EXHIBIT 10.1
TRIARC COMPANIES, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
April 28, 2006
Xx. Xxxxxxx X. XxXxxxxx
0 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Re: Severance
Dear Xx. XxXxxxxx:
This letter agreement (this "Agreement") between you and Triarc Companies,
Inc. ("Triarc") sets forth the terms that shall govern any termination of your
employment with Triarc. All capitalized terms used herein are defined in Section
14 below.
1. Termination on Account of Death. If your employment is terminated
because of your death, your estate shall be entitled to receive a lump sum
payment in cash within thirty (30) days after the date of death, of the
following amounts:
(a) to the extent not theretofore paid, your then current
Salary through the date of termination plus any Bonus which has become
payable and accrued vacation pay; and
(b) two and one-half (2-1/2) times the sum of employer
contributions paid or accrued on your behalf to any qualified or
nonqualified defined contribution retirement plans during the calendar
year immediately preceding your termination.
In addition, subject to Section 6, Triarc shall pay your estate at the time
or times determined by Triarc, but in no event less rapidly than three
substantially equal annual installments beginning no later than thirty (30) days
after the date of death, the following amounts: (i) your then current Salary for
two and one-half (2-1/2) years from the date of termination and (ii) two and
one-half (2-1/2) times the Bonus Amount; provided that Triarc's ability to
exercise discretion to pay this amount more rapidly than three substantially
equal annual installments beginning no later than thirty (30) days after the
date of death shall be effective only if Triarc determines that having and/or
exercising such discretion would not cause this amount to be subject to
accelerated taxation or penalty tax pursuant to Section 409A of the Internal
Revenue Code of 1986, as amended (the "Code").
Furthermore, upon your termination in accordance with this Section 1,
Triarc shall (i) pay your estate, in a lump sum in cash at the time you would
have been entitled to receive your Bonus for the Fiscal Year in which your death
occurs, the Pro-Rata Bonus for such Fiscal Year; (ii) continue to provide
welfare benefits to you and your family for two and one-half (2-1/2) years from
the date of termination at least equal to those which were being provided to
them at any time within the six-month period ending on the date of termination
and (iii) credit you with two and one-half (2-1/2) additional years of age and
service under each of Triarc's qualified and nonqualified defined benefit
pension plans in which you participate at the time of termination; provided that
in the case of a qualified defined benefit pension plan, the present value of
the additional benefit you would have accrued if you had been credited with such
additional years of age and service (computed using the actuarial assumptions
used for purposes of the most recent actuarial report in respect of such plan)
will be paid in a lump sum in cash within thirty (30) days after the date of
termination; further provided that, in computing such additional benefit, you
shall be deemed to earn compensation for such additional two and one-half
(2-1/2) year period at the same rate as in the calendar year immediately
preceding such termination. To the extent that the benefits provided for in
clause (ii) of the preceding sentence are not permissible after termination of
employment under the terms of Triarc's benefit plans in effect, Triarc shall pay
to your estate in a lump sum in cash within thirty (30) days after the date of
termination an amount equal to the after-tax cost of acquiring on a non-group
basis, for two and one-half (2-1/2) years from the date of termination, those
benefits lost to you and/or to your family as a result of your termination. Your
estate shall also be entitled to receive those death benefits to which you are
entitled as of the date of your death under any death benefit plans, policies or
arrangements of Triarc.
Triarc may in its sole discretion seek to fund any or all of the benefits
and payments provided in this Section 1 through the purchase of a life insurance
policy that provide a death benefit payable to Triarc upon your death and you
hereby consent to Triarc's acquisition, if applicable, of such policy. You also
agree to reasonably cooperate in completing any application materials. Such
insurance policy, if acquired, shall in all events be owned by Triarc and shall
be a general asset of Triarc subject to the claims of Triarc's creditors and you
shall have no special claim against, or security interest in, such policy.
