EXHIBIT 10.3
AMENDED AND RESTATED
1998 EQUITY PARTICIPATION PLAN
of TRIARC COMPANIES, INC.
(as amended through 5/19/2005)
1. Purpose. The purpose of the Amended and Restated 1998 Equity
Participation Plan (the "Plan") of Triarc Companies, Inc. ("Company") is to
promote the interests of the Company and its stockholders by (i) securing for
the Company and its stockholders the benefits of the additional incentive
inherent in the ownership of the capital stock of the Company (the "Capital
Stock") by selected officers, directors ("Directors") and key employees of, and
consultants to, the Company and its subsidiaries and affiliates who are
important to the success and growth of the business of the Company and its
subsidiaries and (ii) assisting the Company to secure and retain the services of
such persons. The Plan provides for granting such persons (a) options
("Options") for the purchase of shares of Capital Stock (the "Shares"), (b)
tandem stock appreciation rights ("SARs") and (c) Shares which are both
restricted as to transferability and subject to a substantial risk of forfeiture
("Restricted Shares"). The Plan also provides for automatic grants of Options to
non-employee Directors and permits such non-employee Directors to elect to
receive all or a portion of their annual retainer fees and/or board of directors
or committee meeting attendance fees in Shares.
2. Administration. The Plan shall be administered by a Com ittee (the
"Committee") consisting of two or more Directors appointed by the Board of
Directors of the Company. It is intended, but not required, that the directors
appointed to serve on the Committee shall be "Non-Employee Directors" (within
the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934,
as amended (the "Act")), and "outside directors" within the meaning of Section
162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), to the
extent Rule 16b-3 and Section 162(m), respectively, are applicable to the
Company and the Plan; however, the fact that a Committee member shall fail to
qualify under either of the foregoing requirements shall not invalidate any
award which is otherwise validly made under the Plan. The members of the
Committee may be changed at any time and from time to time in the discretion of
the Board of Directors of the Company. Subject to the limitations and conditions
hereinafter set forth, and except with respect to automatic grants to
non-employee Directors pursuant to Section 11.1 hereof, the Committee shall have
authority to grant Options hereunder, to determine the number of Shares for
which each Option shall be granted and the Option price or prices, to determine
any conditions pertaining to the exercise or to the vesting of each Option, to
grant tandem SARs in connection with any Option either at the time of the Option
grant or thereafter, to make awards of Restricted Shares, to determine the
number of Restricted Shares to be granted, and to establish in its discretion
the restrictions to which any such Restricted Shares shall be subject. The
Committee shall have full power to construe and interpret the Plan and any Plan
agreement executed pursuant to the Plan to establish and amend rules for its
administration, and to establish in its discretion terms and conditions
applicable to the exercise of Options and SARs and the grant of Restricted
Shares. The determination of the Committee on all matters relating to the Plan
or any Plan agreement shall be conclusive. No member of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any award hereunder.
3. Shares Subject to the Plan. The Shares to be transferred or sold
pursuant to the grant of Restricted Shares or the exercise of Options or SARs
granted under the Plan or pursuant to the election by a Director to receive all
or a portion of their annual retainer fees and/or board of directors or
committee meeting attendance fees, if any ("Fees"), in Shares shall be
authorized Shares, and may be issued Shares reacquired by the Company and held
in its treasury or may be authorized but unissued Shares. Subject to the
provisions of Section 19 hereof (relating to adjustments in the number and
classes or series of Capital Stock to be delivered pursuant to the Plan), the
maximum aggregate number of Shares to be granted as Restricted Shares or to be
delivered on the exercise of Options or SARs or upon a Director's election to
receive Fees in Shares shall be 5,000,000 shares of the Company's Class A Common
Stock, par value $0.10 per share (the "Class A Common Stock"), and 10,000,000
shares of the Company's Class B Common Stock, par value $.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 or the related SAR, if
any, or if Restricted Shares are forfeited as provided in the grant of such
Shares, the number of Shares previously subject to but not delivered under such
Option, related SAR or grant of Restricted Shares shall be available to be
awarded thereafter. An Option that terminates upon the exercise of a tandem SAR
shall be deemed to have been exercised at the time of the exercise of such
tandem SAR, and the Shares subject thereto shall not be available for further
grants under the Plan.
4. Eligibility. Options, SARs or Restricted Shares may be granted from time
to time to selected officers, and subject to the provisions of Section 2 hereof,
Directors (including non-employee Directors) and key employees of, and
consultants to, the Company or any consolidated subsidiary or affiliate, each as
defined in this Section 4. From time to time, the Committee shall designate from
such eligible officers those who will be granted Options, SARs or Restricted
Shares, and in connection therewith, the number of Shares to be covered by each
grant of Options or Restricted Shares. In addition, Options shall be granted
automatically to non-employee Directors and non-employee Directors shall be
entitled to receive all or a portion of their Fees in Shares as provided in
Section 11 hereof. Persons granted Options or SARs are referred to hereinafter
as "optionees," and persons granted Restricted Shares are referred to
hereinafter as "grantees." Nothing in the Plan, or in any grant of Options,
SARs, Restricted Shares or Shares pursuant to the Plan, shall confer on any
person any right to continue in the employ or service of the Company or any of
its subsidiaries or affiliates, nor in any way interfere with the right of the
Company or any of its subsidiaries or affiliates to terminate the person's
employment or service at any time.
The term "subsidiary" shall mean, at the time of reference, any corporation
organized or acquired (other than the Company) in an unbroken chain of
corporations beginning with the Company if each of the corporations (including
the Company) other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. The term "affiliate" shall
mean any person or entity which, at the time of reference, directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, the Company. Notwithstanding any other provision of
the Plan to the contrary, in no event may the aggregate number of shares of
Class A Common Stock with respect to which Options and SARs are granted under
the Plan to any individual exceed 1,000,000 in any one calendar year.
PROVISIONS RELATING TO OPTIONS AND SARs
5. Character of Options. Options granted hereunder shall not be incentive
stock Options as such term is defined in Section 422 of the Code. Options
granted hereunder shall be "non-qualified" stock options subject to the
provisions of Section 83 of the Code.
If an Option granted under the Plan (other than an Option granted pursuant
to Section 11 of the Plan) is exercised by an optionee, then, at the discretion
of the Committee, the optionee may receive a replacement or reload Option
hereunder to purchase a number of Shares equal to the number of Shares utilized
to pay the exercise price and/or withholding taxes on the Option exercise, with
an exercise price equal to the "fair market value" (as defined in Section 7 of
the Plan) of a Share on the date such replacement or reload Option is granted,
and, unless the Committee determines otherwise, with all other terms and
conditions (including the date or dates on which the Option shall become
exercisable and the term of the Option) identical to the terms and conditions of
the Option with respect to which the reload Option is granted. No replacement or
reload Option shall be granted in respect of the exercise of any Option granted
pursuant to Section 11 of the Plan.
6. Stock Option Agreement. Each Option granted under the Plan, whether or
not accompanied by SARs, shall be evidenced by a written stock Option agreement,
which shall be executed by the Company and by the person to whom the Option is
granted. The agreement shall contain such terms and provisions, not inconsistent
with the Plan, as shall be determined by the Committee.
7. Option Exercise Price. The price per Share to be paid by the optionee on
the date an Option is exercised shall not be less than 85 percent of the fair
market value of one Share on the date the Option is granted.
For purposes of this Plan, the "fair market value" as of any date in
respect of any Shares of 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
(other than Options granted pursuant to Section 11) may not be exercised shall
be determined by the Committee with respect to each Option granted, but may not
exceed ten years from the date on which the Option is granted, subject to the
third paragraph of Section 9 hereof.
9. Exercise of Options. The time or times at which or during which Options
granted under the Plan may be exercised, and any conditions pertaining to such
exercise or to the vesting in the optionee of the right to exercise Options or
SARs, shall be determined by the Committee in its sole discretion, except as
otherwise specifically set forth herein. Subsequent to the grant of an Option
which is not immediately exercisable in full, the Committee, at any time before
complete termination of such Option, may accelerate or extend the time or times
at which such Option and the related SAR, if any, may be exercised in whole or
part.
Except as provided in this paragraph, no Option or SAR granted under the
Plan shall be assignable or otherwise transferable by the optionee, either
voluntarily or involuntarily, except by will or the laws of descent and
distribution and an Option or SAR shall be exercisable during the optionee's
lifetime only by the optionee. The Committee may in the applicable Option
agreement or at any time thereafter in an amendment to an Option agreement
provide that Options granted hereunder may be transferred with or without
consideration by the Optionee, subject to such rules as the Committee may adopt
to preserve the purposes of the Plan, (i) pursuant to a domestic relations order
or (ii) to one or more of:
(x) the optionee's spouse, children or grandchildren (including
adopted children, stepchildren and grandchildren) (collectively,
the "Immediate Family");
(y) a trust solely for the benefit of the optionee and/or his or her
Immediate Family;
(z) a partnership or limited liability company, the partners or
members of which are limited to the optionee and his or her
Immediate Family, or
(aa)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) the Committee or the Company shall not be required to provide
any notice to a Permitted Transferee, whether or not such notice is or would
otherwise have been required to be given to the optionee under the Plan or
otherwise; and (d) the events of termination of employment by, or services to,
the Company under clause (b) of the third paragraph of Section 9 and Section
11.1, as the case may be, hereof shall continue to be applied with respect to
the original optionee, following which the Options shall be exercisable by the
Permitted Transferee only to the extent, and for the periods, specified in
Section 9 and Section 11.1, as the case may be.
The unexercised portion of any Option (other than Options granted pursuant
to Section 11) or SAR granted under the Plan shall automatically and without
notice terminate and become null and void at the time of the earliest to occur
of the following:
(a) the expiration of the period of time determined by the
Committee upon the grant of such Option; provided that such period shall not
exceed ten years from the date on which such Option was granted;
(b) the termination of the optionee's employment by, or services
to, the Company and its subsidiaries if such termination constitutes or is
attributable to a breach by the optionee of an employment agreement with the
Company or any of its subsidiaries, or if the optionee is discharged or if his
or her services are terminated for cause; or
(c) the expiration of such period of time or the occurrence of
such event as the Committee in its discretion may provide upon the granting
thereof.
The Committee and the Board of Directors shall have the right to determine
what constitutes cause for discharge or termination of services, whether the
optionee has been discharged or his or her services terminated for cause and the
date of such discharge or termination of services, and such determination of the
Committee or the Board of Directors shall be final and conclusive.
In the event of the death of an optionee, Options or SARs, if any,
exercisable by the optionee at the time of his or her death may be exercised
within one year thereafter by the person or persons to whom the optionee's
rights under the Options or SARs, if any, shall pass by will or by the
applicable law of descent and distribution. However, in no event may any Option
or SAR be exercised by anyone after the earlier of (a) the final date upon which
the optionee could have exercised it had the optionee continued in the
employment of the Company or its subsidiaries to such date, or (b) one year
after the optionee's death.
An Option may be exercised only by a notice in writing complying in all
respects with the applicable Option agreement. Such notice may instruct the
Company to deliver Shares due upon the exercise of the Option to any registered
broker or dealer approved by the Company (an "approved broker") in lieu of
delivery to the optionee. Such instructions shall designate the account into
which the Shares are to be deposited. The optionee may tender such notice,
properly executed by the optionee, together with the aforementioned delivery
instructions, to an approved broker. The purchase price of the Shares as to
which an Option is exercised shall be paid in cash or by check, except that the
Committee may, in its discretion, allow such payment to be made by surrender of
unrestricted Shares (at their fair market value on the date of exercise) which
have been held by the optionee for at least six months, or by a combination of
cash, check and unrestricted Shares.
Payment in accordance with Section 9 may be deemed to be satisfied, if and
to the extent provided in the applicable Option agreement, by delivery to the
Company of an assignment of a sufficient amount of the proceeds from the sale of
Shares acquired upon exercise to pay for all of the Shares acquired upon
exercise and an authorization to the broker or selling agent to pay that amount
to the Company, which sale shall be made at the grantee's direction at the time
of exercise, provided that the Committee may require the grantee to furnish an
opinion of counsel acceptable to the Committee to the effect that such delivery
would not result in the grantee incurring any liability under Section 16 of the
Securities Exchange Act of 1934, as amended, and does not require the consent,
clearance or approval of any governmental or regulatory body (including any
securities exchange or similar self-regulatory organization).
Wherever in this Plan or any Option agreement an optionee is permitted to
pay the exercise price of an Option or taxes relating to the exercise of an
Option by delivering Shares, the optionee may, subject to procedures
satisfactory to the Committee, satisfy such delivery requirement by presenting
proof of beneficial ownership of such Shares, in which case the Company shall
treat the Option as exercised without further payment and shall withhold such
number of Shares from the Shares acquired by the exercise of the Option (or if
the Option is paid in cash, cash in an amount equal to the fair market value of
such shares on the date of exercise).
10. Stock Appreciation Rights. The Committee may in its discretion grant
SARs in connection with any Option, either at the time the Option is granted or
at any time thereafter while the Option remains outstanding, to any person who
at that time is eligible to be granted an Option. The number of SARs granted to
a person which shall be exercisable during any given period of time shall not
exceed the number of Shares which such optionee may purchase upon the exercise
of the related Option or Options during such period of time. Upon the exercise
of an Option pursuant to the Plan, the SARs relating to the Shares covered by
such exercise shall terminate. Upon the exercise of SARs pursuant to the Plan,
the related Option to the extent of an equal number of Shares shall terminate.
Upon an optionee's exercise of some or all of such optionee's SARs, the
optionee shall receive in settlement of such SARs an amount equal to the value
of the stock appreciation for the number of SARs exercised, payable in cash,
Shares or a combination thereof, as determined in the sole discretion of the
Committee. The stock appreciation for an SAR is the difference between (i) the
fair market value, as determined by the Committee as set forth in the underlying
agreement, of the underlying Share on the date of the exercise of such SAR and
(ii) the Option price specified for the related Option. At the time of such
exercise, the optionee shall have the right to elect the portion of the amount
to be received that shall consist of cash and the portion that shall consist of
Shares, which, for purposes of calculating the number of Shares to be received,
shall be valued at their fair market value on the date of the exercise of such
SARs. The Committee in its sole discretion shall have the right to disapprove an
optionee's election to receive cash in full or partial settlement of the SARs
exercised, and to require the Shares to be delivered in lieu of cash. If Shares
are to be received upon exercise of an SAR, cash shall be delivered in lieu of
any fractional share.
An SAR 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.
11. Automatic Grants to Non-Employee Directors; Elective Purchase
of Shares.
11.1 Automatic Grants to Non-Employee Directors. Notwithstanding any
other provision of the Plan, each Director who is initially elected or
appointed as a Director after the date of the adoption of the Plan by the
Board of Directors and who is not then an employee of the Company, any
subsidiary or any affiliate shall be granted on the later of (i) the date of the
approval of the Plan by the stockholders, or (ii) the date of such
Director's initial election or appointment to the Board of Directors, a
nonqualified Option to purchase 15,000 Shares. On the date of each annual
meeting of stockholders of the Company held after the Plan is adopted by the
Board of Directors at which a Director is reelected, such Director shall
be granted a nonqualified Option to purchase 3,000 Shares. Each such Option
shall have a term of ten years, subject to the provisions of this Section 11.1
below. Each such Option shall become exercisable to the extent of one-half
thereof on each of the two immediately succeeding anniversaries of the date of
grant, subject to continued service on the Board. The price per Share to be
paid by the holder of such an Option shall equal the fair market value of one
Share on the date the Option is granted. The purchase price of the Shares as
to which such an Option is exercised shall be paid in cash, by check, by the
delivery of unrestricted Shares held by the Director for at least six months,
through the cashless exercise program described in Section 9, or any combination
thereof, at the Director's election. Any Director holding Options granted under
this Section 11.1 who is a member of the Committee shall not participate in
any action of the Committee with respect to any claim or dispute involving
such Director's Options.
