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 27, 2003
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 16 Pages
Exhibit Index appears on Page 3
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
10.1 - Form of Non-Incentive Stock Option Agreement under Triarc's
2002 Equity Participation 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: /s/ Brian L. Schorr
---------------------------
Brian L. Schorr
Executive Vice President
Dated: March 27, 2003
EXHIBIT INDEX
Exhibit
No. Description Page No.
--------- ----------- --------
10.1 Form of Non-Incentive Stock Option Agreement under
Triarc's 2002 Equity Participation Plan.
EXHIBIT 10.1
NON-INCENTIVE STOCK OPTION AGREEMENT
Under
TRIARC COMPANIES, INC.
2002 EQUITY PARTICIPATION PLAN
___________ Shares of Common Stock
TRIARC COMPANIES, INC. (the "Company"), pursuant to the terms of its 2002
Equity Participation Plan (the "Plan"), hereby irrevocably grants to ________
(the "Optionee") the right and option to purchase shares of Class A Common
Stock, par value $.10 per share (the "Common Stock"), of the Company upon and
subject to the following terms and conditions:
1. The Option is not intended to qualify as an incentive stock option under
the provisions of Section 422 of the Internal Revenue Code of 1986, as amended,
or its predecessor (the "Code").
2. ______________ is the date of grant of the Option ("Date of Grant").
3. The purchase price of the shares of Common Stock subject to the Option
shall be $____ per share.
4. Subject to the Optionee's continued provision of services to the
Company, 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 _______________.
Notwithstanding the foregoing, in the event of (i) the termination of the
Optionee's services to the Company as a result of the Optionee's death or
disability, or (ii) the occurrence of a Change of Control (as defined in the
Plan), the Option shall be deemed to be fully (100%) vested and exercisable as
of immediately prior to the Optionee's death or disability or the Change of
Control.
5. The unexercised portion of the Option shall automatically and without
notice terminate and become null and void at the earlier of (a) expiration of
ten (10) years from the Date of Grant and (b) the earliest applicable time
specified in Section 6.
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) __________, 20___;
(b) the termination of the Optionee's services to the Company and its
subsidiaries if the Optionee's services are terminated for "cause," that is for
"cause" or any like term, as defined in any written contract between the Company
and the Optionee; or if not so defined, (i) on account of fraud, embezzlement or
other unlawful or tortious conduct, whether or not involving or against the
Company or any affiliate, (ii) for violation of a policy of the Company or any
affiliate, (iii) for serious and willful acts or misconduct detrimental to the
business or reputation of the Company or any affiliate;
(c) the termination of Optionee's services to the Company and its
subsidiaries for reasons other than as provided in subsection (b), (d), (e) or
(f) of this Section 6; provided, however, that the portion of the Option granted
to such Optionee which was exercisable immediately prior to such termination may
be exercised until the earlier of (i) 90 days after his termination of service
or (ii) the date on which such Option terminates or expires in accordance with
the provisions of this Agreement (other than this Section 6);
(d) the termination of Optionee's services to the Company and its
subsidiaries by reason of the Optionee's death, or if the Optionee's services
terminate in the manner described in subsection (c) of this Section 6 and the
Optionee dies within such period for exercise provided for therein; provided,
however, that the portion of the Option exercisable by the Optionee immediately
prior to the Optionee' s death shall be exercisable by the Optionee's executors
or administrators, as provided in Section 10, or by the person to whom the
Option passes (the Optionee's "Beneficiary") under such Optionee's will (or, if
applicable, pursuant to the laws of descent and distribution) until the earlier
of (i) one year after the Optionee's death or (ii) the date on which such Option
terminates or expires in accordance with the provisions of this Agreement (other
than this Section 6);
(e) the termination of Optionee's services to the Company and its
subsidiaries by reason of the Optionee's disability; provided, however, that the
portion of the Option exercisable by the Optionee immediately prior to the
Optionee's disability may be exercised until the earlier of (i) one year after
Optionee's disability or (ii) the date on which such Option terminates or
expires in accordance with the provisions of this Agreement (other than this
Section 6); or
(f) the occurrence of a Change of Control (as defined in the Plan);
provided, however, that the portion of the Option which remains outstanding and
unexercised immediately prior to such Change of Control shall be exercisable
until the earlier of (A) the date described in Section 5 and (B) the later of
(i) the first anniversary of the Change of Control and (ii) the time otherwise
determined pursuant to the foregoing provisions of this Section 6.
