EXHIBIT 10.2
AMENDED AND RESTATED
1997 EQUITY PARTICIPATION PLAN
of TRIARC COMPANIES, INC.
(as amended through 5/19/2005)
1. Purpose
The purpose of the Amended and Restated 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") and tandem stock appreciation rights ("SARs").
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 and to grant tandem
SARs in connection with any Option either at the time of the Option grant or
thereafter. 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 or SARs. 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 or
SARs 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 or SARs shall be 500,000 shares of the Company's Class A
Common Stock, par value $0.10 per share (the "Class A Common Stock"), and
1,000,000 shares of the Company's Class B Common Stock, par value $0.10 per.
Share ("Class B Common Stock") (collectively "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 or SARs 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 or SARs and in connection
therewith, the number of Shares to be covered by each grant of Options or SARs.
Persons granted Options or SARs are referred to hereinafter as "optionees."
Nothing in the Plan, or in any grant of Options or SARs 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 AND SARS
5. Character of Options
Options granted hereunder shall not be incentive stock Options as such term
is defined in Section 422 of the 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.
6. Stock Option Agreement
Each Option granted under the Plan, whether or not accompanied by SARs,
shall be evidenced by a written stock Option agreement, which shall be executed
by the Company and by the person to whom the Option is granted. The agreement
shall contain such terms and provisions, not inconsistent with the Plan, as
shall be determined by the Committee.
7. Option Exercise Price
The price per Share to be paid by the optionee on the date an Option is
exercised shall not be less than 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 Class A Common Stock shall mean either (i) the closing
price per share of Class A Common Stock on such date or (ii) the average of the
high and low sales prices of a share of Class A Common Stock on such date, as
determined by the Committee in its sole discretion. The closing price on any
such date shall be (a) as reported on the composite transactions tape for the
principal exchange on which the Class A Common Stock is listed or admitted to
trading (the "Composite Tape"), or if the Class A 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
the Class A Common Stock shall be listed or admitted to trading (which shall be
the national securities exchange on which the greatest number of shares of Class
A 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 date, the average of the closing bid and asked prices
regular way on such date, or (b) if the Class A Common Stock is not listed on
any national securities exchange but is quoted in the Nasdaq National Market
(the "Nasdaq") on a last sale basis, the average between the high bid price and
low ask price reported on such date, or, if there is no such sale on that date,
then on the last preceding date on which a sale was reported. If on any such
date the Class A Common Stock is not listed by or quoted on any such exchange or
the Nasdaq, the fair market value of any Shares of Class A Common Stock on such
date shall be determined by the Committee in its sole discretion.
For purposes of this Plan, the "fair market value" as of any date in
respect of any Shares of Class B Common Stock shall mean either (i) the closing
price per share of Class B Common Stock on such date or (ii) the average of the
high and low sales prices of a share of Class B Common Stock on such date, as
determined by the Committee in its sole discretion. The closing price on any
such date shall be (a) as reported on the composite transactions tape for the
principal exchange on which the Class B Common Stock is listed or admitted to
trading (the "Class B Composite Tape"), or if the Class B Common Stock is not
reported on the Class B Composite Tape or if the Class B Composite Tape is not
in use, the last reported sales price regular way on the principal national
securities exchange on which the Class B Common Stock shall be listed or
admitted to trading (which shall be the national securities exchange on which
the greatest number of shares of Class B 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 date, the average of the
closing bid and asked prices regular way on such date, or (b) if the Class B
Common Stock is not listed on any national securities exchange but is quoted in
the Nasdaq on a last sale basis, the average between the high bid price and low
ask price reported on such date, or, if there is no such sale on that date, then
on the last preceding date on which a sale was reported. If on any such date the
Class B Common Stock is not listed by or quoted on any such exchange or the
Nasdaq, the fair market value of any Shares of Class B Common Stock on such date
shall be determined by the Committee in its sole discretion.
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 or SARs granted under
the Plan may be exercised, and any conditions pertaining to such exercise or to
the vesting in the optionee of the right to exercise Options or SARs, shall be
determined by the Committee in its sole discretion. 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 and the related SAR, if any, may
accelerate or extend the time or times at which such Option may be exercised in
whole or in part.