2. Termination for Disability. If your employment is terminated by Triarc
on account of your Disability, subject to Section 6, you shall be entitled to
the following amounts:
(a) the amounts described in clauses (a) and (b) of the
first paragraph of Section 1, paid in a lump sum in cash within thirty
(30) days following the date of such termination, but such amount
shall be subject to reduction to reflect the present value of any
disability benefits otherwise available to you as a result of
disability insurance coverage maintained by Triarc or any of its
affiliates;
(b) the Pro-Rata Bonus for the Fiscal Year in which the
effective date of the termination occurs, paid in a lump sum in cash
at the time you would have been entitled to receive your Bonus for
such Fiscal Year;
(c) the amount described in clause (iii) of the first
sentence of the third full paragraph of Section 1 and to receive the
benefits, or payment in lieu of benefits, described in clause (ii) of
the first sentence and second sentence of the third full paragraph of
Section 1, paid (if applicable) in a lump sum in cash within thirty
(30) days following the date of such termination. In addition, to the
extent permitted by any plan, you shall be entitled to receive any
disability payments to which you are eligible pursuant to any Plan;
and
(d) the amounts described in clauses (i) and (ii) of the
first sentence of the second full paragraph of Section 1, payable to
you at the time or times determined by Triarc, but in no event less
rapidly then three substantially equal annual installments beginning
no later than thirty (30) days after the termination of your
employment under this Section 2; provided that Triarc's ability to
exercise discretion to pay this amount more rapidly than three
substantially equal annual installments beginning no later than thirty
(30) days after such termination shall be effective only if Triarc
determines that having and/or exercising such discretion would not
cause this amount to be subject to accelerated taxation or penalty tax
pursuant to Section 409A.
3. Termination for Cause. If your employment is terminated by Triarc with
Cause, Triarc's obligation to pay compensation or other payments hereunder or
otherwise to or for your benefit shall cease on the effective date of such
termination; provided, however, that within thirty (30) days following the
effectiveness of such termination, Triarc shall pay you all Salary, business
expenses, amounts payable under any plan or benefit program or other amounts
that were accrued or incurred but unpaid or unreimbursed (including vacation
time) at the effective date of such termination.
4. Termination By Triarc Without Cause or By You With Good Reason. If your
employment is terminated by Triarc without Cause (other than on account of
Disability pursuant to Section 2), or by you with Good Reason, subject to
Section 6, you shall be entitled to receive, (X) in a lump sum in cash within
ten (10) days after the date of termination, if such termination occurs on or
following a Change in Control, or (Y) in twelve substantially equal monthly
installments on the first day of each of the twelve (12) months immediately
following such termination if such termination occurs prior to a Change in
Control, the aggregate of the following amounts:
(a) Your then current Salary for two and one-half (2-1/2)
years from the date of termination; and
(b) two and one-half (2-1/2) times the Bonus Amount;
provided that for this purpose, the Bonus Amount shall be calculated
using only the Look-Back Bonus and the Target Bonus.
In addition, upon termination of your employment in accordance with this
Section 4, you shall promptly receive the amounts described in the first
paragraph of Section 1 and, subject to Section 6, you shall: (I) be paid the
Pro-Rata Bonus for the Fiscal Year in which the effective date of the
termination occurs, in a lump sum in cash at the time you would have been
entitled to receive your Bonus for such Fiscal Year; (II) if the Actual Bonus
for the Fiscal Year of termination exceeds the Bonus Amount as determined in
accordance with clause (b) immediately above, be paid two and one-half (2-1/2)
times the amount by which the Actual Bonus exceeds such Bonus Amount, in a lump
sum in cash at the time you would have been entitled to receive your Bonus for
such Fiscal Year; and (III) be paid within thirty (30) days of the date of
termination, the amount described in clause (iii) of the first sentence of the
third full paragraph of Section 1 and to receive the benefits, or payment in
lieu of benefits, described in clause (ii) of the first sentence and second
sentence of the third full paragraph of Section 1.
5. Equity Awards. In the event of the termination of your employment in
accordance with Sections 1, 2 or 4, (A) all non-vested stock options, restricted
stock and any other non-vested stock or stock-based awards (whether issued by
Triarc or a subsidiary of Triarc) then held by you shall vest immediately and in
their entirety; and (B) all of your stock options or other stock-based awards
which include an exercisability feature (whether issued by Triarc or a
subsidiary of Triarc) shall remain exercisable until the earlier of (i) one year
following such termination or (ii) their respective stated expiration dates.
6. Code Section 409A. Notwithstanding the foregoing provisions of this
Agreement, if any payments or benefits due to you hereunder would cause the
application of an accelerated or additional tax under Section 409A of the Code,
such payments or benefits shall be restructured in a manner approved by you,
which approval shall not be unreasonably withheld, which does not cause such an
accelerated or additional tax. Without limiting the application of the preceding
sentence, any payment of money due hereunder which is delayed in order to avoid
the application of Section 409A of the Code (e.g., a six-month delay in the
commencement of severance, if necessary, if at the time of your termination of
employment you are a "specified employee," as defined in Section 409A of the
Code) shall be paid, along with interest at LIBOR (as determined as of the first
day of such delay) plus 450bp for the period of such delay, as soon as possible
without causing the application of Section 409A.
