exhibit10-5_031309.htm


    EXHIBIT
10.5

    
 

    WENDY’S/ARBY’S
GROUP, INC.

    AMENDED
AND RESTATED

    2002
EQUITY PARTICIPATION PLAN

     

    (as
amended through February 3, 2009)

    


    1. Purpose. The purpose
of the Amended and Restated 2002 Equity Participation Plan (as amended through
the date hereof, the “Plan”) of Wendy’s/Arby’s Group, Inc. (the “Company”) is to
promote the interests of the Company and its stockholders by (i) securing for
the Company and its stockholders the benefits of the additional incentive
inherent in the ownership of the capital stock of the Company (the “Capital
Stock”) by selected officers, directors (“Directors”) and key employees of, and
consultants to, the Company and its Subsidiaries and Affiliates (as each is
defined in Section 4 hereof) who are important to the success and growth of the
business of the Company and its Subsidiaries and Affiliates and (ii) assisting
the Company to secure and retain the services of such persons. The Plan provides
for granting such persons (a) options (“Options”) for the purchase of shares of
Capital Stock (the “Shares”), (b) tandem stock appreciation rights (“SARs”), (c)
Shares which are both restricted as to transferability and subject to a
substantial risk of forfeiture (“Restricted Shares”) and (d) restricted share
units, each of which is a hypothetical investment equivalent to one Share
(“Restricted Share Units”). The Plan also provides for automatic grants of
Options to non-employee Directors and permits such non-employee Directors to
elect to receive all or a portion of their annual retainer fees and/or board of
directors or committee meeting attendance fees in Shares.

    


    2. Administration. The
Plan shall be administered by a Committee (the “Committee”) consisting of two or
more Directors appointed by the Board of Directors of the Company (the “Board of
Directors”). It is intended, but not required, that the directors appointed to
serve on the Committee shall be “Non-Employee Directors” (within the meaning of
Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended
(the “Act”)), and “outside directors” within the meaning of Section 162(m) of
the Internal Revenue Code of 1986, as amended (the “Code”), to the extent Rule
16b-3 and Section 162(m), respectively, are applicable to the Company and the
Plan; however, the fact that a Committee member shall fail to qualify under
either of the foregoing requirements shall not invalidate any award which is
otherwise validly made under the Plan. The members of the Committee may be
changed at any time and from time to time in the discretion of the Board of
Directors. Subject to the limitations and conditions hereinafter set forth, and
except with respect to automatic grants to non-employee Directors pursuant to
Section 11.1 hereof, the Committee shall have authority to grant Options
hereunder, to determine the number and class of Shares for which each Option
shall be granted and the Option price or prices, to determine any conditions
pertaining to the exercise or to the vesting of each Option, to grant tandem
SARs in connection with any Option either at the time of the Option grant or
thereafter, to make awards of Restricted Shares and/or Restricted Share Units,
to determine the number of Restricted Shares and/or Restricted Share Units to be
granted, and to establish in its discretion the restrictions to which any such
Restricted Shares or Restricted Share Units shall be subject. The Committee
shall have full power to construe and interpret the Plan and any Plan agreement
executed pursuant to the Plan, to establish and amend rules for its
administration, to establish in its discretion terms and conditions applicable
to the exercise of Options and SARs and the grant of Restricted Shares and
Restricted Share Units and to make any other determination and take any other
action that the Committee deems necessary or desirable


    
      
         


      

      
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    for the
administration of the Plan. The determination of the Committee on all matters
relating to the Plan or any Plan agreement shall be conclusive. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any award hereunder.

    


    3. Shares Subject to the
Plan. The Shares to be transferred or sold pursuant to the grant of
Restricted Shares, settlement of Restricted Share Units or the exercise of
Options or SARs granted under the Plan or pursuant to the election by a Director
to receive all or a portion of their annual retainer fees and/or board of
directors or committee meeting attendance fees, if any (“Fees”), in Shares shall
be authorized Shares, and may be issued Shares reacquired by the Company and
held in its treasury or may be authorized but unissued Shares. Subject to the
provisions of Section 23 hereof (relating to adjustments in the number and
classes or series of Capital Stock to be delivered pursuant to the Plan), the
maximum aggregate number of Shares to be granted as Restricted Shares, in
respect of which Restricted Share Units may be granted, or to be delivered on
the exercise of Options or SARs or upon a Director’s election to receive Fees in
Shares shall be 22,400,000 shares of the Company’s Class A Common Stock, par
value $0.10 per share (the “Common Stock”).

    


    If an
Option expires or terminates for any reason during the term of the Plan and
prior to the exercise in full of such Option or the related SAR, if any, or if
Restricted Shares or Restricted Share Units are forfeited as provided in the
grant of such Restricted Shares or Restricted Share Units, the number of Shares
previously subject to but not delivered under such Option, related SAR or grant
of Restricted Shares or Restricted Share Units shall be available to be awarded
thereafter. An Option that terminates upon the exercise of a tandem SAR shall be
deemed to have been exercised at the time of the exercise of such tandem SAR,
and the Shares subject thereto shall not be available for further grants under
the Plan.

    


    4. Eligibility. Options,
SARs, Restricted Shares or Restricted Share Units may be granted from time to
time to selected officers, and subject to the provisions of Section 2 hereof,
Directors (including non-employee Directors) and key employees of, and
consultants to, the Company or any consolidated Subsidiary or Affiliate, each as
defined in this Section 4; provided that a consultant shall be eligible for the
grant of Options, SARs, Restricted Shares and Restricted Share Units only if
such person is a consultant to the Company, a Subsidiary or Affiliate who is
entitled to participate in an “employee benefit plan” within the meaning of 17
CFR ss. 230.405 (which, as of the effective date of the Plan, includes those who
(A) are natural persons and (B) provide bona fide services to the Company or a
Subsidiary or Affiliate of the Company other than in connection with the offer
or sale of securities in a capital-raising transaction, and do not directly or
indirectly promote or maintain a market for the Company’s securities). From time
to time, the Committee shall designate from such eligible persons those who will
be granted Options, SARs, Restricted Shares or Restricted Share Units, and in
connection therewith, the number of Shares to be covered by each grant of
Options, Restricted Shares or Restricted Share Units. In addition, Options shall
be granted automatically to non-employee Directors and non-employee Directors
shall be entitled to receive all or a portion of their Fees in Shares as
provided in Section 11 hereof. Persons granted Options or SARs are referred to
hereinafter as “optionees,” and persons granted Restricted Shares or Restricted
Share Units are referred to hereinafter as “grantees.” Nothing in the Plan, or
in any grant of Options, SARs, Restricted Shares or


    
      
         


      

      
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    Restricted
Share Units pursuant to the Plan, shall confer on any person any right to
continue in the employ or service of the Company or any of its Subsidiaries or
Affiliates, nor in any way interfere with the right of the Company or any of its
Subsidiaries or Affiliates to terminate the person’s employment or service at
any time.