Subject to the provisions of the applicable Plan agreement, the unexercised
portion of any such Option shall automatically and without notice terminate and
become null and void at the time of the earliest to occur of the following:
(a) the expiration of ten years from the date on which such Option
was granted;
(b) if the optionee's service is terminated for "cause", the
termination of the optionee's service to the Company and its subsidiaries. For
purposes of this Section 11, "cause," shall mean that the optionee's service is
terminated (i) on account of fraud, embezzlement or other unlawful or tortious
conduct, whether or not involving or against the Company or any affiliate,
(ii)for violation of a policy of the Company or any affiliate, (iii) for
serious and willful acts or misconduct detrimental to the business or
reputation of the Company or any affiliate or (iv) for "cause" or any like
term as defined in any written contract between the Company and the optionee;
(c) if the optionee's service terminates for reasons other than as
provided in subsection (b) or (d) of this Section 11.1, (i) with respect to
the portion of such optionee's Option that was not exercisable immediately
prior to such termination, the termination of the optionee's service to the
Company and its subsidiaries and (ii) with respect to the portion that
was exercisable immediately prior to such termination, 90 days after the
termination of the optionee's service to the Company and its subsidiaries,
subject to subsection(a) of this Section 11.1; and
(d) if the optionee's service terminates by reason of his death, or
if the optionee's service terminates in the manner described in subsection (c)
of this Section 11.1 and he dies within such period for exercise provided for
therein,(i)with respect to the portion of such optionee's Option that
was not exercisable immediately prior to such termination, the death of the
optionee and(ii) with respect to the portion that was exercisable immediately
prior to such optionee's death, one year after the optionee's death (and such
portion of the Option shall be exercisable for the period described in
clause (ii) by the person to whom such Option passes under such optionee's will
(or, if applicable, pursuant to the laws of descent and distribution), subject
to subsection (a) of this Section 11.1.
11.2 Elective Purchase of Shares. In addition to any other benefit
to which any Director may be entitled under the terms of the Plan, a Director
shall be permitted to elect to receive all or any portion of the Fees that
otherwise would be payable in cash to such Director, in Shares rather
than cash in accordance with the provisions of this Section 11.2.
Any Director may elect to receive all or any portion of his or her Fees in
Shares rather than cash by delivering a written election (an "Election Notice,"
the election set forth therein being referred to as the "Election") to the
Secretary of the Company. An Election shall continue in effect until it is
revoked by delivery to the Secretary of the Company of a written revocation
notice (a "Revocation") or modified by delivery to the Secretary of the Company
of a new Election Notice. Any Election or Revocation under this Section 11.2
shall be effective with respect to Fees that otherwise would be paid after the
later of (x) with respect to an Initial Election (as defined below), the date of
receipt by the Secretary of the Company of the Election Notice or, if later, the
date specified in such Election Notice, and (y) with respect to any Revocation
or any Election, other than an Initial Election, six months after the date of
receipt by the Secretary of the Company of such Revocation or Election Notice.
There shall be no limit on the number of Elections or Revocations that may be
made a Director. A Director who does not elect that all or a portion of his Fees
be paid in Shares shall receive his Fees in cash on the date that such Fees are
otherwise due. Any Shares payable under this Section 11.2 shall be issued to the
Director on the same date that the Fees would have been paid in cash. The number
of Shares to be issued to a Director who makes an Election under this Section
11.2 shall be determined by dividing:
(i) the amount of the Director's Fees for which he has made
an Election under this Section 11.2, by
(ii) the average of the fair market value of the Shares
(as defined in Section 7 of the Plan) for the twenty (20)consecutive
trading days immediately preceding the date as of which the Fees
otherwise would be payable. Only full Shares shall be issued pursuant to
this Section. If the formula set forth above would result in a Director
receiving any fractional Share, then, in lieu of such fractional Share,
the Director shall be paid cash.
For purposes of this Section 11.2 an "Initial Election" means an Election
received by the Secretary of the Company from a Director on a date not later
than the later of (a) ten days following approval of the Plan by the
stockholders, and (b) ten days after a Director is first elected a director of
the Company; provided, however, that with respect to Directors who were
participants in the Triarc Companies, Inc. 1993 Equity Participation Plan (the
"1993 Plan"), any outstanding election under the 1993 Plan shall be deemed to
continue under this Plan as an "Initial Election" and shall continue to be
effective so long as no new Election Notice is received within 10 days following
approval of the Plan by the stockholders.
