-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Lm74+Nf14hK0q3YHKJkCSS2Y01yYL/BS7RdP023GjJLUiisfiBjyzXlanxBA3nyZ ys69oR6DMRtyg1AHDW879A== 0000950142-06-000033.txt : 20060105 0000950142-06-000033.hdr.sgml : 20060105 20060105171214 ACCESSION NUMBER: 0000950142-06-000033 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 15 CONFORMED PERIOD OF REPORT: 20060104 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060105 DATE AS OF CHANGE: 20060105 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-02207 FILM NUMBER: 06513744 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-451-3000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 8-K 1 form8k_122905.txt CURRENT REPORT ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 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): DECEMBER 29, 2005 TRIARC COMPANIES, INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE - -------------------------------------------------------------------------------- (State or other jurisdiction of incorporation) 1-2207 38-0471180 - -------------------------------------------------------------------------------- (Commission File Number) (IRS Employer Identification No.) 280 PARK AVENUE NEW YORK, NY 10017 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (212) 451-3000 NOT APPLICABLE - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (SEE General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ================================================================================ ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT As previously reported, Triarc Companies, Inc. (the "Company") is continuing to explore the feasibility of a possible corporate restructuring. In connection with the foregoing, on December 29, 2005, the Performance Compensation Subcommittee (the "Subcommittee") of the Board of Directors of the Company accelerated the delivery of certain deferred shares of Company common stock and related cash dividends to Nelson Peltz, the Company's Chairman and Chief Executive Officer, and Peter W. May, the Company's President and Chief Operating Officer. The shares and cash dividends were held in a trust as a result of deferral elections previously made by Mssrs. Peltz and May. In connection with the accelerated delivery, the Subcommittee also granted certain new stock option awards to, and entered into certain new agreements with, Messrs. Peltz and May. These actions were taken as tax planning measures by the Company. Specifically, as described in detail below, (i) the Subcommittee accelerated the delivery to Messrs. Peltz and May of shares of Company common stock as to which, in accordance with procedures adopted in November 2002 by the Subcommittee, they had previously deferred receipt (together with the related cash dividends) in connection with their exercise in 2003 and 2004 of stock options; (ii) additional stock options were granted to Messrs. Peltz and May in connection with the withholding of shares of Company common stock to satisfy the minimum statutory withholding taxes relating to this accelerated delivery of shares of Company common stock; (iii) Messrs. Peltz and May exercised certain stock options held by them; (iv) additional stock options were granted to Messrs. Peltz and May on the exercise of (and in consideration of) the options referenced in the preceding clause (iii) (corresponding to the payment of the exercise price and minimum statutory withholding taxes arising in respect of such exercised stock options with shares of Company common stock); and (v) Messrs. Peltz and May each entered into a new agreement with the Company regarding the reduction of certain future compensation that may be due to them (subject to certain maximum amounts) under their employment agreements if such reduction would eliminate certain excise taxes. The Special Committee (the "Special Committee") of the Board of Directors of the Company (which was formed to review and consider related-party issues in connection with the corporate restructuring and certain other matters), participated in the Subcommittee's review of these actions. The transactions with Messrs. Peltz and May involved the following: 1. Pursuant to its authority under the applicable governing documents, the Subcommittee exercised its unilateral right of acceleration and directed the delivery to (i) Mr. Peltz of 1,017,071 shares of Class A common stock of the Company ("Class A Common Stock") and 2,034,132 shares of Class B common stock, Series 1, of the Company ("Class B Common Stock"), together with $1,727,678.37 in related cash dividends, that were being held in a deferral trust established for his benefit in connection with the deferred delivery of shares of Company common stock related to the exercise 2 by Mr. Peltz of certain stock options in 2003 and 2004 and (ii) Mr. May of 678,047 shares of Class A Common Stock and 1,356,088 shares of Class B Common Stock, together with $1,151,785.50 in related cash dividends, that were being held in a deferral trust established for his benefit in connection with the deferred delivery of shares of Company common stock related to the exercise by Mr. May of certain stock options in 2003 and 2004. The assets in the deferral trusts were scheduled to be distributed to Messrs. Peltz and May on January 2, 2008. The Subcommittee exercised its authority under the applicable governing documents and withheld 433,626 shares of Class A Common Stock, 867,253 shares of Class B Common Stock and all of the cash from the distribution to Mr. Peltz, and 322,815 shares of Class A Common Stock, 645,630 shares of Class B Common Stock and all of the cash from the distribution to Mr. May, to satisfy the minimum statutory withholding taxes. 