    


    The term
“Subsidiary” shall mean, at the time of reference, any entity organized or
acquired (other than the Company) in an unbroken chain of entities beginning
with the Company if each of the entities (including the Company) other than the
last entity in the unbroken chain owns stock or other ownership interests
possessing 50% or more of the total combined voting power of all classes of
stock or other ownership interests in one of the other entities in such chain.
The term “Affiliate” shall mean any person or entity which, at the time of
reference, directly, or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with, the Company. Notwithstanding
any other provision of the Plan to the contrary, in no event may Restricted
Shares or Restricted Share Units, in each case that are intended to qualify as
“162(m) Performance-Based Awards” (as defined in Section 27), Options and/or
SARs be granted under the Plan to any individual in any one calendar year in an
amount exceeding an aggregate of 3,000,000 shares of Common Stock.

    


    


    PROVISIONS RELATING TO
OPTIONS AND SARs

    


    5. Character of Options.
Options granted hereunder shall not be incentive stock Options as such term is
defined in Section 422 of the Code. Options granted hereunder shall be
“non-qualified” stock options subject to the provisions of Section 83 of the
Code.

    


    6. Stock Option
Agreement. Each Option granted under the Plan, whether or not accompanied
by SARs, shall be evidenced by a written stock option agreement, which shall be
executed by the Company and by the person to whom the Option is granted. The
agreement shall contain such terms and provisions, not inconsistent with the
Plan, as shall be determined by the Committee.

    


    7. Option Exercise
Price. The price per Share to be paid by the optionee on the date an
Option is exercised shall not be less than 100 percent of the fair market value
of one Share on the date the Option is granted. In no event shall the price per
Share to be paid by the optionee on the date an Option is exercised be less than
its par value.

    


    For
purposes of this Plan, the “fair market value” as of any date in respect of any
Shares of Common Stock shall mean either (i) the closing price per share of
Common Stock on such date or (ii) the average of the high and low sales prices
of a share of Common Stock on such date, as determined by the Committee in its
sole discretion. The closing price on any such date shall be (a) as reported on
the composite transactions tape for the principal exchange on which the Common
Stock is listed or admitted to trading (the “Composite Tape”), or if the Common
Stock is not reported on the Composite Tape or if the Composite Tape is not in
use, the last reported sales price regular way on the principal national
securities exchange on which the Common Stock shall be listed or admitted to
trading (which shall be the national securities exchange on which the greatest
number of shares of Common Stock has been traded during the


    
      
         


      

      
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    30
consecutive trading days commencing 45 trading days before such date), or, in
either case, if there is no transaction on any such date, the average of the
closing bid and asked prices regular way on such date, or (b) if the Common
Stock is not listed on any national securities exchange but is quoted in the
Nasdaq National Market (the “Nasdaq”) on a last sale basis, the average between
the high bid price and low ask price reported on such date, or, if there is no
such sale on that date, then on the last preceding date on which a sale was
reported. If on any such date the Common Stock is not listed by or quoted on any
such exchange or the Nasdaq, the fair market value of any Shares of Common Stock
on such date shall be determined by the Committee in its sole discretion. Such
fair market value shall be determined using a reasonable application of a
reasonable valuation method in accordance with the regulations under Section
409A of the Internal Revenue Code.

    


    Except in
connection with a corporate transaction involving the Company (including,
without limitation, any stock dividend, stock split, extraordinary cash
dividend, recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, or exchange of shares), the terms of outstanding awards
may not be amended to reduce the exercise price of outstanding options or SARs
or cancel outstanding options or SARs in exchange for cash, other awards or
options or SARs with an exercise price that is less than the exercise price of
the original options or SARs without stockholder approval.

    


    8. Option Term. The
period after which Options granted under the Plan (other than Options granted
pursuant to Section 11) may not be exercised shall be determined by the
Committee with respect to each Option granted, but may not exceed ten years from
the date on which the Option is granted, subject to the third paragraph of
Section 9 hereof.

    


    9. Exercise of Options.
The time or times at which or during which Options granted under the Plan may be
exercised, and any conditions pertaining to such exercise or to the vesting in
the optionee of the right to exercise Options or SARs, shall be determined by
the Committee in its sole discretion, except as otherwise specifically set forth
herein. Subsequent to the grant of an Option which is not immediately
exercisable in full, the Committee, at any time before complete termination of
such Option, may accelerate or extend the time or times at which such Option and
the related SAR, if any, may be exercised in whole or part; provided, however,
that any such extension shall not extend the time for exercise later than the
original latest expiration date of the Option and/or SAR.

    


    Except as
provided in this paragraph, no Option or SAR granted under the Plan shall be
assignable or otherwise transferable by the optionee, either voluntarily or
involuntarily, except by will or the laws of descent and distribution and an
Option or SAR shall be exercisable during the optionee’s lifetime only by the
optionee. The Committee may in the applicable Option agreement or at any time
thereafter in an amendment to an Option agreement provide that Options granted
hereunder may be transferred with or without consideration by the Optionee,
subject to such rules as the Committee may adopt to preserve the purposes of the
Plan, (i) pursuant to a domestic relations order or (ii) to one or more
of:

    


    (x) the
optionee’s spouse, children or grandchildren (including adopted children,
stepchildren and grandchildren) (collectively, the “Immediate
Family”);


    
      
         


      

      
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    (y) a
trust solely for the benefit of the optionee and/or his or her Immediate
Family;

    


    (z) a
partnership or limited liability company, the partners or members of which are
limited to the optionee and his or her Immediate Family; or

    


    (aa) any
other person or entity authorized by the Committee

    


    (each
transferee is hereinafter referred to as a “Permitted Transferee”); provided,
however, that the optionee gives the Committee advance written notice describing
the terms and conditions of the proposed transfer and the Committee notifies the
optionee in writing that such a transfer would comply with the requirements of
the Plan, any applicable Option agreement and any amendments
thereto.

    


    The terms
and conditions of any Option transferred in accordance with the immediately
preceding sentence shall apply to the Permitted Transferee and any reference in
the Plan or in an Option agreement or any amendment thereto to an optionee or
grantee shall be deemed to refer to the Permitted Transferee, except that (a)
Permitted Transferees shall not be entitled to transfer any Options, other than
by will or the laws of descent and distribution; (b) Permitted Transferees shall
not be entitled to exercise any transferred Options unless there shall be in
effect a registration statement on an appropriate form covering the shares to be
acquired pursuant to the exercise of such Option if the Committee determines
that such a registration statement is necessary or appropriate; (c) the
Committee or the Company shall not be required to provide any notice to a
Permitted Transferee, whether or not such notice is or would otherwise have been
required to be given to the optionee under the Plan or otherwise; and (d) the
events of termination of employment by, or services to, the Company under clause
(b) of the third paragraph of this Section 9 and Section 11.1, as the case may
be, hereof shall continue to be applied with respect to the original optionee,
following which the Options shall be exercisable by the Permitted Transferee
only to the extent, and for the periods, specified in this Section 9 and Section
11.1, as the case may be.