To the extent necessary to comply with Rule 16b-3 of the Securities
Exchange Act of 1934, as amended (the "Act") as in effect from time to time or
any successor rule thereafter ("Rule 16b-3"), the provisions of this Section 6
shall not be amended more than once every six months other than to comport with
changes in the Code, the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder.
7. The Option shall be exercised by the Optionee (or by the Optionee's
Beneficiary, as provided in Section 6, the Optionee's Permitted Transferees, as
defined in, and as provided in, Section 9, or the Optionee's executors or
administrators, as provided in Section 10), subject to the provisions of the
Plan and of this Agreement, as to all or part of the shares of Common Stock
covered hereby, as to which the Option shall then be exercisable, by the giving
of written notice of such exercise to the Company at its principal business
office, accompanied by payment of the full purchase price for the shares being
purchased. Payment of such purchase price shall be made (a) by cash or by check
payable to the Company and/or (b) by delivery of unrestricted shares of Common
Stock having a fair market value (determined as of the date the Option is
exercised, but in no event at a price per share less than the par value per
share of the Common Stock delivered) equal to all or part of the purchase price
and, if applicable, of a check payable to the Company for any remaining portion
of the purchase price. Whenever the Optionee is permitted to pay the exercise
price of an Option or taxes relating to the exercise of an Option by delivering
shares of Common Stock, the Optionee may, subject to procedures satisfactory to
the Committee (as defined in the Plan), satisfy such delivery requirement by
presenting proof of beneficial ownership of such shares, in which case the
Company shall treat the Option as exercised without further payment and shall
withhold such number of shares from the shares acquired by the exercise of the
Option (or if the Option is paid in cash, cash in an amount equal to the fair
market value of such shares on the date of exercise). Payment in accordance with
this Section 7 may be satisfied by delivery to the Company of an assignment of
sufficient amount of the proceeds from the sale of shares of Common Stock
acquired upon exercise of the Option to pay for all of the shares of Common
Stock acquired upon such exercise and on authorization to the broker or selling
agent to pay that amount to the Company, which sale shall be made at the
Optionee's direction at 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 Beneficiary, executors or
administrators shall have any of the rights of a stockholder of the Company with
respect to the shares subject to the Option until a certificate or certificates
for such shares shall have been issued upon the exercise of the Option.
9. Except as provided in this Section 9, the Option shall not be
transferable by the Optionee other than to the Optionee's Beneficiary, executors
or administrators by will or the laws of descent and distribution, and during
the Optionee's lifetime shall be exercisable only by the Optionee.
This Option may be transferred with or without consideration by the
Optionee, subject to such rules as the Committee may adopt to preserve the
purposes of the Plan, (i) pursuant to a domestic relations order or (ii) to one
or more of:
(x) the Optionee's spouse, children or grandchildren (including
adopted children, stepchildren and grandchildren)
(collectively, the "Immediate Family");
(y) a trust solely for the benefit of the Optionee and/or his or her
Immediate Family;
(z) a partnership or limited liability company, the partners or
members of which are limited to the Optionee and his or her
Immediate Family; or
(zz) any other person or entity authorized by the Committee.
(each transferee is hereinafter referred to as a "Permitted
Transferee"); provided, however, that the Optionee gives the
Committee advance written notice describing the terms and
conditions of the proposed transfer and the Committee notifies
the Optionee in writing that such a transfer would comply with
the requirements of the Plan, this 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 this 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 this Option,
other than by will or the laws of descent and distribution; (b) Permitted
Transferees shall not be entitled to exercise this transferred Option 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, this
Agreement or otherwise; (d) the events of termination of employment by, or
services to, the Company under Section 6 hereof shall continue to be applied
with respect to the original Optionee, following which the Option shall be
exercisable by the Permitted Transferee only to the extent, and for the periods,
specified in Section 6; and (e) the Optionee shall remain liable for any
withholding taxes required to be withheld upon the exercise of such Option by
the Permitted Transferee.
10. Subject to Section 9, in the event of the Optionee's death, the Option
shall thereafter be exercisable (to the extent otherwise exercisable hereunder)
only by the Optionee's Beneficiary, executors or administrators.
11. The terms and conditions of the Option, including the number of shares
and the class or series of capital stock which may be delivered upon exercise of
the Option and the purchase price per share, are subject to adjustment as
provided in Paragraph 19 of the Plan.
