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) March 12, 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
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
Filed herewith are certain agreements and documents entered into by or
otherwise relating to the Registrant and its subsidiaries.
(c) Exhibits
10.1 -- Triarc Beverage Holdings Corp. 1997 Stock Option Plan
(the "TBHC Option Plan"), as currently in effect.
10.2 -- Form of Non-Qualified Stock Option Agreement under the
TBHC Option Plan.
10.3 -- Amended and Restated Employment Agreement dated as of
June 1, 1997 by and between Snapple Beverage Corp.
("Snapple"), Mistic Brands, Inc. ("Mistic") and
Michael Weinstein.
10.4 -- Amended and Restated Employment Agreement dated as of
June 1, 1997 by and between Snapple, Mistic and Ernest J.
Cavallo.
10.5 -- Triarc Companies, Inc. 1997 Equity Participation Plan
(the "1997 Plan"), as currently in effect.
10.6 -- Form of Non-Incentive Stock Option Agreement under the
1997 Plan.
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
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Brian L. Schorr, Executive Vice President
Dated: March 16, 1998
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EXHIBIT
Exhibit
No. Description Page No.
10.1 -- Triarc Beverage Holdings Corp. 1997 Stock Option Plan (the
"TBHC Option Plan"), as currently in effect.
10.2 -- Form of Non-Qualified Stock Option Agreement under the TBHC
Option Plan.
10.3 -- Amended and Restated Employment Agreement dated as of June 1,
1997 by and between Snapple Beverage Corp. ("Snapple"), Mistic
Brands, Inc. ("Mistic") and Michael Weinstein.
10.4 -- Amended and Restated Employment Agreement dated as of June 1,
1997 by and between Snapple, Mistic and Ernest J. Cavallo.
10.5 -- Triarc Companies, Inc. 1997 Equity Participation Plan (the
"1997 Plan"), as currently in effect.
10.6 -- Form of Non-Incentive Stock Option Agreement under the 1997
Plan.
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Exhibit 10.1
TRIARC BEVERAGE HOLDINGS CORP.
1997 STOCK OPTION PLAN
1. PURPOSE
The purpose of the 1997 Stock Option Plan (the "Plan") of Triarc
Beverage Holdings Corp. (the "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 shares of common stock par value $1.00 per share, of the Company (the
"Shares") by selected key employees, officers, directors and consultants of the
Company and its subsidiaries and affiliates, and Triarc Companies, Inc. (the
"Parent") and its other 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.
2. ADMINISTRATION
(a) 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 (the "Board"). If at any time such a Committee has not
been appointed by the Board, the Board shall constitute the Committee. The
members of the Committee may be changed at any time and from time to time in the
discretion of the Board. Subject to the limitations and conditions hereinafter
set forth, 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, and to determine any conditions pertaining to the
exercise or to the vesting of each Option. The Committee shall have full power
to construe and interpret the Plan and any "Option Agreement" (as defined in
Section 6) 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. The determination of the Committee on all
matters relating to the Plan or any Option 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.
(b) Notwithstanding the foregoing, during any period prior to
the consummation of a registered initial public offering of Shares pursuant to
an effective registration statement under the Securities Act of 1933, all Option
grants shall be made by a committee of at least two (2) directors of the Parent,
each of whom is intended to qualify as an "outside director" within the meaning
of section 162(m) of the Internal Revenue Code of 1986 (the "Parent Committee")
and all other decisions and actions of the Committee shall be subject to the
approval of the Parent Committee.
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3. SHARES SUBJECT TO THE PLAN
(a) The Shares to be transferred or sold pursuant to the
exercise of Options granted under the Plan 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 12 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
delivered on the exercise of Options shall be 150,000 representing fifteen
percent (15%) of the outstanding Shares as of the "Effective Date" (as defined
in Section 21) determined on a fully diluted basis.
(b) If an Option expires or terminates or is canceled without
consideration for any reason during the term of the Plan and prior to the
exercise in full of such Option, the number of Shares previously subject to but
not delivered under such Option shall be available for the grant of Options
thereafter. To the extent that Shares are tendered in respect of the Exercise
Price of an Option, the number of Shares available under the Plan shall be
reduced only by the excess of (i) the number of Shares acquired upon such
exercise, over (ii) the number of Shares tendered in respect of the Exercise
Price.
4. ELIGIBILITY
(a) Options may be granted from time to time to key employees,
officers, directors and consultants of the Company, the Parent or any of their
respective consolidated subsidiaries and affiliates, as defined in this Section
4. From time to time, the Committee shall designate from such eligible employees
those who will be granted Options, and in connection therewith, the number of
Shares to be covered by each grant of Options. Persons granted Options are
referred to hereinafter as "optionees." Nothing in the Plan, or in any grant of
Options pursuant to the Plan, shall confer on any person any right to continue
in the employ of the Company, the Parent or any of their subsidiaries or
affiliates, nor in any way interfere with the right of the Company, the Parent
or any of their subsidiaries or affiliates to terminate the person's employment
at any time.
(b) The term "subsidiary" of the Company or the Parent shall
mean, at the time of reference, any corporation organized or acquired (other
than the Company and the Parent) in an unbroken chain of corporations beginning
with the Company or the Parent, as applicable, if each of the corporations
(including the Company and the Parent) 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, or stock possessing the power to elect a majority
of the members of the board of directors, 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 or the
Parent. Notwithstanding any other provision
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of the Plan to the contrary, in no event may the aggregate number of Shares with
respect to which Options are granted under the Plan to any individual in any
fiscal year exceed 75,000.
(c) The term "employment" (including, with correlative
meaning, all conjugations thereof) as used in the Plan means (i) with respect to
any optionee who is an employee of the Company, the Parent or their respective
subsidiaries or affiliates, such optionee's employment and (ii) with respect to
any optionee who is a non-employee director, non-employee officer or consultant
to the Company, the Parent or their respective subsidiaries or affiliates, such
optionee's services as a non-employee director, non-employee officer or
consultant.
PROVISIONS RELATING TO OPTIONS
5. CHARACTER OF OPTIONS
(a) Options granted hereunder shall not be incentive stock
options as such term is defined in Section 422 of the Internal Revenue Code of
1986, as amended from time to time (the "Code"). Options granted hereunder shall
be "non-qualified" stock options subject to the provisions of Section 83 of the
Code.
(b) If an Option granted under 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.
6. OPTION AGREEMENT
Each Option granted under the Plan shall be evidenced by a written
stock option agreement (an "Option Agreement"), which shall be executed by the
Company and by the person to whom the Option is granted. The Option Agreement
shall contain such terms and provisions, not inconsistent with the Plan, as
shall be determined by the Committee.
7. OPTION EXERCISE PRICE
(a) The price per Share to be paid by the optionee on the date
an Option is exercised (the "Exercise Price") shall be established by the
Committee and included in the Option Agreement evidencing the Option; provided
that the Exercise Price per Share shall not be less than 50% of the fair market
value per Share as of the date the Option is granted.
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(b) For purposes of this Plan, the "fair market value" as of
any date in respect of any Shares shall mean:
(i) If there shall be a public market for the Shares as
of such date, then the closing price per Share for the trading day on or
on the first trading day immediately subsequent to such date. The closing price
for such day shall be (x) as reported on the composite transactions tape for
the principal exchange on which the Shares are listed or admitted to trading
(the "Composite Tape"), or if the Shares are 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
Shares shall be listed or admitted to trading (which shall be the national
securities exchange on which the greatest number of such Shares have 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
(y) if such Shares are 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"); and
(ii) If there shall not be a public market for the Shares as of
such date, then the fair market value of Shares on such date shall be determined
by the Committee, based upon the advice of the Company's independent auditors or
other third party appraiser selected by the Committee in its sole discretion,
which determination by the Committee shall be binding and conclusive.
8. OPTION TERM
The period after which Options granted under the Plan may not be
exercised shall be ten years from the date on which the Option is granted,
subject to earlier termination as provided in Section 10 or under any applicable
Option Agreement.
9. VESTING OF OPTIONS
(a) Any Options granted as of the Effective Date (the "Initial
Options") will vest and become exercisable in accordance with the following
schedule, subject to the optionee's continued employment with the Company or the
Parent (or their respective subsidiaries or affiliates) on the indicated vesting
date:
Vesting Date Percentage Vested
July 1, 1999 33.33%
July 1, 2000 33.33%
July 1, 2001 33.33%
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(b) Unless otherwise provided by the Committee, Options
granted hereunder other than the Initial Options shall vest and become
exercisable with respect to 33.33% of the Shares initially subject to the Option
on each of the second, third and fourth anniversaries of the date of grant,
subject to the optionee's continued employment with the Company or the Parent
(or their respective subsidiaries or affiliates) on such vesting dates.
(c) Subsequent to the grant of an Option which is not
immediately exercisable in full, the Committee may, at any time before complete
termination of such Option, accelerate or extend the time or times at which such
Option may be exercised in whole or in part, subject to the provisions of
Section 8.
(d) Subject to the provisions of Section 10(a), exercisability
and vesting of Options is at all times subject to the optionee's continued
employment by the Company or the Parent (or their respective subsidiaries or
affiliates), and all unvested Options shall terminate immediately upon
termination of employment for any reason.
10. EXERCISE OF OPTIONS
(a) Unless otherwise provided in an applicable Option
Agreement, the unexercised portion of any vested Option 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:
(i) ten years from the date on which such Option was
granted;
(ii) date of the termination of the optionee's
employment by the Company, the Parent and their respective subsidiaries and
affiliates if the optionee's employment is terminated for "Cause" (as defined
in Section 10(f));
(iii) ninety (90) days after the date of the
termination of the optionee's employment by the Company, the Parent
and their respective subsidiaries and affiliates if the optionee
voluntarily resigns, or if the optionee's employment is terminated without
Cause; or
(iv) one year after the date of death of the optionee
or the date of the termination of the optionee's employment due to "Disability"
(as defined in Section 10(f));
(b) In the event of an optionee's death, the vested portion of
any Options granted to the optionee shall remain exercisable by the optionee's
executor or administrator or the person or persons to whom the optionee's rights
under this Plan and any
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applicable Award Agreement shall pass by will or the laws of descent and
distribution, as the case may be, to the extent set forth in Section 10(a).
(c) (i) No Shares shall be delivered pursuant to any exercise
of an Option until payment in full of the aggregate exercise price therefor is
received by the Company. Such payment may be made in cash, or its equivalent, or
(x) by exchanging Shares owned by the optionee (which are not the subject of any
pledge or other security interest and which have been owned by such optionee for
at least 6 months) or (y) if there shall be a public market for the Shares at
such time, subject to such rules as may be established by the Committee, through
delivery of irrevocable instructions to a broker to sell the Shares otherwise
deliverable upon the exercise of the Option and to deliver promptly to the
Company an amount equal to the aggregate exercise price, or by a combination of
the foregoing, provided that the combined value of all cash and cash equivalents
and the fair market value of any such Shares so tendered to the Company as of
the date of such tender is at least equal to such aggregate exercise price.
(ii) 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.
