TRIARC COMPANIES, INC.
1999 EXECUTIVE BONUS PLAN
TRIARC COMPANIES, INC.
1999 EXECUTIVE BONUS PLAN
SECTION 1. Purpose. The purpose of this Plan is to establish a program of
incentive compensation for designated executive officers and key employees of
the Company and its subsidiaries that is directly related to the financial
performance of the Company.
SECTION 2. Definitions. As used in this Plan, the following capitalized
terms shall have the following meanings:
(a) 'Acquisition' shall mean the acquisition of new business
operations by the Company, whether by stock or asset purchase, merger or
any other means.
(b) 'Acquisition Multiple' shall mean, with respect to any
Acquisition, the quotient of (i) the purchase price paid in connection with
such Acquisition over (ii) the Adjusted EBITDA of the acquired business for
the 12-month period ending on the last day of the acquired company's most
recently completed fiscal quarter ended prior to the date of the execution
of the definitive agreement relating to such Acquisition.
(c) 'Adjusted EBITDA' for any Plan Year or other referenced period
shall mean the Company's (or with respect to an acquired company, the
acquired company's) operating income for such Plan Year or other referenced
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
including, but not limited to, this Plan, and related employer payroll
taxes for the applicable period;
(3) any discretionary or matching contributions to the Company's
401(k) Plan and other deferred compensation plans for the applicable
(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 opinion No. 30 of the Accounting Principles
Board ('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 applicable period;
(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
(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
In addition, operating income will not be adjusted for a minority interest
holder's share of a consolidated subsidiary's operating income or loss.
(d) 'Annual Bonus Pool' shall have the meaning ascribed to it in
(e) 'Applicable Percentage' for any Participant shall mean the portion
of the Annual Bonus Pool and the Improvement Bonus Pool to which the
Participant is entitled, as determined by the Committee and set forth on
Exhibit A hereto.
(f) 'Board' or 'Board of Directors' shall mean the Board of Directors
of the Company, as constituted from time to time.
(g) 'Capital Charge' shall mean the Cost of Capital multiplied by
Incremental Capital for the prior Plan Year.
(h) 'Code' shall mean the Internal Revenue Code of 1986, as amended.
(i) 'Committee' shall mean a committee selected by the Board of
Directors to administer the Plan and composed of not less than two
directors, each of whom must be an 'outside director' (within the meaning
of Section 162(m) of the Code). The Committee shall be the Compensation
Committee of the Board of Directors, as long as it meets the preceding
requirements. If the Compensation Committee does not meet those
requirements, then the Committee shall be the Performance Compensation
Subcommittee of the Board of Directors, as long as it meets those
(j) 'Company' shall mean Triarc Companies, Inc., a Delaware
corporation, or any successor corporation.
(k) 'Cost of Capital' shall mean 10%.
(l) 'Covered Employee' shall mean a Participant who is a 'covered
employee' within the meaning of Section 162(m) of the Code.
(m) 'Designated Beneficiary' shall mean the beneficiary or
beneficiaries designated in accordance with Section 8(g) hereof to receive
the amount, if any, payable under the Plan on the Participant's death.
(n) 'Economic Profit' with respect to any Plan Year shall mean
(i) Adjusted EBITDA for such Plan Year minus (ii) Capital Charges in such
(o) 'Formula Bonus Award' shall mean the award payable to a
Participant pursuant to Section 3 of the Plan.
(p) 'FASB' shall mean the Financial Accounting Standards Board.
(q) 'Formula Bonus Award' shall mean the award payable to a
Participant pursuant to Section 3 of the Plan.
(r) 'Incremental Capital' for any Plan Year shall mean the sum of
(i) Net Stock Issued in such Plan Year plus (ii) New Net Debt in such Plan
Year. Incremental Capital may be positive or negative.
