exhibit10-2_061009.htm


    EXHIBIT
10.2

    
       

       

      LIQUIDATION
SERVICES AGREEMENT

       

      
 

      This Liquidation Services 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 has certain
investments that are not related to its core restaurant business, which
investments are set forth on Schedule I attached hereto (such investments being
referred to herein collectively as the “Legacy Assets”);

      


      WHEREAS,
the Company has determined to focus its business as a “pure play” restaurant
company;

      


      WHEREAS,
Trian has significant expertise in the purchase and sale of assets of the type
comprising the Legacy Assets;

      


      WHEREAS,
the Company has requested the assistance of Trian in connection with the sale,
liquidation or other disposition of the Legacy Assets in order to deploy the
proceeds therefrom in its business; and

      


      WHEREAS,
Trian is willing to provide such assistance 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.           Term;
Services.  For the period commencing on the date hereof and ending
upon the earlier of (i) such date as all of the Legacy Assets shall have been
sold, liquidated or otherwise disposed of and (ii) the date (which shall not be
earlier than June 30, 2011) on which the Company shall notify Trian that it is
terminating this Agreement (the “Term”), Trian shall use its reasonable best
efforts to assist the Company in the sale, liquidation or other disposition of
the Legacy Assets.  Without limiting the generality of the foregoing,
Trian shall use its reasonable best efforts to:

      


      a.           source
and identify opportunities to sell, liquidate or otherwise dispose of the Legacy
Assets;

      


      b.           negotiate
on the Company’s behalf (subject to final approval by the Company) the terms and
conditions of any such sale, liquidation or other disposition of any or all of
the Legacy Assets in order to maximize the proceeds thereof to the
Company;

      


      c.           advise
and consult with management of the Company regarding the sale, liquidation or
other disposition of the Legacy Assets; and


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      d.           provide
such other services in connection with the sale, liquidation or other
disposition of the Legacy Assets as management of the Company shall reasonably
request from time to time.

      


      2.           Quarterly
Reports.  Trian shall report to the Company from time to time, and in
any event, no less frequently than once each fiscal quarter during the Term, as
to its efforts and progress made with respect to the sale, liquidation or other
disposition of the Legacy Assets.

      


      3.           Fees.  The
Company shall pay to Trian a one-time fee for its services hereunder (including,
without limitation, any services rendered pursuant to Section 1(d) hereof)
during the Term of $900,000, which fee shall be payable in cash in installments
as follows:  (i) $450,000 on the date hereof and (ii) $450,000 on the
earlier of (x) June 30, 2010 and (y) the expiration of the Term.  In
the event that any or all of the Legacy Assets are sold, liquidated or otherwise
disposed of during the Term or, in the event that Trian shall have been
providing substantial assistance to the Company hereunder in connection with the
sale of any one or more of the Legacy Assets during the Term, then in the case
of the sale of such Legacy Asset or Legacy Assets during the six-month period
following the expiration of the Term, in any case, for aggregate net proceeds to
the Company in excess of $36,607,000 (the “Target Amount”), then the Company
shall pay to Trian in cash a success fee equal to 10% of the aggregate net
proceeds in excess of the Target Amount.

      


      4.           Limitation
of Liability; Indemnification.  (a) Trian shall have no liability with
respect to, and shall not be obligated to indemnify and hold harmless the
Company, or its affiliates, officers, directors, employees, agents or other
representatives, from or against any cost, loss, expense, damage or liability
arising out of or otherwise in respect of the performance by Trian of the
services hereunder; provided that Trian shall indemnify and hold harmless the
Company and its affiliates, officers, directors, employees, agents and other
representatives of the Company from and against any such cost, loss, expense,
damage or liability resulting from the gross negligence, willful misconduct or
fraud of Trian or any of its officers, employees, partners, members or
agents.  The Company shall indemnify and hold harmless Trian, its
affiliates, officers, directors, employees, agents or other representatives from
and against any cost, loss, expense, damage or liability arising out of or
otherwise in respect of the performance by Trian of the services hereunder other
than any such cost, loss, expense, damage or liability resulting from the gross
negligence, willful misconduct or fraud of Trian or any of its officers,
employees, partners, members or agents.

      


      (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.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      5.           Independent
Contractor.  Employees of Trian engaged in performing the services
hereunder shall be considered to be providing services to the Company as its
consultants.  Under no circumstances shall they be considered to be
employees of the Company or any of its subsidiaries.  In performing
the services under this Agreement, Trian shall be an independent contractor and
neither party hereto shall be deemed to be an agent, partner or co-venturer of
the other due to the terms and provisions of this Agreement.  For the
avoidance of doubt, neither Trian nor any of its employees, partners, officers
or agents shall have any right, power or authority to bind the Company in any
manner whatsoever.

      


      6.           Entire
Agreement.  This Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof.

      


      7.           Notices.  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
Company at:

      


      Wendy’s/Arby’s
Group, Inc.

      1155
Perimeter Center West

      Suite
1200

      Atlanta,
Georgia 30338

      Attn:  General
Counsel

      


      To Trian
at:

      


      Trian
Fund Management, L.P.

      280 Park
Avenue, 41st
Floor

      New York,
New York 10017

      Attn:  Chief
Legal Officer

      


      8.           Waivers
and Amendments.  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.

      


      9.           Successors
and Assigns.  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.  Notwithstanding the foregoing,
the Company (or its permitted successive assignees or transferees hereunder) may
assign or transfer this Agreement as a whole without consent to an entity that
succeeds to all or substantially all of the business or assets of the
Company.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      10.           No
Third-Party Beneficiaries.  The persons that will be providing
services to the Company pursuant to this Agreement shall be deemed to be
third-party beneficiaries of the provisions set forth in Section 4 of this
Agreement.  Except as provided in the preceding sentence, nothing in
this Agreement shall confer any rights upon any person that is not a party or a
successor or permitted assignee of a party to this Agreement.

      


      11.           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.

      


      12.           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.

      


      13.           Counterparts.  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.

      


      WENDY’S/ARBY’S GROUP,
INC.

      


       

      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

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      SCHEDULE
I

      


      
        
          
            	 
      	 	
                    
                    

                    Carrying

                    Value

                    (in
      000s)

                  	 
	
                    Investment Limited
    Partnerships

                  	 	 	 
	
                    JP
      Acquisition Fund IV, LP

                  	 	$	409	 
	
                    Catterton
      Partners V, LP - WAG

                  	 	 	514	 
	
                    Catterton
      Partners V, LP – Wendy’s

                  	 	 	5,138	 
	 
      	 	 	 	 
	
                    Total
      investment limited partnerships

                  	 	 	6,061	 
	 
      	 	 	 	 
	
                    Other Investments

                  	 	 	 	 
	
                    Jurlique
      International Pty. Ltd.

                  	 	 	-	 
	
                    Trumpet
      Feeder Ltd.

                  	 	 	4,470	 
	
                    Scientia
      Group, Inc. (280 BT)

                  	 	 	645	 
	 
      	 	 	 	 
	
                    Total
      other investments

                  	 	 	5,115	 
	 
      	 	 	 	 
	 
      	 	 	 	 
	
                    DFR
      Note Receivable, Long Term

                  	 	 	25,431	 
	 
      	 	 	 	 
	
                    Total
      Legacy Assets

                  	 	$	36,607