UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
Encore Capital Group, Inc.
(Name of Issuer)
Common Stock ($.01 par value)
(Title of Class of Securities)
292554 10 2
(CUSIP Number)
Stuart I. Rosen
Senior Vice President and Associate General Counsel
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
December 23, 2004
------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.240.13d-1(e), (f) or (g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the Schedule, including all exhibits. See ss.240.13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purposes of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(1) Name of Reporting Person Madison West Associates Corp.
I.R.S. Identification No.
of Above Person
(2) Check the Appropriate Box (a)
if a Member of a Group (b) X
(3) SEC Use Only
(4) Source of Funds AF, WC
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization Delaware
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 1,901,590
(9) Sole Dispositive Power None
(10) Shared Dispositive Power 1,901,590
(11) Aggregate Amount Beneficially
Owned by Each Reporting Person 1,901,590
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount in 8.6%*
Row (11)
(14) Type of Reporting Person CO
*Based on 22,117,604 shares of common stock currently outstanding, as reported
in the Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 2004 filed with the Securities and Exchange Commission on October 28, 2004.
(1) Name of Reporting Person Triarc Companies, Inc.
IRS Identification No.
of Above Person
(2) Check the Appropriate Box (a)
if a Member of a Group (b) X
(3) SEC Use Only
(4) Source of Funds WC
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization Delaware
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 2,002,865
(9) Sole Dispositive Power None
(10) Shared Dispositive Power 2,002,865
(11) Aggregate Amount Beneficially
Owned by Each Reporting Person 2,002,865
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount in 9.1%*
Row (11)
(14) Type of Reporting Person CO
*Based on 22,117,604 shares of common stock currently outstanding, as reported
in the Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 2004 filed with the Securities and Exchange Commission on October 28, 2004.
(1) Name of Reporting Person Nelson Peltz
IRS Identification No.
of Above Person
(2) Check the Appropriate Box (a)
if a Member of a Group (b) X
(3) SEC Use Only
(4) Source of Funds OO
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization United States
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 4,082,163
(9) Sole Dispositive Power None
(10) Shared Dispositive Power 4,082,163
(11) Aggregate Amount Beneficially
Owned by Each Reporting Person 4,082,163
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount in 18.5%*
Row (11)
(14) Type of Reporting Person IN
*Based on 22,117,604 shares of common stock currently outstanding, as reported
in the Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 2004 filed with the Securities and Exchange Commission on October 28, 2004.
(1) Name of Reporting Person Peter W. May
IRS Identification No.
of Above Person
(2) Check the Appropriate Box (a)
if a Member of a Group (b) X
(3) SEC Use Only
(4) Source of Funds OO
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization United States
Number of Shares (7) Sole Voting Power 15,000
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 2,962,453
(9) Sole Dispositive Power 15,000
(10) Shared Dispositive Power 2,962,453
(11) Aggregate Amount Beneficially
Owned by Each Reporting Person 2,977,453
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount in 13.5%*
Row (11)
(14) Type of Reporting Person IN
*Based on 22,117,604 shares of common stock currently outstanding, as reported
in the Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 2004 filed with the Securities and Exchange Commission on October 28, 2004.
(1) Name of Reporting Person Neale M. Albert
IRS Identification No.
of Above Person
(2) Check the Appropriate Box (a)
if a Member of a Group (b) X
(3) SEC Use Only
(4) Source of Funds OO
(5) Check Box if Disclosure of Legal [ ]
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization United States
Number of Shares (7) Sole Voting Power None
Beneficially Owned by
Each Reporting Person
With
(8) Shared Voting Power 1,540,898
(9) Sole Dispositive Power None
(10) Shared Dispositive Power 1,540,898
(11) Aggregate Amount Beneficially
Owned by Each Reporting Person 1,540,898
(12) Check Box if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount in 7.0%*
Row (11)
(14) Type of Reporting Person IN
*Based on 22,117,604 shares of common stock currently outstanding, as reported
in the Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 2004 filed with the Securities and Exchange Commission on October 28, 2004.
Amendment No. 6 to Schedule 13D
This Amendment No. 6 to Schedule 13D amends the Schedule 13D originally
filed on March 4, 2002, as supplemented and amended by Amendment No. 1, dated
October 31, 2002 ("Amendment No. 1"), Amendment No. 2, dated September 4, 2003,
Amendment No. 3, dated September 29, 2003, Amendment No. 4 dated October 9, 2003
and Amendment No. 5 dated October 16, 2003 ("Amendment No. 5") (the "Schedule
13D"). Unless otherwise indicated, all capitalized terms shall have the same
meaning as provided in the Schedule 13D. Except as set forth below, there are no
changes to the information set forth in the Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is supplemented as follows:
This Statement is being filed by Madison West Associates Corp.("Madison
West"), Triarc Companies, Inc. ("Triarc"), Nelson Peltz ("Peltz"), Peter W. May
("May") and Neale M. Albert ("Albert and, together with Madison West, Triarc,
Peltz and May, the "Reporting Persons") to reflect the July 2004 dissolution of
DWG Acquisition Group, L.P. ("DWG Acquisition") and related transactions. Peltz
and May, the general partners of DWG Acquisition, for personal estate planning
purposes, dissolved DWG Acquisition and distributed to its partners all of the
shares of Class A Common Stock, par value $.10 per share (the "Class A Common
Stock"), and the Class B Common Stock, Series 1, par value $.01 per share (the
"Class B Common Stock"), of Triarc that it owned. DWG Acquisition did not
directly own any shares of the Company's Common Stock. In connection with the
dissolution, Peltz and May entered into a Voting Agreement in order to continue
the voting arrangements between them relating to the shares of Triarc Class A
Common Stock and Class B Common Stock formerly owned by DWG Acquisition. The
Voting Agreement covers all shares of Class A Common Stock and Class B Common
Stock beneficially owned or acquired in the future by Peltz and May. As a result
of the Voting Agreement, each of Peltz and May may be deemed to beneficially own
all of the shares of the Company's Common Stock owned directly by Triarc and its
subsidiaries, including Madison West.
Parts (a) and (f) of Item 2 are amended by deleting all references to DWG
Acquisition.
Part (c) of Item 2 is amended in its entirety as follows:
(c) Employment and Employer
Mr. Peltz is the Chairman and Chief Executive Officer of Triarc which has its
principal executive office at 280 Park Avenue, New York, NY 10017.
Mr. May is the President and Chief Operating Officer of Triarc which has its
principal executive office at 280 Park Avenue, New York, NY 10017.
Mr. Albert is a Partner at the law firm of Paul, Weiss, Rifkind, Wharton &
Garrison LLP which has its principal executive office at 1285 Avenue of the
Americas, New York, New York 10019.
Triarc is a holding company and through its subsidiaries, the franchisor of the
Arby's(R) restaurant system and the operator of approximately 235 restaurants
located in the United States. Triarc also owns an approximate 64% economic
interest in Deerfield & Company LLC, a Chicago-based alternative asset manager,
offering a diverse range of fixed income strategies to institutional investors.
Madison West is a wholly-owned subsidiary of Triarc and its principal business
is investments. The names, addresses and citizenship of the directors and
executive officers of Madison West and, to the best knowledge of the Reporting
Persons, the interests of such persons in the securities of the Company, are set
forth in Schedule II hereto, which is incorporated herein by reference.
Item 4. Purpose of the Transaction.
Item 4 is supplemented as follows:
On December 23, 2004, a registration statement filed by the Company on Form
S-3 (the "Registration Statement") was declared effective by the Securities and
Exchange Commission. Triarc, Madison West, Mr. Peltz (as beneficial owner of
shares of Common Stock held by Triarc, Madison West, the NP Trust and the Peltz
LP), Mr. May (as beneficial owner of the shares held by Triarc, Madison West,
the JM Trust, the LM Trust and Mr. May) and Mr. Albert (as beneficial owner of
the shares held by the NP Trust, the JM Trust and the LM Trust, among others,
were named as "Selling Stockholders" in the Registration Statement and indicated
that, pursuant to the Registration Statement, they may sell up to 604,790
shares, 604,790 shares, 1,187,064 shares, 895,928 shares and 873,412,
respectively, of Common Stock that they beneficially own. As provided in the
Registration Statement, the selling stockholders may, from time to time, offer
and sell any or all of the Common Stock covered by the Registration Statement.
The number of shares that may actually be sold by each selling stockholder
pursuant to the Registration Statement will be determined by such selling
stockholder and such selling stockholder may sell all, some or none of the
shares of Common Stock that it holds.
This Schedule 13D shall not constitute an offer to sell or the solicitation
of an offer to buy Common Stock, nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to the registration or qualification under the securities laws of any such
state.
Item 5. Interest in Securities of the Issuer.
Part (a)-(b) of Item 5 is amended in its entirety as follows:
(a)-(b)
(i) Pursuant to Rule 13d-3 of the Exchange Act, Madison West may be deemed
the beneficial owner of 1,901,590 shares of Common Stock, which
constitute approximately 8.6% of the Company's outstanding shares of
Common Stock (computed in accordance with Rule 13d-3 of the Exchange
Act and on the basis of 22,117,604 shares of common stock currently
outstanding, as reported in the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 2004 (the "Form 10-Q") filed
with the Securities and Exchange Commission on October 28, 2004).
Madison West shares with Triarc, Mr. Peltz and Mr. May voting and
dispositive power over the 1,901,590 shares of Common Stock directly
owned by Madison West;
(ii) Pursuant to Rule 13d-3 of the Exchange Act, Triarc may be deemed the
beneficial owner of 2,002,865 shares of Common Stock, including (i)
1,901,590 shares of Common Stock directly owned by Madison West and
(ii) 101,275 shares of Common Stock directly owned by Triarc. The
aggregate holdings of Triarc constitute approximately 9.1% of the
Company's outstanding shares of Common Stock (computed in accordance
with Rule 13d-3 of the Exchange Act and on the basis of 22,117,604
shares of Common Stock currently outstanding, as reported in the
Company's Form 10-Q filed with the Securities and Exchange Commission
on October 28, 2004). Triarc shares with Madison West, Mr. Peltz and
Mr. May voting and dispositive power over the 1,901,590 shares of
Common Stock directly owned by Madison West and shares with Mr. Peltz
and Mr. May voting and dispositive power of the 101,275 shares of
Common Stock directly owned by Triarc;
(iii)As a co-trustee of each of the NP Trust, the JM Trust and the LM
Trust, Mr. Albert shares with Mr. Peltz voting and dispositive power
over the 581,310 shares of Common Stock directly owned by the NP
Trust, and shares with Mr. May voting and dispositive power over the
479,794 shares of Common Stock directly owned by the JM Trust, and the
479,794 shares of Common Stock directly owned by the LM Trust. As a
result, pursuant to Rule 13d-3 of the Exchange Act, Mr. Albert may be
deemed the beneficial owner of 1,540,898 shares, which constitute
approximately 7.0% of the Company's outstanding shares of Common Stock
(computed in accordance with Rule 13d-3 of the Exchange Act and on the
basis of 22,117,604 shares of Common Stock currently outstanding, as
reported in the Company's Form 10-Q filed with the Securities and
Exchange Commission on October 28, 2004). Mr. Albert disclaims
beneficial ownership of such shares;
(iv) As a co-trustee of the NP Trust and a general partner of the Peltz LP,
Mr. Peltz shares voting and dispositive power over the 581,310 shares
of Common Stock directly owned by the NP Trust and the 1,497,988
shares of Common Stock directly owned by the Peltz LP. As a result of
the Voting Agreement, Mr. Peltz and Mr. May may be deemed to
beneficially own, in the aggregate, approximately 45.6% of the voting
power of the outstanding Class A Common Stock and Class B Common
Stock, of Triarc, and thus Mr. Peltz shares voting and dispositive
power with Triarc and Mr. May over the 2,002,865 shares of Common
Stock beneficially owned by Triarc (see (ii) above). As a result,
pursuant to Rule 13d-3 of the Exchange Act, Mr. Peltz may be deemed
the indirect beneficial owner of (i) the 581,310 shares of Common
Stock directly owned by the NP Trust, (ii) the 1,497,988 shares of
Common Stock directly owned by the Peltz LP, and (iii) the 2,002,865
shares of Common Stock beneficially owned by Triarc, which, in the
aggregate, constitute approximately 18.5% of the Company's outstanding
shares of Common Stock (computed in accordance with Rule 13d-3 of the
Exchange Act and on the basis of 22,117,604 shares of Common Stock
currently outstanding, as reported in the Company's Form 10-Q filed
with the Securities and Exchange Commission on October 28, 2004). Mr.
Peltz disclaims beneficial ownership of such shares;
(v) As a co-trustee of each of the JM Trust and the LM Trust, Mr. May
shares voting and dispositive power with Mr. Albert over the 479,794
shares of Common Stock directly owned by the JM Trust and the 479,794
shares of Common Stock directly owned by the LM Trust. Mr. May also
beneficially owns the 15,000 shares of Common Stock that he acquired
through a brokerage transaction and has sole voting and dispositive
power over such shares. As a result of the Voting Agreement, Mr. Peltz
and Mr. May may be deemed to beneficially own approximately 45.6% of
the voting power of the outstanding Class A Common Stock and Class B
Common Stock, of Triarc, and thus, Mr. May shares with Triarc and Mr.
Peltz voting and dispositive power over the 2,002,865 shares of Common
Stock beneficially owned by Triarc (see (ii) above). As a result,
pursuant to Rule 13d-3 of the Exchange Act, Mr. May may be deemed the
beneficial owner of (i) the 479,794 shares of Common Stock directly
owned by the JM Trust, (ii) the 479,794 shares of Common Stock
directly owned by the LM Trust, (iii) the 2,002,865 shares of Common
Stock beneficially owned by Triarc, and (iv) the 15,000 shares of
Common Stock owned directly by Mr. May, which, in the aggregate,
constitute approximately 13.5% of the Company's outstanding shares of
Common Stock (computed in accordance with Rule 13d-3 of the Exchange
Act and on the basis of 22,117,604 shares of Common Stock currently
outstanding, as reported in the Company's Form 10-Q filed with the
Securities and Exchange Commission on October 28, 2004). Mr. May
disclaims beneficial ownership of all such shares other than the
15,000 shares of Common Stock that he owns directly;
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
The supplement to Item 6 included in Amendment No. 1 is hereby amended in
its entirety to read as follows:
On October 29, 2002, Madison West awarded to Alexander Lemond, an officer
of Triarc and a director of the Company, 90,000 "restricted" shares of the
Company's Common Stock owned by it, which shares are subject to certain vesting
and transfer restrictions. One-third of the restricted shares were to vest on
each of the first, second and third anniversaries of the date of grant, subject
to Mr. Lemond's continued employment by Triarc. Vesting of the shares was to
accelerate upon a change of control of Triarc, Madison West or the Company or
upon a sale of all or substantially all of Triarc's direct or indirect interest
in the Company (each, a "Change of Control"). The shares are not transferable
until vested, other than pursuant to applicable laws of descent and
distribution. During the restriction period, Mr. Lemond does have the right to
tender for sale or exchange with Madison West's written consent any such shares
in the event of any tender offer within the meaning of Section 14(d) of the
Securities and Exchange Act of 1934. In addition, during the restriction period
except with respect to the transfer of the shares, Mr. Lemond is entitled to all
rights of a stockholder of the Company, including the right to vote the
restricted shares and to receive dividends and/or other distributions declared
on such restricted shares. The restricted shares remain in the physical
possession of Madison West until the restriction period lapses with respect to
such shares. In accordance with the terms of the restricted stock agreeement,
one-third of the restricted shares vested on each of October 29, 2003 and
October 29, 2004. Mr. Lemond resigned from Triarc on December 2, 2004. In
connection with Mr. Lemond's resignation, Madison West and Mr. Lemond entered
into an amendment to the restricted stock agreement pursuant to which (i) the
remaining restricted shares were not forfeited by Mr. Lemond upon his
resignation, but rather will vest in whole, in part or not at all, on October
29, 2005, in the sole discretion of the Audit and Compensation committees of
Triarc's Board of Directors and (ii) upon a Change of Control, the remaining
restricted shares will vest in whole, in part or not at all in the sole
discretion of the Audit and Compensation committees of Triarc's Board of
Directors.
Item 7. Materials to be Filed as Exhibits
Item 7 is hereby supplemented and amended as follows:
Exhibit 14 Amendment dated as of December 2, 2004 to Restricted Stock
Agreement by and between Madison West Associates Corp. and
Alex Lemond.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to the
undersigned is true, complete and correct.
Date: January 6, 2005
MADISON WEST ASSOCIATES CORP.
By: STUART I. ROSEN
-----------------------------------------
Name: Stuart I. Rosen
Title: Senior Vice President and Secretary
TRIARC COMPANIES, INC.
By: STUART I. ROSEN
-----------------------------------------
Name: Stuart I. Rosen
Title: Senior Vice President and Secretary
NELSON PELTZ
----------------------------------------------
Nelson Peltz
PETER W. MAY
----------------------------------------------
Peter W. May
NEALE M. ALBERT
----------------------------------------------
Neale M. Albert
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
TRIARC COMPANIES, INC.
Set forth below are the names, citizenship, addresses and, to the best
knowledge of the Reporting Persons, the beneficial ownership in the securities
of the Company of each of the directors and executive officers of Triarc, other
than Messrs. Peltz and May who are also Reporting Persons. (1)
Name Citizenship Residence or Business Beneficial Ownership
Address
Hugh L. Carey USA 805 Third Avenue
New York, NY 10022 0
Clive Chajet USA 575 Madison Avenue,
New York, NY 10022 0
Joseph A. Levato USA 280 Park Avenue
New York, NY 10017 0
Gregory H. Sachs USA 8700 West Bryn Mawr,
12th Fl. 0
Chicago, IL 60631
David E. Schwab II USA 280 Park Avenue
New York, NY 10017 0
Raymond S. Troubh USA 10 Rockefeller Plaza
New York, NY 10020 0
Gerald Tsai, Jr. USA 200 Park Avenue
New York, NY 10166 0
Jack G. Wasserman USA 280 Park Avenue
New York, NY 10017 0
Edward Garden USA 280 Park Avenue
New York, NY 10017 57,385 (2)
Brian L. Schorr USA 280 Park Avenue
New York, NY 10017 27,189 (2)
Francis T. McCarron USA 280 Park Avenue
New York, NY 10017 0
Stuart I. Rosen USA 280 Park Avenue
New York, NY 10017 22,751 (2)
Fred H. Schaefer USA 280 Park Avenue
New York, NY 10017 50,000 (2)
Anne A. Tarbell USA 280 Park Avenue
New York, NY 10017 0
Douglas N. Benham USA 1000 Corporate Drive
Fort Lauderdale, FL 33334 0
1) To the best knowledge of the Reporting Persons, except where otherwise
noted, each of the directors and executive officers of Triarc listed
above (i) funded their purchase of shares of Common Stock reported
herein from personal funds; (ii) acquired the shares of Common Stock
for investment purposes; (iii) has sole voting and dispositive power
over the shares listed on this Schedule I and (iv) has the sole right
to receive dividends from, or the proceeds from the sale of the shares
listed on this Schedule I.
2) Consists of Common Stock.
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS
MADISON WEST ASSOCIATES CORP.
Set forth below are the names, citizenship, addresses and, to the best
knowledge of the Reporting Persons, the beneficial ownership in the securities
of the Company of each of the directors and executive officers of Madison West.
(1)
Name Citizenship Residence or Business Beneficial Ownership
Address
Edward Garden USA 280 Park Avenue
New York, NY 10017 57,385 (2)
Francis T. McCarron USA 280 Park Avenue
New York, NY 10017 0
Brian L. Schorr USA 280 Park Avenue
New York, NY 10017 27,189 (2)
Stuart I. Rosen USA 280 Park Avenue
New York, NY 10017 22,751 (2)
Fred H. Schaefer USA 280 Park Avenue
New York, NY 10017 50,000 (2)
Anne A. Tarbell USA 280 Park Avenue
New York, NY 10017 0
1) To the best knowledge of the Reporting Persons, except where otherwise
noted, each of the directors and executive officers of Madison West
listed above (i) funded their purchase of shares of Common Stock
reported herein from personal funds; (ii) acquired the shares of
Common Stock for investment purposes; and (iii) has sole voting and
dispositive power over the shares listed on this Schedule II.
