UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report: March 11, 2004
(Date of earliest event reported)
TRIARC COMPANIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-2207 38-0471180
(State or other (Commission (I.R.S. Employer
jurisdiction of File No.) Identification No.)
incorporation of
organization)
280 Park Avenue, New York, NY 10017
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (212) 451-3000
Item 7. Financial Statements and Exhibits.
(c) Exhibits
10.1 - Second Amendment to the Trust Agreement for the Deferral Plan
for Senior Executive Officers of Triarc Companies, Inc.,
dated as of May 9, 2003, between Triarc Companies, Inc. and
Wilmington Trust Company, as trustee.
10.2 - Second Amendment to the Trust Agreement for the Deferral Plan
for Senior Executive Officers of Triarc Companies, Inc., dated
as of May 9, 2003, between Triarc Companies, Inc. and
Wilmington Trust Company, as trustee.
10.3 - Employment Agreement dated as of November 28, 2003 between
Arby's, Inc. and Douglas N. Benham.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TRIARC COMPANIES, INC.
By: /s/ Stuart I. Rosen
______________________________
Stuart I. Rosen
Senior Vice President and
Associate General Counsel
Dated: March 11, 2004
EXHIBIT INDEX
Exhibit
No. Description Page No.
------ ----------- --------
10.1 - Second Amendment to the Trust Agreement for
the Deferral Plan for Senior Executive
Officers of Triarc Companies, Inc., dated as of
May 9, 2003, between Triarc Companies, Inc. and
Wilmington Trust Company, as trustee.
10.2 - Second Amendment to the Trust Agreement for the
Deferral Plan for Senior Executive Officers of
Triarc Companies, Inc., dated as of May 9, 2003,
between Triarc Companies, Inc. and Wilmington Trust
Company, as trustee.
10.3 - Employment Agreement dated as of November 28, 2003
between Arby's, Inc. and Douglas N. Benham.
Exhibit 10.1
SECOND AMENDMENT TO THE TRUST
AGREEMENT FOR THE DEFERRAL PLAN
FOR SENIOR EXECUTIVE OFFICERS OF TRIARC COMPANIES, INC.
(PARTICIPANT NELSON PELTZ)
WHEREAS, Triarc Companies, Inc., a Delaware Corporation (the "Company"),
has adopted the Deferral Plan for Senior Executive Officers of Triarc Companies,
Inc., effective December 14, 2000 (the "Plan");
WHEREAS, the Company and Wilmington Trust Company, a Delaware bank and
trust company (the "Trustee"), entered into a Trust Agreement for the Deferral
Plan for Senior Executive Officers of Triarc Companies, Inc. (Participant Nelson
Peltz), as of January 23, 2001, as amended (the "Trust Agreement"), under the
Plan in order to provide a source for the payment of benefits under the Plan to
Nelson Peltz, a participant in the Plan;
WHEREAS, except as defined herein, all capitalized terms shall have the
meaning set forth in the Trust Agreement;
WHEREAS, the Company has determined that it is desirable to amend the Trust
Agreement to provide that the Company may, with the consent of the Participant,
direct the Trustee to pay from the Trust Fund the fees and expenses of the
investment manager selected by the Company in accordance with clause (i) of
Section 2.2 of the Plan;
WHEREAS, Section 12(a) of the Trust Agreement provides that the Trust
Agreement may be amended by a written instrument executed by the Trustee and the
Company; and
WHEREAS, the Trustee and the Company each desire to amend the Trust
Agreement as set forth below.
NOW, THEREFORE, the Trustee and the Company hereby agree that the Trust
Agreement shall be amended, effective as of March 31, 2003, as follows:
I.
The caption of Section 9 of the Trust Agreement shall be amended to read
follows:
Section 9. Compensation and Expenses of Trustee and Investment Manager.
II.
A new subsection (c) shall be added to Section 9 which shall read as
follows:
(c) Notwithstanding any provision of this Trust Agreement to the contrary,
if the Company selects an investment manager in accordance with clause (i) of
Section 2.2 of the Plan, the Company may, with the consent of the Participant,
direct the Trustee to pay the fees and expenses of such investment manager from
the Trust Fund. If the Company instructs the Trustee to pay the investment
manager's fees and expenses in accordance with this Section 9(c), the Trustee
shall pay the investment manager's fees and expenses within thirty (30) days of
presentation of the amounts due by the investment manager. The Trustee shall
provide the Company with a written statement of any amounts paid to the
investment manager from the Trust Fund on the next written statement delivered
to the Company by the Trustee in accordance with Section 7 hereof.
Notwithstanding the foregoing, if the Trust Fund is insufficient to pay the
investment manager's fees and expenses, the Company shall pay such fees and
expenses within thirty (30) days of presentation of the amounts due by the
Trustee.
III.
A new subsection (k) shall be added to Section 8 which shall read as
follows;
(k) The Trustee shall periodically determine the market value of the assets
of the Trust Fund or, in the absence of readily ascertainable market values, at
such values as the Trustee shall determine in accordance with methods
consistently followed and uniformly applied. With respect to assets without
readily ascertainable market values, the Trustee may rely for all purposes of
this Agreement on the latest valuation and transaction information submitted to
it by the person responsible for the investment. The Company shall cause such
person to provide the Trustee with all information needed by the Trustee to
discharge its obligations to value such assets and to account under this
Agreement.
IV.
Except as provided herein, the Trust Agreement shall remain in full force
and effect.
EXECUTED as of the 9th day of May, 2003.
TRIARC COMPANIES, INC.
By: /s/ Francis T. McCarron
___________________________
Francis T. McCarron
Senior Vice President &
Chief Financial Officer
WILMINGTON TRUST COMPANY
By: /s/ Ashley Melton
___________________________
Name: Ashley Melton
Title: Vice President
Exhibit 10.2
SECOND AMENDMENT TO THE TRUST
AGREEMENT FOR THE DEFERRAL PLAN
FOR SENIOR EXECUTIVE OFFICERS OF TRIARC COMPANIES, INC.
(PARTICIPANT PETER MAY)
WHEREAS, Triarc Companies, Inc., a Delaware Corporation (the "Company"),
has adopted the Deferral Plan for Senior Executive Officers of Triarc Companies,
Inc., effective December 14, 2000 (the "Plan");
WHEREAS, the Company and Wilmington Trust Company, a Delaware bank and
trust company (the "Trustee"), entered into a Trust Agreement for the Deferral
Plan for Senior Executive Officers of Triarc Companies, Inc. (Participant Peter
May), as of January 23, 2001, as amended (the "Trust Agreement"), under the Plan
in order to provide a source for the payment of benefits under the Plan to Peter
May, a participant in the Plan;
WHEREAS, except as defined herein, all capitalized terms shall have the
meaning set forth in the Trust Agreement;
WHEREAS, the Company has determined that it is desirable to amend the Trust
Agreement to provide that the Company may, with the consent of the Participant,
direct the Trustee to pay from the Trust Fund the fees and expenses of the
investment manager selected by the Company in accordance with clause (i) of
Section 2.2 of the Plan;
WHEREAS, Section 12(a) of the Trust Agreement provides that the Trust
Agreement may be amended by a written instrument executed by the Trustee and the
Company; and
WHEREAS, the Trustee and the Company each desire to amend the Trust
Agreement as set forth below.
NOW, THEREFORE, the Trustee and the Company hereby agree that the Trust
Agreement shall be amended, effective as of March 31, 2003, as follows:
I.
The caption of Section 9 of the Trust Agreement shall be amended to read
follows:
Section 9. Compensation and Expenses of Trustee and Investment Manager.
II.
A new subsection (c) shall be added to Section 9 which shall read as
follows:
(c) Notwithstanding any provision of this Trust Agreement to the contrary,
if the Company selects an investment manager in accordance with clause (i) of
Section 2.2 of the Plan, the Company may, with the consent of the Participant,
direct the Trustee to pay the fees and expenses of such investment manager from
the Trust Fund. If the Company instructs the Trustee to pay the investment
manager's fees and expenses in accordance with this Section 9(c), the Trustee
shall pay the investment manager's fees and expenses within thirty (30) days of
presentation of the amounts due by the investment manager. The Trustee shall
provide the Company with a written statement of any amounts paid to the
investment manager from the Trust Fund on the next written statement delivered
to the Company by the Trustee in accordance with Section 7 hereof.
Notwithstanding the foregoing, if the Trust Fund is insufficient to pay the
investment manager's fees and expenses, the Company shall pay such fees and
expenses within thirty (30) days of presentation of the amounts due by the
Trustee.
III.
A new subsection (k) shall be added to Section 8 which shall read as
follows;
(k) The Trustee shall periodically determine the market value of the assets
of the Trust Fund or, in the absence of readily ascertainable market values, at
such values as the Trustee shall determine in accordance with methods
consistently followed and uniformly applied. With respect to assets without
readily ascertainable market values, the Trustee may rely for all purposes of
this Agreement on the latest valuation and transaction information submitted to
it by the person responsible for the investment. The Company shall cause such
person to provide the Trustee with all information needed by the Trustee to
discharge its obligations to value such assets and to account under this
Agreement.
IV.
Except as provided herein, the Trust Agreement shall remain in full force
and effect.
EXECUTED as of the 9th day of May, 2003.
TRIARC COMPANIES, INC.
By: /s/ Francis T. McCarron
___________________________
Francis T. McCarron
Senior Vice President &
Chief Financial Officer
WILMINGTON TRUST COMPANY
By: /s/ Ashley Melton
___________________________
Name: Ashley Melton
Title: Vice President
Exhibit 10.3
ARBY'S, INC.
d/b/a Triarc Restaurant Group
1000 Corporate Drive
Ft. Lauderdale, FL 33334
November 28, 2003
Mr. Douglas N. Benham
2905 Andrews Drive, NW
Atlanta, GA 30305
Dear Doug:
It is with great pleasure that we hereby confirm your employment as
President and Chief Executive Officer of Arby's, Inc. (d/b/a Triarc Restaurant
Group ("Arby's")), an indirect subsidiary of Triarc Companies, Inc. ("TRIARC"),
on the terms and conditions set forth in this letter and in the attached term
sheet (the "Term Sheet"). You further agree to accept election and to serve as
President and Chief Executive Officer of Sybra, Inc. ("Sybra") and as director
or representative of any subsidiary of Arby's or Sybra, Inc., without any
compensation therefor, other than as provided in this letter agreement.
You will report to the Board of Directors of Arby's and Sybra and your
duties will be performed primarily at the corporate headquarters of Arby's and
Sybra in southern Florida. The term of your employment shall commence on January
5, 2004 and shall continue through December 31, 2006, provided that such term
shall be automatically extended for successive twelve (12) month periods unless
either you or Arby's gives notice to the other at least 120 days before an
extension is to take effect, that they do not wish the term to be extended.
In the event your employment is terminated "without cause" (as hereinafter
defined) by Arby's, Arby's shall: (i) pay to you a sum equal to your annual base
rate of salary in effect as of the effective date of such termination, payable
in semi-monthly installments for a period of twelve (12) months after the
effective date of such termination; and (ii) commencing twelve (12) months after
the effective date of such termination of your employment, pay to you a sum
equal to your annual base rate of salary in effect as of the effective date of
such termination, payable in semi-monthly installments for a period of twelve
(12) months; provided, however, that if you have secured full-time employment
prior to or during the period of the semi-monthly payments payable in this
clause (ii), such semi-monthly payments required to be made by Arby's pursuant
to this clause (ii) after you begin receiving payments from your new employer
will be offset by compensation you earn from any such new employer during the
period in which you receive semi-monthly payments pursuant to clause (ii)
hereunder. In addition, in the event of termination "without cause" of your
employment during the term of this letter agreement, (i) Arby's shall, within 30
days after the effective date of such termination, pay to you a lump sum equal
to a pro rata portion of the annual target incentive for the year of termination
and any funds accumulated as part of your mid-term cash performance plan, (ii)
you will be entitled, at your election, to continue for 18 months your coverage
under all health and medical insurance policies, pursuant to Section 4980B of
the Internal Revenue Code, as amended, or under Part 6 of Title I of the
Employee Retirement Income Security Act of 1974, as amended, maintained by
Arby's, the cost of such coverage to be allocated between you and Arby's in a
manner consistent with the allocation of the costs thereof applicable
immediately prior to the termination of your employment, and (iii) all
outstanding TRIARC stock options granted to you (a) which have not vested as of
the effective date of such termination shall terminate and become null and void
as of the effective date of such termination, and (b) which have vested prior to
or as of the effective date of such termination, must be exercised within the
earlier of (i) 90 days or (ii) the date on which such option expires, or be
forfeited. In consideration of the monies to be paid and the benefits to be
provided to you pursuant to this paragraph, you agree to execute and deliver to
Arby's on or before any payment by Arby's a release, substantially in the form
in Exhibit 1, failing which, except to the extent required by law, Arby's shall
be relieved of all of its obligations hereunder. Terminated by Arby's "without
cause" shall mean the termination of your employment by Arby's for any reason
other than those set forth in clauses (i)-(ix) of the sixth paragraph of this
letter agreement, (ii) a requirement that you relocate outside the southern
Florida or Atlanta, Georgia metropolitan areas without your consent, (iii) a
requirement that you report to any person other than Arby's Board of Directors,
(iv) a reduction in your then current base salary and (v) a substantial material
reduction in your responsibilities as President and Chief Executive Officer of
Arby's.
For the purposes of this letter agreement, the term "Change in Control"
shall mean: (i) the acquisition by any person of 50% or more of the combined
voting power of Arby's (or any direct or indirect parent corporation's) or
TRIARC's outstanding securities entitled to vote generally in the election of
directors; or (ii) a majority of the Directors of Arby's (or any direct or
indirect parent corporation) or TRIARC being individuals who are not nominated
by the Board of Directors of Arby's (or any direct or indirect parent
corporation) or TRIARC, as the case may be. Notwithstanding the foregoing, (i)
the acquisition of any portion of the combined voting power of Arby's (or any
direct or indirect parent corporation) or TRIARC by DWG Acquisition Group, L.P.,
Nelson Peltz or Peter May, or by any person affiliated with such persons, (ii)
any transaction which results in or has the effect of the continued possession
(whether direct or indirect) by TRIARC, DWG Acquisition, Group L.P., Nelson
Peltz, Peter May or an affiliate of any thereof, of the power to influence the
management or policies of Arby's, whether through the ownership of voting
securities, by contract or otherwise, (iii) the distribution by means of a
dividend, spin-off, split-off or similar transaction of voting securities of
Arby's, any direct or indirect parent corporation of Arby's or TRIARC or, (iv)
any sale of securities by Arby's, any direct or indirect parent corporation of
Arby's or TRIARC, pursuant to a public offering or securitization transaction,
as the case may be, shall in no event constitute, a Change in Control. If,
following a Change in Control and during the term of you employment hereunder, a
Triggering Event (as hereinafter defined) occurs and thereafter you resign as an
officer and employee of Arby's within twelve (12) months of such Change in
Control, you shall be entitled to receive, commencing on the effective date of
such resignation, the same payments and other benefits to which you would have
been entitled had Arby's terminated your employment "without cause"; provided,
however, that (A) notwithstanding clause (iii)(a) of the second to last sentence
of the immediately preceding paragraph, upon such a resignation, all outstanding
stock options granted to you which have not vested as of the effective date of
such resignation shall vest as of such date and (B) the payment of any monies
and provision of any benefits to you pursuant to this paragraph shall be subject
to your prior execution and delivery to Arby's of a release, substantially in
the form in Exhibit 1, failing which, except to the extent required by law,
Arby's shall be relieved of all of its obligations hereunder. For purposes of
this agreement, "Triggering Event" shall mean: (i) a material alteration of your
duties, authority, title or compensation following such Change in Control; or
(ii) without your consent, relocation to a work situs not in southern Florida or
the Atlanta, Georgia metropolitan area following such Change in Control.
Upon any termination of your employment with Arby's, you will promptly
return to Arby's all property owned by Arby's or any of its affiliates,
including, but not limited to, credit cards, computers, automobiles, cell phones
and files.
For purposes of this agreement, "cause" means: (i) commission of any act of
fraud or gross negligence by you in the course of your employment hereunder
which, in the case of gross negligence, has a material adverse effect on the
business or financial condition of Sybra, Arby's or any of their affiliates;
(ii) willful material misrepresentation at any time by you to any superior
executive officer of TRIARC or any of its affiliates or to the Chairman of the
Board of Arby's or TRIARC; (iii) voluntary termination by you of your employment
or the willful failure or refusal to comply with any of your material
obligations hereunder or to comply with a reasonable and lawful instruction of
any superior officer of TRIARC or the Board of Directors of Arby's, Sybra or
TRIARC; (iv) engagement by you in any conduct or the commission by you of any
act which is, in the reasonable opinion of Arby's, materially injurious or
detrimental to the substantial interest of TRIARC, Sybra or Arby's; (v)
indictment for any felony, whether of the United States or any state thereof or
any similar foreign law to which you may be subject; (vi) any failure
substantially to comply with any written rules, regulations, policies or
procedures of TRIARC, Sybra or Arby's furnished to you which, if not complied
with, could reasonably be expected to have a material adverse effect on the
business of TRIARC, Sybra or Arby's or any of their affiliates; (vii) any
willful failure to comply with TRIARC's or any of its affiliates' policies
regarding insider trading; (viii) your death; or (ix) your inability to perform
all or a substantial part of your duties or responsibilities on account of
illness (either physical or mental) for more than 90 consecutive calendar days
or for an aggregate of 150 calendar days during any consecutive nine month
period. A decision by Arby's or you to deliver the notice referred to in the
second paragraph of this letter shall not constitute "cause".
You acknowledge that as Arby's President and Chief Executive Officer you
will be involved, at the highest level, in the development, implementation, and
management of Arby's business strategies and plans, including those which
involve Arby's finances, marketing and other operations, industrial relations
and acquisitions. By virtue of your unique and sensitive position, your
employment by a competitor of Arby's represents a serious competitive danger to
Arby's and the use of your talent, knowledge and information about Arby's
business, strategies and plans can and would constitute a valuable competitive
advantage over Arby's. In view of the foregoing, if either your employment with
Arby's ends prior to the end of the term of this letter agreement by reason of
your resignation, or your employment is terminated by Arby's for cause, then you
covenant and agree that in either case, for a period of 18 months following the
termination of your employment with Arby's, you will not hire or cause to be
hired any employee of Triarc or Arby's or any of their respective affiliates (at
the level of director or above) with whom you had contact during the course of
your employment with Arby's.
You agree to treat as confidential and not to disclose to anyone other than
Arby's and its subsidiaries and affiliated companies, and you agree that you
will not at any time during your employment and for a period of four years
thereafter, without the prior written consent of Arby's, divulge, furnish, or
make known or accessible to, or use for the benefit of anyone other than Arby's,
its subsidiaries, and affiliated companies, any information of a confidential
nature relating in any way to the business of Arby's or its subsidiaries or
affiliated companies, or any of their respective direct business customers,
unless (i) you are required to disclose such information by requirements of law,
(ii) such information is in the public domain through no fault of yours, or
(iii) such information has been lawfully acquired by you from other sources
unless you know that such information was obtained in violation of an agreement
of confidentiality. You further agree that during the period referred to in the
immediately preceding sentence you will refrain from engaging in any conduct or
making any statement, written or oral which is detrimental to the interests of
Triarc, Arby's, Sybra or any of their respective subsidiaries or any of their
affiliates or any of their respective shareholders, directors, officers or
employees. Arby's agrees during the period referred to in the first sentence of
this paragraph that each then current member of its or TRIARC's Board of
Directors and each of its or TRIARC's then current executive officers shall
refrain from making any statement, written or oral, which is disparaging of you,
your personal reputation or professional competency.
You agree that, in addition to any other remedy provided at law or in
equity, (a) Arby's shall be entitled to a temporary restraining order, and both
preliminary and permanent injunctive relief restraining you from violating any
of the provisions of the preceding two paragraphs, (b) you will indemnify and
hold Arby's, TRIARC and their affiliates harmless from and against any and all
damages or losses incurred by TRIARC, Arby's or any of their affiliates
(including reasonable attorneys' fees and expenses) as a result of any willful
or reckless violation by you of any such provisions and (c) upon any such
willful or reckless violation by you, Arby's' remaining obligations under this
letter agreement, if any, shall cease (other than payment of your base salary
through the date of such violation and any earned but unpaid vacation, and other
than as may otherwise be required by law).
This letter agreement shall be governed by the laws of the State of Florida
applicable to agreements made and to be performed entirely within such State.
This letter agreement contains the entire agreement among the parties with
respect to the matters covered herein and supersedes all prior agreements,
written or oral, with respect thereto. This letter agreement may only be
amended, superseded, cancelled, extended or renewed and the terms hereof waived,
by a written instrument signed by the parties hereto, or in the case of a
waiver, by the party waiving compliance.
The provisions of the eighth, ninth, tenth, eleventh and twelfth paragraphs
of this letter agreement shall specifically survive any termination of this
letter agreement.
You agree that the Company may withhold from any amounts payable to you
hereunder all federal, state, local or other taxes that the Company determines
are required to be withheld pursuant to any applicable law or regulation. You
further agree that if the Internal Revenue Service or other Taxing Authority
(each, a "Taxing Authority") asserts a liability against the Company for failure
to withhold taxes on any payment hereunder, you will pay to the Company the
amount determined by such taxing authority (other than penalty or interest
amounts unless such payment is made after 30 days of the delivery of such notice
to you, in which case you shall be responsible for such penalties and interest)
that had not been withheld within thirty (30) days of notice to you of such
determination. Such notice shall include a copy of any correspondence received
from a Taxing Authority with respect to such withholding.
If you agree with the terms outlined above and in the Term Sheet, please
date and sign the copy of this letter agreement enclosed for that purpose and
return it to me.
Sincerely,
/s/ Jonathan P. May
Jonathan P. May
Chairman of the Board
Agreed and Accepted as of the 28th day of November, 2003.
/s/ Douglas N. Benham
Douglas N. Benham
Douglas N. Benham
President and Chief Executive Officer of Arby's, Inc.
Employment Term Sheet
PROVISION TERM COMMENTS
---------------------------------------- -------------------------------- ---------------------------------------------------
Contract Term January, 5, 2004 through
December 31, 2006
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Base Salary $400,000/year Subject to the sole discretion of the Arby's Board
of Directors, but not decrease.
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Annual Incentive $300,000/cycle target (75% of Company and individual performance assessed for
salary) each fiscal year relative to objective agreed in
advance between executive and Arby?s Board of
Directors.
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Mid-Term Cash Incentive Plan $300,000/ three-year cycle The executive and representatives of TRIARC,
2004-2006 Cycle target (75% of salary) Arby?s parent, will jointly develop a mid-term
cash performance plan calibrated to deliver the
target award for delivering agreed upon profit over
a three-year performance cycle; during each year
of the three-year cycle amount will be accrued
based upon a share of the company's profits over
a minimum return; a new three-year cycle begins
each year so that after the third year the annual
cash pay-out should equal or exceed the target;
no cap on potential award.
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Mid-Term Cash Incentive Plan $200,000/three-year cycle
2003-2005 Cycle target (50% of salary).
You will be deemed to have been a
participant commencing in 2003 and
will be entitled to receive any
earned payment as soon as
practicable following the close
of audited books for 2005
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Triarc Stock Options Initial grant of 150,000 Future grants consistent with status to be
options for Triarc Class B, considered by TRIARC Performance Compensation
Series 1, common stock in Subcommittee during term of employment.
connection with commencement of
employment, subject to TRIARC
Performance Compensation
Subcommittee approval. Options will
have a term of ten years from date
of grant and shall to vest 1/3
(50,000) per year on each of the
three consecutive anniversary dates
from the date of grant.
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Car Allowance Allowance consistent with status.
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Benefits Benefits as are made available to other
executives of Arby's, including participation in
Arby's health/ medical and insurance programs
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Vacation Four weeks
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Relocation See attachment
---------------------------------------- -------------------------------- ---------------------------------------------------
---------------------------------------- -------------------------------- ---------------------------------------------------
Housing Support on early termination If employment is terminated by Arby's "without
cause," the provisions of the attached relocation
policy (other than the "Guaranteed Offer Program"
and "Tax Gross-Up") will be applicable to the
executive's relocation outside of southern
Florida for six months from the date of such
termination.
---------------------------------------- -------------------------------- ---------------------------------------------------
EXHIBIT 1
GENERAL RELEASE
AND COVENANT NOT TO SUE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW that:
Douglas N. Benham (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 Letter Agreement dated as of
November 28, 2003 (the "Employment Agreement") between the Executive and Arby's,
Inc. (d/b/a Triarc Restaurant Group (the "Company")), does hereby covenant not
to sue or pursue any litigation (or file any charge or otherwise correspond with
any Federal, state or local administrative agency) against, and waives, releases
and discharges the Company, Triarc Companies, Inc. and their respective 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 unknow,
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 Sue
against any of them, 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, as amended ("ADEA"), the Old Workers Benefit Protection Act, Title VII of
the Civil Rights Act of 1964, 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 under the Employment Agreement or any rights
to indemnification under any charter or by-laws (or similar documents) of any
member of the Company Group. The Executive further agrees that this General
Release and Covenant Not to Sue may be pleaded as a full defense to any action,
suit 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 Sue voluntarily and
knowingly, and this General Release and Covenant Not to Sue 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 Sue from
filing a charge with any relevant Federal, State or local administrative agency,
but the Executive agrees not to participate in, and agrees to waive his rights
with respect to any monetary or other financial relief arising from any such
administrative proceeding.
The Company, on its own behalf and on behalf of its assigns, affiliates,
subsidiaries, parents, predecessors and successors, and its past and present
shareholders, employees, officers, directors, representatives and agents or any
of them, does hereby covenant not to sue or pursue any litigation (or file any
charge or otherwise correspond with any Federal, state or local administrative
agency) against, and waives, releases and discharges the Executive and his
heirs, successors and assigns, descendants, dependents, executors and
administrators, past and present, and any of his affiliates and each of them
(collectively, the "Executive Releasees") 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 Company or any of its subsidiaries ever had, now has or shall
or may have or assert as of the date of this General Release and Covenant Not to
Sue against any of them, based on facts known to any executive officer of the
Company as of the date of this General Release and Covenant Not to Sue (other
than the Executive), including specifically, but not exclusively and without
limiting the generality of the foregoing, any and all claims, demands,
agreements, obligations and causes of action arising out of or in any way
connected with any transaction, occurrence, act or omission related to the
Executive's employment by the Company or any of its subsidiaries or the
termination of that employment; provided, however, that nothing herein shall
release the Executive Releasees from any obligations arising out of or related
in any way to the Executive's obligations under the Employment Agreement or any
agreement governing the terms of any stock options granted to the Executive or
impair the right or ability of the Company to enforce the terms hereof.
In consideration for the amounts payable and benefits to be provided to the
Executive under the Employment Agreement, the Executive agrees to cooperate, at
the expense of the Company Group, with the members of the Company Group in
addition 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 request of the Executive in connection with such claims.
In furtherance of their respective agreements set forth above, each of the
Executive and the Company hereby expressly waives and relinquishes any and all
rights under any applicable statute, doctrine or principle of law restricting
the right of any person to release claims which such person does not know or
suspect to exist at the time of executing a release, which claims, if known, may
have materially affected such person's decision to give such a release. In
connection with such waiver and relinquishment, each of the Executive and the
Company acknowledges that it is aware that it may hereafter discover claims
presently unknown or unsuspected, or facts in addition to or different from
those which it now knows or believes to be true, with respect to the matters
released herein. Nevertheless, it is the intention of each of the Executive and
the Company to fully, finally and forever release all such matters, and all
claims relative thereto which now exist, may exist or theretofore have existed,
as specifically provided herein. The parties hereto acknowledge and agree 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 Sue shall be governed by and
construed in accordance with the laws of the State of Florida, 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 Sue, which he has waived, and the Company
agrees that the Executive may cancel this General Release and Covenant Not to
Sue at any time during the seven (7) days following the date on which this
General Release and Covenant Not to Sue has been signed by all parties to this
General Release and Covenant Not to Sue. In order to cancel or revoke this
General Release and Covenant Not to Sue, 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 Sue. If this
General Release and Covenant Not to Sue is timely cancelled or revoked, none of
the provisions of this General Release and Covenant Not to Sue 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 Employment Agreement and all contracts and provisions modified,
relinquished or rescinded hereunder shall be reinstated to the extent in effect
immediately prior hereto.
Each party agrees that as part of the consideration for this General
Release and Covenant Not to Sue, they will not make disparaging or derogatory
remarks, whether oral or written, about the other party or its representatives.
Each of the Executive and the Company acknowledges that it has entered
into this General Release and Covenant Not to Sue knowingly and willingly and
has had ample opportunity to consider the terms and provisions of this General
Release and Covenant Not to Sue.
IN WITNESS WHEREOF, the parties hereto have caused this General Release
and Covenant Not to Sue to be executed on this ______ day of ___________, ____.
-------------------------------------
Douglas N. Benham
ARBY'S, INC.
By:_________________________________
Name:
Title:
DOUGLAS N. BENHAM RELOCATION
Relocation Allowance
You will be provided, with a relocation allowance payable in one lump
sum (net of taxes) equal to three months salary at your then current annual
salary rate upon commencement of employment. The purpose of the relocation
allowance is to help defray your incidental expenses connected with the move for
which reimbursement is not provided. Examples of the types of expenses for which
the relocation allowance are provided are:
- additional return home trips and/or additional travel for your spouse
beyond the provisions of the moving policy
- charges for disconnection, reinstallation and/or alterations of
draperies, carpets, television antennas, etc.
- telephone installation charges and utility deposits
- new automobile license plates and registration fees
House Hunting Trips
You and your spouse (excluding children) are authorized three house
hunting trips to locate housing in the new location, each trip not to exceed
seven days. All reasonable expenses for such trips, including lodging, meals,
air travel in accordance with Arby's travel policy, car rental and car mileage
will be reimbursed.
Transportation of Household Goods
Arby's will be financially responsible for the packing, shipping,
unloading and insurance of all normal household goods and two personal
automobiles.
Travel to New Location
All expenses associated with traveling from the location of the former
residence to the new location will be reimbursed for you and your family,
including air travel in accordance with Arby's travel policy.
Temporary Living at New Location
If it becomes necessary for you to occupy temporary living quarters
during the course of the relocation, reasonable expenses for the actual cost of
lodging shall be reimbursed for a period of up to 180 days or Arby's will rent
for your use furnished housing for such period.
Residence Sale
Arby's will pay approved expenses incurred in selling a principal
residence at the old location. Such expenses include:
- broker's commission (normal and customary)
- escrow fees/seller's attorney's fees
- recording fees
- mortgage satisfaction fee
- mortgage prepayment penalty fee
- title policy fee
- documentary tax stamps and state and local sales transfer taxes
You will be eligible to participate in Arby's "Guaranteed Offer"
program through Cendant Mobility as more fully described in "Arby's Relocation
Policy A - Revised July, 1998"; provided, however, that in lieu of the 60 day
marketing period referred to therein, you agree that the marketing period shall
be 180 days, which period shall commence at your option any time prior to the
second anniversary of the commencement of your employment with Arby's; provided
further, that you shall not be eligible to participate in any portion of such
program which is deemed to be either an extension or maintenance of credit, an
arrangement for the extension of credit or the renewal of an extension credit,
in the form of a personal loan which would be prohibited from being made to you
by the terms of section 402 of the Sarbanes - Oxley Act of 2002.
Maintaining Two Homes
If you purchase a new home prior to selling the present home, and
therefore incur duplicate house carrying expenses (subsequent to the provisions
of "Temporary Living at New Location" above), Arby's will reimburse you on a pro
rated basis for the mortgage interest only for a maximum of 60 days.
Residence Purchase
You will be reimbursed for the normal closing costs associated with
buying a new house. Such costs shall include those items which by local custom
are normally paid by the buyer. Typical costs may include escrow fees,
attorney's fees, appraisals, recording fees, state transfer taxes and fee
(owner's) title insurance.
Tenant Relocation
If you are a tenant rather than a homeowner, Arby's will reimburse you
for reasonable expenses incurred in connection with early termination or
breaking of your lease.
Tax Gross-up
You will be entitled to be "grossed -up" at your tax bracket for those
items covered by this attachment (other than the "Relocation Allowance", above)
which are considered "tax adjusted" under the "Arby's Relocation Policy-A
Revised July 1998", to the extent such items are considered taxable income to
you.