form8-k_061009.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): June 10, 2009
WENDY’S/ARBY’S
GROUP, INC.
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(Exact
name of registrant as specified in its charter)
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Delaware
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1-2207
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38-0471180
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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1155
Perimeter Center West
Atlanta,
Georgia
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30338
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
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(678)
514-4100
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(Former
Name or Former Address, if Changed Since Last Report):
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N/A
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
] Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[
] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[
] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item
1.01Entry Into a Material Definitive Agreement.
On June
10, 2009, Wendy’s/Arby’s Group, Inc. (the “Company”) and Trian Fund Management,
L.P. (“Trian Partners”) entered into a services agreement and a liquidation
services agreement; TCMG-MA, LLC (a wholly-owned subsidiary of the Company) and
Trian Partners entered into a withdrawal agreement; and the Company and TASCO,
LLC, an affiliate of Trian Partners, entered into an aircraft lease
agreement. The terms and conditions of each of these agreements are
summarized in the paragraphs below. Trian Partners is a management
company for various investment funds and accounts, whose principals are Nelson
Peltz, Peter W. May and Edward P. Garden. Messrs. Peltz, May and
Garden are members of the Board of Directors of the Company. Mr.
Peltz is non-executive Chairman and former Chief Executive Officer of the
Company, Mr. May is non-executive Vice Chairman and former President and Chief
Operating Officer of the Company and Mr. Garden is a director and former Vice
Chairman of the Company. Messrs. Peltz, May and Garden beneficially
own in the aggregate shares of the Company’s outstanding common stock that
represent approximately 22% of the Company’s total voting power.
Services
Agreement
The new
services agreement referenced above (“Services Agreement”) replaces an existing
transition services agreement that expires on June 30, 2009 and will commence
upon the expiration of the prior agreement and will continue until June 30,
2011, unless sooner terminated. Trian Partners will provide the
following services pursuant to the new Services Agreement:
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·
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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;
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·
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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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·
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consultation
and advice with respect to strategic initiatives to increase stockholder
value, including, without limitation, financial, managerial and
operational advice in connection with the quick service restaurant
business, including advice with respect to the development and
implementation of strategies for improving the operating and financial
performance of the Company;
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consultation
and advice in connection with legal matters relating to the foregoing;
and
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such
other services related to the foregoing as management of the Company shall
reasonably request from time to
time.
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In
consideration of the provision of these services, the Company will pay to Trian
Partners a service fee of $250,000 per quarter (which amount is substantially
less than the payments due under the expiring transition services agreement),
payable in advance commencing July 1, 2009. In addition, in the event
Trian Partners provides 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 the Services
Agreement was executed and ending six months following the expiration
of its term,
the
parties will negotiate in good faith with respect to a success fee, if any,
payable by the Company to Trian Partners 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 Company’s Board of
Directors.
The foregoing summary of the terms
and conditions of the Services Agreement is qualified in its entirety by
reference to the Services Agreement, a copy of which is filed as Exhibit 10.1
hereto and which is incorporated by reference into this Item 1.01.
Liquidation Services
Agreement
The
liquidation services agreement (“Liquidation Agreement”) provides for Trian
Partners to assist the Company in the sale, liquidation or other disposition of
certain investments that are not related to the Company’s core restaurant
business (“Legacy Assets”). The term of the Liquidation Agreement
commenced on June 10, 2009 and will end on the earlier of (i) such date as all
of the Legacy Assets 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 notifies Trian Partners that it is terminating the Liquidation
Agreement.
The
Liquidation Agreement provides that the Company will pay Trian Partners a
one-time fee of $900,000 for these services, which will be payable in cash in
installments as follows: (i) $450,000 on the date of the Liquidation Agreement
and (ii) $450,000 on the earlier of (x) June 30, 2010 and (y) the expiration of
the term of the Liquidation Agreement. In addition, in the event that
any or all of the Legacy Assets are sold, liquidated or otherwise disposed of
for aggregate net proceeds to the Company in excess of $36,607,000 (the “Target
Amount”), then the Company will pay Trian Partners in cash a success fee equal
to 10% of the aggregate net proceeds in excess of the Target
Amount.
The foregoing summary of the terms
and conditions of the Liquidation Agreement is qualified in its entirety by
reference to the Liquidation Agreement, a copy of which is filed as Exhibit 10.2
hereto and which is incorporated by reference into this Item 1.01.
Withdrawal
Agreement
The
withdrawal agreement (“Withdrawal Agreement”) provides that TCMG-MA, LLC, which
is a wholly-owned subsidiary of the Company, and which is the “Investor” under
an Amended and Restated Investment Management Agreement with Trian Partners
dated as of April 30, 2007 (the “Investment Management Agreement”), will be
permitted to withdraw on an accelerated basis (the “Early Withdrawal”) all of
the capital in its account under the Investment Management Agreement (the
“Account”) effective no later than June 26, 2009, at which time the Investment
Management Agreement will terminate. Prior to the Withdrawal
Agreement, the Investor was not permitted to withdraw any capital from the
Account until December 31, 2010. In consideration for obtaining such
Early Withdrawal right, the Investor agreed to pay Trian Partners $5.5 million
and will no longer be obligated to pay an investment management fee of 2% per
annum on the Account balance (which was $80.7 million as of March 29, 2009) and
certain performance fees.
The
foregoing summary of the terms and conditions of the Withdrawal Agreement is
qualified in its entirety by reference to the Withdrawal Agreement, a copy of
which is filed as Exhibit 10.3 hereto and which is incorporated by reference
into this Item 1.01.
Aircraft Lease
Agreement
The aircraft
lease agreement (“Aircraft Lease Agreement”) provides that the Company will
lease a corporate aircraft to TASCO, LLC from July 1, 2009 until June 30,
2010. The Aircraft Lease Agreement provides that TASCO, LLC will pay
$10,000 per month for such aircraft plus, while the aircraft is being operated
on behalf of TASCO, LLC, all costs of fuel, inspection, servicing and storage,
as well as operational and flight crew costs relating to the operation of the
aircraft, and all transit maintenance costs and other maintenance costs required
as a result of TASCO, LLC’s usage of the aircraft. The Company will
continue to be responsible for calendar-based maintenance and any extraordinary
and unscheduled repairs and/or maintenance for the aircraft, as well as
insurance and other costs. The Aircraft Lease Agreement may be
terminated by the Company without penalty in the event the Company sells the
aircraft to a third party, subject to a right of first refusal in favor of Trian
Partners with respect to such a sale.
The
foregoing summary of the terms and conditions of the Aircraft Lease Agreement is
qualified in its entirety by reference to the Aircraft Lease Agreement, a copy
of which is filed as Exhibit 10.4 hereto and which is incorporated by reference
into this Item 1.01.
The
Services Agreement, the Liquidation Services Agreement, the Withdrawal Agreement
and the Aircraft Lease Agreement were negotiated and approved by the Audit
Committee of the Company’s Board of Directors, which was advised in the process
by independent outside counsel.
Item
9.01.Financial Statements and Exhibits.
(d) Exhibits
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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WENDY’S/ARBY’S
GROUP, INC.
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By: /s/ NILS H.
OKESON
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Nils H. Okeson
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Senior Vice President,
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Dated: June 10, 2009 |
General Counsel and Secretary
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EXHIBIT
INDEX
Exhibit Description