PROVISIONS RELATING TO RESTRICTED SHARES
12. Granting of Restricted Shares. The Committee may grant Restricted
Shares to eligible persons at any time. In granting Restricted Shares, the
Committee shall determine in its sole discretion the period or periods during
which the restrictions on transferability applicable to such Shares will be in
force (the "Restricted Period"). The Restricted Period may be the same for all
such Shares granted at a particular time or to any one grantee or may be
different with respect to different grantees or with respect to various of the
Shares granted to the same grantee, all as determined by the Committee in its
sole discretion.
Each grant of Restricted Shares under the Plan shall be evidenced by an
agreement which shall be executed by the Company and by the person to whom the
Restricted Shares are granted. The agreement shall contain such terms and
provisions, not inconsistent with the Plan, as shall be determined by the
Committee.
13. Restrictions on Transferability. During the Restricted Period
applicable to each grant of Restricted Shares, such Shares may not be sold,
assigned, transferred or otherwise disposed of, or mortgaged, pledged or
otherwise encumbered. Furthermore, a grantee's eventual right, if any, to such
Shares may not be assigned or transferred except by will or by the laws of
descent and distribution. The restrictions on the transferability of Restricted
Shares imposed by this section are referred to in this Plan as the
"Transferability Restrictions."
14. Determination of Vesting Restrictions. With respect to each grant of
Restricted Shares, the Committee shall determine in its sole discretion the
restrictions on vesting which will apply to the Shares for the Restricted
Period, which restrictions as initially determined and as they may be modified
pursuant to the Plan, are referred to hereinafter as the "Vesting Restrictions."
By way of illustration but not by way of limitation, any such determination of
Vesting Restrictions by the Committee may provide (a) that the grantee will not
be entitled to any such Shares unless he or she is still employed by the Company
or its subsidiaries at the end of the Restricted Period; (b) that the grantee
will become vested in such Shares according to such schedule as the Committee
may determine; (c) that the grantee will become vested in such Shares at the end
of or during the Restricted Period based upon the achievement (in such manner as
the Committee may determine) of such performance standards as the Committee may
determine; (d) that the grantee will become vested in such Shares in any
combination of the foregoing or under such other terms and conditions as the
Committee in its sole discretion may determine; and (e) how any such Vesting
Restrictions will be applied, modified or accelerated in the case of the
grantee's death, total and permanent disability (as determined by the Committee)
or retirement.
The performance standards, if any, set by the Committee for any grantee may
be individual performance standards applicable to the grantee, may be
performance standards for the Company or the division, business unit or
subsidiary by which the grantee is employed, may be performance standards set
for the grantee under any other plan providing for incentive compensation for
the grantee, or may be any combination of such standards. Performance standards
set at the time of the grant of any Restricted Shares may be revised at any time
prior to the beginning of the last year of the Restricted Period, but only to
take into account significant changes in circumstances as determined by the
Committee in its sole discretion.
If the Committee deems the Vesting Restrictions inappropriate for any
grantee, it may approve the award and delivery to such grantee of all or any
portion of the Restricted Shares then held in escrow pursuant to Section 15. Any
Restricted Shares so awarded and delivered to a grantee shall be delivered free
and clear of the Transferability Restrictions.
15. Manner of Holding and Delivering Restricted Shares. Each certificate
issued for Restricted Shares granted hereunder will be registered in the name of
the grantee and will be deposited with the Company or its designee in an escrow
account accompanied by a stock power executed in blank by the grantee covering
such Shares. The certificates for such Shares will remain in escrow until the
earlier of the end of the applicable Restricted Period, or, if the Committee has
provided for earlier termination of the Transferability Restrictions following a
grantee's death, total and permanent disability, retirement or earlier vesting
of such Shares, such earlier termination of the Transferability Restrictions. At
whichever time is applicable, the certificates representing the number of such
Shares to which the grantee is then entitled will be released from escrow and
delivered to the grantee free and clear of the Transferability Restrictions,
provided that in the case of a grantee who is not entitled to receive the full
number of such Shares evidenced by the certificates then being released from
escrow because of the application of the Vesting Restrictions, such certificates
will be returned to the Company and canceled, and a new certificate representing
the Shares, if any, to which the grantee is entitled pursuant to the Vesting
Restrictions, will be issued and delivered to the grantee, free and clear of the
Transferability Restrictions (and, if applicable, a new certificate will also be
issued back into escrow, accompanied by a new stock power executed in blank by
the grantee, covering the Shares to which the grantee is not yet entitled due to
the application of the Vesting Restrictions).
16. Transfer in the Event of Death, Disability or Retirement.
Notwithstanding a grantee's death, total and permanent disability or retirement,
the certificates for his or her Restricted Shares will remain in escrow and the
Transferability Restrictions will continue to apply to such Shares unless the
Committee determines otherwise. Upon the release of such Shares from escrow and
the termination of the Transferability Restrictions, either upon any such
determination by the Committee or at the end of the applicable Restricted
Period, as the case may be, the portion of such grantee's Restricted Shares to
which he or she is entitled, determined pursuant to his or her applicable
Vesting Restrictions, will be awarded and delivered to the grantee or to the
person or persons to whom the grantee's rights, if any, to the Shares shall pass
by will or by the applicable law of descent and distribution, as the case may
be. However, the Committee may in its sole discretion award and deliver all or
any greater portion of the Restricted Shares to any such grantee or to such
person or persons.
17. Limitations on Obligation to Deliver Shares. The Company shall not be
obligated to deliver any Restricted Shares free and clear of the Transferability
Restrictions until the Company has satisfied itself that such delivery complies
with all laws and regulations by which the Company is bound.
GENERAL PROVISIONS
18. Stockholder Rights. Except for the Transferability Restrictions, a
grantee of Restricted Shares shall have the rights of a holder of the Shares,
including the right to receive dividends paid on such Shares and the right to
vote such Shares at meetings of stockholders of the Company. However, no
optionee shall have any of the rights of a stockholder with respect to any
Shares unless and until he or she has exercised his or her Option with respect
to such Shares and has paid the full purchase price therefor.
19. Changes in Shares. In the event of (i) any split, reverse split,
combination of shares, reclassification, recapitalization or similar event
(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 or grants of
Restricted Shares, (c) the Option price per share of all Capital Stock subject
to outstanding Options, (d) any performance based Vesting Restrictions in any
Plan agreement that are based on stock price and (e) any other provisions of the
Plan; provided, however, that (I) any adjustments made in accordance with
clauses (b) and (c) shall make any such outstanding Option or SAR, as nearly as
practicable, equivalent to such Option or SAR, as the case may be, immediately
prior to such change and (II) no such adjustment shall give any optionee any
additional benefits under any outstanding Option.
20. Reorganization. In the event that the Company is merged or consolidated
with another corporation, or in the event that all or substantially all of the
assets of the Company are acquired by another corporation, or in the event of a
reorganization or liquidation of the Company (each such event being hereinafter
referred to as a "Reorganization Event") or in the event that the Board of
Directors shall propose that the Company enter into a Reorganization Event, then
the Committee may in its discretion take any or all of the following actions:
(i) by written notice to each optionee, provided that his or her Options will be
terminated unless exercised within thirty days (or such longer period as the
Committee shall determine in its sole discretion) after the date of such notice
(without acceleration of the exercisability of such Options); and (ii) advance
the date or dates upon which any or all outstanding Options shall be exercisable
or the Vesting Restrictions or Restricted Period applicable to any Restricted
Shares shall lapse.
Whenever deemed appropriate by the Committee, any action referred to in
subparagraph (a) above may be made conditional upon the consummation of the
applicable Reorganization Event. The provisions of this Section 20 shall apply
notwithstanding any other provision of the Plan.
21. Change of Control. Notwithstanding anything in the Plan to the
contrary, upon (i) the acquisition by any person of 50% or more of the combined
voting power of the Company's outstanding securities entitled to vote generally
in the election of directors, or (ii) a majority of the directors of the Company
being individuals who are not nominated by the Board of Directors (a "Change of
Control"), then any outstanding Options granted under the Plan shall be fully
and immediately exercisable and any Vesting Restrictions applicable to any
Restricted Shares shall lapse and such Restricted Shares shall be delivered free
and clear of all Transferability Restrictions. The acquisition of any portion of
the combined voting power of the Company by DWG Acquisition Group, L.P., Nelson
Peltz or Peter May or by any person affiliated with such persons (or the
acquisition or disposition by any person or persons who receive any award under
Section 11 hereof) shall in no event constitute a Change of Control.
22. Withholding Taxes. Whenever under the Plan shares of Common Stock are
to be delivered pursuant to an award, the Committee may require as a condition
of delivery that the optionee or grantee remit an amount sufficient to satisfy
all federal, state and other governmental holding tax requirements related
thereto. Whenever cash is to be paid under the Plan (whether upon the exercise
of an SAR, payment of dividends or otherwise), the Company may, as a condition
of its payment, deduct therefrom, or from any salary or other payments due to
the grantee, an amount sufficient to satisfy all federal, state and other
governmental withholding tax requirements related thereto or to the delivery of
any shares of Common Stock under the Plan. Notwithstanding any provision of the
Plan to the contrary, in connection with the transfer of an Option to a
Permitted Transferee pursuant to Section 9 of the Plan, the optionee shall
remain liable for any withholding taxes required to be withheld upon the
exercise of such Option by the Permitted Transferee.
Without limiting the generality of the foregoing, (i) an optionee or
grantee may elect to satisfy all or part of the foregoing withholding
requirements by delivery of unrestricted shares of Common Stock owned by the
optionee or grantee for at least six months (or such other period as the
Committee may determine) having a fair market value (determined as of the date
of such delivery by the optionee or grantee) equal to all or part of the amount
to be so withheld, provided that the Committee may require, as a condition of
accepting any such delivery, the optionee or grantee to furnish an opinion of
counsel acceptable to the Committee to the effect that such delivery would not
result in the optionee or grantee incurring any liability under Section 16(b) of
the Act; and (ii) the Committee may permit any such delivery to be made by
withholding shares of Common Stock from the Shares otherwise issuable pursuant
to the award giving rise to the tax withholding obligation (in which event the
date of delivery shall be deemed the date such award was exercised or
delivered).
23. Amendment and Discontinuance. The Board of Directors may amend, alter,
suspend, discontinue, or terminate the Plan or any portion thereof at any time;
provided that no such amendment, alteration, suspension, discontinuation or
termination shall be made without stockholder approval if such approval is
necessary to comply with any regulatory requirement applicable to the Plan and
provided further that any such amendment, alteration, suspension, discontinuance
or termination that would impair any rights under any award theretofore made
under the Plan shall not to that extent be effective without the consent of the
person to whom such award was made.
24. Applicable Laws. The obligation of the Company to deliver Shares shall
be subject to all applicable laws, rules and regulations, and to such approvals
by governmental agencies as may be deemed appropriate by the Committee,
including, among others, such steps as counsel for the Company shall deem
necessary or appropriate to comply with requirements of relevant securities
laws. Such obligation shall also be subject to the condition that the Shares
reserved for issuance upon the exercise of Options granted under the Plan shall
have been duly listed on any national securities exchange which then constitutes
the principal trading market for the Shares.
25. Governing Laws. The Plan shall be applied and construed in accordance
with and governed by the law of the State of Delaware, to the extent such law is
not superseded by or inconsistent with Federal law.
26. Effective Date and Duration of Plan. The Plan shall become effective on
the date of its approval by the stockholders. The term during which awards may
be granted under the Plan shall expire on April 30, 2003.
27. Amendments to Agreements. Notwithstanding any other provision of the
Plan, the Board of Directors, or any authorized committee thereof, may amend the
terms of any agreement entered into in connection with any award granted
pursuant to the Plan, provided that the terms of such amendment are not
inconsistent with the terms of the Plan.
28. 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.