(s) 'Improvement Bonus Pool' shall the meaning ascribed to it in
(t) 'Improvement in Economic Profit' with respect to any Plan Year
shall mean the excess, if any, of (i) the Economic Profit for such Plan
Year over (ii) the Economic Profit for the preceding Plan Year; provided,
that for the first Plan Year, Improvement in Economic Profit shall mean the
excess, if any, of (i) the Economic Profit for such Plan Year over
(ii) the Economic Profit for the period beginning with the first day of the
fifth month of the Company's 1998 fiscal year (i.e.
beginning with May 3, 1998) and ending on the last day of such fiscal year
(i.e. ending on January 3, 1999); further provided, that for the second
Plan Year, Improvement in Economic Profit shall mean the excess, if any, of
(i) the Economic Profit for such Plan Year over (ii) the Economic Profit
for the Company's entire 1999 fiscal year.
(u) 'Net Debt' shall mean (i) all debt recorded on the audited
consolidated balance sheet of the Company, including current maturities of
long term debt, minus (ii) cash, cash equivalents, short term investments
and long term investments in the amount that such assets are carried on
such balance sheet, and as adjusted to fair value for any assets carried at
other than fair value.
(v) 'Net Stock Issued' shall mean the Value of Stock Issued minus the
Value of Stock Repurchased. Net Stock Issued may be positive or negative.
(w) 'New Net Debt' shall mean the increase (decrease) in Net Debt
since the last day of the Company's first four fiscal months of 1999 (i.e.
since May 2, 1999). New Net Debt may be positive or negative.
(x) 'Participant' shall mean each person designated to participate in
the Plan pursuant to Sections 3(a) and/or 4(a) hereof.
(y) 'Performance Goal Bonus Award' shall mean the award, as determined
by the Committee, to be granted to a Participant based on the level of
attainment of the Performance Goal in accordance with Sections 4(b) and
(z) 'Performance Goal' shall have the meaning ascribed to such term in
(aa) 'Performance Goals Date' shall mean the date on which the
Committee establishes the Performance Goals for a Plan Year in accordance
with Section 4(b). The Performance Goals Date for any Plan Year shall be no
later than the 90th day of such Plan Year, or such earlier date as may be
required in order for the Performance Goal Bonus Awards in respect of such
Plan Year to qualify as 'performance-based compensation' for purposes of
Section 162(m) of the Code.
(bb) 'Plan' shall mean this 1999 Executive Bonus Plan, as may be
amended from time to time.
(cc) 'Plan Year' shall mean the accounting fiscal year of the Company,
provided that the 1999 Plan Year shall exclude the first four fiscal months
thereof (i.e. through May 2, 1999) or, with respect to the Performance Goal
Bonus Awards, such other period as the Committee may, in its sole
(dd) 'Value of Stock Issued' shall mean the gross proceeds received
for any equity issued by the Company or its subsidiaries after the last day
of the Company's first four fiscal months of 1999, increased as of the last
day of each Plan Year by the Cost of Capital (prorated for the Plan Year in
which such issuance occurs). Notwithstanding the above, the Value of Stock
Issued in connection with an Acquisition shall be deemed to be no greater
than ten times the acquired company's Adjusted EBITDA for the 12-month
period ending on the last day of the acquired company's most recently
completed fiscal quarter ended prior to the date of the execution of the
definitive agreement relating to such Acquisition, less the sum of (i) any
debt assumed in connection with the Acquisition plus (ii) any consideration
as part of the purchase price, not paid in the form of equity.
(ee) 'Value of Stock Repurchased' shall mean the purchase price paid
for any equity repurchased by the Company after the last day of the
Company's first four fiscal months of 1999 (including for this purpose, the
value of equity distributed to the Company's shareholders in connection
with a spinoff of a business which is not consolidated with the Company
following such distribution, such value to be determined by the closing
price of such equity on its primary public market on the effective date of
such distribution), and increased as of the last day of each Plan Year by
the Cost of Capital (prorated for the Plan Year in which such repurchase
SECTION 3. Formula Bonus Awards
(a) Eligibility. Participants eligible for a Formula Bonus Award shall
consist of all executive officers and key employees of the Company and its
subsidiaries who have been chosen by the Committee to be eligible for a Formula
Bonus Award whose names are listed on Exhibit A hereto.
