Contract
EXHIBIT
10.4
(with
related Dividend Equivalent Rights)
Wendy’s/Arby’s
Group, Inc.
__________,
20__
THIS AGREEMENT, made as of __________,
20__ (the “Date of
Grant”), between Wendy’s/Arby’s Group, Inc., a Delaware corporation (the
“Company”), and
_____________ (the “Grantee”).
WHEREAS, the Company has adopted the
Wendy’s International, Inc. 2007 Stock Incentive Plan (the “Plan”) in order to
provide additional incentive to certain employees and directors of the Company
and its Subsidiaries; and
WHEREAS, the Committee has determined
to grant to the Grantee an Award of Stock Units with related Dividend Equivalent
Rights as provided herein to encourage the Grantee’s efforts toward the
continuing success of the Company.
NOW, THEREFORE, the parties hereto
agree as follows:
1. Grant.
1.1 Unless
this Agreement is rejected by the Grantee (or the Grantee’s estate, if
applicable) as provided in Section 8 hereof, the Company hereby grants to the
Grantee in respect of 20__ employment services an award (the “Award”) of ________
Stock Units with an equal number of related Dividend Equivalent
Rights. Subject to Section 6 hereof, each Stock Unit represents the
right to receive one (1) Share at the time and in the manner set forth in
Section 7 hereof.
1.2
Each Dividend Equivalent Right represents the right to receive all of the cash
dividends that are or would be payable with respect to the Share represented by
the Stock Unit to which the Dividend Equivalent Right relates. With
respect to each Dividend Equivalent Right, any such cash dividends shall be
converted into additional Stock Units based on the Fair Market Value of a Share
on the date such dividend is made (provided that no fractional Stock Units shall
be granted). Such additional Stock Units shall be subject to the same
terms and conditions applicable to the Stock Unit to which the Dividend
Equivalent Right relates, including, without limitation, the restrictions on
transfer, forfeiture, vesting and payment provisions contained in Sections 2
through 7, inclusive, of this Agreement. In the event that a Stock
Unit is forfeited pursuant to Section 6 or 8 hereof, the related Dividend
Equivalent Right shall also be forfeited.
1.3 This
Agreement shall be construed in accordance and consistent with, and subject to,
the provisions of the Plan (the provisions of which are hereby
incorporated
by reference) and, except as otherwise expressly set forth herein, the
capitalized terms used in this Agreement shall have the same definitions as set
forth in the Plan.
2. Restrictions on
Transfer.
The Stock Units granted pursuant to
this Agreement may not be sold, transferred or otherwise disposed of and may not
be pledged or otherwise hypothecated.
3. Vesting.
Except as provided in Sections 4 and 5
hereof, one-third of the number of Stock Units granted hereunder (rounded up to
the next whole Stock Unit, if necessary) shall vest on each of the first three
anniversaries of the Date of Grant (each such anniversary, a “Vesting
Date”).
4. Effect of Certain
Terminations of Employment.
If the Grantee’s employment terminates
as a result of the Grantee’s death, Retirement or becoming Disabled, or if the
Grantee is terminated without Cause in connection with the disposition of one or
more restaurants or other assets of the Company or its Subsidiaries or the sale
or disposition of a Subsidiary (a “Sale Termination”),
in each case if such termination occurs on or after the Date of Grant, all Stock
Units which have not become vested in accordance with Section 3 or 5 hereof
shall vest as of the date of such termination.
5. Effect of Change in
Control.
5.1 In
the event of a Change in Control for an event described in section 29.6(C) of
the Plan which also constitutes a change in effective control of the Company or
a change in the ownership of a substantial portion of its assets, in each case
within the meaning of Code Section 409A, at any time on or after the Date of
Grant, all Stock Units which have not become vested in accordance with Section 3
or 4 hereof shall vest immediately.
5.2 In
the event that a Grantee terminates employment within a period commencing on the
date of a Change in Control for an event described in section 29.6(A) or (B) of
the Plan which also constitutes a change in effective control of the Company or
a change in the ownership of a substantial portion of its assets, in each case
within the meaning of Code Section 409A, and ending on the earlier of the
Vesting Date and the second anniversary of such Change in Control, provided that
such termination was initiated by the Company or its Subsidiary without Cause or
by the Grantee for Good Reason, and that such Change in Control occurred on or
after the Date of Grant, all Stock Units which have not become vested in
accordance with Section 3 or 4 hereof shall vest as of the date of such
termination.
2
5.3 In
the event that a Grantee terminates employment within a period commencing on the
date of a Change in Control and ending on the third anniversary of such Change
in Control, other than as described in Sections 5.1 or 5.2 above, provided that
such termination was initiated by the Company or its Subsidiary without Cause or
by the Grantee for Good Reason, and that such Change in Control occurred on or
after the Date of Grant, all Stock Units which have not become vested in
accordance with Section 3, 4, 5.1 or 5.2 hereof shall vest as of the date of
such termination.
6. Forfeiture of Stock
Units.
In addition to the circumstance
described in Section 8 hereof, any and all Stock Units which have not
become vested in accordance with Section 3, 4 or 5 hereof shall be
forfeited and shall revert to the Company upon:
(i) the
termination of the Grantee’s employment with the Company or any Subsidiary for
any reason other than those set forth in Section 4 hereof prior to such vesting;
or
(ii) the
commission by the Grantee of an Act of Misconduct prior to such
vesting.
For
purposes of this Agreement, an “Act of Misconduct”
shall mean the occurrence of one or more of the following events: (x)
the Grantee uses for profit or discloses to unauthorized persons, confidential
information or trade secrets of the Company or any of its Subsidiaries, (y) the
Grantee breaches any contract with or violates any fiduciary obligation to the
Company or any of its Subsidiaries, or (z) the Grantee engages in unlawful
trading in the securities of the Company or any of its Subsidiaries or of
another company based on information gained as a result of that Grantee’s
employment with, or status as a director to, the Company or any of its
Subsidiaries.
7. Issuance of
Shares.
7.1 Timing of
Delivery. On the Vesting Date, or as soon thereafter as
administratively practicable but in no event later than December 31, 20__, the
Company shall issue Shares to the Grantee (or, if applicable, the Grantee’s
estate) with respect to Stock Units that become vested on the Vesting Date or
that become vested pursuant to Section 5.3. Shares with respect to
Stock Units that become vested pursuant to Section 4, 5.1 or 5.2 shall be issued
upon the date such Stock Units become vested, or as soon thereafter as
administratively practicable; provided, however, that if the
Grantee is a “specified employee” within the meaning of Section 409A of the Code
as of the date of the Grantee’s termination of employment based on the Grantee’s
Share ownership (at least 1% of the outstanding Shares) or compensation relative
to other employees (in the top 50) and determined in accordance with policies
and procedures adopted by the Company, any Shares with respect to Stock Units
which have become vested pursuant to Section 4 due to
3
the
termination of the Grantee’s employment as a result of the Grantee’s Retirement,
a Sale Termination, or the Grantee becoming Disabled (other than a Disability
which constitutes a disability within the meaning of Section 409A of the Code)
shall be issued as soon as administratively practicable after the first day of
the calendar month following the date which is six (6) months after the date of
the Grantee’s termination of employment.
7.2 Method of
Delivery. The Grantee will not receive cash in respect of this
Award; and (i) for Grantees who are residents of Canada, the Company at its
option shall either (A) issue newly issued or treasury Shares to the Grantee
(or, if applicable, the Grantee’s estate); or (B) deliver cash to a broker who,
as agent for the Grantee, shall purchase the appropriate number of Shares on the
open market; (ii) for all other Grantees, the Company shall issue newly issued
or treasury Shares to the Grantee (or, if applicable, the Grantee’s
estate).
8. Rejection of Award
Agreement.
The Grantee may reject this Agreement
and forfeit the Stock Units and Dividend Equivalent Rights granted to the
Grantee pursuant to the Award by notifying the Company or its designee in the
manner prescribed by the Company and communicated to the Grantee; provided that
such rejections must be received by the Company or its designee no
later than the earlier of (i) __________, 20__ and (ii) the date that is
immediately prior to the date that the Stock Units vest pursuant to Section 4 or
5 hereof (the “Grantee
Return Date”); provided further that if the Grantee dies before the
Grantee Return Date, the Grantee’s estate may reject this Agreement no later
than ninety (90) days following the Grantee’s death (the “Executor Return
Date”). If this Agreement is rejected on or prior to the
Grantee Return Date or the Executor Return Date, as applicable, the Stock Units
and Dividend Equivalent Rights evidenced by this Agreement shall be forfeited,
and neither the Grantee nor the Grantee’s heirs, executors, administrators and
successors shall have any rights with respect thereto.
9. No Right to Continued
Employment.
Nothing in this Agreement or the Plan
shall interfere with or limit in any way the right of the Company or its
Subsidiaries to terminate the Grantee’s employment, nor confer upon the Grantee
any right to continuance of employment by the Company or any of its Subsidiaries
or continuance of service as a Board member.
10. Withholding of
Taxes.
Prior to
the delivery to the Grantee (or the Grantee’s estate, if applicable) of Shares
pursuant to Sections 1 and 7 hereof, the Grantee (or the Grantee’s estate) shall
pay to the Company the federal, state and local income taxes and other amounts
as may be required by law to be withheld by the Company (the “Withholding Taxes”)
with respect to such Shares. By not rejecting this Agreement in the
manner provided in Section 8 hereof, the Grantee (or the Grantee’s estate) shall
be deemed to elect to have the Company withhold a portion of such
4
Shares
having an aggregate Fair Market Value equal to the Withholding Taxes in
satisfaction of the Withholding Taxes, such election to continue in effect until
the Grantee (or the Grantee’s estate) notifies the Company at least 4 days prior
to the Vesting Date that the Grantee (or the Grantee’s estate) shall satisfy
such obligation in cash, in which event the Company shall not withhold a portion
of such Shares as otherwise provided in this Section 10.
11. Consent to Electronic
Delivery of Prospectuses, Annual Reports and Other
Information.
By not rejecting this Award pursuant to
Section 8 hereof, Grantee hereby consents to the electronic delivery of
prospectuses, annual reports and other information required to be delivered by
Securities and Exchange Commission rules. This consent may be revoked
in writing by Grantee at any time upon three business days’ notice to the
Company, in which case subsequent prospectuses, annual reports and other
information will be delivered in hard copy to Grantee.
12. Grantee Bound by the
Plan.
The Grantee hereby acknowledges receipt
of a copy of the Plan and agrees to be bound by all the terms and provisions
thereof.
13. Modification of
Agreement.
This Agreement may be modified,
amended, suspended or terminated, and any terms or conditions may be waived, but
only by a written instrument executed by the parties hereto.
14. Severability.
Should any provision of this Agreement
be held by a court of competent jurisdiction to be unenforceable or invalid for
any reason, the remaining provisions of this Agreement shall not be affected by
such holding and shall continue in full force in accordance with their
terms.
15. Governing
Law.
The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Delaware without giving effect to the conflicts of laws principles
thereof.
16. Successors in
Interest.
This Agreement shall inure to the
benefit of and be binding upon any successor to the Company. This
Agreement shall inure to the benefit of the Grantee’s legal
representatives. All obligations imposed upon the Grantee and all
rights granted to the
5
Company
under this Agreement shall be binding upon the Grantee’s heirs, executors,
administrators and successors.
17. Resolution of
Disputes.
Any dispute or disagreement which may
arise under, or as a result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined by the
Committee. Any determination made hereunder shall be final, binding
and conclusive on the Grantee, the Grantee’s heirs, executors, administrators
and successors, and the Company and its Subsidiaries for all
purposes.
18. Entire
Agreement.
This Agreement and the terms and
conditions of the Plan constitute the entire understanding between the Grantee
and the Company and its Subsidiaries, and supersede all other agreements,
whether written or oral, with respect to the Award.
19. Headings.
The headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
WENDY’S/ARBY’S GROUP,
INC.
By:______________________________________
Name:____________________________________
Title:_____________________________________
6