    


    The
unexercised portion of any Option (other than Options granted pursuant to
Section 11) or SAR granted under the Plan shall automatically and without notice
terminate and become null and void at the time of the earliest to occur of the
following:

    


    (a) the
expiration of the period of time determined by the Committee upon the grant of
such Option; provided that such period shall not exceed ten years from the date
on which such Option was granted;

    


    (b) the
termination of the optionee’s employment by, or services to, the Company and its
Subsidiaries or Affiliates if such termination constitutes or is attributable to
a breach by the


    
      
         


      

      
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    optionee
of an employment or consulting agreement with the Company or any of its
Subsidiaries or Affiliates, or if the optionee is discharged or if his or her
services are terminated for cause; or

    


    (c) the
expiration of such period of time or the occurrence of such event as the
Committee in its discretion may provide upon the granting thereof.

    


    The
Committee and the Board of Directors shall have the right to determine what
constitutes cause for discharge or termination of services, whether the optionee
has been discharged or his or her services terminated for cause and the date of
such discharge or termination of services, and such determination of the
Committee or the Board of Directors shall be final and conclusive.

    


    In the
event of the death of an optionee, Options or SARs, if any, exercisable by the
optionee at the time of his or her death may be exercised within one year
thereafter by the person or persons to whom the optionee’s rights under the
Options or SARs, if any, shall pass by will or by the applicable law of descent
and distribution. However, in no event may any Option or SAR be exercised by
anyone after the earlier of (a) the final date upon which the optionee could
have exercised it had the optionee continued in the employment of, or continued
to provide services to, the Company or its Subsidiaries or Affiliates to such
date, or (b) one year after the optionee’s death.

    


    An Option
may be exercised only by a notice in writing complying in all respects with the
applicable Option agreement. Such notice may instruct the Company to deliver
Shares due upon the exercise of the Option to any registered broker or dealer
approved by the Company (an “approved broker”) in lieu of delivery to the
optionee. Such instructions shall designate the account into which the Shares
are to be deposited. The optionee may tender such notice, properly executed by
the optionee, together with the aforementioned delivery instructions, to an
approved broker. The purchase price of the Shares as to which an Option is
exercised shall be paid in cash or by check, except that the Committee may, in
its discretion, allow such payment to be made by surrender of Shares which are
not Restricted Shares subject to the “Transferability Restrictions” set forth in
Section 13 (at their fair market value on the date of exercise); provided,
however, that such Shares are not subject to any pledge or other security
interest and have either been held by the optionee for at least six months,
previously acquired by the optionee on the open market or meet such other
requirements as the Committee may determine necessary in order to avoid an
accounting charge to the earnings of the Company in respect of the Option (such
eligible Shares being referred to herein as “Mature Shares”), or by a
combination of cash, check and Mature Shares.

    


    Payment
in accordance with this Section 9 may be deemed to be satisfied, if and to the
extent provided in the applicable Option agreement, by delivery to the Company
of an assignment of a sufficient amount of the proceeds from the sale of Shares
acquired upon exercise to pay for all of the Shares acquired upon exercise and
an authorization to the broker or selling agent to pay that amount to the
Company, which sale shall be made at the optionee’s direction at the time of
exercise, provided that the Committee may require the optionee to furnish an
opinion of counsel acceptable to the Committee to the effect that such delivery
would not result in the


    
      
         


      

      
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    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).

    


    Wherever
in this Plan or any Option agreement an optionee is permitted to pay the
exercise price of an Option or taxes relating to the exercise of an Option by
delivering Shares, the optionee may, subject to procedures satisfactory to the
Committee, satisfy such delivery requirement by presenting proof of beneficial
ownership of such Shares, in which case the Company shall treat the Option as
exercised without further payment and shall withhold such number of Shares from
the Shares acquired by the exercise of the Option (or if the Option is paid in
cash, cash in an amount equal to the fair market value of such shares on the
date of exercise).

    


    10. Stock Appreciation
Rights. The Committee may in its discretion grant SARs in connection with
any Option, either at the time the Option is granted or at any time thereafter
while the Option remains outstanding, to any person who at that time is eligible
to be granted an Option. The number of SARs granted to a person which shall be
exercisable during any given period of time shall not exceed the number of
Shares which such optionee may purchase upon the exercise of the related Option
or Options during such period of time. Upon the exercise of an Option pursuant
to the Plan, the SARs relating to the Shares covered by such exercise shall
terminate. Upon the exercise of SARs pursuant to the Plan, the related Option to
the extent of an equal number of Shares shall terminate.

    


    Upon an
optionee’s exercise of some or all of such optionee’s SARs, the optionee shall
receive in settlement of such SARs an amount equal to the value of the stock
appreciation for the number of SARs exercised, payable in cash, Shares of the
same class as that subject to the related Option or a combination thereof, as
determined in the sole discretion of the Committee. The stock appreciation for
an SAR is the difference between (i) the fair market value, as determined by the
Committee as set forth in the underlying agreement, of the underlying Share on
the date of the exercise of such SAR and (ii) the Option price specified for the
related Option. At the time of such exercise, the optionee shall have the right
to elect the portion of the amount to be received that shall consist of cash and
the portion that shall consist of Shares which, for purposes of calculating the
number of Shares to be received, shall be valued at their fair market value on
the date of the exercise of such SARs. The Committee in its sole discretion
shall have the right to disapprove an optionee’s election to receive cash in
full or partial settlement of the SARs exercised, and to require the Shares to
be delivered in lieu of cash. If Shares are to be received upon exercise of an
SAR, cash shall be delivered in lieu of any fractional share.

    


    An SAR
shall be exercisable only during the period determined by the Committee, which
period shall be within the period that the related Option is
exercisable.

    


    11. Automatic Grants to
Non-Employee Directors; Elective Purchase of Shares.

    


    11.1
Automatic Grants to
Non-Employee Directors.  Notwithstanding any other provision of
the Plan, but subject to Section 11.3, each Director who is initially elected or
appointed as a Director after the date of the adoption of the Plan by the Board
of Directors and who is not then an employee of the Company, any Subsidiary or
any Affiliate shall be granted on the later of (i)


    
      
         


      

      
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    the date
of the approval of the Plan by the stockholders or (ii) the date of such
Director’s initial election or appointment to the Board of Directors, a
non-qualified Option to purchase 45,000 Shares of Common Stock. On the date of
each annual meeting of stockholders of the Company held after the Plan is
adopted by the Board of Directors at which a Director is reelected, such
Director shall be granted a non-qualified Option to purchase 12,000 Shares of
Common Stock. Each such Option shall have a term of ten years, subject to the
provisions of this Section 11.1 below. Each such Option shall become exercisable
to the extent of one-half thereof on each of the two immediately succeeding
anniversaries of the date of grant, subject to continued service on the Board of
Directors. The price per Share to be paid by the holder of such an Option shall
equal the fair market value of one Share on the date the Option is granted. The
purchase price of the Shares as to which such an Option is exercised shall be
paid in cash, by check, by the delivery of Mature Shares, through the cashless
exercise program described in Section 9, or any combination thereof, at the
Director’s election. Any Director holding Options granted under this Section
11.1 who is a member of the Committee shall not participate in any action of the
Committee with respect to any claim or dispute involving such Director’s
Options. Notwithstanding the foregoing, the provisions of this Section 11.1
shall no longer apply with respect to, and shall not provide a basis for, future
option grants after February 3, 2009.

    


    Subject
to the provisions of the applicable Plan agreement, the unexercised portion of
any such Option shall automatically and without notice terminate and become null
and void at the time of the earliest to occur of the following:

    


    (a) the
expiration of ten years from the date on which such Option was
granted;

    


    (b) if
the optionee’s service is terminated for “cause”, the termination of the
optionee’s service to the Company and its Subsidiaries or Affiliates. For
purposes of this section, “cause” shall mean that the optionee’s service is
terminated (i) on account of fraud, embezzlement or other unlawful or tortious
conduct, whether or not involving or against the Company or any Subsidiary or
Affiliate, (ii) for violation of a policy of the Company or any Subsidiary or
Affiliate, (iii) for serious and willful acts or misconduct detrimental to the
business or reputation of the Company or any Subsidiary or Affiliate or (iv) for
“cause” or any like term as defined in any written contract between the Company
and the optionee;

    


    (c) if
the optionee’s service terminates for reasons other than as provided in
subsection (b) or (d) of this Section 11.1, (i) with respect to the portion of
such optionee’s Option that was not exercisable immediately prior to such
termination, the termination of the optionee’s service to the Company and its
Subsidiaries or Affiliates and (ii) with respect to the portion that was
exercisable immediately prior to such termination, 90 days after the termination
of the optionee’s service to the Company and its Subsidiaries or Affiliates,
subject to subsection (a) of this Section 11.1; and

    


    (d) if
the optionee’s service terminates by reason of his death, or if the optionee’s
service terminates in the manner described in subsection (c) of this Section
11.1 and he dies within such period for exercise provided for therein, (i) with
respect to the portion of such optionee’s Option that was not exercisable
immediately prior to such termination, the death of such optionee and (ii) with
respect to the portion that was exercisable immediately prior


    
      
         


      

      
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    to such
optionee’s death, one year after the optionee’s death (and such portion of the
Option shall be exercisable for the period described in clause (ii) by the
person to whom such Option passes under such optionee’s will (or, if applicable,
pursuant to the laws of descent and distribution)), subject to subsection (a) of
this Section 11.1.

    


    11.2
Elective Purchase of
Shares. In addition to any other benefit to which any Director may be
entitled under the terms of the Plan, a Director shall be permitted to elect to
receive all or any portion of the Fees that otherwise would be payable in cash
to such Director in Shares of Common Stock rather than cash in accordance with
the provisions of this Section 11.2.

    


    Any
Director may elect to receive all or any portion of his or her Fees in Shares of
Common Stock rather than cash by delivering a written election (an “Election
Notice,” the election set forth therein being referred to as the “Election”) to
the Secretary of the Company and such Election shall specify the percent of the
Director’s Fees to be received in Shares of Common Stock. An Election shall
continue in effect until it is revoked by delivery to the Secretary of the
Company of a written revocation notice (a “Revocation”) or modified by delivery
to the Secretary of the Company of a new Election Notice. Any Election or
Revocation under this Section 11.2 shall be effective with respect to Fees that
otherwise would be paid after the later of (x) with respect to an Initial
Election (as defined below), the date of receipt by the Secretary of the Company
of the Election Notice or, if later, the date specified in such Election Notice,
and (y) with respect to any Revocation or any Election, other than an Initial
Election, six months after the date of receipt by the Secretary of the Company
of such Revocation or Election Notice. There shall be no limit on the number of
Elections or Revocations that may be made by a Director. A Director who does not
elect that all or a portion of his Fees be paid in Shares shall receive his Fees
in cash on the date that such Fees are otherwise due. Any Shares payable under
this Section 11.2 shall be issued to the Director on the same date that the Fees
would have been paid in cash. The number of Shares to be issued to a Director
who makes an Election under this Section 11.2 shall be determined by
dividing:

    


    (i) the
amount of the Director’s Fees for which such Director has made an Election under
this Section 11.2, by

    


    (ii) the
average of the fair market value of the Shares of Common Stock for the 20
consecutive trading days immediately preceding the date as of which the Fees
otherwise would be payable. Only full Shares shall be issued pursuant to this
Section. If the formula set forth above would result in a Director receiving any
fractional Share, then, in lieu of such fractional Share, the Director shall be
paid cash.

    


    For
purposes of this Section 11.2, an “Initial Election” means an Election received
by the Secretary of the Company from a Director on a date not later than the
later of (a) ten days following approval of the Plan by the stockholders, and
(b) ten days after a Director is first elected a director of the Company;
provided, however, that with respect to Directors who were participants in the
Triarc Companies, Inc. 1993 Equity Participation Plan (the “1993 Plan”) or the
Triarc Companies, Inc. 1998 Equity Participation Plan (the “1998 Plan”), the
most recent outstanding election under the 1993 Plan or the 1998 Plan, if any,
shall be deemed to continue


    
      
         


      

      
        - 9 -

        
          

        

      

      
         


      

    


    under
this Plan as an “Initial Election” and shall continue to be effective so long as
no new Election Notice is received within ten days following approval of the
Plan by the stockholders.

    


    11.3.
Effectiveness of
Section 11. Notwithstanding anything in this Plan to the contrary,
Section 11.1 and Section 11.2 shall become effective only when, as and to the
extent that Section 11.1 and 11.2 of the 1998 Plan, respectively, become
ineffective due to (a) there being insufficient shares of Common Stock available
under the 1998 Plan, (b) the expiration of the 1998 Plan or (c) any other
reason.

    


    


    PROVISIONS RELATING TO
RESTRICTED SHARES

    


    12. Granting of Restricted
Shares. The Committee may grant Restricted Shares to eligible persons at
any time. In granting Restricted Shares (and, as further described in Section 18
below, Restricted Share Units), the Committee shall determine in its sole
discretion the period or periods during which the restrictions on
transferability applicable to such Shares will be in force (the “Restricted
Period”). The Restricted Period may be the same for all such Shares granted at a
particular time or to any one grantee or may be different with respect to
different grantees or with respect to various of the Shares granted to the same
grantee, all as determined by the Committee in its sole discretion.

    


    Each
grant of Restricted Shares under the Plan shall be evidenced by an agreement
which shall be executed by the Company and by the person to whom the Restricted
Shares are granted. The agreement shall contain such terms and provisions, not
inconsistent with the Plan, as shall be determined by the
Committee.

    


    13. Restrictions on
Transferability. During the Restricted Period applicable to each grant of
Restricted Shares (and as further described in Section 19 below, Restricted
Share Units), such Shares (or Restricted Share Units, as the case may be) may
not be sold, assigned, transferred or otherwise disposed of, or mortgaged,
pledged or otherwise encumbered. Furthermore, a grantee’s eventual right, if
any, to such Shares (or Restricted Share Units, as the case may be) may not be
assigned or transferred except by will or by the laws of descent and
distribution. The restrictions on the transferability of Restricted Shares (or
Restricted Share Units, as applicable) imposed by this section are referred to
in this Plan as the “Transferability Restrictions.”

    


    14. Determination of Vesting
Restrictions. With respect to each grant of Restricted Shares (and, as
further described in Section 20 below, Restricted Share Units), the Committee
shall determine in its sole discretion the restrictions on vesting which will
apply to the Shares for the Restricted Period, which restrictions as initially
determined and as they may be modified pursuant to the Plan are referred to
hereinafter as the “Vesting Restrictions.” By way of illustration but not by way
of limitation, any such determination of Vesting Restrictions by the Committee
may provide (a) that the grantee will not be entitled to any such Shares unless
he or she is still employed by, or providing services to, the Company or its
Subsidiaries or Affiliates at the end of the Restricted Period; (b) that the
grantee will become vested in such Shares according to such schedule as the
Committee may determine; (c) that the grantee will become vested in such Shares
at the end of or during the Restricted Period based upon the achievement (in
such


    
      
         


      

      
        - 10 -

        
          

        

      

      
         


      

    


    manner as
the Committee may determine) of such performance standards as the Committee may
determine; (d) that the grantee will become vested in such Shares in any
combination of the foregoing or under such other terms and conditions as the
Committee in its sole discretion may determine; and (e) how any such Vesting
Restrictions will be applied, modified or accelerated in the case of the
grantee’s death, total and permanent disability (as determined by the
Committee), retirement or under any other circumstances.

    


    The
performance standards, if any, set by the Committee for any grantee of
Restricted Shares or Restricted Share Units, as applicable, may be individual
performance standards applicable to the grantee, may be performance standards
for the Company or the division, business unit or Subsidiary by which the
grantee is employed or to which the grantee is providing services, may be
performance standards set for the grantee under any other plan providing for
incentive compensation for the grantee, or may be any combination of such
standards. Performance standards set at the time of the grant of any Restricted
Shares or Restricted Share Units may be revised at any time prior to the
beginning of the last year of the applicable Restricted Period, but only to take
into account significant changes in circumstances as determined by the Committee
in its sole discretion.

    


    If the
Committee deems the Vesting Restrictions inappropriate for any grantee, it may
approve the award and delivery to such grantee of all or any portion of the
Restricted Shares then held in escrow pursuant to Section 15. Any Restricted
Shares so awarded and delivered to a grantee shall be delivered free and clear
of the Transferability Restrictions.

    


    15. Manner of Holding and
Delivering Restricted Shares. Each certificate issued for Restricted
Shares granted hereunder will be registered in the name of the grantee, will
contain such legend(s) as the Committee shall determine appropriate, if any, and
will be deposited with the Company or its designee in escrow, accompanied by a
stock power executed in blank by the grantee covering such Shares. The
certificates for such Shares will remain in escrow until the earlier of the end
of the applicable Restricted Period, or, if the Committee has provided for
earlier termination of the Transferability Restrictions following a grantee’s
death, total and permanent disability, retirement or earlier vesting of such
Shares, such earlier termination of the Transferability Restrictions. At
whichever time is applicable, the certificates representing the number of such
Shares to which the grantee is then entitled will be released from escrow and
delivered to the grantee free and clear of the Transferability Restrictions,
provided that in the case of a grantee who is not entitled to receive the full
number of such Shares evidenced by the certificates then being released from
escrow because of the application of the Vesting Restrictions, such certificates
will be returned to the Company and canceled, and a new certificate representing
the Shares, if any, to which the grantee is entitled pursuant to the Vesting
Restrictions, will be issued and delivered to the grantee, free and clear of the
Transferability Restrictions (and, if applicable, a new certificate will also be
issued back into escrow, accompanied by a new stock power executed in blank by
the grantee, covering the Shares to which the grantee is not yet entitled due to
the application of the Vesting Restrictions).

    


    16. Transfer in the Event of
Death, Disability or Retirement. Notwithstanding a grantee’s death, total
and permanent disability or retirement, the certificates for his or her
Restricted Shares will remain in escrow and the Transferability Restrictions
will continue to apply to such


    
      
         


      

      
        - 11 -

        
          

        

      

      
         


      

    


    Shares
unless the Committee determines otherwise. Upon the release of such Shares from
escrow and the termination of the Transferability Restrictions, either upon any
such determination by the Committee or at the end of the applicable Restricted
Period, as the case may be, the portion of such grantee’s Restricted Shares to
which he or she is entitled, determined pursuant to his or her applicable
Vesting Restrictions, will be awarded and delivered to the grantee or to the
person or persons to whom the grantee’s rights, if any, to the Shares shall pass
by will or by the applicable law of descent and distribution, as the case may
be. However, the Committee may, in its sole discretion, award and deliver all or
any greater portion of the Restricted Shares to any such grantee or to such
person or persons.

    


    17. Limitations on Obligation to
Deliver Shares. The Company shall not be obligated to deliver any
Restricted Shares free and clear of the Transferability Restrictions until the
Company has satisfied itself that such delivery complies with all laws and
regulations by which the Company is bound.

    


    


    PROVISIONS RELATING TO
RESTRICTED SHARE UNITS

    


    18. Award of Restricted Share
Units. The Committee may grant Restricted Share Units to eligible persons
at any time. In granting Restricted Share Units, the Committee shall determine
in its sole discretion the Restricted Period. The Restricted Period may be the
same for all such Restricted Share Units granted at a particular time or to any
one grantee or may be different with respect to different grantees or with
respect to various of the Restricted Share Units granted to the same grantee,
all as determined by the Committee in its sole discretion.

    


    Each
grant of Restricted Share Units under the Plan shall be evidenced by an
agreement which shall be executed by the Company and the grantee. The agreement
shall contain such terms and provisions, not inconsistent with the Plan, as
shall be determined by the Committee. No Shares shall be issued at the time a
Restricted Share Unit is granted, and the Company will not be required to set
aside a fund for the payment of any such grant.

    


    At the
discretion of the Committee, each Restricted Share Unit (representing one Share)
may be credited with cash and stock dividends paid by the Company in respect of
one Share (“Dividend Equivalents”). At the discretion of the Committee, Dividend
Equivalents may be either currently paid to the grantee or withheld by the
Company for the grantee’s account, and interest may, at the sole discretion of
the Committee, be credited on the amount of cash Dividend Equivalents withheld
at a rate and subject to such terms as determined by the Committee. Dividend
Equivalents credited to a grantee’s account and attributable to any particular
Restricted Share Unit (and interest thereon, if applicable) shall be distributed
to the grantee upon settlement of such Restricted Share Unit and, if such
Restricted Share Unit is forfeited, the grantee shall have no right to such
Dividends Equivalents (or interest thereon, if applicable).

    


    19. Restrictions on
Transferability. During the Restricted Period applicable to each grant of
Restricted Share Units, such units shall be subject to the Transferability
Restrictions, as described in Section 13 of the Plan.


    
      
         


      

      
        - 12 -

        
          

        

      

      
         


      

    


          20. Determination of Vesting
Restrictions. With respect to each grant of Restricted Share Units, the
Committee shall determine in its sole discretion the Vesting Restrictions, as
described in Section 14 of the Plan. To the extent Restricted Share Units are
forfeited, all rights of the grantee to such Restricted Share Units shall
terminate without further obligation on the part of the Company.

    


    If the
Committee deems the Vesting Restrictions inappropriate for any grantee, it may
approve the settlement of all or any portion of the Restricted Share Units then
held in escrow pursuant to Section 21.

    


    21. Settlement of Restricted
Share Units. Upon the expiration of the Restricted Period and the lapse
of the Vesting Restrictions, if any, with respect to any outstanding Restricted
Share Units, the Company shall deliver to the grantee, or his beneficiary,
without charge, one Share for each such outstanding Restricted Share Unit
(“Vested Unit”) and cash equal to any Dividend Equivalents credited with respect
to each such Vested Unit in accordance with Section 18 hereof and the interest
thereon, if any; provided, however, that, if explicitly provided in the
applicable agreement, the Committee may, in its sole discretion, elect to pay
cash or part cash and part Shares in lieu of delivering only Shares for Vested
Units. If a cash payment is made in lieu of delivering Shares, the amount of
such payment shall be equal to the fair market value of the Shares as of the
date on which the Restricted Period lapsed with respect to such Vested Unit. Any
Shares delivered in settlement of Restricted Share Units shall be delivered free
and clear of the Transferability Restrictions.

    


    


    GENERAL
PROVISIONS

    


    22. Stockholder Rights.
Except for the Transferability Restrictions, a grantee of Restricted Shares
shall have the rights of a holder of the Shares, including the right to receive
dividends paid on such Shares and the right to vote such Shares at meetings of
stockholders of the Company; provided that the Committee may provide at the time
of any grant of Restricted Shares that cash dividends and stock dividends with
respect to the Restricted Shares may be withheld by the Company for the
grantee’s account, and interest may be credited on the amount of cash dividends
withheld at a rate and subject to such terms as determined by the Committee. The
cash dividends or stock dividends so withheld by the Company and attributable to
any particular Restricted Share (and interest thereon, if applicable) shall be
distributed to the grantee upon the release of restrictions on such Restricted
Share and, if such Restricted Share is forfeited, the grantee shall have no
right to such cash dividends or stock dividends. No optionee shall have any of
the rights of a stockholder with respect to any Shares unless and until he or
she has exercised his or her Option with respect to such Shares and has paid the
full purchase price therefor. No grantee of a Restricted Share Unit shall have
any of the rights of a stockholder with respect to any Shares unless and until
his or her Restricted Share Unit has been settled by the Company in
Shares.

    


    23. Changes in Shares. In
the event of (i) any split, reverse split, combination of shares,
reclassification, recapitalization or similar event (including, without
limitation, any spin-off of a Subsidiary) which involves, affects or is made
with regard to any class or series of Capital Stock


    
      
         


      

      
        - 13 -

        
          

        

      

      
         


      

    


    which may
be delivered pursuant to the Plan (“Plan Shares”), (ii) any dividend or
distribution on Plan Shares payable in stock, or extraordinary dividend payable
in cash, or (iii) a merger, consolidation or other reorganization as a result of
which Plan Shares shall be increased, reduced or otherwise changed or affected,
then in each such event the Committee shall, to the extent it deems it to be
consistent with such event and necessary or equitable to carry out the purposes
of the Plan, appropriately adjust (a) the maximum number of shares of Capital
Stock and the classes or series of such Capital Stock which may be delivered
pursuant to the Plan, (b) the number of shares of Capital Stock and the classes
or series of Capital Stock subject to outstanding Options, SARs, Restricted
Share Units or grants of Restricted Shares, (c) the Option price per share of
all Capital Stock subject to outstanding Options, (d) any performance based
Vesting Restrictions in any Plan agreement that are based on stock price and (e)
any other provisions of the Plan; provided, however, that (I) any adjustments
made in accordance with clauses (b) and (c) shall make any such outstanding
Option or SAR, as nearly as practicable, equivalent to such Option or SAR, as
the case may be, immediately prior to such change and (II) no such adjustment
shall give any optionee any additional benefits under any outstanding Option.
Further, with respect to awards intended to qualify as “performance-based
compensation” under Section 162(m) of the Code, such adjustments or
substitutions shall be made only to the extent that the Committee determines
that such adjustments or substitutions may be made without causing such awards
to fail to qualify as “performance-based compensation” for purposes of Section
162(m) of the Code.

    


    24. Reorganization. In
the event that the Company is merged or consolidated with another corporation,
or in the event that all or substantially all of the assets of the Company are
acquired by another corporation, or in the event of a reorganization or
liquidation of the Company (each such event being hereinafter referred to as a
“Reorganization Event”) or in the event that the Board of Directors shall
propose that the Company enter into a Reorganization Event, then the Committee
may in its discretion take any or all of the following actions: (i) by written
notice to each optionee, provide that his or her Options and/or SARs will be
terminated or repurchased by the Company unless exercised within 30 days (or
such longer period as the Committee shall determine in its sole discretion)
after the date of such notice (without acceleration of the exercisability of
such Options); and (ii) advance the date or dates upon which any or all
outstanding Options shall be exercisable or the Vesting Restrictions or
Restricted Period applicable to any Restricted Shares or Restricted Share Units,
as applicable, shall lapse.

    


    Whenever
deemed appropriate by the Committee, any action referred to in the preceding
paragraph may be made conditional upon the consummation of the applicable
Reorganization Event. The provisions of this Section 24 shall apply
notwithstanding any other provision of the Plan.

    


    25. Change of Control.
Notwithstanding anything in the Plan to the contrary, upon (i) the acquisition
by any person of 50% or more of the combined voting power of the Company’s
outstanding securities entitled to vote generally in the election of directors,
or (ii) a majority of the directors of the Company being individuals who are not
nominated by the Board of Directors (a “Change of Control”), then (a) any
outstanding Options granted under the Plan shall be fully and immediately
exercisable, (b) any Vesting Restrictions applicable to any Restricted Shares
shall lapse and such Restricted Shares shall be delivered free and clear of all
Transferability


    
      
         


      

      
        - 14 -

        
          

        

      

      
         


      

    


    Restrictions
and (c) any Restricted Period and Vesting Restrictions applicable to any
Restricted Share Units shall lapse and such Restricted Share Units (together
with any dividends or Dividend Equivalents, and any interest thereon, being held
by the Company) shall be settled in accordance with Section 21 hereof. The
acquisition of any portion of the combined voting power of the Company by Nelson
Peltz or Peter May or by any person affiliated with such persons (or the
acquisition or disposition by any person or persons who receive any award under
Section 11 hereof) shall in no event constitute a Change of
Control.