(iii) The obligation of the Company to deliver Shares upon such
exercise 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.
(iv) Notwithstanding any provision of the Plan or any Option
Agreement to the contrary, upon the exercise of an Option and payment in full of
the exercise price of such Option by any optionee who is, on the date of
exercise of such Option, a "covered employee" for purposes of section 162(m) of
the Internal Revenue Code of 1986 (the "Code"), no Shares shall be actually
acquired by such optionee until the payment of the compensation represented by
the delivery of such Shares to the optionee would not be subject to the
deduction limitations of section 162(m) of the Code; provided, however, that the
foregoing limitation may be waived by the Committee in its sole discretion.
(d) Except as provided in this paragraph, no Option granted under
the Plan shall be assignable or otherwise transferable by the optionee, either
voluntarily or
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involuntarily, except by will or the laws of descent and distribution and an
Option 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, to
one or more of:
(i) the optionee's spouse, children or grandchildren
(including adopted children, stepchildren and grandchildren) (collectively, the
"Immediate Family");
(ii) a trust solely for the benefit of the optionee
and/or his or her Immediate Family;
(iii) a partnership or limited liability company, the
partners or members of which are limited to the optionee and his or her
Immediate Family; or
(iv) 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; (c) none of the Committee, the Company nor the Parent shall 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
the Company, the Parent or their respective subsidiaries or affiliates under
this Section 10 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 10.
(e) Prior to the consummation of a registered initial public
offering of Shares pursuant to an effective registration statement under the
Securities Act of 1933, no Shares
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acquired upon the exercise of an Option shall be transferable without the
express written consent of the Committee, which consent may be withheld in the
sole discretion of the Committee.
(f) For purposes of this Plan:
(i) The term "Cause" shall mean "Cause" as defined in any
employment agreement then in effect between the optionee and the Company, the
Parent or their respective subsidiaries or affiliates, as applicable, or if not
defined therein or, if there shall be no such agreement, (i) the optionee's
engagement in misconduct which is materially injurious to the Company, the
Parent or their respective affiliates, (ii) the optionee's continued failure to
substantially perform his duties to the Company, the Parent or their respective
subsidiaries or affiliates, as applicable, (iii) the optionee's dishonesty in
the performance of his or her duties to the Company, the Parent or their
respective subsidiaries or affiliates, as applicable, (iv) the optionee's
commission of an act or acts constituting any (x) fraud against, or
misappropriation or embezzlement from the Company, the Parent or any of their
affiliates, (y) crime involving moral turpitude, or (z) offense that could
result in a jail sentence of at least 30 days or (v) the optionee's material
breach of any confidentiality or non-competition covenant entered into between
the optionee and the Company, the Parent or any of their respective affiliates.
The determination of the existence of Cause shall be made by the Committee in
good faith, which determination shall be conclusive for purposes of this
Agreement; and
(ii) The term "Disability" shall mean "Disability" as defined
in any employment agreement then in effect between the optionee and the Company,
the Parent, or their respective subsidiaries or affiliates, as applicable, or if
not defined therein or if there shall be no such agreement, as defined in the
Company's or the Parent's long-term disability plan as in effect from time to
time, or if there shall be no plan or if not defined therein, the optionee's
becoming physically or mentally incapacitated and consequent inability for a
period of six (6) months in any twelve (12) consecutive month period to perform
his duties to the Company, the Parent or their respective subsidiaries or
affiliates, as applicable.
GENERAL PROVISIONS
11. SHAREHOLDER RIGHTS.
No optionee shall have any of the rights of a shareholder with
respect to any Shares unless and until he or she has exercised his or her
Options with respect to such Shares and has paid the full purchase price
therefor and until the Shares have been delivered in accordance with the
provisions of Section 10(c)(iv), if applicable.
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12. 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 Shares, 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 and the classes or series of such Shares which may be
delivered pursuant to the Plan, in the aggregate and to any individual, (b) the
number of Shares and the classes or series of Shares subject to outstanding
Options, (c) the Option price per Share of all Shares 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 as nearly as practicable, equivalent to such Option, as the
case may be, immediately prior to such change and (iii) no such adjustment shall
give any optionee any additional benefits under any outstanding Option.
13. REORGANIZATION
(a) 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 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, provide 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.
(b) 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 13 shall apply notwithstanding any other provision of the Plan and shall
be in addition to, and not in lieu of, any action available to the Committee
under Section 12 or Section 14.
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14. CHANGE OF CONTROL
(a) Company Change of Control. Notwithstanding anything in the
Plan to the contrary, in the event that (i) there is an acquisition by any
person (other than any member of the "Control Group" as defined in Section 14(c)
below) 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) the
Board shall be comprised by directors, a majority of whom are individuals who
are not nominated by the Board (a "Company Change of Control"), then, upon a
termination of an Optionee's employment within one (1) year following the
consummation of the Company Change of Control due to (x) a termination by the
Company or the Parent or their respective subsidiary or affiliate, as
applicable, without Cause or (y) a "Constructive Termination" (as defined in
Section 14(c) below), any outstanding Options granted under the Plan will vest
and become immediately exercisable.
(b) Parent Change of Control. Notwithstanding anything in the
Plan to the contrary, upon (i) the acquisition by any person (other than any
member of the Control Group) of 50% or more of the combined voting power of the
Parent's outstanding securities entitled to vote generally in the election of
directors, or (ii) a majority of the directors of the Parent being individuals
who are not nominated by the Board (a "Parent Change of Control"), any
outstanding Options granted under the Plan will vest and become immediately
exercisable. In addition, following the occurrence of a Parent Change of
Control, the Company will have the discretion: (1) to cancel outstanding Options
in consideration for a cash payment by the Company (or by the Parent in the case
of an optionee who is employed directly by the Parent) equal to the excess, if
any, of the fair market value of the Shares subject to such Options as of the
date of such Parent Change of Control, over the aggregate exercise price of such
Options, less applicable withholding taxes and/or (2) to waive the six-month
holding period referred to in Section 15(a).
(c) For purposes of the Plan:
(i) "Control Group" shall mean any of DWG Acquisition
Group, L.P., Nelson Peltz or Peter May or by any person affiliated with such
persons (including, without limitation, any spouse, siblings and their spouses
and descendants of any of them and any trust, partnership, foundation or other
entity established and maintained primarily for the benefit of any of them).
(ii) "Constructive Termination" shall mean (i) any
substantial diminution in the optionee's title, duties or responsibilities
from those enjoyed by the optionee immediately prior to the Company Change
of Control or (ii) any material reduction in the aggregate compensation and
benefits provided to the optionee from those provided to the optionee
immediately prior to the Company Change of Control.
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15. PUT RIGHTS
(a) Prior to the consummation of a registered initial public
offering of Shares pursuant to an effective registration statement under the
Securities Act of 1933, if an optionee has exercised an Option and held the
Shares acquired upon exercise of the Option for a period of more than six (6)
months, such optionee shall have the right to sell all or any portion of the
Shares acquired upon exercise of such Option to the Company for a two week
period (each, a "Valuation Period") commencing on the date of delivery to the
optionee of the annual valuation of the Company prepared by the Company's
independent auditors or other third party appraiser selected by the Committee in
its sole discretion (the"Annual Valuation"), as of the end of each fiscal year
(each, a "Valuation Date"); provided, that Parent may, in its discretion,
purchase such Shares in satisfaction of the Company's obligation to make such
purchase; provided, further, that such "put right" will expire (i) with respect
to any optionee, (x) immediately upon the optionee's termination of employment
for Cause, (y) two (2) weeks following the next succeeding Valuation Date in the
case of an optionee who has resigned for any reason and (z) immediately upon the
optionee's violation of any non-competition restrictions applicable during the
optionee's employment and for nine (9) months thereafter and (ii) with respect
to all optionees, two (2) weeks following the Valuation Date next succeeding the
date that the last outstanding Option granted under the Plan is exercised,
forfeited or expires. With respect to an optionee who is subject to the
limitations of Section 10(c)(iv), the relevant Valuation Date for purposes of
clause (i)(y) and clause (ii) in the preceding sentence shall be the Valuation
Date next succeeding the expiration of the six-month period following the
delivery of Shares to the optionee in accordance with the provisions of Section
10(c)(iv).
(b) The price per Share to be paid to the optionee upon
exercise of the put right shall equal the fair market value of the Shares as of
the date of exercise of the put right (the "Put Date Value"), as determined by
the applicable Annual Valuation and assuming for purposes of such determination
of fair market value that all outstanding Options have been exercised. Payment
in respect of the put right will be due, without interest, within 5 business
days of the end of the applicable Valuation Period (the "Scheduled Payment
Date").
(c) Notwithstanding the foregoing, neither the Company nor the
Parent shall be obligated to take any action or make any payment in satisfaction
of an optionee's exercise of a put right with respect to such entity (the
Company or the Parent as the obligor upon the exercise of such put right being
hereinafter referred to as the "Put Obligor") (i) if an event of default should
then exist and be continuing under the terms of any agreement for indebtedness
for borrowed money to which the Put Obligor or any of its subsidiaries or
affiliates is a party at such time or (ii) if such action or payment would
constitute a default or an event of default or result in a mandatory prepayment
requirement under the terms of any agreement for indebtedness for borrowed money
to which the Put Obligor or any of its subsidiaries or affiliates is a party at
such time (each a "Financing Limitation"). If the Put Obligor is unable to make
payments in respect of the exercise of a put right due to a Financing
Limitation, the Put Obligor will make payment of the Put Date Value at the
earliest practicable
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date following the date when such payment would no longer contravene a Financing
Limitation, together with interest at the prime rate from the Scheduled Payment
Date to the date of payment by the Put Obligor.
16. CALL RIGHTS
Prior to the consummation of a registered initial public offering of
Shares pursuant to an effective registration statement under the Securities Act
of 1933, if an optionee whose employment has terminated for any reason holds
Shares of the Company acquired upon the exercise of an Option, the Company may,
in its discretion, purchase all or any number of such Shares that have been held
by the optionee for a period of more than six (6) months, on any succeeding
Valuation Date; provided, that the Parent, may in its discretion, purchase such
Shares in lieu of the Company making such purchase. The purchase price for such
Shares shall be (i) if the optionee's employment is terminated for Cause or
violates any non-competition restrictions applicable during the optionee's
employment and for nine (9) months thereafter, the lower of the exercise price
or the then fair market value per Share as determined by the applicable Annual
Valuation and (ii) if the optionee's employment terminates for any reason other
than for Cause and the optionee has not violated such non-competition
restrictions, the then fair market value per Share as determined by the
applicable Annual Valuation.
17. WITHHOLDING TAXES
(a) Whenever under the Plan Shares 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 the minimum
federal, state and other governmental withholding tax requirements related
thereto. Whenever cash is to be paid under the Plan, 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 the minimum federal, state
and other governmental withholding tax requirements related thereto or to the
delivery of any Shares 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 10 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.
(b) 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 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
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liability under Section 16(b) of the Act; and (ii) the Committee may permit any
such delivery to be made by withholding Shares 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).
18. AMENDMENT AND DISCONTINUANCE
The Board 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
shareholder approval if such approval is necessary to comply with any tax or
regulatory requirement applicable to the Plan and provided further that any such
amendment, alteration, suspension, discontinuance or termination that would
impair the rights of any optionee or any holder or beneficiary of any Option
theretofore granted shall not to that extent be effective without the consent of
the affected optionee, holder or beneficiary.
19. SECURITIES LAWS.
Notwithstanding any provision of the Plan or any Option Agreement to
the contrary, the exercise of the Options and delivery of Shares in connection
therewith will be subject to completion of any registration or qualification (or
satisfaction of an available exemption from registration or qualification) of
the Options or the Shares under applicable state and federal securities or other
laws, or under any ruling or regulation of any governmental body or national
securities exchange that the Company, on the advice of counsel, determines to be
necessary or advisable.
20. 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.
21. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective on August 19, 1997, the date of its
adoption by the Board (the "Effective Date"). The term during which Options may
be granted under the Plan shall expire on August 18, 2007.
22. AMENDMENTS TO AGREEMENTS
Notwithstanding any other provision of the Plan, the Board, or any
authorized committee thereof, may amend the terms of any Option Agreement
entered into in connection
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with any award granted pursuant to the Plan, provided that the terms of such
amendments are not inconsistent with the terms of the Plan.
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Exhibit 10.2
NON-QUALIFIED STOCK OPTION AGREEMENT
Under
TRIARC BEVERAGE HOLDINGS CORP.
1997 STOCK OPTION PLAN
__________ Shares of Common Stock
Pursuant to the terms of the Triarc Beverage Holdings Corp. 1997
Stock Option Plan (the "Plan"), the "Parent Committee" (as defined in the Plan)
hereby irrevocably grants to __________ (the "Optionee") the right and option to
purchase __________ shares of Common Stock, par value $1.00 per share (the
"Common Stock"), of Triarc Beverage Holdings Corp. (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 (the "Code"), and shall constitute a "non-qualified" stock option
subject to the provisions of Section 83 of 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) Subject to the Optionee's continued "employment" (as
defined in the Plan) with the Company or the "Parent" or their respective
"subsidiaries" or "affiliates" (as each such term is defined in the Plan):
(i) One-third of the shares of Common Stock subject to the
Option shall be exercisable on __________.
(ii) One-third of the shares of Common Stock subject to the
Option shall be exercisable on __________.
(iii) One-third of the shares of Common Stock subject to the
Option shall be exercisable on __________.
(b) Notwithstanding Section 4(a) above, (i) in the event of a
"Parent Change in Control" (as defined in the Plan), the Option, to the extent
then outstanding, shall
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vest and become immediately exercisable and (ii) in the event of the termination
of the Optionee's employment without "Cause" (as defined in the Plan) or due to
a "Constructive Termination" (as defined in the Plan) within one year following
the consummation of a "Company Change in Control" (as defined in the Plan), the
Option, to the extent then outstanding, shall vest and become fully exercisable.
5. 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 date of the termination of the Optionee's employment
by the Company, the Parent and their respective subsidiaries and affiliates if
the Optionee's employment is terminated for Cause;
(c) Ninety (90) days after the date of the termination of the
Optionee's employment by the Company, the Parent and their respective
subsidiaries and affiliates if the Optionee voluntarily resigns, or if the
Optionee's employment is terminated without Cause; and
(d) One year after the date of death of the Optionee or the
date of the termination of the Optionee's employment due to "Disability" (as
defined in the Plan).
(e) In the event of an Optionee's death, the exercisable
portion of any Options granted to the optionee shall remain exercisable by the
Optionee's executor or administrator or the person or persons to whom the
Optionee's rights under the Plan and this Agreement shall pass by will or the
laws of descent and distribution, as the case may be, for the applicable period
set forth in this Section 5.
6. (a) The Option shall be exercised by the Optionee (or by the
Optionee's executors or administrators, as provided in Section 5), 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. Such payment may be made in cash, or its
equivalent, or (x) by exchanging shares of Common Stock owned by the Optionee
(which are not the subject of any pledge or other security interest and which
have been owned by such Optionee for at least six months) or (y) if there shall
be a public market for the shares of Common Stock at such time, subject to such
rules as may be established by the "Committee" (as defined in the Plan), through
delivery of irrevocable instructions to a broker to sell the shares of Common
Stock otherwise deliverable upon the exercise of the Option and to deliver
promptly to the Company an amount equal to the aggregate exercise price, or by a
combination
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of the foregoing, provided that the combined value of all cash and cash
equivalents and the fair market value of any such shares of Common Stock so
tendered to the Company as of the date of such tender is at least equal to such
aggregate exercise price.
(b) Wherever in the Plan or this 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 of Common Stock, 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 of Common Stock from the shares acquired by
the exercise of the Option.
(c) The obligation of the Company to deliver shares of Common
Stock upon such exercise 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 of Common Stock 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 such
shares.
(d) Notwithstanding any provision of the Plan or this
Agreement to the contrary, upon the exercise of the Option and payment in full
of the exercise price of the Option by the Optionee, if the Optionee is on the
date of exercise of such Option, a "covered employee" for purposes of Section
162(m) of the Code, no shares of Common Stock shall be actually acquired by the
Optionee until the payment of the compensation represented by the delivery of
such shares to the Optionee would not be subject to the deduction limitations of
Section 162(m) of the Code; provided, however, that the foregoing limitation may
be waived by the Committee in its sole discretion.
(e) Prior to the consummation of a registered initial public
offering of shares of Common Stock pursuant to an effective registration
statement under the Securities Act of 1933, no shares of Common Stock acquired
upon the exercise of an Option shall be transferable without the express written
consent of the Committee, which consent may be withheld in the sole discretion
of the Committee.
7. The Company and the Parent shall have the put rights set forth in
Section 15 of the Plan and the Optionee shall have the call rights set forth in
Section 16 of the Plan.
8. Neither the Optionee nor, following the Optionee's death, the
persons specified in Section 5(e) above 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.
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9. During the Optionee's lifetime, the Option shall be exercisable
only by the Optionee and following the Optionee's death shall be exercisable
only by the persons specified in Section 5(e) for the applicable period set
forth in Section 5.
10. 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 Section 12 of the Plan.
11. Notwithstanding any provision of the Plan or this Agreement to
the contrary, the exercise of the Options and delivery of shares of Common Stock
in connection therewith will be subject to completion of any registration or
qualification (or satisfaction of an available exemption from registration or
qualification) of the Options or the shares of Common Stock under applicable
state and federal securities or other laws, or under any ruling or regulation of
any governmental body or national securities exchange that the Company, on the
advice of counsel, determines to be necessary or advisable.
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.
12. The Committee may require as a condition of delivery that the
Optionee remit an amount sufficient to satisfy the minimum federal, state and
other governmental withholding tax requirements related thereto. Without
limiting the generality of the foregoing, (i) the Optionee may elect to satisfy
all or part of the foregoing withholding requirements by delivery of
unrestricted and unencumbered shares of Common Stock owned by the Optionee 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 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(b) of the Securities Exchange Act of 1934, as
amended; 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 Option exercise giving rise to the tax withholding obligation.
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.
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14. Nothing herein shall confer upon the Optionee the right to
continue to serve as an employee of the Company, the Parent or any of their
respective affiliates or subsidiaries.
15. This shall be construed in accordance with, and governed by, the
laws of the State of Delaware without regard to the provisions thereof relating
to conflict of laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by an officer duly authorized thereto as of the ____ day of __________,
____.
TRIARC BEVERAGE HOLDINGS CORP.
By:_________________________
ACCEPTED AND AGREED TO:
____________________________
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Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement")
is made and entered into effective as of June 1, 1997 by and between Snapple
Beverage Corp., a Delaware corporation (the "Company"), Mistic Brands, Inc., a
Delaware corporation ("Mistic"), and Mr. Michael Weinstein, an individual
residing at 17 Pine Brook Drive, White Plains, NY 10605.
WHEREAS, pursuant to an Employment and SAR Agreement entered into as of
August 9, 1995 by and between Mistic and the Executive (the "Original
Agreement"), the Executive agreed to serve as Chief Executive Officer of Mistic
and received as consideration, among other things, stock appreciation rights
with respect to 48.5 shares of Mistic's common stock (the "SAR");
WHEREAS, Triarc Beverage Holdings Corp., a Delaware corporation
("TBHC"), is a wholly owned subsidiary of Triarc Companies, Inc., a Delaware
corporation ("Triarc"), and each of the Company and Mistic are subsidiaries of
TBHC;
WHEREAS, the Executive has assumed expanded responsibilities since the
Original Agreement was entered into, including acting as Chief Executive Officer
for each of the Company, Mistic, and Royal Crown Company, Inc. a Delaware
corporation ("Royal Crown") and an indirect wholly owned subsidiary of Triarc;
WHEREAS, the Company, Mistic and Royal Crown operate as part of the
Triarc Beverage Group (collectively, the "Beverage Group");
WHEREAS, on August 19, 1997 (i) the board of directors of TBHC adopted
the Triarc Beverage Holdings Corp. 1997 Stock Option Plan (the "TBHC Plan");
(ii) the Compensation Committee of Triarc's board of directors approved amending
the Original Agreement to reflect,
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among other things, the elimination of the SAR (subject to the approval of the
TBHC Plan and proposed initial grants thereunder) and the Executive's additional
responsibilities, and (iii) the Performance Compensation Subcommittee of the
Compensation Committee of Triarc's board of directors approved the TBHC Plan and
initial grants thereunder;
WHEREAS, the Executive has agreed to the elimination of the SAR in
consideration of certain amendments to the Original Agreement reflected herein
and grants of stock options to the Executive under the TBHC Plan;
Now, therefore, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES; COMPENSATION
SECTION 1. Employment And Duties.
(a) During the Term of Employment, as defined in Section 2 of this
Article I, the Company hereby employs the Executive and the Executive hereby
accepts full time employment by the Company as its Chief Executive Officer, on
the terms and conditions set forth in this Agreement. The Executive shall
perform the duties and have the responsibilities customary for the position of
Chief Executive Officer, including such duties and responsibilities as shall
reasonably be assigned to him from time to time by (a) the Board of Directors of
the Company (the "Board of Directors") or (b) the Chief Executive Officer or
Chief Operating Officer. During the Term of Employment the Executive shall also
serve as Chief Executive Officer of Mistic and Royal Crown as well as Chief
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Executive Officer of TBHC and in such additional offices or capacities of the
Company and/or its affiliates to which the Executive may be elected or appointed
from time to time with the consent of the Executive, which consent shall not be
unreasonably withheld. The Executive shall not be entitled to any additional
compensation for such service. Such duties shall be performed by the Executive
primarily at the corporate headquarters of the Company which will be located in
the New York Metropolitan Area; provided, however, that the Executive
acknowledges and agrees that his duties hereunder may require the Executive to
engage in a reasonable amount of travel outside the New York Metropolitan Area,
from time to time.
(b) During the Term of Employment, the Company shall take steps so that
the Executive will be elected as a member of the Board of Directors of the
Company, TBHC and Mistic, as long as (i) each such corporation remains a
separate legal entity and (ii) he shall be an employee of the Company or an
officer of TBHC and Mistic, respectively.
SECTION 2. Term Of Employment. Except as otherwise provided in Article
II or Article III, the Term of Employment under this Agreement shall commence
effective as of June 1, 1997 and shall terminate as of the close of business on
January 2, 2000, provided that such initial term shall automatically be extended
for successive one year periods, unless either the Executive or the Company, in
their respective sole discretion, gives notice to the other, at least 180 days
before the expiration of the initial or any renewal Term of Employment that
either the Executive or the Company, as the case may be, does not want such Term
of Employment to be so extended for an additional one year period, subject to
earlier termination at any time during the Executive's employment as hereinafter
provided.
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SECTION 3. Compensation, Benefits And Expenses. As compensation and
consideration for the performance by the Executive of his duties and
responsibilities pursuant to this Agreement, the Company agrees to pay the
Executive, and the Executive agrees to accept, the following amounts and
benefits:
(a) Base Salary. A base salary (the "Base Salary") at a rate of Five
Hundred Thousand Dollars ($500,000) per annum, which amount shall be payable in
equal installments pursuant to the Company's normal payroll policies.
(b) Annual Bonus. Participation in an annual cash incentive plan
pursuant to which the Executive shall be eligible throughout the Term of
Employment to receive annual bonuses, as appropriate, as the Compensation
Committee of the Board of Directors of Triarc or any subcommittee thereof (the
"Compensation Committee") shall determine, in its sole discretion (the "Annual
Bonus").
(c) Special Bonus A special bonus (the "Special Bonus") in the aggregate
amount of $2,000,000, subject to vesting, payable to the Executive on January 2,
2000. One million dollars ($1,000,000) of the Special Bonus shall be deemed to
have vested as of July 1, 1997, and one-third of the remaining $1,000,000 shall
vest on each of January 2, 1998, 1999 and 2000; provided, however, that if the
Executive voluntarily leaves the employment of the Company during the Term of
Employment, the Executive will be entitled to receive on January 2, 2000 only
that portion of the Special Bonus that had vested through such termination date;
provided, further, that if the employment of the Executive hereunder terminates
at any time due to death, disability, Good Cause (as defined below), without
Good Cause or a Change in Control (as defined below), then the right
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to payment of the Special Bonus shall be determined in accordance with the
applicable provisions of Article II or III, as the case may be.
(d) Option. An option (the "Option") to purchase 15,000 shares of Class
A Common Stock of Triarc at an exercise price equal to $13.50 per share was
granted to the Executive on August 9, 1995 pursuant to Triarc's 1993 Equity
Participation Plan (the "Triarc Plan"). The Option is exercisable for a period
of ten years from the date thereof and vests as to one-third of the shares
subject to such Option on each of the third, fourth and fifth anniversary of the
date of grant; provided, however, that if the Company gives notice to the
Executive that the Term of Employment is not automatically extended for an
additional period of one year pursuant to Section 2 above, then all the shares
subject to the Option that have not yet vested will vest on the last day of the
then current Term of Employment; provided, further, that if the employment of
the Executive hereunder terminates at any time due to death, disability, Good
Cause, without Good Cause or Change in Control, then the term of exercisability
of the Option and its vesting shall be determined in accordance with the
applicable provisions of Article II or III, as the case may be. In addition, the
Executive has been granted options to purchase other shares of Triarc stock and
may be granted additional options to purchase shares of Triarc stock in the
future. All such future grants shall be made by the Compensation Committee in
its sole discretion.
(e) Insurance, etc. Participation in any life insurance, disability
insurance and medical, dental, hospitalization and surgical expense, vacation,
pension and retirement plan and other employee benefits and perquisites made
generally available by the Company to its senior officers from time to time.
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(f) Car. The Company shall provide to the Executive an automobile
allowance of $900 per month during the Term of Employment, in lieu of all other
reimbursable automobile expenses, including, without limitation, all operating
costs, such as insurance, maintenance and fuel, for such automobile.
In addition to the amounts and benefits provided for above, the Company
shall provide the Executive during the Term of Employment with a private office,
stenographic and secretarial help and such other facilities and services as are
suitable to his position and adequate for the performance of his duties, and
shall reimburse the Executive for all entertainment, travel and other expenses
reasonably incurred by him in the course of attending to and promoting the
affairs of the Company, subject to the Company's normal rules with respect to
documentation of such expenses.
ARTICLE II
TERMINATION
SECTION 1. Termination Due To Death. The employment of the Executive
under this Agreement shall terminate upon the Executive's death. In the event of
the death of the Executive during the Executive's employment hereunder, the
estate or other legal representative of the Executive shall be entitled only to
the following:
(a) Base Salary. The Company shall pay to the Executive's estate or
other legal representative his Base Salary through the last day of the calendar
quarter in which the Executive dies plus any earned but unpaid Base Salary or
vacation and any Annual Bonus in respect of a prior year. Such amount shall be
paid by the Company in a lump sum, subject to all withholdings, within thirty
(30) days of the date of death.
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(b) Annual Bonus. The Company shall pay to the Executive's estate or
other legal representative (i) Annual Bonus, if any, accrued in respect of the
immediately preceding year but not yet paid as of the date of death and (ii) the
pro-rata portion of the Executive's Annual Bonus for the year in which death
occurs. Such payment shall be calculated by multiplying the amount determined to
be payable as an Annual Bonus by a fraction, the numerator of which is the
number of weeks in the applicable year which precede and include the date of
death and the denominator of which is 52. Such amount shall be paid by the
Company in a lump sum, subject to all withholdings, and the determination of the
Compensation Committee as to the amount of the Annual Bonus shall be conclusive
and binding.
(c) Special Bonus. The Company shall pay to the Executive's estate or
other legal representative the amount of the Special Bonus, which has vested as
of the date of death. Such amount shall be paid by the Company in a lump sum,
subject to all withholdings, within thirty (30) days of the date of death.
(d) Option. The Option shall vest immediately and in its entirety and
shall remain exercisable by the Executive's estate or other legal representative
until the earlier of one year following the date of death or the expiration of
the Option in accordance with its terms.
SECTION 2. Termination Due To Disability. If the Executive shall be
unable to perform all or substantially all of his duties and responsibilities on
account of his illness (either physical or mental) or other incapacity, the
Company shall continue to pay the Executive the full amounts and benefits
provided for in Section 3 of Article I above for the period of such illness or
incapacity; provided, however, that in the event such illness or incapacity
continues for a period longer than 180
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consecutive days or for an aggregate of 175 days during any consecutive
nine-month period (each, a "disability"), the Board of Directors shall have the
right to terminate the Term of Employment by giving the Executive not less than
thirty (30) days written notice of its election to do so. In the event the
Executive's employment is terminated on account of disability under this Section
2, the Executive shall be entitled to the compensation and benefits set forth in
Section 1 of Article II above.
SECTION 3. The Company's Right To Terminate For "Good Cause".
(a) Notwithstanding anything in this Agreement to the contrary, the Term of
Employment and the Executive's employment hereunder may be terminated by the
Company at any time for "Good Cause" (as defined below). In the event the Board
of Directors shall determine that grounds exist for terminating the Term of
Employment and the Executive's employment hereunder for Good Cause, the Company
shall send written notice to the Executive that his employment is so terminated
and specifying the facts based upon which Good Cause exists for the termination
of the Term of Employment and the Executive's employment by the Company. In the
event the Board of Directors shall so terminate the Term of Employment and the
Executive's employment, Executive shall be entitled only to the following:
(i) Base Salary. Within thirty (30) days of the date of
termination, the Company shall pay the Executive his Base Salary accrued through
the date of termination of employment plus any earned but unpaid vacation plus
any earned but unpaid Base Salary, vacation or Annual Bonus in respect of a
prior year.
(ii) Annual Bonus. The Company shall pay the Executive his
Annual Bonus, if any, accrued in respect of any preceding year but not yet paid.
The amount shall be paid at the time
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it would have been paid had the Executive's employment not been terminated. No
Annual Bonus shall be paid with respect to the year in which the Executive is
terminated.
(iii) Special Bonus. The Executive's right to the Special Bonus,
whether vested or unvested, shall be forfeited on the date of termination.
(iv) Option. The Executive's right to exercise the Option,
whether vested or unvested, shall terminate on the date of termination.
(b) For purposes of this Agreement, "Good Cause" shall mean:
(i) any willful failure by the Executive to perform his duties
of Chief Executive Officer of the Company, Mistic or Royal Crown;
(ii) any material misconduct (including misconduct involving
moral turpitude) by the Executive in the performance of his duties as
Chief Executive Officer of the Company, Mistic or Royal Crown, which
misconduct is materially injurious to the Company, Mistic or Royal Crown
or results in the Executive's conviction of a felony under the laws of
the United States of America, any state thereof or an equivalent crime
under the laws of any other jurisdiction;
(iii) any willful and unexcused refusal by the Executive to obey
the lawful and reasonable instructions of the Board of Directors or of
the individuals designated in clause (b) of Article I, Section 1(a)
above;
(iv) any willful failure by the Executive to substantially comply
with any written rule, regulation, policy or procedure of the Company,
Triarc, or their respective subsidiaries
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and Affiliates furnished to Executive, which noncompliance could
reasonably be expected to have a material and adverse effect on the
Company's or Triarc's business; or
(v) any willful failure by the Executive to comply with Triarc's
policies with respect to insider trading which are furnished to
Executive.
Notwithstanding the foregoing, any termination for "Good Cause"
under clause (i) above shall be effective upon the giving of the written
notice referred to in the first paragraph of subsection (a) of this Section 3;
provided, however, that the Executive shall not be deemed to have been
terminated for "Good Cause" by reason of clause (i) above if within 5 days after
such notice to the Executive, such conduct is no longer continuing,
provided that such notice is the first such notice under this Section 3.
SECTION 4. The Company's Right To Terminate Without Good Cause.
Notwithstanding anything in this Agreement to the contrary, the Term of
Employment and the Executive's employment hereunder may be terminated by the
Company at any time without Good Cause upon thirty (30) days prior notice;
provided, however, that in the event the Executive's employment hereunder is so
terminated, the Executive shall be entitled only to the following:
(a) Base Salary; Annual Bonus; Special Bonus. The Company shall pay the
Executive an amount equal to the sum of (i) the greater of (x) his Base Salary,
as in effect for the year in which such termination occurs, for one year and (y)
the entire amount of Base Salary that would be payable to the Executive
hereunder through the last day of the then current Term of Employment if such
termination had not occurred plus any earned but unpaid Base Salary, vacation or
Annual Bonus in respect of a prior year owing to Executive accrued with respect
to the period prior to the date of
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termination, (ii) the Executive's Annual Bonus for the year in which such
termination occurs, and (iii) the full amount of the Special Bonus (such sum of
clauses (i)-(iii) is hereinafter referred to as the "Severance Amount"). The
amounts payable to the Executive pursuant to this subsection 4(a) shall be
payable when and as such amounts would otherwise be payable hereunder if such
termination had not occurred. The determination of the Compensation Committee as
to the amount of Annual Bonus shall be conclusive and binding.
