become null and void at the expiration of ten (10)
years from the Date of Grant.
6. The unexercised portion of any such Option shall automatically
and without notice terminate and become null and void at the time of the
earliest to occur of the following:
(a) ________________;
(b) the termination of the Optionee's services to the Company
and its subsidiaries if the Optionee's services are terminated for "cause," that
is for "cause" or any like term, as defined in any written contract between the
Company and the Optionee; or if not so defined, (i) on account of fraud,
embezzlement or other unlawful or tortious conduct, whether or not
involving or against the Company or any affiliate, (ii) for violation of a
policy of the Company or any affiliate, (iii) for serious and willful acts or
misconduct detrimental to the business or reputation of the Company or any
affiliate; or
(c) the termination of Optionee's services to the Company and
its subsidiaries for reasons other than as provided in subsection (b) or (d) of
this Section 6; provided, however, that the portion of Options granted to such
Optionee which were exercisable immediately prior to such termination may be
exercised until the earlier of (i) 90 days after his termination of service or
(ii) the date on which such Options terminate or expire in accordance with the
provisions of this Agreement (other than this Section 6); or
(d) the termination of Optionee's services to the Company and
its subsidiaries by reason of his death, or if the Optionee's services terminate
in the manner described in subsection (c) of this Section 6 and he dies within
such period for exercise provided for therein; provided, however, that the
portion of Options exercisable by him immediately prior to his death shall be
exercisable by the Optionee's executors or administrators, as provided in
Section 10, or by the person to whom such Options pass (the Optionee's
"Beneficiary") under such Optionee's will (or, if applicable, pursuant to the
laws of descent and distribution) until the earlier of (i) one year after the
Optionee's death or (ii) the date on which such Options terminate or expire in
accordance with the provisions of this Agreement (other than this Section 6).
To the extent necessary to comply with Rule 16b-3 of the Securities
Exchange Act of 1934, as amended (the "Act") as in effect from time to time or
any successor rule thereafter ("Rule 16b-3"), the provisions of this Section 6
shall not be amended more than once every six months other than to comport with
changes in the Code, the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder.
7. The Option shall be exercised by the Optionee (or by the
Optionee's Beneficiary, as provided in Section 6, or by the Optionee's executors
or administrators, as provided in Section 10), subject to the provisions of the
Plan and of this Agreement, as to all or part of the shares of Common Stock
covered hereby, as to which the Option shall then be exercisable, by the giving
of written notice of such exercise to the Company at its principal business
office, accompanied by payment of the full purchase price for the shares being
purchased. Payment of such purchase price shall be made (a) by cash or by check
payable to the Company and/or (b) by delivery of unrestricted shares of Common
Stock having a fair market value (determined as of the date the Option is
exercised, but in no event at a price per share less than the par value per
share of the Common Stock delivered) equal to all or part of the purchase price
and, if applicable, of a check payable to the Company for any remaining portion
of the purchase price. Whenever the Optionee is permitted to pay the exercise
price of an Option or taxes relating to the exercise of an Option by delivering
shares of Common Stock, the Optionee may, subject to procedures satisfactory to
the Committee (as defined in the Plan), satisfy such delivery requirement by
presenting proof of beneficial ownership of such shares, in which case the
Company shall treat the Option as exercised without further payment and shall
withhold such number of shares from the shares acquired by the exercise of the
Option (or if the Option is paid in cash, cash in an amount equal to the fair
market value of such shares on the date of exercise). Payment in accordance
with this Section 7 may be satisfied by delivery to the Company of an
assignment of sufficient amount of the proceeds from the sale of shares of
Common Stock acquired upon exercise of the Option to pay for all of the shares
of Common Stock acquired upon such exercise and on authorization to the broker
or selling agent to pay that amount to the Company, which sale shall be made at
the Optionee's direction at he time of exercise, provided that the Committee may
require Optionee to furnish an opinion of counsel acceptable to the Committee to
the effect that such delivery would not result in the Optionee incurring any
liability under Section 16 of the Act and does not require the consent,
clearance or approval of any governmental or regulatory body (including any
securities exchange or similar self-regulatory organization).
The Company shall cause certificates for the shares so purchased to
be delivered to the Optionee or the Optionee's executors or administrators,
against payment of the purchase price, as soon as practicable following the
Company's receipt of the notice of exercise.
8. Neither the Optionee nor the Optionee's Beneficiary, executors or
administrators shall have any of the rights of a stockholder of the Company with
respect to the shares subject to the Option until a certificate or certificates
for such shares shall have been issued upon the exercise of the option.
9. The Option shall not be transferable by the Optionee other than
to the Optionee's Beneficiary, executors or administrators by will or the laws
of descent and distribution, and during the Optionee's, lifetime shall be
exercisable only by the Optionee.
10. In the event of the Optionee's death, the Option shall
thereafter be exercisable (to the extent otherwise exercisable hereunder) only
by the Optionee's Beneficiary, executors or administrators.
11. The terms and conditions of the Option, including the number of
shares and the class or series of capital stock which may be delivered upon
exercise of the Option and the purchase price per share, are subject to
adjustment as provided in Paragraph 19 of the Plan.
12. The Optionee, by the Optionee's acceptance hereof, represents
and warrants to the Company that the Optionee's purchase of shares of capital
stock upon the exercise hereof shall be for investment and not with a view to
distribution and agrees that the shares of capital stock will not be disposed of
except pursuant to an applicable effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), unless the Company
shall have received an opinion of counsel satisfactory to the Company that such
disposition is exempt from such registration under the Securities Act.
The Optionee agrees that the obligation of the Company to issue
shares upon the exercise of the Option shall also be subject, as conditions
precedent, to compliance with applicable provisions of the Act, state securities
or corporation laws, rules and regulations under any of the foregoing and
applicable requirements of any securities exchange upon which the Company's
securities shall be listed.
The Company may endorse an appropriate legend referring to the
foregoing representations and restrictions upon the certificate or certificates
representing any shares issued or transferred to the Optionee upon the exercise
of the Option.
13. The Option has been granted subject to the terms and conditions
of the Plan, a copy of which has been provided to the Optionee and which the
Optionee acknowledges having received and reviewed. Any conflict between this
Agreement and the Plan shall be decided in favor of the provisions of the Plan.
Terms used but not defined in this Agreement shall have the meanings given to
them in the Plan. This Agreement may not be amended in any manner adverse to the
Optionee except by a written agreement executed by the Optionee and the Company.
14. Nothing herein shall confer upon the Optionee the right to
continue to serve as a director or officer to the Company or any of its
subsidiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by an officer duly authorized thereto as of the ___ day of ____________,
_____.
TRIARC COMPANIES, INC.
By:___________________________
Name:
Title:
ACCEPTED AND AGREED TO:
______________________________
Exhibit 10.3
As of March 10, 1998
Mr. John L. Barnes, Jr.
31 Old Redding Road
Weston, CT 06883
Dear Jack:
This will serve to amend your employment agreement dated as of April 29,
1996, and confirm that as of March 10, 1998, you have been promoted from Senior
Vice President and Chief Financial Officer to Executive Vice President and Chief
Financial Officer. Accordingly, all references to "Senior Vice President" in
your employment agreement are now amended to "Executive Vice President and Chief
Financial Officer." Except as set forth herein, all the terms and conditions of
the April 29, 1996 letter agreement continue in full force and effect.
Sincerely,
PETER W. MAY
Peter W. May
President and
Chief Operating Officer
AGREED TO AND ACCEPTED
AS OF MARCH 10, 1998:
JOHN L. BARNES, JR.
John L. Barnes, Jr.
