EXHIBIT 10.3
------------
TRIARC COMPANIES, INC.
000 XXXX XXXXXX
XXX XXXX, XXX XXXX 00000
April 30, 2007
Xxxxxx Xxxxx
c/o Triarc Companies, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxx:
This letter agreement reflects the arrangement between you and Triarc
Companies, Inc., a Delaware corporation ("TRIARC"), regarding the termination
of the Employment Agreement between you and Triarc, dated as of May 1, 1999, as
amended through the date hereof (the "EMPLOYMENT AGREEMENT"), and the cessation
of your employment thereunder. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Employment Agreement.
1. Your services as an officer and employee of Triarc and any of its
direct and indirect subsidiaries, will cease effective as of 11:59 p.m.
Eastern Daylight Time on June 29, 2007 (the "TERMINATION DATE"), at
which time the Employment Agreement shall terminate and have no further
legal effect; PROVIDED that the provisions of Section 9, Section 10,
Section 11.C and Section 12.A and 12.C of the Employment Agreement
shall remain in effect pursuant to their terms (and you acknowledge the
receipt of sufficient consideration from Triarc to support the
continued applicability of all restrictive covenants). The parties
acknowledge that there have been agreements and mutual courses of
conduct respecting both control and non-control positions in securities
in regard to Section 9 of the Employment Agreement and the parties
incorporate those agreements and mutual courses of conduct herein, with
the understanding that Trian Fund Management, L.P. ("TRIAN"), Xxxxx X.
May and you (and each of your affiliates) (collectively, the "Parties")
agree to offer to Triarc the prior opportunity to acquire securities
representing more than 50% of the outstanding securities with respect
to any acquisition opportunities you or the Parties may have in the
quick service restaurant segment in which Arby's Restaurant Group, Inc.
operates, provided the conditions set forth in Section 3(c)(i) of the
Amended and Restated Investment Management Agreement between TCMG-MA,
LLC and Trian, dated April 30, 2007 restricting the right of the "ROFR
Investors" (as defined in such agreement) to have a "ROFR" (as defined
in such agreement) on such investment remain in effect at the time you
or the Parties have such acquisition opportunity.
2
2. Triarc will continue to pay base salary and provide employee benefits
through the Termination Date in accordance with the applicable
provisions of the Employment Agreement, provided you shall accrue no
further payments, bonuses, severance or other incentive payments during
(or with respect to) the 2007 calendar year, except as expressly set
forth herein. On the Termination Date, Triarc will deposit into a rabbi
trust an amount of cash, cash equivalents, or, after consultation with
you, marketable or investment securities reasonably selected by Triarc
and approved by the Special Committee, equal to the difference between
(x) $50,213,753 and (y) the aggregate amount required by law to be
withheld upon such payment to you under federal, state and local
withholding requirements (the "Lump Sum Payment"). The rabbi trust
shall be governed by the terms of a trust agreement reasonably
acceptable to the parties, shall be irrevocable and shall provide that
Triarc may not, directly or indirectly, use or recover any assets of
the rabbi trust until such time as the assets of the trust have been
paid to you hereunder, subject only to the claims of creditors of
Triarc in the event of insolvency or bankruptcy of Triarc. In full
satisfaction of all amounts owed to you under the Employment Agreement,
other than base salary and benefits payable to you through the
Termination Date, and provided your employment with Triarc continues
until the Termination Date, the assets held by the rabbi trust shall be
transferred to you one day following the six-month anniversary of the
Termination Date (the "Payment Date"). The assets delivered to you
pursuant to the rabbi trust shall reflect any investment gain or loss
(as the case may be) on the Lump Sum Payment from the date the assets
comprising the Lump Sum Payment were deposited into such rabbi trust
until the Payment Date. Triarc shall deliver and pay over to the
appropriate taxing authorities when due all amounts subject to
withholding with respect to the transfer of the Lump Sum Payment to the
rabbi trust and the transfer of the assets of the rabbi trust to you
(as adjusted for any investment gain or loss) on the Payment Date and
shall instruct the Trustee to transfer to you such assets (in such form
and asset class as has been deposited initially into the rabbi trust,
subject to any permitted investment modifications effected under the
terms of the rabbi trust), without any further reduction for
withholding for federal, state and local taxes other than any
additional amounts required to be withheld on any amounts transferred
to you that were not included in the initial computation of the Lump
Sum Payment.
