UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.1)*
Encore Capital Group, Inc.
(Name of Issuer)
Common Stock ($.01 par value)
(Title of Class of Securities)
55269B105
(CUSIP Number)
Stuart I. Rosen
------------------------------------------------------------------------------
Senior Vice President and Associate General Counsel
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
October 29, 2002
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.240.13d-1(e), (f) or (g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and
five copies of the Schedule, including all exhibits. See ss.240.13d-7 for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purposes of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 55269B10 13D
(1) Name of Reporting Person Madison West Associates Corp.
I.R.S. Identification No. of Above
Person
(2) Check the Appropriate Box if a Member (a)
of a Group (b) X
(3) SEC Use Only
(4) Source of Funds AF, WC
(5) Check Box if Disclosure of Legal [ ]
Proceedings is
Required Pursuant to Items 2(d) or
2(e)
(6) Citizenship or Place of Organization Delaware
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 2,281,269
(9) Sole Dispositive Power None
(10)Shared Dispositive Power 2,281,269
(11) Aggregate Amount Beneficially Owned by
Each Reporting Person 2,281,269
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount in 24.9%
Row (11)
(14) Type of Reporting Person CO
(1) Name of Reporting Person Triarc Companies, Inc.
I.R.S. Identification No. of Above
Person
(2) Check the Appropriate Box if a Member (a)
of a Group (b) X
(3) SEC Use Only
(4) Source of Funds WC
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization Delaware
Number of Shares (7) Sole Voting Power None
Benficially Owned by
Each Reporting Person With
(8) Shared Voting Power 2,382,544
(9) Sole Dispositive Power None
(10)Shared Dispositive Power 2,382,544
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 2,382,544
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by 25.7%
Amount in Row (11)
(14) Type of Reporting Person CO
(1) Name of Reporting Person Nelson Peltz
I.R.S. Identification No. of Above
Person
(2) Check the Appropriate Box if a Member (a)
of a Group (b) X
(3) SEC Use Only
(4) Source of Funds OO
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization United States
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 4,856,012
(9) Sole Dispositive Power None
(10)Shared Dispositive Power 4,856,012
(11) Aggregate Amount Beneficially Owned by
Each Reporting Person 4,856,012
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount 43.6%
in Row (11)
(14) Type of Reporting Person IN
(1) Name of Reporting Person Peter W. May
I.R.S. Identification No. of Above
Person
(2) Check the Appropriate Box if a Member (a)
of a Group (b) X
(3) SEC Use Only
(4) Source of Funds OO
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization United States
Number of Shares (7) Sole Voting Power 15,000
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 3,524,042
(9) Sole Dispositive Power 15,000
(10)Shared Dispositive Power 3,524,042
(11) Aggregate Amount Beneficially Owned by
Each Reporting Person 3,539,042
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount 35.0%
in Row (11)
(14) Type of Reporting Person IN
(1) Name of Reporting Person Neale M. Albert
I.R.S. Identification No. of Above
Person
(2) Check the Appropriate Box if a Member (a)
of a Group (b) X
(3) SEC Use Only
(4) Source of Funds OO
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization United States
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 1,743,816
(9) Sole Dispositive Power None
(10)Shared Dispositive Power 1,743,816
(11) Aggregate Amount Beneficially Owned by
Each Reporting Person 1,743,816
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount 21.1%
in Row (11)
(14) Type of Reporting Person IN
(1) Name of Reporting Person DWG Acquisition Group, L.P.
