EXHIBIT 10.3
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this "Agreement") is executed
as of July __, 2007, by and among Triarc Companies, Inc., a Delaware corporation
("Triarc"); Arby's Restaurant Group, Inc., a Delaware corporation and an
indirect wholly owned subsidiary of Triarc ("ARG"); Arby's Restaurant, LLC, a
Delaware limited liability company and a direct wholly owned subsidiary of ARG
("Arby's"); and Russell V. Umphenour, Jr., Dennis E. Cooper and J. Russell
Welch, as the RTM Representatives.
RECITALS
Disputes and differences have arisen among the parties with respect to the
post-closing adjustments required by Section 2.09 of that certain Agreement and
Plan of Merger (as amended, supplemented or otherwise modified from time to
time, the "Merger Agreement"), dated as of May 27, 2005, by and among Triarc;
Arby's Acquisition Co., a Georgia corporation; Arby's; RTM Restaurant Group,
Inc., a Georgia corporation; and the RTM Representatives. The parties hereto
have agreed to execute this Agreement in full and complete settlement of such
disputes and differences. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Merger Agreement.
SETTLEMENT AND RELEASE
The parties hereto hereby agree as follows:
In full settlement of all amounts owed by Triarc to the RTM Representatives
for distribution by them pro rata to the RTMRG Shareholders pursuant to Section
2.09 of the Merger Agreement (including any and all interest thereon),
simultaneously with the execution and delivery of this Agreement, Triarc shall
cause ARG to deliver to the RTM Representatives, for distribution by them pro
rata to the RTMRG Shareholders, as an increase to the Aggregate Cash
Consideration, cash (by wire transfer of immediately available funds) in an
amount equal to $1,600,000 (the "Adjustment Amount").
Effective upon the RTM Representatives' receipt of the Adjustment Amount,
each of Triarc and ARG, on the one hand, and the RTM Representatives, in their
capacities as such and in their capacities as RTMRG Shareholders and on behalf
of all other RTMRG Shareholders, on the other hand, do hereby release and
forever discharge each other of and from all manner of actions, causes of
action, suits, debts, interest, expenses, liabilities, obligations, damages,
judgments, claims and demands of any kind or nature, in law or in equity, known
or unknown, existing or arising in the future, whether or not damages are now
accrued or ascertainable which either ever had, now has or may have in the
future against the other, for, upon, or by reason of any matter or cause
whatsoever relating to or arising out of Section 2.09 of the Merger Agreement.
This Agreement is binding upon and inures to the benefit of all parties
hereto, their successors and assigns. This Agreement shall be construed and
interpreted in accordance with the laws of New York.
This Agreement sets forth the entire agreement among the parties with
respect to the specific subject matter hereof, and supersedes all prior
agreements and representations between them with respect to the specific subject
matter hereof, whether written or oral. This Agreement may be changed only in
writing, signed by authorized representatives of the parties hereto.
This Agreement is executed and delivered by the RTM Representatives
pursuant to Section 12.17 of the Merger Agreement.
[Signatures appear on the following page.]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
TRIARC COMPANIES, INC.
By: /s/FRANCIS T. MCCARRON
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Name: Francis T. McCarron
Title: Executive Vice President & CFO
ARBY'S RESTAURANT, LLC
By: /s/STUART ROSEN
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Name: Stuart I. Rosen
Title: Senior Vice President and Secretary
ARBY'S RESTAURANT GROUP, INC.
By: /s/STUART ROSEN
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Name: Stuart I. Rosen
Title: Senior Vice President and Secretary
RTM REPRESENTATIVES:
/s/ RUSSELL V. UMPHENOUR, JR.
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Russell V. Umphenour, Jr.
/s/DENNIS E. COOPER
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Dennis E. Cooper
/s/J. RUSSELL WELCH
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J. Russell Welch