2. The Subcommittee granted new stock options to Messrs. Peltz and May because the withholding of shares of Company common stock from the delivery described in numbered paragraph 1 above put Messrs. Peltz and May at an unintended economic disadvantage relative to future price appreciation in shares of Company common stock. Specifically, it granted to Mr. Peltz under the Company's 2002 Equity Participation Plan ("2002 Plan") options to purchase 433,626 shares of Class A Common Stock and 867,253 shares of Class B Common Stock, and granted to Mr. May under the 2002 Plan options to purchase 322,815 shares of Class A Common Stock and 645,630 shares of Class B Common Stock. These stock options, referred to as "Tranche 1 Options," are exercisable at a price per share equal to the closing prices per share of Class A Common Stock and Class B Common Stock on December 29, 2005 ($16.78 and $14.94 per share, respectively), are fully vested and exercisable at grant, and expire on January 1, 2009. Copies of the option agreements related to these Tranche 1 Options are filed as exhibits 10.1, 10.2, 10.3 and 10.4 hereto and are incorporated herein by reference. 3. Mr. Peltz exercised certain previously granted and vested options held by him to acquire 580,411 shares of Class A Common Stock and 1,160,821 shares of Class B Common Stock, and Mr. May exercised certain previously granted and vested options held by him to acquire 69,188 shares of Class A Common Stock and 138,376 shares of Class B Common Stock. In connection with each such exercise, the Subcommittee exercised its authority under the applicable equity plans to (i) allow Messrs. Peltz and May to pay the exercise price for the options by tendering to the Company shares of Company common stock owned by them for more than six months prior to the exercise and (ii) withhold shares of Company common stock from the option exercises to satisfy minimum statutory withholding taxes. Pursuant to this authority, 409,984 shares of Class A Common Stock 3 and 819,967 shares of Class B Common Stock were withheld from the shares to be delivered to Mr. Peltz, and 47,518 shares of Class A Common Stock and 95,036 shares of Class B Common Stock were withheld from the shares to be delivered to Mr. May. The Company will record a non-cash charge of approximately $17 million for the fiscal year ended January 1, 2006 to reflect a remeasurement of the value of these options under generally accepted accounting principles. 4. The Subcommittee granted additional stock options to Messrs. Peltz and May on the exercise of (and in consideration of) the options described in paragraph (3) above to make up for the fact that the use of shares of Company common stock owned by them to pay the option exercise price, and the withholding of shares of Company common stock to satisfy required tax withholding, put Messrs. Peltz and May at an unintended economic disadvantage relative to future price appreciation in shares of Company common stock. Specifically, it granted to Mr. Peltz under the 2002 Plan options to purchase 409,984 shares of Class A Common Stock and 819,967 shares of Class B Common Stock, and granted to Mr. May under the 2002 Plan options to purchase 47,518 shares of Class A Common Stock and 95,036 shares of Class B Common Stock. These stock options permit Messrs. Peltz and May to purchase the same number of shares of Class A Common Stock and Class B Common Stock that each used to pay the applicable exercise price and tax withholding in connection with this exercise of stock options. These new stock options, referred to as "Tranche 2 Options," were granted with exercise prices equal to the closing prices per share of Class A Common Stock and Class B Common Stock on December 29, 2005 ($16.78 and $14.94 per share, respectively), are fully vested and exercisable at grant, and expire on the same dates and under the same circumstances as the corresponding exercised options. Copies of the option agreements related to these Tranche 2 Options are filed as exhibits 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11 and 10.12 hereto and are incorporated herein by reference. 5. The Company entered into a new agreement with each of Messrs. Peltz and May that provides that if, as described in each of their employment agreements, compensation due either Mr. Peltz or Mr. May would be subject to the golden parachute excise tax under Section 280G of the Internal Revenue Code, Mr. Peltz would agree to forfeit up to $8,000,000 of compensation, and Mr. May would agree to forfeit up to $4,000,000 of compensation, if and solely to the extent any such forfeiture would eliminate the affected individual's liability for the excise tax. Copies of these agreements are filed as exhibits 10.13 and 10.14 hereto and are incorporated herein by reference. 4 The acceleration of the compensation described above will provide the Company with a significant tax benefit by increasing the Company's net operating loss for tax purposes ("NOL") by approximately $100 million. This NOL would be available to offset taxable gain on any disposition (including a spin-off) of Deerfield & Company LLC, the deferred gain on the disposition of the Company's former propane distribution business, taxable earnings from operations or other gains, if any, resulting from the possible corporate restructuring. While the Company is not in active discussions with any potential acquirer and has not retained financial advisors in respect of a potential sale of the Company, if a corporate restructuring were to occur that involved a transaction that would be considered a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, for purposes of Section 280G of the Internal Revenue Code (regarding so-called "golden parachute payments"), certain payments and benefits could become due to Messrs. Peltz and May pursuant to their employment agreements that would be deemed "excess parachute payments" for purposes of Sections 280G and 4999 of the Internal Revenue Code. This would cause (i) a loss of the Company's tax deduction for those payments and in respect of those benefits and (ii) an excise tax payable by Messrs. Peltz and May for which the Company is required pursuant to their employment agreements to indemnify them so that after payment of such excise taxes, Messrs. Peltz and May will be in the same after-tax position as if no excise tax had been imposed (a "gross up"). The actions described in numbered paragraphs (1) through (5) above were designed as part of tax planning efforts by the Company to mitigate against this potential loss of deduction and obligation of the Company to pay excise taxes on a grossed-up basis. 5 ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits EXHIBIT NO. DESCRIPTION ----------- ----------- 10.1 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 433,626 shares of Class A Common Stock. 10.2 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 867,253 shares of Class B Common Stock. 10.3 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 322,815 shares of Class A Common Stock. 10.4 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 645,630 shares of Class B Common Stock. 10.5 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 170,116 shares of Class A Common Stock. 10.6 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 131,411 shares of Class A Common Stock. 10.7 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 108,457 shares of Class A Common Stock. 10.8 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 340,231 shares of Class B Common Stock. 6 10.9 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 262,824 shares of Class B Common Stock. 10.10 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 216,912 shares of Class B Common Stock. 10.11 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 47,518 shares of Class A Common Stock. 10.12 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 95,036 shares of Class B Common Stock. 10.13 Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz. 10.14 Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May. 7 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, Triarc has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: January 5, 2006 TRIARC COMPANIES, INC. By: /s/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer 8 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION ----------- ----------- 10.1 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 433,626 shares of Class A Common Stock. 10.2 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 867,253 shares of Class B Common Stock. 10.3 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 322,815 shares of Class A Common Stock. 10.4 Tranche 1 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 645,630 shares of Class B Common Stock. 10.5 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 170,116 shares of Class A Common Stock. 10.6 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 131,411 shares of Class A Common Stock. 10.7 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 108,457 shares of Class A Common Stock. 10.8 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 340,231 shares of Class B Common Stock. 10.9 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 262,824 shares of Class B Common Stock. 10.10 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz, with respect to options to acquire 216,912 shares of Class B Common Stock. 9 10.11 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 47,518 shares of Class A Common Stock. 10.12 Tranche 2 Stock Option Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May, with respect to options to acquire 95,036 shares of Class B Common Stock. 10.13 Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Nelson Peltz. 