I.R.S. Identification No. of Above
Person
(2) Check the Appropriate Box if a Member (a)
of a Group (b) X
(3) SEC Use Only
(4) Source of Funds OO
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization Delaware
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 2,382,544
(9) Sole Dispositive Power None
(10)Shared Dispositive Power 2,382,544
(11) Aggregate Amount Beneficially Owned by
Each Reporting Person 2,382,544
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount 25.7%
in Row (11)
(14) Type of Reporting Person PN
Amendment No. 1 to Schedule 13D
This Amendment No. 1 to Schedule 13D is filed by Madison West Associates
Corp. ("Madison West"), Triarc Companies, Inc. ("Triarc"), Nelson Peltz
("Peltz"), Peter W. May ("May"), Neale M. Albert ("Albert") and DWG Acquisition
Group, L.P. ("DWG Acquisition" and, together with Madison West, Triarc, Peltz,
May and Albert, the "Reporting Persons") to supplement and amend the Schedule
13D originally filed by the Reporting Persons on March 4, 2002 (the "Schedule
13D"). Items 3, 5, 6 and 7 are hereby supplemented and amended. Unless otherwise
indicated, all capitalized terms shall have the same meaning as provided in the
Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 is supplemented by adding the following:
CTW Funding LLC, a Delaware limited liability company (the "LLC"), owned
250,000 warrants (all exercisable immediately and expiring on October 31, 2005
with the right to purchase up to 250,000 shares of the Company's Common Stock at
$0.01 per share). On October 16, 2002, the 250,000 warrants were exercised, the
LLC was dissolved and the shares of Common Stock were distributed to the LLC's
members on a pro-rata basis. Madison West, the LM Trust, the JM Trust and the NP
Trust were members of the LLC. As a result of such distribution, Madison West
acquired 21,822 shares of the Company's Common Stock, the LM Trust acquired
5,252 shares of the Company's Common Stock, the JM Trust acquired 5,252 shares
of the Company's Common Stock and the NP Trust acquired 21,008 shares of the
Company's Common Stock.
Item 5. Interest in Securities of the Issuer
Item 5 is amended in its entirety to read as follows:
(i) Pursuant to Rule 13d-3 of the Exchange Act, Madison West may be deemed
the beneficial owner of 2,281,269 shares of Common Stock, including (i) 535,609
shares of Common Stock directly owned by Madison West; and (ii) 1,745,660 shares
of Common Stock issuable upon conversion of the Series A preferred stock
acquired by Madison West. Assuming, the conversion by Madison West of the Series
A preferred stock into 1,745,660 shares of the Common Stock, the aggregate
holdings of Madison West would constitute approximately 24.9% of the Company's
outstanding shares of Common Stock (computed in accordance with Rule 13d-3 of
the Exchange Act and on the basis of 7,411,132 shares of Common Stock currently
outstanding, as reported in the Company's Proxy Statement, filed with the
Securities and Exchange Commission on October 7, 2002). Madison West shares with
Triarc, Mr. Peltz, Mr. May and DWG Acquisition voting and dispositive power over
the 2,281,269 shares of Common Stock beneficially owned by Madison West;
(ii) Pursuant to Rule 13d-3 of the Exchange Act, Triarc may be deemed the
beneficial owner of 2,382,544 shares of Common Stock, including (i) 535,609
shares of Common Stock directly owned by Madison West; (ii) 100,000 shares of
Common Stock issuable upon exercise of the Triarc Warrant (such warrant is
exercisable immediately and expires on January 12, 2005) and 1,275 shares
issuable upon exercise of a warrant issued to Triarc pursuant to the
anti-dilution provisions of the Triarc Warrant (collectively, the "Triarc
Warrants"); and (iii) 1,745,660 shares of Common Stock issuable upon conversion
of the Series A preferred stock acquired by Madison West. Assuming exercise by
Triarc of the Triarc Warrants for 101,275 shares of the Common Stock and the
conversion by Madison West of its Series A preferred stock into 1,745,660 shares
of the Company's Common Stock, the aggregate holdings of Triarc would constitute
approximately 25.7% of the Company's outstanding shares of Common Stock
(computed in accordance with Rule 13d-3 of the Exchange Act and on the basis of
7,411,132 shares of Common Stock currently outstanding, as reported in the
Company's Form Proxy Statement, filed with the Securities and Exchange
Commission on October 7, 2002). Triarc shares with Madison West, Mr. Peltz, Mr.
