EXHIBIT 4.4
-----------
FORM OF NON-INCENTIVE STOCK OPTION AGREEMENT
NON-INCENTIVE STOCK OPTION AGREEMENT
Under
TRIARC COMPANIES, INC.
2002 EQUITY PARTICIPATION PLAN
_____ Shares of Common Stock
TRIARC COMPANIES, INC. (the "Company"), pursuant to the terms of its
2002 Equity Participation Plan (the "Plan"), hereby irrevocably grants to
_______ (the "Optionee") the right and option to purchase _______ shares of
Class A Common Stock, par value $.10 per share (the "Common Stock"), of the
Company upon and subject to the following terms and conditions:
1. The Option is not intended to qualify as an incentive stock
option under the provisions of Section 422 of the Internal Revenue Code of 1986,
as amended, or its predecessor (the "Code").
2. __________ is the date of grant of the Option ("Date of
Grant").
3. The purchase price of the shares of Common Stock subject to
the Option shall be $ _________ per share.
4. Subject to the Optionee's continued provision of services to
the Company, the Option shall be exercisable as follows:
(a) One-third of the shares of Common Stock subject to
the Option shall be exercisable after ______________.
(b) One-third of the shares of Common Stock subject to
the Option shall be exercisable after ______________.
(c) One-third of the shares of Common Stock subject to
the Option shall be exercisable after ______________.
Notwithstanding the foregoing, in the event of (i) the termination of
the Optionee's services to the Company as a result of the Optionee's death or
disability, or (ii) the occurrence of a Change of Control (as defined in the
Plan), the Option shall be deemed to be fully (100%) vested and exercisable as
of immediately prior to the Optionee's death or disability or the Change of
Control.
5. The unexercised portion of the Option shall automatically and
without notice terminate and become null and void at the earlier of (a)
expiration of ten (10) years from the Date
2
of Grant and (b) the earliest applicable time specified in Section 6.
6. The unexercised portion of any such Option shall automatically
and without notice terminate and become null and void at the time of the
earliest to occur of the following:
(a) ______________;
(b) the termination of the Optionee's services to the
Company and its subsidiaries if the Optionee's services are terminated for
"cause," that is for "cause" or any like term, as defined in any written
contract between the Company and the Optionee; or if not so defined, (i) on
account of fraud, embezzlement or other unlawful or tortious conduct, whether or
not involving or against the Company or any affiliate, (ii) for violation of a
policy of the Company or any affiliate, (iii) for serious and willful acts or
misconduct detrimental to the business or reputation of the Company or any
affiliate;
(c) the termination of Optionee's services to the Company
and its subsidiaries for reasons other than as provided in subsection (b), (d),
(e) or (f) of this Section 6; provided, however, that the portion of the Option
granted to such Optionee which was exercisable immediately prior to such
termination may be exercised until the earlier of (i) 90 days after his
termination of service or (ii) the date on which such Option terminates or
expires in accordance with the provisions of this Agreement (other than this
Section 6);
(d) the termination of Optionee's services to the Company
and its subsidiaries by reason of the Optionee's death, or if the Optionee's
services terminate in the manner described in subsection (c) of this Section 6
and the Optionee dies within such period for exercise provided for therein;
provided, however, that the portion of the Option exercisable by the Optionee
immediately prior to the Optionee's death shall be exercisable by the Optionee's
executors or administrators, as provided in Section 10, or by the person to whom
the Option passes (the Optionee's "Beneficiary") under such Optionee's will (or,
if applicable, pursuant to the laws of descent and distribution) until the
earlier of (i) one year after the Optionee's death or (ii) the date on which
such Option terminates or expires in accordance with the provisions of this
Agreement (other than this Section 6);
(e) the termination of Optionee's services to the Company
and its subsidiaries by reason of the Optionee's disability; provided, however,
that the portion of the Option exercisable by the Optionee immediately prior to
the Optionee's disability may be exercised until the earlier of (i) one year
after Optionee's disability or (ii) the date on which such Option terminates or
expires in accordance with the provisions of this Agreement (other than this
Section 6); or
(f) the occurrence of a Change of Control (as defined in
the Plan); provided, however, that the portion of the Option which remains
outstanding and unexercised immediately prior to such Change of Control shall be
exercisable until the earlier of (A) the date described in Section 5 and (B) the
later of (i) the first anniversary of the Change of Control and (ii) the time
otherwise determined pursuant to the foregoing provisions of this Section 6.
To the extent necessary to comply with Rule 16b-3 of the Securities
Exchange Act of 1934, as amended (the "Act") as in effect from time to time or
any successor rule thereafter ("Rule 16b-3"), the provisions of this Section 6
shall not be amended more than once every six months other than to comport with
changes in the Code, the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder.