No Option or SAR granted under the Plan shall be assignable or otherwise
transferable by the optionee, either voluntarily or involuntarily, except by
will or the laws of descent and distribution and an Option or SAR shall be
exercisable during the optionee's lifetime only by the optionee.
The unexercised portion of any Option or SAR granted under the Plan shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
(a) the expiration of the period of time determined by the
Committee upon the grant of such Option; provided that such
period shall not exceed 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 or SARs, if any,
exercisable by the optionee at the time of his or her death may be exercised
within one year thereafter by the person or persons to whom the optionee's
rights under the Options or SARs, if any, shall pass by will or by the
applicable law of descent and distribution. However, in no event may any Option
or SAR be exercised by anyone after the earlier of (a) the final date upon which
the optionee could have exercised it had the optionee continued in the
employment of the Company or its subsidiaries to such date, or (b) one year
after the optionee's death.
An Option may be exercised only by a notice in writing complying in all
respects with the applicable 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, 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.
9A Stock Appreciation Rights
The Committee may in its discretion grant SARs in connection with any
Option, either at the time the Option is granted or at any time thereafter while
the Option remains outstanding, to any person who at that time is eligible to be
granted an Option. The number of SARs granted to a person which shall be
exercisable during any given period of time shall not exceed the number of
Shares which such optionee may purchase upon the exercise of the related Option
or Options during such period of time. Upon the exercise of an Option pursuant
to the Plan, the SARs relating to the Shares covered by such exercise shall
terminate. Upon the exercise of SARs pursuant to the Plan, the related Option to
the extent of an equal number of Shares shall terminated.
Upon an optionee's exercise of some or all of such optionee's SARs, the
optionee shall receive in settlement of such SARs an amount equal to the value
of the stock appreciation for the number of SARs exercised, payable in cash,
Shares or a combination thereof, as determined in the sole discretion of the
Committee. The stock appreciation for an SAR is the difference between (i) the
fair market value, as determined by the Committee as set forth in the underlying
agreement, of the underlying Share on the date of the exercise of such SAR and
(ii) the Option price specified for the related Option. At the time of such
exercise, the optionee shall have the right to elect the portion of the amount
to be received that shall consist of cash and the portion that shall consist of
Shares, which, for purposes of calculating the number of Shares to be received,
shall be valued at their fair market value on the date of the exercise of such
SARs. The Committee in its sole discretion shall have the right to disapprove an
optionee's election to receive cash in full or partial settlement of the SARs
exercised, and to require the Shares to be delivered in lieu of cash. If Shares
are to be received upon exercise of an SAR, cash shall be delivered in lieu of
any fractional share.
An SAR shall be exercisable only during the period determined by the
Committee, which period shall be within the period when the Option to which it
is related is exercisable.
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 (including, without
limitation, any extraordinary dividends payable in cash or any spin-off of a
subsidiary) 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 stock, or
(iii) a merger, consolidation or other reorganization as a result of which Plan
Shares shall be increased, reduced or otherwise changed or affected, then in
each such event the Committee shall, to the extent it deems it to be consistent
with such event and necessary or equitable to carry out the purposes of the
Plan, appropriately adjust (a) the maximum number of shares of Capital Stock and
the classes or series of such Capital Stock which may be delivered pursuant to
the Plan, (b) the number of shares of Capital Stock and the classes or series of
Capital Stock subject to outstanding Options or SARs, (c) the Option price per
share of all Capital Stock subject to outstanding Options, and (d) any other
provisions of the Plan; provided, however, that (I) any adjustments made in
accordance with clauses (b) and (c) shall make any such outstanding Option or
SAR, as nearly as practicable, equivalent to such Option or SAR 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"), then
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 sufficient to satisfy all federal, state and
other governmental holding tax requirements related thereto. Whenever cash is to
be paid under the Plan (whether upon exercise of an SAR or otherwise), the
Company may, as a condition of its payment, deduct therefrom, or from any salary
or other payments due to the grantee, an amount sufficient to satisfy all
federal, state and other governmental withholding tax requirements related
thereto or to the delivery of any shares of Common Stock under the Plan.
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.
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.
20. Deferral
The Committee, in its sole discretion, may establish procedures whereby one
or more optionees selected by the Committee may elect to defer the receipt of
Shares upon the exercise of Options (which are not incentive stock options) for
a specified period and/or until the occurrence of a specified event.