May and DWG Acquisition voting and dispositive power over the 2,281,269 shares
of Common Stock beneficially owned by Madison West and the 101,275 shares of
Common Stock issuable to Triarc upon exercise of the Triarc Warrants;
(iii) As a co-trustee of each of the NP Trust, the JM Trust and the LM
Trust, Mr. Albert shares with Mr. Peltz voting and dispositive power over the
602,318 shares of Common Stock directly owned by the NP Trust, and shares with
Mr. May voting and dispositive power over the 150,579 shares of Common Stock
directly owned by the JM Trust, the 150,579 shares of Common Stock directly
owned by the LM Trust, the 420,170 shares of Common Stock issuable upon the
conversion of the Series A preferred stock owned by the JM Trust and the 420,170
shares of Common Stock issuable upon the conversion of the Series A preferred
stock owned by the LM Trust. As a result, pursuant to Rule 13d-3 of the Exchange
Act, Mr. Albert may be deemed the beneficial owner of 1,743,816 shares, which
would constitute approximately 21.1% of the Company's outstanding shares of
Common Stock (computed in accordance with Rule 13d-3 of the Exchange Act and on
the basis of 7,411,132 shares of Common Stock currently outstanding, as reported
in the Company's Proxy Statement, filed with the Securities and Exchange
Commission on October 7, 2002). Mr. Albert disclaims beneficial ownership of
such shares;
(iv) As a co-trustee of the NP Trust, Mr. Peltz shares voting and
dispositive power over the 602,318 shares of Common Stock directly owned by the
NP Trust, and the 1,871,150 shares issuable upon the conversion of the Series A
preferred stock owned by the Peltz LP. As the indirect beneficial owner of
approximately 34.7% of the outstanding voting common stock of Triarc, Mr. Peltz
shares voting and dispositive power with Triarc, Mr. May and DWG Acquisition
over the 2,382,544 shares of Common Stock beneficially owned by Triarc (see (ii)
above). As a result, pursuant to Rule 13d-3 of the Exchange Act, Mr. Peltz may
be deemed the indirect beneficial owner of (i) the 602,318 shares of Common
Stock directly owned by the NP Trust, (ii) the 1,871,150 shares of Common Stock
issuable to Madison West upon the conversion of the Series A preferred stock
owned by the Peltz LP, and (iii) the 2,382,544 shares of Common Stock
beneficially owned by Triarc, which would, in the aggregate, constitute
approximately 43.6% of the Company's outstanding shares of Common Stock
(computed in accordance with Rule 13d-3 of the Exchange Act and on the basis of
7,411,132 shares of Common Stock currently outstanding, as reported in the
Company's Proxy Statement, filed with the Securities and Exchange Commission on
October 7, 2002). Mr. Peltz disclaims beneficial ownership of such shares;
(v) As a co-trustee of each of the JM Trust and the LM Trust, Mr. May
shares voting and dispositive power with Mr. Albert over the 150,579 shares of
Common Stock directly owned by the JM Trust, the 150,579 shares of Common Stock
directly owned by the LM Trust, the 420,170 shares of Common Stock issuable to
JM Trust upon the conversion of the Series A preferred stock owned by the JM
Trust and the 420,170 shares of Common Stock issuable to LM Trust upon the
conversion of the Series A preferred stock owned by the LM Trust. Mr. May also
beneficially owns the 15,000 shares of Common Stock that he acquired through a
brokerage transaction and has sole voting and dispositive power over such
shares. As the beneficial owner of approximately 32.9% of the outstanding voting
common stock of Triarc, Mr. May shares with Triarc, Mr. Peltz and DWG
Acquisition voting and dispositive power over the 2,382,544 shares of Common
Stock beneficially owned by Triarc (see (ii) above). As a result, pursuant to
Rule 13d-3 of the Exchange Act, Mr. May may be deemed the beneficial owner of
(i) the 150,579 shares of Common Stock directly owned by the JM Trust, (ii) the
150,579 shares of Common Stock directly owned by the LM Trust, (iii) the 420,170
shares of Common Stock issuable to JM Trust upon the conversion of the Series A
preferred stock owned by the JM Trust, (iv) the 420,170 shares of Common Stock
issuable to LM Trust upon the conversion of the Series A preferred stock owned
by the LM Trust, (v) the 2,382,544 shares of Common Stock beneficially owned by
Triarc, and (vi) the 15,000 shares of Common Stock owned directly by Mr. May,
which would, in the aggregate, constitute approximately 35.0% of the Company's
outstanding shares of Common Stock (computed in accordance with Rule 13d-3 of
the Exchange Act and on the basis of 7,411,132 shares of Common Stock currently
outstanding, as reported in the Company's Proxy Statement, filed with the
Securities and Exchange Commission on October 7, 2002). Mr. May disclaims
beneficial ownership of all such shares other than the 15,000 shares of Common
Stock that he owns directly;
(vi) As the direct beneficial owner of approximately 29.2% of the
outstanding voting common stock of Triarc, DWG Acquisition shares with Mr. Peltz
and Mr. May voting and dispositive power over the over the 2,382,544 shares of
Common Stock beneficially owned by Triarc (see (ii) above). As a result,
pursuant to Rule 13d-3 of the Exchange Act, DWG Acquisition may be deemed the
indirect beneficial owner of 2,382,544 shares of Common Stock, which would
constitute approximately 25.7% of the Company's outstanding shares of Common
Stock (computed in accordance with Rule 13d-3 of the Exchange Act and on the
basis of 7,411,132 shares of Common Stock currently outstanding, as reported in
the Company's Proxy Statement, filed with the Securities and Exchange Commission
on October 7, 2002). DWG Acquisition disclaims beneficial ownership of such
shares.
(c) On October 29, 2002, Madison West awarded 90,0000 "restricted shares"
of the Company's Common Stock currently owned by it to an officer of Triarc. See
Item 6 below.
(d)
(i) 602,318 shares of Common Stock reported herein as
beneficially owned by Messrs. Peltz and Albert are directly owned by
the NP Trust, which has the right to receive dividends from, or the
proceeds from the sale of, such shares of Common Stock.
(ii) 150,579 shares of Common Stock reported herein as
beneficially owned by Messrs. May and Albert are directly owned by the
JM Trust, which has the right to receive dividends from, or the
proceeds from the sale of, such shares of Common Stock.
(iii) 150,579 shares of Common Stock reported herein as
beneficially owned by Messrs. May and Albert are directly owned by the
LM Trust, which has the right to receive dividends from, or the
proceeds from the sale of, such shares of Common Stock.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Item 6 is supplemented by adding the following:
On October 29, 2002, Madison West awarded to Alexander Lemond, an officer
of Triarc and a director of the Company, 90,000 "restricted" shares of the
Company's Common Stock owned by it, which shares are subject to certain vesting
and transfer restrictions. One-third of the restricted shares would vest on each
of the first, second and third anniversaries of the date of grant and are
subject to Mr. Lemond's continued employment by Triarc. Vesting of the shares
accelerates upon a change of control of Triarc, Madison West or the Company or
upon a sale of all or substantially all of Triarc's direct or indirect interest
in the Company. The shares are not transferable until vested, other than
pursuant to applicable laws of descent and distribution. During the restriction
period, Mr. Lemond does have the right to tender for sale or exchange with
Madison West's written consent any such shares in the event of any tender offer
within the meaning of Section 14(d) of the Securities and Exchange Act of 1934.
In addition, during the restriction period except with respect to the transfer
of the shares, Mr. Lemond is entitled to all rights of a stockholder of the
Company, including the right to vote the restricted shares and to receive
dividends and/or other distributions declared on such restricted shares. The
restricted shares remain in the physical possession of Madison West until the
restriction period lapses with respect to such shares.
Item 7. Materials to be Filed as Exhibits
Item 7 is hereby supplemented and amended as follows:
Exhibit 1 Joint Filing Agreement of the Reporting Persons, dated March 4,
2002, incorporated herein by reference to Exhibit 1 to the Schedule
13D filed by the Reporting Persons on March 4, 2002.
Exhibit 11 Restricted Stock Agreement dated as of October 29, 2002 by and
between Madison West Associates Corp. and Alex Lemond.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to the undersigned is true, complete and correct.
Date: October 31, 2002
Madison West Associates Corp.
By: Francis T. McCarron
-----------------------------------
Name: Francis T. McCarron
Title: Senior Vice President & Chief
Financial Officer
Triarc Companies, Inc.
By: Francis T. McCarron
-----------------------------------
Name: Francis T. McCarron
Title: Senior Vice President & Chief
Financial Officer
Nelson Peltz
---------------------------------
Nelson Peltz
Peter W. May
-----------------------------------
Peter W. May
Neale M. Albert
----------------------------------
Neale M. Albert
DWG Acquisition Group, L.P.
By: Nelson Peltz
-----------------------------------
Nelson Peltz
General Partner
By: Peter W. May
-----------------------------------
Peter W. May
General Partner
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
TRIARC COMPANIES, INC.
Set forth below are the names, citizenship, addresses and, to the best
knowledge of the Reporting Persons, the beneficial ownership in the securities
of the Company of each of the directors and executive officers of Triarc, other
than Messrs. Peltz and May who are also Reporting Persons. (1)
Name Citizenship Residence or Business Beneficial Ownership
Address
Hugh L. Carey USA 200 Park Avenue
New York, NY 10166 0
Clive Chajet USA 575 Madison Avenue,
New York, NY 10022 0
Joseph A. Levato USA 280 Park Avenue
New York, NY 10017 0
David E. Schwab II USA 1133 Avenue of the
Americas 0
New York, NY 10036-6799
Raymond S. Troubh USA 10 Rockefeller Plaza
New York, NY 10020 0
Gerald Tsai, Jr. USA 200 Park Avenue
New York, NY 10166 0
Brian L. Schorr USA 280 Park Avenue
New York, NY 10017 32,343 (2)
Jonathan P. May USA 280 Park Avenue
New York, NY 10017 20,000 (3)
Francis T. McCarron USA 280 Park Avenue
New York, NY 10017 0
Jarrett B. Posner USA 280 Park Avenue
New York, NY 10017 118,190 (4)
Stuart I. Rosen USA 280 Park Avenue
New York, NY 10017 28,533 (5)
Fred H. Schaefer USA 280 Park Avenue
New York, NY 10017 50,000 (6)
Anne A. Tarbell USA 280 Park Avenue
New York, NY 10017 0
1) To the best knowledge of the Reporting Persons, except where otherwise
noted, each of the directors and executive officers of Triarc listed above
(i) funded their purchase of shares of Common Stock reported herein from
personal funds; (ii) acquired the shares of Common Stock for investment
purposes; (iii) has sole voting and dispositve power over the shares listed
on this Schedule I and (iv) has the sole right to receive dividends from,
or the proceeds from the sale of the shares listed on this Schedule I.
2) Includes 8,533 shares of Common Stock 23,810 shares of Common Stock
issuable upon conversion of Series A preferred stock.
3) Consists of 20,000 shares of Common Stock. Mr. May is the beneficiary of
the JM Trust.
4) Includes 48,190 shares of Common Stock and 70,000 shares of Common Stock
issuable upon conversion of Series A preferred stock.
5) Includes 8,533 shares of Common Stock and 20,000 shares of Common Stock
issuable upon conversion of Series A preferred stock.
6) Consists of 50,000 shares of Common Stock.
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS
MADISON WEST ASSOCIATES CORP.
Set forth below are the names, citizenship, addresses and, to the best
knowledge of the Reporting Persons, the beneficial ownership in the securities
of the Company of each of the directors and executive officers of Madison West.
(1)
Name Citizenship Residence or Business Beneficial Ownership
Address
Francis T. McCarron USA 280 Park Avenue
New York, NY 10017 0
Brian L. Schorr USA 280 Park Avenue
New York, NY 10017 32,343 (2)
Jarrett B. Posner USA 280 Park Avenue
New York, NY 10017 118,190 (2)
Stuart I. Rosen USA 280 Park Avenue
New York, NY 10017 28,533 (2)
Fred H. Schaefer USA 280 Park Avenue
New York, NY 10017 50,000 (2)
Anne A. Tarbell USA 280 Park Avenue
New York, NY 10017 0
1) To the best knowledge of the Reporting Persons, except where otherwise
noted, each of the directors and executive officers of Madison West listed
above (i) funded their purchase of shares of Common Stock reported herein
from personal funds; (ii) acquired the shares of Common Stock for
investment purposes; and (iii) has sole voting and dispositive power over
the shares listed on this Schedule 2.
2) See Schedule I.
EXHIBIT 11
RESTRICTED STOCK AGREEMENT
AGREEMENT, made as of October 29, 2002, by and between Madison West
Associates Corp. (the "Company") and Alex Lemond ("Award Recipient"):
The Company, a wholly-owned subsidiary of Triarc Companies, Inc.