    


    26. Withholding Taxes.
Whenever under the Plan Shares are to be delivered pursuant to an award, the
Committee may require as a condition of delivery that the optionee or grantee
remit an amount sufficient to satisfy all federal, state and other governmental
holding tax requirements related thereto. Whenever cash is to be paid under the
Plan (whether upon the exercise of an SAR, payment of dividends or Dividend
Equivalents (and interest thereon, if any), settlement of a Restricted Share
Unit or otherwise), the Company may, as a condition of its payment, deduct
therefrom, or from any salary or other payments due to the optionee or grantee,
an amount sufficient to satisfy all federal, state and other governmental
withholding tax requirements related thereto or to the delivery of any Shares
under the Plan. Notwithstanding any provision of the Plan to the contrary, in
connection with the transfer of an Option to a Permitted Transferee pursuant to
Section 9 of the Plan, the optionee shall remain liable for any withholding
taxes required to be withheld upon the exercise of such Option by the Permitted
Transferee.

    


    Without
limiting the generality of the foregoing, (i) an optionee or grantee may elect
to satisfy all or part of the foregoing withholding requirements by delivery of
Mature Shares having a fair market value (determined as of the date of such
delivery by the optionee or grantee) equal to all or part of the amount to be so
withheld, provided that the Committee may require, as a condition of accepting
any such delivery, the optionee or grantee to furnish an opinion of counsel
acceptable to the Committee to the effect that such delivery would not result in
the optionee or grantee incurring any liability under Section 16(b) of the Act,
and (ii) the Committee may permit any such delivery to be made by withholding
Shares from the Shares otherwise issuable pursuant to the award giving rise to
the tax withholding obligation (in which event the date of delivery shall be
deemed the date such award was exercised, delivered or settled).

    


    27. 162(m) Performance-Based
Awards. The Committee may determine that an award of Options, SARs,
Restricted Shares or Restricted Share Units that would not otherwise qualify as
“performance-based compensation” under Section 162(m) of the Code shall be made
to so qualify by the implementation of additional vesting conditions based on
the attainment of performance standards in accordance with the rules set forth
below. Such an award is referred to hereunder as a “162(m) Performance-Based
Award.” The performance standards applicable to a 162(m) Performance-Based Award
will be based on objective, quantifiable measures for the Company as a whole, or
the operating units of the Company, with respect to a period established by the
Committee (a “Performance Period”) and may include, and will be limited to, one
or more of the following:

    


    
      	
               
      

            	
              1.

            	
              earnings
      per share;

            


    

    


    
      	
               
      

            	
              2.

            	
              market
      share;

            


    


    
      
         


      

      
        - 15 -

        
          

        

      

      
         


      

    


    


    
      	
               
      

            	
              3.

            	
              margins
      (limited to gross margin, “Adjusted EBITDA” (as defined below) margin, and
      Adjusted EBITDA (as defined below, but excluding clause (1) thereof)
      margin);

            


    

    


    
      	
               
      

            	
              4.

            	
              productivity
      improvement;

            


    

    


    
      	
               
      

            	
              5.

            	
              costs
      or expenses;

            


    

    


    
      	
               
      

            	
              6.

            	
              successful
      completion of acquisitions, dispositions, recapitalizations, financings or
      refinancings;

            


    

    


    
      	
               
      

            	
              7.

            	
              total
      return on investment portfolio;

            


    

    


    
      	
               
      

            	
              8.

            	
              pre-tax
      net realized capital gains;

            


    

    


    
      	
               
      

            	
              9.

            	
              stock
      price;

            


    

    


    
      	
               
      

            	
              10.

            	
              net
      investment income;

            


    

    


    
      	
               
      

            	
              11.

            	
              consolidated
      net income, plus (without duplication and only to the extent such amount
      was deducted in calculating such consolidated net income) interest
      expense, income taxes, depreciation expense and amortization expense;
      or

            


    

    


    
      	
               
      

            	
              12.

            	
              aggregate
      consolidated net income for the applicable fiscal year determined in
      accordance with United States generally accepted accounting principles as
      in effect from time to time (“GAAP”), applied on a basis consistent with
      past practice, modified as follows (as so modified, “Modified
      EBITDA”):

            


    

    


    plus
(without duplication and only to the extent such amount was deducted in
calculating such consolidated net income) the following items on a consolidated
basis: (a) interest expense; (b) income taxes; (c) depreciation expense; and (d)
amortization expense;

    


    minus
(without duplication and only to the extent such amount was included in
calculating such consolidated net income) the following items on a consolidated
basis: (e) interest income; and (f) other income not included in operating
profit under GAAP;

    


    and
further adjusted to exclude the impact of:

    


    (i)
Annual Operating Plan net expense variances attributable to the financing of new
units (opened during


    
      
         


      

      
        - 16 -

        
          

        

      

      
         


      

    


    the
applicable fiscal year) through capital leases instead of operating leases as
contemplated by the Annual Operating Plan, provided that (A) no adjustment under
this clause (i) shall be made in respect of such new units in excess of the
total number of new units contemplated by the Annual Operating Plan, (B) no
adjustment under this clause (i) shall be made in respect of (1) new units
financed through capital leases, other than such new units in excess of the
total number of new units contemplated by the Annual Operating Plan to be
financed through capital leases or (2) new units financed through operating
leases, other than such new units in excess of the total number of new units
contemplated by the Annual Operating Plan to be financed through operating
leases;

    


    (ii)
acquisitions and dispositions, by (A) disregarding for any portion of the fiscal
year in which any assets are acquired (and any later fiscal years) any portion
of actual Modified EBITDA attributable to any such acquired assets and (B)
reducing the applicable Performance Goal and Cumulative Performance Goal for the
fiscal year in which any assets are disposed (and any later fiscal years) by the
projected amount of Modified EBITDA attributable to any such disposed assets for
the portion of the fiscal year of disposition (and any later fiscal years) that
was reflected in such Performance Goal and Cumulative Performance
Goal;

    


    (iii) all
items of gain, loss or expense determined to be extraordinary or unusual in
nature or infrequent in occurrence, as determined in accordance with standards
established by Opinion No. 30 of the Accounting Principles Board and any
amendment, restatement, modification, supplement or successor thereto (“APB
Opinion No. 30”); and

    


    (iv) all
items of expense related to equity based compensation determined in accordance
with the standards established by Statement of Financial Accounting Standards
No.123(R), and any amendment, modification or successor thereto.

