Contract
EXHIBIT
10.1
AGREEMENT
This Agreement (this “Agreement”)
between WENDY’S/ARBY’S GROUP, INC., a Delaware corporation (the “Company”), and
TRIAN FUND MANAGEMENT, L.P., a Delaware limited partnership (“Trian”), is
entered into as of the 10th day of June, 2009.
WHEREAS,
the Company and Trian are parties to a Services Agreement dated as of April 30,
2007, as amended (the “Prior Services Agreement”), pursuant to which Trian
provides certain transition and other services to the Company, which Prior
Services Agreement shall terminate on June 30, 2009 (the “Effective
Date”);
WHEREAS,
the Company no longer requires the transition services provided pursuant to the
Prior Services Agreement but desires to obtain certain ongoing services of the
nature of certain of the services provided pursuant to the Prior Services
Agreement; and
In
consideration of the mutual covenants contained herein, the parties hereto
hereby agree as follows:
a. consultation
and advice in connection with sourcing, evaluating and executing (including,
without limitation, preparing financial models and other analyses and reviewing
documentation) acquisitions of the capital stock or assets of other quick
service restaurant businesses or other related or complementary businesses or
assets;
b. consultation
and advice with respect to corporate finance and investment banking, including,
without limitation, evaluating and executing capital markets and debt financing
transactions and advice and assistance in connection with the negotiation of
agreements, contracts, documents and instruments related
thereto;
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c. consultation
and advice with respect to strategic initiatives to increase stockholder value,
including, without limitation, financial, managerial and operational advice in
connection with the Business, including advice with respect to the development
and implementation of strategies for improving the operating and financial
performance of the Company;
d. consultation
and advice in connection with legal matters relating to the foregoing;
and
e. such
other services related to the foregoing as management of the Company shall
reasonably request from time to time.
Each of
Xxxxxx Xxxxx, Xxxxx X. May and Xxxxxx X. Garden, principals of Trian, shall
devote such time and efforts to the performance of the services contemplated
hereby as shall be reasonably necessary or appropriate to provide the Services
hereunder. In addition, Trian shall commit such resources, including
personnel, as shall be reasonably necessary or appropriate to perform the
Services hereunder.
(b) In
the event that Trian shall provide substantial assistance to the Company in
connection with a merger and acquisition, corporate finance and/or similar
transaction that is consummated at any time during the period commencing on the
date hereof and ending six months following the expiration of the Term, the
parties shall negotiate in good faith with respect to a success fee, if any,
payable by the Company to Trian in connection therewith; provided, however, that
(i) any such fee shall be reasonable and customary for engagements similar in
scope between unaffiliated parties negotiating at arms’ length with respect to
transactions similar in size and complexity and (ii) any such fee shall be
approved by the Audit Committee of the Board of Directors.
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hereto
(as such list may be amended from time to time by written notice from Trian to
the Company, the “Covered Individuals”) to be named on the Company’s directors’
and officers’ liability policy and employed lawyers professional liability
insurance policy. If either such policies is cancelled or otherwise
terminated during the Coverage Period, and a replacement policy with terms and
conditions that are, in the aggregate, no less favorable to the insured with
respect to claims arising from acts or omissions arising prior to and including
such cancellation or termination date than are currently in effect is not put
into effect without any lapse in coverage, the Company shall obtain extended
reporting or tail coverage on the applicable insurance policy for the benefit of
the Covered Individuals on terms and conditions that are, in the aggregate, no
less favorable to the insured with respect to claims arising from acts or
omissions arising prior to and including the cancellation or termination date
than are currently in effect; provided, that such extended reporting or tail
coverage can be obtained and maintained on commercially reasonable terms and at
a cost to the Company not greater than 200% of the aggregate annual premium for
the directors’ and officers’ liability insurance policy and/or employed lawyers
professional liability insurance policy, as applicable, maintained by the
Company on the date hereof; provided, further, that if the annual premiums of
such insurance coverage exceed such amount, the Company shall be obligated to
obtain policies with the greatest coverage available for a cost not exceeding
such amount.