(b) Option. The Option shall vest immediately and in its entirety as of
the date of such termination and shall remain exercisable by the Executive until
the earlier of one year from the date of termination or the expiration of the
Option in accordance with its terms.
(c) Other Benefits; Car. All other benefits set forth in Article I,
Section 3(e) and 3(f) shall continue until the first to occur of (i) the first
anniversary of the date of termination and (ii) the date the Executive commences
full-time employment with another employer.
(d) The parties agree that the Executive shall not be obligated to
mitigate damages by seeking other employment and any earnings from subsequent
employment shall not reduce the amounts payable by the Company under this
Section 4.
ARTICLE III
CHANGE IN CONTROL
SECTION 1. Definition Of Change In Control. The term "Change in
Control" shall mean:
(a) the acquisition by any person or entity of 50% or more of the
combined voting power of the outstanding securities entitled to vote
generally in the election of directors of either TBHC or the Company or of any
other corporation (a "Parent Corporation") that owns directly or indirectly
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50% or more of the combined voting power of TBHC's or the Company's outstanding
securities entitled so to vote;
(b) a majority of the board of directors of TBHC or the Company or any
Parent Corporation of either thereof shall be individuals who are not nominated
by the then current board of directors of TBHC, the Company or such Parent
Corporation, as the case may be; or
(c) TBHC, the Company or any Parent Corporation of either thereof is
merged or consolidated with a corporation or entity other than the Company,
Mistic or a Parent Corporation, or all or substantially all of the assets of
TBHC, the Company or a Parent Corporation are acquired by a corporation or
entity that is not TBHC, the Company or a Parent Corporation; provided, however,
that in each case, (i) the acquisition of any portion of the combined voting
power of the Company, TBHC or Triarc by DWG Acquisition Group, L.P., Nelson
Peltz and/or Peter W. May or by any person affiliated with such persons shall in
no event constitute a Change in Control (ii) the merger, consolidation or sale
of assets of the Company, TBHC or Triarc or any subsidiary of Triarc with or to
any corporation or entity controlled by DWG Acquisition Group, L.P., Nelson
Peltz and/or Peter W. May or by any person affiliated with such persons shall in
no event constitute a Change in Control and (iii) the consummation of registered
initial public offering of capital stock of the Company, TBHC or any Parent
Corporation of either thereof pursuant to an effective registration statement
under the Securities Act of 1933, as amended, shall in no event constitute a
Change in Control. "Affiliate" of a specified person or entity shall mean any
other person or entity who directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with, the
person or entity specified.
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SECTION 2. Effects Of Change In Control.
If (i) the Executive terminates his employment hereunder (x) within
twelve months following a Change in Control, (y) during the Term of Employment
and (z) as a result of any substantial diminution of the Executive's title,
duties, or responsibilities or any material reduction in the Executive's
aggregate compensation and benefits hereunder following such Change in Control,
or (ii) the Executive's employment hereunder is terminated by the Company
without Good Cause within one (1) year following the consummation of a Change in
Control, then the Executive shall be entitled to receive the Severance Amount,
plus continuation of employee benefits for a period of 12 months.
ARTICLE IV
COVENANT NOT TO COMPETE; CONFIDENTIALITY; INVENTIONS
SECTION 1. Covenant Not To Compete. The Executive acknowledges that as the
Company's Chief Executive Officer he will be involved, at the highest level, in
the development, implementation and management of the Company's and the Beverage
Group's business strategies and plans, including those which involve the
Company's and the Beverage Group's finances, marketing, operations, industrial
relations and acquisitions. By virtue of the Executive's unique and sensitive
position, the employment of the Executive by a competitor of the Company or the
Beverage Group represents a serious competitive danger to the Company and the
Beverage Group, and the use of the Executive's talent and knowledge and
information about the Company's and the Beverage Group's business, strategies
and plans can and would constitute a valuable competitive advantage over the
Company and the Beverage Group. In view of the foregoing, if either (i) the
Executive's
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employment with the Company ends prior to the last day of the Term of Employment
as a result of the Executive's voluntary resignation or (ii) the Executive's
employment hereunder is terminated by the Company for Good Cause pursuant to
Section 3 of Article II, then the Executive covenants and agrees that in either
of such events for a period of eighteen (18) months following termination of the
Executive's employment under this Agreement, the Executive will not engage or be
engaged, in any capacity, directly or indirectly, including, but not limited to,
as an employee, agent, consultant, manager, executive, owner or stockholder
(except as a passive investor owning less that a 2% interest in a publicly held
company) in the "premium" or carbonated beverage industry. The covenant not to
compete contained in this Section 1 shall survive any termination of the Term of
Employment regardless of whether such termination shall have been initiated or
otherwise caused by the Company.
SECTION 2. Injunctive Relief. The Executive agrees that in addition to
any other remedy provided at law or in equity or in this Agreement, the Company
or any member of the Beverage Group shall be entitled to a temporary restraining
order and both preliminary and permanent injunctions restraining the Executive
from violating any provision of Section 1 or Section 3 of this Article IV.
SECTION 3. Confidentiality. The Executive agrees to treat as
confidential and not to disclose to anyone other than the Company and its
subsidiaries and affiliated companies the affairs of the Company and its
subsidiaries and affiliated companies (including the Beverage Group), and he
agrees that he will not at any time during his employment under this Agreement
and for a period of four (4) years thereafter, without the prior written consent
of the Company, divulge, furnish or
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make known or accessible to, or use for the benefit of, anyone other than the
Company and its subsidiaries and affiliated companies (including the Beverage
Group), any information of a confidential nature relating in any way to the
business of the Company or its subsidiaries or affiliated companies (including
the Beverage Group) or any of their respective customers, unless (i) the
Executive is required to disclose any such information by judicial or
administrative process or, in the opinion of his counsel, by other requirements
of law, (ii) such information is in the public domain through no fault of the
Executive, (iii) such information has been lawfully acquired by the Executive
from other sources unless the Executive knows that such information was obtained
in violation of an agreement of confidentiality or (iv) such information was
known to the Executive prior to June 6, 1995.
SECTION 4. Inventions. The Executive agrees that any product,
"know-how," trade secret, idea, formula, operational method, recipe, method of
manufacture, invention, development, discovery or other knowledge or technical
improvement (collectively, "Special Information") in which he participates,
whether patentable or not, made or conceived by the Executive during his
employment under this Agreement or within six (6) months thereafter, whether
made within or without the course of the Executive's employment with the
Company, which relates in any way to the business of the Company or its
subsidiaries or affiliates (including the Beverage Group) and/or results
directly or indirectly from the Executive's employment with the Company or any
member of the Beverage Group shall be treated as owned by and for the benefit
of, shall be assigned by the Executive without further compensation to, and
shall be the property of, the Company. Further, in such regard, the Executive
shall communicate and promptly disclose to the Board of Directors all
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such Special Information and will assist the Company in every proper way at its
expense to obtain a patent or patents thereon in the United States and any other
jurisdiction that the Company deems appropriate, and the Executive agrees to
execute all instruments and to take all steps necessary to make the benefits of
such Special Information available to the Company as its exclusive property.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 1. Indemnification. The Company shall indemnify and hold
harmless the Executive if he should become a party or he should be threatened to
be made a party to any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that the Executive is or was a director, officer, employee, or agent
of the Company or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, non profit or for profit, partnership, joint venture, trust or other
enterprise, in the manner and to the maximum extent permitted by the Delaware
General Corporation Law, as amended from time to time. The indemnification
provided for in this Section 1 shall not be deemed exclusive of any other right
to which the Executive may be entitled under the Company's Certificate of
Incorporation or By-laws or any agreement, vote of shareholders or disinterested
directors, or otherwise, and shall continue after the Executive has ceased to be
a director, trustee, officer, employee or agent and shall inure to the benefit
of the Executive's heirs, executors, and administrators. To the extent and for
the period that the Company or Triarc purchases and maintains insurance on
behalf of any of its directors, officers, or employees, against liability
asserted against any such person and incurred by such person
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in any such capacity, or arising out of such person's status as such, the
Company hereby covenants that the Executive will be included as an insured under
such policy.
SECTION 2. Failure To Enforce And Waiver. The failure to insist upon
strict compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver of such terms, covenants or conditions,
and the waiver or relinquishment of any right or power under this Agreement at
any one or more times shall not be deemed a waiver or relinquishment of such
right or power at any other time or times.
SECTION 3. Remedy For Breach Of Contract. The parties agree that in the
event there is any breach or asserted breach of the terms, covenants or
conditions of this Agreement, the remedy of the parties hereto shall be in law
and in equity and injunctive relief shall lie for the enforcement or
nonenforcement of any provisions of this Agreement.
SECTION 4. Assignment. The rights and obligations of the Company under
this Agreement (i) are assignable by the Company to TBHC or to any parent or
subsidiary of the Company or TBHC, to any successor by merger to the Company and
to any person which acquires all or substantially all of the assets and business
of the Company as a going concern and (ii) shall inure to the benefit and shall
be binding upon the successors and assigns of the Company. The rights and
obligations of the Executive under this Agreement (including the Option) are not
assignable or transferable by the Executive (whether by operation of law or
otherwise or whether voluntarily or involuntarily); provided, however, that the
Option may be transferred by will or by the laws of descent and distribution.
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SECTION 5. Notices. All notices required or permitted to be given under
this Agreement shall be given in writing and shall be deemed sufficiently given
if delivered by hand or mailed by registered mail, return receipt requested, to
his residence in the case of the Executive and to its principal executive
offices in the case of the Company. Either party may by notice to the other
party change the address at which he or it is to receive notices hereunder.
SECTION 6. Applicable Law And Severability. This Agreement shall take
effect and be construed and enforced in accordance with the laws of the State of
New York, excluding any such laws which direct the application of the laws of
some other forum. If any provision or provisions, as the case may be, of this
Agreement are void or unenforceable or so declared, such provision or provisions
shall be deemed and hereby are severed from this Agreement, which shall
otherwise remain in full force and effect.
SECTION 7. Headings. The headings used in this Agreement are for
convenience only and shall not be deemed to curtail or affect the meaning or
construction of any provision under this Agreement.
SECTION 8. Withholding. All payments or benefits to the Executive under
this Agreement shall be reduced by any amounts required to be withheld by the
Company under federal, state or local income tax laws or similar laws then in
effect.
SECTION 9. Entire Agreement; Amendment. This Agreement amends and
restates the Original Agreement is its entirety and contains the entire
agreement between the parties hereto with respect to the subject matter hereof.
This Agreement may not be changed orally but only by an
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agreement in writing, signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
SECTION 10. Generally Accepted Accounting Principles. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance with generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Company's independent
public accountants and disclosed in writing to the Executive) with the most
recent audited consolidated financial statements of the Company.