10.14 Agreement, dated as of December 29, 2005, between Triarc Companies, Inc. and Peter May. 10 EX-10 2 ex10-1form8k_122905.txt EXHIBIT 10.1 EXHIBIT 10.1 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 433,626 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 Nelson Peltz (the "OPTIONEE") the right and option to purchase 433,626 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 5 EX-10 3 ex10-2form8k_122905.txt EXHIBIT 10.2 EXHIBIT 10.2 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 867,253 Shares of Class B Common Stock, Series 1 TRIARC COMPANIES, INC. (the "COMPANY"), pursuant to the terms of its 2002 Equity Participation Plan (the "PLAN"), hereby irrevocably grants to Nelson Peltz (the "OPTIONEE") the right and option to purchase 867,253 shares of Class B Common Stock, Series 1, 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 $14.94 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 A Common Stock, par value $.10 per share ("CLASS A 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 A 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 A 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 5 EX-10 4 ex10-3form8k_122905.txt EXHIBIT`0.3 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 Peter May (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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Peter May ----------------------------------- Peter May 5 EX-10 5 ex10-4form8k_122905.txt EXHIBIT 10.4 EXHIBIT 10.4 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 645,630 Shares of Class B Common Stock, Series 1 TRIARC COMPANIES, INC. (the "COMPANY"), pursuant to the terms of its 2002 Equity Participation Plan (the "PLAN"), hereby irrevocably grants to Peter May (the "OPTIONEE") the right and option to purchase 645,630 shares of Class B Common Stock, Series 1, 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 $14.94 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 A Common Stock, par value $.10 per share ("CLASS A 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 A 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 A 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Peter May ----------------------------------- Peter May 5 EX-10 6 ex10-5form8k_122905.txt EXHIBIT 10.5 EXHIBIT 10.5 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 170,116 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 Nelson Peltz (the "OPTIONEE") the right and option to purchase 170,116 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. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 6, 2011. 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) [Reserved] (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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 6 EX-10 7 ex10-6form8k_122905.txt EXHIBIT 10.6 EXHIBIT 10.6 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 131,411 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 Nelson Peltz (the "OPTIONEE") the right and option to purchase 131,411 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. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 22, 2009. 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) [Reserved] (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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 6 EX-10 8 ex10-7form8k_122905.txt EXHIBIT 10.7 EXHIBIT 10.7 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 108,457 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 Nelson Peltz (the "OPTIONEE") the right and option to purchase 108,457 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. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 12, 2007. 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) [Reserved] (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 1 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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 6 EX-10 9 ex10-8form8k_122905.txt EXHIBIT 10.8 EXHIBIT 10.8 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 340,231 Shares of Class B Common Stock, Series 1 TRIARC COMPANIES, INC. (the "COMPANY"), pursuant to the terms of its 2002 Equity Participation Plan (the "PLAN"), hereby irrevocably grants to Nelson Peltz (the "OPTIONEE") the right and option to purchase 340,231 shares of Class B Common Stock, Series 1, 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 $14.94 per share. 4. The Option shall be fully vested and exercisable as of the Date of Grant. 5. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 6, 2011. 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) [Reserved] (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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 the Company's Class A Common Stock, par value $.10 per share ("CLASS A 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 A 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 A 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 6 EX-10 10 ex10-9form8k_122905.txt EXHIBIT 10.9 EXHIBIT 10.9 ------------ NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 262,824 Shares of Class B Common Stock, Series 1 TRIARC COMPANIES, INC. (the "COMPANY"), pursuant to the terms of its 2002 Equity Participation Plan (the "PLAN"), hereby irrevocably grants to Nelson Peltz (the "OPTIONEE") the right and option to purchase 262,824 shares of Class B Common Stock, Series 1, 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 $14.94 per share. 