(b) Notwithstanding
the terms of any indemnification agreement between the Company and those persons
who will be providing services to the Company under this Agreement (each an
“Indemnification Agreement”), each such Indemnification Agreement shall continue
in full force and effect with respect to the services provided hereunder subject
to thee exclusions set forth in clause (a) above. The indemnification
pursuant to the Indemnification Agreements shall not be deemed exclusive of any
other rights to which such persons may be entitled under the Company’s
Certificate of Incorporation or By-laws or under any other agreement, contract
of insurance, vote of stockholders or disinterested directors, or otherwise, or
of the broader power of the Company to indemnify an agent of the company as
authorized by Delaware law.
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(b) If
Trian or any individual that provides the Services becomes legally compelled (by
deposition, interrogatory, request for documents, order, subpoena, civil
investigative demand or similar process issued by a court of competent
jurisdiction or by a governmental body) to disclose any Confidential
Information, then, to the extent legally permissible, Trian will give notice of
such requirement to the Company as promptly as practicable so that the Company
or any of its affiliates may seek a protective order or other appropriate remedy
and/or waive compliance with the terms of this Agreement. If such
protective order or other remedy is not obtained, and regardless of whether or
not compliance with the provisions hereof is waived, then only that portion of
the Confidential Information that Trian is advised in writing by counsel is
legally required to be disclosed (which counsel shall be reasonably satisfactory
to the Company), will be disclosed by Trian or the individual that provides the
Services, and commercially reasonable efforts will be made by Trian to obtain
assurance that confidential treatment will be afforded such portion of such
Confidential Information; provided that the Company shall, at Trian’s option,
either advance the third party costs and expenses necessary for Trian to seek
to
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obtain
such confidential treatment or promptly reimburse Trian for its out-of-pocket
costs and expenses incurred to seek to obtain such assurance of confidential
treatment hereunder.
(c) The
provisions herein governing Confidential Information shall be separate and in
addition to any other agreements or obligations that Trian and its partners,
employees or agents may be subject to regarding the confidential, trade secret
and/or proprietary nature of information related to the Company or its
affiliates and the provisions set forth herein shall not in any way supersede or
otherwise limit any such other agreements or obligations.
11. Entire
Agreement. This Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof. For the avoidance of
doubt, the Prior Services Agreement shall continue in full force and effect
until the Effective Date.
To the
Company at:
Wendy’s/Arby’s
Group, Inc.
0000
Xxxxxxxxx Xxxxxx Xxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxx 00000
Attn: General
Counsel
To Trian
at:
Trian
Fund Management, L.P.
000 Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Chief
Legal Officer
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16. Governing
Law. Notwithstanding the place where this Agreement may be executed
by either of the parties hereto, the parties expressly agree that all terms and
provisions hereof shall be governed by and construed in accordance with the
internal laws of the State of New York applicable to contracts made and wholly
performed, and to transactions wholly consummated, within that
State.
18. Arbitration. Any
dispute, controversy or claim arising out of or relating to this Agreement, or
the breach thereof, that the parties are not able to resolve after good faith
efforts over a period of 15 days shall be settled by a single arbitrator in an
arbitration conducted in the Borough of Manhattan, The City of New York, and
administered by the American Arbitration Association (the
“AAA”). Such arbitration shall be under the Commercial Arbitration
Rules of the AAA and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. Each party shall be
responsible for its own fees and costs associated with such
arbitration.
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Agreed to
and accepted as of the 10th day of June, 2009.
WENDY’S/ARBY’S GROUP,
INC.
By: /s/ XXXX X.
XXXXXX
Name: Xxxx X. Xxxxxx
Title: SVP, General Counsel and
Secretary
TRIAN FUND MANAGEMENT,
L.P.
By: Trian
Fund Management GP, LLC
its General Partner
By: /s/ XXXXXX X.
GARDEN
Name: Xxxxxx X. Garden
Title: Member
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ANNEX
A
D&O
Policy
Xxxxxx
Xxxxx
Xxxxx X.
May
Xxxxxx X.
Garden
Xxxxx X.
Xxxxxx
Xxxxxx X.
Xxxxx
Xxxx
Xxxxxx
Xxxx X.
Xxxxxxx
Xxxx
Xxxxxx
Xxxxx X.
Xxxxx
Xxxxxx
Xxxxx
Xxxxx
Xxxxxx
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxx
Employed
Lawyers Policy
Xxxxx X.
Xxxxxx
Xxxxxx X.
Xxxxx
Xxxxx X.
Xxxxx