SECTION 11. Arbitration. Any dispute or question arising from this
Agreement or its interpretation shall be settled exclusively by arbitration in
New York City, New York, in accordance with the commercial rules then in effect
of the American Arbitration Association. The arbitrator(s) shall set forth in
writing and deliver to the parties findings of fact and conclusions reached.
Judgment upon an award rendered by the arbitrator(s) may be entered in any court
of competent jurisdiction, including courts in the State of New York. Any award
so rendered shall be final and binding upon the parties hereto. All costs and
expenses of the arbitrator(s) shall be borne by equally by the parties hereto
and all costs and expenses of attorneys, experts, witnesses and other persons
retained by the parties shall be borne by the party that retained such
attorneys, experts, witnesses or other persons; provided, however, that the
arbitrator(s) shall have the authority to reallocate responsibility for such
costs and expenses in connection with its arbitration decision. In the event
that injunctive relief shall become necessary under this Agreement, either of
the parties shall have the right to seek provisional remedies prior to an
ultimate resolution by arbitration.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
MICHAEL WEINSTEIN
Michael Weinstein
SNAPPLE BEVERAGE CORP.
By: ERNEST J. CAVALLO
Name: Ernest J. Cavallo
Title: President and Chief
Operating Officer
MISTIC BRANDS, INC.
By: ERNEST J. CAVALLO
Name: Ernest J. Cavallo
Title: President and Chief
Operating Officer
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Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
made and entered into effective as of June 1, 1997 by and between Snapple
Beverage Corp., a Delaware corporation (the "Company"), Mistic Brands, Inc.,
a Delaware corporation ("Mistic"), and Mr. Ernest J. Cavallo, an individual
residing at 630 Russett Road, Valley Cottage, NY 10989 (the
"Executive").
WHEREAS, pursuant to an Employment and SAR Agreement entered into as of
August 9, 1995 by and between Mistic and the Executive (the "Original
Agreement"), the Executive agreed to serve as President and Chief Financial
Officer of Mistic and received as consideration, among other things, stock
appreciation rights with respect to 48.5 shares of Mistic's common stock (the
"SAR");
WHEREAS, Triarc Beverage Holdings Corp., a Delaware corporation
("TBHC"), is a wholly owned subsidiary of Triarc Companies, Inc., a Delaware
corporation ("Triarc"), and each of the Company and Mistic are subsidiaries of
TBHC;
WHEREAS, the Executive has assumed expanded responsibilities since the
Original Agreement was entered into, including acting as President and Chief
Operating Officer for each of the Company, Mistic, and Royal Crown Company, Inc.
a Delaware corporation ("Royal Crown") and an indirect wholly owned subsidiary
of Triarc;
WHEREAS, the Company, Mistic and Royal Crown operate as part of the
Triarc Beverage Group (collectively, the "Beverage Group");
WHEREAS, on August 19, 1997 (i) the board of directors of TBHC adopted
the Triarc Beverage Holdings Corp. 1997 Stock Option Plan (the "TBHC Plan");
(ii) the Compensation
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Committee of Triarc's board of directors approved amending the Original
Agreement to reflect, among other things, the elimination of the SAR (subject to
the approval of the TBHC Plan and proposed initial grants thereunder) and the
Executive's additional responsibilities, and (iii) the Performance Compensation
Subcommittee of the Compensation Committee of Triarc's board of directors
approved the TBHC Plan and initial grants thereunder;
WHEREAS, the Executive has agreed to the elimination of the SAR in
consideration of certain amendments to the Original Agreement reflected herein
and grants of stock options to the Executive under the TBHC Plan;
Now, therefore, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES; COMPENSATION
SECTION 1. Employment And Duties.
(a) During the Term of Employment, as defined in Section 2 of this
Article I, the Company hereby employs the Executive and the Executive hereby
accepts full time employment by the Company as its President and Chief Operating
Officer, on the terms and conditions set forth in this Agreement. The Executive
shall perform the duties and have the responsibilities customary for the
position of President and Chief Operating Officer, including such duties and
responsibilities as shall reasonably be assigned to him from time to time by (a)
the Board of Directors of the Company (the "Board of Directors"), (b) the Chief
Executive Officer or Chief Operating Officer
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of Triarc, or (c) the Chief Executive Officer of the Company. During the Term of
Employment the Executive shall also serve as President and Chief Operating
Officer of Mistic and Royal Crown as well as President and Chief Operating
Officer of TBHC and in such additional offices or capacities of the Company
and/or its affiliates to which the Executive may be elected or appointed from
time to time with the consent of the Executive, which consent shall not be
unreasonably withheld. The Executive shall not be entitled to any additional
compensation for such service. Such duties shall be performed by the Executive
primarily at the corporate headquarters of the Company which will be located in
the New York Metropolitan Area; provided, however, that the Executive
acknowledges and agrees that his duties hereunder may require the Executive to
engage in a reasonable amount of travel outside the New York Metropolitan Area,
from time to time.
(b) During the Term of Employment, the Company shall take steps so that
the Executive will be elected as a member of the Board of Directors of the
Company, TBHC and Mistic, as long as (i) each such corporation remains a
separate legal entity and (ii) he shall be an employee of the Company or an
officer of TBHC and Mistic, respectively.
SECTION 2. Term Of Employment. Except as otherwise provided in Article
II or Article III, the Term of Employment under this Agreement shall commence
effective as of June 1, 1997 and shall terminate as of the close of business on
January 2, 2000, provided that such initial term shall automatically be extended
for successive one year periods, unless either the Executive or the Company, in
their respective sole discretion, gives notice to the other, at least 180 days
before the expiration of the initial or any renewal Term of Employment that
either the Executive or the Company, as the case may be, does not want such Term
of Employment to be so extended for an
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additional one year period, subject to earlier termination at any time during
the Executive's employment as hereinafter provided.
SECTION 3. Compensation, Benefits And Expenses. As compensation and
consideration for the performance by the Executive of his duties and
responsibilities pursuant to this Agreement, the Company agrees to pay the
Executive, and the Executive agrees to accept, the following amounts and
benefits:
(a) Base Salary. A base salary (the "Base Salary") at a rate of Four
Hundred Thousand Dollars ($400,000) per annum, which amount shall be payable in
equal installments pursuant to the Company's normal payroll policies.
(b) Annual Bonus. Participation in an annual cash incentive plan
pursuant to which the Executive shall be eligible throughout the Term of
Employment to receive annual bonuses, as appropriate, as the Compensation
Committee of the Board of Directors of Triarc or any subcommittee thereof (the
"Compensation Committee") shall determine, in its sole discretion (the "Annual
Bonus").
(c) Special Bonus A special bonus (the "Special Bonus") in the aggregate
amount of $2,000,000, subject to vesting, payable to the Executive on January 2,
2000. One million dollars ($1,000,000) of the Special Bonus shall be deemed to
have vested as of July 1, 1997, and one-third of the remaining $1,000,000 shall
vest on each of January 2, 1998, 1999 and 2000; provided, however, that if the
Executive voluntarily leaves the employment of the Company during the Term of
Employment, the Executive will be entitled to receive on January 2, 2000 only
that portion of the Special Bonus that had vested through such termination date;
provided, further, that if the
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employment of the Executive hereunder terminates at any time due to death,
disability, Good Cause (as defined below), without Good Cause or a Change in
Control (as defined below), then the right to payment of the Special Bonus shall
be determined in accordance with the applicable provisions of Article II or III,
as the case may be.
(d) Option. An option (the "Option") to purchase 10,000 shares of Class
A Common Stock of Triarc at an exercise price equal to $13.50 per share was
granted to the Executive on August 9, 1995 pursuant to Triarc's 1993 Equity
Participation Plan (the "Triarc Plan"). The Option is exercisable for a period
of ten years from the date thereof and vests as to one-third of the shares
subject to such Option on each of the third, fourth and fifth anniversary of the
date of grant; provided, however, that if the Company gives notice to the
Executive that the Term of Employment is not automatically extended for an
additional period of one year pursuant to Section 2 above, then all the shares
subject to the Option that have not yet vested will vest on the last day of the
then current Term of Employment; provided, further, that if the employment of
the Executive hereunder terminates at any time due to death, disability, Good
Cause, without Good Cause or Change in Control, then the term of exercisability
of the Option and its vesting shall be determined in accordance with the
applicable provisions of Article II or III, as the case may be. In addition, the
Executive has been granted options to purchase other shares of Triarc stock and
may be granted additional options to purchase shares of Triarc stock in the
future. All such future grants shall be made by the Compensation Committee in
its sole discretion.
(e) Insurance, etc. Participation in any life insurance, disability
insurance and medical, dental, hospitalization and surgical expense, vacation,
pension and retirement plan and other
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employee benefits and perquisites made generally available by the Company to its
senior officers from time to time.
(f) Car. The Company shall provide to the Executive an automobile
allowance of $900 per month during the Term of Employment, in lieu of all other
reimbursable automobile expenses, including, without limitation, all operating
costs, such as insurance, maintenance and fuel, for such automobile.
In addition to the amounts and benefits provided for above, the Company
shall provide the Executive during the Term of Employment with a private office,
stenographic and secretarial help and such other facilities and services as are
suitable to his position and adequate for the performance of his duties, and
shall reimburse the Executive for all entertainment, travel and other expenses
reasonably incurred by him in the course of attending to and promoting the
affairs of the Company, subject to the Company's normal rules with respect to
documentation of such expenses.
ARTICLE II
TERMINATION
SECTION 1. Termination Due To Death. The employment of the Executive
under this Agreement shall terminate upon the Executive's death. In the event of
the death of the Executive during the Executive's employment hereunder, the
estate or other legal representative of the Executive shall be entitled only to
the following:
(a) Base Salary. The Company shall pay to the Executive's estate or
other legal representative his Base Salary through the last day of the calendar
quarter in which the Executive dies plus any earned but unpaid Base Salary or
vacation and any Annual Bonus in respect of a
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prior year. Such amount shall be paid by the Company in a lump sum, subject to
all withholdings, within thirty (30) days of the date of death.
(b) Annual Bonus. The Company shall pay to the Executive's estate or
other legal representative (i) Annual Bonus, if any, accrued in respect of the
immediately preceding year but not yet paid as of the date of death and (ii) the
pro-rata portion of the Executive's Annual Bonus for the year in which death
occurs. Such payment shall be calculated by multiplying the amount determined to
be payable as an Annual Bonus by a fraction, the numerator of which is the
number of weeks in the applicable year which precede and include the date of
death and the denominator of which is 52. Such amount shall be paid by the
Company in a lump sum, subject to all withholdings, and the determination of the
Compensation Committee as to the amount of the Annual Bonus shall be conclusive
and binding.
(c) Special Bonus. The Company shall pay to the Executive's estate or
other legal representative the amount of the Special Bonus, which has vested as
of the date of death. Such amount shall be paid by the Company in a lump sum,
subject to all withholdings, within thirty (30) days of the date of death.
(d) Option. The Option shall vest immediately and in its entirety and
shall remain exercisable by the Executive's estate or other legal representative
until the earlier of one year following the date of death or the expiration of
the Option in accordance with its terms.
SECTION 2. Termination Due To Disability. If the Executive shall be
unable to perform all or substantially all of his duties and responsibilities on
account of his illness (either physical or mental) or other incapacity, the
Company shall continue to pay the Executive the full amounts
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and benefits provided for in Section 3 of Article I above for the period of such
illness or incapacity; provided, however, that in the event such illness or
incapacity continues for a period longer than 180 consecutive days or for an
aggregate of 175 days during any consecutive nine-month period (each, a
"disability"), the Board of Directors shall have the right to terminate the Term
of Employment by giving the Executive not less than thirty (30) days written
notice of its election to do so. In the event the Executive's employment is
terminated on account of disability under this Section 2, the Executive shall be
entitled to the compensation and benefits set forth in Section 1 of Article II
above.
SECTION 3. The Company's Right To Terminate For "Good Cause".
(a) Notwithstanding anything in this Agreement to the contrary, the Term of
Employment and the Executive's employment hereunder may be terminated by the
Company at any time for "Good Cause" (as defined below). In the event the Board
of Directors shall determine that grounds exist for terminating the Term of
Employment and the Executive's employment hereunder for Good Cause, the Company
shall send written notice to the Executive that his employment is so terminated
and specifying the facts based upon which Good Cause exists for the termination
of the Term of Employment and the Executive's employment by the Company. In the
event the Board of Directors shall so terminate the Term of Employment and the
Executive's employment, Executive shall be entitled only to the following:
(i) Base Salary. Within thirty (30) days of the date of
termination, the Company shall pay the Executive his Base Salary accrued through
the date of termination of
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employment plus any earned but unpaid vacation plus any earned but unpaid Base
Salary, vacation or Annual Bonus in respect of a prior year.
(ii) Annual Bonus. The Company shall pay the Executive his Annual
Bonus, if any, accrued in respect of any preceding year but not yet paid. The
amount shall be paid at the time it would have been paid had the Executive's
employment not been terminated. No Annual Bonus shall be paid with respect to
the year in which the Executive is terminated.
(iii) Special Bonus. The Executive's right to the Special
Bonus, whether vested or unvested, shall be forfeited on the date of
termination.
(iv) Option. The Executive's right to exercise the Option,
whether vested or unvested, shall terminate on the date of termination.
(b) For purposes of this Agreement, "Good Cause" shall mean:
(i) any willful failure by the Executive to perform his duties
of President and Chief Operating Officer of the Company, Mistic or
Royal Crown;
(ii) any material misconduct (including misconduct involving
moral turpitude) by the Executive in the performance of his duties as
President and Chief Operating Officer of the Company, Mistic or Royal
Crown, which misconduct is materially injurious to the Company, Mistic
or Royal Crown or results in the Executive's conviction of a felony
under the laws of the United States of America, any state thereof or an
equivalent crime under the laws of any other jurisdiction;
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(iii) any willful and unexcused refusal by the Executive to obey
the lawful and reasonable instructions of the Board of Directors or of
the individuals designated in clause (b) of Article I, Section 1(a)
above;
(iv) any willful failure by the Executive to substantially comply
with any written rule, regulation, policy or procedure of the Company,
Triarc, or their respective subsidiaries and Affiliates furnished to
Executive, which noncompliance could reasonably be expected to have a
material and adverse effect on the Company's or Triarc's business; or
(v) any willful failure by the Executive to comply with Triarc's
policies with respect to insider trading which are furnished to
Executive.
Notwithstanding the foregoing, any termination for "Good Cause"
under clause (i) above shall be effective upon the giving of the written
notice referred to in the first paragraph of subsection (a) of this Section 3;
provided, however, that the Executive shall not be deemed to have been
terminated for "Good Cause" by reason of clause (i) above if within 5 days after
such notice to the Executive, such conduct is no longer continuing,
provided that such notice is the first such notice under this Section 3.
SECTION 4. The Company's Right To Terminate Without Good Cause.
Notwithstanding anything in this Agreement to the contrary, the Term of
Employment and the Executive's employment hereunder may be terminated by the
Company at any time without Good Cause upon thirty (30) days prior notice;
provided, however, that in the event the Executive's employment hereunder is so
terminated, the Executive shall be entitled only to the following:
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(a) Base Salary; Annual Bonus; Special Bonus. The Company shall pay the
Executive an amount equal to the sum of (i) the greater of (x) his Base Salary,
as in effect for the year in which such termination occurs, for one year and (y)
the entire amount of Base Salary that would be payable to the Executive
hereunder through the last day of the then current Term of Employment if such
termination had not occurred plus any earned but unpaid Base Salary, vacation or
Annual Bonus in respect of a prior year owing to Executive accrued with respect
to the period prior to the date of termination, (ii) the Executive's Annual
Bonus for the year in which such termination occurs, and (iii) the full amount
of the Special Bonus (such sum of clauses (I)-(iii) is hereinafter referred to
as the "Severance Amount"). The amounts payable to the Executive pursuant to
this subsection 4(a) shall be payable when and as such amounts would otherwise
be payable hereunder if such termination had not occurred. The determination of
the Compensation Committee as to the amount of Annual Bonus shall be conclusive
and binding.
(b) Option. The Option shall vest immediately and in its entirety as of
the date of such termination and shall remain exercisable by the Executive until
the earlier of one year from the date of termination or the expiration of the
Option in accordance with its terms.
(c) Other Benefits; Car. All other benefits set forth in Article I,
Section 3(e) and 3(f) shall continue until the first to occur of (i) the first
anniversary of the date of termination and (ii) the date the Executive commences
full-time employment with another employer.
(d) The parties agree that the Executive shall not be obligated to
mitigate damages by seeking other employment and any earnings from subsequent
employment shall not reduce the amounts payable by the Company under this
Section 4.
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ARTICLE III
CHANGE IN CONTROL
SECTION 1. Definition Of Change In Control. The term "Change in
Control" shall mean:
(a) the acquisition by any person or entity of 50% or more of the
combined voting power of the outstanding securities entitled to vote generally
in the election of directors of either TBHC or the Company or of any other
corporation (a "Parent Corporation") that owns directly or indirectly 50% or
more of the combined voting power of TBHC's or the Company's outstanding
securities entitled so to vote;
(b) a majority of the board of directors of TBHC or the Company or any
Parent Corporation of either thereof shall be individuals who are not nominated
by the then current board of directors of TBHC, the Company or such Parent
Corporation, as the case may be; or
(c) TBHC, the Company or any Parent Corporation of either thereof is
merged or consolidated with a corporation or entity other than the Company,
Mistic or a Parent Corporation, or all or substantially all of the assets of
TBHC, the Company or a Parent Corporation are acquired by a corporation or
entity that is not TBHC, the Company or a Parent Corporation; provided, however,
that in each case, (i) the acquisition of any portion of the combined voting
power of the Company, TBHC or Triarc by DWG Acquisition Group, L.P., Nelson
Peltz and/or Peter W. May or by any person affiliated with such persons shall in
no event constitute a Change in Control (ii) the merger, consolidation or sale
of assets of the Company, TBHC or Triarc or any subsidiary of Triarc with or to
any corporation or entity controlled by DWG Acquisition Group,
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L.P., Nelson Peltz and/or Peter W. May or by any person affiliated with such
persons shall in no event constitute a Change in Control and (iii) the
consummation of registered initial public offering of capital stock of the
Company, TBHC or any Parent Corporation of either thereof pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
shall in no event constitute a Change in Control. "Affiliate" of a specified
person or entity shall mean any other person or entity who directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with, the person or entity specified.
SECTION 2. Effects Of Change In Control.
If (i) the Executive terminates his employment hereunder (x) within
twelve months following a Change in Control, (y) during the Term of Employment
and (z) as a result of any substantial diminution of the Executive's title,
duties, or responsibilities or any material reduction in the Executive's
aggregate compensation and benefits hereunder following such Change in Control,
or (ii) the Executive's employment hereunder is terminated by the Company
without Good Cause within one (1) year following the consummation of a Change in
Control, then the Executive shall be entitled to receive the Severance Amount,
plus continuation of employee benefits for a period of 12 months.
ARTICLE IV
COVENANT NOT TO COMPETE; CONFIDENTIALITY; INVENTIONS
SECTION 1. Covenant Not To Compete. The Executive acknowledges that as the
Company's President and Chief Operating Officer he will be involved, at the
highest level, in the development, implementation and management of the
Company's and the Beverage Group's
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business strategies and plans, including those which involve the Company's and
the Beverage Group's finances, marketing, operations, industrial relations and
acquisitions. By virtue of the Executive's unique and sensitive position, the
employment of the Executive by a competitor of the Company or the Beverage Group
represents a serious competitive danger to the Company and the Beverage Group,
and the use of the Executive's talent and knowledge and information about the
Company's and the Beverage Group's business, strategies and plans can and would
constitute a valuable competitive advantage over the Company and the Beverage
Group. In view of the foregoing, if either (i) the Executive's employment with
the Company ends prior to the last day of the Term of Employment as a result of
the Executive's voluntary resignation or (ii) the Executive's employment
hereunder is terminated by the Company for Good Cause pursuant to Section 3 of
Article II, then the Executive covenants and agrees that in either of such
events for a period of eighteen (18) months following termination of the
Executive's employment under this Agreement, the Executive will not engage or be
engaged, in any capacity, directly or indirectly, including, but not limited to,
as an employee, agent, consultant, manager, executive, owner or stockholder
(except as a passive investor owning less that a 2% interest in a publicly held
company) in the "premium" or carbonated beverage industry. The covenant not to
compete contained in this Section 1 shall survive any termination of the Term of
Employment regardless of whether such termination shall have been initiated or
otherwise caused by the Company.
SECTION 2. Injunctive Relief. The Executive agrees that in addition to
any other remedy provided at law or in equity or in this Agreement, the Company
or any member of the Beverage Group shall be entitled to a temporary restraining
order and both preliminary and permanent
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injunctions restraining the Executive from violating any provision of Section 1
or Section 3 of this Article IV.
SECTION 3. Confidentiality. The Executive agrees to treat as
confidential and not to disclose to anyone other than the Company and its
subsidiaries and affiliated companies the affairs of the Company and its
subsidiaries and affiliated companies (including the Beverage Group), and he
agrees that he will not at any time during his employment under this Agreement
and for a period of four (4) years thereafter, without the prior written consent
of the Company, divulge, furnish or make known or accessible to, or use for the
benefit of, anyone other than the Company and its subsidiaries and affiliated
companies (including the Beverage Group), any information of a confidential
nature relating in any way to the business of the Company or its subsidiaries or
affiliated companies (including the Beverage Group) or any of their respective
customers, unless (i) the Executive is required to disclose any such information
by judicial or administrative process or, in the opinion of his counsel, by
other requirements of law, (ii) such information is in the public domain through
no fault of the Executive, (iii) such information has been lawfully acquired by
the Executive from other sources unless the Executive knows that such
information was obtained in violation of an agreement of confidentiality or (iv)
such information was known to the Executive prior to June 6, 1995.