    


    For each
Performance Period, the Committee will, on or before the date as may be required
in order for a 162(m) Performance-Based Award to qualify as “performance-based
compensation” for purposes of Section 162(m) of the Code (the “Performance Goals
Date”), establish (a) the performance standards and (b) if more than one
performance standard is established, the weighting of the


    
      
         


      

      
        - 17 -

        
          

        

      

      
         


      

    


    performance
standards. The Committee may at any time prior to the Performance Goals Date for
a Performance Period or, subject to the next paragraph, at any time thereafter
in its sole and absolute discretion, adjust or modify the calculation of a
performance standard for such period in order to prevent the dilution or
enlargement of the rights of optionees and/or grantees (X) in the event or in
anticipation of any unusual or extraordinary corporate item, transaction, event
or development; (Y) in recognition or in anticipation of any other unusual or
nonrecurring events affecting the Company, or the financial statements of the
Company, or in response to or in anticipation of changes in applicable laws,
regulations, accounting principles or business conditions; and (Z) in view of
the Committee’s assessment of the business strategy of the Company, performance
of comparable organizations, economic and business conditions, and any other
circumstances deemed relevant.

    


    The
Committee may exercise such discretion set forth in the preceding paragraph to
the extent the exercise of such authority after the Performance Goals Date would
not cause the 162(m) Performance-Based Award to fail to qualify as
“performance-based compensation” under Section 162(m) of the Code. If such
discretion would cause such 162(m) Performance-Based Award to fail to qualify as
performance-based compensation, then such authority shall only be exercised with
respect to those optionees or grantees who are determined by the Committee to be
persons not subject to Section 162(m) of the Code.

    


    On or
before the Performance Goals Date as to each applicable Performance Period, the
Committee shall establish a written schedule of the amount of Shares subject to
the 162(m) Performance-Based Award that will vest if the performance standards
are satisfied. As soon as practicable following the end of such the applicable
Performance Period, the Committee will certify in writing the attainment of the
performance standards established for such period and will calculate the number
of Shares subject to the 162(m) Performance-Based Award, if any, that will vest
pursuant to the schedule previously established by the Committee.

    


    Notwithstanding
any provision herein to the contrary, no 162(m) Performance-Based Award will
vest in respect of a period in which performance fails to attain or exceed the
minimum level for any of the performance standards.

    


    For
purposes of this Section 27, “Adjusted EBITDA” for any referenced period shall
mean the Company’s (or with respect to an acquired company, the acquired
company’s) operating income for such period, as reflected on its consolidated
audited financial statements, adjusted to exclude the impact of:

    


    (1)
depreciation and amortization expenses;

    


    (2) any
amounts accrued pursuant to management bonus plans and related employer payroll
taxes for the fiscal year;

    


    (3) any
discretionary or matching contributions to the Company’s 401(k) Plan and other
deferred compensation plans for the applicable fiscal year;


    
      
         


      

      
        - 18 -

        
          

        

      

      
         


      

    


    


    (4) all
items of gain, loss or expense determined to be extraordinary or unusual in
nature or infrequent in occurrence or related to the disposal of a segment of a
business or related to a change in accounting principles, all as determined in
accordance with standards established by APB Opinion No. 30;

    


    (5) all
items of gain, loss or expense related to restructuring charges of subsidiaries
whose operations are not included in operating income for the fiscal
year;

    


    (6) all
items of gain, loss or expense related to discontinued operations that do not
qualify as a segment of a business as defined under APB Opinion No.
30;

    


    (7) any
profit or loss attributable to the business operations of any entity acquired by
the Company or any consolidated subsidiary during the applicable
period;

    


    (8) the
reduction in carrying value of long-lived assets, in accordance with FASB
Pronouncement No. 121 and/or FASB Pronouncement No. 144, and any amendment,
restatement, modification, supplement or successor thereto; and

    


    (9) all
items of expense related to equity-based compensation determined in accordance
with the standards established by Opinion No. 25 of the Accounting Principles
Board or FASB Pronouncement No. 123, and any amendment, restatement,
modification, supplement or successor thereto.

    


    In
addition, operating income will not be adjusted for a minority interest holder’s
share of a consolidated subsidiary’s operating income or loss.

    


    28. Additional Provisions of an
Award. Awards under the Plan also may be subject to such other provisions
(whether or not applicable to the benefit awarded to any other optionee or
grantee) as the Committee determines appropriate including, without limitation,
provisions to assist the optionee or grantee in financing the purchase of Shares
upon the exercise of Options, provisions for the forfeiture of or restrictions
on resale or other disposition of Shares acquired under any Option or received
in settlement of a Restricted Share Unit or Restricted Shares, provisions giving
the Company the right to repurchase Restricted Shares or Shares acquired under
any Option or received in settlement of a Restricted Share Unit in the event the
optionee or grantee elects to dispose of such Shares and provisions allowing the
optionee or grantee to elect to defer the receipt of payment in respect of
awards for a specified period or until a specified event.

    


    29. Amendment and
Discontinuance. The Board of Directors may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without stockholder approval if such approval is necessary to
comply with any regulatory requirement applicable to the Plan (including as
necessary to prevent awards which are intended to qualify as “performance-based
compensation” for purposes of Section 162(m) of the Code to fail to so qualify)
and provided further that any such amendment, alteration, suspension,
discontinuance or


    
      
         


      

      
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    termination
that would impair any rights under any award theretofore made under the Plan
shall not to that extent be effective without the consent of the person to whom
such award was made.

    


    30. Applicable Laws. The
obligation of the Company to deliver Shares shall be subject to all applicable
laws, rules and regulations, and to such approvals by governmental agencies as
may be deemed appropriate by the Committee, including, among others, such steps
as counsel for the Company shall deem necessary or appropriate to comply with
requirements of relevant securities laws. Such obligation shall also be subject
to the condition that the Shares reserved for issuance upon the exercise of
Options or settlement of Restricted Share Units granted under the Plan shall
have been duly listed on any national securities exchange which then constitutes
the principal trading market for the Shares.

    


    31. Governing Laws. The
Plan shall be applied and construed in accordance with and governed by the law
of the State of Delaware without regard to the principles of conflicts of law
thereof, or principals of conflicts of laws of any other jurisdiction which
could cause the application of the laws of any jurisdiction other than the State
of Delaware, to the extent such law is not superseded by or inconsistent with
Federal law. This Plan and all awards hereunder are intended to and shall be
construed to comply with the requirements of Section 409A of the Internal
Revenue Code and the regulations thereunder.

    


    32. Effective Date and Duration
of Plan. The Plan shall become effective on the date of its approval by
the stockholders of the Company in a manner intended to comply with the
shareholder approval requirements of Section 162(m) of the Code. The term during
which awards may be granted under the Plan shall expire on June 4,
2012.

    


    33. Amendments to
Agreements. Notwithstanding any other provision of the Plan, the Board of
Directors, or any authorized committee thereof, may amend the terms of any
agreement entered into in connection with any award granted pursuant to the
Plan, provided that the terms of such amendment are not inconsistent with the
terms of the Plan.

    



    
      
         


      

      
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