EXHIBIT 10.2
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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).
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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
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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.
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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
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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)
If any competent authority having jurisdiction over this
paragraph 6 determines that any of the provisions of this paragraph
6
is unenforceable because of the duration or geographical scope of
such
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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.
7.
CONFIDENTIAL INFORMATION. You agree to treat as confidential
and
not to disclose to anyone other than Arby's
and its subsidiaries and affiliates,
and their respective officers, directors,
employees and agents, 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 affiliates,
any information of a confidential
nature relating in any way to the business
of Arby's or its subsidiaries or
affiliates, or any of their respective
franchisees, suppliers or distributors,
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 so