2) See Schedule I.
INDEX OF EXHIBITS
Exhibit No. Exhibit Description
14 Amendment dated as of December 2, 2004 to Restricted Stock
Agreement by and between Madison West Associates Corp.
and Alex Lemond.
EXHIBIT 14
MADISON WEST ASSOCIATES CORP.
280 Park Avenue
New York, NY 10017
As of December 2, 2004
Mr. Alexander Lemond
185 E. 85th Street, Apt. 18J
New York, NY 10028
Re: Encore Capital Group, Inc.
Dear Alex:
Reference is made hereby to the Restricted Stock Agreement dated as of
October 29, 2002 (the "Agreement") by and between Madison West Associates Corp.
and Alex Lemond. Capitalized terms used herein and not otherwise defined have
the meanings given to them in the Agreement.
In connection with your resignation from Triarc and in consideration for
your agreement to continue to serve as a director of Encore Capital Group, Inc.,
each of the parties hereto agrees that the first paragraph of section 4 of the
Agreement is amended and restated in its entirety to read as follows:
"4. EMPLOYMENT TERMINATION: If the Award Recipient's employment with
Triarc terminates on account of termination without "cause" (as
defined below), death or permanent disability, the restricted stock
award, to the extent not already vested, shall be vested in full. Upon
termination of the Award Recipient's employment with Triarc on account
of early retirement or under special circumstances determined by the
Compensation Committee and the Audit Committee of the Board of
Directors of Triarc, the restricted stock award, to the extent not
already vested, shall be forfeited, or vested in full or in part, as
determined by the Compensation Committee and the Audit Committee of
the Board of Directors of Triarc. Upon voluntary termination of the
Award Recipient's employment with Triarc, the restricted stock award,
to the extent not already vested, shall vest, in full, in part or not
at all, on October 29, 2005, in the sole discretion of the
Compensation Committee and Audit Committee of the Board of Directors
of Triarc. Termination of the Award Recipient's employment with Triarc
for any other reason (i.e. "for cause") shall result in forfeiture of
the restricted stock award on the date of termination to the extent
not already vested. The Award Recipient may designate a
beneficiary(ies) to receive the stock certificates representing that
portion of the restricted stock award automatically vested upon death.
The Award Recipient has the right to change such beneficiary
designation at will."
In addition, each of the parties hereto agree that Section 5 of the
Agreement is amended and restated in its entirety to read as follows:
"5. CHANGE OF CONTROL: Notwithstanding anything in this Agreement to the
contrary, upon (i) the acquisition by any person of 50% or more of the
combined voting power of Triarc's, Madison West's or Encore's
outstanding securities entitled to vote generally in the election of
directors, (ii) a majority of the directors of Triarc, Madison West or
Encore being individuals who are not nominated by the Board of
Directors of Triarc, Madison West or Encore, as the case may be, or
(iii) a sale of all or substantially all of the direct or indirect
interest of Triarc in Encore (each a "Change of Control"), the
restricted stock award, to the extent not already vested, shall vest,
in full, in part, or not at all in the sole discretion of the
Compensation Committee and Audit Committee of the Board of Directors
of Triarc. The acquisition of any portion of the combined voting power
of Triarc or Madison West by DWG Acquisition Group, L.P., Nelson Peltz
or Peter May or by any person affiliated with such persons shall in no
event constitute a Change of Control. In addition, the acquisition of
any portion of the combined voting power of Encore by Triarc, Madison
West, DWG Acquisition Group, L.P., Nelson Peltz, Peter May or
Consolidated Press International Holdings Limited or by any person
affiliated with such persons shall in no event constitute a Change of
Control."
If the foregoing accurately sets forth our agreement, please execute a copy
of this letter below.
Very truly yours,
MADISON WEST ASSOCIATES CORP.
By: STUART ROSEN
---------------------------------------
Name: Stuart Rosen
Title: Senior Vice President and Secretary
AGREED:
ALEXANDER LEMOND
----------------------------
Alexander Lemond