ARBY'S RESTAURANT GROUP, INC.

 

 

                                                                    EXHIBIT 10.2

                                                                    ------------

 

 

                          ARBY'S RESTAURANT GROUP, INC.

 

 

                                                                   July 25, 2005

Mr. Douglas N. Benham

2905 Andrews Drive,

NW Atlanta, GA 30305

 

Dear Doug:

 

         It is with great pleasure that we hereby reconfirm your employment as

President and Chief Executive Officer of Arby's Restaurant Group, Inc.

("ARBY'S"), on the terms and conditions set forth in this letter agreement and

in the attached term sheet (the "TERM SHEET"), which Term Sheet is hereby

incorporated herein by reference. You further agree to accept election and to

serve as a director, officer, manager or representative of any subsidiary of

Arby's without any compensation therefor, other than as provided in this letter

agreement. You will report to the Board of Directors of Arby's (the "BOARD") and

your duties will be performed primarily at the corporate headquarters of Arby's

in Atlanta, Georgia.

 

         1.     TERM. The term of your employment hereunder shall be effective

as of (and subject to) the consummation of the transactions contemplated by the

Agreement and Plan of Merger and Contribution, dated as of May 27, 2005, by and

among Triarc Companies, Inc. ("TRIARC"), Arby's Acquisition Co., Arby's

Restaurant, LLC, RTM Restaurant Group, Inc. ("RTMRG") and certain other parties,

the date of the consummation of such transactions being referred to herein as

the "EFFECTIVE DATE", and shall continue through the third anniversary of the

Effective Date (the "INITIAL TERM"); PROVIDED, HOWEVER, that the term of your

employment hereunder may be extended for additional one year periods beyond the

expiration of the Initial Term (the Initial Term together with any extension

shall be referred to hereinafter as the "EMPLOYMENT TERM") if (a) you provide

written notice to Arby's (a "RENEWAL Notice") of your desire to so extend your

employment by no later than (i) in the case of the first one year extension

beyond the Initial Term, the second anniversary of the Effective Date and (ii)

in the case of any subsequent one year extension, the date that is one year

prior to the expiration of the Employment Term, and (b) Arby's delivers to you,

within 35 days following such anniversary or date, as applicable, a notice of

acceptance (an "ACCEPTANCE NOTICE") of such extension. In the event that either

you do not deliver a timely Renewal Notice to Arby's or Arby's does not deliver

an Acceptance Notice to you (either because Arby's delivered a notice to you

rejecting your request to extend the Employment Term or because Arby's failed to

deliver any notice in a timely manner), then your employment hereunder shall

terminate as of the earlier of (a) the expiration of the Employment Term or (b)

upon a termination of your employment (i) by the Company "without cause" (ii)

for "cause" or (iii) by you due to a "Triggering Event" (each term as

hereinafter defined).

 

 

<PAGE>

 

         2.     TERMINATION WITHOUT CAUSE OR DUE TO A TRIGGERING EVENT.

 

                (a)     In the event your employment is terminated by Arby's

         without cause or by you due to a Triggering Event:

 

                        (i)     Arby's shall, commencing on the date of such

         termination of employment, pay to you an amount (the "FIRST YEAR

         PAYMENT") 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, that, if the

         date of your termination is after an initial public offering of Arby's

         Capital Stock on a nationally recognized stock exchange and if required

         to comply with Section 409A of the Internal Revenue Code of 1986, as

         amended (the "CODE") and any Treasury regulations or other guidance

         promulgated thereunder, you will receive one half (1/2) of the First

         Year Payment on the six-month anniversary of the date of your

         termination in a lump sum payment, and the remaining half of the First

         Year Payment shall thereafter be paid in semi-monthly installments for

         the remainder of such twelve-month period;

 

                        (ii)    Arby's shall, commencing twelve (12) months

         after the effective date of such termination of your employment, pay to

         you an amount equal to your annual base rate of salary in effect as of

         the effective date of such termination, payable in semi-monthly

         installments for an additional period of twelve (12) months (the

         "SECOND YEAR PAYMENT PERIOD"); PROVIDED, HOWEVER, that if you have

         secured employment or are providing consulting services prior to or

         during the Second Year Payment Period, such semi-monthly payments

         required to be made to you by Arby's during the Second Year Payment

         Period will be offset by compensation you earn from any such employment

         or services during the Second Year Payment Period;

 

                        (iii)   Arby's shall, within 30 days after the effective

         date of such termination, pay to you a lump sum amount equal to the sum

         of (x) the product of your target annual bonus multiplied by a

         fraction, the numerator of which is the number of days from January 1

         of the year in which your employment terminated through the date of

         such termination and the denominator of which is 365 and (y) any

         amounts that have been accrued for your benefit under the Triarc

         Restaurant Group Senior Executive Mid-Term Incentive Plan (the

         "Mid-Term Plan") through July 25, 2005 that have not been paid to you

         prior to the date of payment pursuant to this clause (iii) or paragraph

         16 hereof; and

 

                        (iv)    at your election you will be entitled to

         continue your coverage under all health and medical insurance policies

         maintained by Arby's for the greater of (I) the time period commencing

         immediately following your termination of your employment and ending

         when you

 

 

                                       2

<PAGE>

 

         cease receiving payments pursuant to clause (a)(ii) above and (II)

         eighteen (18) months following the termination of your employment, in

         each case in fulfillment of Arby's obligations to you under Section

         4980B of the Code or under Part 6 of Title I of the Employee Retirement

         Income Security Act of 1974, as amended, the cost of such coverage to

         be allocated between you and Arby's in a manner consistent with the

         percentage allocation of the costs thereof applicable immediately prior

         to the termination of your employment; and

 

                        (v)     you will automatically become vested in that

         number of outstanding unvested stock options granted to you by Triarc

         in which you would have been vested if you had remained employed by

         Arby's through the date which is the earlier of (x) the third

         anniversary of the Effective Date or (y) the last day of the Second

         Year Payment Period and any stock options that would have remained

         unvested as of such date shall be automatically forfeited as of the

         date of your termination, and each vested stock option must be

         exercised within the earlier of (I) one (1) year following your

         termination or (II) the date on which such stock option expires, or be

         forfeited.

 

                (b)     A termination by Arby's "WITHOUT CAUSE" shall mean the

         termination of your employment by Arby's for any reason other than

         those reasons set forth in clauses (i)-(ix) of paragraph 4 of this

         letter agreement.

 

                (c)     The payment of any monies and provision of any benefits

         to you pursuant to this paragraph 2 shall be subject to your prior

         execution and delivery to Arby's of a release substantially in the form

         set forth in Exhibit 1 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, Arby's shall be

         relieved of all of its obligations hereunder.

 

                (d)     For purposes of this letter agreement, "TRIGGERING

         EVENT" shall mean: (i) a material reduction in your responsibilities as

         President and Chief Executive Officer of Arby's; (ii) a requirement

         that you report to any person other than the Board; (iii) a reduction

         in your then current base salary (as described in the Term Sheet) or

         target bonus percentage (as described in the Term Sheet); or (iv)

         without your consent, relocation to a work situs not in the Atlanta,

         Georgia greater metropolitan area; PROVIDED that a Triggering Event

         shall only be deemed to have occurred if, no later than thirty (30)

         days following the time you learn of the circumstances constituting a

         Triggering Event, you provide a written notice to Arby's containing

         reasonable details of such circumstances and within thirty (30) days

         following the delivery of such notice to Arby's, Arby's has failed to

         cure such circumstances.

 

 

                                       3

<PAGE>

 

         3.     TREATMENT OF STOCK OPTIONS ON TERMINATION DUE TO DISABILITY.

In the event your employment is terminated by Arby's due to "Disability" (as

hereinafter defined), you will automatically become vested in that number of

outstanding unvested stock options granted to you by Triarc in which you would

have been vested if you had remained employed by Arby's through the date which

is the earlier of (x) the third anniversary of the Effective Date or (y) the

last day of the Second Year Payment Period and any stock options that would have

remained unvested as of such date shall be automatically forfeited as of the

date of your termination, and each vested stock option must be exercised within

the earlier of (I) one (1) year following your termination or (II) the date on

which such stock option expires, or be forfeited.

 

         4.     CAUSE. For purposes of this letter agreement, "CAUSE" means: (i)

commission of any act of fraud or gross negligence by you in the course of your

employment hereunder that, in the case of gross negligence, has a material

adverse effect on the business or financial condition of Arby's or any of its

affiliates; (ii) willful material misrepresentation at any time by you to the

Board; (iii) voluntary termination by you of your employment (other than on

account of a Triggering Event) 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 the Board; (iv) engagement by you in any conduct or the

commission by you of any act that is, in the reasonable opinion of the Board,

materially injurious or detrimental to the substantial interest of Arby's or any

of its affiliates; (v) your 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 Arby's furnished to you that, if not

complied with, could reasonably be expected to have a material adverse effect on

the business of Arby's or any of its affiliates; (vii) any willful failure to

comply with Arby's 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 your 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.

 

         5.     RETURN OF PROPERTY. Upon any termination of your employment with

Arby's, you will promptly return to Arby's all property provided to you and

owned by Arby's or any of its affiliates, including, but not limited to, credit

cards, computers, personal data assistants, automobiles, cell phones and files.

 

         6.     NONCOMPETE/NONSOLICITATION/EMPLOYEE NO-HIRE.

 

                (a)     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, and acquisitions and, as a result, you

         will have access to Arby's most valuable trade secrets and proprietary

         information. By virtue of your unique and sensitive position, your

         employment by a competitor of Arby's represents a material unfair

         competitive danger to Arby's and the use of your knowledge and

 

 

                                       4

<PAGE>

 

         information about Arby's' business, strategies and plans can and would

         constitute a competitive advantage over Arby's. You further acknowledge

         that the provisions of this paragraph 6 are reasonable and necessary to

         protect Arby's legitimate business interests.

 

                (b)     In view of clause (a) above, you hereby covenant and

         agree that during your employment with Arby's (except in the proper

         discharge of your duties hereunder) and for a period of twenty-four

         (24) months following the termination of your employment with Arby's:

 

                        (i)     in any state or territory of the United States

         (and the District of Columbia) where Arby's maintains restaurants, you

         will not engage or be engaged in any capacity, "directly or indirectly"

         (as defined below), 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, directly or indirectly, without

         Arby's prior written consent, hire or cause to be hired, solicit or

         encourage to cease to work with Arby's 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

         Arby's or any of its subsidiaries or affiliates at the level of

         director or any more senior level or a consultant under contract with

         Arby's 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 Arby's or any of its

         subsidiaries or affiliates to cease doing business with Arby's or

         subsidiary or affiliate, or to reduce the amount of business such

         franchisee or supplier does with Arby's or such subsidiary or

         affiliate.

 

                (c)     For purposes of this paragraph 6, "DIRECTLY OR

         INDIRECTLY" means in your individual capacity for your own benefit or

         as a shareholder, lender, partner, member or other principal, officer,

         director, employee, agent or consultant of or to any individual,

         corporation, partnership, limited liability company, business trust,

         association or any other entity whatsoever; PROVIDED, however, that you

         may own stock in Arby's and may operate, directly or indirectly, Arby's

         restaurants as a franchisee without violating paragraphs 6(b)(i) or

         6(b)(iii).

 

                (d)