exhibit10-3_061009.htm


    EXHIBIT
10.3

     

    

      WITHDRAWAL
AGREEMENT

      


      This Withdrawal Agreement (this
“Agreement”) between TCMG-MA, LLC (the “Investor”), an entity wholly owned and
controlled by WENDY’S/ARBY’S GROUP, INC., a Delaware corporation (the
“Company”), and TRIAN FUND MANAGEMENT, L.P., a Delaware limited partnership (the
“Investment Manager”), is entered into as of the 10th day of June,
2009.

      


      WHEREAS, the Investor and the
Investment Manager are parties to that certain Amended and Restated Investment
Management Agreement dated as of April 30, 2007 (the “Investment Management
Agreement”);

      


      WHEREAS, the Investor has maintained
the Account since December 1, 2005 (the “Contribution Date”);

      


      WHEREAS, the Investor pays a Management
Fee of 2% per annum on the Account balance and is obligated to pay certain
performance fees under specified circumstances;

      


      WHEREAS, pursuant to the Investment
Management Agreement, the Investor is not permitted to withdraw any capital from
the Account prior to December 31, 2010 (the “Lock-Up Period”);

      


      WHEREAS,
subsequent to the Contribution Date, the Company determined to focus its
business as a “pure play” restaurant company and, accordingly, the Investor has
requested the withdrawal of all of its capital in the Account and the
termination of the Investment Management Agreement prior to the expiration of
the Lock-Up Period in order to deploy such capital in the Company’s business;
and

      


      WHEREAS,
the Investment Manager is willing to permit such withdrawal on the terms and
conditions set forth in this Agreement.

      


      In
consideration of the mutual covenants contained herein, the parties hereto
hereby agree as follows:

      


      1.           All
capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Investment Management
Agreement.

      


      2.           Anything
contained in the Investment Management Agreement to the contrary
notwithstanding, the Investor shall be permitted to withdraw (the “Early
Withdrawal”) all of the capital in the Account effective no later than June 26,
2009 (such date, as may be mutually agreed upon by the Investor and the
Investment Manager on or prior to June 26, 2009, being referred to herein as the
“Early Withdrawal Date”), in accordance with the terms of this
Agreement.  The Early Withdrawal shall be subject to the payment by
the Investor to the Investment Manager of an early withdrawal fee in the amount
of $5,500,000 (the “Withdrawal Fee”).  The parties agree that the
Investment Manager shall transfer the Withdrawal Fee from the Account to the
Investment Manager on the Early Withdrawal Date.  The capital
remaining in the


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      Account
after the payment of the Withdrawal Fee and after giving effect to the In-Kind
Distribution (as defined below) is referred to herein as the “Withdrawal
Proceeds”.

      


      3.           Payments
and distributions hereunder shall be made as follows:

      


      (a)           Subject
to any legal or regulatory restrictions, on or prior to the Early Withdrawal
Date, the Investment Manager may distribute in kind to the Investor (the
“In-Kind Distribution”) certain securities held in the Account and mutually
agreed upon with the Investor (the “In-Kind Securities”).  The In-Kind
Securities shall be marketable securities, free and clear of all liens and other
encumbrances, including, without limitation, any restrictions on
transfer.

      


      (b)           The
Investment Manager shall deliver the Withdrawal Proceeds to the Investor in cash
on the Early Withdrawal Date without any reduction, reserve, hold back or
set-off.

      


      (c)           All
cash payments and In-Kind Distributions hereunder shall be paid by wire transfer
of immediately available funds or by delivery of securities through DTC to the
accounts specified in writing by the Investor.

      


      4.           The
Investment Manager represents and warrants to the Investor that, as of the date
hereof, it has not permitted early withdrawal or redemption of any capital
from either Trian Partners, L.P. or Trian Partners, Ltd. (together, the
"Trian Funds") by any Relevant Investor on more favorable fee terms than
those set forth in this Agreement.  The Investment Manager agrees that
if, on or prior to the date hereof, any more favorable withdrawal fee terms have
been afforded to any Relevant Investor with respect to any capital invested
in any of the Trian Funds, then (i) the Investment Manager will promptly
notify the Investor in writing of such more favorable fee terms (without
disclosing the identity of the Relevant Investor) and (ii) the more favorable
fee terms shall be effective retroactively with respect to the
Investor.

      


      5.           The
Investor acknowledges that as of the date hereof the Account holds an interest
in a Segregated Sub-Account related to Farrell Sports Concepts, Inc., a
Segregated Investment.  The Investment Manager represents and warrants
that such interest had a fair value of approximately $13,000 as of April 30,
2009.  In order to provide the Investor with maximum liquidity on the
Early Withdrawal Date, the Investor hereby agrees and consents to the sale of
such interest for cash by the Account to Trian Partners GP, L.P., an entity
controlled by Nelson Peltz, Peter W. May and Edward P. Garden, on the Early
Withdrawal Date at the fair value on such date of sale, unless such Segregated
Investment is earlier disposed of by the Account.  For purposes of the
foregoing consent, the Investor hereby assumes that the fair value of such
interest on the Early Withdrawal Date will be equal to the fair value of such
interest on April 30, 2009, unless otherwise informed in writing by the
Investment Manager prior to the consummation of such sale.

      


      6.           Effective
on the Early Withdrawal Date, the Investment Manager consents and agrees to the
forgiveness and cancellation of each of (i) that certain Amended and Restated
Promissory Note dated September 24, 2008, in the principal amount of $30,000,000
made by the Company and payable to the Investor and (ii) that certain Promissory
Note dated December 26, 2008, in the principal amount of $17,000,000 made by the
Company and payable to the Investor.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      7.           Effective
from and after the Early Withdrawal Date and upon satisfaction in full of all
obligations provided in this Agreement, in consideration for the withdrawal
rights granted hereunder, the Investor does hereby release and forever discharge
the Investment Manager and each of its officers, members, employees and
affiliates from any and all claims, debts, liabilities, demands, obligations,
costs, expenses, actions and causes of action, of every nature, character and
description, known or unknown, other than any such claims, debts, liabilities,
demands, obligations, costs, expenses, actions and causes of action that may
arise as a result of such person’s gross negligence, willful misconduct or
fraud, which it owns or holds, or has at any time heretofore owned or held, or
may at any time own or hold, and agrees not to bring any suit, action or
proceeding, by reason of any matter, cause or thing whatsoever occurred, done,
omitted or suffered to be done with respect to, or arising out of, the
Investor’s investment in the Account and the management of the Account by the
Investment Manager.

      


      8.           For
the avoidance of doubt, except as specifically amended hereby, the Investment
Management Agreement shall remain in full force and effect until the Early
Withdrawal Date, after which, provided the obligations of the parties hereunder
have been fulfilled, the Investment Management Agreement shall immediately
terminate and be of no further force and effect with respect to the Investor and
the Investment Manager.

      


      9.           Any
notice made or given in connection with this Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand or facsimile or
five days after mailed by certified mail, return receipt requested, as
follows:

      


      To the
Investor at:

      


      TCMG-MA,
LLC

      1155
Perimeter Center West

      Suite
1200

      Atlanta,
Georgia 30338

      Attn:  General
Counsel

      


      To the
Investment Manager at:

      


      Trian
Fund Management, L.P.

      280 Park
Avenue, 41st
Floor

      New York,
New York 10017

      Attn:  Chief
Legal Officer

      


      10.           No
provision of this Agreement may be amended, modified, waived or discharged
except as agreed to in writing by the parties.  The failure of a party
to insist upon strict adherence to any term of this Agreement on any occasion
shall not be considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      11.           This
Agreement, together with the Investment Management Agreement (as amended
hereby), constitutes the entire agreement between the parties hereto and
supersedes all other prior agreements or understandings between the parties
hereto pertaining to the subject matter hereof.

      


      12.           The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns.  No
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the prior written consent of the other
party.

      


      13.           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.

      


      14.           This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.

      


      Agreed to
and accepted as of the 10th day of June, 2009.

      


      TCMG-MA, LLC

      


      


      


      By: /s/ NILS H.
OKESON                             

                                                     Name:
Nils H. Okeson

                                                     Title:
SVP, General Counsel and Secretary

      


      


      


      TRIAN FUND MANAGEMENT,
L.P.

      


      By: Trian Fund Management GP,
LLC

      its General Partner

      


      


      


      By: /s/ EDWARD P.
GARDEN                     

                                                     Name:
Edward P. Garden

                                                     Title:
Member