4. The Option shall be fully vested and exercisable as of the Date of Grant. 5. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 22, 2009. 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) [Reserved] (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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 the Company's Class A Common Stock, par value $.10 per share ("CLASS A 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 A 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 A 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 6 EX-10 11 ex10-10form8k_122905.txt EXHIBIT 10.10 EXHIBIT 10.10 ------------- NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 216,912 Shares of Class B Common Stock, Series 1 TRIARC COMPANIES, INC. (the "COMPANY"), pursuant to the terms of its 2002 Equity Participation Plan (the "PLAN"), hereby irrevocably grants to Nelson Peltz (the "OPTIONEE") the right and option to purchase 216,912 shares of Class B Common Stock, Series 1, 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 $14.94 per share. 4. The Option shall be fully vested and exercisable as of the Date of Grant. 5. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 12, 2007. 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) [Reserved] (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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 the Company's Class A Common Stock, par value $.10 per share ("CLASS A 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 A 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 A 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 6 EX-10 12 ex10-11form8k_122905.txt EXHIBIT 10.11 EXHIBIT 10.11 ------------- NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 47,518 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 Peter May (the "OPTIONEE") the right and option to purchase 47,518 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. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 22, 2009. 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) [Reserved] (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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Peter May ----------------------------------- Peter May 6 EX-10 13 ex10-12form8k_122905.txt EXHIBIT 10.12 EXHIBIT 10.12 ------------- NON-INCENTIVE STOCK OPTION AGREEMENT Under TRIARC COMPANIES, INC. 2002 EQUITY PARTICIPATION PLAN 95,036 Shares of Class B Common Stock, Series 1 TRIARC COMPANIES, INC. (the "COMPANY"), pursuant to the terms of its 2002 Equity Participation Plan (the "PLAN"), hereby irrevocably grants to Peter May (the "OPTIONEE") the right and option to purchase 95,036 shares of Class B Common Stock, Series 1, 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 $14.94 per share. 4. The Option shall be fully vested and exercisable as of the Date of Grant. 5. Subject to earlier expiration pursuant to Section 6, the unexercised portion of the Option shall automatically and without notice terminate and become null and void at 11:59 p.m. on December 22, 2009. 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) [Reserved] (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. 7. The Option shall be exercised by the Optionee or by the Optionee's executors or administrators or the Optionee's Beneficiary 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 the Company's Class A Common Stock, par value $.10 per share ("CLASS A 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 A 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 A 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 2 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 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 Securities Exchange Act of 1934 (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. 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. 3 (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. 4 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 of the Company or any of its subsidiaries for any period of time. 5 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/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Peter May ----------------------------------- Peter May 6 EX-10 14 ex10-13form8k_122905.txt EXHIBIT 10.13 EXHIBIT 10.13 ------------- AGREEMENT This AGREEMENT (the "AGREEMENT") is made as of December 29, 2005 between TRIARC COMPANIES, INC., a Delaware corporation (the "COMPANY"), and Nelson Peltz ("EXECUTIVE"). 1. Capitalized terms used in this Agreement and not otherwise defined shall have the meaning ascribed to them in the employment agreement made as of May 1, 1999 between the Company and the Executive (the "EMPLOYMENT AGREEMENT")). 