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Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
December
13, 2007
Mr.
Francis T. McCarron
280
Park Avenue
New
York, New York 10017
Re:
Separation of Employment
Dear
Mr. McCarron:
This letter agreement (the
“Letter Agreement”) confirms the arrangement
between you and Triarc Companies, Inc., a Delaware
corporation (collectively with its subsidiaries, “
Triarc ” or the “ Company ”),
regarding the termination of your employment by Triarc as a
result of its decision to close its New York
headquarters. Capitalized terms not otherwise
defined herein shall have the meanings set forth in the
Severance Agreement dated April 28, 2006 between you and
Triarc, (collectively with all amendments and related
agreements, including the Agreement dated December 21, 2006
between you and Triarc and the Amendment dated January 29,
2007 between you and Triarc, the “ Severance
Agreement ”).
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1.
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Your
separation of employment will be treated as a termination by you
for Good Reason under the terms of the Severance Agreement, as
modified by this Agreement. Parties agree that (i) your
asserted grounds for “Good Reason” include the
Company’s decision to replace you as Chief Financial Officer
and the Company’s requirement that the Chief Financial
Officer have a primary place of employment outside of Manhattan,
New York in Atlanta and (ii) the Company failed to cure such
asserted “Good Reason” events with thirty (30) days
after you gave written notice of Good Reason. You agree
that (i) you shall no longer serve as an officer of the Company
effective December 29, 2007 and (ii) your last date of employment
shall be January, 1 2008 (the “ Termination Date
”) and through the Termination Date you shall continue to
receive your Base Salary and benefits as currently provided by the
Company and in accordance with regular payroll
practices.
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2.
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You
and the Company agree that, conditioned on your compliance with the
terms of the Severance Agreement regarding your post-termination
obligations, the payments arising under the Severance Agreement
shall be paid (less the aggregate amount required by law to be
withheld under federal, state and local withholding requirements)
as follows on the first business day following the expiration of
six months from the Consulting Termination Date, as defined in the
Consulting Agreement dated December 13, 2007 (“ Consulting
Agreement ”), (the “ Payment Commencement
Date ”):
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(a)
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a
lump sum payment equal to the sum of (i) $4,482,000 (representing
seventy-five percent (75%) of the product of 2 ½ and the sum
of the your Base Salary of $575,000 and 2006 Bonus Amount of
$1,815,400)(such amount plus the amount provided for in
subparagraph (b) below the “ Severance Amount
”), (ii) interest on the amount of $4,482,000 for a period of
4.5 months calculated, per annum, at the simple rate of LIBOR plus
450 bp, (iii) $2,000,000 (representing the parties agreement as to
your “2007 Bonus Amount”); and (iv) interest on the
amount of $2,000,000 for a period of 6.5 months calculated, per
annum, at the simple rate of LIBOR plus 450 bp;
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(b)
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commencing
as of the Payment Commencement Date, three equal monthly
installments of $498,000, (aggregating $1,494,000 and representing
the remaining 25% of the Severance Amount). The first
installment payment shall be paid at the same time as the lump sum
payment described above, the second installment payment shall be
paid on November 1, 2008, and the final installment payment shall
be paid on December 1, 2008;
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(c)
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in
no event shall the sum of (a) the Severance Amount and (b) the 2007
Bonus Amount, in each case excluding interest, be either less than
or exceed $7,976,000. The sum of the Severance Amount
and the 2007 Bonus Amount plus interest thereon to the extent
actually paid by the Company to you shall be referred to as the
“Payment Amount”. All payments shall be made
by the end of calendar year 2008.
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3.
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Except
as provided for herein, or in the Severance Agreement (as modified
by this Agreement), or with respect to any vested rights under any
plans or arrangements maintained by the Company or its affiliates
or under the terms of the Consulting Agreement, you shall not be
entitled to any further payments, bonuses, compensation, severance
or other incentive payments with respect to your service with the
Company or the termination of such service.
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4.
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If
you die prior to the Payment Commencement Date, any payment due on
account of your Severance Agreement (as modified by this Agreement)
shall be made to the legal guardian of your estate on the first
business day of the month following the month of your death, as
follows:
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(a)
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a lump sum payment equal
to (i) the product of (1) the number of full months you were
alive during calendar year 2008 (“ Living Months
”) multiplied by (2) $498,000 (“ Payment on
Account of Death ”); (ii) interest on the Payment
on Account of Death for a period of half the Living Months
calculated, per annum, at the simple rate of LIBOR plus 450
bp; (iii) $2,000,000 (representing the parties
agreement as to your 2007 Bonus Amount); and (iv) interest on
the amount of $2,000,000, in the event you live past March
31, 2008, for a period of the number of Living
Months less two and one half (2.5) calculated, per annum, at
the simple rate of LIBOR plus 450 bp. If you die
during the first three (3) Living Months, you will not
receive interest on the 2007 Bonus Amount;
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(b)
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monthly installment
payments of $498,000 on the first day of each month during
calendar year 2008 beginning on the first day of the month
following the month during which the Payment on Account of
Death was made. Notwithstanding the foregoing, the
first monthly installment payment shall equal $1,494,000
(representing the sum of (a) the payment due for the month
you die; (b) the first monthly installment payment; and (c)
the monthly payment attributable to the month in which the
Payment on Account of Death is made as in accordance with
subclause (a) above;
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(c)
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in
no event shall the Payment Amount, in each case excluding interest,
be either less than or exceed $7,976,000 All payments
shall be made by the end of calendar year 2008.
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5.
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The
parties agree that the obligation of the Company to make the
Severance Payments hereunder shall not be affected or diminished in
any manner by the failure of you to perform under the Consulting
Agreement.
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6.
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All
non-vested equity awards (whether issued by the Company or a
subsidiary of the Company) shall vest immediately upon the
Termination Date and your stock options or other stock based awards
which include an exercisability feature shall remain exercisable
until the earliest of (i) two years from the Consulting Termination
Date, as defined in the Consulting Agreement, (ii) their respective
stated expiration dates or (iii
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