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Exhibit 10.3
As of April 29, 1996
Mr. John L. Barnes, Jr.
31 Old Redding Road
Weston, CT 06883
Dear Jack:
It is with great pleasure that we hereby confirm your employment as
Senior Vice President of Triarc Companies, Inc. ("Triarc"), on the terms and
conditions set forth in this letter and in the attached term sheet (the
"Employment Term Sheet").
You will report to the President and Chief Operating Officer of Triarc
and your duties will be performed primarily at the corporate headquarters of
Triarc in New York, New York. The term of your employment shall continue through
April 28, 1999.
In the event of termination of your employment by Triarc prior to April
28, 1999 without good cause, Triarc shall, (i) within 30 days after the date of
such termination, pay to you a lump sum equal to one-half (1/2) your then
current base salary that would otherwise have been payable to you through April
28, 1999, (ii) commencing 6 months after the date of termination of your
employment, pay to you a sum equal to one-half (1/2) your annual base salary in
effect at the date of termination, payable semi-monthly through April 28, 1999,
so that the sum of such semi-monthly payments in the aggregate is equal to
one-half of the annual base salary you would have received from the date of
termination through April 28, 1999 if you had not been so terminated, (iii)
continue your health insurance benefits under the terms as an active employee
through April 28, 1999, or the first of the month following the acceptance of
full-time employment, whichever is earlier, and (iv) each stock option granted
to you (a) which has not vested as of the termination date shall vest
immediately as of such date and (b) which has vested prior to or as of the
termination date must be exercised within the earlier of (i) one year or (ii)
the date on which such option expires or be forfeited.
Your employment with Triarc shall terminate upon your death. In the
event of your death during the term of your employment with Triarc, your estate
or other legal representative shall be entitled to the following: (i) your then
current base salary through the last day of the calendar quarter in which you
die, (ii) any earned but unpaid base salary or vacation and (iii) any accrued
but unpaid bonus for the immediately preceding fiscal year. Such amounts shall
be paid by Triarc in a lump sum, subject to all withholdings, within 30 days of
the date of death. If you are unable to perform all or
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substantially all of your duties and responsibilities on account of illness
(either physical or mental) or other incapacity, Triarc shall continue to pay
you the full amount and benefits provided hereunder for the period of such
illness or incapacity; provided, however, that in the event such illness or
incapacity continues for a period of longer than 180 consecutive days or for an
aggregate of 175 days during any consecutive 9-month period (each, a
"disability"), Triarc's Board of Directors shall have the right to terminate
your employment by giving you not less than 30 days written notice of Triarc's
election to do so. In the event your employment is terminated on account of
disability pursuant to this paragraph, you will be entitled to the payments sets
forth in the first sentence of this paragraph.
For the purposes of this agreement, the term "Change in Control" shall
mean (i) the acquisition by any person of 50% or more of the combined voting
power of Triarc's outstanding securities entitled to vote generally in the
election of directors, or (ii) a majority of the Directors of Triarc, being
individuals who are not nominated by the Board of Directors of Triarc.
Notwithstanding the foregoing, (i) the acquisition of any portion of the
combined voting power of Triarc by DWG Acquisition Group, L.P., Nelson Peltz or
Peter May, or by any person affiliated with such persons, (ii) the distribution
by means of a dividend or otherwise, of voting securities of Triarc or (iii) any
sale of securities by Triarc pursuant to a public offering, shall in no event
constitute a Change in Control. In the event of a Change in Control, Triarc
shall be obligated to employ you as Senior Vice President, and you shall be
obligated to accept and continue in employment hereunder as Senior Vice
President, pursuant to the terms and conditions of this agreement, until the
first anniversary of the Change in Control (the "Termination Date"). You shall
have the absolute right to resign as an officer and employee of Triarc,
effective as of the Termination Date, by written notice to Triarc given not less
than 30 days before the Termination Date and to receive, commencing with the
Termination Date, the same payments and other benefits to which you would have
been entitled had Triarc terminated your employment without good cause.
Triarc will indemnify you, to the maximum extent permitted by applicable
law, against all costs, charges and expenses incurred or sustained by you in
connection with any action, suit or proceeding to which you may be made a party
by reason of your being an officer, director or employee of Triarc or of any
subsidiary or affiliate of Triarc.
For purposes of this agreement "for cause" means: (i) commission of any
act of fraud or gross negligence by you in the course of your employment
hereunder which, in the case of gross negligence, has a materially adverse
effect on the business or financial condition of Triarc or any of its
affiliates; (ii) willful material misrepresentation at any time by you to any
superior executive officer of Triarc or any of their affiliates; (iii) voluntary
termination by you of your employment or failure, refusal or neglect by you to
comply with any of your material obligations hereunder or failure by you to
comply with a reasonable instruction of any superior officer of Triarc or its
Board of Directors, which failure, refusal or neglect, if curable, is not fully
and completely cured to the reasonable satisfaction of Triarc as soon as
reasonably possible upon written notice to you; (iv) engagement by you in any
conduct or the commission by you of any act which is, in the reasonable opinion
of Triarc, materially injurious
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or detrimental to the substantial interest of Triarc; (v) conviction of a
felony, whether with respect to your employment or otherwise, under the criminal
laws of the United States or any state thereof or any similar foreign law to
which you may be subject; (vi) any failure substantially to comply with any
written rules, regulations, policies or procedures of Triarc, which, if not
complied with, could have a material adverse effect on the business of Triarc or
any of its affiliates; or (vii) any willful failure to comply with Triarc's
internal policies regarding insider trading.
You agree to treat as confidential and not to disclose to anyone other
than Triarc and its subsidiaries and affiliated companies, and you agree that
you will not at any time during your employment and for a period of four years
thereafter, without the prior written consent of Triarc, divulge, furnish, or
make known or accessible to, or use for the benefit of anyone other than Triarc,
its subsidiaries, and affiliated companies, any information of a confidential
nature relating in any way to the business of Triarc or its subsidiaries or
affiliated companies, or any of their respective direct business customers,
unless (i) you are required to disclose such information by requirements of law,
(ii) such information is in the public domain through no fault of yours, or
(iii) such information has been lawfully acquired by you from other sources
unless you know that such information was obtained in violation of an agreement
of confidentiality. You further agree that during the period referred to in the
immediately preceding sentence you will refrain from engaging in any conduct or
making any statement written or oral which is detrimental to the interests of
Triarc, its subsidiaries or any of its affiliates or any of their respective
shareholders, directors, officers or employees.
You agree that in addition to any other remedy provided at law or in
equity, (a) Triarc shall be entitled to a temporary restraining order, and both
preliminary and permanent injunctive relief restraining you from violating the
provisions of the immediately preceding paragraph, (b) you will indemnify and
hold Triarc harmless from and against any and all damages or loss incurred by
Triarc or any of its affiliates (including attorneys' fees and expenses) as a
result of any such violation; and (c) Triarc's remaining obligations this
agreement, if any, shall cease (other than payment of your base salary through
the date of such violation and any earned but unpaid vacation or except as may
be required by law).
This agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed entirely within such State.
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If you agree with the terms outlined above and in the Employment Term
Sheet, please date and sign the copy of this letter enclosed for that purpose
and return it to us.
Best regards,
Sincerely,
Peter W. May
Peter W. May
President and
Chief Operating Officer
AGREED TO AND ACCEPTED:
John L. Barnes, Jr.
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John L. Barnes, Jr.
As of April 29, 1996
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EMPLOYMENT TERM SHEET
JOHN L. BARNES, JR.
Provision Term
Contract Term 3 years commencing 4/29/96
Title Senior Vice President; responsible for C.H.
Patrick; CFO of Triarc upon retirement of existing
CFO (on or about 8/15/96).
Base Salary $300,000/year subject to increase, but not decrease
from time to time.
Bonus, etc. $200,000 minimum with respect to first 12
months. Thereafter to be treated in a manner
comparable to other senior executives. Will be
eligible to participate in any long or short-term
management incentive plan which Triarc shall from
time to time provide for its senior executives
generally.
Stock Options 30,000 shares in connection with the
commencement of employment. Thereafter, awards on
basis comparable to other senior executives.
Relocation See attachment.
Financial Advisory Services Comparable to that provided to other senior
executives of Triarc.
Health, medical, life and
disability insurance,
vacation, pension Comparable to that provided to other senior
executives of Triarc generally.
Home/Office Will be provided portable computer and docking
station, printer, monitor, modem and fax machine
for home/office with attendant supplies and service
agreements.
Housing Support on
early termination,
non-renewal If employment is terminated by Triarc without cause
or Triarc does not renew contract at end of 3-year
term, Triarc will reimburse Executive for any loss
on sale of his N.Y. area home (based on difference
between Executive's original purchase price and his
ultimate sale price within 12 months of termination
of employment) up to a maximum of $150,000 and the
provisions of the attached relocation policy will be
applicable to the Executive's relocation outside of
the New York metropolitan area for six months from
the date of such termination or non-renewal.
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TRIARC COMPANIES, INC. - RELOCATION
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RELOCATION ALLOWANCE
Officers will be provided with a relocation allowance payable in one
lump sum (as fully taxed) equal to two months salary at the officer's new salary
rate upon commencement of work at his or her new location. The purpose of the
relocation allowance is to help defray incidental expenses connected with the
move for which reimbursement is not provided. Examples of the types of expenses
for which the relocation allowance are provided are:
- additional return home trips and/or additional travel for the
spouse beyond the provisions of the moving policy
- charges for disconnection, reinstallation and/or alterations of
draperies, carpets, television antennas, etc.
- telephone installation charges and utility deposits
- new automobile license plates and registration fees
HOUSE HUNTING TRIPS
The officer and spouse (excluding children) are authorized three house
hunting trips to locate housing in the new location, each trip not to exceed
seven days. All reasonable expenses for such trips, including lodging, meals,
business class air fare, car rental and car mileage will be reimbursed.
TRANSPORTATION OF HOUSEHOLD GOODS
Triarc will be financially responsible for the packing, shipping,
unloading and insurance of all normal household goods and two personal
automobiles.
TRAVEL TO NEW LOCATION
All expenses associated with travelling from the location of the former
residence to the new location will be reimbursed for the officer and family,
including business class air fare.
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TEMPORARY LIVING AT NEW LOCATION
If it becomes necessary for an officer to occupy temporary living
quarters during the course of the relocation, reasonable expenses for the actual
cost of lodging shall be reimbursed for a period of up to 90 days or Triarc will
rent for your use furnished housing for such period.
RESIDENCE SALE
Triarc will pay approved expenses incurred in selling a principal
residence at the old location. Such expenses include:
- broker's commission (normal and customary) - escrow fees/seller's
attorney's fees - recording fees - mortgage satisfaction fee -
mortgage prepayment penalty fee - title policy fee
- documentary tax stamps and state and local sales transfer taxes
MAINTAINING TWO HOMES
If an officer purchases a new home prior to selling the present home,
and therefore incurs duplicate house carrying expenses (subsequent to the
provisions of "Temporary Living at New Location" above), the Company will
reimburse the officer on a pro rated basis for the mortgage interest only for a
maximum of 60 days.
RESIDENCE PURCHASE
The officer will be reimbursed for the normal closing costs associated
with buying a new house. Such costs shall include those items which by local
custom are normally paid by the buyer. Typical costs may include escrow fees,
attorney's fees, appraisals, recording fees, state transfer taxes and fee
(owner's) title insurance.
TENANT RELOCATION
If the transferee is a tenant rather than a homeowner, the Company will
reimburse the transferee for reasonable expenses incurred in connection with
early termination or breaking of the transferee's lease.
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