7. Mitigation. Triarc acknowledges and agrees that you shall have no duty
at any time to seek other employment or to mitigate your damages hereunder. The
amounts payable to you under this Agreement shall be paid regardless of whether
you obtain other employment.
8. Continued Benefit Participation. Nothing in this Agreement shall prevent
or limit your continuing or future participation in any benefit, bonus,
incentive (whether cash of equity based, or otherwise) or other plan or program
provided by Triarc or any of its affiliated companies and for which you may
qualify, nor shall anything herein limit or otherwise affect such rights as you
may have under any stock option or other agreements with Triarc or any of its
affiliated companies. Amounts which are vested benefits or which you are
otherwise entitled to receive under any plan or program of Triarc or any of its
affiliated companies at or subsequent to the date on which your employment is
terminated shall be payable in accordance with such plan or program. Anything
herein to the contrary notwithstanding, if you become entitled to payments
pursuant to Section 4, you agree to waive payments under any severance plan or
program of Triarc.
9. Certain Additional Payments by Triarc.
(a) If it is determined (as hereafter provided) that any
payment or distribution by Triarc to you or for your benefit, whether
paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise pursuant to or by reason of any other
agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar
right, or the lapse or termination of any restriction on or the
vesting or exercisability of any of the foregoing (a "Payment"), would
be subject to the excise tax imposed by Section 4999 of the Code (or
any successor provision thereto) or to any similar tax imposed by
state or local law, or any interest or penalties with respect to such
excise tax (such tax or taxes, together with any such interest and
penalties, are hereafter collectively referred to as the "Excise
Tax"), then you will be entitled to receive an additional payment or
payments (a "Gross-Up Payment") in an amount such that, after payment
by you of all taxes (including any interest or penalties imposed with
respect to such taxes), including any excise tax imposed by Section
4999 of the Code, imposed upon the Gross-Up Payment, you retain an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 9(f) hereof, all
determinations required to be made under this Section 9, including
whether an Excise Tax is payable by you and the amount of such Excise
Tax and whether a Gross-Up Payment is required and the amount of such
Gross-Up Payment, will be made by a nationally recognized firm of
certified public accountants (the "Accounting Firm") selected by you
in your sole discretion. You will direct the Accounting Firm to submit
its determination and detailed supporting calculations to both Triarc
and you within fifteen (15) calendar days after the date of the Change
in Control or the date of your termination of employment, if
applicable, and any other such time or times as may be requested by
Triarc or you. If the Accounting Firm determines that any Excise Tax
is payable by you, Triarc will pay the required Gross-Up Payment to
you within five (5) business days after receipt of such determination
and calculations. If the Accounting Firm determines that no Excise Tax
is payable by you, it will, at the same time as it makes such
determination, furnish you with an opinion that you have substantial
authority not to report any Excise Tax on your federal, state, local
income or other tax return. Any determination by the Accounting Firm
as to the amount of the Gross-Up Payment will be binding upon Triarc
and you. As a result of the uncertainty in the application of Section
4999 of the Code (or any successor provision thereto) and the
possibility of similar uncertainty regarding applicable state or local
tax law at the time of any determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have
been made by Triarc should have been made (an "Underpayment"),
consistent with the calculations required to be made hereunder. In the
event that Triarc exhausts or fails to pursue its remedies pursuant to
Section 9(f) hereof and you thereafter are required to make a payment
of any Excise Tax, you will direct the Accounting Firm to determine
the amount of the Underpayment that has occurred and to submit its
determination and detailed supporting calculations to both Triarc and
you as promptly as possible. Any such Underpayment will be promptly
paid by Triarc to, or for the benefit of, you within five (5) business
days after receipt of such determination and calculations.
(c) Triarc and you will each provide the Accounting Firm
access to and copies of any books, records and documents in the
possession of Triarc or you, as the case may be, reasonably requested
by the Accounting Firm, and otherwise cooperate with the Accounting
Firm in connection with the preparation and issuance of the
determination contemplated by Section 9(b) hereof.
(d) The federal, state and local income or other tax returns
filed by you will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax
payable by you. You will make proper payment of the amount of any
Excise Tax, and at the request of Triarc, provide to Triarc true and
correct copies (with any amendments) of your federal income tax return
as filed with the Internal Revenue Service and corresponding state and
local tax returns, if relevant, as filed with the applicable taxing
authority, and such other documents reasonably requested by Triarc,
evidencing such payment. If prior to the filing of your federal income
tax return, or corresponding state or local tax return, if relevant,
the Accounting Firm determines that the amount of the Gross-Up Payment
should be reduced, you will within five (5) business days pay to
Triarc the amount of such reduction.