(b) Formula Bonus Awards. Formula Bonus Awards to Participants under the
Plan are potential awards that are based on the Economic Profit of the Company.
(i) Formula Bonus Awards. Subject to the other provisions of the Plan,
for each Plan Year, each Participant under the Plan chosen as eligible
pursuant to Section 3(a) above shall be entitled to a Formula Bonus Award
which shall be the sum of the Participant's Annual Bonus and Improvement
Bonus (each as defined below) for each Plan Year. The payment of the
Formula Bonus Award shall be paid at the time and in the manner set forth
in Section 3(c) below.
(ii) Annual Bonus. In each Plan Year, each Participant shall be
eligible for an Annual Bonus in an amount equal to the Participant's
Applicable Percentage of the 'Annual Bonus Pool' for such Plan Year. The
Annual Bonus Pool for any Plan Year shall mean three percent (3%) of the
Economic Profit for such Plan Year, subject to adjustment as provided for
in Subsection (iv) below.
(iii) Improvement Bonus. For each Plan Year, each Participant shall be
eligible for an Improvement Bonus equal to the Participant's Applicable
Percentage of the 'Improvement Bonus Pool' for such Plan Year. The
Improvement Bonus Pool for any Plan Year shall mean fifteen percent (15%)
of the Improvement in Economic Profit for such Plan Year, subject to
adjustment as provided for in Subsection (iv) below, and provided that if
in any Plan Year the Improvement in Economic Profit is negative, no
Improvement Bonuses will be paid in respect of such Plan Year nor with
respect to any subsequent Plan Year until Economic Profit for a Plan Year
is greater than it was for the Plan Year with respect to which an
Improvement Bonus was last paid. For example, if Economic Profit in fiscal
1999 is $150 million and Economic Profit in fiscal 2000 is $140 million, no
Improvement Bonus will be payable to any Participant in 2001 unless
Economic Profit exceeds $150 million. If Economic Profit is $160 million in
2001, the Improvement Bonus will be the Participant's Applicable Percentage
of $1.5 million (15% of $10 million).
(iv) The Acquisition Adjustment In the event that the Company makes an
Acquisition and the Acquisition Multiple is greater than the quotient of
(i) one over (ii) the Cost of Capital (the 'Base Multiple'), then the
Capital Charge relating to such Acquisition will be adjusted for the first
two Plan Years following such Acquisition by multiplying the Capital Charge
attributable to such Acquisition by a fraction, the numerator of which is
the Base Multiple and the denominator of which is the Acquisition Multiple.
(c) Form and Time of Determination of Award Payments. As soon as
practicable following the end of the applicable Plan Year, the Committee shall
determine the amount of the Formula Bonus Award payable to each Participant
eligible for a Formula Bonus Award and shall certify the amounts of Economic
Profit and Economic Profit Improvement for such Plan Year. Annual Bonus Awards
earned during any Plan Year shall be paid as soon as practicable after the end
of such Plan Year, following the Committee's certification and determination of
the amounts payable to each eligible Participant and
following the delivery of the audited consolidated financial statements of the
Company with respect to such Plan Year. Payment of Formula Bonus Awards shall be
made in the form of cash. Formula Bonus Awards earned but not yet paid will not
accrue interest. Notwithstanding the above, unless otherwise specified in an
employment agreement between the Company (or the applicable subsidiary of the
Company) and a Participant, (i) a Participant must be employed by the Company or
a subsidiary on the last day of a Plan Year in order to receive payment of a
Formula Bonus Award in respect of such Plan Year, and (ii) a Participant who is
employed by the Company or a subsidiary on the last day of a Plan Year shall be
entitled to receive payment of a Formula Bonus Award in respect of such Plan
Year notwithstanding a subsequent termination of the Participant's employment.
SECTION 4. Performance Goal Bonus Awards.