2. In the event it is determined in accordance with Section 10 of the Employment Agreement by the Accounting Firm that, but for the terms of this Agreement, any Payment (or if more than one Payment, any Payments) would be subject to the Excise Tax: (a) The Payment or Payments shall be reduced, by the minimum possible amount and in the manner and order set forth in Section 2(c) hereof, so that their value, for purposes of determining Excise Tax exposure, equals $1.00 less than the amount which would be subject to the Excise Tax (the amount of such reduction, a "CUTBACK"). (b) The applicability and amount of any Cutback shall be determined by the Accounting Firm, in accordance with the procedures described in Section 10 of the Employment Agreement; provided that in no event shall any Cutback exceed $8,000,000.00 or in the case of multiple Cutbacks, $8,000,000.00 in the aggregate. (c) In the event that the Accounting Firm determines that a Cutback is (or Cutbacks are) required, the Executive shall have the right to consult with the Accounting Firm and the Company in order to determine the optimal method and order for reduction of the Payments so as to maximize the economic benefits accruing to the Executive in respect of the Payments. The Executive shall submit to the Company the order in which the Payments shall be reduced, and the amount thereof, and the Company shall implement the Cutback (or Cutbacks) in the order and amount selected by the Executive, so long as in the judgment of the Accounting Firm such reduction shall cause all remaining Payments not to be subject to the Excise Tax. 3. If a Cutback or Cutbacks with an individual or aggregate value equaling up to $8,000,000.00 would not be sufficient to avoid the application of the Excise Tax, the Cutback (or Cutbacks) shall not apply, and all Payments otherwise due the Executive shall be made to the Executive, including without limitation any payments due under Section 10 of the Employment Agreement. 4. This Agreement contains the entire understanding of the Company and Executive with respect to the subject matter hereof. 5. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to principles of conflict of laws. 6. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives. 2 IN WITNESS WHEREOF, Executive has executed this Agreement and the Company has caused this Agreement to be signed by duly authorized officer of the Company on the 29th day of December, 2005. TRIARC COMPANIES, INC. By: /s/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Nelson Peltz ----------------------------------- Nelson Peltz 3 EX-10 15 ex10-14form8k_122905.txt EXHIBIT 10.14 EXHIBIT 10.14 ------------- AGREEMENT This AGREEMENT (the "AGREEMENT") is made as of December 29, 2005 between TRIARC COMPANIES, INC., a Delaware corporation (the "COMPANY"), and Peter May ("EXECUTIVE"). 1. Capitalized terms used in this Agreement and not otherwise defined shall have the meaning ascribed to them in the employment agreement made as of May 1, 1999 between the Company and the Executive (the "EMPLOYMENT AGREEMENT")). 2. In the event it is determined in accordance with Section 10 of the Employment Agreement by the Accounting Firm that, but for the terms of this Agreement, any Payment (or if more than one Payment, any Payments) would be subject to the Excise Tax: (a) The Payment or Payments shall be reduced, by the minimum possible amount and in the manner and order set forth in Section 2(c) hereof, so that their value, for purposes of determining Excise Tax exposure, equals $1.00 less than the amount which would be subject to the Excise Tax (the amount of such reduction, a "CUTBACK"). (b) The applicability and amount of any Cutback shall be determined by the Accounting Firm, in accordance with the procedures described in Section 10 of the Employment Agreement; provided that in no event shall any Cutback exceed $4,000,000.00 or in the case of multiple Cutbacks, $4,000,000.00 in the aggregate. (c) In the event that the Accounting Firm determines that a Cutback is (or Cutbacks are) required, the Executive shall have the right to consult with the Accounting Firm and the Company in order to determine the optimal method and order for reduction of the Payments so as to maximize the economic benefits accruing to the Executive in respect of the Payments. The Executive shall submit to the Company the order in which the Payments shall be reduced, and the amount thereof, and the Company shall implement the Cutback (or Cutbacks) in the order and amount selected by the Executive, so long as in the judgment of the Accounting Firm such reduction shall cause all remaining Payments not to be subject to the Excise Tax. 3. If a Cutback or Cutbacks with an individual or aggregate value equaling up to $4,000,000.00 would not be sufficient to avoid the application of the Excise Tax, the Cutback (or Cutbacks) shall not apply, and all Payments otherwise due the Executive shall be made to the Executive, including without limitation any payments due under Section 10 of the Employment Agreement. 4. This Agreement contains the entire understanding of the Company and Executive with respect to the subject matter hereof. 5. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to principles of conflict of laws. 6. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives. 2 IN WITNESS WHEREOF, Executive has executed this Agreement and the Company has caused this Agreement to be signed by duly authorized officer of the Company on the 29th day of December, 2005. TRIARC COMPANIES, INC. By: /s/ Francis T. McCarron ------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ACCEPTED AND AGREED TO: /s/ Peter May ----------------------------------- Peter May 3 -----END PRIVACY-ENHANCED MESSAGE-----