("Triarc"), currently owns 625,609 shares of common stock ("Encore Common
Stock") of Encore Capital Group, Inc. ("Encore") and 174,566 shares of Encore's
Series A Senior Cumulative Participating Preferred Stock, which preferred shares
are convertible into 1,745,660 shares of Encore Common Stock.
Award Recipient has joined the Board of Directors of Encore in October,
2002 and is expected to expend a significant amount of time monitoring and
enhancing the Company's and Triarc's investment in Encore.
In consideration of the foregoing and to further incentive him, the
Compensation Committee and Audit Committee of the Board of Directors of Triarc
has awarded to the Award Recipient a restricted stock award of 90,000 shares of
Encore Common Stock conditioned upon the execution by the Company and the Award
Recipient of this Restricted Stock Agreement setting forth all the terms and
conditions applicable to such award.
In consideration of the mutual promises and covenants contained herein, it
is hereby agreed as follows:
1. AWARD OF SHARES: The Award Recipient has been awarded a restricted stock
award on October 29, 2002 (the "Award Date"), covering 90,000 shares of Encore
Common Stock (the "Restricted Shares"), subject to the terms, conditions, and
restrictions set forth in this Agreement.
2. AWARD RESTRICTIONS: One-third of the Restricted Shares shall vest on
each of October 29, 2003, October 29, 2004 and October 29, 2005.
Upon the vesting of any part of the restricted stock award by virtue of the
lapse of the restriction period set forth above or under Paragraphs 4 or 5 of
this Agreement, the Company shall deliver a stock certificate covering the
requisite number of the Restricted Shares registered on Encore's books in the
name of the Award Recipient or beneficiary(ies) to the Award Recipient (or
beneficiary(ies)) within 30 days after vesting. Upon receipt of such stock
certificate(s), the Award Recipient or beneficiary(ies) are free to hold or
dispose of such shares at will.
During the restriction period, the Restricted Shares that have not already
vested are not transferable by the Award Recipient by means of sale, assignment,
exchange, pledge, or otherwise. However, during the restriction period, the
Award Recipient does have the right to tender for sale or exchange with the
Company's written consent any such shares in the event of any tender offer
within the meaning of Section 14(d) of the Securities Exchange Act of 1934.
3. STOCK CERTIFICATES: Upon execution of this Agreement, Award Recipient
shall execute in blank three stock powers, each relating to one-third of the
Restricted Shares. Within three business days hereof, the Company shall deliver
to Encore certificates representing not less than 90,000 shares of Encore Common
Stock and shall request that Encore deliver to it three stock certificates, each
representing one-third of the Restricted Shares. The stock certificates
evidencing the Restricted Shares shall be registered on Encore's books in the
name of the Award Recipient as of the Award Date. The Company shall retain
physical possession of such stock certificates until such time as the shares are
vested (i.e., the restriction period lapses). While in its possession, the
Company reserves the right to cause a legend to be placed on the stock
certificate(s) restricting the transferability of such certificate(s) and
referring to the terms and conditions (including forfeiture) applicable to the
shares represented by the certificate(s).
During the restriction period, except as otherwise provided in Paragraph 2
of this Agreement, the Award Recipient shall be entitled to all rights of a
stockholder of Encore, including the right to vote the Restricted Shares and
receive dividends and/or other distributions declared on such Restricted Shares.
4. EMPLOYMENT TERMINATION: If the Award Recipient's employment with Triarc
terminates on account of termination without "cause" (as defined below), death
or permanent disability, the restricted stock award, to the extent not already
vested, shall be vested in full. Upon termination of the Award Recipient's
employment with Triarc on account of early retirement or under special
circumstances determined by the Compensation Committee and the Audit Committee,
the restricted stock award, to the extent not already vested, shall be
forfeited, or vested in full or in part, as determined by the Compensation
Committee and the Audit Committee. Termination of the Award Recipient's
employment with Triarc for any other reason (i.e., voluntary termination or "for
cause") shall result in forfeiture of the restricted stock award on the date of
termination to extent not already vested. The Award Recipient may designate a
beneficiary(ies) to receive the stock certificates representing that portion of
the restricted stock award automatically vested upon death. The Award Recipient
has the right to change such beneficiary designation at will.
As used herein, "cause" shall mean that the Award Recipient's services are
terminated (i) on account of fraud, embezzlement or other unlawful or tortious
conduct, whether or not involving or against Triarc or any subsidiary or
affiliate, (ii) for violation of a policy of Triarc or any subsidiary or
affiliate, (iii) for serious and willful acts or misconduct detrimental to the
business or reputation of Triarc or any subsidiary or affiliate or (iv) for
"cause" or any like term as defined in any written contract between Triarc and
the Award Recipient.
5. CHANGE OF CONTROL: Notwithstanding anything in this Agreement to the
contrary, upon (i) the acquisition by any person of 50% or more of the combined
voting power of Triarc's, Madison West's or Encore's outstanding securities
entitled to vote generally in the election of directors, (ii) a majority of the
directors of Triarc, Madison West or Encore being individuals who are not
nominated by the Board of Directors of Triarc, Madison West or Encore, as the
case may be, or (iii) a sale of all or substantially all of the direct or
indirect interest of Triarc in Encore (each a "Change of Control"), any vesting
restrictions applicable to any of the Restricted Shares shall lapse and such
Restricted Shares shall be delivered free and clear of all transferability
restrictions. The acquisition of any portion of the combined voting power of
Triarc or Madison West by DWG Acquisition Group, L.P., Nelson Peltz or Peter May
or by any person affiliated with such persons shall in no event constitute a
Change of Control. In addition, the acquisition of any portion of the combined
voting power of Encore by Triarc, Madison West, DWG Acquisition Group, L.P.,
Nelson Peltz, Peter May or Consolidated Press International Holdings Limited or
by any person affiliated with such persons shall in no event constitute a Change
of Control.
6. WITHHOLDING TAXES: The Company shall have the right to retain and
withhold from any payment under the restricted stock awarded the amount of taxes
required by any government to be withheld or otherwise deducted and paid with
respect to such payment. At its discretion, the Company may require the Award
Recipient to reimburse the Company for any such taxes required to be withheld by
the Company or Triarc and withhold any distribution in whole or in part until
the Company is so reimbursed. In lieu thereof, the Company and Triarc shall have
the right to withhold from any other cash amounts due or to become due from the
Company or Triarc to the Award Recipient an amount equal to such taxes required
to be withheld by the Company or Triarc to reimburse the Company or Triarc for
any such taxes or retain and withhold a number of shares having a market value
not less than the amount of such taxes and cancel (in whole or in part) any such
shares so withheld in order to reimburse the Company or Triarc for any such
taxes.
7. ADMINISTRATION: The Compensation Committee and Audit Committee of the
Board of Directors of Triarc shall have full authority and discretion (subject
only to the express provisions of this Agreement) to decide all matters relating
to the administration and interpretation of this Agreement. All such
determinations shall be final, conclusive, and binding upon the Company, the
Award Recipient, and any and all interested parties.
8. RIGHT TO CONTINUED EMPLOYMENT: Nothing in or this Agreement shall confer
on the Award Recipient any right to continue in the employ of the Company or
Triarc or in any way affect the Company's or Triarc's right to terminate the
Award Recipient's employment without prior notice at any time for any or no
reason.
9. AMENDMENT(S): The Agreement may be amended only in a writing executed by
the Company and the Award Recipient.
10. FORCE AND EFFECT: The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
11. PREVAILING LAWS: This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York.
12. SUCCESSORS; THIRD PARTY BENEFICIARY: This Agreement shall be binding
upon and inure to the benefit of the successors, assigns and heirs of the
respective parties. Triarc shall be a third party beneficiary of this Agreement
and shall be entitled to enforce its rights hereunder as if it were a signatory
hereto.
13. NOTICE: Unless waived by the Company, any notice to the Company
required under or relating to this Agreement shall be in writing and addressed
to the Secretary of the Company.
14. ENTIRE AGREEMENT: This Agreement contains the entire understanding of
the parties and shall not be modified or amended except in writing and duly
signed by the parties. No waiver by either party of any default under this
Agreement shall be deemed a waiver of any later default.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
hereof.
MADISON WEST ASSOCIATES CORP.
By: Francis T. McCarron
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Francis T. McCarron
Senior Vice President and
Chief Financial Officer
Alex Lemond
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Alex Lemond