exhibit10-1_061009.htm


    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 is engaged in the quick service restaurant business (the
“Business”);

      


      WHEREAS,
Trian is engaged in the investment management business and has significant
operating, financial and strategic expertise, particularly in the
Business;

      


      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

      


      WHEREAS,
management of the Company and the Board of Directors of the
Company  have determined that it is in the Company’s best interests to
obtain such services from Trian from and after the Effective Date on the terms
and conditions set forth herein.

      


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

      


      1.           Term.  The
term of this Agreement shall commence on the Effective Date and shall continue
until June 30, 2011, unless sooner terminated pursuant to the terms of this
Agreement (the “Term”).

      


      2.           Services.  Trian
shall provide to the Company and its subsidiaries and, if applicable, any
ultimate parent of the Company and its subsidiaries (collectively, the “Company
Entities”) during the Term the following services (collectively, the
“Services”):

      


      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
Nelson Peltz, Peter W. May and Edward P. 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.

      


      3.           Quarterly
Reporting.  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 the Services provided during such quarter pursuant to this
Agreement.

      


      4.           Fees.  (a)  In
consideration of the provision of the Services, the Company shall pay to Trian a
service fee of $250,000 per quarter, payable in advance commencing July 1,
2009.

      


      (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.

      


      5.           Expenses.  Trian
shall be entitled to reimbursement for reasonable and necessary out-of-pocket
expenses incurred by Trian in connection with the provision of the Services;
provided that Trian shall first notify and seek approval from the Company prior
to incurring any expense in excess of $10,000 during a single calendar
quarter.  Trian shall submit to the Company from time to time a bill
in respect of the out-of-pocket expenses incurred pursuant to this Section
5.  Invoices will be in such reasonable detail as to identify the out
of-pocket expenses billed and, if requested by the Company, Trian shall submit
copies of the invoices from such third parties for such expenses.  The
Company shall pay in cash to Trian the full amount of such approved expenses
within 30 days after receipt of such bill from Trian.

      


      6.           Insurance.  During
the Term and for a six-year period thereafter (the “Coverage Period”), the
Company shall use its reasonable efforts to cause the individuals listed on
Annex A


      
        
           


        

        
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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.

      


      7.           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.


      
        
           


        

        
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      8.           Independent
Contractor.  Employees of Trian engaged in performing the Services
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, 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.

      


      9.           Confidential
and Proprietary Information.  (a)  The Company may, in
connection with the provision of the Services hereunder, provide to Trian or its
employees, partners and officers and confide in any of them confidential and
proprietary information (collectively, the “Confidential Information”),
including, without limitation, (i) business  methods and systems,
techniques and methods of operation developed by the Company or its affiliates
and which Trian recognizes to be unique assets of the Business of the Company
and its affiliates; (ii) any research or data of any kind; or (iii) any
information relating to strategic plans or the financial condition of the
Company or its affiliates that is not generally known to the
public.  Neither Trian nor any of the individuals that provide the
Services shall, either during or at any time after the Term, directly or
indirectly, in any manner utilize or disclose any Confidential Information to
any individual, firm, corporation, company, association or other entity without
the prior consent of the Company (unless legally compelled to do so, but subject
to the provisions of Section 5(b) below).  The term “Confidential
Information” does not include information, knowledge or factual data that: (A)
becomes part of the public knowledge or literature other than by reason of any
inaction or action of Trian or any of the individuals providing the Services in
violation of this Agreement; (B) was disclosed to Trian or any of the
individuals that provide the Services without restriction by a third party that
is known by Trian or any of the individuals that provide the Services, after
reasonable inquiry, to have the right to disclose the same; or (C) was
independently developed by Trian or its agents.  Trian further
covenants and agrees that, upon the Company’s written request, it will (and it
will cause the individuals that provide the Services to) promptly deliver to the
Company all tangible evidence or any electronic copies of Confidential
Information.

      


      (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.

      


      12.           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

      


      13.           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.

      


      14.           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.


      
        
           


        

        
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      15.           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 7 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.

      


      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.

      


      17.           Termination.  This
Agreement may be terminated (a) at any time by the written agreement of the
parties, (b) by either party 20 days following written notice to the other party
of a material breach of this Agreement by such other party or (c) by the Company
20 days following written notice to Trian of a breach by Messrs. Peltz, May and
Garden of any agreements or commitments to the Company or the failure or
inability of Trian to deliver the services of Messrs. Peltz, May and Garden
provided for hereunder, in the case of each of (b) and (c), if such breach or
failure has not been cured during such 20-day period.

      


      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.

      


      19.           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.


      
        
           


        

        
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      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

      



      
        
           


        

        
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      ANNEX
A

      


      


      D&O
Policy

      


      Nelson
Peltz

      Peter W.
May

      Edward P.
Garden

      Brian L.
Schorr

      Stuart I.
Rosen

      Greg
Essner

      Anne A.
Tarbell

      Chad
Fauser

      David I.
Mosse

      Joshua
Frank

      Brian
Jacoby

      Brian
Baldwin

      Steve
Balcerski

      Matthew
Peltz

      


      


      Employed
Lawyers Policy

      


      Brian L.
Schorr

      Stuart I.
Rosen

      David I.
Mosse