7. The Option shall be exercised by the Optionee (or by the
Optionee's Beneficiary, as provided in Section 6, or by the Optionee's executors
or administrators, 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, as to which the Option shall then be exercisable, by the giving
of written notice of such exercise to the Company at its principal business
office, accompanied by payment of the full purchase price for the shares being
purchased. Payment of such purchase price shall be made (a) by cash or by check
payable to the Company and/or (b) by delivery of unrestricted shares of Common
Stock having a fair market value (determined as of the date the Option is
exercised, but in no event at a price per share less than the par value per
share of the Common Stock delivered) equal to all or part of the purchase price
and, if applicable, of a check payable to the Company for any remaining portion
of the purchase price. Whenever the Optionee is permitted to pay the exercise
price of an Option or taxes relating to the exercise of an Option by delivering
shares of Common Stock, the Optionee may, subject to procedures satisfactory to
the Committee (as defined in the Plan), satisfy such delivery requirement by
presenting proof of beneficial ownership of such shares, in which case the
Company shall treat the Option as exercised without further payment and shall
withhold such number of shares from the shares acquired by the exercise of the
Option (or if the Option is paid in cash, cash in an amount equal to the fair
market value of such shares on the date of exercise). Payment in accordance with
this Section 7 may be satisfied by delivery to the Company of an assignment of
sufficient amount of the proceeds from the sale of shares of Common Stock
acquired upon exercise of the Option to pay for all of the shares of Common
Stock acquired upon such exercise and on authorization to the broker or selling
agent to pay that amount to the Company, which sale shall be made at the
Optionee's direction at he time of exercise, provided that the Committee may
require Optionee to furnish an opinion of counsel acceptable to the Committee to
the effect that such delivery would not result in the Optionee incurring any
liability under Section 16 of the Act and does not require the consent,
clearance or approval of any governmental or regulatory body (including any
securities exchange or similar self-regulatory organization).
The Company shall cause certificates for the shares so purchased to be
delivered to the Optionee or the Optionee's Beneficiary, executors or
administrators, against payment of the purchase price, as soon as practicable
following the Company's receipt of the notice of exercise.
8. Neither the Optionee nor the Optionee's Beneficiary, executors
or administrators shall have any of the rights of a stockholder of the Company
with respect to the shares subject to the Option until a certificate or
certificates for such shares shall have been issued upon the exercise of the
Option.
3
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.
10. In the event of the Optionee's death, the Option shall
thereafter be exercisable (to the extent otherwise exercisable hereunder) only
by the Optionee's Beneficiary, executors or administrators.
11. The terms and conditions of the Option, including the number
of shares and the class or series of capital stock which may be delivered upon
exercise of the Option and the purchase price per share, are subject to
adjustment as provided in Paragraph 19 of the Plan.
12. The Optionee, by the Optionee's acceptance hereof, represents
and warrants to the Company that the Optionee's purchase of shares of capital
stock upon the exercise hereof shall be for investment and not with a view to
distribution and agrees that the shares of capital stock will not be disposed of
except pursuant to an applicable effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), unless the Company
shall have received an opinion of counsel satisfactory to the Company that such
disposition is exempt from such registration under the Securities Act.
The Optionee agrees that the obligation of the Company to issue shares
upon the exercise of the Option shall also be subject, as conditions precedent,
to compliance with applicable provisions of the Act, state securities or
corporation laws, rules and regulations under any of the foregoing and
applicable requirements of any securities exchange upon which the Company's
securities shall be listed.
The Company may endorse an appropriate legend referring to the
foregoing representations and restrictions upon the certificate or certificates
representing any shares issued or transferred to the Optionee upon the exercise
of the Option.
13. The Option has been granted subject to the terms and
conditions of the Plan, a copy of which has been provided to the Optionee and
which the Optionee acknowledges having received and reviewed. Any conflict
between this Agreement and the Plan shall be decided in favor of the provisions
of the Plan. Any conflict between this Agreement and the terms of a written
employment agreement for the Optionee that has been approved, ratified or
confirmed by the Board of Directors of the Company or the Committee shall be
decided in favor of the provisions of such employment agreement. Terms used but
not defined in this Agreement shall have the meanings given to them in the Plan.
This Agreement may not be amended in any manner adverse to the Optionee except
by a written agreement executed by the Optionee and the Company.
14. This grant does not constitute an employment contract. Nothing
herein shall confer upon the Optionee the right to continue to serve as a
director or officer to the Company or any of its subsidiaries for the length of
the vesting schedule set forth in Section 4 or for any portion thereof.
4
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed by an officer duly authorized thereto as of the ___ day of _______,
______.
TRIARC COMPANIES, INC.
By: _______________________________________
Name:
Title:
ACCEPTED AND AGREED TO:
____________________________________________
5