3. Provided your employment with Triarc continues until the Termination
Date, all (a) restricted shares of Class A common stock of Triarc and
Class B, Series 1 common stock of Triarc (each, the "COMPANY STOCK"),
(b) Class B Units of Triarc Deerfield Holdings, LLC and (c) Class B
Units of Xxxx Holdings, LLC held by you on the Termination Date will
become fully vested and nonforfeitable on the Termination Date.
4. You agree and acknowledge that, as of the date hereof, you are not
aware of any facts or other circumstances that would allow you to
assert, or that would give rise to, a termination by you for Good
Reason under Section 6.C of the Employment Agreement. You further agree
3
and covenant that in the future you will not claim Good Reason exists
to terminate your employment under Section 6.C of the Employment
Agreement with respect to any facts or circumstances that exist or
arose prior to the date hereof.
5. Effective as of 12:00 a.m. Eastern Daylight Time on June 30, 2007, you
shall be appointed as non-executive, non-employee Chairman of Triarc.
You further agree to remain as a member of the Board during the term of
the Services Agreement between Triarc and Trian dated April 30, 2007,
unless there is a Change of Control of Triarc (as defined in the
Employment Agreement) during such period or you are otherwise removed
from the Board. You shall retain the position of Chairman so long as
you are a member of the Board, unless you are removed from that
position by the Board.
6. You hereby acknowledge that as of the Termination Date, except as
expressly provided in this agreement, you will not be entitled to any
other payments, distributions, bonuses, severance, benefits or
perquisites from Triarc or any of its respective affiliates including
but not limited to, base salary, bonus (including any pro rata bonus
payments), distributions, allocations and group health benefits (other
than COBRA rights to continue and/or convert group medical coverage at
your expense and any conversion rights to which you may be entitled
under law with respect to continuing long-term disability insurance
coverage at your expense) and you hereby fully release Triarc and its
respective affiliates from all such claims you may otherwise have
(known or unknown) under the Employment Agreement or under any other
Triarc compensation plan or arrangement; PROVIDED that payment to you
of your deferred bonus account under the Deferral Plan for Senior
Officers of Triarc, dated December 14, 2000 (the "DEFERRAL PLAN") shall
be payable to you on the Termination Date under the terms of the
Deferral Plan. Notwithstanding any contrary provision of the Deferral
Plan, to the extent Triarc is required to make settlement payments to a
third party in connection with your deferred bonus account investments
in Bayou Management LLC and Amaranth Advisors LLC, and their affiliates
(the "COVERED INVESTMENTS"), you shall promptly pay to Triarc your pro
rata portion of such settlement payments, and to the extent Triarc
recovers additional payments in connection with your deferred bonus
account investments in the Covered Investments, Triarc shall promptly
pay to you (but in any event no later than 2 1/2 months following
receipt by Triarc) your pro rata portion of such recoveries.
[signature page to follow]
4
7. The terms of this agreement (and the terms of the Employment Agreement
referenced herein) constitute the entire agreement between you and
Triarc regarding the cessation of your employment and the termination
of the Employment Agreement and may not be altered or modified other
than in a writing signed by you and Triarc. This Agreement supersedes
all prior arrangements, communications, commitments or obligations
between yourself and the Company regarding the subject matter herein.
Very truly yours,
/s/ Xxxxx X. Xxxxxx XX
-------------------------------
Xxxxx X. Xxxxxx XX
Member of the Board of Directors
On Behalf of Triarc Companies, Inc.
AGREED AND ACKNOWLEDGED
/s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx
