exhibit10_121907.htm


    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”).

     

    
      	
              1.  

            	
              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.

            


    

     

    
      	
              2.  

            	
              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”):

            


    

     

    
      	
              (a)  

            	
              a
                lump sum payment equal to the sum of (i) $4,482,000 (representing
                seventy-five percent (75%) of the product of 2 1⁄2 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;

            


    

     

    
      	
              (b)  

            	
              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;

            


    

     

    
      	
              (c)  

            	
              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.

            


    

     

    
      	
              3.  

            	
              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.

            


    

     

    
      	
              4.  

            	
              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:

            


    

     

    
      	
              (a)  

            	
              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;

            


    

     

    
      	
              (b)  

            	
              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;

            


    

     

    
      	
              (c)  

            	
              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.

            


    

     

    
      	
              5.  

            	
              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.

            


    

     

    
      	
              6.  

            	
              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) ten years
                from the
                date of grant, in each case subject to your compliance with your
                post-termination obligations under the Severance
                Agreement.

            


    

     

    
      	
              7.  

            	
              All
                Class B Units of Triarc Deerfield Holdings, LLC and all Class B Units
                of
                Jurl Holdings, LLC held by you on the Termination Date are fully
                vested
                and non-forfeitable effective as of the Termination
                Date.

            


    

     

    
      	
              8.  

            	
              You
                agree that if, at any time during calendar year 2008 you accept fulltime
                employment with Trian Fund Management L.P. (“Trian”), the Payment
                Amount shall be reduced by twelve and one-half percent
                (12.5%)  (the “2008 Repayment
                Obligation”).   If, at any time during calendar year
                2009 you accept fulltime employment with Trian, the Payment Amount
                shall
                be reduced by six and one-quarter percent (6.25%) (the “2009 Repayment
                Obligation” and collectively with the 2008 Repayment Obligation the
                “Repayment Obligation”), but in all cases you shall have no
                repayment obligation with respect to any payments made under the
                Consulting Agreement.  You agree that the Company may reduce any
                remaining payments of the Payment Amount  owed to you by the
                Company by the Repayment Obligation on a ratable basis (i.e. the
                Repayment Obligation shall be allocated pro-rata against the remaining
                payments).  In the event the remaining payments of the Payment
                Amount  do not fully offset the Repayment Obligation, you shall
                remain liable for the payment to the Company of any
                deficiency.  In the event you repay any Repayment Obligation the
                Company will file amended W-2
                forms.

            


    

     

    
      	
              9.  

            	
              You
                shall be entitled to receive the welfare benefits provided for in
                subclause (ii) of the third full paragraph of Section 1 of the Severance
                Agreement (“Sub-clause (ii)”) subject to the
                following:

            


    

     

    
      	
              (a)  

            	
              Annex
                A sets forth all the welfare benefits falling within
                Sub-clause (ii).

            


    

     

    
      	
              (b)  

            	
              You
                shall continue to participate in, or be reimbursed for the cost of,
                Annex
                A, Para 1 benefits through June 30, 2010 (the “Coverage
                Period”).

            


    

     

    
      	
              (c)  

            	
              You
                shall continue to participate in, or be reimbursed for the cost of,
                Annex
                A, Para 2 benefits for the maximum period provided for under Section
                1.409A-1(b)(9)(v)(B) of the Final Regulations under Section 409A
                of the
                Internal Revenue Code (the “409A Regulations”), and thereafter as provided
                for under 1.409A-3(i)(1)(iv) of the 409A Regulations through the
                Coverage
                Period.

            


    

     

    
      	
              (d)  

            	
              You
                shall continue to participate in, or be reimbursed for the cost of,
                Annex
                A, Para 3 benefits as provided for under 1.409A-3(i)(1)(iv) of the
                409A
                Regulations through June 30, 2010. In particular, in connection with
                such
                benefits (or any benefits under sub-paragraph (c) above falling under
                such
                section of the 409A Regulations) the amount of any expenses eligible
                for
                reimbursement or the in-kind benefits to be provided during your
                taxable
                year shall not affect the expenses eligible for reimbursement or
                in-kind
                benefits to be provided in any other taxable year, reimbursements
                of any
                eligible expenses shall be made on or before the last day of your
                taxable
                year following the taxable year in which the expense was incurred
                and your
                right to reimbursement or in-kind benefits is not subject to liquidation
                or exchange for another benefit.

            


    

     

    
      	
              (e)  

            	
              Notwithstanding
                anything herein to the contrary, to the extent you may no longer
                be
                eligible to receive any in-kind benefits (or reimbursements with
                respect
                to such benefits) as a result of any prospective termination or
                discontinuation by the Company of any benefit plan or otherwise,
                the
                parties shall negotiate the payment to you of a lump sum amount
                representing the after-tax cost of acquiring, on a non-group basis
                for the
                remaining coverage period (i.e., the time period from the proposed
                termination through June 30, 2010), those benefits lost to you and/or
                to
                your family; providedthat the determination and payment of
                such lump sum payment shall be in accordance with the transition
                relief
                under Section 409A as provided in IRS Notice 2006-79 and IRS Notice
                2007-86.

            


    

     

    
      	
              (f)  

            	
               In
                the event that the insurance coverage provided for in paragraphs
                1 and 2
                of Annex A is no longer provided by the Company during the Coverage
                Period
                (or at the level provided for in the Severance Agreement), you may
                direct
                the Company to pay premiums for non-group insurance coverage of a
                comparable nature for you and your dependents for the remainder of
                the
                Coverage Period.  The benefits provided for in paragraph 3 of
                Annex A shall commence on the Payment Commencement Date, at which
                time you
                shall receive a lump sum payment equal to the aggregate value of
                the
                accrued benefits provided for in paragraph 3 (calculated from the
                Termination Date) with interest on such amount for a period of six
                (6)
                months calculated, per annum, at the simple rate of LIBOR plus 450
                bp.

            


    

     

    
      	
              (g)  

            	
              All
                tax gross-up payments to which you are entitled under the Severance
                Agreement in connection with the foregoing benefits shall be paid
                no later
                than the end of your taxable year next following your taxable year
                in
                which you remit the related taxes (including any income tax associated
                with providing premiums).

            


    

     

    
      	
              (h)  

            	
              The
                purpose of this Section 9 is to provide you with the level of benefits
                as
                provided for in Sub-clause (ii), as in existence as of the date hereof,
                in
                a manner that complies with Section
                409A.

            


    

     

    
      	
              (i)  

            	
              In
                the event of your death, benefits arising under Sub-clause (ii) shall
                be
                provided to your spouse and dependents for the remainder of the Coverage
                Period, as provided for in the Separation
                Agreement.

            


    

     

    
      	
              10.  

            	
              The
                intent of the parties is that payments and benefits under this Agreement
                comply with Section 409A of the Internal Revenue Code of 1986, as
                amended
                and the regulations and guidance promulgated thereunder and, accordingly,
                in the event of any interpretive issues, this Agreement shall be
                interpreted and construed in compliance with Section
                409A.

            


    

     

    
      	
              11.  

            	
              The
                Company agrees to indemnify you, against any claims related to your
                employment by the Company including any claims related to the Severance
                Agreement or this Agreement, including 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 the Company or of any subsidiary
                or
                affiliate of the Company to the maximum extent permitted by law and
                the
                Company’s indemnification documents. For the avoidance of doubt, any
                indemnity provisions, D&O insurance and fiduciary insurance coverage
                related to your employment by the Company and your provision of services
                under the Consulting Agreement shall continue in full force and effect,
                subject, in the case of any such outside insurance coverage that
                such
                coverage or comparable coverage be maintained through the sixth
                anniversary of the date you cease to provide services as provided
                for in
                the Consulting Agreement, to the extent such coverage remains available
                at
                a commercially reasonable rate.  Notwithstanding anything
                herein, you shall be entitled, to the maximum extent permitted by
                law and
                the Company’s indemnification documents, to all rights to indemnification
                and contribution under the certificate of incorporation, bylaws or
                similar
                charter documents of, or any agreement with, Triarc or any of its
                subsidiaries  or affiliates.  The Company hereby fully
                releases you from any and all claims against you based on facts known
                to
                Messrs. Nelson Peltz, Peter May, Edward Garden, Brian Schorr or any
                current executive officers of the Company as of the Termination Date
                provided that the foregoing release shall not include any claims
                relating
                to willful gross misconduct which results in substantial damage to
                the
                Company. For purposes of this Letter Agreement, “willful” shall have the
                same meaning set forth in Section 16 of the Severance
                Agreement.

            


    

     

    
      	
              12.  

            	
              The
                payment of any amount or the provision of any benefits provided in
                this
                Agreement are subject to your prior execution and delivery to the
                Company
                of a release substantially in the form set forth in Exhibit A of
                the
                Severance Agreement and non-revocation of such
                release.

            


    

     

    
      	
              13.  

            	
              The
                Company acknowledges your right to file for unemployment insurance
                as a
                result of its decision to close its New York headquarters which resulted
                in the termination of your employment.  The Company will
                cooperate with any claims filed by
                you.

            


    

     

    
      	
              14.  

            	
              Unless
                modified herein, the terms and provisions of the Severance Agreement
                shall
                continue in full force and effect, including without limitation Section
                7,
                Section 9 (Certain Additional Payments by the Company) (provided
                that any
                “Gross-Up Payment” arising under such section shall be paid to the you
                prior to the end of your taxable year next following the taxable
                year in
                which you remit the “Excise Tax” covered by such section), Section 10
                (Noncompete/Nonsolicitation/Employee No-Hire), Section 12 (Inventions),
                Section 13 (Confidentiality) and Section 14 (Indemnification) (provided
                that any reimbursement the Company pays to you under such section
                shall be
                paid prior to the end of your taxable year next following the taxable
                year
                in which the action, suit or proceeding is
                completed).

            


    

     

    


    *
      * * *
      *

    


    
      	
               

            	
              Agreed
                on December 13, 2007:

            


    

    


    


    
      	
               

            	
              TRIARC
                COMPANIES, INC.

            


    

    


    


    
      	
               

            	
              By:
                /s/ DAVID E. SCHWAB
                II                     

            


    

    
      	
               

            	
              Name:  David
                E. Schwab II  

            


      	 	 Title:  
              Chairman of the Special Committee


    

     

    


    
      	
               

            	
              /s/
                FRANCIS T.
                MCCARRON                    

            


    

    
      	
               

            	
              Francis
                T. McCarron

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    Annex
      A- Expenses Eligible for Reimbursement/In-Kind Benefits

    


     

    
      	
               

            	
              1.

            	
              1.409A-1(a)(5)
                Benefits—Life (Unicare), Short-Term Disability (Unicare)* / Long Term
                Disability (Sun Life)

            


    

     

     

    
      	
               

            	
              2.

            	
              1.409A-1(b)(9)(v)(B)
                Medical Benefits—Medical (Unicare)* / Dental (Unicare)*/ Prescription
                Drugs (Unicare)* / Vision (First Rehabilitation)* / Executive Medical
                Reimbursement Plan (First
                Rehabilitation)*

            


    

     

     

    
      	
               

            	
              3.

            	
              1.409A-3(i)(iv)
                Benefits—Travel Accident Insurance (American Home) / Transitchek's
                vouchers and metro cards ($110/month for 2007, $115/month for 2008)
                /
                Commuter Parking ($215/month)/Seven percent (7%) of the maximum 401(k)
                contribution limit (e.g., $1,085 for calendar year 2008
                (representing the product of seven percent (7%) and the 2008 maximum
                401(k) contribution limit of $15,500) to be paid on or before December
                31,
                2008; seven percent (7%) of the maximum 401(k) contribution limit
                for 2009
                to be paid on or before December 31, 2009; and one-half (1/2) of
                seven
                percent (7%) of the maximum 401(k) contribution limit for 2010 to
                be paid
                on or before June 30, 2010) / Annual Financial Assistance Payments
                of no
                less than $7,500

            


    

     

    *  Dependent
      eligibility – Spouse and Dependent child through age 19 and 25 if
      full-time student