(a) Eligibility and Participation
(i) Designation. The Committee shall, in its sole discretion,
designate for each Plan Year which executive officers and key employees of
the Company and its subsidiaries, if any, will be eligible for a
Performance Goal Bonus Award for such Plan Year. The Committee shall
designate such individuals prior to the Performance Goals Date with respect
to such individual for such Plan Year. Each Participant will be notified of
the selection as soon after approval as is practicable.
(ii) Participation for Employees Hired After Commencement of Plan
Year. An executive officer or key employee whose employment with the
Company commences after the first day of a Plan Year and who remains
actively employed through the end of the Plan Year may, at the Committee's
discretion, be eligible for a Performance Goal Bonus Award for such Plan
Year on a pro rata basis.
(iii) No Right to Participate. No person has or at any time will have
any right to be selected for current or future eligibility for a
Performance Goal Bonus Award.
(b) Performance Measurement.
(i) Definition of Performance Goals. The performance criteria for a
Plan Year (the 'Performance Goals') will be based on objective,
quantifiable measures for the Company as a whole, or the operating units of
the Company, with respect to such Plan Year and may include, and will be
1. earnings per share;
2. market share;
3. margins (limited to gross margin, Adjusted EBITDA (as defined in
Section 2(c)) margin, and Adjusted EBITDA (as defined in
Section 2(c) 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.
(ii) Establishment of Performance Goals. For each Plan Year, the
Committee will, on or before the Performance Goals Date, establish (a) the
Performance Goals and (b) if more than one Performance Goal is established,
the weighting of the Performance Goals.
(iii) Adjustments to Performance Goals. The Committee may at any time
prior to the Performance Goals Date for a Plan Year, or, subject to the
second paragraph of this Section 4(b)(iii), at any time thereafter in its
sole and absolute discretion, adjust or modify the calculation of a
Performance Goal for such Plan Year in order to prevent the dilution or
enlargement of the rights of Participants (a) in the event or in
anticipation of any unusual or extraordinary corporate item, transaction,
event or development; (b) 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 (c) 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 after the Performance Goals Date only if it reasonably determines that
such exercise would not cause the payment of a Performance Goal Bonus Award to
fail to qualify as 'performance-based compensation' under Section 162(m) of the
(i) Establishment of Amount. On or before the Performance Goals Date
as to each Plan Year, the Committee shall establish a written schedule of
the amount of a Performance Goal Bonus Award that will be payable to a
Participant under the Plan if the Performance Goals are satisfied.
(ii) Calculation and Approval. As soon as practicable following the
end of the applicable Plan Year, the Committee will certify in writing the
attainment of the Performance Goals established for the Plan Year and will
calculate the Performance Goal Bonus Award, if any, payable to each
Participant under the schedule established pursuant to Section 4(c)(i)
hereof. If a Participant's base salary is adjusted after the Performance
Goals Date for the Plan Year, and the Award is expressed as a percentage of
the Participant's base salary, such Participant's Performance Goal Bonus
Award shall be prorated as of the date of adjustment.
(iii) Payment. Performance Goal Bonus Awards shall be paid in a lump
sum cash payment, as soon as practicable after the amount thereof has been
determined by the Committee and certified in accordance with Section
4(c)(ii) above and following the delivery of the audited consolidated
financial statements of the Company with respect to such Plan Year.
(iv) Limitations. Notwithstanding any provision herein to the
1. no Performance Goal Bonus Award will be paid for a Plan Year in
which performance fails to attain or exceed the minimum level for any of
the Performance Goals; and
2. no Performance Goal Bonus Award to any Participant in respect of
any Plan Year shall exceed $5 million.
(d) Negative Discretion. Notwithstanding anything to the contrary set forth
herein, the Committee may reduce a Performance Goal Bonus Award to an amount
less than the amount determined under Section 4(c)(ii) above or pay no
Performance Goal Bonus Award at all even if certain Performance Goals have been
satisfied if it, in its sole discretion, determines.
SECTION 6. Administration. The Committee has and will have all the
authority that may be necessary or helpful to enable it to discharge its
responsibilities with respect to the Plan. Without limiting the generality of
the foregoing, and in addition to any authority or responsibility specifically
granted to the Committee elsewhere in the Plan, the Committee has the exclusive
right to (a) interpret the Plan, (b) determine eligibility for participation in
the Plan, (c) decide all questions concerning eligibility for and the amount of
awards payable under the Plan, (d) construe any ambiguous provision of the Plan,
(f) correct any default, (g) supply any omission, (h) reconcile any
inconsistency, (i) issue administrative guidelines as an aid to administer the
Plan, (j) make regulations for carrying out the Plan and to make changes in such
regulations as they from time to time deem proper, and (k) decide any and all
questions arising in the administration, interpretation and application of the
The Committee shall have full discretionary authority in all matters
related to the discharge of its responsibilities and the exercise of its
authority under the Plan including, without limitation, its construction of the
terms of the Plan and its determination of eligibility for participation and
awards under the Plan. It is the intent of the Company in establishing the Plan
that the decisions of the Committee and its action with respect to the Plan will
be final, binding and conclusive upon all persons having or claiming to have any
right or interest in or under the Plan.
Only the Committee may select and grant awards to Participants who are
Covered Employees. Except for such limitation and to the extent otherwise
prohibited by law or to the extent such delegation would cause any award to fail
to satisfy the requirements of Section 162(m), the Committee may delegate some
or all of its authority under the Plan to any person or persons provided that
any such delegation be in writing.
SECTION 7. Termination or Amendment of Plan. The Committee may amend,
suspend or terminate the Plan at any time, but no amendment or alteration shall
be made that shall impair the rights of any Participant hereunder without the
Participant's consent. No amendment will be made that shall cause the
compensation payable under the Plan in respect of any Formula Bonus Award or
Performance Goal Bonus Award previously granted or pending to fail to satisfy
the requirements of the performance-based compensation exception of
Section 162(m) of the Code. No amendment will be made without shareholder
approval to the extent shareholder approval is necessary to cause any Formula
Bonus Award or Performance Goal Bonus Award previously granted or pending to
satisfy the performance-based compensation exception of Section 162(m) of the
SECTION 8. Miscellaneous.
(a) No Right to Awards or Continued Employment. No employee shall have any
claim or right to be granted an award under the Plan. Neither this Plan nor any
action taken hereunder shall be construed as giving any employee any right to be
retained in the employ of the Company or a subsidiary thereof.
(b) Taxes. The Company shall have the right to deduct from all awards paid
under the Plan any federal, state or local taxes required by law to be withheld
with respect to such payments.
(c) Non-Transferability. No award made hereunder may be assigned, pledged
or transferred, except, in the event of death of a Participant, by will or the
laws of descent and distribution, and any attempt to assign, pledge or transfer
such rights shall be void.
(d) Relationship to Other Benefits. No payment under the Plan shall be
taken into account in determining any benefits under any pension, profit
sharing, group insurance or other benefit plan of the Company or any of its
(e) Governing Law. This Plan shall be governed by and construed in
accordance with laws of the State of New York applicable to agreements made and
to be performed entirely within such state (without regard to any conflict of
law provisions that might indicate the applicability of any other laws).
(f) Successors and Assigns. This Plan and the obligations hereunder shall
be binding upon and inure to the benefit of any successors in interest to the
business of the Company and may be assigned to any company which acquires
substantially all the business operations or assets of the Company provided that
such successor assumes the obligations hereunder.
(g) Designation and Change of Beneficiary. Each Participant may designate
one or more persons as the Designated Beneficiary who shall be entitled to
receive his or her Performance Goal Bonus Award or Formula Bonus Award, if any,
payable under the Plan upon the death of the Participant. Such designation shall
be in writing to the Committee. A Participant may, from time to time, revoke or
change his or her Designated Beneficiary without the consent of any prior
Designated Beneficiary by filing a written designation with the Committee. The
last such designation received by the Committee shall be controlling; provided,
however, that no designation, or change or revocation thereof, shall be
effective unless received by the Committee prior to the Participant's death, and
in no event shall it be effective as of a date prior to such receipt.
(h) Payments to Persons Other Than the Participant. If the Committee shall
find that any person to whom any amount is payable under the Plan is unable to
care for his or her affairs because of illness or accident, or is a minor, or
has died, then any payment due to such person or his or her estate (unless a
prior claim therefor has been made by a duly appointed legal representative)
may, if the Committee so directs, be paid to his or her spouse, a child, a
relative, an institution maintaining or having custody of such person, or any
other person deemed by the Committee, in its sole discretion, to be a proper
recipient on behalf of such person otherwise entitled to payment. Any such
payment shall be a complete discharge of the liability of the Company therefor.
(i) No Liability of Committee Members. No member of the Committee shall be
personally liable by reason of any contract or other instrument related to the
Plan executed by such member or on his or her behalf in his or her capacity as a
member of the Committee, nor for any mistake of judgment made in good faith, and
the Company shall indemnify and hold harmless each employee, officer, or
director of the Company to whom any duty or power relating to the administration
or interpretation of the Plan may be allocated or delegated, against any cost or
expense (including legal fees, disbursements and other related charges) or
liability (including any sum paid in settlement of a claim with the approval of
the Board of Directors) arising out of any act or omission to act in connection
with the Plan unless arising out of such person's own fraud or bad faith.
(j) Compliance With Section 162(m). With regard to all Covered Employees,
the Plan shall for all purposes be interpreted and construed in accordance with
Section 162(m) of the Code. Unless otherwise specifically determined by the
Committee, if any provision of the Plan would cause the awards granted to a
Covered Employee not to constitute qualified 'performance-based compensation'
under Section 162(m) of the Code, that provision, insofar as it pertains to the
Covered Employee, shall be severed from, and shall be deemed not to be a part of
this Plan, but the other provisions hereof shall remain in full force and
(k) Unfunded Plan. Participants shall have no right, title, or interest
whatsoever in or to any investments which the Company may make to aid it in
meeting its obligations under the Plan. Nothing contained in the Plan, and no
action taken pursuant to its provisions, shall create or be construed to create
a trust of any kind, or a fiduciary relationship between the Company and any
beneficiary, legal representative or any other person. To the extent that any
person acquires a right to receive payments from the Company under the Plan,
such right shall be no greater than the right of an unsecured general creditor
of the Company. All payments to be made hereunder shall be paid from the general
funds of the Company and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of such amounts except as
expressly set forth in the Plan.
The Plan is not intended to be subject to the Employee Retirement Income
Security Act of 1974, as amended ('ERISA').
SECTION 9. Effective Date. This Plan shall become effective as of the first
day of the first Plan Year, subject to approval by the stockholders of the
Company in a manner which complies with the requirements of Section 162(m) of
The Participants in the Triarc Companies, Inc. 1999 Executive Bonus Plan
eligible for a Formula Bonus Award and their Applicable Percentages are as
PARTICIPANT NAME PERCENTAGE
- ---------------- ----------
Nelson Peltz............................................. 66.667%
Peter May................................................ 33.333%
TRIARC COMPANIES, INC. 1999 EXECUTIVE BONUS PLAN
TRIARC COMPANIES, INC. Executive Bonus Plan is hereby amended, effective as of June 22, 2004, as follows:
1. Section 4(a)(i) is replaced in its entirety to read as follows:
(i) Designation. The Committee shall, in its sole discretion, designate for each Plan Year(s) which executive officers and key employees of the Company and its subsidiaries, if any, will be eligible for Performance Goal Bonus Award(s) for such Plan Year(s). The Committee shall designate such individuals prior to the Performance Goals Date with respect to such individual for such Plan Year(s). The Committee may designate at any time Performance Goal Bonus Award(s) for one or more executive officers or key employees in respect of more than one Plan Year, provided that the designation shall be made no later than the Performance Goals Date of the first Plan Year in respect of which the Performance Goal Bonus Award(s) is granted. Each Participant will be notified of the selection as soon after approval as is practicable.
2. Section 4(b)(i)10 is replaced in its entirety and a new Section 4(b)(i)11 is added to read as follows:
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.