SECTION 4. Inventions. The Executive agrees that any product,
"know-how," trade secret, idea, formula, operational method, recipe, method of
manufacture, invention, development, discovery or other knowledge or technical
improvement (collectively, "Special Information") in which he participates,
whether patentable or not, made or conceived by the Executive during his
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employment under this Agreement or within six (6) months thereafter, whether
made within or without the course of the Executive's employment with the
Company, which relates in any way to the business of the Company or its
subsidiaries or affiliates (including the Beverage Group) and/or results
directly or indirectly from the Executive's employment with the Company or any
member of the Beverage Group shall be treated as owned by and for the benefit
of, shall be assigned by the Executive without further compensation to, and
shall be the property of, the Company. Further, in such regard, the Executive
shall communicate and promptly disclose to the Board of Directors all such
Special Information and will assist the Company in every proper way at its
expense to obtain a patent or patents thereon in the United States and any other
jurisdiction that the Company deems appropriate, and the Executive agrees to
execute all instruments and to take all steps necessary to make the benefits of
such Special Information available to the Company as its exclusive property.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 1. Indemnification. The Company shall indemnify and hold
harmless the Executive if he should become a party or he should be threatened to
be made a party to any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that the Executive is or was a director, officer, employee, or agent
of the Company or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, non profit or for profit, partnership, joint venture, trust or other
enterprise, in the manner and to the
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maximum extent permitted by the Delaware General Corporation Law, as amended
from time to time. The indemnification provided for in this Section 1 shall not
be deemed exclusive of any other right to which the Executive may be entitled
under the Company's Certificate of Incorporation or By-laws or any agreement,
vote of shareholders or disinterested directors, or otherwise, and shall
continue after the Executive has ceased to be a director, trustee, officer,
employee or agent and shall inure to the benefit of the Executive's heirs,
executors, and administrators. To the extent and for the period that the Company
or Triarc purchases and maintains insurance on behalf of any of its directors,
officers, or employees, against liability asserted against any such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, the Company hereby covenants that the Executive will be included
as an insured under such policy.
SECTION 2. Failure To Enforce And Waiver. The failure to insist upon
strict compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver of such terms, covenants or conditions,
and the waiver or relinquishment of any right or power under this Agreement at
any one or more times shall not be deemed a waiver or relinquishment of such
right or power at any other time or times.
SECTION 3. Remedy For Breach Of Contract. The parties agree that in the
event there is any breach or asserted breach of the terms, covenants or
conditions of this Agreement, the remedy of the parties hereto shall be in law
and in equity and injunctive relief shall lie for the enforcement or
nonenforcement of any provisions of this Agreement.
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SECTION 4. Assignment. The rights and obligations of the Company under
this Agreement (i) are assignable by the Company to TBHC or to any parent or
subsidiary of the Company or TBHC, to any successor by merger to the Company and
to any person which acquires all or substantially all of the assets and business
of the Company as a going concern and (ii) shall inure to the benefit and shall
be binding upon the successors and assigns of the Company. The rights and
obligations of the Executive under this Agreement (including the Option) are not
assignable or transferable by the Executive (whether by operation of law or
otherwise or whether voluntarily or involuntarily); provided, however, that the
Option may be transferred by will or by the laws of descent and distribution.
SECTION 5. Notices. All notices required or permitted to be given under
this Agreement shall be given in writing and shall be deemed sufficiently given
if delivered by hand or mailed by registered mail, return receipt requested, to
his residence in the case of the Executive and to its principal executive
offices in the case of the Company. Either party may by notice to the other
party change the address at which he or it is to receive notices hereunder.
SECTION 6. Applicable Law And Severability. This Agreement shall take
effect and be construed and enforced in accordance with the laws of the State of
New York, excluding any such laws which direct the application of the laws of
some other forum. If any provision or provisions, as the case may be, of this
Agreement are void or unenforceable or so declared, such provision or provisions
shall be deemed and hereby are severed from this Agreement, which shall
otherwise remain in full force and effect.
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SECTION 7. Headings. The headings used in this Agreement are for
convenience only and shall not be deemed to curtail or affect the meaning or
construction of any provision under this Agreement.
SECTION 8. Withholding. All payments or benefits to the Executive under
this Agreement shall be reduced by any amounts required to be withheld by the
Company under federal, state or local income tax laws or similar laws then in
effect.
SECTION 9. Entire Agreement; Amendment. This Agreement amends and
restates the Original Agreement is its entirety and contains the entire
agreement between the parties hereto with respect to the subject matter hereof.
This Agreement may not be changed orally but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
SECTION 10. Generally Accepted Accounting Principles. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance with generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Company's independent
public accountants and disclosed in writing to the Executive) with the most
recent audited consolidated financial statements of the Company.
SECTION 11. Arbitration. Any dispute or question arising from this
Agreement or its interpretation shall be settled exclusively by arbitration in
New York City, New York, in accordance with the commercial rules then in effect
of the American Arbitration Association. The arbitrator(s) shall set forth in
writing and deliver to the parties findings of fact and conclusions
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reached. Judgment upon an award rendered by the arbitrator(s) may be entered in
any court of competent jurisdiction, including courts in the State of New York.
Any award so rendered shall be final and binding upon the parties hereto. All
costs and expenses of the arbitrator(s) shall be borne by equally by the parties
hereto and all costs and expenses of attorneys, experts, witnesses and other
persons retained by the parties shall be borne by the party that retained such
attorneys, experts, witnesses or other persons; provided, however, that the
arbitrator(s) shall have the authority to reallocate responsibility for such
costs and expenses in connection with its arbitration decision. In the event
that injunctive relief shall become necessary under this Agreement, either of
the parties shall have the right to seek provisional remedies prior to an
ultimate resolution by arbitration.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ERNEST J. CAVALLO
Ernest J. Cavallo
SNAPPLE BEVERAGE CORP.
By: MICHAEL WEINSTEIN
Name: Michael Weinstein
Title: Chief Executive Officer
MISTIC BRANDS, INC.
By: MICHAEL WEINSTEIN
Name: Michael Weinstein
Title: Chief Executive Officer
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Exhibit 10.5
TRIARC COMPANIES, INC.
1997 EQUITY PARTICIPATION PLAN
1. PURPOSE
The purpose of the 1997 Equity Participation Plan (the "Plan") of Triarc
Companies, Inc. (the "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 key employees of, and key
consultants to, the Company and its subsidiaries and affiliates who are not
"directors," "executive officers" or "officers" of the Company as such terms are
defined in either the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder, the rules of the New York Stock Exchange, Inc. or the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder
("Eligible Participants"), and 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 options ("Options") for the purchase of shares of Capital
Stock (the "Shares").
2. ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the Board
of Directors of the Company or such other committee or subcommittee of the Board
of Directors of the Company as may be designated by the Board of Directors of
the Company to administer the Plan (the "Committee"). 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, 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 and to determine any conditions
pertaining to the exercise or to the vesting of each Option. 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. 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 exercise of Options
granted under the Plan 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 11 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 delivered on
the exercise of Options shall be 500,000 and all such shares shall be shares of
the Company's Class A Common Stock, par
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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, the number of Shares
previously subject to but not delivered under such Option shall be available for
the grant of Options thereafter.
4. ELIGIBILITY
Options may be granted from time to time to selected Eligible Participants
of the Company or any subsidiary or affiliate, as defined in this Section 4.
From time to time, the Committee shall designate from such Eligible Participants
those who will be granted Options and in connection therewith, the number of
Shares to be covered by each grant of Options. Persons granted Options are
referred to hereinafter as "optionees." Nothing in the Plan, or in any grant of
Options pursuant to the Plan, shall confer on any person any right to continue
in the employ of the Company or any of its subsidiaries, nor in any way
interfere with the right of the Company or any of its subsidiaries to terminate
the person's employment 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, at the time of reference, 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.
PROVISIONS RELATING TO OPTIONS
5. CHARACTER OF OPTIONS
Options granted hereunder shall not be incentive stock Options as such
term is defined in Section 422 of the Internal Revenue Code of 1986, as amended
from time to time (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 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.
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6. STOCK OPTION AGREEMENT
Each Option granted under the Plan 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 50 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 may not be exercised
shall be determined by the Committee with respect to each Option granted, but
may not exceed fifteen 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, shall be determined by
the Committee in its sole discretion. 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
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Option may be exercised in whole or in part.
No Option 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 shall be exercisable
during the optionee's lifetime only by the optionee.
The unexercised portion of any Option 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
fifteen 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 or consulting
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
or events 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 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 shall pass by will or by the applicable law of descent and distribution.
However, in no event may any Option 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 stock 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), or by
a combination of cash,
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check and unrestricted Shares.
Payment in accordance with this 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).
The obligation of the Company to deliver Shares upon such exercise 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.
GENERAL PROVISIONS
10. SHAREHOLDER RIGHTS
No optionee shall have any of the rights of a shareholder 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.
11. 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
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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, (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 as nearly as practicable, equivalent to such Option
immediately prior to such change and (ii) no such adjustment shall give any
optionee any additional benefits under any outstanding Option.
12. 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, provide 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 12 shall apply
notwithstanding any other provision of the Plan.
13. 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. 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 of the 1993 Plan) shall
in no event constitute a Change of Control.
14. 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
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sufficient to satisfy all federal, state and other governmental holding tax
requirements related thereto. Whenever cash is to be paid under the Plan, 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.
Without limiting the generality of the foregoing, (i) an optionee may
elect to satisfy all or part of the foregoing withholding requirements by
delivery of unrestricted shares of Common Stock owned by the optionee 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)
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 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(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).
15. AMENDMENT AND DISCONTINUANCE
The Board 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 tax or regulatory
requirement applicable to the Plan and provided further that any such amendment,
alteration, suspension, discontinuance or termination that would impair the
rights of any optionee or any holder or beneficiary of any Option theretofore
granted shall not to that extent be effective without the consent of the
affected optionee, holder or beneficiary.
16. SECURITIES LAWS.
Notwithstanding any provision of the Plan or any Option agreement to the
contrary, the exercise of the Options and delivery of Shares in connection
therewith will be subject to completion of any registration or qualification (or
satisfaction of an available exemption from registration or qualification) of
the Options or the Shares under applicable state and federal securities or other
laws, or under any ruling or regulation of any governmental body or national
securities exchange that the Company, on the advice of counsel, determines to be
necessary or advisable.
17. GOVERNING LAWS
The Plan shall be applied and construed in accordance with an governed by
the law of the State of Delaware, to the extent such law is not superseded by or
inconsistent with Federal law.
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18. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective on December 11, 1997, the date of its
adoption by the Executive Committee of the Board of Directors. The term during
which Options may be granted under the Plan shall expire on December 11, 2002.
19. 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.
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Exhibit 10.6
NON-INCENTIVE STOCK OPTION AGREEMENT
Under
TRIARC COMPANIES, INC.
1997 EQUITY PARTICIPATION PLAN
__________ Shares of Common Stock
TRIARC COMPANIES, INC. (the "Company"), pursuant to the terms of its
1997 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
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
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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 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 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 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
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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 the 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 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 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 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.
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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:
______________________________
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