(e) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations
contemplated by Sections 9(b) and (d) hereof will be borne by Triarc.
If such fees and expenses are initially advanced by you, Triarc will
reimburse you the full amount of such fees and expenses within five
(5) business days after receipt from you of a statement therefor and
reasonable evidence of your payment thereof.
(f) You will notify Triarc in writing of any claim by the
Internal Revenue Service that, if successful, would require the
payment by Triarc of a Gross-Up Payment. Such notification will be
given as promptly as practicable but no later than ten (10) business
days after you actually receive notice of such claim and you will
further apprise Triarc of the nature of such claim and the date on
which such claim is requested to be paid (in each case, to the extent
known by you). You will not pay such claim prior to the earlier of (i)
the expiration of the 30-calendar-day period following the date on
which you give such notice to Triarc and (ii) the date that any
payment of amount with respect to such claim is due. If Triarc
notifies you in writing prior to the expiration of such period that it
desires to contest such claim, you will:
(i) provide Triarc with any written records or
documents in your possession relating to such claim reasonably
requested by Triarc;
(ii) take such action in connection with
contesting such claim as Triarc will reasonably request in
writing from time to time, including without limitation accepting
legal representation with respect to such claim by an attorney
competent in respect of the subject matter and reasonably
selected by Triarc;
(iii) cooperate with Triarc in good faith in order
effectively to contest such claim; and
(iv) permit Triarc to participate in any
proceedings relating to such claim; provided, however, that
Triarc will bear and pay directly all costs and expenses
(including interest and penalties) incurred in connection with
such contest and will indemnify and hold you harmless, on an
after-tax basis, for and against any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as
a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 9(f), Triarc will control all proceedings taken in
connection with the contest of any claim contemplated by this
Section 9(f) and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
(provided that you may participate therein at your own cost and
expense) and may, at its option, either direct you to pay the tax
claimed and xxx for a refund or contest the claim in any
permissible manner, and you agree to prosecute such contest to a
determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as
Triarc will determine; provided, however, that if Triarc directs
you to pay the tax claimed and xxx for a refund, Triarc will
advance the amount of such payment to you on an interest-free
basis and will indemnify and hold you harmless, on an after-tax
basis, from any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such
advance; and provided further, however, that any extension of the
statute of limitations relating to payment of taxes for your
taxable year with respect to which the contested amount is
claimed to be due is limited solely to such contested amount.
Furthermore, Triarc's control of any such contested claim will be
limited to issues with respect to which a Gross-Up Payment would
be payable hereunder and you will be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(g) If, after the receipt by you of an amount advanced by
Triarc pursuant to Section 9(f) hereof, you receive any refund with
respect to such claim, you will (subject to Triarc's complying with
the requirements of Section 9(f) hereof) promptly pay to Triarc the
amount of such refund (together with any interest paid or credited
thereon after any taxes applicable thereto). If, after the receipt by
you of an amount advanced by Triarc pursuant to Section 9(f) hereof, a
determination is made that you will not be entitled to any refund with
respect to such claim and Triarc does not notify you in writing of its
intent to contest such denial or refund prior to the expiration of
thirty (30) calendar days after such determination, then such advance
will be forgiven and will not be required to be repaid and the amount
of such advance will offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid pursuant to this Section 9.
(h) Notwithstanding anything in this Section 9 to the
contrary, the maximum Excise Tax in respect of which a Gross-Up
Payment may be paid pursuant to this Section 9 shall be $1,000,000.
(i) You agree to cooperate with Triarc to take actions
action reasonably requested of you by Triarc to reduce the amount of
Excise Tax which may be incurred by you, so long as such actions are
not economically detrimental to you.
10. Noncompete/Nonsolicitation/Employee No-Hire.
(a) You acknowledge that as Triarc's Executive Vice
President and Chief Financial Officer you are involved, at the highest
level, in the development, implementation, and management of Triarc's
business strategies and plans, including those which involve Triarc's
finances, marketing and other operations, and acquisitions and, as a
result, you will have access to Triarc's most valuable trade secrets
and proprietary information. You further acknowledge that the
provisions of this Section 10 are reasonable and necessary to protect
Triarc's legitimate business interests.