12. The Optionee, by the Optionee's acceptance hereof, represents and
warrants to the Company that the Optionee's purchase of shares of capital stock
upon the exercise hereof shall be for investment and not with a view to
distribution and agrees that the shares of capital stock will not be disposed of
except pursuant to an applicable effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), unless the Company
shall have received an opinion of counsel satisfactory to the Company that such
disposition is exempt from such registration under the Securities Act.
The Optionee agrees that the obligation of the Company to issue shares upon
the exercise of the Option shall also be subject, as conditions precedent, to
compliance with applicable provisions of the Act, state securities or
corporation laws, rules and regulations under any of the foregoing and
applicable requirements of any securities exchange upon which the Company's
securities shall be listed.
The Company may endorse an appropriate legend referring to the foregoing
representations and restrictions upon the certificate or certificates
representing any shares issued or transferred to the Optionee upon the exercise
of the Option.
13. The Option has been granted subject to the terms and conditions of the
Plan, a copy of which has been provided to the Optionee and which the Optionee
acknowledges having received and reviewed. Any conflict between this Agreement
and the Plan shall be decided in favor of the provisions of the Plan. Any
conflict between this Agreement and the terms of a written employment agreement
for the Optionee that has been approved, ratified or confirmed by the Board of
Directors of the Company or the Committee shall be decided in favor of the
provisions of such employment agreement. 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. This grant does not constitute an employment contract. 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 for the length of the vesting
schedule set forth in Section 4 or for any portion thereof.
15. The Optionee may elect to defer the receipt of any or all of the shares
of Common Stock issuable upon the exercise of the Option on the terms and
conditions set forth in Annex A hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
an officer duly authorized thereto as of the ___ day of _________, 20___.
TRIARC COMPANIES, INC.
By:___________________________
Name:
Title:
ACCEPTED AND AGREED TO:
___________________________
Annex A
STOCK OPTION DEFERRALS
This Annex A is attached to, and is made a part of, the Non-Incentive Stock
Option Agreement described in Exhibit 1 attached hereto (the "Stock Option
Agreement"), between the person identified on Exhibit 1 (the "Optionee") and
Triarc Companies, Inc. (the "Company"). The Optionee may elect (the "Deferral
Election"), by completing and signing the Stock Option Deferral Election Form
attached as Exhibit 1 (the "Election Form"), to defer delivery of the shares of
Class A Common Stock of the Company ("Shares") otherwise deliverable upon
exercise of the option granted pursuant to the Stock Option Agreement (the
"Option") to the delivery date(s) specified in the Election Form, subject to the
following rules.
1. Timing. The Deferral Election may only be made for an exercise of the
Option which occurs while the Optionee is employed by the Company or any of
its subsidiaries, and shall apply only to that exercisable portion of the
Option that has not been exercised as of the date the Election Form is
submitted to the Company (the "Election Date"), as specified in the
Election Form. Subject to Section 2 below, the exercise of the portion of
the Option subject to the Deferral Election shall occur on the date
specified in the Election Form (the "Exercise Date") in accordance with the
terms and conditions of the Stock Option Agreement and the Triarc
Companies, Inc. 1993 Equity Participation Plan, the Triarc Companies, Inc.
1998 Equity Participation Plan or the Triarc Companies, Inc. 2002 Equity
Participation Plan, as applicable (the "Plan").
2. Restriction on Exercisability. The portion of the Option subject to the
Deferral Election shall not be exercisable during the period beginning with
the Election Date and ending on the day immediately prior to the six-month
anniversary of the Election Date (or if there is no corresponding date in
the sixth calendar month after the Election Date, the six-month anniversary
shall be deemed to be the first day of the seventh calendar month after the
Election Date); provided, however, that if, prior to such six-month
anniversary, (i) the Optionee's employment with the Company and all of its
subsidiaries terminates for any reason, (ii) there is a "Change of Control"
(as defined in the Plan), or (iii) the Performance Compensation
Subcommittee of the Board of Directors of the Company or the Compensation
Committee of the Board of Directors of the Company (as applicable, the
"Committee") so determines, then the restriction set forth in the preceding
portion of this Section 2 shall be canceled, and the portion of the Option
which had been subject to the Deferral Election shall become exercisable
(to the extent that it would have been otherwise exercisable in the absence
of such restriction).
3. Method of Exercise to Defer. The portion of the Option subject to the
Deferral Election shall be exercised in accordance with the terms of the
Stock Option Agreement; provided that the exercise price must be paid by
the Optionee in Shares which are free and clear at the time of payment of
the exercise price and which are considered "mature" for purposes of
generally accepted accounting principles (i.e., (x) they have been held by
the Optionee for at least six months prior to their use to pay the exercise
price, (y) they have been acquired by the Optionee in other than a
compensatory transaction, or (z) they meet any other requirements for
"mature" shares as may exist on the Exercise Date, as determined by the
Committee). The Optionee may use Shares in payment of the exercise price by
means of attestation to the Company of his ownership of sufficient Shares
in a manner reasonably acceptable to the Committee. Shares actually
delivered to the Company (i.e., Shares for which the attestation mechanism
is not used) must be duly endorsed for transfer to the Company. Shares used
to pay all or part of the exercise price pursuant to this provision will be
credited at their fair market value on the Exercise Date. Subject to any
action required of the Company by any law or regulation and to the
Optionee's payment to the Company of the amount of any required tax or
other withholding as described in Section 8 below, the Company shall, as
soon as practicable after the exercise, return to the Optionee the Shares
previously delivered to satisfy the exercise price (unless such exercise
was accomplished by means of the attestation mechanism described above).
4. Deferral Account. A number of units equal to the number of Shares otherwise
deliverable to the Optionee from the exercise of the portion of the Option
subject to the Deferral Election, less that number of Shares used to
exercise such portion of the Option pursuant to Section 3 hereof, shall be
credited to a "deferral account" on behalf of the Optionee. The Optionee's
deferral account shall be a bookkeeping account on the books and records of
the Company only.
5. Dividend Equivalents. Each unit credited to the Optionee's deferral account
(each representing one Share) shall be credited with an amount equal to the
cash dividends paid by the Company with respect to one Share on and after
the Exercise Date ("Dividend Equivalents"). At the discretion of the
Committee, Dividend Equivalents on any particular unit may be either paid
to the Optionee at the time credited to the deferral account (in which case
they shall no longer appear in the deferral account) or continue to be
credited to the deferral account and paid to the Optionee, along with
interest credited at such times and at a reasonable rate determined by the
Committee, at the same time the Share represented by such unit is delivered
to the Optionee in accordance with Section 6 below.
6. Delivery of Deferred Shares. Subject to any action required of the Company
by any law or regulation and to the Optionee's payment to the Company of
the amount of any required tax or other withholding as described in Section
8 below, and further subject to acceleration as provided in Section 10
below, the Company shall deliver to the Optionee on each "Deferred Delivery
Date" (as defined in the following sentence) a certificate representing a
number of Shares equal to (i) the number of units credited to the
Optionee's deferral account, divided by (ii) the number of Deferred
Delivery Dates indicated in the Election Form, subject to withholding in
accordance with Section 8 below, if applicable. The "Deferred Delivery
Date" shall be the date or dates selected by the Optionee in the Election
Form; provided that if an Optionee elects multiple Deferred Delivery Dates,
each must be an anniversary of the first Deferred Delivery Date. The number
of Shares delivered to the Optionee shall reduce by the same number the
units credited to the Optionee's deferral account. Notwithstanding the
above (but still subject to the exceptions described in the first clause of
the first sentence of this Section 6), the Optionee may, no less than six
months prior to any Deferred Delivery Date and prior to the calendar year
which includes the Deferred Delivery Date, elect to (i) defer the Deferred
Delivery Date from one to three additional whole years, and such elected
date shall thereafter constitute the Deferred Delivery Date for purposes of
this Section 6, and/or (ii) increase the number of Deferred Delivery Dates.
Any election made under the preceding sentence must be communicated to the
Committee in writing prior to the applicable deadline.
7. Rights of Optionee. Following the exercise of the portion of the Option
subject to the Deferral Election and prior to the delivery of any Shares
related thereto on a Deferred Delivery Date, (i) the Optionee shall not be
treated as owner of such Shares, shall not have any rights as a shareholder
as to such Shares, and shall have only a contractual right to receive such
Shares, unsecured by any assets of the Company or its subsidiaries, (ii)
the Optionee's right to receive such Shares may not be transferred by the
Optionee other than by will or the laws of descent and distribution;
provided, however, that such right may be transferred as described in the
Plan and the Stock Option Agreement as if such right were the Option and
(iii) the units credited to the Optionee's deferral account and the
Optionee's right to receive such Shares will be subject to adjustment as
set forth Section 19 of the Plan, relating to stock splits, stock
dividends, stock changes and similar events.
8. Tax Withholding. The Optionee shall be responsible for satisfying any tax
withholding as may be required (i) at the Exercise Date and (ii) at any
Deferred Delivery Date, by delivery of a check to the Company in the amount
due for such withholding; provided, however, that the Committee may, in its
sole discretion, with respect to tax withholding required on a Deferred
Delivery Date, allow the Optionee to satisfy such required withholding (but
no more than such required withholding) by electing to have the necessary
number of Shares withheld by the Company.
9. Administration. A Deferral Election is subject to such additional
administrative rules as the Committee may establish from time to time.
10. Revocation and Acceleration of Deferred Delivery Date. Subject to this
Section 10 and Section 2 hereof, the Optionee's Deferral Election may not
be revoked. The Committee may, in its sole discretion, accelerate the
Deferred Delivery Date with respect to Shares in the event of (i) a
"financial hardship," (ii) the death or disability of the Optionee, or
(iii) the Committee so determines. In addition, the Deferred Delivery Date
shall be accelerated to the time of a Change of Control or, if applicable,
sufficiently prior to the consummation of a Change of Control to allow the
Optionee to participate in the Change of Control transaction in respect of
the Shares represented by the units in his deferral account.
For purposes of the preceding paragraph, a "financial hardship" is defined
as severe financial hardship to the Optionee resulting from a sudden and
unexpected illness or accident of the Optionee or a dependent, loss of the
Optionee's property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Optionee, as determined by the Committee in its sole
discretion. The Deferred Delivery Date may not be accelerated on account of
a financial hardship to the extent that the Optionee's financial hardship
is or may be relieved (i) through reimbursement or compensation by
insurance or otherwise or (ii) by liquidation of the Optionee's assets, to
the extent the liquidation of such assets would not itself cause severe
financial hardship. No distribution on account of financial hardship may be
made prior to the time the Committee approves the distribution.
Notwithstanding anything in this document to the contrary, if the per share
exercise price of the Option exceeds the Fair Market Value (as defined in
the Plan) of the Shares on the date immediately prior to the Exercise Date,
then the Deferred Election shall become void in its entirety, and the
portion of the Option which had been subject to the Deferral Election shall
become exercisable (to the extent that it would have been otherwise
exercisable in the absence of such restriction).
11. Assignability. Other than as provided in Section 7 above, no rights to the
Optionee's deferral account may be assigned or subject to any encumbrance,
pledge, or charge of any nature, except that the Optionee may designate a
beneficiary pursuant to any rules established by the Committee.
12. Claims Procedure. (a) All claims for payments pursuant to a Deferral
Election shall be made in writing and shall be signed by the Optionee.
Claims shall be submitted to the Committee. If the Optionee does not
furnish sufficient information with the claim for the Committee to
determine the validity of the claim, the Committee shall indicate to the
Optionee any additional information which is necessary for the Committee to
determine the validity of the claim. Each claim hereunder shall be acted on
and approved or disapproved by the Committee within a reasonable period of
time, but no later than 90 days following the receipt by the Committee of
the information necessary to process the claim. If the Committee determines
that an extension of time for processing a claim is required, written
notice of the extension shall be furnished to the Optionee prior to the
termination of the initial 90-day period. In no event shall such extension
exceed the period of 90 days from the end of the initial 90-day period. The
extension notice shall indicate the special circumstances requiring the
extension of time and the date on which the Committee expects to render a
decision on the Optionee's claim.
In the event the Committee denies a claim for payment in whole or in part,
the Committee shall notify the Optionee in writing of the denial of the
claim and notify the Optionee of his right to a review of the Committee's
decision. Such notice by the Committee shall also set forth, in a manner
calculated to be understood by the Optionee, the specific reason for such
denial, the specific provisions of this Annex A (or other document) on
which the denial is based, a description of any additional material or
information necessary to perfect the claim and an explanation of the
appeals procedure as set forth in this Section 12. Unless the period of
time for deciding an Optionee's claim is extended by the Committee within
the initial 90-day period, if no action is taken by the Committee on a
Optionee's claim within such initial 90-day period, such claim shall be
deemed to be denied for purposes of the following appeals procedure.
(b) Any Optionee whose claim for benefits is denied in whole or in
part may appeal for a review of the decision by the Committee.
Such appeal must be made within 60 days after the Optionee has
received actual or constructive notice of the denial as provided
above. An appeal must be submitted in writing within such period
and must:
(i) request a review by the Committee of the claim for payment
pursuant to the Deferral Election;
(ii) set forth all of the grounds upon which the Optionee's
request for review is based and any facts in support thereof; and
(iii) set forth any issues or comments which the Optionee
deems pertinent to the appeal.
The Committee shall act upon each appeal within a reasonable period of
time, but no later than 60 days after receipt thereof unless special
circumstances require an extension of the time for processing the
Optionee's appeal. If the Committee determines that an extension of time
for processing the Optionee's appeal is required, written notice of the
extension shall be furnished to the Optionee prior to the expiration of the
initial 60-day period. In no event shall such extension exceed a period of
60 days from the end of the initial 60-day period. The extension notice
shall indicate the special circumstances requiring an extension of time and
the date by which the Committee expects to render a decision.
The Committee shall make a full and fair review of each appeal and any
written materials submitted by the Optionee in connection therewith. The
Committee may require the Optionee to submit such additional facts,
documents or other evidence as the Committee in its discretion deems
necessary or advisable in making its review. The Optionee shall be given
the opportunity to review pertinent documents or materials upon submission
of a written request to the Committee, provided the Committee finds the
requested documents or materials are relevant to the appeal. On the basis
of its review, the Committee shall make an independent determination of the
Optionee's eligibility for payments pursuant to the Deferral Election. The
decision of the Committee on any claim for benefits shall be final and
conclusive upon all parties thereto.
In the event the Committee denies an appeal in whole or in part, it shall
give written notice of the decision to the Optionee, which notice shall set
forth, in a manner calculated to be understood by the Optionee, the
specific reasons for such denial and which shall make specific reference to
the pertinent provisions of this Annex A (or other document) on which the
Committee's decision is based.
(c) Notwithstanding the foregoing, this Section 12 shall only apply
to a claim for payments pursuant to a Deferral Election if the
Committee determines, upon the advice of counsel, that such
application is necessary in order for the Deferral Election to
comply with the Employee Retirement Income Security Act of 1974,
as amended.
This Annex A has been approved by action of the Committee by resolution
duly adopted at a meeting held on November 21, 2002.
EXHIBIT 1
STOCK OPTION DEFERRAL ELECTION FORM
1. Optionee: ____________________________________________ [TYPE NAME]
2. Election Date (date this form is submitted to the Company): _____________,
200___
3. Grant date of Option subject to this Deferral Election: ____________________
4. Exercise Date: ___________________
5. The Option subject to this Deferral Election was granted under the Triarc
Companies, Inc. [CHECK ONE] ____ 1993 ____ 1998 ____ 2002 Equity Participation
Plan.
6. Number of shares subject to the unexercised portion of the Option to which
this Deferral Election relates [CHECK ONE]:
____ All shares
____ _______ shares, being less than all shares
7. Deferred Delivery Date
Subject to the terms of "Annex A" (to which this Deferral Election Form is
attached): [CHECK ONE]
___ I want delivery of my deferred shares and any related dividend
equivalents (and earnings thereon) to commence upon my
termination of employment
___ I want delivery of my deferred shares and any related dividend
equivalents (and earnings thereon) to commence upon a
particular date, which is written here:____________
___ I want delivery of my deferred shares and any related dividend
equivalents (and earnings thereon) to commence upon the
earlier of my termination of employment or a particular date,
which is written here:____________
8. Number of Deferred Delivery Dates [CHECK ONE]:
___ One [this means you will receive 100% of your deferred shares
and any related dividend equivalents (and earnings thereon) on
the Deferred Delivery Date specified in Item 6 above, subject
to applicable withholding]
___ ______ [MUST BE A WHOLE NUMBER MORE THAN ONE] [This means that
you will receive an equal number of deferred shares and the
related dividend equivalents (and earnings thereon, if any) on
the date specified in Item 6 above, and each of the specified
number of anniversaries of that date, subject to applicable
withholding. In order to avoid taxation by New York State if
you are not a resident or domiciliary of New York when you
receive the distribution (or any part of it), you must elect
to receive the distribution in a series of substantially equal
periodic payments, made no less often than annually, over a
period which is not less than 10 years.]
BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS
DEFERRAL ELECTION FORM, AS WELL AS "ANNEX A" TO WHICH IT IS ATTACHED AND TO
WHICH IT IS SUBJECT. PARTICULARLY, YOU UNDERSTAND THAT YOUR ELECTION IS
IRREVOCABLE (OTHER THAN AS SPECIFICALLY STATED IN THE ELECTION FORM), AND THAT
YOU CANNOT EXERCISE THE PORTION OF THE OPTION SUBJECT TO THE ELECTION FOR SIX
MONTHS FOLLOWING THE ELECTION DATE.
TRIARC COMPANIES, INC.
______________________________
Optionee Signature/Date By:_______________________________