EXHIBIT 10.3
------------
NON-INCENTIVE STOCK OPTION AGREEMENT
Under
TRIARC COMPANIES, INC.
2002 EQUITY PARTICIPATION PLAN
322,815 Shares of Class A Common Stock
TRIARC COMPANIES, INC. (the "COMPANY"), pursuant to the terms of its
2002 Equity Participation Plan (the "PLAN"), hereby irrevocably grants to Xxxxx
Xxx (the "OPTIONEE") the right and option to purchase 322,815 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 (the "CODE").
2. December 29, 2005 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 $16.78 per share.
4. The Option shall be fully vested and exercisable as of the Date
of Grant.
5. The unexercised portion of the Option shall automatically and
without notice terminate and become null and void at 11:59 p.m. on January 1,
2009.
6. The Option shall be exercised by the Optionee (or by the
Optionee's executors or administrators or 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), as provided in Section 9),
subject to the provisions of the Plan and of this Agreement, as to all or part
of the shares of Common Stock covered hereby, 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 the Company's Class B Common
Stock, Series 1, par value $.10 per share ("CLASS B COMMON STOCK"), and/or
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 Class B Common Stock or 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 Class B Common Stock and/or 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. Payment in
accordance with this Section 6 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 Securities Exchange Act of 1934, as amended
(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.
The Optionee may satisfy all or part of any applicable tax withholding
requirements by having shares of Common Stock withheld from the shares of Common
Stock otherwise issuable pursuant to the Option.
7. 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.
8. Except as provided in this Section 8, 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.
2
(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; and (d) the Optionee shall remain liable for any
withholding taxes required to be withheld upon the exercise of such Option by
the Permitted Transferee.
9. Subject to Section 8, 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.
10. The terms and conditions of the Option, including the number of
shares and the class or series of capital stock which may be delivered upon
exercise of the Option and the purchase price per share, are subject to
adjustment as provided in Paragraph 19 of the Plan.
11. 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.
3
12. 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.
13. 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 of the Company or any of its subsidiaries for any period of
time.
4
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by an officer duly authorized thereto as of the 29th day of December, 2005.
TRIARC COMPANIES, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Executive Vice President
and Chief Financial Officer
ACCEPTED AND AGREED TO:
/s/ Xxxxx Xxx
-----------------------------------
Xxxxx Xxx
5