(b) In view of clause (a) above, you hereby covenant and
agree that during your employment with Triarc (except in the proper
discharge of your duties hereunder) and for a period of twelve (12)
months following the termination of your employment with Triarc:
(i) in any state or territory of the United States
(and the District of Columbia) where Triarc or its subsidiaries
maintain operations, you will not (subject in all events to
clause (d) below) engage or be engaged in any capacity, except as
a passive investor owning less than a two percent (2%) interest
in a publicly held company, in any business or entity that owns
and/or franchises more than 3,000 restaurant units in the United
States in which 50% or more of the revenues of such business or
entity (including, without limitation, royalties earned as a
franchisor) is derived from the sale of sandwiches;
(ii) you will not, without Triarc's prior written
consent, hire or cause to be hired, solicit or encourage to cease
to work with Triarc or any of its subsidiaries or affiliates, any
person who is at the time of such activity, or who was within the
six (6) month period preceding such activity, an employee of
Triarc or any of its subsidiaries or affiliates at the level of
director or vice president or any more senior level (unless such
person's employment was terminated by Triarc or any of its
subsidiaries or affiliates) or a consultant under contract with
Triarc or any of its subsidiaries or affiliates and whose primary
client is such entity or entities; and
(iii) you will not, directly or indirectly,
solicit, encourage or cause any franchisee or supplier of Triarc
or any of its subsidiaries or affiliates to cease doing business
with Triarc or subsidiary or affiliate, or to reduce the amount
of business such franchisee or supplier does with Triarc or such
subsidiary or affiliate.
(c) If any competent authority having jurisdiction over this
Section 10 determines that any provision of this Section 10 is
unenforceable because of the duration or geographical scope of such
provision, such competent authority shall have the power to reduce the
duration or scope, as the case may be, of such provision and, in its
reduced form, such provision shall then be enforceable.
(d) The provisions of clause (b)(i) above shall apply only
in the event your employment terminates on or after the expiration of
the twelve-month period following the final closing of the
restructuring transactions presently contemplated by Triarc that would
result in Triarc becoming a "pure play" restaurant operating business.
11. Assignment. This Agreement is binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, neither party shall assign or transfer any rights
or obligations hereunder, except that Triarc may assign or transfer this
Agreement to a successor partnership, limited liability company, or corporation
in the event of a merger, consolidation, or transfer or sale of all or a
significant portion of the assets of Triarc. Triarc shall require any such
assignee or transferee to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that Triarc would be required to
perform if no such assignment or transfer had taken place. Any purported
assignment, other than as provided above, shall be null and void.
12. Inventions. You agree that all processes, technologies, designs and
inventions ("Inventions"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or made
by you during the period that you are employed by Triarc shall belong to Triarc,
provided that such Inventions grew out of your work for Triarc, are related in
any manner to the business (commercial or experimental) of Triarc or are
conceived or made on Triarc's time or with the use of Triarc's facilities or
materials. You shall further: (a) promptly disclose such Inventions to Triarc;
(b) assign to Triarc, without additional compensation, all patent and other
rights to such Inventions for the United States and foreign countries; (c) sign
all papers necessary to carry out the foregoing; and (d) give testimony in
support of your status as the inventor of such inventions. You agree that you
will not assert any rights to any Invention as having been made or acquired by
you prior to the date of this Agreement, except for Inventions, if any,
disclosed to Triarc in writing prior to the date hereof.
13. Confidentiality. In order to maintain the fullest degree of
confidentiality with respect to the business and operations of Triarc:
(a) You shall be required to accept and fully comply with
all security and communications requirements imposed by Triarc. All
equipment and facilities that Triarc determines to be necessary or
appropriate for fulfilling such communications and security
requirements shall be provided to you at Triarc's expense. Except as
otherwise provided herein, such equipment and facilities shall be
returned to Triarc, as is (other than normal wear and tear), upon the
termination of your employment with Triarc.
(b) You agree that all memoranda, notes, records or other
documents made or compiled by you in the fulfillment of your
obligations under this Agreement or otherwise made available to you
concerning any process, apparatus, service, or product manufactured,
used, developed, investigated or seriously considered by Triarc shall
be Triarc's property and shall be delivered to Triarc on the
termination of your employment with Triarc or at any other time on
Triarc's request. You shall not knowingly use, for yourself or others,
or divulge to others, other than in the ordinary course of Triarc's
business, any secret or confidential information, knowledge or data of
Triarc (including, without limitation, names of customers of Triarc)
obtained by you as a result of your performance of this Agreement,
unless authorized by Triarc.
14. Indemnification; Legal Fees. Triarc will indemnify you, to the maximum
extent permitted by applicable law, against all costs, charges and expenses
incurred or sustained by you in connection with any action, suit or proceeding
to which you may be made a party by reason of your being an officer, director or
employee of Triarc or of any subsidiary or affiliate of Triarc. Triarc shall pay
directly the fees and expenses of counsel and other experts incurred in
connection with the enforcement of this Agreement, as they may be incurred,
provided that you shall be required to reimburse Triarc for any amounts so paid
unless at least one material matter in dispute is decided in your favor.
15. Release. The payment of any monies and provision of any benefits to you
pursuant to this Agreement shall be subject to your prior execution and delivery
to Triarc of a release substantially in the form set forth in Exhibit A and, if
applicable, your not having revoked such release during the seven-day revocation
period described therein, failing which, except to the extent required by law,
Triarc shall be relieved of all of its obligations hereunder; provided, however,
that nothing in the release shall prevent you from enforcing any of your rights
under this Agreement.
16. Definitions.
(a) Actual Bonus. The Bonus which would have been paid to
you in respect of the Fiscal Year in which termination occurs based on
Triarc's actual performance, and actual accomplishment of any other
targeted goals, as reasonably determined by the Compensation Committee
of Triarc's Board of Directors.
(b) Bonus. The annual bonus you receive from Triarc, whether
pursuant to the 1999 Executive Bonus Plan or otherwise.
(c) Bonus Amount. The greatest of (i) the Look-Back Bonus,
(ii) the Target Bonus or (iii) the Actual Bonus.
(d) Cause. "Cause" means only:
(i) your willful, intentional and continued
failure to perform substantially your duties with Triarc (other
than any such failure resulting from your incapacity due to
physical or mental illness or any such failure subsequent to your
being delivered a notice of termination without Cause by Triarc
or you delivering a notice of termination for Good Reason to
Triarc) after a written demand for substantial performance is
delivered to you by Triarc which specifically identifies the
manner in which Triarc believes that you have not substantially
performed your duties and you have failed to cure such failure to
the reasonable satisfaction of Triarc,
(ii) your willful engaging in gross misconduct
which results in substantial damage to Triarc or its affiliates,
or
(iii) your conviction (by a court of competent
jurisdiction, not subject to further appeal) of, or pleading
guilty to, a felony.
For purposes of this definition, no act or failure to act by
you shall be considered "willful" unless done or omitted to be done by
you in bad faith and without reasonable belief that your action or
omission was in the best interests of Triarc or its affiliates. Any
act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by Triarc's Board of Directors or the written
instructions of the Chief Executive Officer or Chief Operating Officer
of Triarc, or based upon the written advice of counsel for Triarc,
shall be conclusively presumed to be done, or omitted to be done, by
you in good faith and in the best interests of Triarc. Triarc must
notify you of any event constituting Cause within ninety (90) days
following Triarc's knowledge of its existence or such event shall not
constitute Cause under this Agreement.
(e) Change in Control. "Change in Control" means:
(i) the acquisition by any person of more than 50%
of the combined voting power of the outstanding securities
entitled to vote generally in the election of directors of
Triarc, or
(ii) a majority of Triarc's Board of Directors
shall be individuals who are not nominated by such Board,
provided that (A) the ownership or acquisition of any
portion of the combined voting power of Triarc by Xxxxxx Xxxxx or
Xxxxx Xxx or by any person affiliated with either of such persons
shall in no event constitute a Change in Control and (B) the merger,
consolidation or sale of assets of Triarc or any subsidiary of Triarc
with or to any corporation or entity controlled by Xxxxxx Xxxxx or
Xxxxx Xxx or by any person affiliated with either of such persons
shall in no event constitute a Change in Control.
(f) Disability. Personal injury, illness or other cause
which, after the expiration of not less than 180 days after its
commencement, renders you unable to perform your substantial and
material duties to Triarc, and you are determined to be not expected
to recover by a physician selected by Triarc or its insurers and
acceptable to your or your legal representative (such agreement as to
acceptability not to be withheld unreasonably). Your termination on
account of Disability will be effective on the 180th day after your
receipt of notice of such termination (which may not be given by
Triarc until you have suffered a Disability), provided that, within
180 days after such receipt, you shall not have returned to full
performance of your duties.
(g) Fiscal Year. Each of Triarc's fiscal years during the
period that you are employed by Triarc.
(h) Good Reason. "Good Reason" means:
(i) any failure by Triarc to (A) pay you your
Salary, (B) pay you any Bonus to which you are entitled, (C)
reimburse you for or pay at your direction all expenses
reasonably incurred by you in the course of performing your
duties or (D) provide you with any of the rights and benefits to
which you are entitled under any Plan.
(ii) Triarc requiring (or taking such actions that
have the direct effect of requiring) your primary place of
employment to be based at any office or location other than one
located in Manhattan, New York;
(iii) any failure by Triarc to comply with and
satisfy Section 11 by causing any successor to Triarc to fail to
expressly assume and agree to perform this Agreement with you, to
the full extent set forth in said Section 11;
(iv) any meaningful diminution in your duties or
authority from such duties and authority held by you on the date
hereof without your prior consent;
(v) in the event that neither of Xxxxxx Xxxxx or
Xxxxx Xxx are either Chief Executive Officer of Triarc or Chief
Operating Officer of Triarc, a reduction in the aggregate amount
of your fiscal year bonus compensation to a level below ninety
percent (90%) of the two-year average bonus compensation received
by you with respect to Triarc's two most recent fiscal years
ending January 1, 2006;
(vi) a reduction in your Salary; or
(vii) the occurrence of a Change in Control;
provided that a termination by you with Good Reason shall be
effective only if, within thirty (30) days following your delivery of
a notice of termination for Good Reason to Triarc, Triarc has failed
to cure the circumstances giving rise to Good Reason to your
reasonable satisfaction. Notwithstanding the above, an assignment of
this Agreement by Triarc pursuant to Section 11 shall not, by itself,
constitute Good Reason.
(i) Look-Back Bonus. The largest Bonus paid to you in
respect of the two Fiscal Years preceding the date of termination.
(j) Plan. Any long- or short-term management incentive plan
(whether cash or equity based, or otherwise), retirement, retirement
savings, profit-sharing, pension or welfare benefit plan, life,
disability, health, dental, hospitalization and other forms of
insurance, and all other so-called "fringe" benefits or perquisites
which Triarc shall from time to time provide for its senior
executives.
(k) Pro-Rata Bonus. The product of (i) the Bonus Amount and
(ii) the number of days elapsed in such year preceding the date of
termination divided by 365.
(l) Salary. Your base salary payable to you by Triarc, in an
amount of no less than $575,000 per year
(m) Target Bonus. The Bonus which would have been paid to
you in respect of the Fiscal Year in which termination occurs if
Triarc attained its budgeted financial performance, and accomplished
any other targeted goals for such year, as reasonably determined by
the Compensation Committee of Triarc's Board of Directors.
(n) Triarc. Triarc, as hereinbefore defined and any
successor to its business and/or assets or other assignee as aforesaid
which assumes and agrees to perform this Agreement by operation of law
or otherwise.
If you agree to the terms described above, please sign below and return one
signed copy of this Agreement to me at your earliest convenience.
Sincerely,
/s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
I HEREBY AGREE TO THE TERMS
DESCRIBED ABOVE
/s/ XXXXXXX X. XXXXXXXX
-----------------------
Xxxxxxx X. XxXxxxxx
Date: April 28, 2006
EXHIBIT A
GENERAL RELEASE
AND COVENANT NOT TO XXX
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
that:
Xxxxxxx X. XxXxxxxx (the "Executive"), on his own behalf and
on behalf of his descendants, dependents, heirs, executors and
administrators and permitted assigns, past and present, in
consideration for the amounts payable and benefits to be provided to
the undersigned under that Severance Agreement dated as of April 28,
2006 (the "Severance Agreement") between the Executive and Triarc
Companies, Inc., a Delaware corporation (the "Company"), does hereby
covenant not to xxx or pursue any litigation (or file any charge or
otherwise correspond with any Federal, state or local administrative
agency), arbitration or other proceeding against, and waives, releases
and discharges the Company and its assigns, affiliates, subsidiaries,
parents, predecessors and successors, and the past and present
shareholders, employees, officers, directors, representatives and
agents or any of them (collectively, the "Company Group"), from any
and all claims, demands, rights, judgments, defenses, actions, charges
or causes of action whatsoever, of any and every kind and description,
whether known or unknown, accrued or not accrued, that the Executive
ever had, now has or shall or may have or assert as of the date of
this General Release and Covenant Not to Xxx against any member of the
Company Group, including, without limiting the generality of the
foregoing, any claims, demands, rights, judgments, defenses, actions,
charges or causes of action related to employment or termination of
employment or that arise out of or relate in any way to the Age
Discrimination in Employment Act of 1967 ("ADEA," a law that prohibits
discrimination on the basis of age), the National Labor Relations Act,
the Civil Rights Act of 1991, the Americans With Disabilities Act of
1990, Title VII of the Civil Rights Act of 1964, the Employee
Retirement Income Security Act of 1974, the Family and Medical Leave
Act, the Xxxxxxxx-Xxxxx Act of 2002, all as amended, and other
Federal, state and local laws relating to discrimination on the basis
of age, sex or other protected class, all claims under Federal, state
or local laws for express or implied breach of contract, wrongful
discharge, defamation, intentional infliction of emotional distress,
and any related claims for attorneys' fees and costs; provided,
however, that nothing herein shall release any member of the Company
Group from any of its obligations to the Executive under the Severance
Agreement or any rights the Executive may have to indemnification and
defense under any charter or by-laws, written indemnification
agreement (or similar documents) of any member of the Company Group.
The Executive further agrees that this General Release and Covenant
Not to Xxx xxx be pleaded as a full defense to any action, suit,
arbitration or other proceeding covered by the terms hereof which is
or may be initiated, prosecuted or maintained by the Executive, his
heirs or assigns. Notwithstanding the foregoing, the Executive
understands and confirms that he is executing this General Release and
Covenant Not to Xxx voluntarily and knowingly, and this General
Release and Covenant Not to Xxx shall not affect the Executive's right
to claim otherwise under ADEA. In addition, the Executive shall not be
precluded by this General Release and Covenant Not to Xxx from filing
a charge with any relevant Federal, State or local administrative
agency, but the Executive agrees not to participate in any such
administrative proceeding (other than any proceeding brought by the
Equal Employment Opportunity Commission), and agrees to waive the
Executive's rights with respect to any monetary or other financial
relief arising from any such administrative proceeding.
In consideration for the amounts payable and benefits to be
provided to the Executive under the Severance Agreement, the Executive
agrees to cooperate, at the expense of the Company Group, with the
members of the Company Group with all litigation relating to the
activities of the Company and its affiliates during the period of the
Executive's employment with the Company including, without limitation,
being available to take depositions and to be a witness at trial, help
in preparation of any legal documentation and providing affidavits and
any advice or support that the Company or any affiliate thereof may
reasonably request of the Executive in connection with such claims.
In furtherance of the agreements set forth above, the
Executive hereby expressly waives and relinquishes any and all rights
under any applicable statute, doctrine or principle of law restricting
the right to release claims which the Executive does not know or
suspect to exist at the time of executing a release, which claims, if
known, may have materially affected the Executive's decision to give
such a release. In connection with such waiver and relinquishment, the
Executive acknowledges that he is aware that he may hereafter discover
claims presently unknown or unsuspected, or facts in addition to or
different from those which he now knows or believes to be true, with
respect to the matters released herein. Nevertheless, it is the
intention of the Executive to fully, finally and forever release all
such matters, and all claims relating thereto which now exist, may
exist or theretofore have existed, as specifically provided herein.
The Executive acknowledges and agrees that this waiver shall be an
essential and material term of the release contained above. Nothing in
this paragraph is intended to expand the scope of the release as
specified herein.
This General Release and Covenant Not to Xxx shall be
governed by and construed in accordance with the laws of the State of
Delaware, applicable to agreements made and to be performed entirely
within such State.
To the extent that the Executive is forty (40) years of age
or older, this paragraph shall apply. The Executive acknowledges that
he has been offered a period of time of at least twenty-one (21) days
to consider whether to sign this General Release and Covenant Not to
Xxx, which he has waived, and the Company agrees that the Executive
may cancel this General Release and Covenant Not to Xxx at any time
during the seven (7) days following the date on which this General
Release and Covenant Not to Xxx has been signed by all parties to this
General Release and Covenant Not to Xxx. In order to cancel or revoke
this General Release and Covenant Not to Xxx, the Executive must
deliver to the General Counsel of the Company written notice stating
that the Executive is canceling or revoking this General Release and
Covenant Not to Xxx. If this General Release and Covenant Not to Xxx
is timely cancelled or revoked, none of the provisions of this General
Release and Covenant Not to Xxx shall be effective or enforceable and
the Company shall not be obligated to make the payments to the
Executive or to provide the Executive with the other benefits
described in the Severance Agreement and all contracts and provisions
modified, relinquished or rescinded hereunder shall be reinstated to
the extent in effect immediately prior hereto.
Each of the Executive and the Company Group agree that they
will not make disparaging or derogatory remarks, whether oral or
written, about the Company Group and the Executive, respectively.
Each of the Executive and the Company acknowledges and
agrees that it has entered into this General Release and Covenant Not
to Xxx knowingly and willingly and has had ample opportunity to
consider the terms and provisions of this General Release and Covenant
Not to Xxx.
IN WITNESS WHEREOF, the parties hereto have caused this
General Release and Covenant Not to Xxx to be executed on this _____
day of _______________, 20__.
--------------------------------
Xxxxxxx X. XxXxxxxx
TRIARC COMPANIES, INC.
By:
---------------------------------
Name:
Title:
